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Monday, Jun 28, 2004
O'Connor the supremacist
There was another supremacist ruling from the Supreme Court today. They admit that the Bush administration has the authority to do what it is doing at Guantanamo Bay, but it wants judges to have the last say anyway.

John writes:

The Supreme Court has decided the Hamdi case in four divergent opinions with an unusual lineup of Justices. None of the opinions, however, alludes, even in a footnote, to the uncertainty of Hamdi's claim to U.S. citizenship. Hence, we failed in our objective to get the Supreme Court to declare Hamdi's citizenship to be an open question.

The plurality opinion by O'Connor states without qualification that Hamdi was "Born an American citizen in Louisiana in 1980," thereby implying a determination that the accident of Hamdi's birth was sufficient to establish his citizenship. That is exactly what we dispute.

A concurring opinion by Souter properly states that Hamdi's citizenship is merely an unresolved claim "According to Yaser Hamdi’s petition for writ of habeas corpus, brought on his behalf by his father, the Government of the United States is detaining him, an American citizen on American soil ..."

A dissent by Scalia describes Hamdi as "a presumed American citizen." Scalia's opinion argues that U.S. citizens should either be prosecuted in court, as John Walker Lindh was, or tried for treason.

A separate dissent by Thomas makes no reference to Hamdi's citizenship apparently because Thomas thinks it doesn't matter whether Hamdi is a citizen or not. In Thomas's view, full due process rights can only be claimed by what he calls "loyal citizens," not enemy combatants.

O'Connor said, in the Hamdi case:
We have no reason to doubt that courts, faced with these sensitive matters, will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns.
Yes, we have plenty of reason to doubt.

Andy writes:

Hamdi our mission partially accomplished. Only four votes found that Hamdi is a citizen based solely on place of birth. We wish the number were zero, but four is still less than the majority. We made it very difficult for the open borders people to cite Hamdi as precedent for citizenship-by-birth.

In another case today, the Supreme Court ruled 5-4 that incriminating info cannot be used even tho it came after a Miranda warning. The problem, according to the supremacists, was that some inadmissable info was also obtained before the warning!

Bob writes:

You are barking up the wrong tree. The problem is Congress. Congress has passed vague and contradictory laws concerning habeas corpus. If Congress had its act together the USSC would not be forced to sort out their mess. The USSC would not dare to overrule clear and constitutional laws enacted by Congress. In my opinion, Congress is fond of vague and contradictory laws to evade accountability. Congress is delighted when the manage to shove off the controversial hard choices on the Supreme Court.
John sends this TNR article, explaining how Scalia and Thomas have distinct judicial philosophies, and vote differently quite often.

Saturday, Jun 26, 2004
Supremacist law professor
An extreme judicial supremacist law prof, Michael J. Gerhardt, testified before a House subcommittee last week. No matter what the question, he maintained that the courts have the final say on everything, and whatever the courts say is the law. He admitted that the Constitution provides for Congress being able to limit the jurisdiction of the courts, but insisted that once jurisdiction is given, then Congress needs a "compelling justification" to remove it. It also must be a neutral justification. And the courts would have the final say on what is compelling, and what is neutral.

The courts are overstepping their authority! If that isn't a compelling neutral justification, I don't know what is. But anyway, the Constitution has no such language.

Gerhardt really showed his nuttiness when someone asked what could be done if the Supreme Court declared a constitutional right to pedophilia. He replied that the only answer would be to amend the Constition, as was done after the Dred Scott decision.

He is omitted one little detail -- the US Civil War. In order to amend the Constitution, the USA had to first fight a terrible was that killed half a million people and nearly destroyed the nation. Correcting Dred Scott was surely the most painful and costly fix to a bad court opinion in the entire history of the world.

Nevada pot smokers
Pro-marijuana activists are trying get a ballot initiative in Nevada, but they forgot to file a box of 6k signatures! Even if they get it on the ballot, they'll probably forget to vote.

BTW, 420 is now a popular codeword for marijuana.

Friday, Jun 25, 2004
Al Gore, Bush-hater
I understand that Al Gore is still sore about losing the 2000 election, but his latest Bush-hating rants are just nutty. Andrew Sullivan shows how Gore's Iraq comments contradict what he was saying just 2 years ago.
Limiting the courts
Phyllis Schlafly testifies on limiting the federal courts regarding marriage law. Here is the Wash Times story.

