Year: 2005

Where is the vice-president? When was the last time he held a press conference? I ask these obvious questions because reasonable and fair people, having read the indictments against his chief of staff, have reasonable and fair questions. Did Cheney direct Libby to out Valerie Wilson’s identity? Why did he order an inquiry into her role? Does he condemn the leaking of her identity? Why has he held back important documents from the Senate that would help explain his role in formulating what turned out to be flawed intelligence before the Iraq war? That’s just for starters. The issues here are profound ones: they suggest that the vice-president has abused his own power and put the nation’s security at risk to pursue a political opponent. Maybe that’s not true. Maybe there’s an innocent explanation for all of this. So why cannot the vice-president explain? It seems at times as if he does not really regard himself as answerable to the people he represents – that once every four years is enough for him. But having the second most powerful man in the country refuse to be accountable for his actions is dangerous for democracy. He is not above this process. You and I pay his salary. It’s time for the press to get angry about his silence and avoidance. And it’s time for him to tell us the full extent of what he knows.

It’s continuing at Volokh with Dale Carpenter’s patient dismemberment of Maggie Gallagher’s previous arguments. Cathy Young weighs in here as well. This passage from Dale’s latest post struck a chord with me:

when couples get married it improves the lives of the people who love them by reassuring them that their loved one is being cared for, and are less likely to live, as Anna put it, “lonely and depressed” lives.
My mother, who is 61, recently married a man who is 77 and with whom she’d lived for 18 years. Their sex will not make babies, yet everyone in both families was thick with happiness for them. Why did she marry? Did it change anything in a relationship that was already a marriage in just about every way except the name and the license? When I asked her this, she responded, “Now we’re more one.” I don’t fully understand the magic of that moment, but I didn’t have to understand it in order to know that I was more at peace about her future.

This is undoubtedly one critical piece in the meaning of marriage: the way in which the civil institution assigns one individual to take care of another. We all have an interest in this: people uncared for will have to rely on the government for help. Couples are more able to help themselves. Whether they have children or not does not affect this profound social good from marriage. The question we are debating is: why shouldn’t everyone be able to have that support? Why is it in society’s interests to keep gay women and men from such stability and security?

MY ‘OVERSTATEMENT’: Jonah takes me to task for writing that Roberts, Miers and Alito all hold the judiciary essentially toothless in tackling executive power in wartime (which now means for ever). He takes exception to my words “completely craven” and “unrestricted executive power.” My point here is a simple one: the current executive believes it has the right to detain an American citizen without charges indefinitely. It also believes it has the legal right to torture or abuse people it has detained. More to the point, it has detained a U.S. citizen indefinitely without charge, and it has, on numerous occasions, sanctioned the abuse and torture, even to death, of those in its custody. Roberts, Miers and Alito, from all I have read, would not interfere with that power. Andy McCarthy’s counter-point is that a Democrat-appointed judge upheld the Padilla case (indefinite detention without charge). That doesn’t rebut my point. Maybe I should have been clearer: I was referring to Bush’s SCOTUS nominees above all. If someone at NRO could reassure me that any of the three I mention believe that the judiciary can and should restrict the commander-in-chief in these matters, I’d be grateful. Meanwhile, I think an executive with the power to detain citizens indefinitely without charge and to apply cruel, inhumane and degrading treatment to them is, well, “unrestricted.” By the way, what does NRO believe about the McCain Amendment? I have no idea.

A very encouraging sign in this piece:

According to at least one former Alito clerk, Nora Demleitner, he is not the rabid conservative he’s so far been made out to be. Demleitner cites Alito’s majority decision in the 1993 case Fatin v. INS, in which Alito held that an Iranian woman could be granted asylum if she could show that complying with her country’s “gender specific laws and repressive social norms” would be deeply abhorrent to her.
“To this day, it remains one of the most progressive opinions in asylum law on gender-based persecution,” says Demleitner.

Just one more piece of evidence. I have to say that after a day of digesting Alito’s record and rulings, I’m inclined toward him. He’s obviously qualified, he has the right temperament, and his support of states’ rights and the First Amendment are appealing. We should all wait for the hearings before we make up our minds. But I cannot say I’m deeply alarmed, even though I’m sure I would have disagreements with him on some issues. My advice to my liberal friends who would prefer a different kind of justice is a simple one: win a frigging election, guys. (Hat tip: Volokh).

Yep, it’s hard to believe. Some members of the religious right are opposing mandatory shots for teenagers to protect them against HPV, a virus that can cause cervical cancer. The Bush administration has put one of these people on the Advisory Committee on Immunization Practices (ACIP), at the CDC. The theocons don’t want to reduce the chances of getting STDs, because they fear it might make having sex less dangerous – and so encourage more people to be sexually active. I’m not making this up. Cervical cancer kills more than 3,700 women a year. Acquiescing in these deaths is now part of the “culture of life.”

A MICROBICIDE, PLEASE: This is great news for HIV prevention: a promising microbicide gel that women can use to protect themselves from HIV. Readers of this blog will know I’ve long been an advocate of such a prophylaxis, particularly for women who may find themselves unable to force their partner to wear a condom. One further question: could this work for gay men as well? And why has there not been more aggressive research for a microbicide for men?

An emailer disagrees with a previous emailer’s worry about the Groody case:

You emailer mischaracterizes Alito’s dissent in the Groody case. Alito was not proposing to simply “ignore the plain text of the warrant”; he argued that the text of the warrant was ambiguous and that the officers therefore could reasonably rely on the affidavit to justify the search and enjoy qualified immunity.

