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The Dangers of Overturning Roe v. Wade
In the latest issue of The Atlantic (sorry, for subscribers only) Benjamin Wittes argues that the time has come for the Democratic Party to stop defending Roe v. Wade. Part of his argument is that the criticisms conservatives have made against it are not totally off the mark. Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion. Conservatives who fulminate that the Court made up the right to abortion, which appears explicitly nowhere in the Constitution, are being simplistic—-but theyre not entirely wrong. In the years since the decision an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky; abortion policy is a question that the Constitution—-even broadly construed—-cannot convincingly be read to resolve. Of course, this comes as no news to any conservative. But his more interesting argument concerns how a reversal of Roe v. Wade would place the Republicans in a deep dilemma. Roe gives pro-life politicians a free pass. A large majority of voters reject the hard-line anti-abortion stance: in Gallup polling since 1975, for example, about 80 percent of respondents have consistently favored either legal abortion in all circumstances (21 to 34 percent) or legal abortion under some circumstances (48 to 61 percent). Although a plurality of Americans appear to favor abortion rights substantially more limited than what Roe guarantees, significantly more voters describe themselves as "pro-choice" than "pro-life." Yet because the Court has removed the abortion question from the legislative realm, conservative politicians are free to cater to pro-lifers by proposing policies that, if ever actually implemented, would render those politicians quite unpopular. He makes a valid point; as long as Roe stands Republicans can fulminate against it, secure in the knowledge that they dont really have to do anything about abortion. Weve spent a good bit of time talking about the divide in the Democratic Party between moderates and ultra-liberals, but a reversal of Roe would on doubt expose a fault line within the GOP that is just as wide--the one separating die-hard pro-lifers from those of us who, while favoring certain restrictions on abortion, see considerable moral and practical problems with an outright ban.
 Posted by John Moser | Link to this Entry | Comments [19] | 1/10/2005 11:17 AM
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The Democratic Attack on Blackwell
Timothy Carney argues persuasively over at NRO today that the farcical election protest conducted in Congress last Thursday was not aimed at President Bush, but rather targeted Ohio Secretary of State Kenneth Blackwell. Carney notes that
A word count of the Congressional Record makes the case clearly: George Bushs name was mentioned 109 times during the debate, while Ken Blackwells was mentioned 149. When you take into account that many of the Bush mentions were made by Republicans, and that every mention of Blackwell was in a statement by a Democrat, it is clear who the real target of Thursdays proceedings was."
And, as Carney points out, for the Democrats, race matters:
Miguel Estrada knows how this works. Democrats, as their memos revealed, found Estrada "especially dangerous because. . . he is Latino." Its not that Dick Durbin and Pat Leahys staff think Hispanics are inherently more "dangerous," its that they dont want to be seen opposing one for the High Court, when all of America will be watching. He had to be stopped before then.
The attack dogs of personal destruction succeeded with their preemptive strike on Estrada, and now theyll try with Blackwell.
Back in September of 2003, I made the argument that Democrats opposed Estrada in part based upon the fact that he was Hispanic
here. I received numerous angry emails from those who reminded me that Democrats are incapable of such racist behavior--arguments which seemed a bit less credible when the smoking gun memos were released. (Of course, the left has never actually addressed the merits of the memos. They are far more concerned about the fact that they were released.) Now it seems that the left is up to their old tricks--trumping up charges to thwart the career of a politician because he has the audacity to be conservative and African-American.
 Posted by Robert Alt | Link to this Entry | Comments [5] | 1/10/2005 10:24 AM
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Independent Panel Finds That CBS Failed to Follow Journalistic Principles in Memogate
The independent panel’s report on the forged "60 Minutes" memos was just released, and it concludes that CBS News failed to follow basic journalistic principles in the preparation and reporting of the piece. The panel found that CBS compounded their error by a "rigid and blind" defense of the falsified report. In response, CBS asked three employees to resign, and terminated Mary Mapes, the producer of the "60 Minutes" segment. CBS’s story about this is here, and the full 200+ page Thornburgh-Boccardi report is available in PDF format here. As I am typing this, Bill Kristol of The Weekly Standard just cut to the heart of the matter on Fox News: "CBS wanted to hurt President Bush. It wasn’t that they were sloppy."
