Which Is It?

Via Jessica of Feministing, I see that confirmthem.org, a conservative site watching the John Roberts confirmation hearings, has a couple of contrasting posts worth reading. First, a poster named Andrew was not at all pleased with many of Roberts' answers:

Repeatedly, Judge Roberts said things like this: "if you think that the decision was correctly decided or wrongly decided, that doesn't answer the question of whether or not it should be revisited." This is the exact antithesis of judicial modesty and humility, and is instead a blank check that allows judges to write activist decisions without fear of later being overturned by their modest and restrained successors. It is a recipe for perpetuating judicial mistakes, and undermining constitutional government. Yes, judges should be bound down by precedents, but only precedents that they are convinced may have been decided correctly.

Read the whole post, it's from a staunchly conservative point of view, but thoughtful and well-considered. Looked at in a certain light, Roberts did seem to go slightly out of his way to please some of the Democratic senators—Sen. Herbert Kohl certainly appreciated the fact that Roberts apparently agrees with Griswold, which found that the Constitution contained a right to privacy and right to contraception—and didn't quite go out of his way reassure the conservative senators that he was on their side. On the other hand, Roberts was mostly taciturn and evasive, so all we can really do is read the tea leaves. Another confirmthem.org post read them this way:

A top-flight, leading conservative pro-life lawyer with a vibrant Supreme Court practice whose name most readers of this forum would know just walked into the room where I'm sitting. He was thrilled about Roberts' answers during the dialogue with Specter and indicated his strong approval and endorsement. He explained that Roberts's answer was carefully framed to provide a basis for revisiting and overturning Roe in the future. Specifically, he indicated that Roberts said that precedent could be overturned on the basis of changing circumstances.

The latter still seems much more likely to me. Besides, as has been discussed before, Roberts could help effectively neuter the right to choose in many states by voting against Planned Parenthood in a case coming before the court this fall, so in many ways, the question of "Keep Roe, overturn Roe?" is beside the point.

In non-abortion news, meanwhile, Marty Lederman has an important discussion of yet another issue discussed during the hearings: On whether Congress can, say, prohibit the president from using torture.

After Katrina hit the Gulf Coast, some of us were struck by the obvious absence of Dick Cheney from the media scene. It turns out he was very busy handling another emergency: His office called Southern Pines Electric Power Association and left two voice mail messages, ordering power to be immediately restored to Colonial Pipeline Company, which supplies power to the Northeast. The re-starting of two power substations in Collins, Mississippi delayed by at least 24 hours efforts to restore power to two rural Mississippi hospitals.

Jim Compton, general manager of the South Mississippi Electric Power Association, said that he "reluctantly agreed to pull half our transmission line crews off other projects...."

"We were led to believe a national emergency was created when the pipelines were shut down," Compton said. Power was not restored to the hospitals until six days after the storm hit. Crews working to restore power to rural water systems were also transferred to the Colonial Pipeline project. The workers faced significant safety issues because they had to work in the dark, and there were fires in the trees and broken power poles.

According to the Hattiesburg American, Cheney's office referred calls about the pipeline to the Office of Homeland Security, where calls were not accepted, but email requests were. The senior manager of corporate and public affairs of Colonial did not return calls.

More hurricane "blame game": the Congressional Research Service, a non-partisan research organization, looked into the question of whether the governor of Louisiana did everything she could to take the "necessary and timely steps needed to secure disaster relief from the federal government." And the report says… she did. So that undercuts recent White House attempts to use the "chick governor excuse" for the slow response to Katrina, although it certainly doesn't get the Mayor of New Orleans off the hook -- and I suspect he'll still come out of this looking quite bad. (See, for example, this.)

Meanwhile, there's not much to say about the president purportedly taking responsibility for the federal government's response to Katrina this morning. More precisely, he said, "And to the extent that the federal government didn't fully do its job right, I take responsibility." Okay, but what does this even mean? To what extent does he think the federal government didn't fully do its job right? Does he think he should be responsible for appointing largely unqualified GOP operatives to head positions at FEMA? Is he planning to take any action to fix things? Appoint an independent commission to look into the matter? This may well be the first time in memory that Bush has semi-apologized for anything, but it doesn't really seem all that significant, when it comes down to it.

Legal Affairs is running an interesting debate between Mark Tushnet and Cass Sunstein on whether Senate Democrats should vote to confirm John Roberts. Both make good arguments, though Sunstein brings up the rather provocative point that if Democrats voted en masse against Roberts—who does not, from outward appearances, look overly radical—then it would just set a bad precedent that "contribute[d] to a political atmosphere in which justices identify with the ideological extremes of the country." Perhaps, although all of these admonitions to preserve comity and bipartisanship in the Senate seem a bit quaint these days, don't they?

Meanwhile, Ezra Klein offers the semi-optimistic view on Roberts: namely, he's not offering up the code words many conservatives would presumably want, and a bunch of liberals (male liberals) seem to like him. Well, maybe. At any rate, the prediction that he'll do a lot of very conservative things on the Court seems like a safe one, the question is whether he'll do it in leaps and bounds or take his time. Either way, he's a conservative. What matters from a Democratic point of view is not how they'll stop him—they can't and won't, and killing his nomination wouldn't lead to anyone "better" getting put up—but figuring out how they can start wining elections again in order to prevent more justices like Roberts from sitting on the courts.

