Saturday, September 17, 2005

Judge John Roberts

I haven't said much about him because, frankly, I don't know much. The impression I get is that he's a conservative very much in the Rehnquist mold, willing to correct the courts jurisprudence where he believes it has erred, but doing so in small steps to avoid rocking the boat too much. And all of the "Roberts will destroy America" nuts need to get a grip. In any event, there has been a lot running around the internet recently related to his confirmation hearings that I'd like to share with you.

Here is one blogger's take on Roberts:

Both [Roberts and Scalia] essentially subscribe to what I refer to as Burkean Originalism–i.e., a jurisprudential philosophy that balances originalism with the doctrine of stare decisis. Jurists who subscribe to this school of thought might, for example, uphold Griswold (right to contraception) but vote to overrule Roe on the basis that the holding of the former has become widely accepted by the vast majority of Americans (i.e., woven into the fabric of our constitutional republic), whereas the latter remains a hotly contested and divisive issue (as evidenced by the last two days of statements and questioning at Roberts’s SJC hearing).

Meanwhile at The Volokh Conspiracy, the confirmation hearings are discussed, shedding more light on those who are questioning than the candidate answering:

Demanding a Justice that would distort the laws to serve a particular end, be it civil rights, the environment, or what have you, is basically demanding a jurist who would be dishonest and violate his oath of office. Judge Roberts has naturally refused to be goaded into such silliness. The fact that folks like Kennedy and Schumer and Durbin keep settting that up as the test for their willingness to support him is appalling and speaks to the bankruptcy of their philosophies of government. (Not to be biased, several Republicans also seem to fall into the same exact trap regarding abortion, flag-burning, and the pledge of allegiance. They seem to think that the fact that they do not LIKE the results of various cases has something to do with whether they were rightly decided under the laws and the Constitution, and seem to think that their strong emotions on such issues should have some influence on Judge Roberts's future rulings. They are, of course, mistaken and equally suspect in their philosophies of government.)

In any event, I think Roberts comes out of this looking like the consumate jurist who knows precisely where his duties and loyalties must lie — to the law and the Constitution. Most of his critics come off looking like they are pandering to folks who don't know about or don't care about the proper functioning of the courts, and most of the Senators just come off looking ridiculous. It is particularly ironic to hear the demands of Senators (most notably Specter) that they not be treated like children when they seem so intent on acting like children. If they had the slightest inclination to follow the Constitution on their own accord, and to take seriously the limitations on their powers, they would not need to be rebuked quite so often and perhaps when the Court was forced to overturn some piece of legislation they would get more slack for an honest disagreement or mistake rather than whacked on the wrist for making a power grab.

And finally, Ann Althouse has an amusing example of selective memory with respect to past cases:

You know one Supreme Court case the Senators aren't grilling Roberts about? Despite all the talk about the Commerce Clause at the hearing, none of them wants to bring up Gonzales v. Raich, the medical marijuana case. Wouldn't you think the Democrats would want to champion the rights of the powerless, suffering cancer patient, oppressed by the government, with whom the heartless Supreme Court Justices could not empathize? (And I'm putting the question that way because that is the attitude many of the Democratic Senators are taking, such as yesterday when Dianne Feinstein mourned over all the victims of gun violence the Supreme Court didn't care about when it struck down the Gun-Free School Zones Act in Lopez.)

Angel Raich lost her case because the Court interpreted the Commerce Clause as broad enough to support the Controlled Substances Act, with its comprehensive ban on marijuana, which reaches even homegrown, home-consumed marijuana, even when it is used for medicinal purposes by severely ill persons according to a state regulatory program, a program adopted as the result of a democratic vote by the people of a state. If the Court was wrong, it was wrong because it found that Congress had too much power. The Senators don't want to push Roberts to say that they lack power. They only want to hear that the power is there for them to do everything they want and that their judgment about what is best is better than any court's judgment.

Yes, I realize these shed more light on the Senate than Roberts. So sue me. I always get a good laugh at political pretension, and the Senators certainly don't seem to be lacking in that on either side of the aisle.

Saturday, September 10, 2005

Rehnquist's Legacy

Randy Barnett discusses Rehnquist's legacy of the New Federalism in the WSJ, and gives the condensed version of how his jurisprudence affected the Supreme Court, particularly with reference to Federalism.

Photo-journal of New Orleans

Here's a great photo-essay/journal of a Nicaraguan immigrants experiences in Hurricane Katrina. He got up to go to work at a hotel, and ended up stuck in the city until he managed to ttake a truck out on Day 5. He gives a good view of how things looked on the ground in NO, without scaremongering and/or finger pointing. Some quality photos. Particularly look for the idiot looter (you'll know what I'm referring to) and the (dare I say?) miraculously surviving Jesus statue.

Thanks to Ace of Spades for the link.

Firearms and Emergencies

It seems that in the wake of Hurricane Katrina, the New Orleans police are confiscating every private firearm in sight (except those owned by private security forces, but let's not go there).