 Posted by Robert Alt | Link to this Entry | Comments [1] | 1/10/2005 10:23 AM
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More McConnell Speculation
Todays NY Sun considers the beltway buzz suggesting that 10th Circuit judge Michael McConnell is on the short list for the U.S. Supreme Court. Joseph Knippenberg has written about McConnell on this page here and here.
 Posted by Robert Alt | Link to this Entry | Comments [1] | 1/10/2005 9:43 AM
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True Believers
Who would defend Sheik Omar Abdel Rahman, the blind cleric convicted in 1995 of masterminding the first World Trade Center bombing? The typical legal answer is that in this country, we take the right to counsel seriously, and lawyers who are deeply opposed to the alleged criminal acts of the accused nonetheless offer their assistance to maintain the integrity of the system. Sure, some of the lawyers are out for their 15 minutes of fame, but those who represent terrorists aren’t really sympathizers, right? Not necessarily. David Horowitz has a disturbing article in today’s LA Times, in which he provides some background on Lynne Stewart, the blind sheik’s attorney, who is on trial for aiding and abetting her client. How extreme is she? Here’s a taste:
Stewart is on record as approving of "directed violence," which — as she explained to the New York Times — "would be violence directed at the institutions which perpetuate capitalism, racism and sexism." The World Trade Center, for instance. Stewart also has endorsed Muslim jihadists in particular: "They are basically forces of national liberation," she told the Marxist magazine Monthly Review.
This is enough to confirm all Schramms worst thoughts about lawyers.
 Posted by Robert Alt | Link to this Entry | Comments [1] | 1/10/2005 9:29 AM
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Lincoln as gay--yea or nay?
Philip Nobile offers us this absolutely devastating destruction of the late C. A. Tripp’s The Intimate World of Abraham Lincoln. Since Nobile was, for a time, Tripp’s collaborator, his insider’s account should be required reading. Here’s Rick Brookhiser’s highly critical review of the same book from Sunday’s NYT. Over at NRO’s "The Corner", Brookhiser adds this: The Weekly Standard has a piece by Philip Nobile, accusing C.A. Tripp (author of the book I reviewed) of plagiarizing him, and of bending evidence. The question of plagiarism I leave to the courts. Bending of evidence will be obvious to anyone who reads Tripp’s book. But the wierdness in Lincoln remains.
Two thoughts: First, I wonder which major media outlet will run the first favorable review of the book, or, indeed, if any will? Nobile’s claims of plagiarism and intellectual dishonesty--this early in the game--are formidable obstacles to the willingness of any serious reviewer to praise the book. Second, I think I’ll stick with my old standby Lincoln book--William Lee Miller’s Lincoln’s Virtues--in my "Moral and Political Leadership" class. Update:Winfield Myers of Democracy Project has much more here.
 Posted by Joseph Knippenberg | Link to this Entry | Comments [5] | 1/10/2005 1:27 AM
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Red State Democratic Senators Feeling the Heat Concerning Judicial Confirmations
The Lincoln (NE) Journal-Star ran an article today in which Senator Nelson responded to Dr. James Dobson’s suggestion that Nelson could be targeted for defeat in 2006 if he opposes President Bush’s judicial nominees. Nelson’s response was that he did not support obstructing judicial nominees, and that he joined only one filibuster: that of Henry Saad for the Sixth Circuit. He claims that he opposed Saad "because he was not allowed to read Saad’s background files and because both Michigan senators strongly opposed the nomination." Perhaps he should be asked to explain why he is following the lead of the Michigan senators, who are opposing Saad and three other nominees from Michigan not because of the qualifications of those judges, but because of a kind of nepotism. Indeed, Senator Levin has vowed to block all judges nominated from Michigan who do not have one key qualification: they must be his wife’s cousin.
Nonetheless, it is encouraging to see Nelson denouncing obstructionism--a move that I think other electorally vulnerable red state Democratic Senators are likely to mimic in the coming months.