Thursday, Jun 24, 2004
Right to a jury trial hanging by a thread
The Supreme Court ruled 5-4 in favor of a jury trial. A convicted criminal got an extra sentence based on the judge's own fact-finding, bypassing his 6A right to have a jury decide the facts. The judicial supremacists would rather let the judges do whatever they want.
Immigrants get affirmative action slots
While the courts encourage schools like Harvard to give affirmative action admissions to black students, most of the benefits are not going to descendants of American slaves. They goto various dark-skinned immigrants, mostly from Africa or the West Indies, and also to some biracial students. It is funny how Harvard and the courts can be so openly racist, and liberals think that it is just great.
Cicero inspired Jefferson
Thomas Jefferson wrote, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights." I didn't know that he was partially inspired by the ancient Roman Senator Cicero who wrote:
And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one rule, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge.
I guess some judges would like to ban this quote as an endorsement of Cicero's religion, whatever that was. (He predated Jesus Christ.)
Lawyer predicts supremacist ruling
Walter Dellinger in Slate predicts that the Supreme Court will want judicial review of military detentions. He writes about drawing the lines between liberty and security and says:
... the justices are not about to let any institution other than the court have the final say about where those lines should be drawn.

A central theme of the Rehnquist Court—perhaps the central theme—has been the primacy of the current Supreme Court itself. The signature case is Dickerson, the case that decided whether Congress could overrule Miranda. Chief Justice Rehnquist wrote the opinion smacking down Congress' attempt to make Rehnquist's own dissenting view the law. This court really is supreme. The idea that people can be held by U.S. authority without any access to courts or lawyers will be a hard sell to these judges.

He then goes on to ridicule President Nixon's view of presidential power. When David Frost asked Nixon if the President can do something illegal if it is in the best interests of the nation, Nixon replied that sometimes an action is legal just because the President orders it.

Nixon is right, of course. Eg, a war-time order from the commander-in-chief is not reviewable by the courts, and becomes a lawful order just because the President says so.

The alternative -- that something becomes lawful just because the Supreme Court says so -- is much more offensive. Nixon got booted out of office when he lost the support of the American people, but Rehnquist is still in office.

Slate kills Clinton summary
Slate.com had a great synopsis of Bill Clinton's autobiography, but now it is gone. You can find a dead link here. I wonder if Slate got a threat from the publisher?

John sends this link to a cached copy. -- Update: Try this cached copy. It is still missing from Slate on June 28. Here is a another copy on someone's blog.

Bill Clinton's autobiography reveals that after Hillary found out about the Lewinsky scandal, he brought 3 ministers into the White House once a week for intensive marriage counseling. That should be enough proof that he was unfit to be president.

Web portals
Keeping track of web portal consolidation is tricky. Most of the good search engines are either defunct (like Northern Light) or have been taken over. As I understand it, the remaining field is:
  • Google
  • Yahoo, Altavista, AlltheWeb, Inktomi, Overture
  • Looksmart, Wisenut
  • AskJeeves, Teoma, MyWay, Excite, iWon
  • Gigablast

    Other portals like AOL and MSN seems to license their searches from other search engines, altho Microsoft is developing its own search technology and may soon be using its own search engine if it isn't already.

    The major directories are:

  • Yahoo
  • OpenDirectory (used by Google, HotBot, Lycos, Netscape)
  • LookSmart (used by AltaVista, Excite, MSN)

    There are also various specialized search engines and portals.

    Update: The Microsft search engine has a long way to go before it is competitive.

  • Wednesday, Jun 23, 2004
    Clinton misunderstands abortion law
    John writes:
    Professor Bill Clinton spent two weeks misleading his class with an erroneous interpretation of Roe v. Wade.
    As the article explains, the trimester theory is a myth. Roe v. Wade said that any pregnant woman has a constitutional right to an abortion throughout the entire 9 months, provided that she can get a physician to do it.
    Out-of-control judges
    A Boston federal judge says that federal sentencing laws were unconstitutional because they don't give judges enough power. Those sentencing guidelines do have some problems, but the Supreme Court upheld the constitutionality of the guidelines themselves in 1989.

    A federal appeals judge in NY, Guido Calabresi, has gone on a bizarre tirade attack the Bush v. Gore decision and comparing Bush to Mussolini.

    Wired magazine says a Utah federal judge has agreed to temporarily block enforcement of a Utah law that would ban spyware.

    An Oakland area mom is upset with a racist federal court decision:

    "It's discrimination, it's a violation of my son's civil rights and it's racism," Lewis said. "We're fighting this all the way."

    The ruling comes from the 1979 case of Larry P. v. Riles, in which a judge decided that IQ tests could not be administered to African-American children to determine their placement in special education classes in California. ... The district is following a state directive by withholding the test from African-American children, Cowick said.

    Lewis said district officials told her that if she really wanted her son to take the test, she should mark him down as a Caucasian because he is biracial. She refused.

    Update: Calabresi refused to retract his comments comparing Bush to Mussolini and Hitler, and issued a letter saying that he was sorry for any embarrassment that he might have caused the court. His partisan political comments violated judicial ethics, and he had to make some sort of statement.

    This is an example of what some people call a non-apology apology. He pretends to apologize, but actually just blames everyone else for being offended.

    Update: A blogger called The Spoons says:

    So Calabresi says that the Supreme Court acted illegitimately, that Bush came to power like Mussolini, and that all Americans must unite to vote him out of office.