There's just a small problem... It's blatantly illegal:

I realize that there are plausible arguments that the house-to-house break-ins and gun-point confiscations violate the Second, Fourth, Fifth and Fourteenth Amendments of the United States Constitution, as well as numerous provisions of the Louisiana Constitution, including the right to arms. Indeed, the confiscations are inconsistent with the Universal Declaration of Human Rights, and with natural law. But my point is much more specific. The particular Louisiana statute which allows emergency controls on firearms also clearly disallows the complete prohibition being imposed by the New Orleans chief of police.

He continues by analyzing the specific statute being invoked, and pointing out that:

The emergency statute creates authority for "prohibiting" some things, and for "regulating" other things. The statute uses "prohibiting" in subsections (A)4, 5, and 9. The statute uses "regulating" in sections (A)3, 6, 7, and 8. Quite clearly the legislature meant to distinguish "prohibiting" authority from "regulating" authority. In the context of the statute, it is not plausible to claim that "prohibiting" means the same as "regulating."

"Prohibiting" authority applies to the sale of alcohol, presence on public streets, and the sale of goods or services at excessive prices. "Regulating" authority applies to firearms, flammable materials, and sound devices (such as megaphones). The "regulating" authority is undoubtedly broad. But it is not equivalent to "prohibiting." The statute does not authorize the New Orleans Police--abetted by the National Guard and the U.S. Marshalls--to break into homes, point guns at people, and confiscate every single private firearm--or every single private bullhorn or private cigarette lighter.

Yet New Orleans' lawless superintendant of police, P. Edwin Compass, has declared, "No one is allowed to be armed. We're going to take all the guns."

All I have to say is that there had better be an investigation into the legality of this search and seizure of private property. I'm wary of this sort of thing generally, but people should be allowed the means to protect themselves, especially at a time when the police have proven unequal to the task.

Oh, the horror...

I am amused:

... thousands of desperate columnists are asking if an official inquiry will shift the blame for poor planning and inadequate flood defences on to the White House. The answer is almost certainly yes, provided nobody admits that emergency planning is largely the responsibility of city and state agencies, and nobody notices that the main levee which broke was the only levee recently modernised with federal funds. Otherwise, an official inquiry will pin most of the blame on the notoriously corrupt and incompetent local governments of New Orleans and Louisiana.

As the full horror of this sinks in, thousands of desperate columnists are asking if George Bush contributed to the death toll by sending so many national guard units to Iraq.

The answer is almost certainly yes, provided nobody recalls that those same columnists have spent the past two years blaming George Bush for another death toll by not sending enough national guard units to Iraq. Otherwise, people might wonder why they have never previously read a single article advocating large-scale military redeployment during the Caribbean hurricane season.

As the full horror of this sinks in, thousands of desperate columnist are asking how a civilised city can descend into anarchy.

The answer is that only a civilised city can descend into anarchy...

Read it all; there's more!

OPEC and Oil Shale

As you may know, Colorado sits on a huge deposit of oil. The only problem is that it is all locked in shale, and has never been economically feasible to get out of the ground. Well, apparently Shell (you know, the oil company) has come up with a way to extract oil from shale that is economical at a mere $30/barrel (oil is currently going at about $60/barrel). If you're really interested in the process, follow the link; otherwise, here's the punchline:

On one small test plot about 20 feet by 35 feet, on land Shell owns, they started heating the rock in early 2004. "Product" - about one-third natural gas, two-thirds light crude - began to appear in September 2004. They turned the heaters off about a month ago, after harvesting about 1,500 barrels of oil.

While we were trying to do the math, O'Connor told us the answers. Upwards of a million barrels an acre, a billion barrels a square mile. And the oil shale formation in the Green River Basin, most of which is in Colorado, covers more than a thousand square miles - the largest fossil fuel deposits in the world.

That means zero dependence on foreign oil for the foreseeable future... with only one small catch.

OPEC, everyone's favorite monopoly, has the production capacity to drop the bottom out of the oil market for a year or so to force the shutdown of any new competition (and then, of course, lower production back to current levels once Shell is bankrupt). Do you think they really want to give up that much of the American market to domestic oil? Not likely.

So what could we do about it? However much it pains me to say this, the federal government could be useful. They could set up a contract with Shell to simply buy any excess oil that they produce (at $30/barrel or so) for the first 10-20 years and just place it in the US oil reserve. It'll come in handy eventually. This would give Shell the time to stabilize production and get economically secure before they have to cope with OPEC trying to drive them under.

I know, I know... This should be repulsive to a fiscal conservative like myself, but dependence on foreign oil, particularly in the Middle East, is something to be avoided if possible. Our military and economy is too dependent on a steady influx of oil to allow the rest of the world that much control over supply. You remember all that talk about "energy independence" recently? Here's a feasible way to do it.

(I know I owe someone a thank you for the link, but I can't remember who, so thanks mystery person!)

