CHOO CHOO

Eisenbahn Blog. Fotos gibts auch. Ausgezeichnet.

FRIDAY. . .

Day to release embarrassing news in the hopes that it will get buried? Maybe. I hope there aren't many other people out there whose terrorism-related prosecutions arose out of overzealousness and hysteria. My fear is patriotic, by the way.

I suppose I should admit to feeling a little bit sorry about Martha Stewart now.

STUFF

Today is C-Span's 25th broadcast anniversary. Brian Lamb is one of my heroes. He should be commended for taking seriously the basic democratic norm of legislative openness. I don't think I qualify as a C-Span junkie, since I don't have cable, but I listen to C-Span radio when I'm here in Bethesda, and I spend more time than I probably should watching videos from their archive. Right now I'm listening to Bush / Cheney campaign dude Ken Mehlman (here today) discuss how his web sites create astroturf, distribute talking points and get traditional media coverage on the cheap. Good to know. Next up, I think, Joe Trippi.

And in other news: Thomas Nephew convinces me to put a fantasy novel on my reading list (it's really not my genre, but Thomas's post is provocative, and his pitch over beer on Wednesday was pretty persuasive as well).

Still interested in having a kid?

Thanks to Bite the Wax Tadpole and Felix Maedhros for the links.

ACTIVISM IS FOR LOSERS

Chris Martin sent along a link to this cartoon.

RECUSAL

Which do you think has done -- or will have done, ultimately -- more damage to the "people['s] confidence in the integrity of the Justices":

a) Scalia's refusal to recuse himself in the Cheney litigation, or

b) Bush v. Gore?

I'm not being facetious. I expressed my own doubts about the necessity of Scalia's recusal in the Cheney case (see here); I also expressed my doubts about the necessity of a recusal in the Pledge case, here, but for a more cynical reason: judicial impartiality is a myth that should be punctured. I'm not secure in that last claim, by any means, although Bush v. Gore made the claim more attractive to me. If the Court is going to interject itself needlessly in order to choose a President, then they deserve all the impartiality-myth-puncturing scrutiny that they get. I think that mostly on my angry days.

But if judicial impartiality is the question, Scalia is right to argue that the decision over recusal is one that is bound up with the creation of images of judicial impartiality, and that acquiescence in the present recusal motion could harm that image in the long term. Scalia writes:

My recusal would also encourage so-called investigative journalists to suggest improprieties, and demand recusals, for other inappropriate (and increasingly silly) reasons. The Los Angeles Times has already suggested that it was improper for me to sit on a case argued by a law school dean whose school I had visited several weeks before--visited not at his invitation, but at his predecessor's. See New Trip Trouble for Scalia, Feb. 28, 2004, p. B22. The same paper has asserted that it was improper for me to speak at a dinner honoring Cardinal Bevilaqua given by the Urban Family Council of Philadelphia because (according to the Times?s false report) that organization was engaged in litigation seeking to prevent same-sex civil unions, and I had before me a case presenting the question (whether same-sex civil unions were lawful?--no) whether homosexual sodomy could constitutionally be criminalized. See Lawrence v. Texas, 539 U. S. ___ (2003). While the political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this Court cannot. The people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot-faults. (emphasis added, footnote omitted; the quote is from pages 18-19 of the memorandum opinion issued yesterday, PDF file here)

The acerbic tone is of course vintage Scalia, and I haven't followed up on his description of events, but leaving all that aside, we do have a culture of journalistic scandal and the press has had a mini-frenzy over the recusal issue. Scalia's contentious public persona is a contributing factor, to be sure, but the broader causes have to do with the structure of reporting combined with a Court that has been in the political spotlight. Justices are stewards of the Court as an institution; they need to be concerned with how their actions will affect the public image of the Court. In an aggressive media environment titled toward scandal, this task of stewardship can be tough.

