James Panero at Armavirumque notes the news about a German judge who refused to grant an accelerated divorce to a woman of Moroccan descent. The Moroccan woman claimed spousal abuse as justification for the acceleration of proceedings but the judge, in refusing to grant the acceleration, quoted the Koran and cited passages that lend support to wife-beating to support her argument that there were no grounds for it. The judge speculated that wife-beating was part of Moroccan culture and did not constitute anything out of the ordinary that would justify an accelerated divorce!

In response to this news, Panero quite cleverly points to Sir Charles Napier who famously responded to the custom of suttee in colonial India this way:

Peter’s post raises a question that’s long fascinated me. Are Downs people "loving and charming and a joy to have around" as a function of their defect? If they could be "fixed" would they be less loving or lovable?

Several people (most notably Ryan Rakness) have taken me to task for ignoring the controversial statement of Southern Baptist leader Albert Mohler to the effect that, if it turns out that being gay is genetic, we’d be doing God’s work through biomedical interventions in the womb to excise that gene and reduce, at least, the amount of homosexuality in the world. Now Mohler is completely against abortion and would only endorse a procedure that involved "fixing," not killing.

At the same time we read that the experts now recommend that all women get prenatal screening for Downs Syndrome. And the intention there, of course, is to encourage women to abort. Already, of course, such screening has caused a dramatic reduction in the number of Downs babies being born.

Any campaign against gays and people with Downs in the world would, of course, be against genuine human diversity. But the truth is that if there were a way to "fix," as opposing to killing, Downs babies in the womb we’d be for it. Downs people are loving and charming and a joy to have around, but they’re genuinely the result of a genetic defect. We shouldn’t be killing them, but surely we’d be for curing them.

Nobody much is talking about aborting gay babies, because the people who regard homosexuality as a sin have the same opinion about abortion.

And most of the people all for aborting Downs babies are politically correct enough that they couldn’t imagine doing the same to correct for sexual orientation. (Actually libertarian Ronald Bailey would give parents that latter freedom, although he hopes they would be enlightened enough not to use it.)

To say the least, it’s unclear that being gay is a genetic DEFECT on the order of being Downs, and it’s very unclear that the cause of gayness will turn out to be as unambiguously genetic and so as unambiguously fixable in principle as Downs. But the new studies on gay sheep that are the source of this genetic speculation do suggest to some that an effort to exterminate gay orientation is a war against nature itself.

Can be read here. He offers a satisfying and thoughtful analysis of the film’s relative authenticity. According to Hanson, it is accurate and poetic--if that makes sense. I have not seen the movie and my memory of the events covered in the film is dim--but his explanation made some sense to me. Where it matters, he argues, the film gets it right. And where it doesn’t get things right--it gets them wrong in the right (i.e., the Greek) way. In other words, he seems to suggest that it is good storytelling. It tells us a story that we should know in the best way possible for us to understand it.

Charles Kesler writes in the new issue of The Claremont Review of Books about an intelligent (and therefore unlikely) way that GOP presidential contenders could make the ’08 race interesting: focus the debate on the Constitution. Democrats have been dictating the terms of the debate in recent years by proposing detailed policy initiatives described (by themselves and by the media) as noble ideas addressing the common good when they actually just answer a myriad of specialized interests. The GOP tendency has been to offer counter-proposals. Why do this tango? If it takes two, let’s fill our dance card with a new step: Constitutionalism. Doing this, Kesler argues, would have all kinds of immediate political benefits. This piece, like everything in the CRB, is worthy of a close read.

You might have heard about a Congressional subpoena threat. One of the commenters on my earlier post apparently has read at least this, if not necessarily the Congressional Research Service study upon which it was based. Yes, Clinton White House aides testified on 47 different occasions in front of Congressional committees; the vast majority of the occasions had to do with the Whitewater investigation. The CRS report says nothing about how many of the appearances were actually in response to subpoenas, though I have no doubt that the Republicans then controlling Congress threatened subpoenas. (If anyone has numbers here, I’d love to see them.)

