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Saturday, March 29, 2008

Obama's never been a "professor of law" nor any full-time or tenure-track legal educator

How big a deal is it that in speeches and in campaign literature, Sen. Barack Obama (D-IL) has identified himself from time to time as a "law professor" or even a "professor of law"?

It's not as big a deal as the Clinton campaign has made it. But it's a bigger deal than some poorly informed or outright dishonest Obama apologists have been trying to make it appear.


Here's the back-story:

During the past week, the Clinton campaign issued a press release in which it cited an April 2007 blog post from the National Journal's Hotline Blog and an August 2004 Chicago Sun-Times column by Lynn Sweet as proof that "Sen. Obama consistently and falsely claims that he was a law professor." According to the Clinton press release (bracketed portion by the Clinton campaign),

The Sun-Times reported that, "Several direct-mail pieces issued for Obama's primary [Senate] campaign said he was a law professor at the University of Chicago. He is not. He is a senior lecturer (now on leave) at the school. In academia, there is a vast difference between the two titles. Details matter." In academia, there's a significant difference: professors have tenure while lecturers do not.

TNR's Noam Scheiber writes that he doesn't "see the scandal" in Obama describing himself as a "professor."  But many — especially in the academic world — certainly would.

Indeed, it's amazing to me that with as many academics as abound in Democratic Party politics and punditry, neither campaign can get seem to get this stuff straight! The last sentence in the block quote just above did indeed appear in Sweet's column, but it's badly wrong, too: Whether in law schools or other college and university departments, there are zillions of "assistant professors" who don't have tenure, but they're typically on a tenure track in which they might eventually get tenure. When and if those assistant professors of law (or whatever) get tenure, they typically will become "associate professors of law," from which they might or might not progress to more senior tenured positions — e.g., "full" professors (typically designated just as "professor of law"), or perhaps full professors holding an endowed professorship or chair.

Obama has never, ever had any position in which the word "professor" was part of his job title — neither as an assistant professor, associate professor, nor full professor; and neither as a resident or a visiting professor; and neither as a clinical professor, adjunct professor, or mainstream academic professor.

Here's a carefully written, mostly accurate, but still misleading and pro-Obama-spun press release that the University of Chicago Law School has posted this week in response to the controversy:

The Law School has received many media requests about Barack Obama, especially about his status as "Senior Lecturer."

From 1992 until his election to the U.S. Senate in 2004, Barack Obama served as a professor in the Law School. He was a Lecturer from 1992 to 1996. He was a Senior Lecturer from 1996 to 2004, during which time he taught three courses per year. Senior Lecturers are considered to be members of the Law School faculty and are regarded as professors, although not full-time or tenure-track. The title of Senior Lecturer is distinct from the title of Lecturer, which signifies adjunct status. Like Obama, each of the Law School's Senior Lecturers have high-demand careers in politics or public service, which prevent full-time teaching. Several times during his 12 years as a professor in the Law School, Obama was invited to join the faculty in a full-time tenure-track position, but he declined.

Mike Allen at Politico insists that this press release declares Obama's "claims [to be] semantically sound" and "vindicates" him.

But that's also a significant over-reading, at least in my opinion. Color me intensely skeptical, for example, as to whether, and by whom, "Senior Lecturers" are "considered to be members of the Law School faculty and are regarded as professors"; that careful qualifier, "although not full-time or tenure-track," is HUGELY significant in terms of how legal academics actually regard each others' status.

Maybe senior lecturers at Chicago get to sit in on faculty meetings; maybe they get to use the executive washrooms and lounges. But they assuredly don't get to cast votes, however, on grants of tenure or the like. The press release's careful wording strikes me as very analogous to saying, "In the military, non-commissioned officers are considered officers," or to saying, "In medicine, licensed residents are considered doctors." Both of those statements may be technically true. But they're certainly far from complete, and they certainly could obscure the real relationships between, say, sergeants and lieutenants, or between residents and attending physicians. Whether you're a grunt in the trenches, a patient on an operating room table, or a law graduate and wanna-be academic trying to decide whose butts to kiss first, you certainly do want to understand the details of this hierarchy.

Indeed, I am quite certain that a quick way to get oneself off a tenure track would be to even slightly or innocently misrepresent one's tenure or tenure-track status in any important context or setting. The "clinical instructor" or even "adjunct professor" who describes himself or herself simply as a "professor of law" (or even "law professor") on a formal résumé that finds its way back to the tenured faculty members is likely to instantly destroy his or her reputation for academic integrity and honesty, very likely ensuring that he or she never will be on a tenure track at that institution!

In fact, I very much wonder whether this undated press release would draw agreement from a majority of the tenured faculty members at Chicago. And I very much doubt that a comparable statement, made without reference to any current political wunderkinder, would draw agreement from most other law school faculties. Indeed, there's a slight, but significant, internal inconsistency in the press release: Despite the careful distinctions it goes on to draw for "Senior Lecturers," it nevertheless states flatly and boldly (and I suspect wrongly) at its beginning that "From 1992 until his election to the U.S. Senate in 2004, Barack Obama served as a [lower-case "p"] professor in the Law School"; but Obama only became a Senior Lecturer in 1996. Do most of the tenured faculty members at Chicago agree that all of their mere lecturers are entitled to represent themselves to the public as being "professors of law" or "law professors"? Where's a quote from the Dean? Where's a cross-reference to a pre-existing faculty rule or policy?


I don't doubt the press release's assertion that Obama had been repeatedly offered a full-time tenure-track position, almost certainly as an assistant professor. That's roughly analogous to being offered a job as an associate at a law firm, or a resident at a teaching hospital, and it's mostly significant for what it portends about future career prospects after many years of further hard work. But Obama didn't do, or commit to do, that hard work; he chose instead to keep "politician" as his main day job for the last several years.

The law school's website also reproduces a December 2007 Chicago Sun-Times article which suggests that as a classroom teacher, Obama was popular with his students. I don't doubt that — even if, perhaps, his classes didn't hold hands and sway rhythmically while chanting "Yes, we can!" Again, that's nice. But being liked doesn't entitle one to represent oneself as a "professor" when one's not.

It's also mildly significant in my view that Obama picked con-law as the subject on which he'd lecture. Con-law is sexy and fun, and it sounds great for purposes of becoming a politician. Certainly there are con-law profs who study it deeply and diligently. But con-law is also prone to being slippery and vague; if you're a bluffer, it's the kind of topic you'd pick to try to bluff on. I would frankly be far more impressed if Obama had lectured in a field that absolutely required deeper and more diligent, continuing study — say, tax or corporate governance or even torts. I therefore think Obama's subject to a legitimate charge of being an academic dilettante. There's not nearly as much evidence that Obama has ever been a serious legal scholar as there is to demonstrate that he has ever been a serious professional legislator, and his record as a legislator, either state or federal, is still ridiculously thin for a presidential candidate.

Even Lynn Sweet's latest critical blog post, written in response to the Chicago press release, misses the point. She writes:

The University of Chicago did Obama no favor by saying he was a law professor when he wasn’t. This parsing is not necessary. There is nothing degrading about being a senior lecturer and bringing to students the experience of a professional in the field.

Except that Obama couldn't be "bringing to students the experience of a professional in the field." Even in his very limited tenure as a practicing lawyer, there's no hint that his practice involved subtle, ethereal questions of constitutional law of the sort he likely taught about at Chicago. If he's ever tried and won a court case, constitutional or otherwise, I haven't seen any evidence of that. If he's ever argued an appeal, constitutional law or otherwise, I haven't seen any evidence of that either. As a lawyer, he seems mostly to have still been a "community organizer," which I interpret as being a proto-politician who likely writes lots of demand letters, who maybe files complaints and occasional lawsuits that he inevitably settles, and who spends at least as much time talking to power brokers and the press as to judges and juries.


The reason big academic institutions have all these titles is that that's how they keep score internally. The exact titles certainly do matter to them, and to those who are trying to figure out those institutions. And it's one thing for Scheiber or Allen to spin all this to make Obama's misappropriation of a title seem insignificant. But it's ridiculous — to and past the point of dishonesty — to try to compare or equate Obama's academic titles or service to those of serious legal academicians.

The most egregious example I've seen so far is from self-described University of Chicago PhD candidate (not law student) Chris McIntosh, posting at Talking Points Memo. McIntosh's post is entitled: Barack *is* a Law Professor: Clinton Smears Continue Unfounded. The factual part of that title is literally untrue, for whatever connections Obama did have with the faculty no longer exist. (McIntosh may not understand what the meaning of "is" is.) But McIntosh goes on to argue that Senior Lecturers teach "just as authoritatively as any other member of the faculty." Well, yes, the grades they hand out count the same way in students' GPAs as the grades handed out by full professors. But does anyone seriously think all, or most, or even very many "Senior Lecturers" are genuinely as "authoritative" as senior professors with endowed chairs in a particular subject? When I was in law school, I was intensely and continuously aware of which of my professors were mere tenure candidates and which, by contrast, were already tenured professors, especially if they were eminent national scholars who typically had quite literally "written the book" on the topics they taught.

McIntosh is also badly wrong when he states that the University of Chicago Law School has no "assistant professors." Here are three, just for example. The Chicago faculty does seem to have a shortage of "associate professors of law" right now (maybe they're out visiting other faculties?), and not very many plain old "professors of law" without endowments either (which speaks well of their fund-raising prowess). But I have no doubt that Chicago keeps score in pretty much the traditional ways common to the rest of American law schools; those titles count, and they're not casually handed out. McIntosh's grand finale, though, is actually a grand whopper:

There's one last irksome detail. Richard A. Posner? Legal icon, you might have heard of him? The one with about ten (no exaggeration) honorary doctorates? He still does not possess the professor title.

He's a Senior Lecturer. Still. I highly doubt anyone could credibly argue that he's not a law professor.

But of course, Posner had been granted tenure as an associate professor at Stanford Law School way back in 1968, and before becoming a United States Circuit Judge in 1981, he was the Lee and Brena Freeman Professor of Law at Chicago — not just a full-time faculty member, not just a tenured associate professor, not just a full professor, but a full professor with an endowed professorship. He's now "only" a Senior Lecturer because he's still a sitting circuit judge in his "day job"; voting on which visiting assistant professors and lecturers Chicago should accept next semester is presumably less important to him than voting on the cases before the Seventh Circuit.


Look, Obama has taught a few con-law classes at a very good law school. The students apparently liked him; he kept it up for several years. Nobody doubts that he's a smart guy, and he probably had the chops to have made a career as a legal academic, but he didn't go that route, and he won't, and it's entirely misleading to refer to him as a "law professor" when in fact all he ever was, was a part-time law teacher.

InstaPundit (a/k/a the very-much tenured Beauchamp Brogan Distinguished Professor of Law Glenn Harlan Reynolds at the University of Tennessee College of Law) writes: "I don't think that this dispute will swing many votes even within the legal academy," and that's probably true. I don't think this particular serial exaggeration on Obama's part is as troublesome as John Kerry's serial exaggeration of his combat record, but neither does it reflect well on the guy. He's not a completely empty suit, but neither are his credentials nearly as deep as he makes out.

For me, that simply reconfirms an assessment I came to long ago: Barack Obama is not someone I can trust.


UPDATE (Mon Mar 31 @ 8:58pm): The very-much tenured Robert W. & Irma Arthur-Bascom Professor of Law Ann Althouse was struck by the same mistake in the Clinton press release that I was (assistant professors are not tenured). Her conclusion (italics hers):

I think one ought to be careful about this. If your title was "lecturer" and you're applying for a job, you shouldn't say "I was a law professor." Even though it can be defended as not a lie, you're exaggerating and not being strictly scrupulous about the facts. And Clinton's press release didn't say this was a lie. It put it on a list of 10 "embellishments and misstatements." It's fair to say it's an embellishment.

To that, I simply add the obvious: Obama is applying for a job, albeit not for a position as a professor, but for one that requires more faith and trust in his integrity than any other job in the world. Even when Obama was only applying to the voters of Illinois for the job of junior U.S. senator from their state, he had no excuse for failing to get this exactly right on an absolutely consistent basis.

Posted by Beldar at 11:57 PM in 2008 Election, Law (2008), Obama, Politics (2008) | Permalink | Comments (18)

Thursday, March 27, 2008

Bainbridge nails it on Obama's "financial markets" speech today

Having been alerted by the MSM that Barack Obama planned a major speech from New York City today on the financial markets and his would-be Administration's plans to deal with them, I hunkered down to watch the speech with a vague thought of writing a blog post about it. I can understand why after a few minutes, the main CNN and Fox News channels cut away: there are supermodels to obsess over, after all, and car chases, and all of the other crap they use to fill 90% of their daytime broadcasting hours. To my dismay, however, not even the cable/satellite financial channels carried the whole speech. Here we have the likely nominee of the Democratic Party, who most odds-makers still peg as the likely next POTUS, announcing how he plans to address the nation's economic problems (which all of the news channels have been obsessing about, continually and hysterically if only intermittently, for months) — and none of those hundreds of channels can spare him 30 uninterrupted minutes? Sheesh, if a financial news channel can't cover that, what damned good is it?

My confident guess is that the Obama campaign's economic advisers collaborated for several weeks on this bundle of observations, criticisms, and campaign promises. But TelePrompter or not, the candidate did it due credit with his delivery, and he seemed as sincere as I've ever seen him (which could lead me into the proverbial whole nuther post, but I'll save that for another day).

Anyway, it turns out that UCLA Law Prof. Stephen Bainbridge has already written the post I wish I had, and he's done so from a position of better authority and with more erudition than I would have managed. His post is entitled "Parsing Obama’s Financial Regulation Speech," and it's exactly that — a very, very careful and detailed reading and analysis of what was, indeed, a remarkably detailed political speech. I highly recommend it — but it's too rich to meaningfully excerpt here at much length, so my recommendation is that you follow the link and read the whole thing.

I will amplify, however, on one of Prof. B's observations that I think is hugely important for voters who are concerned about the biggest of big economic pictures:

Obama also posits that:

We must develop and rigorously manage liquidity risk.