But in this light, Bush v. Gore looks even more strange. Consider the following quote from Scalia yesterday:

To be sure, there could be political consequences from disclosure of the fact (if it be so) that the Vice President favored business interests, and especially a sector of business with which he was formerly connected. But political consequences are not my concern, and the possibility of them does not convert an official suit into a private one. That possibility exists to a greater or lesser degree in virtually all suits involving agency action. To expect judges to take account of political consequences--and to assess the high or low degree of them--is to ask judges to do precisely what they should not do. It seems to me quite wrong (and quite impossible) to make recusal depend upon what degree of political damage a particular case can be expected to inflict. (9-10; emphasis added)

Then consider Scalia's infamous justification for granting the December 9, 2000 stay that effectively decided the election in favor of Bush:

The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires. (PDF file here)

Why isn't Scalia showing concern for the "political consequences" of the Court's actions in the Bush v. Gore case, albeit concern for consequences of a "high" degree? Scalia just told us yesterday that the political branches can weather the assaults of the press and resulting public doubts (see above). So, again, why was it proper for the Supreme Court to worry about political consequences to George Bush -- especially when there were alternate, established procedures for dealing with the precise kind of controversy at issue? Recall that Congress -- not the Court -- is explicitly charged with the responsibility of determining the validity of slates of electors.

I don't want to be unfair. You might say that Scalia's concern for the political legitimacy of the Court is analogous to his concern for the legitimacy of George Bush's presidency in 2000. At some point, though, the distinction between "political consequences" and "legitimacy" breaks down. According to Scalia, the Justices are not supposed to care about "political consequences," but they are supposed to care about "legitimacy," at least where the legitimacy of the Court is concerned. But in the light of those concepts, Bush v. Gore looks pretty bad.

MORE: perhaps I should have compared a hypothetical recusal in this case -- and all the nastiness that Scalia says would go with it -- to Bush v. Gore. The latter still probably harmed the Court more than the former would.

ON SATIRE

Here's a non-satirical reminder for John Derbyshire: satire is supposed to highlight the grotesque nature of certain views in order to induce thoughtful members of the audience to change those views. No one thinks that Swift really thought people should eat Irish babies, or even do them much harm at all; in fact, the point was that English policies were harmful to Ireland and that people should change them fundamentally.

Derbyshire gets it half right, from at least a certain perspective. He wants tougher immigration policies, tougher policies against gays and lesbians, tougher policies against China, less regulation and lower taxes, so his satirical piece in favor of abolishing Congress is partly an attempt to shame Congress into taking power away from the executive and the judiciary, or perhaps, in his view, re-taking them.

But Derbyshire's argument breaks down when he writes the following:

Hold on there, Derb, I hear you murmuring. Aren't you going a bit too far here? After all, Congress does make laws, you know. And we do need laws, don't we?

We certainly do. However, you should entertain the possibility that we already have all the laws we need, and that the republic would probably get along just fine if no new laws were passed for a few years. Twenty years ago we had several hundred less federal laws than we have now. I suppose that in some ways we were worse off in 1984; but things weren't bad.

Astute readers will note the Reagan-esque disdain for federal governing institutions that undergird this argument. Is that strand of Republican argument also part of the satire? I doubt it. Derb lets the mask slip a bit here, and the satire suffers.

It's time to realize that the Reagan revolution in american conservatism was a dangerous affair precisely because it blamed government -- Congress included -- for the nation's problems. Grover Norquist is the apotheosis of this transformation. The folks at the Corner are a little embarrassed by Norquist nowadays, since the Bush administration has attempted to argue that cuts in defense are a Democratic idea. But the problem is that the "starve the beast" mentality is part of the heritage of Reaganism, a close cousin of the "hamstring Congress" view to which Derbyshire clings, albeit ambiguously and under the guise of an attempt at satire. (For less ambiguous clinging, go here.) It's as if he were to write, "you don't have to eat all of the babies, just the really fat ones," and hope that his readers would actually agree. Very funny indeed.

