Political MoJo

New at Mother Jones

| Fri Jul. 22, 2005 2:01 PM EDT

Iraqi Casualties: Unnamed and Unnoticed
By Judith Coburn
An in-depth look at how we have treated Iraqi civilian deaths

The Spies Who Came in From the Hot Tub
By Tom Engelhardt
The CIA's war on terror meets La Dolce Vita – courtesy of the US taxpayer.

The Memo, the Press, and the War
An exchange between Michael Kinsley and Mark Danner

Advertise on MotherJones.com

Odds and Ends on Roberts

| Thu Jul. 21, 2005 5:52 PM EDT

There are plenty of other blogs raking John G. Roberts over the coals. (Or finding faces of the Messiah in the folds of his suit, if that's what you're after.) But I did want to point out an interesting comment made by Ramesh Ponnuru over at NRO, suggesting that it may be far easier in the future for conservatives to push through "stealth" judges without a long paper trail while still being assured of their conservative pedigree:

In-the-know legal conservatives are much more supportive of, and in several cases enthusiastic about, Roberts [than they were about David Souter]. It may be that the development of the Federalist Society--and the maturation of conservatism, as David Brooks suggests today--has made it possible for conservatives to pull off the stealth strategy today in a way that was not possible fifteen years ago. People familiar with him signal his acceptability to their acquaintances, and the message radiates outward.

So that will help them avoid future Souters. Although let me point out one potential flaw with Roberts for conservatives—and I don't think I'm being disingenuous here. Commentators have noted that Roberts is very likely to judge like William Rehnquist judges: by having conservative instincts but not being very good at articulating a legal theory to support those instincts. Anyway, I just stumbled on an old Legal Affairs issue in which Kermit Roosevelt, a former Rehnquist clerk—and apparently not the CIA guy who overthrew the Mossadeq government in Iran in 1953—described the problems that Rehnquist's under-theorizing created:

In 2003's Nevada v. Hibbs, Rehnquist unexpectedly wrote a majority opinion upholding the Family and Medical Leave Act, which entitles employees to 12 weeks of unpaid leave to care for family members. The court ruled that the act was a valid exercise of Congress's enforcement power under Section Five of the Fourteenth Amendment. The decision is hard to square with the court's earlier Section Five cases and, in classic Rehnquist fashion, the nature of the distinction is left largely unstated. One possible interpretation is that Congress has greater leeway to address types of discrimination—such as gender-based discrimination—that courts have held are usually unconstitutional.

That Rehnquist might not have intended that principle, or, if he did, that he intended a narrower version, became apparent in Tennessee v. Lane. In that case last term, the court said that Title II of the Americans with Disabilities Act, which ensures access to public facilities, was also a permissible exercise of Congress's power. Differential treatment of the disabled is usually constitutionally acceptable, in contrast to discrimination on the basis of gender or race. But the majority in Lane upheld Title II of the ADA as an effort by Congress to preserve the fundamental right of access to the courts. Rehnquist dissented, protesting vainly that Title II was "an illegitimate attempt to rewrite the constitutional provisions it purports to enforce."

From Rehnquist's perspective, Lane was a setback for both federalism and judicial supremacy. The diversion in Hibbs had proved costly. Of course, it may be that a more tightly written Hibbs opinion would have drawn protests from the other justices in the majority. It may even be, as some have speculated, that Rehnquist opposed the result in Hibbs and took the majority's side only to limit the damage by writing a narrow opinion. Either way, in Lane, the chief justice lost.

Indeed, as Roosevelt says: "Under-theorizing may make it easier for an opinion's author to bring together a majority in the immediate case, but it restrains an ambitious agenda. A seemingly solid coalition may fragment in future cases as its members realize they don't share the same animating principles." Simply having conservative instincts may allow a judge to sneak under the radar, but it could lead to some unexpected results down the road. Granted, this is, presumably, a pretty minor point, but worth thinking about.