We who? Some Washington bureaucrat? Enormous amounts of real wealth have been created by innovative financial instruments and transactions. Inevitably, those transactions pose some degree of liquidity risk. Are we to cut financial entrepreneurs off at the knees?

That's just one sentence that Prof. B plucked out, but it's a prescription that Obama repeated over and over in the speech (e.g., his insistence that "at the very least, these new regulations should include liquidity and capital requirements").

That is an incredibly arrogant statement, one that completely undercuts the rote lip service to free market principles at the beginning of the speech. You can only make a case for substantive government regulation of liquidity and capital — risk and leverage — if you believe that the proposed regulators are consistently smarter than the market itself. The problem is, friends and neighbors, that no regulator is that smart, or even remotely close to it. And every time that government regulators take power upon themselves, via substantive regulation, in the conviction that they will show themselves to be smarter than the market, they inevitably screw things up worse. That is the transcendent economic lesson of the Twentieth Century, upon whose ash-heap rest the state-planned and -controlled economies of the Communists and Socialists, most prominent among them the U.S.S.R.'s.

I'm not saying Barack Obama is a wild-eyed Marxist. But he definitely shares their same basic conviction — the conviction that "I'm the smartest guy here, and I can fix all of this if you'll just give me the power." (A goody-basket of financial treats and preferences is then immediately promised in order to persuade the electorate to give him the power.) As with the rest of Barack Obama's plans and platform, when you peel away the attractive messenger and articulate delivery, the underlying policy today showed itself to be sadly typical of hard-left Democratic politicians for the last seven-plus decades: pro-regulation, anti-free market, and arrogant as hell in their certainty that they (and they alone) can "fix" your problems if you'll just put your trust, your life, your vote, and (via your vote) your wallet into their hands.

Posted by Beldar at 08:16 PM in 2008 Election, Politics (2008) | Permalink | Comments (5)

Wednesday, March 26, 2008

WaPo: Well, sure, Obama's a capital-L Liberal, but Dubya made him be that

This entire WaPo news article is unintentionally funny, mostly because of its discussion of the convergence of interests between Hillary Clinton and John McCain in portraying Barack Obama as a "Liberal." But the funniest part is in the middle, in which — per "fair and balanced Journalism 101" principles — the WaPo writers step back to examine the underlying fairness of that portrayal, and the Obama camp's response to it (emphasis mine):

The double-barreled attack has presented Democratic voters with some persistent questions about Obama: Just how liberal is he? And even if he truly is a new kind of candidate, can he avoid being pigeonholed with an old label under sustained assault?

Despite being rated the most liberal senator in 2007 by the National Journal, Obama has sought to confound easy categorization. While his record and platform mostly adhere to a left-leaning Democratic model, he has cast them as a common-sense response to the Bush administration. His ability to appeal to independents and even Republicans has been one of his main attractions for Democrats eager to retake the White House, and a cause for concern among some GOP leaders.

Got that? Well, yes, if you look at, ya know, Obama's record and platform, he's the most liberal candidate the Democrats have fallen in love with since George McGovern. But that's just a "common sense response" to Dubya. (Unstated but necessary assumption as part of this "common sense": Of course, everything bad is Dubya's fault, and Dubya's faults are so bad that they can justify anything by way of response.) Therefore, "pigeonholing" even a pigeon, or engaging in "easy categorization" of someone who (based on his record and platform) is easy to categorize, is something that Team Obama and the Anointed One are justified in seeking to confound (i.e., conceal the truth about).

Posted by Beldar at 06:29 AM in 2008 Election, Obama, Politics (2008) | Permalink | Comments (3)

Monday, March 24, 2008

Puzzling through Prof. Kmiec's endorsement of Obama

This (by Pepperdine University Law Prof. Douglas W. Kmiec, a genuine legal star in the Reagan and Bush-41 Administrations) is the least persuasive and most hang-dog endorsement (of Barack Obama) that I've ever seen. If it were written in a newspaper, I'd have suspected that it had been butchered by the editors, and that they'd mistaken the substance for the fluff and mistakenly hacked out all of the former to meet some very sharp and arbitrary word-count. But this is a self-published post on Slate.com's new legal blog, "Convictions," so Prof. Kmiec lacks that excuse. We must grade his essay as if it were his best work, or at least his work (and not some editor's mangled version).

Objectively, he gets an F. In fact, were I his professor, I wouldn't even accept this as a completed assignment. Instead I'd return it to him with instructions that his endorsement must at least either (a) offer good reasons to vote for the candidate who he's endorsing or (b) offer good reasons to vote against the opponent of the candidate who he's endorsing. Prof. Kmiec has done neither.

Of Obama, Prof. Kmiec has nothing to point to but the very vaguest of hopes. He acknowledges that on a series of vital issues that are important to him (Kmiec), Obama stands philosophically opposed. The best Prof. Kmiec can hope for, as he acknowledges, is "that on each of these questions he is not closed to understanding opposing points of view and, as best as it is humanly possible, he will respect and accommodate them." This amounts to a naïve hope that after Obama has done his dead level best to thoroughly defeat Kmiec and everyone who shares Kmiec's positions, Obama won't be gratuitously insulting.

Of his (Kmiec's) own party's nominee, John McCain, not a single substantive word is spoken. Indeed, the name "McCain" appears only at the end, as part of an acknowledgment that Obama hasn't yet said anything to justify Kmiec's (or any conservative's, or any Republican's) confidence on foreign policy and national security:

Sen. Obama needs to address this extremist movement [i.e., radical Islamic ideology] with the same clarity and honesty with which he has addressed the topic of race in America. Effective criticism of the incumbent for diverting us from this task is a good start, but it is incomplete without a forthright outline of a commitment to undertake, with international partners, the formation of a worldwide entity that will track, detain, prosecute, convict, punish, and thereby stem radical Islam's threat to civil order. I await Sen. Obama's more extended thinking upon this vital subject as he accepts the nomination of his party and engages Sen. McCain in the general campaign discussion to come.

Doug: He's against the war. He wants to pull out immediately, ASAP. He's a Hard Left MoveOn.org Democrat on this issue, and if there's a single issue that defines him as a candidate and distinguishes him from the GOP's candidate, that's exactly it! What nuance are you waiting for from Sen. Obama that suddenly is going to persuade you that he's outlined a "commitment to [defeat] radical Islam's threat to civil order"?

In fact, the only glimpse of a rationale for Prof. Kmiec's endorsement is in this passage:

Our president has involved our nation in a military engagement without sufficient justification or a clear objective. In so doing, he has incurred both tragic loss of life and extraordinary debt jeopardizing the economy and the well-being of the average American citizen. In pursuit of these fatally flawed purposes, the office of the presidency, which it was once my privilege to defend in public office formally, has been distorted beyond its constitutional assignment. Today, I do no more than raise the defense of that important office anew, but as private citizen.

Okay, as Bush Derangement Syndrome goes, that's a pretty mild case, I suppose. And it certainly is possible to be a critic of the Bush-43 Administration's overall handling of the war in Iraq (we have to guess that that's what Prof. Kmiec was referring to, but maybe he actually meant Iraq and Afghanistan) while simultaneously recognizing that America continues to face real and grave threats from its terrorist enemies — threats that demand more than lip service (of the sort that characterized Clinton-42 and would characterize Clinton-44). Indeed, the most conspicuous example on the recent and current American political scene who's taken that position is ... Sen. John McCain.

If Prof. Kmiec believes that McCain is McSame, he hasn't persuasively argued that case. If Prof. Kmiec believes McCain is materially different than Dubya, he hasn't acknowledged that, nor offered any explanation for why those differences between McCain and Bush leave him still inclined to endorse Obama (whom he practically admits is an entirely unknown and unproven quantity in this area).

Having failed to do either, the only conclusion that can be drawn from Prof. Kmiec's essay is that he's a single-issue voter — re-elect or reject George W. Bush — in an election in which that won't be one of the choices.

Prof. Kmiec writes that he expects some of his friends to "see this as a matter of party or intellectual treachery." I don't think that's likely, at least not from those who give him due credit for his past and, hopefully, future service to America. All this endorsement essay amounts to is a personal repudiation of George W. Bush, and an admission that Prof. Kmiec, like so many others, has become swept up in Obama-mania — in this context, the romantic and entirely irrational belief that because Obama is a man of "integrity, intelligence, and genuine good will," he won't govern exactly like a Democrat from the south side of Chicago.

So: Of uncharacteristically unpersuasive writing on this one occasion, Prof. Doug Kmiec so far stands convicted. (I say "so far" because I hope that he may spontaneously recant — and when and if he does, I expect better, more persuasive prose from him then!) But "traitor"? No, why would one insist on that awful label, when one can't first rule out — and indeed, there appears to be a powerful case for — temporary insanity?

Posted by Beldar at 11:35 PM in 2008 Election, McCain, Obama, Politics (2008) | Permalink | Comments (9)

Saturday, March 22, 2008

People who are too smart to find the word "arms" in the Second Amendment

I'll warn you up front: This is as harsh an assessment as I've ever written on this blog.

I know this guy has lots of credentials that are supposed to mean he's smart and well-educated.

But I've read this blog post about the pending Heller case before the Supreme Court about five times now. I cannot find in it a single sentence to confirm that the author actually does know the difference between a right directly and explicitly guaranteed in a constitution and a right created solely by legislative enactment, much less why that distinction might be important to a court. He seems to have missed the day in high school civics when the teacher explained that constitutions are supposed to be different and special.

He also writes, with a straight face:

How do we know that the Supreme Court is hypocritical?  Because it holds itself out as an impartial institution that decides the law only, but makes decisions that a twelve-year old could tie to the politics of its members — as Heller seems to make (or will make) painfully clear.

That's demonstrably false. A twelve-year-old would guess, for example, that Justice Scalia, being a good law-and-order conservative jurist appointed by a Republican, would uphold stiff criminal sentences determined by law-and-order trial judges, and that he would affirm lower courts who've "thrown the book" at flag-burners.

By the time you're a professor at the University of Chicago Law School like Eric Posner, however, it's inexcusable to fail to know that Justice Scalia has consistently voted to preserve the right to jury trial and the right to engage in political protest of the sort typified by flag-burning. If what he teaches to his students is equally shallow as what he's written for this new national legal blog run by Slate, then this man should be fired as a law professor — immediately, tenure or not, for the University would certainly have cause. This kind of political drivel disguised as legal analysis insults the integrity of the Justices of the Court (all of them, not just the conservative block), along with the intelligence of the reader (any reader, of any stripe of legal or political philosophy).

In fairness, Posner was being as monumentally and inexplicably clueless in his post as Dahlia Lithwick had already been in her post-argument Heller post upon which he purported to be commenting. Summarizing Walter Dellinger's argument in support of the District of Columbia's handgun ban — the position I'm reasonably sure she personally thinks should prevail — she wrote:

The Constitution does not create some kind of sacred, fundamental right to guns. If there's a right here at all, he says, it's at the "penumbra of the periphery" of the Constitution: in a shack behind the river where the other unenumerated rights huddle.

"The other unenumerated" rights?!? Whatever limits there may be to the constitutional right to keep and bear arms, no one who understands the meaning of the word "enumerated" can deny that this right is one (as opposed, for example, to the constitutional right to bedroom privacy, which assuredly is not enumerated anywhere in the Constitution).

Indeed, lots of us think the very fact that the right to keep and bear arms is specifically listed by name in the Constitution is pretty significant. But Lithwick writes as if it's moderately surprising that anyone has drawn the inference that the Second Amendment might even arguably relate to firearms, topside or bottom. And Posner writes as if it's utterly impossible that any members of the Supreme Court actually think the words in the Constitution count for anything, or that they might think it matters that they're in, you know, the Constitution and its Bill of Rights (as opposed to, say, in a Berkeley city ordinance).

Make no mistake: Posner and Lithwick badly want to de-legitimize judicial conservatives on the Court by equating their recognition of a personal Second Amendment right to previous acts, by liberal Justices, in "finding" constitutional rights like the "right" to an abortion. Thus can they claim that the conservatives are hypocrites, changing judicial philosophies willy-nilly to achieve their desired political results. But to make this argument track, Posner and Lithwick have to pretend that the Constitution is as silent about the right to keep and bear arms as it is about, for example, the "right" to an abortion. That's why Lithwick (falsely) suggests that Dellinger called the right to keep and bear arms an "unenumerated right," when the transcript shows that he made no such claim.

(By contrast, Dellinger himself, desiring to be treated as a serious advocate instead of a child, of course acknowledged the literal text of the Second Amendment, but (at page 27 of the transcript) tried to minimize the importance of the "keep and bear arms" language as being of secondary or tertiary importance as compared to the "well-ordered militia" language. He was emphatically not suggesting that the right to keep and bear arms was unenumerated or found only in the "penumbra" of literal language in the Constitution or Bill of Rights, like the "privacy" right "implied" by the Court out of thin air in Griswold.)

This is a level of stupidity that can only be explained by neurology, not law. It's like one of those syndromes that Oliver Sacks describes, where some sort of organic brain damage, some lesion, prevents a husband of many decades from being able to distinguish between his wife and his hat in his spoken language or even his internal mental conceptions. The notion that the Constitution's actual words might count is so contrary to Posner's and Lithwick's fundamental liberal mindsets that they go into verbal seizures, batted back to a pre-K level of understanding, just one step above drooling while chanting "Scalia ... very ... baaaad." Posner I don't know, but I can at least usually find some kernel of principled argument inside Lithwick's writings, typically buried deep under the snarky distortion that she intends to be funny, even when they swerve into the frankly dishonest. But not this time.

There are interesting arguments that can be made, and have been made, from time to time by supporters of gun control regulations. You won't find any of them in either of these two posts, however. Dahlia Lithwick and Eric Posner didn't just swing, miss, and strike out, they left their bats in the dugout and immediately wandered off from the batter's box into far, far left field, way outside the foul line and only barely still within the confines of the ballpark. I would offer a hefty wager that when this game is over, they'll still claim that it was rigged, and that their side wuz robbed. Then they'll turn, nod and gesture to their approving crowds, and bask in the roar of their righteous liberal approval.

