Why does Ashcroft want to help terrorists?

(via Etzioni, and WaPo)

The FBI initiated a background check system to notify them when suspected terrorists attempt to buy guns. So far, more than a dozen such suspects have attempted to buy guns.

HOWEVER, Ashcroft strands in the way of effective use of this system. Why? His interpretation of the Brady Bill. Ashcroft does not allow the system to report gun purchases if the transaction occurs. Only if the transaction fails do the FBI find out that a terror suspect tried to buy a gun.
"The result, according to the officials, is an awkward situation in which terrorism suspects who do not complete gun purchases may be located but those toting lawfully purchased weapons may not be sought."

"Being a suspected member of a terrorist organization doesn't disqualify a person from owning a gun any more than being under investigation for a non-terrorism felony would," a Justice Department official said in a written statement

Gun-control advocates said the rules endanger Americans by giving suspected terrorists an opportunity to evade scrutiny while obtaining weapons. The situation also has frustrated many law enforcement officials eager to monitor the whereabouts and activities of suspected terrorist operatives and their associates.

"This policy is mind-boggling," said Sen. Frank R. Lautenberg (D-N.J.), who has frequently clashed with Ashcroft on gun issues. "We could have a nationwide lookout for a known terrorist within our borders, but if he obtained a weapon, the Justice Department's policy is to refuse to reveal his location to law enforcement officials."

What was that? Yes...you read that right..."Being a suspected terrorist doen't disqualify a person from owning a gun" any more than another felon. Is that so? A terrorist suspect is treated the same as a person who kicks a cat in Georgia?
And I thought 9-11 changed everything?


Update:
(in related news)

GOP has struck a deal... background info will now be kept only 24 hours, rather than 90 days. So much for the well regulated militia. I'm sure a day is enough for our efficient feds to find out if Mr. No-Good is the one buying that gun.

The New Media

Take note of this article in the Washington Monthly. Focusing on the tale of James Glassman, the article makes an interesting observation about where the press might be going. Here's the graff that carries it into the thrust of the essay:

James Glassman and TCS have given birth to something quite new in Washington: journo-lobbying. It's an innovation driven primarily by the influence industry. Lobbying firms that once specialized in gaining person-to-person access to key decision-makers have branched out. The new game is to dominate the entire intellectual environment in which officials make policy decisions, which means funding everything from think tanks to issue ads to phony grassroots pressure groups. But the institution that most affects the intellectual atmosphere in Washington, the media, has also proven the hardest for K Street to influence--until now.

Very interesting read.

If you don't like thought or truth, read Goldberg.

R and R on Gay Marriage

I love it when the New Republic does this. In a web-only segment, TNR's website has a back and forth between Jeff Rosen (their legal affairs aditor) and Jon Rauch (from Brookings). The debate's worth a read.

Jon's initial point:

Contrary to common belief, the Constitution does not require all states to recognize every state's marriage. (That's because of a longstanding "public policy exception" to the Full Faith and Credit clause.) Whatever one's qualms about the Massachusetts decision, it's a decision for Massachusetts to make. To avoid a national culture war in an area where consensus is currently unattainable, gay marriage should be left to the individual states. And that's what will happen if (1) we don't pass a federal constitutional amendment banning gay marriage and (2) the U.S. Supreme Court, for once, butts out.

So my recommendation? There are moments in our nation's history when our mighty federal government must rise to the challenge of doing nothing. Now is one of them.

And Jeff's (paraphrased):

Jeff's addresses the case more directly than does Jon. He finds that the opinion is sloppy, and (he notes rhetorically) apparently written to inflame social conservatives and inspire a backlash.
His critique of the opinion is this: There are generally two ways that courts have found a constitutional right to gay marriage-
1) Marriage is a fundamental right, so barring two people from marriage gets strict scrutiny from the court (the law has to reflect a compelling government interest and be narrowly tailored to such interest). There is no compelling gov. interest in keeping gays from being married.
2) Barring gay marriage is a form of sex discrimination. If Mr. X were a woman, he could marry Mr. Y...but being a man prevents X from such marriage.

(Rosen runs through his relative opininos to the above arguments).

In the Massachusetts Supreme Court decision, though, the Court uses neither of these somewhat paradigmatic arguments. Rather, the Court determined that there is no rational basis for the bar against gay marriage. (Any law that's ever passed must have at least a rational basis. If a court finds no such basis, the law's no good. BUT - as Rosen emphasises - rational basis is very very easy to show. For the most part, rational basis review means the court allows the law.)