Campaign Finance Vouchers

| Thu Jul. 21, 2005 4:34 PM EDT

One of the various innovative proposals for campaign finance reform that have been floating around over the years is the idea of a campaign voucher, proposed in the "Our Democracy, Our Airwaves" Act sponsored by John McCain, Russ Feingold, and Dick Durbin in the Senate. Each congressional and presidential candidate would be given a predetermined number of vouchers that could then be exchanged with television and radio stations for advertising time. Naturally, there have been a lot of theoretical arguments back and forth about the voucher proposal, but no one has ever shown what practical effects they would actually have, until now. The Campaign Finance Institute just released a study )pdf) that analyzed campaign finance data and tried to figure out what sort of effect these vouchers might have. The results?

  • Challengers who received less than 45 percent of the vote in 2000, 2002, and 2004 would have received, on average, between one and two additional percentage points of the vote with vouchers. Challengers who received more than 45 percent of the vote and open seat candidates would not, on average, receive a significant boost in vote share from vouchers.
  • Almost all candidates who are even slightly competitive would have qualified for vouchers. Most highly competitive candidates would have received the maximum amount.
  • Approximately one-third of candidates who spent too much of their own money to qualify for vouchers would have been better off with vouchers.
  • Hm, so it doesn't seem like this proposal would change the actual electoral results very much, though it would improve competitiveness, which is in theory good. (If anything, it forces incumbents to move to the center.) Although, the study's authors note that vouchers could produce a "snowball" effect in primaries, which could have an effect on fundraising, and that make races more competitive.

    On the other hand, perhaps it's wrong to worry too much about improving competitiveness in races and we should instead worry more about simply improving both communication and accountability. In that sense, the vouchers seem to work well. Plus, there are all sorts of other considerations that aren't tested. Perhaps vouchers would encourage different candidates to run—that is, the ability to raise a lot of money on one's own would become less important in a candidate. And vouchers could well decrease the influence of large donors.

    No Felon Left Behind

    | Thu Jul. 21, 2005 1:44 PM EDT

    Heh, the Seattle Post-Intelligencer's editorial on Rove-Plame is appropriately scathing:

    Schoolchildren, take note. There will still be high standards for you, your teachers and your schools. But at the White House, the rule is a little different: No pal left behind. Unless, of course, he is an out-and-out criminal. That's quite a standard.

    Yep: No felons in the White House. That's the new Bush standard. Actually, that's not quite true. The standard is: No current felons. Former felons like John Poindexter and Elliott Abrams are, of course, welcome to work in the administration.

    Not Ready? Great!

    | Thu Jul. 21, 2005 12:49 PM EDT

    Readers may think that this New York Times headline today signals a lack of progress: "Iraqis Not Ready to Fight Rebels on Their Own, U.S. Says." (Conservative readers may wince at the word "rebels," imagining that if we could only call them "evil-bastard-baby-murderers" all our problems would be solved.) That headline is based on a new Pentagon assessment, not yet released. Nevertheless, this is actually good news. The Pentagon is finally taking steps to scrutinize very closely the progress of troop-training in Iraq, something I've been chafing about for a while now. Says the Times, "The assessment, which has not been publicly released, is the most precise analysis of the Iraqis' readiness levels that the military has provided." Whether people are thinking about an exit strategy or a plan for "victory" in Iraq, actually knowing what's going on seems like the fairly obvious first step here.

    One thing to wonder about, however, is the ethnic and sectarian composition of the Iraqi security forces. Peter Galbraith in the New York Review of Books recently claimed that the only competent security forces hail from the Kurdish peshmerga, and the Kurds' loyalty is first and foremost to Kurdistan. (The claim, like most in Galbraith's essay, comes without evidence or citation, so take it for what it's worth.) And then there are the recurring reports that the Iraqi paramilitary units are nothing more than glorified Salvadoran death squads. And then there are questions surrounding civilian control of both the Iraqi Ministry of Interior and Ministry of Defense. It would help if the Pentagon was equally as forthcoming about all of these things, so that people could actually figure out what's going on in Iraq; otherwise, we're left with New York Times headlines of suicide bombings aplenty and that, quite obviously, looks like resounding failure.