 Posted by Robert Alt | Link to this Entry | Comments [8] | 1/9/2005 1:26 PM
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The Left Discovers Federalism . . . Sort of
Stanford law professor Richard Thompson Ford offers an article on Slate entitled "The New Blue Federalists," in which he argues that federalism isn’t just for conservatives any more. On some points he is undoubtedly correct: Federalism as a principle is not explicitly partisan or ideological--a point I made nearly two years ago here, in an article arguing that the federal partial-birth abortion statute exceeds congressional authority found in the Commerce Clause. Yet on other points, Professor Ford’s thinking is a partisan muddle. Take the following, for example: "Sensible federalism has its limits: It must not allow states to limit the enjoyment of important rights, and it must allow for federal regulation of activities with significant interstate effects." This is his way of having his cake and eating it, too. Under Ford’s theory, we need not limit national power by any constitutionally meaningful test based on, oh, I don’t know, interstate commerce, but rather we should apply an outcome-based analysis. If we do this, I can assure you that the sacred cows of liberalism will remain within the contours of "sensible" federalism, while regulations that the liberals don’t like--e.g, federal drug laws--will be found impermissible. (Editor’s note: I have not taken a look at the briefs in the case, but I have been told that the plaintiffs make a very strong case that the federal drug laws exceed congressional commerce clause authority in the California case pending before the Supreme Court.) You’ll also note Ford’s loose use of the term "important rights." This permits him to keep elements of culture wars within the federal ambit, by failing to recognize that rights which are not constitutional are in fact reserved to the people and to the states. While I am glad to see Professor Ford enter the fray on this question, I would be far happier to see a liberal with the intellectual seriousness to concede that federalism is a constitutional principle which cannot be ignored--one which assures the limited character of our federal government, and thereby makes impermissible laws and programs which are favored by both ends of the political spectrum.
 Posted by Robert Alt | Link to this Entry | Comments [3] | 1/9/2005 11:19 AM
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David Brooks and social security reform
This sounds like good advice: The presidents role - at the Inauguration and the State of the Union address and after - will be to educate the country about the problem and lay out some parameters. He doesnt need to say what the legislation should look like. Thats too wonky. He should talk about what the country should look like. Social Security is more than accounting; its values.
Here are some of the values he might endorse:
First, Social Security reform should liberate our kids, not shackle them. It should eliminate the fiscal overhang so they have the money to tackle the problems that will arise in their own day.
Second, the reform should be transparent, so that people can see what kind of return they are getting on the money they put into the system. People should have information about their own lives.
Third, it should enhance peoples control over their own retirement. In a self-governing democracy, citizens should do for themselves what they can do for themselves.
Fourth, people should be encouraged to work longer. In an age in which many live into their 90s, we should be making better use of people in their 70s and 80s.
Fifth, we need a savings revolution. The plan should encourage the nation to save more, to create more capital for Americas future greatness.
This is a time to trust the legislative process. Social Security has a better chance of passage if Congress leads. Its also time to think big. Social Security reform plus tax reform go a long way toward getting you to an ownership society. Read the whole thing.

 Posted by Joseph Knippenberg | Link to this Entry | Comments [1] | 1/8/2005 9:10 AM
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All That is Old is Newdow Again
Everyone’s favorite atheist, Michael Newdow, who sued challenging "under God" in the pledge of allegiance, is at it again. This time, AP reports that he is challenging the offering of any prayer at the Presidential inauguration. After succeeding in the 9th Circuit on his "under God" challenge, the Supreme Court slapped him down for lack of standing. But don’t count on his case getting that far this time. This suit has been appropriately (at least as a jurisdictional matter) brought within the confines of the DC Circuit--a circuit which is less prone to the LSD flashbacks that too often masquerade as 9th Circuit opinions. Anyone needing more convincing of the lack of merit attendant to Newdow’s latest challenge need only read the 1983 case of Marsh v. Chambers, in which the Supreme Court upheld Nebraska’s policy of paying a Judeo-Christian chaplain to offer a prayer to open the legislative session.
 Posted by Robert Alt | Link to this Entry | Comments [7] | 1/7/2005 2:10 PM
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Update: Rehnquist Will Not Sit Next Week
AP is reporting that Chief Justice William Rehnquist will not participate in oral arguments when the Supreme Court returns next week "because of continuing secretions caused by his tracheotomy and radiation therapy." He nonetheless is still participating in the cases, and still plans to administer the oath of office to the President on January 20th--health permitting.