Posted by Beldar at 01:27 AM in Law (2008), SCOTUS & federal courts | Permalink | Comments (7)

Thursday, March 20, 2008

Congrats to Mark Yudof

In the fall of 1977 and spring of 1978, Mark Yudof was my first-year section's Contracts professor at Texas Law School. I especially remember him for his very dry wit, and he was quite engaging — a raconteur of a professor, teaching with relish that most essential and transformative of first-year law school subjects.

He was famously, at least then (in those days not yet so wracked with political correctness), a cigar smoker — a habit that seemed entirely congruous with the bushy mustache he then sported. On the final day of class in the spring semester, before our final exam, the topic was to be one he'd skipped over earlier — the parol evidence rule. But by pre-agreement among a large majority of our roughly 90-person section, at precisely 10 minutes after the class began (as marked by one of those institutional wall-clocks at the front of the classroom whose minute-hands move in precise one-minute clicks), most of us pulled large cigars from our backpacks and began unwrapping them. (Indeed, most of them had been chosen solely for their size.) This was followed with conspicuous cutting, or biting off and spitting, of cigar ends, and much flaring of matches or lighters, and exaggerated puffing. In moments, a dense cloud of gray-blue smoke had enveloped the entire auditorium classroom.

Yudof, standing at the bottom of the class behind the lectern, had done a fine job of pretending to ignore the cigars for a full two or three minutes, but the volume of students' coughing and sputtering and, I think, the number of students whose complexions were trending seriously waxen-to-green, convinced him to give it up. "Okay, fine!" he declared, slamming shut his casebook. "But I can tell from here that they're very, very cheap cigars!"

That turned into the cue for most students to put their cigars out, and for the sets of double-doors at the top of both aisles to bang open. Down the steps of each aisle bumped a set of hand-dollies, which in turn carried a trashcan with a well-iced keg of Lone Star beer. "Don't think," shouted Yudof over the growing din of an early-morning party, as someone handed him the first beer, "that the parol evidence rule won't be on your exam!"

"Inadmissible!" someone shouted back, and "It'll be on the bar review course!" shouted someone else.

Mark Yudof Since then, I've had only occasional contacts with Mr. Yudof. During my second and third years of law school, he was among the faculty resources from whom I often solicited recommendations for book reviewers on behalf of the Texas Law Review, and I spoke with him briefly when he was among the academics hired to consult on the Pennzoil v. Texaco appeals in the mid-1980s. Yudof had risen to the deanship of Texas Law School for ten years, and thence to executive vice president and provost of the UT System, before spending a few years as president of the University of Minnesota in the late 1990s. He returned to become chancellor of the UT System in 2002, but he also has held the Charles Alan Wright Chair in Federal Courts at Texas Law School.

And now I read — with the pride natural, I think, to any of his many former students (because he kept up teaching law for many years in addition to his administrative duties) — that he's slated to become the president of the University of California System: "The UC regents' committee this afternoon recommended Yudof for the job overseeing the 10-campus system, which is widely considered as the nation's best collection of public research institutions." Well, I suppose that's so. But I do hope and trust that he will not take with him to California the UT Law charitable contributions mailing list!

I congratulate him, and wish him luck in his new position. He is a fine educator and scholar, one to whom I owe a long-standing debt of gratitude. I don't indulge in even the occasional cigar any more, but I will buy, and consume with due reverence, a six-pack of Lone Star long-necks to toast his success.

Posted by Beldar at 09:53 PM in Current Affairs, Law (2008), Trial Lawyer War Stories | Permalink | Comments (4)

Wednesday, March 19, 2008

Beldar's one-paragraph, one-picture reaction to Obama's speech on Rev. Wright and racism

In his speech yesterday on racial matters in Philadelphia, the supposedly "post-racial" candidate of the 21st Century revealed himself to be as fully immersed in — and therefore constrained by and a prisoner of — identity-based politics as any traditional Democratic candidate who's ever lived, breathed, and pandered. The "solutions" offered by this speech and his candidacy could equally well have been proposed by, for example, Lyndon Johnson in 1964 or Walter Mondale in 1984 or Al Gore in 2000. Throughout his candidacy, there has indeed been a youthful spring in Barack Obama's step, a hypnotic cadence in his voice, and a vigor in his shaken fist as he has continued to lead his adherents — boldly, onward and upward, to turn a new corner! The problem is, each corner Obama is leading them around is only part of an Escher Staircase, no more than an elegant illusion. The only way off of that staircase is to recognize, and conform one's beliefs and conduct and words to, the transcendent truth about race and racism in modern America: To end racial discrimination, we have to stop discriminating on the basis of race. Obama does not get that.

M.S. Escher's 'Ascending & Descending,' modified

(Original image © M.S. Escher 1960, "Ascending & Descending"; this altered version is intended only for purposes of fair-use political commentary and satire, not for commercial purposes.)

Posted by Beldar at 10:03 PM in 2008 Election, Obama, Politics (2008) | Permalink | Comments (11)

Tuesday, March 18, 2008

Review: Beldar's watching, and highly recommends, "John Adams"

As I age, I become more sentimental, and about more things. One topic of my sentimentality is American history generally, and the American Revolution and the American Civil War especially.

Thus, I identified completely last summer when reading this post by Ann Althouse, who described listening to an audio-book version of Paul Johnson's George Washington: The Founding Father while she walked through lower Manhattan. She would have been close, I think, to Fraunces Tavern, the still-standing inn where in December 1783 Washington famously bid a fond and tearful farewell to his officers of the Continental Army. She had just reached this passage in the audio-book as she was crossing Lafayette Street:

In London, George III questioned the American-born painter Benjamin West what Washington would do now he had won the war. "Oh," said West, "they say he will return to his farm." "If he does that," said the king, "he will be the greatest man in the world."

Prof. Althouse wrote that upon hearing these lines, she broke down and cried. Cynics might wonder: Why would a law professor find herself weeping in public, even while walking historic ground, even while listening to a well-written history? But what I wonder is: How could any well-educated and reasonably self-aware adult American in those circumstances not do so?

Some few months earlier, a few dozens of miles up the Hudson at Newburgh, Washington had thought to quell a potential mutiny among those officers — who were upset at rumors that the Congress would not make good its promises of pay — by reading them a letter he'd received from a Congressman detailing the young country's financial woes. A few halting sentences in, he stopped abruptly, and he reached into his pocket to remove a pair of eyeglasses.

Noting their surprise — Washington was a man who was particular about his appearance, and few of them had known that he ever wore reading glasses — he asked this of them: "Gentlemen, you will permit me to put on my spectacles? For I have not only grown gray but almost blind in the service of my country."

In that instant, the possible insurrection was over. And although I've read or heard it dozens of times, in a half-dozen Washington biographical books and movies and many other sources, I still cannot re-read that line without tearing up, for the same reasons Prof. Althouse did.


If you are similarly sentimental about our Founding Fathers, then you will need a box of tissues at hand when you watch HBO Films' and executive producer Tom Hanks' latest mini-series, "John Adams," drawn in large measure from David McCullough's fabulous 2001 bestseller of the same name. But I urge you to watch it even if you're skeptical, clear- and dry-eyed when it comes to matters historic.

Much of the book's success came from its skill in placing Adams within a detailed, vivid, and highly accessible human context among other great historic figures — especially Washington, Franklin, and Jefferson — who were, by and large, far less quirky and far easier to lionize into legends. McCullough, and now this mini-series, demonstrate how Adams, too, was an essential ingredient to that extraordinary mix of complementary, contradictory personalities and talents — often a work-horse surrounded by show-horses, a proud man aware of his own tendencies to annoy, a republican who was yet quite aware of the essential needs of strong leadership (and sometimes overfond of it). He's shown as a gentleman farmer who can relish teaching young John Quincy the utter necessity and joy of going elbow-deep while hand-mixing the contents of the manure-cart, and yet who immediately thereafter, upon hearing the boy's stated desire to become a farmer, firmly announces that it's to be the schoolbooks and "then the law" for the lad. (Some of you will see this — manure-spreading and lawyering — as entirely uncontradictory, just not in the same way Adams himself would have.)

The highlight of the first installment was Adams' 1770 defense of the British soldiers accused of murder in the Boston Massacre — a historical episode dear to all, and especially all lawyers, who (like Adams) believe that the rights to effective assistance of counsel and trial by jury are essential components of the Rule of Law. What blogging lawyer can fail to thrill as Adams leans into the jury box to argue: "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." We can perhaps forgive, despite the stubbornness of facts, the artistic license through which the mini-series ignores that two of Adams' eight clients (those who'd admittedly fired directly into the crowd) were not (as depicted here) acquitted, but convicted by the jury of the lesser charge of manslaughter. Defending them was still a bold undertaking, and a largely successful one.

Even only one-quarter through, this mini-series has already proven itself sufficiently exceptional that I've decided to buy the Blu-Ray high-def DVD in due course to add to my small and carefully selected video library. Just now, my TiVo is paused — from the moment when I was inspired to write this post — at a visually arresting image in Episode 2. It's during a July 1776 thunderstorm in Philadelphia, and it features a soberly gray- and brown-clad Adams and Franklin, immersed in earnest and fateful conversation, while seated on a bench in a gray hallway, beneath a long hat-rack upon which seven black, gray, and brown tri-cornered hats have been hung (equally spaced but randomly rotated) to drip dry.

Be assured that in addition to a compelling and true tale to tell, the mini-series offers superb historical production values (think "Saving Private Ryan, albeit thus far less bloody) and terrific, often-surprising acting. I had high expectations for Paul Giamatti in the title role and Laura Linney as the incomparable Abigail — like McCullough's book, this series is secondarily but not incidentally a great, true American love story — but I've been surprised and greatly tickled so far by understated yet compelling performances by David Morse as Washington and, especially, Stephen Dillane as Jefferson.

Highly recommended.

Posted by Beldar at 07:41 AM in Books, Film/TV/Stage | Permalink | Comments (7)

Monday, March 17, 2008

Happy St. Pat's

Short and sweet:

I extend to each of you my favorite Irish toast:  "May misfortune follow you each and every day, for all the rest of the days of your life — and may it never, ever catch up!"

Posted by Beldar at 06:12 PM in Current Affairs | Permalink | Comments (0)

Durbin: "To hold Sen. Obama accountable for speeches and sermons that were given before he joined the church is fundamentally unfair"

At least the lightbulb of the junior senator from Illinois shines much more brightly than that of the senior senator from Illinois, who seems to have missed the fact that the junior senator joined the Trinity United Church of Christ in 1988, and that even when he was away in law school (1988-1991), Sen. Obama listened to tapes of Rev. Wright's sermons.

Posted by Beldar at 05:44 PM in 2008 Election, Obama, Politics (2008) | Permalink | Comments (2)

DKos announces preemptive civil war against Hillary and Clintonistas; no time to wait for U.N. mandate

The history, the logic, and the facts lead to one conclusion: Hillary Clinton's campaign is a grave and gathering danger. To suggest otherwise is to hope against the evidence. To assume this campaign's good faith is to bet the lives of millions and the peace of the world in a reckless gamble. And this is a risk we must not take.

DKos will be deliberate, yet time is not on our side. I will not wait on events, while dangers gather. I will not stand by, as peril draws closer and closer. DKos will not permit the world's most dangerous politician to threaten us with the world's most dangerous politics.

Our war on Hillary is well begun, but it is only begun.  This campaign may not be finished on our watch — yet it must be and it will be waged on our watch.

We can't stop short.  If we stop now — leaving Hillary and her supporters unchecked — our sense of security would be false and temporary.  History has called DKos and our netroot allies to action, and it is both our responsibility and our privilege to fight freedom's fight.

— From Markos Moulitsas ("Screw Them") Zúniga's DKos post today entitled The Clinton Civil War. (H/t  Allahpundit on Hot Air.)


UPDATE (Mon Mar 17 @ 5:06pm): Ah, well, dang, it appears that due to an editing error, most of that block quotation above was actually copied from these two sources. Sorry for the confusion, Kos. But you did write (bold-face mine, italics by Kos):

It is Clinton, with no reasonable chance of victory, who is fomenting civil war in order to overturn the will of the Democratic electorate. As such, as far as I'm concerned, she doesn't deserve "fairness" on this site. All sexist attacks will be dealt with — those will never be acceptable. But otherwise, Clinton has set an inevitably divisive course and must be dealt with appropriately....

Meanwhile, Clinton and her shrinking band of paranoid holdouts wail and scream about all those evil people who have "turned" on Clinton and are no longer "honest power brokers" or "respectable voices" or whatnot, wearing blinders to reality, talking about silly little "strikes" when in reality, Clinton is planning a far more drastic, destructive and dehabilitating civil war.

People like me have two choices — look the other way while Clinton attempts to ignite her civil war, or fight back now, before we cross that dangerous line....

So file my first quotes away in the "fake but accurate" files.

Posted by Beldar at 05:05 PM in 2008 Election, Humor, Politics (2008) | Permalink | Comments (3)

Most frighteningly plausible fantasy I've read this month

On the Balkinization blog, Michael Stokes Paulsen posts the Opinion of the Court (written by Mr. Justice Kennedy, and joined by Justices Souter, Ginsburg, Breyer, and Clinton) in Spitzer v. United States. (H/t InstaPundit.)

The largest flight of fantasy is that the underlying conviction is for solicitation of prostitution, which, of course, is not ordinarily a federal crime. But perhaps that was what indeed was charged, with the United States as prosecution and now appearing as the respondent on appeal because the solicitation case was filed under District of Columbia Code § 22-2701 (and not in the New York state courts under New York State's laws against prostitution). Under this scenario, Spitzer was never charged with, or perhaps pleaded out to, a separate federal financial crime (e.g., structuring) or morals crime (e.g., Mann Act) in the federal courts for the Southern District of New York.