    And Calabresi now "apologizes" that his results could too easily be taken as partisan.

    Spoons translates: "I'm sorry that I said something that simpleminded conservative critics have misunderstood. I should have realized how stupid they are, and tailored my remarks accordingly."

    Here is Judge Calabresi's lame and offensive non-apology letter. I say that the judge should be impeached.

    Update: Volokh reports that some Congressmen have written a formal complaint letter. They complain about about Judge Calabresi's partisan Bush-hating comments. I am also offended by his judicial supremacist comments. He said that the Supreme Court legitimately has the right to put a President in power, just like the king of Italy had the right to put Mussolini in. The final say on a USA presidential election rests with the Congress, not the Supreme Court.

    Tuesday, Jun 22, 2004
    Unlicensed lawyer to be appointed a judge
    Andy reports that Bush has appointed an unlicensed lawyer to be a DC Circuit appeals judge.
    Thomas B. Griffith, nominated last month for the U.S. Court of Appeals for the District of Columbia Circuit, lost his Washington license for not paying bar association dues. He got the license back by paying what he owed.

    Griffith lacks a law license in Utah — where he provides counsel on "all legal matters" to BYU — because he never took the state bar exam.

    Andy writes:
    The longstanding mystery of why Bush withdrew Miguel Estrada's nomination has now apparently been solved. Orrin Hatch wanted to appoint an unqualified buddy of his instead!
    John sends this article that exposes some fallacies about law licensing. It says:
    Many an affluent lawyer would sink into the doldrums of mere middle-class comfort if the public learned the dirtiest secret of all: any intelligent, educated adult with a little exposure to the practice of law can perform about 60-75% of the legal tasks that lawyers now charge a fortune to perform. Most menial legal tasks aren't even performed by lawyers -- they're farmed out to legal secretaries, paralegals, and interns, with the lawyer's name attached as an afterthought. I myself learned nearly everything I know about the practice of criminal law from watching court cases, reading old transcripts, and reviewing official filings -- not from law school, and certainly not from preparing for the bar exam. Anyone could learn about the law and its practice as I did. And perhaps more people should. But if capable citizens took charge of their own legal destinies, a great many Mercedes would go unbought as rich lawyers fell from grace with the bank. And so the bar exam hoax continues.
    I am all in favor of appointing non-lawyers to being judges.

    Saturday, Jun 19, 2004
    Clinton rips enemies, including court
    The new Bill Clinton autobiography will attack some enemies, according to the NY Times leaks:
    The book's length gives the former president plenty of room to settle scores, and he does so with his customary elan. He takes the whip to Republicans in Congress, former FBI Director Louis Freeh, the National Rifle Association, even the Supreme Court, which ruled unanimously in 1997 that the Paula Jones sexual-harassment case against Clinton could go forward while he was in office. He called that decision one of the most politically naive and damaging court decisions in years.
    Politically naive and damaging? That is a strange comment.

    Being against judicial supremacy, you might expect me to say that the President should not have been required to conform to mundane court procedures. But Clinton's court case was not about his impeachment or his authority as President or anything like that. It was only a claim by Paula Jones that Clinton pay her a sum of money to compensate her for some damages that she allegedly suffered in Arkansas. Legally, it is not that much different from a bank suing him for nonpayment of a loan. Clinton should have just paid the money and disposed of the case. He chose to contest the payment, and to do that, he had to testify. That is all the Supreme Court said.

    A lot of people were offended by some of the inequities of the Jones lawsuit. She filed years after the fact; she had no hard evidence of wrongdoing or harm; she was allowed to go fishing into the defendant's sexual history; and her sexual history was sheltered. But these are the inequities in every sexual harassment lawsuit, and some of them are the result of laws that Clinton promoted.

    The NY Times book review trashes Clinton's book.

    Update: I just tuned in CBS 60 Minutes, and the first thing I heard was Bill Clinton saying, "The judge ruled that the Jones case had absolutely no merit." Clinton is still lying. The Jones case ended by Clinton agreeing to pay $800k or so in damages to Jones. The judge merely accepted the settlement.

    The Wash Post review says that the book proves that Clinton lied to the grand jury about when his Lewinsky affair started. The date was a key point in his impeachment.

    Up until now, I had thought that Clinton told the truth to the grand jury. But he apparently lied in order to conceal the fact that the affair started while Monica was an unpaid intern. I guess he thought that it was more acceptable to have an affair with a paid employee.

    Friday, Jun 18, 2004
    More Bush-hater lies
    The Bush-haters have backed off claiming that Bush lied about WMD, and now claim that he lied about Saddam Hussein being responsible for the 9-11 attack. Eg, the Slate Whopper feature says Bush lied.