Both the majority and Alito agreed that, if the warrant was ambiguous, or if the warrant incorporated the supporting affidavit, the affidavit could be used to support the search. However, as Alito makes plain in his dissent: “My disagreement with the majority concerns the question whether the mode of incorporation [of the affidavit in support of and attached to the warrant, which sought authorization to search all persons found on the subject property] in this case was adequate.”

The majority conceded that warrants are not to be read in a legalistic and hypertechnical manner and that a court may look to the supporting affidavit to clarify any ambiguity or correct a clerical error in the warrant. The majority found that there was no express incorporation of the affidavit or ambiguity that required resort to the affidavit for clarification.

In contrast, Alito noted that one of the paragraphs of the warrant did incorporate the affidavit, at least with respect to the probable cause statements of the affidavit, which Alito concluded created at least an ambiguity that justified reliance on the affidavit. Moreover, there was evidence in the record to support the conclusion that the officers intended to incorporate the affidavit. Given the governing standard for construing warrants, which the majority did not dispute — “commonsense and realistic” — Alito concluded there was sufficient basis to justify the search.

Wholly apart from whether or not search warrant adequately incorporated the supporting affidavit, Alito also believed there were sufficient facts that justified the application of qualified immunity to protect the officers from the lawsuit.

In sum, Alito and the majority largely agreed on the law, but disagreed on whether the facts in the record supported the validity of the search under the warrant. I think the majority probably had the better of the argument on the construction of the warrant and Alito had the better of the qualified immunity issue (there was no evidence that the officers knowingly or willfully violated anyone’s civil rights and plenty of evidence that the officers reasonably believed they were acting pursuant to a valid warrant in the execution of the law). In any event, the case is much closer than your emailer suggests and does not evince an “activist” bent on “statist” results.

after reading this email and the ruling, I’m persuaded.

“Jan Crawford Greenburg – who I think has always been ahead of the pack in on the nominations issue – reports that the White House is focused on Judges Luttig and Alito, and potentially Judges Owen and Williams.
Of these candidates Judge Alito seems most likely to me, and he is my prediction. Judge Alito would energize the President’s conservative supporters. But he would not be as much of a fight as the others. Luttig and Owen, in particular, raise the serious prospect of a filibuster and it seems unlikely in the current environment that the Administration is anxious to have that fight. It seems to me that the pressure to nominate a woman is considerably lessened now, and the focus is on getting someone confirmed. Judge Alito will be grudgingly confirmable to many Democrats once they look at his record.” – Tom Goldstein, SCOTUSBLOG, last Friday. (Marty Lederman also predicted Roberts and Alito in the order – last May.)

The key thing to remember about Bush’s nominees: they are all completely craven with respect to the executive’s powers in wartime. And wartime is now defined as: for ever. In my view, the real upshot of the Court’s shift under Bush may well be not in terms of the usual culture-war battles, but in terms of unrestricted executive power – to detain without charge, to cover up its own actions, and to torture. To do that, you have to get the Court out of the way. That’s what Cheney is doing; and what Roberts and Alito will support. Only the Congress will be able to stop the executive from now on.

Some encouraging research here.

CLASSIC CHOMSKY: A reader comments on the Chomsky interview in the Guardian:

That interview is simply classic Chomsky. Three elements of his shameful legacy appear in all their glory:

1. The denial of mass murder: just as he denied the Khmer Rouge genocide in Cambodia until it couldn’t be hidden any longer, the massacre at Srebrenica was overblown.

2. The intellectual defense of crackpot conspiracies: Chomsky never agreed with Robert Faurisson that the Holocaust was a hoax, he simply defended the possibility that Faurisson was some sort of “apolitical liberal” trying to find the truth and not an antisemitic crackpot. Likewise, he praised the “wrong, but outstanding work” of the Living Marxism magazine.

3. The latent anti-semitism. Note the throwaway claim at the beginning of the interview, where the brutal Tsarist policy of state anti-semitism is described as “not very bad, by contemporary standards. In the worst of the major massacres, I think about 49 people were killed.” This fits in nicely with his defense of Faurisson and the claims he has made about the need for Jews to “make sure they have total control, not just 98% control.” as they are “the most privileged and influential part of the population.” in the United States.

An anti-semitic crackpot, a denier of genocide, and an intellectual coward. Yup, Noam Chomsky shows his true colors to the skeptical Guardian reporter.

The good news is: he didn’t get away with it.

A soldier in Iraq weighs in.

Can we please have a debate about Alito without descending immediately into inflammatory rhetoric about his ethnicity? Anti-Alito morons who touted his failure to win a case against the mob seem to have started this, according to Chris Matthews. Mehlman and Hatch seem to be picking up the guantlet. Jeez. If it’s this ugly on Day One …

A blogger comes clean:

I have a confession; I supported the war. I was one of the “liberal hawks” who focused only on the (true) horror of the Hussein regime, without listening to the nagging doubts of caution and the fear of pride that I felt right above my belt. No, I too was swept up in the bright hubristic vision, and thought that we could re-make the broken map. I remember thinking such silly things at the time:

The invasion will be welcomed, after the people realize Hussein is gone for good.
Iraq is at heart a middle-class country.
We could move our bases out of Saudi Arabia, and have a stable base of power in the Middle East.
The other Satrapies will democratize because of our example in Iraq, and our menace.
If the Shia and Sunnis and Kurds don’t get along, we’ll just break the country up.
We’re the only remaining superpower. We have a moral obligation to project power against dictators.

Bullshit.

It’s painful to read. And no, I’m not where this guy is. I haven’t given up yet.