Even the list of Justices in the majority is chillingly plausible — and under more than one scenario. Obviously, "Justice Clinton" has been the successor to Mr. Justice Stevens. But is that "Mr. Justice Clinton," or "Madam Justice Clinton"? It could be the latter if President Obama was making good on the "Great Denver Convention Compromise of 2008," whereby the Clintons were promised his first (or perhaps first two?) SCOTUS appointments in exchange for Hillary releasing her delegates. Or it could be the former if President Clinton wanted to find some way to get Bill the hell out of 1600 Pennsylvania at least a few hours every week — and who knew he and Justice Scalia would become such card-playing buddies? Either Clinton would be a historic nomination, marking either the first Justice who'd failed the District of Columbia Bar Exam, or else the first Justice whose state law license had been suspended and who'd consequently resigned (under pressure of impending permanent disbarment) from the bar of the SCOTUS itself. Notwithstanding those disabilities, either could surely expect confirmation votes from every Democratic senator.

The single best and most terrifying sentence in the opinion is this one: "There is no persuasive basis for distinguishing the Lawrence Liberty here." Those of us who are critics of Lawrence v. Texas, and of the purported constitutional theory of "substantive due process" (an oxymoron) upon which it is founded, believe that precisely this same sentence could be used in comparable opinions justifying constitutional "rights" to damn near anything, so long as Justice Kennedy can be persuaded on any given day that it's part of the "sweet mystery of life."

Posted by Beldar at 03:16 PM in 2008 Election, Law (2008), Politics (2008), SCOTUS & federal courts | Permalink | Comments (4)

Saturday, March 15, 2008

Why I'm unpersuaded by Obama's disavowal of Rev. Wright's political polemics from the pulpit


   Q   Mr. President, I want to, before I go into a new subject area, briefly go over something you were talking about with Mr. Bittman.

   The statement of your attorney, Mr. Bennett, at the Paula Jones deposition, "Counsel is fully aware" — it's page 54, line 5 — "Counsel is fully aware that Ms. Lewinsky has filed, has an affidavit which they are in possession of saying there is absolutely no sex of any kind in any manner, shape or form, with President Clinton."

   That statement is made by your attorney in front of Judge Susan Webber Wright, correct?

   A   That's correct.

   Q   That statement is a completely false statement. Whether or not Mr. Bennett knew of your relationship with Ms. Lewinsky, the statement that there was "no sex of any kind in any manner, shape or form, with President Clinton," was an utterly false statement. Is that correct?

   A   It depends on what the meaning of the word "is" is. If the — if he — if "is" means is and never has been, that is not — that is one thing. If it means there is none, that was a completely true statement....

(From the Sworn Grand Jury Testimony of President William Jefferson Clinton on Monday, August 17, 1998, at pp. 57-58; emphasis mine.)

They teach you how to parse words at Texas Law School, where I went. They teach you how to parse words at Yale Law School, where Bill & Hillary Clinton went. And they teach you how to parse words at Harvard Law School, where Barack & Michelle Obama went.

The law schools at Harvard and Yale certainly cost more than I paid at Texas; maybe they teach you how to parse words better up there, I dunno. But there's one kind of word parsing used to obscure, and another type that's used to reveal, and my goal in this post is to do the latter because I think Barack Obama is engaged in the former.


I regret that this may give offense to the lawyers who questioned Bill Clinton before the grand jury, or in his original deposition in the underlying (heh! bad pun!) deposition in the Paula Jones sexual harassment case. But I remember thinking the first time I read that testimony, and as I watched Clinton's videotape from his grand jury testimony, that he was just running rings around them. Oh, what I'd have given for the chance to be among his inquisitors!

Of course the fact that he was running rings around them rather than giving them straight answers was, to many Americans, even more conclusive proof that Bill Clinton had much to hide, that he had lied, and that he was still lying, and that he will lie until the day he dies. But trust me: If there's ever a book published called "Great Moments in the Cross-Examination of Sitting Presidents," this exchange — the "it depends on what the meaning of 'is' is" exchange — will either be left out altogether, or else listed as a witness victory. Bill Clinton got away with the "meaning of "is" is" answer for lack of effective follow-up: there was none even attempted. And that, friends and neighbors, was not only a damned shame for the United States of America, but a damned shame for everyone who relishes a really good cross-examination and hates to see an important one blown.


Comes now, almost ten years later, would-be President Barack Obama, enveloped in a much smaller scandal, but one that certainly threatens to do him real and lasting political harm. His pastor's words, and his own words about his pastor's words, and the sincerity of his words about his pastor's words, are all at issue.

Rev. Jeremiah Wright The question is this: Is Barack Obama playing the American public for chumps, the same way Bill Clinton played these prosecutors? Is he parsing, playing word games, and — like Bill Clinton — telling what he believes to be literal truths, even though they're inconsistent with and being used to hide the whole truths?

Barack Obama's video statement today about his pastor, Rev. Jeremiah Wright, was crafted to sound unequivocal and direct. Here are all of the sentences of overt disavowal (taken from the published text version; emphasis mine):

Let me say at the outset that I vehemently disagree and strongly condemn the statements that have been the subject of this controversy. I categorically denounce any statement that disparages our great country or serves to divide us from our allies. I also believe that words that degrade individuals have no place in our public dialogue, whether it's on the campaign stump or in the pulpit. In sum, I reject outright the statements by Rev. Wright that are at issue.


The statements that Rev. Wright made that are the cause of this controversy were not statements I personally heard him preach while I sat in the pews of Trinity or heard him utter in private conversation. When these statements first came to my attention, it was at the beginning of my presidential campaign. I made it clear at the time that I strongly condemned his comments....

Let me repeat what I've said earlier. All of the statements that have been the subject of controversy are ones that I vehemently condemn. They in no way reflect my attitudes and directly contradict my profound love for this country.

Wow, that's stronger than train smoke! He vehemently disagrees, and strongly condemns; he categorically denounces and rejects outright. Then he gets vehement again, not just to disagree, but to condemn!

To which my response is:

Uh, Senator, that's great and all, and I want to be the first to give you an "Amen!" for your passion, but ... Would you tell us, please, exactly which statements you're talking about?

You see, we already have a definitional problem. We have a definitional problem, Senator, because you are already on record as saying: "I don't think my church is actually particularly controversial."

So what the heck do you mean when we ask, "Which statements do you condemn?" and you only reply, "The controversial ones!"

Do we have a controversy about the meaning of "controversial," Senator?


Surely there's a decently trained journalist out there who can pin Obama down on this — if not with the skill of a trained cross-examiner, then with at least the skill of, well, a decently trained journalist. And the way to do it is through what good trial lawyers refer to as the "hammer and tongs" method. You take your tongs, and you squeeze really tight to make sure the target doesn't slip away, and then you pound the hell out of it until it's flat. Then you re-heat it, turn it sideways, grab it tight in your tongs again, and start swinging the hammer again. When you're done, you know the mettle of what you've got.

(Good word that, "mettle," meaning "inherent quality of character and temperament," and frequently mistaken for "metal" in this context, which is close but gets you no cigar. Ah — damn, that makes me think of Bill Clinton again.)

It may well be, for example, that Sen. Obama strongly, categorically, and vehemently condemns and rejects outright the notion that HIV/AIDS is a CIA-spread disease meant particularly to afflict blacks. Okay, then. That's one statement down, and about four dozen left to examine.

Does Sen. Obama think God should damn America for "killing innocent people"? That probably is going to deserve some follow-up questions, because there's no doubt that America has killed innocent people, and there may be instances in which the Senator would find those killings to be culpable. So, Senator, tell us which ones, and why those are culpable, but others may not be, or may be less so.

Does Sen. Obama think God should damn America for for "treating our citizens as less than human"? No? Well, that, too is going to need some follow-up, because I'm very sure that Sen. Obama would agree that at least at some times, some elements of America, including various levels of its governmental authorities, have treated our own citizens as "less than human" — so let's get specific. And let's distinguish between past and present. Slavery, Jim Crow laws, those are givens. But how about events from his own life: Has he ever been treated as less than human by America? Have his wife or children?

Does Sen. Obama think God should damn America "for as long as she acts like she is God and she is supreme"? Whether God ought to damn America for it or not, would Sen. Obama care to give us some very specific examples of that?

Are those killed in Hiroshima and Nagasaki comparable to those killed on 9/11? Or is American culpability for their deaths comparable? Why, or why not?

Are three-strike laws racist in intent? In effect? How about building bigger prisons — has that been done with racist intentions? On whose part, exactly? The prison administrators? The state legislators? The voters who vote in favor of the bond elections? The jurors who've convicted all those prisoners? Or just the jurors who've convicted those black prisoners? Or just the white jurors who've convicted those black prisoners?


In fact, I'm certain that at some point, we can find political statements from Rev. Wright which you and I might consider "controversial" that Sen. Obama does not find controversial, and doesn't intend to condemn. Heck, a huge amount of what passes for orthodoxy in the Democratic Party — e.g., "Universal health care is a basic human right!" — I consider to be "controversial," and I'd bet the ranch that Sen. Obama doesn't condemn that kind of statement.

He hasn't condemned, and won't condemn, the man. But because Sen. Obama has now been passionate — while remaining oh-so-vague, ever-so-vague, about what he's actually condemning from among all the hodgepodge recent quotes from Rev. Wright — we actually have no clear idea where Sen. Obama draws the line between "controversial" and "non-controversial."

I don't have a problem, frankly, with the Obama family refusing to switch churches. I have a big problem, though, with Obama using clever rhetoric to match Bill Clinton for slipperiness in trying to dodge and defuse a political crisis. In fact, judging just by the events of this campaign season, it's clear to me that the pupil could teach the master a few parsing tricks.

Posted by Beldar at 11:18 PM in 2008 Election, Law (2008), Obama, Politics (2008) | Permalink | Comments (9)

Friday, March 14, 2008

Lies about "the George W. Bush Recession™ of 2008" are well underway

The headline reads: "Most Economists Say Recession Has Arrived as Outlook Darkens." The breathless, unequivocal text at the beginning of the article is unrelentingly foreboding in tone:

The U.S. has finally slid into recession, according to the majority of economists in the latest Wall Street Journal economic-forecasting survey, a view that was reinforced by new data showing a sharp drop in retail sales last month.

"The evidence is now beyond a reasonable doubt," said Scott Anderson of Wells Fargo & Co., who was among the 71% of 51 respondents to say that the economy is now in a recession.

These people are lying to you.

The word "recession" has a very, very specific meaning in classical economics. In fact, this same article admits that (emphasis mine), just before it starts to lie:  "Although the classic definition of recession is two consecutive quarters of declines in the gross domestic product ...." If these people were being candid, they would complete this sentence by saying, "... but in this article we're using that same word, 'recession,' to mean something different, something poorly defined, something vague, and something ominous, all because it suits our purposes better and we don't mind being liars."

Here's the absolutely, positively, official and unequivocal latest information on the United States gross domestic product from the United States Department of Commerce, in an official press release dated February 28, 2008, a mere two weeks ago:

Real gross domestic product — the output of goods and services produced by labor and property located in the United States — increased at an annual rate of 0.6 percent in the fourth quarter of 2007, according to preliminary estimates released by the Bureau of Economic Analysis.  In the third quarter, real GDP increased 4.9 percent.

There is your proof. It is definitive, and it is simple, and because it is definitional in nature, it is not subject to doubt, reasonable or otherwise. Based on the most current information now available, the United States is not now in a recession. At worst, if it turns out that there is a decrease in GDP for the first quarter of 2008 (which has not yet ended, much less been definitively measured), and it then turns out that there is also a decrease in GDP for the second quarter of 2008 (which has not yet even begun), then we will be in a recession.

Short of that, you can talk about "down-turns," or you can talk about "not meeting expectations." But if you use the word "recession" to mean something other than two consecutive quarters of declines in the gross national product, you're misusing that word, and you're a liar.

So why lie? To what people and in what contexts does the word "recession" have significance? Why, in other words, could these economists and their publicists want to mislead you about this word? Why do they mislead you into believing that "recessions" are determined by "economic-forecasting surveys" instead of GDP data?

That's also dirt simple: The word "recession" has come to have cosmic significance to voters in election season. The people who are lying to about whether we're already "in a recession" are trying to ensure that a Democrat is elected in November.

To do that, they require that there be not just "the Recession of 2008," but "the George W. Bush™ Recession of 2008." To do that, they require that you look not at GDP, which is relatively objective and definite, but at surveys and poll results that they can spin into whatever they like. "Hey, 71% of 51 respondents! Wow, that's beyond a reasonable doubt!" they tell you. That sounds plausible, if you don't know any better.

They're relying on the fact that many voters don't know any better.

And if you doubt that, you're just the kind of sucker they've been looking for, and they've got you fooled. But your intelligence is definitely in a recession.


UPDATE (Sat Mar 15 @ 1:40pm): Thanks for the many interesting comments so far, and to DRJ for the link from Patterico's, where there are also many interesting comments. Let me add something to my original thinking, though, for those of you who are having a hard time deciding whether these economists are merely being loose in their terminology, or are actively lying.

We know beyond any doubt whatsoever that the quarterly GDP for the most recent quarter on which we have that information, the fourth quarter of 2007, showed a growth in GDP. It was a small growth, but it was in fact a grown that surprised, and contradicted the previous predictions of, many of these exact same economists, who during the fourth quarter of 2007 were already predicting that the mortgage crunch in particular would be seen to have put us into a recession beginning in that quarter. So:

(a) If economists or those writing about the economy want to make an unequivocally truthful statement, one that involves no guesswork — and thereby to avoid deception through significant and material omissions of crucial context — shouldn't they point out that as of year-end 2007, the United States economy was, by definition, definitely not in a recession?

(b) Wouldn't it also be more honest — I would argue, minimally necessary to be honest at all — to further admit that any statements they make about whether we're in a recession now are based on guesswork and predictions, because (again by definition) whether we're in a recession now cannot be determined until we at least have the second quarter 2008 GDP numbers? Finally:

(c) If you agree with me that facts (a) and (b) would be useful to include in a fair discussion of our current economy and our prospects, can you possibly deny that omitting those facts favors those who are highly motivated — for reasons of partisan politics, i.e., to defeat Republican office-holders and candidates —  to portray the economy in very bleak terms by using that second-bleakest (after "depression") economic word?

Posted by Beldar at 05:46 PM in 2008 Election, Current Affairs, Politics (2008) | Permalink | Comments (20)

With "friends" like this on his defense team, no wonder Spitzer continues to be delusional

Today's New York Times reports that "[f]ederal prosecutors are investigating whether Gov. Eliot Spitzer used campaign funds in connection with his meetings with prostitutes, including payments for hotels or ground transportation."