    As explained here, Congress's declaration of war against Iraq required Bush to certify that attacking Iraq would be consistent with the war on terrorism. That is all Bush did, and he was telling the absolute truth. We would not have wanted to goto war if it was going to interfere with the war on terrorism.

    Kerry voted for that resolution. I am sure that Kerry thought what everyone else in Congress thought -- that Iraq had some ties to terrorist organizations, but did not plan the 9-11 attack. That is also what the 9-11 Commission is saying in its reports, and it corroborates what Bush has said.

    Thursday, Jun 17, 2004
    Cohen is wrong about FDR
    Richard Cohen says that Reagan was not great like FDR. He concedes that winning the Cold War was a substantial achievement, but not a great one like FDR's economic policy:
    The Great Depression was a different matter. Here FDR was the indispensable man. It wasn't that his alphabet soup of new government agencies -- WPA, CCC, etc. -- restored prosperity (World War II did that), it was that by creating those agencies, by putting people to work, by expanding welfare, by moderating the inherent cruelty of winner-take-all capitalism, he saved capitalism itself. FDR did that. Another president might not have.
    No one who lived during the Great Depression would think that the New Deal was successful at putting people to work, and no one who lived during WWII would think that WWII restored prosperity. The New Deal was an economic failure, and the USA had very high unemployment rates throughout the 1930s. Then WWII did succeed in putting people to work, but it did not restore prosperity. People needed ration coupons just to buy basic necessities. Prosperity did not come until after FDR was dead and WWII had ended.

    OTOH, monetarist policies under Reagan did end the high inflation and high unemployment of the 1970s, after a couple of painful years. Reagan was very unpopular for those policies in 1982, but eventually everyone agreed that they were just what we needed. Reagan was much greater for carrying out unpopular policies that worked. FDR carried out popular policies that didn't work.

    Clarence Thomas on constitutional law
    John sends this LA Times article attacking Supreme Court justice Clarence Thomas. Thomas's views are unpopular among liberal law profs, but he exactly right in every case mentioned. He should be promoted to Chief Justice when Rehnquist retires.

    In Thomas's most recent opinion about the Pledge of Allegiance, he points out that states could have official prayers under the Constitution. The 1A says:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ...
    Note that it restricts Congress, but not the states. The post-Civil-War 14A says:
    ... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ...
    This has been interpreted to mean that individual liberties guaranteed by the Bill Of Rights at the federal level must also be guaranteed at the state level. That is, if Congress cannot prohibit the free exercise of religion, then the states cannot either.

    But Thomas points out that there are really 2 religion clauses in the 1A: one about no establishment and one about free exercise. These are very different. Other court decisions just lump them together and read them both to imply a wall of separation between church and state. This confusion has caused many problems.

    The LA Times quotes an idiot law prof as saying, "He acts as though the Civil War didn't happen, or it didn't matter." An anti-religion activist says, "Utah could be officially Mormon". But these quotes are nutty and ill-informed. Thomas accepts that the 1A and 14A guarantee the free exercise of religion. Any attempt by Utah to force people to be Mormons would be clearly unconstitutional. Furthermore, Utah's own constitution says:

    Article I, Section 4. [Religious liberty.] The rights of conscience shall never be infringed. The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; no religious test shall be required as a qualification for any office of public trust or for any vote at any election; nor shall any person be incompetent as a witness or juror on account of religious belief or the absence thereof. There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.
    So Thomas's view would have no effect on the people of Utah, except that perhaps a Utah resident complaining about the Pledge Of Allegiance would have his case heard by a state judge instead of a federal judge. But that's the way it ought to be anyway, as federal judges should not even have jurisdiction over such silly issues.

    Monday, Jun 14, 2004
    Bamford's Pretext
    The bookstore has a new Bush-hater book. The latest is from James Bamford, A Pretext for War.

    Before 9-11-2001, Bamford complained about how USA intelligence agencies were too powerful and too invasive. Now he complains that they didn't know enough about al-Qaeda. Before the Iraq War, he complained that Bush was making the case for war without presenting proof of WMD or imminent threat to the USA. Now he is still unhappy about the decision to invade Iraq, but acts like he has a big intelligence expose by just repeating what has been well-reported. Here is the Wash Post book review and the LA Times book review.

    Behind the war decision and other mideast policy decisions, he says, is some sort of Zionist conspiracy. I don't buy it. The decision to give Iraq an ultimatum had the unanimous support of the UN, and the decision to declare war against Iraq had the support of Congress, including the vote of John Kerry.

    It was the NY Times that used to run daily stories about how Iraq had WMD, and now it is the NY Times that has run 43 front page stories on Abu Ghraib in the last 47 days. (This is according to Bill O'Reilly today. I guess Reagan's funeral spared us a couple of days.)

    I can understand the people who were against the Iraq War all along, and who were against the Bosnia and Kosovo wars for similar reasons. But these Bush-haters make no sense to me.