I managed to listen to a half-hour of the Roberts' hearings this morning before shutting it off. What's the point? The man will quite obviously vote to overturn both Roe and Casey—anyone believing otherwise, or failing to catch the significance of his comparing Roe to the Court's pro-segregation decision, Plessy v. Ferguson, is engaging in wishful thinking here. As Bruce Ackerman pointed out way back in February, Antonin Scalia also told the court: "I assure you I have no agenda. My only agenda is to be a good judge." Blah blah.

So I'm not quite sure what the whole point of dancing around this issue is, with Arlen Specter trying to find ever more clever ways to get Roberts to signal his views on Roe and Roberts finding ever more clever ways to avoid it. Are we all really supposed to pretend to be fooled here? Meanwhile, I don't quite see why Roberts even bothers with this dance: why not just say, "Yes, I pretty much think Roe is settled law?" and then overturn it (or narrow it considerably) when he gets a seat on the Supreme Court? It's not like anyone will impeach him for misleading people at the confirmation hearings. At any rate, William Stuntz had the right idea last week when he argued that hearings for Supreme Court nomination should just be abolished. They won't, of course—Senators need someplace to grandstand—but going through a process defined by how telegenic the nominee looks and how well he or she can avoid giving any useful information whatsoever seems pretty pointless. The only information gleaned from these hearings is that Roberts is articulate, and seems to be an even-tempered guy, two qualities which are totally irrelevant to working as a Supreme Court Justice.

The key insurance question looming in New Orleans may be whether flooding caused by the breach in the 17th Street Canal should be covered by flood insurance or homeowners insurance. Many people in New Orleans do not have flood insurance because they do not live in flood zones. However, when the levee broke, those people saw the water rise in their houses.

Louisiana legislators want homeowners insurance policies, which are tied to the valies of houses, to cover the damage caused by flooding from the breached levee. If homeowners insurance policies will not cover the damage, state lawmakers want the federal government to create a special fund to cover the difference. In the past, FEMA has not closed the gap if house owners were uninsured.

According to Former State Representative Chuck McMains Jr., who now represents the Property Casualty Insurers Association of America, the insurance industry wants to set up a mediation process that would deal with cases on an individual basis.

Then there is the matter of mold and mildew, which McCMains says also falls under flood insurance coverage.

The matter is expected to wind up in court.

Blame Welfare?

Here we go. John McWhorter blames New Orleans' problems, and the inability of people to evacuate the city, on… welfare:

The poor black America that welfare expansion created in 1966 is still with us. Poor young blacks have never known anything else. People as old as 50 have only vague memories of life before it. For 30 years this was a world within a world, as is made clear from how often the Katrina refugees mention it is the first time they have ever left New Orleans.

Welfare recipients, he says, lack "survival skills." Okay… question. How many New Orleans residents are actually on welfare these days? Poking around on this state government site, we find that in the Orleans area, 9 percent of residents received some form of cash welfare in 2003. That amounts to some 42,000 people—far fewer than the total number of New Orleans residents stranded after the flood, I believe, which was estimated in the hundreds of thousands. (In fact, even that 42,000 number seems high; according to the Department of Health and Human Services, only 60,000 people received TANF funds in the entire state in 2002, and only ten percent of Louisiana's population resides in New Orleans.) Meanwhile, the U.S. census counts 27 percent of people in the city sitting below the poverty line. A distinct minority of the poor in New Orleans, then, was receiving welfare, and one would assume not all of those recipients were black. Fixing the blame for post-Katrina problems squarely on cash assistance (and white leftists!) seems like a bit of a stretch, unless you want to argue that the people who were once on welfare rolls and now aren't somehow have lingering social problems that made them incapable of evacuating. (Rather than, you know, the fact that most people lacked the physical means to leave the city.) Perhaps that's what McWhorter's arguing. But it might help if he could actually point to examples of this sort of thing rather than just speculating.

On what is no doubt an entirely unrelated note, read this post from Digby.

Locked Up Down Under

An American peace activist has been detained by the Australian government, with all signs pointing to his imminent deportation. Texan Scott Parkin has been in the country since June on a six-month visitor's visa. According to Houston IndyMedia, he spent some of his time in Australia hiking and camping.

But that's not likely to be the reason he caught the eye of Aussie authorities. Parkin, a community college professor, recently organized a protest at the Forbes Global CEO Conference, held in Sydney, which resulted in at least ten arrests. He's also been hosting workshops and speaking at activist conferences. The government has yet to give a clear reason for his detention—an Immigration Department spokesperson said that he'd been collared on "character grounds."

So far this hasn't broken in the U.S. press—Parkin's hometown paper is pretty busy these days. But it's big news in Australia, where Prime Minister John Howard's government is under fire for its new proposals to weaken civil liberties in the name of fighting terrorism.

Ruy Teixeira had an interesting post last week, noting that the Democrats may challenge as many as 100 congressional seats in the 2006 midterm elections. Makes sense—especially with the minority party now polling well above Republicans, 50-38 according to Newsweek—and armchair strategists have been calling for this sort of tactic for ages. More interestingly, though, Teixeira argues that a 100-seat strategy is almost always preferable, since new research shows that spending any more than $1 million on a single race leads to diminishing returns. In other words, spreading around campaign cash far and wide will very likely garner more votes than pouring in lots of dollars into just a few races. It would be nice if we could get past the point where 99 percent of the House sails to re-election every two years, but now it seems, happily, that perhaps that state of affairs has only persisted because campaign strategists have an irrational belief in the power of money to win elections.

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A Moral Moment
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