The story is moderately interesting, if not surprising, insofar as it reports the basis for the feds' interest. But what I did find very surprising is the leaking about the case — some of which seems to be coming from the feds, but at least some of which is obviously being done by the Spitzer legal team or someone on their side — and in a bush-league way that also recklessly jeopardizes their ability to preserve attorney-client privilege for their most private conversations with their client!


It starts off pretty mildly, with this paragraph:

[Paul Weiss partner, Spitzer classmate, and defense attorney Michele] Hirshman spent several hours at the United States attorney’s office in Manhattan on Tuesday listening to evidence that prosecutors had amassed during their six-month inquiry. Ms. Hirshman, who was Mr. Spitzer’s deputy in the attorney general’s office, has also worked in the United States attorney’s office for the Southern District of New York. While in that office, her posts included service as the chief of the Public Corruption Unit.

"Hmm," I thought on reading that. "That must have been an interesting session." Most likely it was in the nature of an extreme professional courtesy — a constructive display of respect by current prosecutors for a former prosecutor, and a good example of the kind of "small world, isn't it?" personality lubricant that can indeed cause the wheels of justice to turn more smoothly, in the interests of both the public and the defendant. If the feds, to use a crude trial lawyer colloquialism, already have Spitzer "by the short hairs," then laying out their case to his lawyer (who, from that career history, one would expect to have the chops to evaluate that presentation appropriately) would certainly be likely to induce cooperation from his team. Compromises — be they plea bargains or be they shorter-term events like resignations — are more likely when most of the cards are on the table and each side can evaluate the strengths and weaknesses of its own case and its opponent's. In fact, there's a whole nuther NYT story today about just how use to Spitzer's defense the credibility of Ms. Ms. Hirshman may be.

These details struck me as something likely leaked by the prosecutors. It probably was intended to help explain, inferentially, the significance of Spitzer's resignation on Wednesday, and the U.S. Attorney's press release shortly thereafter confirming that there had been no deal reached — notwithstanding someone in the Spitzer camp's ridiculous bluster to the Wall Street Journal on Tuesday afternoon or evening to the effect that Spitzer was insisting upon an assurance that no charges would be filed in exchange for resigning.


But then the next paragraph in the NYT story is something that has to have come from the Spitzer camp, and it leaves me smacking palm to forehead and saying, "What can they possibly be thinking?"

A person with knowledge of [Hirshman's] meeting with Mr. Spitzer on Tuesday said that she had asked him whether he had ever used public money, or campaign money, in any visits with escorts, and that he said he had not.

Hello? Reckless waiver of attorney-client privilege, anyone? Either the NYT reporters completely fabricated this only partially attributed statement — which, despite all their bias and screw-ups from time to time, is not the sort of stunt NYT reporters typically pull — or someone who was high up enough to be in the room and listening to Spitzer's privileged discussions with Hirshman has just deliberately disclosed, directly or through an intermediary, the substance of their key communications to the entire world.

I don't care if he or she is a high-powered top-credentialed white collar criminal defense lawyer from a top-flight New York law firm, or a Harvard law grad who once practiced mergers and acquisitions law at another top-flight New York law firm (before going mommy/foundation/First Lady-track), or who else it might have been who was in that room who then became the source of this leak. Only a complete and utter fool of a lawyer would deliberately waive attorney-client privilege on this conversation, and then place in the hands of newspaper reporters the responsibility for keeping the prosecution from demonstrating and exploiting that waiver. Oh yeah, your Judith Miller-types may be willing to spend a few weeks in jail to protect the identities and details of their "confidential sources." And there are ways to leak more obliquely, to make the same point without purporting to disclose the exact substance of the privileged conversation directly from the defendant's own mouth. But as a criminal defense lawyer, or even just someone with access to the inside details of the criminal defense team, when it's your client's potential freedom or incarceration at risk, you cannot ethically — or even sanely — put your entire trust on someone like newspaper reporters who are outside your control!

If push comes to shove, if the feds decide they'd like to cross-examine, say, Ms. Hirshman on every other detail of that particular no-longer-privileged conversation with her client Eliot Spitzer, and to seize, examine, and photocopy her notes from it, then this news leak gets them at least half-way home in establishing a deliberate waiver, such that they could thereafter, for example, subpoena Ms. Hirshman to appear before a grand jury to compel her testimony and production of documents there. (And because the pending case was originally filed as a complaint against the call-girl ringleaders, not an indictment against either them or Spitzer, there's still a very good chance that a grand jury either is or will be gathering evidence.)

In fact, I doubt the feds will pursue that path. To thoroughly prove up the waiver, the feds would need to negate the possibility that the NYT reporters made this up, and probably to get the reporters to identify their source and repeat under oath what the source told them. But forcing the reporters to identify their confidential source and to testify about what he told them would require the feds to first jump through a huge set of hoops under DoJ regs that approximate state shield laws protecting this "reporter's confidential source privilege." They'd essentially have to show that the testimony they're seeking is essential and that there's no other way to get it, which is a deliberately hard showing to make. And frankly, it doesn't sound like they need a windfall from a blown privilege to continue staying eleven steps ahead of their opponents.

But this game by someone on the defense team, or maybe by the defendant himself — leaking to set up a news report that "We at the NYT have it on good authority from our confidential source on the defense team that the defendant has sworn up and down to his own lawyers that he's innocent" — is just reckless in the extreme. Reckless in the same way as ... Oh, gosh, let me struggle to find an apt comparison. How about: As reckless as a married, father-of-three, large-state governor pleading for the opportunity to have unprotected sex with someone he knows to be a prostitute?


But wait, there's more!

A person close to Mr. Spitzer said that prosecutors told Ms. Hirshman this week that they would be more inclined to pursue a criminal case against Mr. Spitzer if he remained governor because of the violation of public trust.

"The message was, 'We’d be less inclined to press a case if he’s just a private citizen,'" a friend of Mr. Spitzer's said in a telephone interview Wednesday night....

A friend of Mr. Spitzer’s, who spoke on condition of anonymity, reacted with fury at the news that prosecutors appeared to be widening their inquiry to include money spent on campaign trips that may have involved trysts with prostitutes.

"At some point, this becomes piling on," the friend said. The friend said that he would be stunned if "a judge or jury would convict a man for something like this. It's very low grade," adding, "Why would prosecutors pursue this?"

Are you following this? Spitzer camp leaks on Tuesday night to the WSJ that "He won't resign unless the feds agree there will be no charges." In the meantime the feds are showing Hirshman at least some, maybe a lot, of their hole cards. The Spitzer camp promptly capitulates on Wednesday morning, and he resigns without a deal. And then that night and the very next day, the Spitzer camp is repeatedly waiving attorney-client privilege while kvetching about how the prosecutors are being big meanies for "piling on"!?! Didn't they hear him say at his press conference that he's already begun to "atone" for his "private failings"? Why, how dare the feds continue to investigate whether Spitzer was stealing from his campaign treasury or his gubernatorial expense accounts to finance his whore-mongering! Piffle! What judge or jury could care about that?


Spitzer's own history as Attorney General was, of course, filled with selective and highly incriminating leaks of supposed "facts" that often amounted to no more than unproved, unprovable innuendo. And more often than not, even though nominally directed at large corporations or business interests, it was intensely personal — the criminal politics of personal destruction, one might say, designed to humiliate and then force highly symbolic corporate leaders, typically CEOs, from their positions. I suppose if that's your framework for thinking about "justice," then you might project that onto other, more legitimate prosecutors. "They've got my scalp," Spitzer (and wife? certainly someone else on his team) may be thinking, "Isn't it time for them to move on to their next target and their next press conference now? Whazamatter with these guys, don't they want to run for governor some day?"

My hunch is that there's an extreme amount of cognitive dissonance right now somewhere in the Spitzer team. My hunch is that the prosecutors' real attitude on the whole resignation issue was very much like how federal prosecutor WLS, commenting from the other side of the country at Patterico's this week, described what his own reaction would be to a demand by Spitzer that all charges be dropped in exchange for his resignation:

I'm sure the events of yesterday [i.e., Tuesday] were filled with efforts by his attorneys to get a deal, but what motivation is there for the feds to bargain with him about something that 1) they have no interest in and 2) he can’t hold onto anyway?

My response would have been "Your future as the governor of NY is between you and the voters of NY. Act as you think you must."

As for his future as a defendant, I’d have told him the offer is "Three level reduction and recommendation for bottom of the guidelines — just like everyone else — or I’ll see you in court."

He likely went behind closed doors and his former AUSA defense attorney told him "You’re screwed."

But if so, whoever's doing the current leaking and whining to the NYT nevertheless apparently chose to hear "You're screwed!" instead as: "They say they're thinking about cutting you some slack, Eliot, if you'll go ahead and resign without a deal." And now, in a high-society, candy-assed sort of way, Team Spitzer is feeling cheated, betrayed, very unfairly put upon, and highly miffed by this "very low grade" conduct of the prosecutors. (I'm sorry, I know calling someone "candy-assed" is crude, but I just can't think of any other adequate term to describe the kind of lawyers who'd whine that way themselves, or who would permit (ahem) "a friend" to do so on behalf of the team.)


So my question for today is this: Given that Eliot Spitzer is obviously delusional himself, does anyone on his team have a grip on reality? Do they understand the difference between (a) federal court criminal proceedings, (b) Upper East Side cocktail party conversation, and (c) kindergarten?

What's next — a Larry Craig-type "Well I said I was going to resign on this coming Monday, but now it's Monday and I'm not really going to resign, and nyah-nyah, you can't make me"?

Posted by Beldar at 05:18 AM in Law (2008), Politics (2008) | Permalink | Comments (4)

Wednesday, March 12, 2008

Spitzer's very guilty, but exactly of how much is still unclear

If you read this morning's Wall Street Journal, you'd come away with the impression that Eliot Spitzer spent a mere $19k on high-dollar hookers to get himself into his current troubles. Turn instead to the New York Post, and you'll see allegations that he blew at least $80k on a habit that went back 10 years.

These claims are not necessarily inconsistent. No one news source seems to have anything remotely approaching a comprehensive list of dates, transaction types, and amounts yet. And although I think so far most of my early hunches as this story broke have held up pretty well, some of my early assumptions from the affidavit attached to the feds' federal complaint against the Emperors Club call-girl ringleaders as to the specifics of Spitzer's attempts to avoid triggering the Treasury Department financial reporting regulations may have been wrong: That affidavit apparently focuses only on later transactions that Spitzer conducted in cash, whereas newer press reports suggest that it was actually Spizter's splitting of more than $10k in wire transfer payments into three smaller pieces that got him onto the feds' radar screens, and that are the likely basis for the possibility that Spitzer may be charged with "structuring" in a deliberate (and boneheaded, and hugely unsuccessful) attempt to avoid triggering those regulations.

Without more specifics, I don't think I or any other legal pundit can give any confident opinion right now about how the potential financial crime charges would play out in court. I will note, however, that if they were obviously bogus, Spitzer's extremely capable criminal defense lawyers would have told him over the weekend that they ought to fight, and his Monday press conference would have included a vow not to resign. Instead, Spitzer's lawyers are negotiating, while trying to do some counter-spin for public relations purposes in the meantime (which is how I read the WSJ article).

The Wall Street Journal story, though, suggests a breath-taking degree of arrogance on the part of Spitzer and his lawyers in their on-going negotiations about a possible plea deal:

Mr. Spitzer won't resign until he reaches an agreement with the government not to pursue charges, say those familiar with his legal team's thinking.

Any legal case could be significant for Mr. Spitzer's future. Whether or not he remains in politics, the 48-year-old Mr. Spitzer likely would lose his license to practice law if convicted of a felony.

This is definitely Through-the-Looking-Glass logic. Spitzer's liberal defenders, always eager to assume that any federal prosecution of a Democrat is a purely political act by the evil BusHitler Justice Department, are saying that the point of all this is to drive a rising-star Democrat out of office. Yet going out of office voluntarily is the sole penalty that Spitzer's lawyers seem willing for their client to pay!

This paragraph from the WSJ report simply made my jaw drop:

[Lead Spitzer defense counsel Michele] Hirshman — a former assistant U.S. attorney in Manhattan — also argued that if federal prosecutors brought charges against Mr. Spitzer, they would be required to similarly charge the nine other unnamed clients in a federal complaint unsealed last Thursday, to avoid what's known in legal circles as "selective prosecution." None of the other nine unnamed clients have been charged in the case.

Let me be unequivocal: Michele Hirshman or anyone who argues with a straight face that the feds' failure to prosecute Clients-1 to -8 and -10 is "selective prosecution" is either an idiot or a partisan hack who is deliberately trying to deceive and mislead you. If this is the best argument she's got, then Spitzer is indeed in a world of trouble. There has been no suggestion whatsoever that Clients-1 to -8 or -10 committed any federal offense — neither a federal financial crime (like structuring), nor a federal vice crime (like crossing interstate borders to promote prostitution). As far as anyone has shown so far, they're neither public officials who've volunteered to be held to a higher standard of conduct (much less former state vice prosecutors), nor anything else but "common johns." Whatever else Eliot Spitzer is now and has been for the last several years, he's not a "common john," and it was not being a "common john" that got him into all this.

Similarly, beware anyone who tries to sell you on the notion that this is a partisan investigation or potential prosecution. Yes, it's entirely true that the reason the Suspicious Activity Reports about Spitzer's financial maneuvering came to the particular attention of the feds was because he is a public official. That is a good thing: We want our law enforcers to be particularly on the lookout for public corruption. Do not let someone bamboozle you into taking the next step, though, which is to assume that the feds only look for Democrats who are guilty of public corruption. Nothing about this case yet can possibly support that premise, but without a shred of evidence it's already being peddled by hyper-partisans in the blogosphere.