Thursday, September 08, 2005


Bill over at Eject! Eject! Eject! has posted what is probably the most thought provoking piece I've read so far this year. In the response to Hurricane Katrina and the devastation and political gamesmanship and accusations of racism flying around, he attempts to give an analysis of human behavior, with a concept of tribe that is independent of race:

Now please pay attention to this, because I’m not going to state it again, and if you don’t hear it now much mischief will follow:

I believe that the human animal – the raw material of our physical bodies – is essentially interchangeable. By this I mean that I could take the children of Fallujah and turn them all into Astronauts, convert Jewish babies into fanatical, mass-murdering SS guards, and shake a generation of the poorest Voodoo-worshippers in Haiti into a cadre of top-flight nuclear physicists, chemical engineers and computer scientists.

Race has nothing to do with this – precisely nothing. The mobs of murdering Hutus and swarms of slaughtering Serbs are as different racially as it is possible to be, and they are cut from precisely the same cloth.

I know this is so because there have been murdering scumbags of every stripe and color in the long history of the human race – which is depressing – and that these animals, at any given time, represent only a small percentage of the majority of people, also of every stripe and color – which is not. There is no corner on virtue, and no outpost of depravity. Human hearts are indistinguishable and interchangeable. Anyone who claims otherwise is, without further argument or statements necessary, a complete God-damned idiot.

Now, with that said – have we all heard that loud and clear? – there are light-years of difference in how various Tribes will behave.

Only a few minutes ago, I had the delightful opportunity to read the comment of a fellow who said he wished that white, middle-class, racist, conservative cocksuckers like myself could have been herded into the Superdome Concentration Camp to see how much we like it. Absent, of course, was the fundamental truth of what he plainly does not have the eyes or the imagination to see, namely, that if the Superdome had been filled with white, middle-class, racist, conservative cocksuckers like myself, it would not have been a refinery of horror, but rather a citadel of hope and order and restraint and compassion.

That has nothing to do with me being white. If the blacks and Hispanics and Jews and gays that I work with and associate with were there with me, it would have been that much better. That’s because the people I associate with – my Tribe – consists not of blacks and whites and gays and Hispanics and Asians, but of individuals who do not rape, murder, or steal. My Tribe consists of people who know that sometimes bad things happen, and that these are an opportunity to show ourselves what we are made of. My people go into burning buildings. My Tribe consists of organizers and self-starters, proud and self-reliant people who do not need to be told what to do in a crisis. My Tribe is not fearless; they are something better. They are courageous. My Tribe is honorable, and decent, and kind, and inventive. My Tribe knows how to give orders, and how to follow them. My Tribe knows enough about how the world works to figure out ways to boil water, ration food, repair structures, build and maintain makeshift latrines, and care for the wounded and the dead with respect and compassion.

There are some things my Tribe is not good at at all. My Tribe doesn’t make excuses. My Tribe will analyze failure and assign blame, but that is to make sure that we do better next time, and we never, ever waste valuable energy and time doing so while people are still in danger. My Tribe says, and in their heart completely believes that it’s the other guy that’s the hero. My Tribe does not believe that a single Man can cause, prevent or steer Hurricanes, and my Tribe does not and has never made someone else responsible for their own safety, and that of their loved ones.

My Tribe doesn’t fire on people risking their lives, coming to help us. My Tribe doesn’t curse such people because they arrived on Day Four, when we felt they should have been here before breakfast on Day One. We are grateful, not to say indebted, that they have come at all. My Tribe can’t eat Nike’s and we don’t know how to feed seven by boiling a wide-screen TV. My Tribe doesn’t give a sweet God Damn about what color the looters are, or what color the rescuers are, because we can plainly see before our very eyes that both those Tribes have colors enough to cover everyone in glory or in shame. My Tribe doesn’t see black and white skins. My Tribe only sees black and white hats, and the hat we choose to wear is the most personal decision we can make.

That’s the other thing, too – the most important thing. My Tribe thinks that while you are born into a Tribe, you do not have to stay there. Good people can join bad Tribes, and bad people can choose good ones. My Tribe thinks you choose your Tribe. That, more than anything, is what makes my Tribe unique.

I am so utterly and unabashedly proud of my Tribe, that my words haunt and mock me for their pale weakness and shameful inadequacy.

I apologize for the length of that quote, but there is no way to do him justice with anything shorter. Please go read it all. I'm not sure how much of it I agree with, but it has certainly gotten my mental wheels turning. Give him a chance to make you think; it just might make you a better person.

Can I just remind you...

... of how much I love political satire? From Scrappleface:

Democrats Demand Justice Just Like Rehnquist
by Scott Ott

(2005-09-05) -- Just hours after the death of William H. Rehnquist, Senate Democrats demanded that President George Bush nominate a replacement whose ideology and judicial philosophy match that of the late Supreme Court justice.

"When Sandra Day O'Connor retired, we insisted Bush appoint a centrist to replace her and maintain the balance on the court," said one unnamed Senator. "Now, we demand that the president name a right-wing, conservative, originalist to replace Rehnquist for that same reason."

The Senator explained that balance is the most important feature of the high court, trumping ideology, logic and the intent of the framers of the constitution.

"As much as we'd like to have another lefty like [Ruth Bader] Ginsburg, we must maintain balance," the anonymous legislator intoned. "Even if it means overturning Roe v. Wade, we Democrats shall remain true to our principles."