    More anti-man propaganda from Dear Abby
    Today in Dear Abby, a wife complains that her husband got drunk at his birthday party, and on another occasion she had to sit by herself at a sporting event while he bought beer. Dear Abby suggests that she join a 12-step program and consider divorce. They have one baby, and another on the way. Bad advice. He is probably not an alcoholic.

    Another writer is woman with a jealous boyfriend. She says the problem is that he doesn't trust her, but she doesn't trust him either, and is paranoid that he has hacked into her computer. More telling, perhaps, is that she says:

    He says I treat my friends, and even strangers, better than I do him. I don't feel that way.
    Maybe she doesn't feel that way, but she probably acts that way, and if so, then she is the one who is dooming the relationship. If she is serious about him, then she needs to make it clear to him that he is more important to her than her friends.

    But that's not what Dear Abby says. She says that the boyfriend is a potential abuser and that she should end the relationship immediately! I think that Dear Abby gives terrible advice to women.

    It sounds crazy, but I've seen wives treat total strangers as being more important than their husbands. Even when it is pointed out to them, they'll give wacky justifications, say that they feel their husbands are more important, and continue the destructive behavior.

    It is completely normal for a man to expect a potential mate to treat him as more important that other friends. And when she refuses, it is completely normal for him to suspect that her loyalties are elsewhere. It doesn't mean that she is sexually unfaithful, but it does mean that she lacks the commitment that is necessary for an enduring relationship.

    Sunday, Jun 13, 2004
    Reagan critics
    The anti-Reagan folks can't keep their mouths shut. They want to blame him for AIDS, even tho he spent far more money on AIDS research that anyone knew what to do with. They imply that he was almost impeached for the Iran-Contra scandal, even tho he cooperated fully with the investigation, and was completely exonerated of any wrongdoing.

    I just heard a supposedly-neutral radio host on an NPR affiliate say that "everyone would agree that Reagan was anti-union". Reagan did order some illegal strikers back to work once, but was actually pro-union. He was a union leader himself. Other presidents, such as Bill Clinton, ordered lawfully-striking union workers back to work. Reagan never did.

    There are also a lot of annoying experts on TV who say they knew Reagan, and found him inscrutable. They praise his optimism, but they could never figure out what he was optimistic about. Reagan was a man of faith and principle. It is not that complicated.

    Friday, Jun 11, 2004
    Atheist censorship
    Andy writes:
    As this action illustrates, atheism ultimately leads to censorship. First Newdow insists that others cannot pledge allegiance "under God", and next Newdow insists they cannot criticize him on the internet.
    The defendant didn't show up, and Newdow won a $1M default judgment. Newdow lost related lawsuits against The Alliance Defense Fund and WorldNetDaily. The issue seems to have something to do with whether Newdow said under oath that the Pledge of Allegiance caused his daughter emotional damage.

    The question of whether Newdow lied is unresolved. Here is the petition to disbar him. It does appear that he misled the court, but I haven't studied the details, and I don't want to get sued myself.

    Update: The US Supreme Court just ruled 8-0 against Newdow, and 5 of the 8 agreed that Newdow said that the case had to be thrown out because Newdow misled the court about his custody of his daughter. They said that the truth only became apparent when Newdow's daughter's mother filed a motion to the court explaining the real story.

    You can check Newdow's web site for his side of the story, but it appears to me that he lied to the court about some other matters as well. Eg, his complaint said that he is an ordained minister, and the SC repeated this without question, but his ordination is from a phony mail-order diploma mill called the Universal Life Church. The first paragraph on its web site says:

    You can become a legally ordained minister, instantly, online, at this website. The Universal Life Church is totally non-denominational, interfaith and welcomes all religions. After you fill out the ordination form, you will receive a pop-up instant credential, which serves as your receipt of your ordination. Print it immediately.
    Newdow's complaint says:
    The daily, governmentally mandated recitation, in the public schools, of any pledge containing a religious statement such as "under God," inflicted upon a child who holds religious beliefs offended by such a statement is a blatant violation of the Free Exercise Clause.
    This is also a lie, because his daughter is a Christian who is not at all offended by saying the Pledge.

    George writes:

    You are calling Newdow a liar. Aren't you worried that Newdow will hit you with a million dollar libel lawsuit?
    Newdow is a crackpot. His 15 minutes of fame are over. His kooky legal theories aren't going anywhere. He has a point when he says that the courts apply the Lemon Test inconsistently, but he lost 8-0 at the Supreme Court.

    Thursday, Jun 10, 2004
    Judicial supremacy in Colorado
    The NY Times has a supremacist editorial tomorrow attacking the 3 right-wingers on the US Supreme Court. It says:
    But Chief Justice Rehnquist's dissent, joined by Antonin Scalia and Clarence Thomas, is bluntly dismissive of the Colorado Supreme Court. In the dissenters' view, the court was merely "purporting" to decide the case exclusively according to state law....