The Wall Street Journal article suggests, for the first time among any of the news reports I've read, that the feds have also now explicitly threatened Spitzer with prosecution for non-financial crimes — perhaps under the Mann Act, perhaps under the Travel Act, perhaps wire or mail fraud. It is entirely correct to observe that the feds, in recent decades, have not generally prosecuted mere customers of interstate or international prostitution rings for those crimes. Rather, they've generally used those crimes to go after criminals who are in the business of, and profiting from, those interstate or international prostitution rings — just as they've already used them as the legal basis to bring the complaint against the Emperors Club ringleaders.

But the feds obviously think they've got a strong case from which they can prove at least one instance of "structuring." That was evidence left in their laps after they'd exonerated Spitzer of their original suspicions, i.e., that all these suspicious payments might be connected to bribery or blackmail or the like. If Spitzer is defiant — if he insists not only on getting no real meaningful judicial punishment, but on not even being charged with anything, all despite clear evidence (at least as the federal prosecutors view it) that he committed a federal financial crime in his desire to conceal and cover up his tawdry violations of state vice laws — then it's altogether expected and proper that the feds would react by piling on additional charges that are within their charging discretion. When the defendant is being defiant and petulant, it's not "prosecutorial abuse" or "selective prosecution" for the government to seek to throw the biggest book at the guy which is reasonably close to hand. And if that means Eliot Spitzer doesn't "catch all the breaks" that the feds generally extend to other whore-mongers who transport themselves and their paid sex companions across state lines in the pursuit of their habits, then that's his fault, not theirs.

(I say "tawdry" state-law vice crimes, but among the extreme ironies here is that Spitzer was viewed as an active co-participant in efforts within New York State to crack down on customers of the sex industry, and last year he signed into law a bill that increased "the penalty for patronizing a prostitute, a misdemeanor, to up to a year in jail, from a maximum of three months.")

And if Spitzer and his lawyers think it's only felony convictions that threaten his law license, they need to think again. Other crimes of moral turpitude can certainly do that. Maintaining a multi-thousand dollar account balance with an international prostitution ring, whether that's resulted in a felony conviction pursuant to a plea bargain or not, is likely to draw the attention of the New York bar officials.

Spitzer made his career in large measure by being a bully. He routinely used his power as a state attorney general — including highly skilled manipulation of the press — in an attempt to shame and overwhelm corporate CEOs into rapid capitulations, counting on their unwillingness to actually force him to prove his charges in court. Count me as one observer who is hoping that Spitzer's propensity for bullying torpedoes his plea negotiations, and that as a result, he refuses to resign, and he goes "all in" and calls the feds' bet. The history of those who've called such bets, thinking that the feds were really just bluffing, is not a pretty one.

Moreover: If the press reports are correct and it's actually Spitzer's wife who's urging him not to resign, then my sympathy for her has dropped to zero. We're talking cosmic, genuinely Clintonesque degrees of co-dependency and enabling here. I do pity their poor daughters for having two parents who are dangerously out of touch with reality.


UPDATE (Wed Mar 12 @ 10:50am): Spitzer just announced his resignation on TV. I haven't heard any details on whether he's reached a plea agreement.


UPDATE (Wed Mar 12 @ 11:42am): The website for the U.S. Attorney for the Southern District of New York has posted this terse statement:

In response to press speculation, MICHAEL J. GARCIA, the United States Attorney for the Southern District of New York, said: "There is no agreement between this Office and Governor Eliot Spitzer, relating to his resignation or any other matter."

I don't know if it was Ted Wells or someone else, but someone inside the Spitzer legal team forced their client into a major reality check some time after the team was spinning the WSJ reporters last night.

Posted by Beldar at 05:34 AM in Law (2008), Politics (2008) | Permalink | Comments (14)

Monday, March 10, 2008

Spitzer "casts himself not just as an enforcer of the law per se, but also as an enforcer of a broader social compact"

The quote in the title of this post comes from a 2005 article in the New York Times Sunday Magazine on "Spitzerism" as a law enforcement philosophy. It was written by The New Republic's Noam Scheiber. In response, I posted here to agree with Scheiber that Eliot Spitzer, a rising-star Democrat who was at that time New York State's showboat Attorney General, had certainly never acted as though he was constrained by mere "law per se." But I ridiculed Scheiber's contention that such "qualities" made Spitzer an attractive candidate for national office on a Democratic ticket. I pretty much want my prosecutors and attorneys general to stick to "law per se." It seemed to me that Scheiber's heroic notion of "Spitzerism" was pretty much a code word for "unscrupulous and overambitious prosecutor running amok (mostly against Republican targets)."

Today it was announced, however, that now-New York State Governor Eliot Spitzer, whose administration has already been tarnished by assorted scandals, was involved with (at least as a client of) a now-federally indicted international prostitution ring. His involvement with the ring was apparently sufficient that he had a credit balance on his account with them — the precise size, and the offset of which against new charges, he's apparently quoted (as "Client-9") arguing about by phone with the ring operators in an affidavit attached to the just-unsealed federal criminal complaint. It thus seems likely that Spitzer himself has, at a minimum, violated the "law per se" of New York and/or Washington, D.C. against contracting for sex from prostitutes, although he has not yet himself been charged with any crime.

N.Y. Gov. Eliot Spitzer and wife leaving press conference There's also a suggestion that he paid for a prostitute's train ticket to travel from New York to Washington for their tryst. So in addition to the underlying offense of violating state anti-prostitution laws, it's not inconceivable that Spitzer himself could be charged, either as a principal or co-conspirator, with violating the federal Mann Act and the federal wire fraud statute. As a former state attorney general and, before that, a prosecutor on the staff of Manhattan District Attorney Robert M. Morgenthau specializing in organized crime rings, he could not have been unaware of the likelihood of connections between an international prostitution ring like this one and other, more sinister organized crime operations. He could not have been unaware of the possibility that he might be subjected to blackmail attempts. The Governor of New York simply can't expect to be an "anonymous john."

Were I Czar, I would decriminalize the exchange of money for sexual favors among genuinely consenting adults. But I'm not, and the legislative bodies that make the laws applicable to Spitzer's conduct haven't decriminalized that conduct either. His transgressions occurred while he was an elected public official — indeed, the chief executive branch official of the State of New York, who had sworn an oath upon taking office to uphold and enforce the laws of that state.

He has not yet resigned; his very short afternoon news conference was just a vague announcement of unspecified failings and an apology, after which he took no questions. I don't interpret that as necessarily evidencing an intention to hunker down, Larry Craig-style, to try to ride out the storm. Rather, I note that unlike most vice cases (which typically are brought by state prosecutors in state courts solely under state law), this is a federal criminal case, in which Spitzer is at least a potential witness with respect to charges against the existing defendants. Perhaps the interstate nature of the ring explains the federal involvement by itself, but I wonder whether there's way more to this story — and specifically, to Spitzer's involvement in it — than his simply being an "ordinary client" of the ring. So far, the feds have spared him the indignity of a perp walk in cuffs, but that doesn't mean one's not coming. The New York Sun reported that these particular federal prosecutors are from a unit "specializing in government corruption cases". I speculate — and, in fairness, I emphasize that this is nothing more than my uninformed speculation, just a gut hunch — that there's another shoe (or boot or anvil) that we haven't heard drop yet.

Whether it's on the potential federal charges mentioned above, or something much less savory and much more culpable than money for sex across state lines, my guess is that Spitzer's lawyers are already in plea negotiations with the federal prosecutors, and that one component of a plea deal under discussion would include his resignation. Resigning, in other words, may be inevitable, but if he is himself a potential target of criminal prosecution and he announces it before plea negotiations are exhausted, it loses its value for that purpose. If, by contrast, he were relatively sure that he's not himself a potential target of prosecution, and he'd already made a decision to hunker down, I would have expected him to announce that today, to get it all over with at once before going "to the mattresses."

Spitzer's self-righteousness, egotism, and overweening ambition have earned him many enemies. Earlier today I heard legal pundit Greta Van Susteren on Fox News say something to the effect that Spitzer is "hated on Wall Street" because he's tried to "clean up the corruption there." But not all, nor even most, of Wall Street is involved in corruption, and Spitzer is hated by many who are themselves squeaky clean. He's been a class warrior, demonizing not just corrupt businessmen but businessmen and their businesses in general. Tonight, toasts will be drunk to his political demise, and cigars will be metaphorically lit from the bonfire of his career. It's hard for me to imagine that there are many fellows who are more deserving of that scorn and schadenfreude.


UPDATE (Mon Mar 10 @ 7:30pm): ABC News reports (h/t TPM) that the "federal investigation of a New York prostitution ring was triggered by Gov. Eliot Spitzer's suspicious money transfers, initially leading agents to believe Spitzer was hiding bribes, according to federal officials," and that Spitzer

is likely to be prosecuted under a relatively obscure statute called "structuring," according to a Justice Department official.

Structuring involves creating a series of financial movements designed to obscure the true purpose of the payments.

This suggests Spitzer was taking out big chunks of cash — consistent with the impressive fees reportedly charged by these high-dollar callgirls — in chunks of more than $5k but less than $10k in an attempt to avoid the paperwork that banks must file for large cash transactions. I've read elsewhere that Spitzer has family money, so that even on a public servant's salary, he probably could finance this habit without needing bribe money. Also per the same ABC News report:

It was only months later that the IRS and the FBI determined that Spitzer wasn't hiding bribes but payments to a company called QAT, what prosecutors say is a prostitution operation operating under the name of the Emperors Club.

That sounds pretty plausible to me. If there were no other organized crime connections, that's the kind of crime that might well result in a no-prison time recommendation and sentencing calculation for a first offender pleading guilty and cooperating. Various other press and blogospheric sources are now reporting that Spitzer is likely to formally resign tonight — and the time difference between his afternoon press conference, which was necessary to address an imminent NYT story, and a resignation tonight would represent about the right amount of time for the lawyers to sew up the paperwork for a formal plea agreement that includes his resignation.


UPDATE (Mon Mar 10 @ 9:30pm): The statute referenced in the ABC News report is almost certainly 31 U.S.C. § 5324. A quick Westlaw check suggests that it's never produced any reported decisions, which doesn't much surprise me. Certainly as a former prosecutor of organized crime defendants (including money launderers), Spitzer would have known that cash transactions trigger requirements for banks (under 31 U.S.C. § 5313(a), which (along with its implementing regulations, see, e.g., 31 C.F.R. §§ 103.18 & 103.22) require banks and other financial institutions to file "Suspicious Activity Reports" with the Treasury Department for suspicious transactions of $5k+, and for almost all currency transactions of $10k+. Without aggravation, it looks like the penalty tops out at 5 years plus a fine, but that would presumably be per count, and the nature of the crime suggests it was likely to have been repeated. That suggests to me that there is lots of room for prosecutorial discretion in charging, and likewise lots of flexibility on potential pleas.

I don't see any interpreting cases for section 5324 in a quick check of Westlaw (which doesn't surprise me), and I'm far from expert in this field of white collar criminal law — but Spitzer certainly may be deemed to be one, given his background of prosecuting money laundering! Anyway, as I read it, section 5324 basically makes it a crime to deliberately structure your transactions to avoid getting on those radar screens — intent being the key element of proof. Absent a confession, the prosecution would typically have to prove intent circumstantially, however. If there are financial records from which lots of large (but slightly under-limit) withdrawals correspond closely in time and cumulative amount to what the callgirl ring's receipts show from Spitzer, that would be a fairly compelling circumstantial case. To beat it, Spitzer would effectively have to come up with some other very convincing explanation for the size and purpose of the transactions.

Frankly, a "money laundering"-type charge would be far sexier, and far more likely to be actually charged in these circumstances, than a "mere" Mann Act or wire fraud charge predicated directly on the prostitution. That is, if that's the prospective charge, then it's much harder for Spitzer to defend — either in a court of law or the court of public opinion — on the basis that "this is all really only about consensual adult sex," or even "only about lying about sex."

Meanwhile, federal prosecutor WLS, guest-blogging at Patterico's and linking the same ABC News report, opines that "the facts suggest to me that Spitzer has received a target letter indicating that he is the target of a federal criminal investigation for his conduct." If so, he says, "his problems are a lot bigger than first seemed the case." Criminal defense lawyer and blogger Jeralyn Merritt at TalkLeft reports that Spitzer is  being represented by NYC mega-firm Paul, Weiss (not a big surprise), and that a NYC television station is reporting that Spitzer's resignation may come tomorrow. She and her commenters are also speculating on what kind of plea deal may be brewing. Among other things, she's curious about the fact that this was filed as a complaint, rather than an indictment from a grand jury, and there's some discussion in the comments about the specific regulations that might be implicated.


UPDATE (Tue Mar 11 @ 2:20am): So how important were these trysts to Gov. Spitzer? This paragraph, from Tuesday's WaPo, is equal parts funny and sad (emphasis mine):

Spitzer's travel schedule shows he spent the night of Feb. 13 in Washington to attend a congressional hearing the next day, Valentine's Day. Spitzer was not initially scheduled to appear at the hearing on the state of the bond industry, held by the Financial Services subcommittee on capital markets, insurance and government-sponsored enterprises. But committee staff members said Spitzer called to insist on coming to testify, and they ended up pushing back the New York insurance superintendent to make room for the governor's last-minute appearance.

What better alibi to prove the need for an overnight trip than a room full of bored Congressmen, aides, industry lobbyists, and the Congressional Record? Meanwhile, WaPo's Dana Milbank chips in for the First Lady of the Empire State:

The woman accused of running a prostitution ring allegedly patronized by Eliot Spitzer told one of her call girls that the New York governor had been known to "ask you to do things that, like, you might not think were safe."

But whatever Spitzer — or, in the language of a federal court filing, "Client-9" — did with a petite brunette nicknamed "Kristen" on the eve of Valentine's Day last month at Washington's Mayflower Hotel, it probably wasn't as monstrous as what he asked his wife to do yesterday.

In the grand tradition of Larry Craig, David Vitter and Jim McGreevey, Spitzer dragged his partner of 21 years before the television cameras at his offices in New York to announce that he was "disappointed" in himself for unspecified sins.