 Posted by Robert Alt | Link to this Entry | Comments [2] | 1/7/2005 1:47 PM
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Campus diversity, yet again
Winfield Myers offers a nice summary of the latest on campus diversity, or lack thereof, here. There are lots of good links. Ive said my piece before here, here, and here.
 Posted by Joseph Knippenberg | Link to this Entry | Comments [1] | 1/7/2005 1:30 PM
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President Bush’s speechwriters
Here’s a story in Newsweek reporting on a change in President Bush’s speechwriting staff. The big news, not yet formally announced: Michael Gerson is moving into a policy position and so will not be directly involved in the day-to-day speechwriting tasks. Newsweek presents this as a major loss of the President, comparing Gerson to Peggy Noonan and Theodore Sorensen in the pantheon of presidential speechwriters and implying that the religious undertones in Bush’s speeches may be absent in the future. Ramesh Ponnuru in yesterday’s NRO’s "The Corner" (scroll down a bit) doesn’t think so: [T]hey’ll have McGurn’s religious undertones instead--just read his recent articles for NRO or First Things or the New York Post and you’ll see that he is not so far off from Gerson’s (or Bush’s) understanding of the proper role of religious language in public life. If you want some insight into the mind of McGurn, you could look here, here, here, here, and here. Hat tip: Democracy Project.
 Posted by Joseph Knippenberg | Link to this Entry | Comments [2] | 1/7/2005 11:48 AM
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News Flash for Specter: Cabinet Officers Are Not Independent
There is much that could be and that has already been said by others about Alberto Gonzales’s confirmation hearings for the postion of U.S. Attorney General. The hearings gave us a first glimpse of Senator Arlen Specter as Chairman of the Judiciary Committee, and, while he has been largely praised for his handling of the hearing, he committed an embarassing constitutional error. AP reports that Specter
proclaimed his independence and said he expected the same from Alberto Gonzales, President Bush’s nominee to be attorney general.
"While Judge Gonzales is the appointee of the president ... he’s representing the people of the United States, a key distinction which I’m pleased to say in advance that Judge Gonzales has noted in the statement which he has submitted," Specter said.
Senator Specter can be as independent as his constituent electors allow him to be, but Judge Gonzales cannot be independent as U.S. Attorney General. That is because cabinet officers have no independent constitutional authority. All of their power is derivative from the President, in whom the Constitution vests all executive power. If Gonzales, or any other cabinet officer were to decide to go off an independent lark, the President could override their decisions by directing them to toe the line, or by removing them from office. While it is true that cabinet officers serve the people, they do so by carrying out the agenda of the President whom the people elected. If the people believe that the cabinet officer is inappropriately carrying out the duties of his office, the remedy is not an appeal to a political check on the imagined independence of the cabinet officer, but ultimately is a political check on the President himself.
Specter is just the latest in a cavalcade of malcontents to call for greater independence among the cabinet officers. Most of these calls have come from those who are disappointed with the reelection of President Bush, who therefore wish to undermine the agenda of his Presidency. Yet aside from the clear constitutional basis to recognize cabinet officers as subsidiary rather than independent, such a system respects the democratic process. The people get a single vote for the Executive--for the person whose policies they would like to see implemented by the cabinet offices. By suggesting that the cabinet should be independent, the Specter-objectors make those positions less responsive to the people, and therefore less democratic. Of course, this is precisely what the blue staters want. They know better than the majority of Americans, who they have dubbed as stupid and misguided, and therefore they seek cabinet officers who are beholden to their values and not to the electorate or the electorate’s popularly elected President.
 Posted by Robert Alt | Link to this Entry | Comments [8] | 1/7/2005 10:00 AM
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I’m quaking in my boots
I found this exchange between William Voegeli of the Claremont Institute and Gerald L. Houseman, representing a group calling itself "Taxpayers Against Extremism" (TAX), amusing. The only "extremism" Houseman wishes to deprive of tax-exempt status is that supported by conservative-leaning foundations. The only Gerald L. Houseman I can find through a Google search is a much published professor at Eastern Washington University in Spokane, who worked as a Democratic precinct officer in the last election, and who is likely the same guy who lost an election in 1996 to U.S. Representative Mark Souder (R-IN). In other words, he’s a not atypical member of the Democratic Left. As Voegeli points out, when Dennis Kucinich is President, we’d better be worried.