    The dissent attracted little notice because it fell one vote short of the four votes needed to review a case. But it is disturbingly reminiscent of the court's ruling in Bush v. Gore, in which five justices who had long been extremely deferential to state power suddenly overruled the Florida Supreme Court's interpretation of Florida election law.

    Cases like these quite naturally invite skepticism. As the court learned in 2000, it does grave harm to its reputation if it appears to be deciding election-law cases for partisan advantage. In cases of this sort, the court must make a special effort to show that it is acting on the basis of legal principle, the only basis for a court to act. By departing from his deeply held belief in state autonomy to side with the Republican Party in a redistricting case, Chief Justice Rehnquist has once again invited the public to question this court's motives. [The case is Colorado General Assembly v. Ken Salazar.]

    The NY Times is being extremely dishonest here, because those 3 justices have not departed from any previously-held beliefs. The US Constitution (I-4-1) gives the state legislatures and the Congress the power to regulate elections for federal offices. Rehnquist's opinion merely sides with the Colorado legislature exercising this power. So Rehnquist is siding with state autonomy, as represented by its general assembly.

    The NY Times similarly misrepresents Bush v. Gore. First, there where 7 US Supreme Court justices who found Florida Supreme Court's interpretation of Florida election law to be unconstitutional. Second, the 3 right-wingers did defer to Florida in that they agreed that the election should be administered according to pre-election law defined by the state legislature and by election officials in the executive branch.

    The NY Times editorial is so bizarre that the only way to understand it is to realize that the writer is a radical judicial supremacist and a federalist hypocrite. The Colorado supreme court has usurped the power of the state legislature, as explained in the Denver Post. To agree with the Colorado supreme court, you have to believe that the courts have supremacy over the legislature, in spite of any language to the contrary in the federal and state constitutions. But you have to believe in a very peculiar sort of judicial supremacy, because you'd have to believe that the Colorado court decisions are not appealable to the higher US Supreme Court. Nearly all judicial supremacists believe that the higher courts should always get their way.

    The NY Times cannot bring itself to actually agree with the Colorado supreme court decision, so instead it settles for accusing the right-wing justices of partisanship and hypocrisy. They are neither. There were 4 Republican appointees who voted for the Democrats. The right-wingers were being completely consistent with their longstanding textual interpretations of the Constitution.

    Wednesday, Jun 09, 2004
    Santa Cruz politics
    Santa Cruz is a central California beach town that gets most of its money from tourism and govt agencies. You would think that the hottest issue there would be what to do about the horrible traffic on Highway 1. But the City Council has voted to remain neutral on widening the highway, and instead voted for a resolution to impeach Rumsfield. It appears that they are unhappy that a couple of terrorists in Baghdad had to wear underwear on their heads.
    Flagburning amendment
    Congress is considering a constitutional amendment to allow Congress to ban flagburning. The LA Times attacks the idea.

    It is a silly idea, but for different reason. A much simpler solution exists. Congress could simply pass a law removing flagburning from federal court jurisdiction. Issues like that have traditionally been under the jurisdiction of the states anyway, and there is no good reason for the federal courts to be involved. Removing jurisdiction can be done by a simple majority, and avoids amending the Constitution. That should be easy, as majorities have voted for flagburning amendments in the past.

    The LA Times also repeats the lie about the "first amendment to limit, rather than extend, the rights of Americans." There have been several such amendments already. The 11A removes the right to sue states in federal court. The 13A abolishes the right to own slaves. The 14A (as interpreted by activist courts) limited many rights, too numerous to list. The 16A limited the right to earn income without govt interference. The 18A abolished the right to buy liquors, and the 21A limited our ability to have a liquor-free community. The 22A limited our right to elect a president of our choice. The 15A, 19A, 23A 24A, and 26A diluted our voting power, and thereby diminished our rights to vote.

    You might think that it is silly to describe abolishing slavery as abolishing a right, but the US Supreme Court had ruled the Bill Of Rights guarantees a right to own slaves, and that it would be unconstitutional for the govt to take away that right.

    Sex bias in reporting
    This SJ Mercury News story about sequencing the DNA of a wallaby was written by woman:
    Female wallabies have yet another edge over their human counterparts: Their embryos often enter a ``hibernating phase,'' delaying development and birth until a more convenient time.

    Happily, humans do not share the wallabies' habit of mating again within an hour of delivering young. This unique trait is credited with the creature's population explosion.

    Tuesday, Jun 08, 2004
    Reagan on the dime
    After abandoning the dime, Reagan supporters want to put his image on the $10 bill. Wrong bill, I think. We should re-issue the $500 bill with Reagan's portrait. There used to be a $500 bill with McKinley, and nobody cares about him anymore. But Europe has a 500 Euro note that is worth about $500, and we need a similar note. As it is, it takes too many bills to buy a car with cash.

