Russian oil spill

A major oil spill, on the Russia-Byelorussia border. "It's already all cleared up. Now there is no problem," according to Transneft; while in a spectacular display worthy of Private Eye's "Joined Up Government" column, "Russia's emergency situations ministry said the accident was minor and there had been no impact on the pipeline's deliveries to European markets," while the Russian Natural Resources Ministry worries that "[j]udging by reports from environmental organisations in the Bryansk region, the consequences of the accident could bring an environmental catastrophe to the region."

A broken nomination process

Ben Wittes (an essay by whom I commented on here, back in April) has an interesting article about the confirmation process in the WaPo today. Hat tip: ConfirmThem. Orin Kerr and Jonathan Adler weigh in here and here.

"...this problem of pandering to the cameras is not unique to the Supreme Court nomination process, or even to the Judiciary Committee; it is endemic in the presence of the permanent television camera [in Congress]." Wittes points out that the politicized confirmation process predates the era of Borking, and despite some early precursors such as Justice Brandeis' experience, the modern process dates back to Brown v. Board, after which the second Justice Harlan became the first nominee to appear in person for a grilling. Ironically, observes Wittes, "[l]iberals initially resisted such questioning as an affront to judicial independence." The New York Times, for example:

objected to the segregationist interrogation of Harlan, writing in an editorial that "if this line of questioning were to be followed further any candidate for the federal judiciary would have to satisfy the majority of the Senate Judiciary Committee that he was in line with that majority's view."

Live nominee testimony has become a meaningless Kabuki dance. A Democratic senator asks a conservative nominee about controversial topics. The nominee makes reassuring noises and commits to nothing. The senator appears exasperated. The nominee insists he will follow the law. The senator retorts that different judges have different views of the law. The nominee says something about bringing no agenda to the job ... It is time to end this failed experiment.

...Of course, ending nominee testimony would not cure all the ills of the modern confirmation process. It would not eliminate mischaracterizations of a nominee's record or the undue weight of interest groups. It would accomplish only one thing: It would remove that one televised moment when senators name the price of their votes.

It's not dead, it's just sleeping

...This blog, that is.

I've been trying to get a few posts in at Stubborn Facts, the group blog I participate in, but even there, my contributions have been quite light. It's been a combination of a general dearth of things catching my interest sufficiently to write about (I feel entirely too numb about the latest Israel-Palestine-Lebanon conflagration to write at any real length about it), but more specifically and significantly, we've had busy times at work, and I've been making the most of the pleasent weather to get some work done in the garden (I've also been doing a lot of reading, baking, and even a bit of brewing).

Close inspection of this web page will reveal that I've made good on my earlier promise to add categories to the blog, and in the next couple of weeks, I have in mind to categorize all 328 posts thusfar, but that's a fairly low priority, especialy since there are other maintainance tasks to take care of.

Never fear - posting will continue through the summer once we get into August, which (for me at least) makes outdoors inhospitable in Indiana.

Newt '08?

Over at StubbornFacts, we're talking about what seems the increasingly likely prospect of Newt Gingrich jumping into the '08 primary. I realize that this comes as no surprise to everyone who (like me) bought Winning the Future last spring, a book which couldn't have made his intentions more obvious if he'd done a book tour of early primary states to promote it (uh...wait. He did that, too). And if we can get past the questions of electability, I'm pretty positive about this prospect. I came to the GOP to a great extent by force of reason; I'm an ideas Republican. To me, this is the party of Ronald Reagan, of Antonin Scalia, of George F. Will, and, yes, of Newt Gingrich - I want a President who reads books and thinks great thoughts, and as I see it, that makes me a natural constituent for Gingrich. I'm not quite sold on this idea yet, but I feel positive about it.

Missing the point

John Dean complains about some chicanery by Senators Kyl and Graham to insert some "bogus" legislative history into the record of the Detainee Treatment Act.

On the one hand, it's true: if there's one internal reform that is desparately needed by Congress which is entirely in its power, it is to end the practise of "revising and extending remarks" (another one I've advocated before is removing the cameras, but that's a story for another time). In the House, this is permitted by unanimous consent, so my question to anyone running for Congress would always be: "are you willing to be the one vote needed to stop the abuse of the Congressional record?" Don't count on anyone doing it. (I'm not running for the House, but if I ever did, and was elected, I'd be the least popular member since Jeannette Rankin. Unanimous consent? Not so fast there, Mr. Speaker!).

But on the other hand, this was a distortion with an obvious fix. Here's a fairly simple prescription: if courts don't read the legislative history, which they shouldn't be doing anyway, then this wouldn't be a problem. As Dean admits: "ironically, one reason Scalia disregards legislative history appears to be that he is well aware that Senators have been known to distort it." Right you are, but how on Earth is that "irony", John? I suppose it's ironic in an "aw shucks, you got me" kinda way: John, to my knowledge, doesn't want courts to stop looking at legislative history. If they did it the way Our Hero et al advocate, this would be a non-story.