Despite more colorful speculation, my guess about the "not safe" past requests is that they were requests for unprotected ("bareback") sex without a condom. Smart call-girls — heck, smart anyone — should know better than that, and it fits the escort's quoted reply, but it's exactly the sort of thing a white-bread 48-year-old rich boy with a self-destructive streak might well demand. On the subject of his wife and daughters: I don't lack sympathy for them, particularly the daughters; but it's not the world who owes them an apology, it's Eliot Spitzer.

Posted by Beldar at 05:51 PM in Law (2008), Politics (2008) | Permalink | Comments (23)

Sunday, March 09, 2008

Blog milestones

During the past week, BeldarBlog passed the 1000-post mark, with something over 11,500 comments and 1062 trackbacks. TypePad's stats, which vary some from Sitemeter's, show slightly over 2 million "lifetime page views" at an average rate of 1245 per day since I started blogging in August 2003 (including some long periods of inactivity). Alas, neither TypePad nor Sitemeter provides a "word per blog post" statistic; I'm sure I'd rate highly on any objective bloviation index.

That anyone at all reads still surprises me. That some whom I've come to know and respect from their comments appear to do so at least semi-regularly gratifies me a lot. Thanks.

Posted by Beldar at 07:55 AM in Weblogs | Permalink | Comments (7)

Saturday, March 08, 2008

A peculiar and ostensibly conservative assessment of the Bush-43 Administration as a "failed presidency"

Having just praised a short article in the Weekly Standard's online version by Ed Whelan, I find myself reluctantly obliged to pan a very long one also published there by Jeffrey Bell, who's a visiting fellow at the Ethics and Public Policy Center (of which Mr. Whelan is president) and a principal at Capital City Partners (a Washington political consulting firm). Other blogospheric reactions to Mr. Bell's article that I've come across so far range from generally approving to skeptical to outraged to insulting.

Having entitled his article "The Politics of a Failed Presidency," Mr. Bell has certainly written ambitiously and comprehensively, albeit without subject headings or much else by way of obvious organizational structure. The individual sentences and paragraphs track nicely and the prose is serviceable, but this article badly needed a better or more aggressive editor. To his credit, though, Mr. Bell's premise is simple, and it's clearly stated in his article's very first sentence: "The failure of the Bush presidency is the dominant fact of American politics today."

But other than by repeated references to the most ephemeral standard — current public opinion poll ratings of the President — I think that Mr. Bell fails to make a persuasive factual case to support that premise. In a sentence: Mr. Bell sweats the small stuff to death, but he badly misses the big picture.

Thank goodness Dubya himself has mostly done the opposite.


To thoroughly Fisk this article, I'd need to duplicate, or exceed, Mr. Bell's article's own 9200-word length, which would get me down below a "forest/trees/twigs" level of detail to the microscopic level Mr. Bell sometimes embraces. With my customary brevity, however, I've managed to keep this down to a svelte 1800 words or so.

Not many Americans, present or future, would consider judging the basic success or failure of the Bush-43 Administration on such minutia, for instance, as its failure to stand up against gay rights advocacy groups to preserve the Ministerial Exemption to the CARE Act, and the allegedly consequent failure of the full Congress to pass Bush's faith-based initiatives program in full. Mr. Bell gives that argument eight terribly detailed (and, frankly, tedious) paragraphs running more than 700 words. (I'm still not quite sure I understand it, after three re-readings.) Okay, then, maybe that's a darned shame. But do you think anyone will remember it in 2020, much less 2050, in assessing the overall success or failure of the first American presidency of the 21st Century?

Perhaps it's no surprise that many of the Bush "failures" identified by Mr. Bell — a self-described conservative, Vietnam vet, one-time Senate opponent of Bill Bradley in New Jersey, former president of the Manhattan Institute, and senior consultant to the Gary Bauer campaign in 2000 — would nowhere appear on a list compiled by Democratic opponents of the Administration. Nor, for the same reason, are very many of Bush's "failures"  as perceived by Democrats included on Mr. Bell's list. But it is perhaps a surprise that some things which many other conservatives would assess as very conspicuous "failures" on the part of this president — his first-term embrace of protectionist steel tariffs, for example, or his nomination of Harriet Miers to the Supreme Court — utterly escape Mr. Bell's attention.

Even when Mr. Bell gives Dubya due credit for accomplishments that most conservatives, and even Bush opponents, would acknowledge, however, it's terse credit. A conspicuous example, dear to my own (and I'll wager to Mr. Whelan's) heart: "The nomination and confirmation of John Roberts and Samuel Alito to the U.S. Supreme Court in 2005 accomplished what Richard Nixon, Ronald Reagan, and George H.W. Bush all tried and failed to do: move the Supreme Court toward judicial restraint on social issues." Well, yeah! Mr. Bell throws in another couple of sentences on this subject, but maybe it's worth more than one paragraph in the "big picture," d'ya think?

And this is unfortunately typical through-out: Leading multinational coalitions in the rapid and low-casualty toppling of two of the world's regimes most hostile to the United States gets George W. Bush a couple or three passing references in Mr. Bell's analysis. Persuading Libya to drop its nuclear weapons program gets precisely one sentence, as does persuading Pakistan to shut down A.Q. Khan's nuclear proliferation ring.

In fact, were I to compile from Mr. Bell's article a bullet-point list of things he at least casually mentions that I, by contrast, consider to be significant achievements from the first seven years of the Bush-43 Administration, it would turn out to be a very long list indeed. He and I agree on many of the individual pieces of relevant evidence, in other words, but we definitely disagree about the weight to which those pieces, individually and especially cumulatively, should be accorded by the jury.


Mr. Bell is also a bit too willing to presume presidential power beyond that which practically exists. For example, there's a long segment which begins: "In retrospect, a fateful turning point for Bush's credibility was the elevation of Mahmoud Ahmadinejad to the presidency of Iran in June 2005." This is Dubya's fault? A turning point in Dubya's credibility? Nobody's happy that Iran is still a nuclear threat, not even France. But if one's going to point to that as evidence that the Bush-43 Administration is a "failed presidency," one's obliged to lay out a plausible scenario as to precisely what ought to have been done better and differently, and how it was in fact doable. Mr. Bell is merely grumpy on this topic, not constructive in his criticisms.

And despite his somewhat vague grumbling about it, I don't think Mr. Bell quite intended to lay responsibility for the SCOTUS' 2003 decision in Lawrence v. Texas at Dubya's feet — and that position would be rather hard to argue explicitly, since it predated either the Roberts or Alito nominations, and they both replaced Justices who declined to join in Justice Kennedy's opinion for the majority anyway. But Mr. Bell certainly faults the Bush-43 Administration for failing to exact more "decisive consequences" against the pro-gay marriage side after the 2004 election victory. Both Democratic candidates for 2008 purport to oppose gay marriage, and based on the just-finished oral arguments, many, and perhaps most, knowledgeable observers predict that the California Supreme Court — California, for pete's sake! — is about to refuse to follow the Massachusetts lead by ruling that the spate of gay marriages attempted by San Francisco city authorities in 2004 were invalid. The Bush-43 Administration made a reasoned decision that given the lack of extreme urgency and the other demands on its diminishing political capital, accomplishing more by way of federal action just wasn't in the cards, and therefore wasn't a top priority for the second term. I gather that Mr. Bell disagrees with that call — but in the big picture, is that a serious reason to describe the Administration as an overall failure?

In other parts of his article, for someone with his impressive track record in government service, political campaigning, and conservative policy circles, Mr. Bell is strikingly naïve. He writes, for example, of Bush having failed to make his highly significant and extraordinarily successful tax cuts "permanent" as being a major failure — exactly as if one Congress and president had the constitutional power to bind the taxation policies of a later Congress and president. Here's a clue: There's no such thing as a "permanent" tax cut, nor "permanent" tax increase for that matter. Using that word, just like scheduling the "expiration" of tax cuts, is at least 90% spin rather than substance. And even if a Republican majority Congress and Bush had successfully insisted on calling the Bush tax cuts "permanent" as of their initial passage, the next Democratic majority Congress and Democratic president would have been certain to try to roll them back anyway. (John McCain, to his credit, recognizes that it's silly to go along with the Democrats' talk of the "expiration" of the Bush tax cuts. What they promise, and what he's promising to oppose, is in sum and substance a Democratic tax increase, period.)


Finally: I don't know if this is a "bi-coastal conservative" problem, or if it's mere coincidence that Mr. Bell, Peggy Noonan, George Will, and the most anti-Dubya contributors to the National Review all just happen to live somewhere on either the east or west coasts (rather than on the Gulf coast or in the "heartland"). But some things that are absolutely colossal on my list of Bush accomplishments, Mr. Bell and those others tend to either short-shrift or else altogether ignore.

The voters who supported George W. Bush in 2000 desperately wanted a president who would, through his conduct over his entire term, repudiate and erase the sleazy sexual and ethical stains, metaphorical and unfortunately quite literal, that Bill Clinton had generated in the Oval Office. They wanted a president who made and stuck to decisions based on his own principled judgments, not focus groups and polls, and who would continue to do so even at the risk of extreme political unpopularity. They would accept a president who might not be a slick talker, so long as he knew what the meaning of "is" is. Those are all intangibles, but they're big issues on which George W. Bush has kept his promises. While delving deep into individual domestic policy programs, Mr. Bell seems largely oblivious to this very big picture, or at least to its due weight in a balanced consideration of the Administration's overall success or failure.

And altogether missing from Mr. Bell's article is an adequate recognition that notwithstanding the closeness of the 2000 election, nor everything subsequent to it (including the 9/11 attacks coming on "his watch" and then the failure to find WMD stockpiles in Iraq), Dubya won re-election in 2004 with the largest number of popular votes in American history — keeping John Kerry and his minions out of the White House. By most historians' measure, and by the public's too, getting re-elected is the single most significant indicator of a president's overall success or failure. Failing to get re-elected was easily the most significant aspect in which Bush-41's administration can be deemed to have been a "failure," precisely because it let the randy, slick-talking, dirty-dealing Democratic governor of a small southern state into 1600 Pennsylvania. The voters threw Poppy out, but they kept both Dubya and Reagan. And that's the bottom bottom-line.

Curiously, Mr. Bell acknowledges near the beginning of his article that candidates "for the Republican presidential nomination had to deal with the fact that in our polarized politics, Republican primary voters are still predominantly pro-Bush." But Mr. Bell doesn't mention the self-inflicted torpedo that did more than any other to sink the surge of the Huckabee campaign — Huckabee's description (taken directly from the DNC playbook and the pages of dKos) of the Bush-43 Administration's "arrogant" foreign policy and "bunker mentality." He should have; indeed, Gov. Huckabee's screed has more than a little in common with Mr. Bell's own. Mr. Bell is obviously a thoughtful man, and one with whom I agree on a great many important things. Perhaps, though, he ought to have given further thought, before committing himself to the notion of the utter "wreckage" of the Bush-43 presidency, to whether those Republican primary voters' grasp of the big picture might indeed be substantially better than his own.

And to the extent that this article might be read as a recommendation that Republican candidates in 2008, including but not limited to McCain, should aggressively characterize Dubya as a "wreck" or his administration as a "failed presidency," that's just awful advice for the general election too. In fairness, that's not the gist of Mr. Bell's actual advice to them, despite the title and premise of his article. (Instead, he cautions them to avoid getting trapped into a binary choice of embracing or repudiating the Bush legacy by trying to "break down such questions into specifics," after which they should "pivot as quickly as possible toward the future" while also blaming Democrats whenever possible.) But Mr. Bell might have gone farther to point out that aggressively trashing Dubya — as he'd just concluded doing! — won't be sufficient to win over any part of the Democratic base. They're already entirely committed, with all of the momentum of their Bush Derangement Syndrome, to the proposition that McCain is McSame. Nor is trashing Bush necessary to attract those independents who may indeed have voted for Bush but have since become impatient or disillusioned with him. Being "not-Bush" is enough for most of them, without McCain or other Republicans having to become the "anti-Bush."

Posted by Beldar at 11:43 PM in 2008 Election, Global War on Terror, Law (2008), Politics (2008), SCOTUS & federal courts | Permalink | Comments (4)

Obama's potential judicial appointments

The rest of the article is definitely worth reading too, but in two concise paragraphs, Ed Whelan gives us the essential things we need to know about what kind of federal judges a President Obama would appoint (emphasis Ed's):

Although Obama has served in the Senate for barely three years, he has already established a record on judicial nominations and constitutional law that comports with his 2007 ranking by the National Journal as the most liberal of all 100 senators. Obama voted against the confirmations of Chief Justice John Roberts and Justice Samuel Alito, and he even joined in the effort to filibuster the Alito nomination. In explaining his vote against Roberts, Obama opined that deciding the "truly difficult" cases requires resort to "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy." In short, "the critical ingredient is supplied by what is in the judge's heart." No clearer prescription for lawless judicial activism is possible.

Indeed, in setting forth the sort of judges he would appoint, Obama has explicitly declared: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old — and that's the criterion by which I'll be selecting my judges." So much for the judicial virtue of dispassion. So much for a craft of judging that is distinct from politics.

If you like your constitutional law bold, sweeping, and thoroughly disconnected from anything actually written down in the Constitution or imagined by its Framers, then you'll like Pres. Obama's judicial picks. If you like your law served up by a court instead of by Congress or a state legislature, then you'll like Pres. Obama's judicial picks. If you want vast and mysterious power concentrated in a handful of unelected judges whose behind-closed-doors deliberations will turn their own policy preferences into holy writ, changeable only through constitutional amendment (or a thorough overhaul of SCOTUS membership and then its recent precedents), then you'll like Pres. Obama's judicial picks. If you see stare decisis as a ratchet wrench that only permits torque in the direction "lefty-loosey," then you'll like Pres. Obama's judicial picks. If you want federal courts to disrespect and ride roughshod over their state-court counterparts, then you'll like Pres. Obama's judicial picks. If you want a heavy thumb on the defendants' side of the scales of justice, with no counterbalance for victims' rights or the public interest, then you'll like Pres. Obama's judicial picks. If you want even our foreign policy and the Global War on Terror micromanaged by the federal judiciary, then you'll like Pres. Obama's judicial picks. If you want American law to kowtow to and adopt wholesale from judges and courts you've never even heard of that sit in Brussels, The Hague, or Geneva, then you'll like Pres. Obama's judicial picks.