    Monday, Jun 07, 2004
    Ronald Reagan
    The news has been appropriately respectful of Reagan's death, for the most part. Andy complains that the first sentence in the lengthy NY Times obituary is:
    Ronald Wilson Reagan, a former film star who became the 40th president ... imbued with a youthful optimism rooted in the traditional virtues of a bygone era ....
    G H W Bush (41) was on TV saying how Reagan promoted the New World Order! He then quickly correctly himself, and said that Reagan promoted "peace".

    My local NPR affiliate had a bunch of left-wing kooks like Helen Caldicott on, who proceeded to trash Reagan.

    Sunday, Jun 06, 2004
    Firing Judge Roy Moore
    One of the Alabama judges who fired Judge Roy S. Moore, Champ Lyons Jr, has written a lengthy defense of his vote titled, "HIS MONUMENT, MY OATH, AND THE RULE OF LAW." Moore was fired for refusing to removed his Ten Commandments monument. The essay is mainly a rebuttal to Tom Parker who said:
    [Alabama General Bill] Pryor thinks that the rule of law is what courts say, rather than the Constitution itself, That's what [is] wrong with our federal courts.
    (Tom Parker just defeated one of Lyons's colleagues in an election.)

    Apparently this criticism hit home, as Lyons explains that he used to take his oath of office more seriously, and he used to speak out against judicial activism. But he explains a historical argument that turned him into a judicial supremacist:

    In Marbury, Chief Justice Marshall formulated the mechanism now known as judicial review through which the Supreme Court determines the legality of conduct of the other branches of government based upon that Court's interpretation of the meaning of the United States Constitution.

    Chief Justice Marshall based his ruling on an implication drawn from the fact of creation of three branches vesting only one with judicial power. In so doing, Chief Justice Marshall announced a principle that no less formidable a legal scholar than Judge Learned Hand, a giant in our judicial history, would later describe as ungrounded in constitutional text but mandated by practical necessity.'

    Yes, this is the standard supremacist line, but it is wrong. Marbury v. Madison (1803) did not determine the legality of conduct of another branch of government; it only an example of the US Supreme Court applying the Constitution to itself.

    If judicial review is really a practical necessity, then why is it that the necessity never arose in the first 100 years of the American Constitution? Marbury v. Madison was not an example. The first occurrence of judicial review was Dred Scott (1857), and all that did was to help cause the Civil War. Later came Lochner v. New York (1905) which is also widely criticized for being unnecessary judicial activism. And now we have all sorts of activist rulings, the vast majority of which have done more harm than good.

    Saturday, Jun 05, 2004
    Legality of the Pledge
    The PBS TV show Uncommon Knowledge had a debate on the Pledge of Allegience. This is one of the rare PBS shows that permits a right-wing viewpoint along with the usual left-wing propaganda.

    I think that Kmiec is correct, and that Newdow will only get one anti-Pledge vote at the Supreme Court. Chemerinsky predicts that the Court will say that the Pledge is unconstitutional.

    Chemerinsky made some very lame arguments, and Kmiec did not do an adequate job of rebutting them. Chemerinsky argued that the "nation under God" phrase was motivated by politicians wanting to reject "godless Communism", but failed to explain how that supports an establishment of religion. Does he think that anti-Communism is a religion? That seems to me to be just more evidence that the phrase had a secular political purpose, rather than a religious purpose.

    Chemerinsky also claimed to be unable to see the difference between "nation under God" and "nation under Jesus". Jesus Christ founded a particular religion. The term God is used in connection with all religions, as well as for various secular purposes.

    I don't believe that Chemerinsky, Newdow, and other atheists are really so offended by the term "nation under God". They just say that they are offended in order to pursue an ideological attack on religion.

    One point that they ignored was the Blaine Amendment. That was the 1875 proposed constitutional amendment that was supposed to erect a wall of separation between church and state. It was supported by anti-Catholic bigots and was narrowly defeated in Congress. But nobody at the time thought that the Blaine Amendment was implied by the existing US Constitution, and no one thought that even the Blaine Amendment would abolish statements like the Pledge of Allegiance. (Many states did pass their own Blaine Amendments.)

    Friday, Jun 04, 2004
    Anyone without a cell phone?
    According to this Slate article:
    Tim Long, an analyst at Bank of America, in May projected that 650 million wireless handsets would be sold this year and 730 million next year. Trikon Technologies Inc., which makes equipment used in the construction of cell-phone components, said in a recent release that the worldwide handset market is "forecasted to reach 1 billion units by 2006."
    If nobody throws any cell phones away, then at that rate we'll have enough for every person on the planet by 2009. (No, I still don't have one yet, and my kids don't either.)
    Father wins custody after mother makes baseless accusation
    Usually judges ignore perjury in family court, on the theory that everybody lies. Many mothers have learned that they can win custody by making accusations of abuse, whether there is any evidence or not.