But this passage from the CRS report is worth pondering:

The range of executive branch officials who may appropriately assert executive privilege before congressional committees, and the circumstances under which they may do so, remains unresolved by the courts, and is a matter that may be determined by case-by-case accommodation between the political branches. Some guidance in this regard was offered by Chief Justice William Rehnquist, when he was Assistant Attorney General in the Nixon Administration. Rehnquist distinguished between “those few executive branch witnesses whose sole responsibility is that of advising the President,” who “should not be required to appear [before Congress] at all, since all of their official responsibilities would be subject to a claim of privilege,” and “the executive branch witness ... whose responsibilities include the administration of departments or agencies established by Congress, and from whom Congress may quite properly require extensive testimony,” subject to “appropriate” claims of privilege.

Following a review of Rehnquist’s statement, precedents and practice concerning congressional access to executive branch information (particularly, the testimony of presidential advisers), and constitutional issues, it is possible to suggest some key legal factors that together may determine whether a congressional request for the testimony of one who advises the President will be honored. (1) In the view of the executive, the few individuals whose sole duty is to advise the President should never be required to testify because all of their duties are protected by executive privilege. (2) The executive has conceded that an official who has operational functions in a department or agency established by law may be required to testify, although at times such an official may invoke executive privilege. (3) Congress may increase its leverage if the position of the potential witness is subject to Senate confirmation.

If this is correct, everyone in the DoJ is more or less fair game, but the issue remains with respect to folks in the White House. The presumption seems to weigh in favor of claims of privilege here, but the matter is much more likely to be resolved in the court of public opinion than in any other court:

When faced with a refusal by the executive branch to comply with a demand for information, Congress has several alternatives to inherent and statutory contempt, although these alternatives are not without their own limitations. One approach is to seek declaratory or other relief in the courts. Previous attempts to seek judicial resolution of inter-branch conflicts over information access issues have encountered procedural obstacles and have demonstrated the reluctance of the courts to resolve sensitive separation of powers issues. Other approaches may include, inter alia, appropriations riders, impeachment, and a delay in the confirmation of presidential appointees.

If you care to read more, here’s an article ("Congressional Access to Information: Using Legislative Will and Leverage") by Louis Fisher, one of the deans of separation of powers studies.

Update: As the commenter John below notes, roughly half the Clinton Administration appearances were before a Democratic Congress; the other half, by my count, took place after the Republicans gained control of Congress. Here’s Byron York in an article summarizing the CRS report:

Republicans argue that the U.S. attorney issue is different from Whitewater, in which by 1994 the Clinton administration had sought the appointment of an independent counsel to conduct a criminal investigation. In the U.S. attorney controversy, says Michael Carvin, who served in several top jobs in the Reagan Justice Department, “All they are complaining about is what everybody concedes is a prerogative of the president to make decisions about at-will employees. Since there is no allegation that the president has done anything in the sense of exercising a power he doesn’t have, they are going on a fishing exhibition.”

“The only conceivable reason I could think for making them testify under oath is to set a perjury trap,” adds Noel Francisco, who in recent years served in the Bush White House counsel’s office as well as the Justice Department. “They are not challenging the legality of anything the president has done; they are just snooping around. I can’t imagine why they want to get people under oath other than to play this game of gotcha.”

The President laid down his markers today, offering limited access to a few aides. The Democrats aren’t happy:

Democrats were upset that, under the Bush plan, the interviews would not be conducted under oath or with a transcript. Without being under oath, aides would not face the same level of criminal charges if they were found to have intentionally lied to Congress, the Democrats said.

I think that this is a battle the President can and ought to win, especially since U.S. v. Nixon limits claims of executive privilege only during criminal proceedings. The most that’s being alleged here is a "politicization" of some prosecutors, which no one is calling a crime. Of course, the Democrats would dearly love to turn the testimony into an occasion for criminalizable misstatements.

If, as GWB says, you want information, we’re going to be forthcoming, but we’re not going to walk into a trap or contribute to a show trial. Good for him.