I just got off the phone with Columbia Law School professor Michael Ratner, who is also the President of the Center for Constitutional Rights, a human rights nonprofit. Ratner read our story this morning about Philip Zelikow's allegations that Dick Cheney's office may have "collected and destroyed" an anti-torture memo Zelikow wrote in 2005. Any such coverup could present a significant problem for the defense in any potential torture trial targeting Bush administration officials, Ratner says:

Sonia Sotomayor

For some reason, Sonia Sotomayor has become the early frontrunner to be Obama's nominee to replace Justice David Souter on the Supreme Court.  I'm not quite sure how she became the consensus favorite so quickly, but in any case the all-too-familiar result has been an immediate outpouring of anguish that her choice would be little more than an act of craven obeisance to the PC crowd, who make it all but impossible for white guys to make it to the Supreme Court these days.  Considering that even Democrats have nominated four white guys out of six appointments in the past half century, this is a little rich, but that hasn't stopped the kvetching.

Over at TNR the other day, Jeffery Rosen piled on, pointing out that New York's senators, "in a burst of demographic enthusiasm," favored her appointment, and then retailing a long list of complaints from anonymous law clerks about how she wasn't really very bright and had a bad temper.  Just your typical affirmative action hire, in other words.

Now, unlike most of Rosen's critics, I didn't have a big problem with the fact that most of his sources were anonymous.  This is actually one of those cases where it's probably the only way to write the story, since former law clerks aren't likely to risk their careers by dishing publicly about their former colleagues, especially ones who might be sitting on the Supreme Court a couple of months from now.

No, the problem with Rosen's piece is that it was so relentlessly unfair: a long string of complaints despite the fact that Sotomayor's own clerks, who presumably know her best, had nothing but praise for her.  And they were speaking anonymously too.  Mark Kleiman, after noting that Sotomayor won the Pyne Prize as the top undergraduate in her senior year at Princeton and then reading a persuasive bit of praise for Sotomayor by one of her former clerks, Robin Kar, tries to push back:

I find Kar's piece utterly convincing. Not every judge attracts this sort of passion from her clerks. And Kar does more than gush: he makes a strongly-argued case that Sotomayor has exactly the sort of intelligence you'd like to see on the Supreme Bench. Better yet, in response to a question, he identifies two pieces of Sotomayor's legal writing as exemplifying her talents of analysis and legal writing her dissents (thus reflecting her views alone, not aided or burdened by those of her colleagues) in Croll v. Croll and Hankins v. Lyght.

I read the Croll case first....I'd give it very high marks; having read first the controlling opinion and then the dissent, I found the dissent compelling.

....Hankyns v. Light involves a bit of law I know something about: the Religious Freedom Restoration Act....My first-blush analysis was to liken a forced retirement to a job-site injury, something that involved secular questions only. But Sotomayor's argument made it clear to me that clergy hiring (as distinguished from the hiring of a math teacher in a religious school involved in one of the precedent cases) was inextricably a religious matter.

....So, insofar as a non-expert can judge, Kar's two examples are both on point: Sotomayor writes much more clearly and persuasively than the average appellate judge.

As plenty of people have already pointed out, for a job like Supreme Court justice there's no such thing as a "best qualified person."  There are, rather, maybe a hundred equally highly qualified people, and it's silly to pretend that white guys have a hard time getting considered.  Just the opposite, in fact, since every time a non-white guy gets nominated, they have to put up with a barrage of innuendo that they're not really very bright, not the best pick, just a sop to identity politics (unlike the Catholic white guys), and would basically be a taint to the good name of the court.  It's disgraceful.

BAC Watch

I give up.  Apparently Bank of America's need for $34 billion in new capital is somehow being spun as good news, and as of 11 am BAC is actually up a point or so.  WTF?

Sad news for Afghanistan's lone pig:

Afghanistan's only known pig has been locked in a room, away from visitors to Kabul zoo where it normally grazes beside deer and goats, because people are worried it could infect them with the virus popularly known as swine flu.

The pig is a curiosity in Muslim Afghanistan, where pork and pig products are illegal because they are considered irreligious, and has been in quarantine since Sunday after visitors expressed alarm it could spread the new flu strain.

Considering this guy is the only pig in all of Afghanistan, I'd say he has a pretty good chance of steering clear of the bug that's infected more than 1,000 people worldwide.

On April 21, Philip Zelikow, who was counselor to Secretary of State Condoleezza Rice during the Bush administration, revealed on Foreign Policy's "Shadow Government" blog that he wrote a memo in 2005 disputing the conclusions of Bush Justice Department lawyers that torture was legal. The existence of such a memo was a surprise. But Zelikow also disclosed that the "White House attempted to collect and destroy all copies of my memo."

Now Zelikow has told Mother Jones who he thinks was behind the effort to suppress his dissenting opinion. You'll never guess who it is....

(Read the full article for that news and an exclusive preview of Zelikow's congressional testimony next week.)

