The Dish

Andrew Breitbart remembers the latest victim of these barbarians.

A must-read, as always. Money quote:

Here, then, is the dilemma posed by Judge Alito: His federalism opinions suggest that he might be a conservative activist like Thomas with an agenda to restrict congressional power; many of his other opinions suggest that he might be a cautious incrementalist, as Roberts is likely to be, nudging the law in a more conservative direction rather than rewriting it from the ground up. Given the conflicting evidence, how can senators decide what kind of justice Alito would be? The questions to ask Alito are obvious enough. They’re many of the same ones that have been asked in Supreme Court confirmation hearings for nearly two decades, and they involve the nominee’s attitudes toward congressional power, previous judicial precedents, and the original understanding of the Constitution.

The contrast in the answers given by Thomas and Roberts suggest clues for senators to look for as they try to decode Alito’s responses. If Alito is evasive, as Thomas was, about a) how often the Court should strike down federal laws; b) how much weight it should give precedents that have been repeatedly reaffirmed; or c) how rigidly it should follow the original understanding of the Constitution, run for the hills. If he answers those questions precisely and candidly, as Roberts did, breathe a sigh of relief.

I hear that Alito already has 65 votes wrapped up.

LINCOLN AND LIBERTY: An emailer dissents from my respect for Lincoln’s concerns for liberty even as he faced a uniquely grave crisis in American history:

You may be underestimating the scale of arbitrary arrests (arrests with no right of release, either by habeas or otherwise) during the Civil War period. Mark Neely, an admirer of Lincoln and a respected scholar, cites estimates that there were over 14,000 arbitrary arrests from the beginning of the war until its conclusion — and this amounts to the staggering total of 1 in every 1,500 Americans. And Lincoln was not at all apologetic about this policy. As Neely says:

“He did not apologize. In his public letter of June 12, 1863, to Erastus Corning and others, Lincoln said with characteristic toughness: “… the time [is] not unlikely to come when I shall be blamed for having made too few arrests rather than too many.” He argued that the Confederate States, when they seceded, had been counting on being able to keep “on foot amongst us a most efficient corps of spies, informers, supplyers, and aiders and abettors of their cause” under “cover of ‘Liberty of speech’ ‘Liberty of the press’ and ‘Habeas corpus.'” Nicolay and Hay, who were not given to overstatement, noted that “few of the President’s state papers … produced a stronger impression upon the public mind than this.” Little wonder. Elsewhere in the letter, the president used even stronger language, saying that he could never “appreciate the danger … that the American people will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trail by jury, and Habeas Corpus, throughout the indefinite peaceful future … any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life.”

The questions before us, however, are: does the current situation approximate the crisis of the Civil War; and how “temporary” is our new war? One reason to be particularly concerned is that this war has been defined without any termination point or any enemy who could surrender and end our temporary illness. We are applying emergency powers to the executive indefinitely. Our only recourse is to trust the president. After the past three years? You’ve got to be kidding.

Our shadow president makes the case – and so much better than the real one. And with so much more credibility.

He thinks that the communion question for judges and Justices should be left to the confessional and individual reconciliation with a priest, if the judge sincerely believes that the constitution protects abortion rights with which he personally disagrees. I couldn’t agree more. But I fear Benedict has other ideas.

Here’s an intelligent defense of Benedict XVI. I hope he’s right, and I’m wrong.

JONAH’S POINT II: Two readers respond:

Goldberg’s argument is a non-starter. Our torture policy is not just immoral – it’s been implemented on people who are far, far from “mass murderers.” Just look at Abu Ghraib … or Ashcroft’s pathetic record on, you know, actually prosecuting real terrorists. Our torture policy is the worst of all worlds–it inflicts torture on innocent people thus creating far more many terrorists than would have existed if we had not tortured anyone at all.