ON NOT BEING CHURLISH

I suppose it would have been churlish of Cheney to mention yesterday, at his speech at the Reagan library, Reagan's withdrawal of marines from Beirut in response to a terrorist bombing, or the shortsightedness that Reagan showed by funding radical fundamentalist groups that would develop into al-Qaeda, or the massive support that the Reagan administration gave to Saddam Hussein -- at the very same time that Hussein was using chemical weapons on the battlefield and in attempts to murder and intimidate domestic populations (recall that Donald Rumsfeld was special envoy from Ronald Reagan when this famous picture was taken). As Cheney himself said yesterday, though: "The President always casts the deciding vote."

IKE, AGAIN

From his 1953 inaugural address:

So we are persuaded by necessity and by belief that the strength of all free peoples lies in unity; their danger, in discord.

To produce this unity, to meet the challenge of our time, destiny has laid upon our country the responsibility of the free world's leadership.

So it is proper that we assure our friends once again that, in the discharge of this responsibility, we Americans know and we observe the difference between world leadership and imperialism; between firmness and truculence; between a thoughtfully calculated goal and spasmodic reaction to the stimulus of emergencies.

We wish our friends the world over to know this above all: we face the threat--not with dread and confusion--but with confidence and conviction.

We feel this moral strength because we know that we are not helpless prisoners of history. We are free men. We shall remain free, never to be proven guilty of the one capital offense against freedom, a lack of stanch faith.

WORD FOR THE DAY

Tal-genn!

While you're there, scroll down for some gardening advice. Spring is arriving, thank God!

IT'S SNOWING IN OSWEGO AGAIN

I guess they'll have to add to this pile. It's a little tough to figure out the scale of the picture, so I found a version of News 10's picture that pans out a bit, and posted it here (source pictures from link above and here)

KERRY'S FRENCH CONNECTION, CONTINUED

You know, the French were fighting in Vietnam, and so was Kerry. Hmmm.

For more, go here.

VERTRETBAR

Sascha Kremer's Vertretbar Weblawg has moved, here. If you speak German and are interested in German law, this site is an excellent resource. The links page is also very useful.

Check out Jurabilis and Transblawg as well.

ADULTS IN CHARGE

From President Eisenhower's first State of the Union address, February 2, 1953:

Reduction of taxes will be justified only as we show we can succeed in bringing the budget under control.

That's your daddy's GOP, not the one we've got today. Too bad.

Access Eisenhower's 1953 speeches on the web (big PDF file here).

MORE: Compare.

VOTING OBSERVERS

Harvard Law group to send students to ensure poll access (From the Boston Herald, via Law.com):

BOSTON - Chaotic vote counting is the lasting image of the 2000 election, but a group of Harvard Law School students say the millions of voters who were wrongly denied ballots was a bigger story. This year, they're trying to prevent it from happening again.

The new group, called Just Democracy, announced its plans Tuesday to dispatch at least 1,000 students from law schools across the country to cut through confusion at the polls.

As many as 4 million eligible voters were denied ballots in 2000 because of errors in voter registration databases or polling place problems, according to a study by the Caltech-MIT voting technology project.

Just Democracy's leaders say a bogged-down bureaucracy or ignorance of the law, not malice, explains the majority of the problems, and those problems can be fixed, said Harvard law student Becca O'Brien, the groups's founder.

Good for O'Brien, and good luck (and where can I sign up to help?). My sense is that these kinds of efforts are important for two reasons, aside from the fact that they are an essential part of voting rights implementation: first, they could have a real impact on election outcomes, and second, they highlight the anti-democratic arguments of conservatives who are willing to countenance the return of poll taxes and literacy tests as a way of excluding people from the polls, for example (see here and here).

Rights don't implement themselves, especially in an environment in which there is hostility toward their exercise.

BILLMON ON SPAIN

See here:

Almost by definition, the war on terrorism is a joint venture, in which intelligence sharing, police cooperation, and quick responses are the critical factors, not who owns the most aircraft carriers. If the Europeans conclude the Bush administration isn't serious about fighting that kind of war, but would rather tilt at Middle Eastern windmills (or oil wells, as the case may be) they could decide their national interests would be best served by moving to the sidelines, and letting the Americans and Al Qaeda have at it.