    Meanwhile, Galbraith thinks that the big problem in Iraq isn't the insurgency, but the coming quarrel between Kurds, Shiites and Sunnis. Indeed, our friendly San Francisco Chronicle had not-so-bright news along that line this morning: "Kurdish leaders have presented a redrawn map with a larger Kurdistan to the Iraqi National Assembly for consideration in the new constitution, a Kurdish party official said Thursday." Not only that, but one Kurdish official calls the boundary a "red line."

    We're Just Reporters!

    | Wed Jul. 20, 2005 4:43 PM EDT

    What is wrong with these people? Atrios catches this marvelous bit of self-awareness on CNN:

    MILES O'BRIEN, CNN ANCHOR: Also, there's word the president could announce his Supreme Court nominee as early as today. Could that take some of the media heat off of the president's top adviser Karl Rove?

    Surprise, Miles! You are the media! It's much like when, during the 2000 election campaign, the Times would fabricate stories about how Gore was untruthful and then publish news analysis pieces with phrases like "it is Mr. Gore who faces the most scrutiny as he tries not to say or do anything that will cement an image that he puffs up stories and is not to be trusted"—as if somehow this "scrutiny" appeared on its own and the Times was just reporting what was already out there. Or when the Washington Post published a long news analysis piece about wondering why the Downing Street Memos weren't getting any major press coverage. It defies parody. If these folks want to analyze the media process, they can go work for Columbia Journalism Review; otherwise, report the goddamn stories.

    UPDATE: Dana Milbank also seems curiously confused as to what, exactly, it is that he does all day:

    [Roberts' nomination] is going to dominate the news up until the court begins in Oct 1; that's not to say the Karl Rove story won't make its cameo appearance somewhat-of course it will and it's likely to go on somewhat after this nomination ends, but this is clearly going to be the main game in town now.

    Right, and it's just a pity that one of the star political reporters for one of the most influential newspapers in the country can do nothing whatsoever about this sad state of affairs.

    Advertise on MotherJones.com

    Downsizing Prisons

    | Wed Jul. 20, 2005 4:26 PM EDT

    In the American Prospect, Robert Dirnan surveys the alarming growth of the prison population in the United States, and the various problems that's quite obviously causing. The piece ends with a rousing call to arms: "The time to act is now." Okay, but what? My preferred solution is to focus on the parole process; according to a 2002 Justice Department study on recidivism, 51.8 percent of released prisoners get right back in within three years. And about half of those are put back in prison for technical violations of parole—oftentimes they don't even need to commit a crime, they can just miss a few meetings with their case officer. Pretty clearly, attacking this problem would be one of the easiest ways to keep the exploding prison population under control. The question is whether state budget crunches are going to lead governors and state legislatures to seek out actual solutions; but both inertia and vested interests augur for continuing to expand prisons without bound.

    Women's Rights in Iraq

    | Wed Jul. 20, 2005 2:52 PM EDT

    Speaking of rolling back women's rights, a while back I stumbled across a draft version of the new Iraqi constitution that somewhat liberal on women's rights. But today the New York Times has gotten their hands on yet another draft version that seems to be much, much more restrictive. And equally disconcerting is this: "[T]wo Sunni Arabs involved in writing the constitution were fatally shot near a Baghdad restaurant, threatening to throw the drafting process into turmoil."

    Overturning Roe

    | Wed Jul. 20, 2005 2:36 PM EDT

    By the way, a few weeks ago I cited Slate's argument that the GOP would never dare overturn Roe vs. Wade—it would become, after all, an electoral catastrophe. In light of the fact that John G. Roberts is about to ascend the Supreme Court bench, and push the Republican Party one step closer to that goal, should Stevens or Ginsburg retire in the next three years, it's worth saying: that idea is probably very much mistaken.