I agree. We have many instances of sanctioned abuse (and even murder) of completely innocent people. The extreme case – the ticking bomb scenario – is, to my mind, another red herring. If such a situation were to emerge, the president’s emergency executive powers could allow him to violate the law in an exceptional circumstance. Those who made such a call might face criminal sanction of even resignation. But they wouldn’t be stopped from doing the right thing in such an extreme case. The current system, where torture and abuse are lawfully permitted by the military and the CIA, has been a disaster on every level. Then there’s the profound moral point that Jonah’s remarkable relativism obscures. A reader explains:

[Goldberg’s] logic leaves me with a feeling of despair. Has he intentionally created a place where there is no morality other than within a particular context, a context that is always changing? Is this what the neo-conservatives (in the broad sense) have left us with? ‘The difference was that the people we put in prisons were criminals. The people they put in the Gulag were men of conscience like Solzhenitsyn and Sharansky.’

So torture is okay dependent on the moral standing of the tortured? And who decides such standing? And after what due process?

Here’s a specific point of disagreement. Jonah writes:

One can make the argument that we should not torture mass murderers on moral or pragmatic grounds without elevating the moral status of mass murderers.

My argument would be that you cannot raise or lower the moral status of mass murderers with respect to torture. The only salient moral status with respect to torture is that the mass murderers are human beings. And what this hideous policy has necessarily done is to create a new class of prisoners that are regarded as sub-human, i.e., beneath the most basic of Geneva protections for even illegal combatants. My second argument would be that this is not about the moral status of terrorists or mass murderers. It’s about us, the moral status of the West, and places where as a civilization, we simply will not go as a matter of policy. I guess others will differ and I am glad at last that they are now prepared to say so. But for me, this is a clear line. And we cannot cross it, by enshrining the right to torture into law.

Like many other Catholics, I was relieved last week when Cardinal Poupard insisted that there was no fundamental conflict between Catholicism and evolution: “Fundamentalists want to give a scientific meaning to words that had no scientific aim.” This has long been the Church’s position, and its re-statement came at a moment when the loopy right is trying to undermine science education in the United States. The London Times’ Rees-Mogg even wrote:

Cardinal Poupard’s statement clarified the acceptance of Darwinism and rightly asserted that religious belief is compatible with the theory of evolution. He also gave a further indication that the mindset of Benedict XVI may be a good deal more modern than had been expected. One should have foreseen that with a German pope. The German Church has a strong tradition of theological inquiry in which Benedict XVI has been educated.

Alas, not so fast. Almost immediately, the Pope came out with a statement that clearly signals the hierarchy’s flirtation with intelligent design. Rees-Mogg argues that Benedict is an intellectual. Maybe. But he is a politician first.

The scoffing from the back row from my quoting Lincoln deserves, I guess, a response. Yes, I am, of course, well aware that he briefly suspended Habeas Corpus. It was re-reading about those years and decisions in Doris Kearns Goodwin’s book that brought me upon that quote. Lincoln’s decision is still debatable, but it was made at a time of national meltdown. My point here is that even Lincoln, in the most perilous political situation imaginable, still recognized the vital importance of defending the liberties that the Constitution is fundamentally constructed to protect. I have never heard president Bush extol the importance of civil liberties for Americans, and the need to guard against the criminal arm of government. It would be good to know that he even appreciates the trade-off. Maybe I’ve missed his defense of civil liberties for Americans. If someone finds a quote from him in that respect that isn’t pro forma boilerplate, I’ll gladly post it.

The just-passed Graham Amendment may be voided in its worst manifestations by an upcoming vote on an extra amendment, offered by Senator Bingaman next week. There may be complicated parliamentary maneuvring going on. What am I saying? May be. There is. The reasons to worry about the Graham bill are ably set out by Marty Lederman here, whose expertise vastly exceeds my own. I can see why enemy combatants might be denied the usual habeas corpus protections of citizens, if not minimal protections under Geneva. But the removal of all judicial oversight of their cases – which is what the Graham amendment would mean – leaves the entire question of detainee rights in the hands of the Pentagon. Rummy is asking us to trust him. At this point, why would any sane person do so?

“I fear you do not fully comprehend the danger of abridging the liberties of the people. Nothing but the sternest necessity can ever justify it. A government had better go to the extreme of toleration, than to do aught that could be construed into an interference with, or to jeopardize in any degree, the common rights of its citizens,” – Abraham Lincoln, in the midst of a national insurrection. It’s on page 523 of Doris Kearns Goodwin’s wonderful new book, “Team of Rivals.” The italics are in the original.

QUOTE FOR THE DAY II: “We do not torture,” – George W. Bush, earlier this week.