    In a NY case, a former Playboy playmate lost custody of 4-year-old twins because she made false molestation accusations against the father.

    This is refreshing news. Child custody should not be determined by who is willing to make the more outrageous accusation.

    George writes:

    Those kids belong with the mother. Surely you can't think that the twins should be separated from the only parent they have really known.
    That mother belongs in prison. No, I don't believe that she can be a good mother and also so cruelly manipulate her kids into hating their father.
    Impeach bad judges
    A Wash. Times op-ed wants to impeach a bad judge:
    The only lawful remedy for such black-robed radicals — who have manifestly hijacked the law and the lives of the most innocent members of society for their own ideological purposes — is impeachment by the House and removal by the Senate. The power is available, although rarely applied. It should be exerted in this case, and in others so extreme. Each member of the House should draw up articles of impeachment against Judge Hamilton or co-sponsor such a resolution. Those who do not should be prepared to explain why they are willing to let such an outrage against decency and the rule of law go unchallenged. Judges recklessly intent on suborning the popular will must be restrained by the powers granted to the chosen representatives of the people.

    Thursday, Jun 03, 2004
    Activist federal judge in Nebraska
    John writes:
    U.S. Rep. Steve King, who represents 32 counties in Western Iowa, has been leading a campaign against federal district judge Richard Kopf who sits in Lincoln, Nebraska. SF story Omaha story

    King conspicuously attended a hearing in Judge Kopf's courtroom, then stepped outside and told the press that Congress should restrain activist judges from imposing their personal views on society.

    Judge Kopf apparently didn't like that one bit. Speaking from the bench he said arguments against activist judges are "stupid and superficial."

    Kopf is presiding over one of 3 cases challenging the federal partial-birth abortion ban. Kopf had previously overturned the Nebraska PBA ban; his order was upheld by the Supreme Court, 5-4, in Stenberg v. Carhart.

    Kopf is the same judge who banned the Ten Commandments monument in Plattsmouth, NE. His order was upheld by a 3-judge panel of the 8th Circuit, but the panel decision has been vacated and will be reargued before the 8th Circuit en banc.

    In one of the two other PBA cases, yesterday a Clinton-appointed judge in San Francisco overturned the law in a scathing 117-page decision.

    ACLU likes Goddess Pamona, not cross
    The ACLU pressured Los Angeles into removing a tiny cross from its official seal. It was allowed to keep Pomona – the goddess of gardens and fruit trees. LA Times story LA County Seal

    New book: The Supremacists

    A new book by Phyllis Schlafly called The Supremacists exposes the evil of judicial supremacy, and what to do about it.

    I am going to regularly point out judicial supremacist thinking, as it is pervasive among law profs and judges, and almost entirely harmful.

    Today I read this excerpt from a US Supreme Court hearing last week about Jose Padilla:

    JUSTICE RUTH BADER GINSBURG: But if the law is what the executive says it is, whatever is "necessary and appropriate'' in the executive's judgment, as the resolution you gave us that Congress passed, it leads you up to the executive, unchecked by the judiciary. So what is it that would be a check against torture?

    A. Well, first of all, there are treaty obligations. But the primary check is that just as in every other war, if a U.S. military person commits a war crime by creating some atrocity on a harmless, you know, detained enemy combatant or a prisoner of war, that violates our own conception of what's a war crime. And we'll put that U.S. military officer on trial in a court martial. So I think there are plenty of internal reasons --

    My problem is with the premise of Ginsburg's question. Nobody is saying that the law is what the executive says it is. Everyone agrees that the executive is obligated to obey the law. Ginsburg only says it that way, because she believes that the law is whatever the Supreme Court says that it is, and thinks that is the only way the law could work.

    The fact is that the Executive Branch is obligated to uphold the law in all sorts of ways that are not reviewable by the courts. War is just one example.

    Wednesday, Jun 02, 2004
    Why are Californians shocked by the Enron tapes? California deregulated power trading so that traders could arbitrage and address uneven distribution. Of course traders just want to make money for themselves. It is unrealistic to expect traders to want to lower California energy prices, as opposed to making money.

    This is some evidence of collusion to temporarily shut down power plants in order to manipulate prices. But the real fault is with the regulatory scheme that created incentives for power companies to shut plants in time of need.

    Tuesday, Jun 01, 2004
    Frenchman misunderstands US election
    A Frenchman named Marcel denied that G W Bush was elected, and wrote:
    All I read, or saw on TV news, seemed to indicate that, considering the mess of the vote recounts, the decision was let to the Supreme Court (where a majority of judges was for Bush).
    All the counts and recounts favored Bush. The Florida election would have been certified for Bush, but a 4-3 majority on a Florida court seemed determined to keep ordering recounts until one favored Gore. The Florida court was still inventing new recount schemes when the deadline arrived for reporting results (a month after the people voted). All the US Supreme Court did was to put a stop to the court's interference in the election.