 Posted by Joseph Knippenberg | Link to this Entry | Comments [1] | 1/7/2005 9:54 AM
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Ballot Initiative Seeks to End Racial Preferences in Michigan
The Detroit Free Press reports that Ward Connerly and the proponents of the Michigan Civil Rights Initiative--a proposal which would prohibit racial preferences in state government hiring and university admissions--filed 508,202 signatures to get the initiative on the November 2006 ballot. To qualify for the ballot, 317,700 signatures are required.
The Free Press reports that "U-M President Mary Sue Coleman said the proposal would close the door to higher education for many people." This is a lovely statement of how the liberal elite attempt to have it both ways. They have claimed for years that affirmative action is only really a slight finger on the scale, and yet eliminating preferences effectively closes the door for minority students. They also have been quick to suggest that non-minority candidates who are discriminated against because of racially preferential policies can simply go to other, less-competitive institutions of higher learning. But somehow, based on Ms. Coleman’s statement, this option must not be available to the minority candidates. And then there is the subtle racism of the left, which with the nuance of a sledgehammer suggests that minorities can only achieve if the benevolent elites give them a handout. It is past time that people of all creeds reject this kind of benevolent racism.
 Posted by Robert Alt | Link to this Entry | Comments [3] | 1/7/2005 8:40 AM
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Anyone got a job for me in Wilmington, Delaware?
Via the Democracy Projects blog, an account of the Mayors inaugural address. Here are two nuggets from the speech: We cannot continue to be baffled by the existence of crime or continue to run and hide from it. We cannot continue applying simplistic answers to the very complex reasons why crime has overwhelmed almost every city and town in America. We cannot look to the police as our only real solution to the epidemic of violence caused in large part by our own children who are enthralled with guns, drugs, and making money illegally. This crisis of crime, fueled by a crisis of values, has gripped urban neighborhoods around the nation, especially poor and minority communities, and is even more pronounced within the African-American communities. In the Bible, there are two passages that I think speak volumes about people and their future: “without vision the people will perish” and “my people perish for a lack of knowledge.” Crime can and will destroy vision, knowledge, and people. So we of this City must never let this happen.
And: Complicating this issue even further, as we try to understand criminal behavior and take action against criminals, is the fact that many of us, and our children, have adopted values that are alien to most people in this Country and are contrary to expected, required, or normal behavior. This crisis of values is having a devastatingly negative effect on our cities. The crisis of values is a type of self-inflicted genocide, the new lynching, that is not inflicted upon people by some evil, white-hooded terrorist in the middle of the night, but by those in black hoods or white T-shirts, whether in the middle of the night or in the light of day, who spew death, destruction, and fear at monumental proportions, far greater than at anytime during the highest number of lynchings that occurred in this country.
Winfield Myers provides further commentary and context, as well as the text of the whole speech.
 Posted by Joseph Knippenberg | Link to this Entry | Comments [4] | 1/6/2005 3:35 PM
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Cynthia McKinney #1
It didn’t take long for my representative to embarrass me. Here’s a little nugget from NRO’s "The Corner" (you’ll have to scroll down just a little). Of course, she could just be paying the campaign debt she owes to Maxine Waters. Update:You can tell something about people by the company they keep. Here’s a story about a rally in Lafayette Park this morning (McKinney wasn’t there, but her allies were) and here’s the Al Jazeera account of what’s transpiring. Whee! Update #2: I somehow missed this article when it came out.
 Posted by Joseph Knippenberg | Link to this Entry | Comments [2] | 1/6/2005 3:29 PM
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Shame, Thy Name is The Swimmer
Andrew McCartney over at The Corner has this little gem: "At the Gonzales hearing this morning: On ’water-boarding,’ Senator Kennedy, I kid you not, actually said that ’as a human being,’ he would have been ’offended’ by something that could have caused ’drowning.’" Me thinks the Senator doth protest too much.
 Posted by Robert Alt | Link to this Entry | Comments [5] | 1/6/2005 3:03 PM
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