    Overturning Roe would, in fact, be fantastic for the Republican party. First, it's true that the overwhelming majority of the United States supports Roe v. Wade. But if it was repealed, many of those women could still get abortions. (California, New York, Pennsylvania, and Illinois, for instance, would still keep abortion legal.) Women in many, many other states would be denied that choice, of course, but federalism could fragment the pro-choice electoral coalition. Meanwhile, the Christian right would stay mobilized and clamor for a national abortion ban in Congress. If it passed, I have no doubt that a Supreme Court that overturned Roe could find a way to uphold a national ban on abortion, even if it is logically inconsistent. Now the national ban probably wouldn't pass, because it would be difficult to ram through the Senate, but that recalcitrance would be enough to keep the conservative base foaming at the mouth for years to come. So yes, it is wishful thinking to believe that Republicans might be too afraid to touch Roe.

    And it's worth noting that the only way to stop this, really, is to do what the Republicans have been doing and win elections.

    Nevermind, Justice Roberts

    | Wed Jul. 20, 2005 2:21 PM EDT

    Ah, figures. I go home and Bush changes up the Supreme Court nomination. It's John Roberts, white male extraordinaire. Well, I don't think it's possible to improve on Ezra Klein's round-up of links on Roberts, so I'll just send everyone his way. Meanwhile, this is what Jeffrey Rosen in the New Republic wrote about him awhile back:

    Top of his class at Harvard Law School and a former law clerk for Rehnquist, Roberts is one of the most impressive appellate lawyers around today. Liberal groups object to the fact that, in 1990, as a deputy solicitor general, Roberts signed a brief in a case involving abortion-financing that called, in a footnote, for Roe v. Wade to be overturned. But it would be absurd to Bork him for this: Overturning Roe was the Bush administration's position at the time, and Roberts, as an advocate, also represented liberal positions, arguing in favor of affirmative action, against broad protections for property rights, and on behalf of prisoners' rights.

    In little more than a year on the bench, he has won the respect of his liberal and conservative colleagues but has not had enough cases to develop a clear record on questions involving the Constitution in Exile. On the positive side, Roberts joined Judge Merrick Garland's opinion allowing a former employee to sue the Washington Metropolitan Area Transit Authority for disability discrimination. He pointedly declined to join the unsettling dissent of Judge David Sentelle, a partisan of the Constitution in Exile, who argued that Congress had no power to condition the receipt of federal transportation funds on the Metro's willingness to waive its immunity from lawsuits.

    In another case, however, Roberts joined Sentelle in questioning whether the Endangered Species Act is constitutional under Congress's power to regulate interstate commerce. The regulation in question prevented developers from building on private lands in order to protect a rare species of toad, and Roberts noted with deadpan wit that "the hapless toad ... for reasons of its own, lives its entire life in California," and therefore could not affect interstate commerce. Nevertheless, Roberts appears willing to draw sensible lines: He said that he might be willing to sustain the constitutionality of the Endangered Species Act on other grounds. All in all, an extremely able lawyer whose committed conservatism seems to be leavened by a judicious temperament.

    Hm. Rosen classifies him as a "principled conservative," someone who would be likely to respect precedent rather than upturn established judicial doctrine in pursuit of some odd originalist project. But it seems that he's still much too untested to tell. The fact that he's represented liberal positions is interesting, and that he refrained from joining a crazy dissent undermining Congress' power under the Commerce Clause, which, when the bar is this low, is heartening. Let's not pretend Roberts is anything other than horrendous, and I can think of a hundred people I'd rather have instead of Roberts on the Supreme Court, but as a colleague pointed out the other day, Congress doesn't really care what I (or any other liberals, for that matter) think.