King Corn

Via the LA Times, this is the best news I've heard all day:

The Obama administration on Tuesday proposed renewable fuel standards that could reduce the $3 billion a year in federal tax breaks given to producers of corn-based ethanol. The move sets the stage for a major battle between Midwest grain producers and environmentalists who say the gasoline additive actually worsens global warming.

....While biofuels as a whole — including grasses and even algae — are considered promising alternatives to petroleum, some researchers have begun challenging the use of corn for this purpose.

In particular, they point to the "indirect land-use" effects of pulling corn out of the world food supply, which could force farmers in developing nations to clear rain forests — and release massive amounts of carbon dioxide in the process — in order to plant corn.

Please dump the corn ethanol subsidies.  Please, please, please.  Dollar for dollar, it might well be the stupidest use of taxpayer cash in the entire federal budget.

Stress Test Update

The New York Times reports that the Treasury's stress test has determined that Bank of America needs $33.9 billion in new capital.  That's nearly half the current value of the entire company, which has a market cap of about $70 billion.

If BofA can't raise this money itself, it means either (a) more TARP money or (b) conversion of the Treasury's current $45 billion in preferred shares into common shares.  I continue to think that (b) is little more than a shell game, but better minds than mine have suggested that it would have some genuine value.  If that's what happens, conversion at Tuesday's closing price would give the government a one-third stake in BofA.  But if their stock plummets and conversion happens at a lower price, Treasury could end up with a majority stake.

On the other hand, BofA's chief administrative officer bravely says they have plenty of options for raising the money themselves before they have to strike a deal with the feds.  For example, BofA could decide to quickly sell a third of its stake in China Construction Bank, which would bring in about $8 billion.  The sale of First Republic and Columbia Management could generate about $4 billion.

Maybe.  It's hard to say at this point.  But $33.9 billion is a lot higher than anyone's been talking about so far.  Any way you slice it, it's bad news for Ken Lewis.

Watching the Banks

I approve of this:

Banks that want to return Troubled Asset Relief Program funds will have to demonstrate their ability to wean themselves off another major federal program, according to senior government officials, making it less attractive for some banks to return the money.

The other program, a guarantee of debt issuance offered by the Federal Deposit Insurance Corp., allows firms to borrow money relatively inexpensively. Banks have $332.5 billion of debt outstanding under this program, which began last fall.

If a bank is healthy and solvent and able to lend money freely, then it should be allowed to turn down extraordinary government aid and operate without extraordinary government oversight.  But there's more to the federal bailout program than just TARP, and if a bank is really healthy it doesn't need to take advantage of any of the other extraordinary programs either.  Until and unless that happens, however, Treasury should insist that they keep their TARP money and stay under TARP rules.  No stealth bailouts, please.

Somewhere between 129 and 221 new species of frogs have been identified in Madagascar—nearly double the known amphibian fauna on the island. The new study suggests that biodiversity in this biodiversity hotspot has been significantly underestimated, even in well-known and well-studied national parks.

"People think we know which plant and animal species live on this planet," says Miguel Vences of the Technical University of Braunschweig, one of the authors. "But the century of discoveries has only just begun—the majority of life forms on Earth is still awaiting scientific recognition."

In the 15 years prior to these findings, researchers had discovered and described over 100 new frog species from Madagascar and believed their species inventory to be nearly complete.

But the new surveys show far more species than suspected. The results come from DNA sequencing of 2,850 specimens of amphibians at 170 sites. The data don't show suggest more individual amphibians living in Madagascar—only more species diversity. Which means the new species are likely fragile and less populous.

The new research also implies that total biodiversity of all species on Madagascar could be higher than previously thought. Therefore the continuing destruction of rainforest in Madagascar may be affecting more species than we know.

Although many reserves and national parks have been created in the past ten years, real protection on the ground is thin. Madagascar has already lost more than 80 percent of its historic rainforest.

The study, published in the Proceedings of the National Academy of Science, found that nearly one-quarter of the new species were discovered in unprotected areas.
 

Ah, technology animating the voices, and the sins, of the past.

Huffpo links to a piece on how Google has stirred up Japan's past bigotry (read: forced it to acknowledge it) simply by taking an interest in its history and uploading vintage maps from its past:

The maps date back to the country's feudal era, when shoguns ruled and a strict caste system was in place. At the bottom of the hierarchy were a class called the "burakumin," ethnically identical to other Japanese but forced to live in isolation because they did jobs associated with death, such as working with leather, butchering animals and digging graves.
Castes have long since been abolished, and the old buraku villages have largely faded away or been swallowed by Japan's sprawling metropolises. Today, rights groups say the descendants of burakumin make up about 3 million of the country's 127 million people.
But they still face prejudice, based almost entirely on where they live or their ancestors lived. Moving is little help, because employers or parents of potential spouses can hire agencies to check for buraku ancestry through Japan's elaborate family records, which can span back over a hundred years.
An employee at a large, well-known Japanese company, who works in personnel and has direct knowledge of its hiring practices, said the company actively screens out burakumin job seekers.