Damning with faint praise

A surprisingly placid review of the first term of the Kennedy Court from Slate's Roger Citron.

Citron makes an honorable stab at repudiating some of the sillier swipes at our Fearless Leader, pointing out that it's hard to tell whether Roberts is ruling reflexively in favor of conservative interests or in favor of deferring to the democratic branches, when the democratic branches are controlled by Republicans. The big test, presumably, will come when the Court must review actions by a Democrat-controlled government. Hence, Citron points out that in League v. Perry, "Roberts voted consistently against judicial correction of Texas' redistricting map." But whereas critics have rushed to see that as "a vote to preserve the districts created by the Republican legislature, presumably for the party's benefit," Citron -- while carefully eliding (as has every liberal commenter on the subject) that the post-2000 gerrymander was at least in part a reaction to an even more blatant gerrymander by the Democrats a decade previously -- points out that it was also "a stand against judicial oversight of redistricting (a political action) taken by the Texas legislature (a representative body)" that is fully in line with Roberts' restrained view of Courts.

However:

John Roberts presented himself as a "legal process" justice at his confirmation hearings. Legal process was a theory propounded by a number of elite law professors in the 1950s in response to the activism of the Supreme Court under Chief Justice Earl Warren. Adherents hold that cases should be decided by "neutral principles" and that the more representative government actors (Congress, the president, and his representatives) should decide big policy questions. They believe in—indeed they emphasize—the distinction between law (which they see as an autonomous discipline governed by reason and principle) and politics (which they view as merely the expression of one's political preferences).

Roberts joined the other four conservative justices in ruling against the government. But before his vote can be dismissed as a political preference for business and against regulation, note that his brief concurring opinion chastised the agency for failing to properly address the problem itself—thereby defaulting on the general claim by a government agency that it is entitled to deference.

Better late than never: Fourth of July comments

[Editorial note: I had hoped to have a chance to get this written yesterday, but time did not permit. In any event: better late than never.]

Immigration is a hot topic at the moment, and so it behooves this (legal) immigrant to add but a few words about the Fourth of July.

In some ways, I think that for a time, it puzzles those who are not brought up with the celebration inculcated from a young age why the Fourth of July should have been chosen as the great national celebration. In one sense, the Declaration of Independence did not really achieve anything; it declared independence, but it did not establish it in fact. Not being self-executing, its the proximate effect was simply to convert a confrontation with Britain into an outright war with the superpower of the day. In some ways, it might make more sense for us to celebrate October 19th, 1781, when victory at Yorktown changed American independence from a slogan into an operative reality. Of perhaps November 25th, 1783, when the last British soldiers finally left the newly independent states, in glum defeat. Perhaps even September 17th, 1787, or March 4, 1789, would be appropriate dates to celebrate: respectively, the dates the Constitution was completed and came into operation. We have a plethora of dates we could choose to celebrate as the national day, including the above, any of which have some strong claim to preeminence, yet the Fourth of July - the anniversary of the Declaration of Independence - prevails.

I think that is rightly so, because in another sense, the Declaration of Independence is monumentally important. True, it did not itself make the independence it proclaimed a fact, nor itself form a system of government that has protected its ideals for two centuries in a manner unparalleled in the world. But that document succinctly enunciated the principles which have framed and animated every successive American endeavour, from the battlefield of Yorktown, to a sweltering summer in Philadelphia, and eventually - four score and nine years later - to a man in a gray uniform surrendering in a small Virginian courthouse near the town of Appomattox, thereby definitively answering Lincoln's question as to whether a nation conceived in and dedicated to the ideals of the Declaration of Independence could long endure. It is, in a very real sense, the first, last and only Mission Statement of enduring value ever to be written.

It also matters particularly to me, as an immigrant, because it declares that this new nation is also a new kind of nation: it is a nation that is premised in shared fealty to the values of the Declaration of Independence, rather than ancient blood lineage; it declares that one may become an American, in a way that was unprecedented then, and is still unmatched today. A part of the import of the Declaration of Independence for me, personally, is precisely that I can honestly use that term that I have used throughout my comments here: "we" Americans.

I believe it matters to know what we are fighting for, particularly now, because we are again engaged in another struggle with an enemy who does not share the basic beliefs of the Declaration. It is striking that over two centuries later, we can still point to that stirring prose and say "this is what we are fighting for." Superman might have put it yet more succinctly ("peace, justice, and the American way"), but Jefferson spelled out what the American way is; it is the way of freedom, and that call still reverberates today.