The rest of the post is also provocative -- including the comparison of Bush to Kaiser Wilhelm (no, really!), which I don't have enough historical competence to judge one way or the other, but, as always, the arguments that Billmon makes are worth taking seriously.

I'm not sure that the Europeans really believe that they can "mov[e] to the sidelines," though. I received today a press alert from the German Bundesministerium der Justiz, in which the ministry puts pressure on the upper house of the German legislature to pass a law allowing for European cooperation on arrests and extraditions. It doesn't seem to me that German politicians are under the impression that they can avoid being the target of al Qaeda [or related groups], or that they can avoid the use of force abroad in appropriate circumstances (see here and here).

MORE: . . .unless, of course, Billmon is simply talking about European participation in Iraq, but my sense was that he was making a broader argument.

PUSH POLLS OF SORTS

Nailed, by Misery and Billmon. This is going in my American Government lectures on polling, but perhaps I'll have to modify the lecture by noting that these kinds of deliberately crappy polls might create enough controversy to shift the focus of debate in the direction that Republicans like -- on the same principle as the Bush / Cheney campaign's deliberately provocative ads of recent days.

STILL SEVERAL PENTHOUSE BALCONY SUITES AVAILABLE

National Review cruise to Bermuda. Seven grand for the "Penthouse Balcony Suite," single occupancy; bring a guest and get a thousand bucks off. What a bargain! (I gather that the cruise line is using the untrademarked version of "Penthouse," mind you -- just so you loyal Marstonalia readers are well informed!) Unfortunately, the master suites at ten thousand bucks a pop are sold out, so you'll have to make do with, ahem, the lesser accomodations. But even if you're sailing near the cargo hold at three thousand bucks for the week, you still get to hang out, smoke cigars and talk "evil" with Richard Perle and Bill Buckley, among others.

Ah, how wonderful to be living in the second Gilded Age.

THE GADFLYER

If you haven't yet, check out the Gadflyer, now officially up and running. Here's a taste of what the folks at the Gadflyer are up to, from executive editor (and Oswego grad) Tom Schaller, who is now at UMBC:

Years from now, we will look back on this time as a critical moment in the history of American politics in general and progressive politics in particular. It will be either the moment when progressivism was beaten into utter submission and began its long walk in the wilderness, or the moment when progressives got up off their knees and turned the tide.

There is no doubt that the right has many advantages in the war of ideas and the war of politics, not least of which is the seemingly limitless stream of money that funds their efforts. But more than any other factor, their successes have been built on the mindset with which they approach politics. Simply put, they play to win.

It's time for progressives to do the same. With that in mind, during this week we will present a series of articles outlining ways progressives can get tough.

And in the first installment of these "getting tough essays," editor-in-chief Paul Waldman tells progressives about "Getting tough with the Right." One of the central points of Waldman's argument is that conservatives have built up an impressive communications infrastructure in order to frame issues in ways congenial to their goals and to coordinate the efforts of disparate political actors in order to advance their policies. Aside from the influence of money (which is required to build a radio network that will put folks like Rush Limbaugh and Sean "Deliver us from Liberals" Hannity on the air), Waldman notes that conservatives have used cultural issues to divide and distract the public:

So we've come to the point where the term "elitist" is used almost exclusively to describe those on the left, at a time when the government is controlled by a party that daily demonstrates its devotion to enhancing the power of the powerful, the influence of the influential, and the wealth of the wealthy. It's not too late to reverse these images and bring them back to reality. But it won't happen by itself, particularly given how hard the right works to convince Americans that progressives are elitists who want to tell them how to run their lives. There are plenty of issues progressives can use to reverse these images – if they are presented in a coherent way around a small number of themes.

Part of the agenda of the site is to help in charting out those themes.

This is a promising start to an important venture. If you like what you see, consider contributing, here.