On the rational basis route:
A quick note in response to Rosen:
Rosen's great concern is that the court pulled the novel stunt of finding no rational basis for the gay marriage bar. One is reminded, though, of Kennedy's opinion in Romer v. Evans. There, the Supreme Court invalidated a Colorado law that repealed all local laws in the state that prohibited sexual orientation discrimination. Kennedy simply found no rational basis:

the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and . . . invalid form of legislation.

Romer, 517 U.S. 620, 632.

Caught the late replay of Meet the Press, and was impressed with Clark's hour of discussion. The following thought is an attermpt at something hard to pen: Clark spoke in the tone of voice that I enjoyed so much in him during the past year, and summer before he entered the race. The hard-to-pen bit is this- he doesn't talk down to the questioner. He doesn't turn his answer into a simplified sound bite. Of course, Meet the Press is usually a pretty straight talking show anyway, but I found Clark returning t oa voice that he sort-of abandoned in the past month. Most impressively, he delivered his stance on Iraq very very well. Indeed, listening to him, one gets the sense of just how stupidly simplistic our press has become; which, by the way, is manifested in its continuing desire to paint Clark as going back and forth on Iraq.

Supreme Court Rules:American people unfit to govern

I agree with my media law professor Marshall, this is the best Onion article ever.

Blogging the 30 hours


After watching myself to sleep last night, here are some general thoughts on the "debate."
The GOP brought on this 30 hour marathon in the hopes of convincing Americans that the Democrats are henchmen for Satan with their use of the filibuster in order to block four Bush nominees to federal bench.
Their appeal is this: every judge that gets to the floor of the Senate deserves an up or down vote. The Democrats have changed what would be a simple majority vote (51- which the GOP would win in a party line vote) to a supermajority vote (60, in order to overcome the filibuster). The Repubs argue that the Dems are wrong to use the filibuster on the vote for nominees, thus requiring a supermajority to get a vote on the nominees.

The GOP appeal, put in simplistic terms, is..well, appealing. There's no more simple request than an up or down vote, right?
But, when the citizen learns about the nomination process, and Senate history, that simplistic appraoch corrodes, and the Dems' action looks more and more reasonable.
For that reasons, I think the GOP 30-hour debate on this topic will backfire. I predict the Democrats will come out the "winners" here. The reason is two-fold. 1) the Dems will that they are acting reasonably. As far as I've been watching- they are stressing that 98% of Bush's nominees have gone through. This percentage is much greater than Clinton's nominees. The Dems are also doing a good job to show that their filibusters are less eggregious than the holds that the GOP put on so many Clinton nominees (63 were blocked from getting votes--20% of his nominees). The GOP did not even let the nominees get to the Capitol. On the other hand, the Dems brought in the nominees, listened to them, and thus educated, used the filibuster to block nominees the Dems found unsuited.
2) the Dems have used their half of the discussion to ask a larger question: why are we here talking about 4 people who did not get a job, when we should be putting this energy to getting the job market in general back on track. Lots of Dems are getting up and using their time to point to some major public issues...and then asking why we're talking about these four nominees. They answer they're own question as thus: because the GOP will not be happy until they have absolute control- until the Senate is merely a ruber stamp for Bush.

The above is the basic 2 prong line being used by the Dems. I'm finding it effective--but will be excited to see what the media picks up.

Constitutionally, the Dems are right.
As you know, the President nominates federal judges. Pursuant to the Advice and COnsent clause of the Constitution, the Senate affirms the nominee. But with that latter step, the Senators (both parties) are afforded various chances to block nominees they don't like. Traditionally, this is done early. A single Senator, from the same party as the Pres, can usually ask that a particular judge not be nominated. The other major obstruction tactic is used by the Judiciary Committee. That committee takes up the nominee and sends the nominee to the floor upon committee approval. Thus, if the majority party doesn't want a nominee, the committee simply never brings up that nominee. While the Republicans held the Senate with Clinton in office, this tactic was used often. The Dems used it to some extent while in power under Bush.

Here's the question: is a filibuster (that blocks a nominee after that nominee went to the judiciary committee) fundamentally different from blocking a nominee before the Judiciary Committee hears the nominee?
I think pre-hearing holds are substantially the same as the current use of the filibuster.