And if you're not satisfied with a Constitution that (in the words of Justices O'Connor and Kennedy) merely treats "liberty" as "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," and if you're not even quite satisfied with a "living, breathing Constitution" — well then, by golly, you'll just love the rip-roarin', snot-snortin', tap-dancin' Constitution as imposed on us all by Pres. Obama's judicial picks. God save the United States from that "Honorable" Court.

Posted by Beldar at 01:46 PM in 2008 Election, Law (2008), Obama, Politics (2008) | Permalink | Comments (4)

The Democratic Party leadership's reflexive anti-Americanism

I'm a conservative. In particular, I'm a hawk on the Global War on Terror, but I'm also a hawk on foreign policy and national security matters more generally. That's obvious to anyone who's even skimmed the surface of this blog, and I make no bones about it. If you're a sympathizer with terrorists and you've been offended by my rhetoric's insensitivity to your point of view, my response is: Great! I only wish that my rhetoric had the power to give you bleeding stomach ulcers.

But my blog's target audience includes people who haven't fully made up their minds; and those who disagree with me but are still capable of changing their minds in whole or part; and those who will continue to disagree with me even after further reflection, including consideration of my arguments and opinions here. Indeed, I'm genuinely delighted when folks from any of those categories leave civil, thoughtful comments here. And in my personal life, wholly apart from this blog, many of my family members and best friends have opinions that are to the left of my own. I enjoy a respectful debate with them all.

That's why I've been pondering for the last several days a comment left here by a real-life friend of mine, a lawyer with whom I used to practice and with whom I still correspond and play poker regularly. As part of an essay comparing Barack Obama to John F. Kennedy and Jimmy Carter, I'd included the following sentence: "Kennedy, at least, was a war veteran, and he came from a Democratic Party that hadn't yet started reflexively doubting, then hating and apologizing for, all things American." To that characterization, my friend left the following pithy question in the comments (emphasis mine): "Do you really believe that the Democrats hate all things American?"

My friend was tweaking me very politely but effectively, knowing that he'd touch a nerve with his question just as I, probably, had touched a nerve in him with my observation: My friend is a life-long Democrat, and yet I would never characterize him as "hating all things American." To the contrary, despite our different political affiliations and outlooks, he and I share an overwhelming number of common values; and even when we differ, I respect his views as being entirely genuine, and as usually having some rational, explicable connections to what he sincerely perceives as the long-term interests of our country (even when I disagree about the validity of those connections). Thus, my reply to him in those comments read:

I don't think all Democrats uniformly hate all things American, no. And I didn't say that. I do think that the current Democratic Party's leadership, though, may be fairly described as self-hating Americans who reflexively blame America first (at least as long as it's led by a Republican president, and never mind whether they voted to give him authority to act overseas or not).

But even now, some days later, I'm not satisfied with that response. Hence this post, as "revised and extended remarks."


I read in the WaPo this morning that later today (Saturday), President Bush "will veto legislation meant to ban the CIA from using waterboarding and other harsh interrogation tactics and will argue that the agency needs to use tougher methods than the U.S. military to wrest information from terrorism suspects." Dubya's veto is expected to re-ignite "the Washington debate over the proper limits of the U.S. interrogation policies and whether the CIA has engaged in torture by subjecting prisoners to severe tactics." The WaPo report goes on to explain that

[t]he legislation would have limited the CIA to using 19 less-aggressive tactics outlined in a U.S. Army field manual on interrogations. Besides ruling out waterboarding, that restriction would effectively ban temperature extremes, extended forced standing and other harsh methods that the CIA used on al-Qaeda prisoners after the Sept. 11, 2001, attacks.

I haven't blogged very much about the "torture" debate here because I consider the overwhelming majority of that debate, as it's been conducted elsewhere in the mainstream media and blogosphere, to have been a colossal waste of time and energy. For their efforts to be useful, all participants in that debate must employ some common definitions of the most relevant terms, beginning with the word "torture" — and they haven't, and apparently can't. Look at the WaPo lede above, which blithely describes "temperature extremes" and "forced standing" as "harsh interrogation tactics." I must conclude that by the standards of the Democratic Party leadership, I was the frequent victim of state-sponsored torture as a child.

After all, when we misbehaved badly enough to prompt our teachers to cancel the pre-lunch recess period, my second-grade class at North Elementary School in Lamesa, Texas, had to stand silently, sometimes in sub-freezing winds and blowing sand, for a quarter-hour or more in line outside the cafeteria doors before we were permitted inside to eat lunch. Other days, we stood in more than 100°F blazing sunshine. No wonder I bear so many psychic scars — oh, please, someone contact Amnesty International on my behalf! Someone get me ... a lawyer!

(A very few of my readers may miss the snark in the previous paragraph. To re-assure you: Being denied recess was genuine punishment, but many of us, including me, routinely spent much longer walking to and from school in those same freezing, sand-filled winds or under that same blazing sun; and we all would have been perfectly pleased to be outside in them, playing Red Rover or whatever during recess, had we not misbehaved. This was part of a very normal childhood growing up in the Texas panhandle in the early 1960s, a time and place in which the Ward Cleaver family would have fit in just fine.)


So here we are in America as of March 2008, in which a Democratic-led Congress eagerly passes legislation protecting captured terrorists from shivers, sweats, and sore feet — even at the cost of American lives that may well be lost as a direct consequence. Simultaneously, that same Democratic-led Congress cannot bestir itself to pass an extension of previously passed legislation that would have permitted American intelligence agencies to continue to conduct warrantless investigation of foreigners' electronic communications with other foreigners, with both senders and receivers in foreign lands. They would have you believe that the Founding Fathers' intentions were to establish and enshrine the protections of the Fourth Amendment for every digital packet of every foreigner's message to another foreigner that might wander through a fiber-optic pipeline running through American space. Again, American lives may well be lost as a direct consequence. A majority of senate Democrats recognize this, and has tacitly admitted it through their votes to re-authorize. But in Nancy Pelosi's House of Representatives, the higher value is to ensure the continued ability of a tiny number of tort lawyers to continue to terrorize communications companies through reckless, ridiculous litigation.

The Democratic Party leadership's actions and inactions here are both excellent examples of what I originally characterized as "reflexively doubting, then hating and apologizing for, all things American." Their starting and nearly irrefutable presumption is that the Administration and the governmental agencies, military and non-, that we voters have entrusted with our national security are corrupt, incompetent, and abusive — indeed, they presume that our government, and not the terrorists, are America's real enemy. The dangers those American professionals have been charged to protect us from, Congress systematically downplays or ignores. Not only the president from an opposing party, but nonpolitical career professionals and even dissenters from within the Democratic Party (e.g., Joe Lieberman), must be demonized by the Democratic Party leadership and its sycophants in the mainstream media as "abusers of civil rights." And one need not wander far downstream from that leadership to find allied minions and advocates who are eager to apply the word "fascist" with absolutely straight (albeit hate-filled) faces.

My original formulation was indeed overbroad. Pelosi, Reid, Clinton, and Obama et al. don't doubt, hate, and apologize for all things American. Notwithstanding Sen. Obama's resistance to lapel pins, they aren't out burning American flags, for instance. But neither are they condemning those who do so at their anti-BusHitler rallies. All too often, and indeed with increasing frequency as they approach the 2008 election, the Democratic Party leaders are acting reflexively, and irrationally, and indefensibly. Some small fringe of the American public at the very extreme edge of the Angry Left would agree with them that it's better for Congress to prevent terrorist heat rashes and bunions than exploded American bodies. But do not tell me that that's representative of America — not even of most of those who would happily and proudly self-identify as "Democrats."


Michelle Obama The Obama campaign in particular demonstrates, and even exceeds, these same tendencies and attitudes. It's not just in Sen. Obama's votes, which have earned him recognition as the most liberal member of the U.S. Senate. It's very explicit: In Barack Obama's and his wife's campaign rhetoric, America as it actually is and has been during their own remarkably privileged lifetimes, they find unworthy of pride. Only America as it can become — one Nation, under Obama — can be worth being proud of.

The Democratic Party is on the brink of nominating Sen. Obama as their presidential candidate. Is it unfair for me, then, to impute his and his wife's beliefs to the members of their party generally?

Good, solid, and intelligent members of the Democratic Party — like my commenting friend — have a reasonably clear choice, I think. Each must ask himself or herself: Do I continue to support my party leaders with my votes and my membership in their party? Or do I abandon them and instead speak out, and vote, in ways that would actually advance American interests instead of undercutting them? I won't doubt my Democratic friends' patriotism if they continue to stand by their party's leaders. But I will continue to doubt the wisdom and even the rationality of those party leaders, and to use this blog to express those doubts as best as I can manage.

Posted by Beldar at 08:20 AM in 2008 Election, Global War on Terror, Politics (2008) | Permalink | Comments (7)

Tuesday, March 04, 2008

Backyard astronomy

If you were looking through a simple backyard telescope at the Earth and its Moon, this is what you'd see.


If your backyard were on Mars.

Posted by Beldar at 09:08 PM in Current Affairs | Permalink | Comments (2)

Saturday, March 01, 2008

Psst! Senator Obama! Got a light?

From Ellen DeGeneres' interview with Sen. Barack Obama (D-IL) on Thursday, February 28, 2008 (my transcription, from a video clip that is available, at least for now, on YouTube):

DeGENERES: Here's the big question: Have you been able to not smoke? When there's so much pressure and so much stress, to try to do such a — it's such a horrible, hard habit to break, and I know, because I struggle with it myself. Have you been able to stop?

OBAMA: I have — I've been able to do it [sic]. I've been chewing on this Nicorette, which tastes like you're chewing on ground pepper.  But, uh — but it does help. And, uh — you know, this was, this was a deal-breaker for Michelle. And I was — I had been sneaking three cigarettes, four cigarettes a day for a while, and she said, If you're going to do this, you've gotta stop, because — precisely because the stress is gonna increase. And it'll just get worse. So that's an example of my wife making me a better man once again.

So just how much has Barack Obama learned not only from law school, but from studying famous law-school trained dissemblers like Bill Clinton? Certainly his interrogation from DeGeneres on this question couldn't have been a slower, bigger, or more ambiguity-inviting softball. Why didn't he just say, proudly, "Yes, I've stopped smoking"?

Sen. Barack Obama (D-IL)But let's assume that by saying he'd "been able to do it," he meant to convey that he indeed had stopped smoking. Is there still an evasion in his answer? Was he using a literal, if partial, truth to conceal a whole truth to which the candidate did not wish to admit? Would a "whole-truth" answer have been: "I've been able to stop smoking. (For a day or two at a time, and then I've started back again.)"

Was the admission that he "had been sneaking" cigarettes in the past, even though (and precisely because) it was a "deal-breaker for Michelle," a subconscious pointer, to alert us to the likelihood of present dissembling?

And is there really much doubt that those "three cigarettes, four cigarettes" a day were really at least half a pack, at least on some days? (Medical professionals are often taught to record precisely the admissions that patients make about the amount of their smoking and drinking, but then to assume for purposes of those patients' treatment that the real numbers are twice as high.)

Although it's posted in several places around the internet, I can't vouch for the authenticity of the photograph I've included in this post. Maybe it's photoshopped. However, the very fact that I can't find a photo or video of Obama smoking a cigarette on, say, Reuters.com, despite his public admissions of having been a smoker until at least very recently, tells you something about how effective Sen. Obama and his minions have been in diverting attention from his habit.


If he's a smoker who's quit and then relapsed repeatedly, Sen. Obama would have plenty of company. Me, I was a smoker for years. It's an awful, filthy, unhealthy, wasteful, smelly, thoughtless, and depraved habit. I was thoroughly familiar with all the downsides and all the risks. And yet I enjoyed every cigarette I ever smoked, even as I hated them and hated myself for smoking them.

Oh yeah, I quit! (And restarted.) In fact, I probably quit a dozen different times — once for over a calendar year, before lapsing again back into a pack-a-day habit. I often went out of my way to try to avoid drawing attention to my smoking. And while I didn't generally lie outright about it, I certainly understood the motivation to do so, and I found (and find) it pretty easy to forgive those who have.

Does the current number of times that Sen. Obama has quit smoking exactly equal the number of times that he's started, or is the former still less than the latter by exactly one? A better question from DeGeneres would have been: "When did you last have a cigarette, Senator?" That's a question which is tougher to avoid answering through word-games.

I very distinctly remember the last time I had a cigarette. It was just after 1:00 p.m. on Monday, July 11, 2005. I finished it as I was climbing out of my car, in the parking garage at The Methodist Hospital's emergency room. I ground it out on the pavement, then thoughtfully disposed of the butt in the waste-can outside the elevator doors. I decided to take the stairs down, and walked into the ER, where I asked them to reassure me that I wasn't having a heart attack. It turned out that they couldn't give me that reassurance, because I was.

Yet even with that powerful, and so-far successful, motivator to quit smoking, I'm still tempted. And I deliberately avoid situations in which I know the temptations may be especially acute. For me, the answer to the question, "When did you last really crave a cigarette?" will always be another question: "What time is it now?"


So I wish Sen. Obama all the best with his Nicorette, or any other methods that he employs to try to counter his addiction. I have plenty of reasons not to vote for him; my vote against him in November, if he is indeed the Democratic nominee, will have nothing to do with him being a smoker, or even a sneaking smoker, whether past or present.

Nevertheless: Regular readers know that I generally loathe and distrust political opinion polls. Notwithstanding that, I'd be interested to learn what percentage of Sen. Obama's current political supporters know of his history as a smoker. I'd be willing to wager that it's less than one in five, and probably less than one in ten. And although Reuters doesn't have, or in any event won't publish, a photo of Obama smoking, about this time last year it did republish the results of an ABC News/WaPo poll which concluded: "Being female or black is less of a liability for U.S. presidential candidates than being over 72, Mormon, twice-divorced or a cigarette smoker." Of Sen. Obama specifically, Reuters described him back then as — yes, of course — "a smoker who says he's quit."

Posted by Beldar at 04:44 PM in 2008 Election, Obama, Politics (2008) | Permalink | Comments (8)