---------
some other sources:
The Center for American Progress has some words. Dismisses the 30 hours as a GOP and Fox News vigil in order to grab some PR.

----------
Another update: it's quite funny to hear both sides quoting each other from four years ago- when the two parties were on opposite sides of this issue. Back then, of course, Dems wanted every nominee to get a vote, and ideology not considered- while Repubs defended the power of the Senate as a place to refuse nominees, and to guard against ideological judges. Now....vise versa.
-----
some highlights whilst i listen

Schumer: 184 to 4

Feingold: we need to debate manufacturing losses. That's an issue of far more magnitude.

Hatch: Constitutuional duty for up or down vote.

Feinstein (7:42pm): GOP blocked Clinton nominations without so much as a hearing. At least Dems give hearing, and make decision to block with knowledge.
She's making a larger point that the GOP has put nomination process in a new confrontational light.
Rule 4. Senate rule preventing closing off debate on nominee unless at least 1 minority member agrees. One of the only protections for minority party in Senate- protects delibrative body.

Durbin (7:57): bashing federalist society. Advice to young law students that want to be a republican nominee: join the federalist society and don't miss a meeting.
I hadn't known this--apparently, all 168 Bush nominees that have been approved have been members of the federalist society. Is that right? I'll have to check that.

Fox news bashing. (Durbin still) Apparently, fox news asked the GOP senators to come out right at 6pm, so as to be live at the opening of Brit Hume.

----
The GOPs are focusing on never before used filibuster. (This is untrue).

Dems are stressing that GOP denied Clinton nominees votes - and also denied hearings.
-----

Senator Bayh: partisans alone will be satisfied by the 30 hour debate. Senate has become a farce- nothing but sound and fury.
Bayh bemoans a cycle of constant recrimination. Minority obstructs to hold some power, then turns around and complains when in power, and the new minority obstructs.

Where's the rage?

For the second time, Kristoff writes a column in the NY Times bemoaning vitriol. For what it's worth, I more than agree with the notion that hate-rhetoric gets us nowhere. But Kristoff seems intent to assume that Bush-hatred has reached the same levels as did Clinton-hatred.
Again, Kristoff cites the New Republic piece defending 'Bush-hatred.' And again, it seems Kristoff has not read the article. In it, John Chait confesses a personal distaste for Bush. It is that, I suspect, that Kristoff (and I) regard with suspicion. However, the thrust of Chait's article is to say 'while I might not personally like Bush, the reasons not to like his policies are what's important...' The article then goes into a very thoughtful and detailed criticism of Bush-politic.

Yet, for all its pervasiveness, Bush hatred is described almost exclusively as a sort of incomprehensible mental affliction. James Traub, writing last June in The New York Times Magazine, dismissed the "hysteria" of Bush haters. Conservatives have taken a special interest in the subject. "Democrats are seized with a loathing for President Bush--a contempt and disdain giving way to a hatred that is near pathological--unlike any since they had Richard Nixon to kick around," writes Charles Krauthammer in Time magazine. "The puzzle is where this depth of feeling comes from." Even writers like David Brooks and Christopher Caldwell of The Weekly Standard--the sorts of conservatives who have plenty of liberal friends--seem to regard it from the standpoint of total incomprehension. "Democrats have been driven into a frenzy of illogic by their dislike of George W. Bush," explains Caldwell. "It's mystifying," writes Brooks, noting that Democrats have grown "so caught up in their own victimization that they behave in ways that are patently not in their self-interest, and that are almost guaranteed to perpetuate their suffering."

Have Bush haters lost their minds? Certainly some have. Antipathy to Bush has, for example, led many liberals not only to believe the costs of the Iraq war outweigh the benefits but to refuse to acknowledge any benefits at all, even freeing the Iraqis from Saddam Hussein's reign of terror. And it has caused them to look for the presidential nominee who can best stoke their own anger, not the one who can win over a majority of voters--who, they forget, still like Bush. But, although Bush hatred can result in irrationality, it's not the product of irrationality. Indeed, for those not ideologically or personally committed to Bush's success, hatred for Bush is a logical response to the events of the last few years. It is not the slightest bit mystifying that liberals despise Bush. It would be mystifying if we did not.

It is also noteworthy that the issue of the New Republic has two cover stories- one is Chiat's, the other by Ramesh Ponnuru, with this intro: "Liberals loathe Bush because he supposedly promised moderation and delivered right-wing extremism. They're wrong on both counts." It is a critique of Bush-hatred.

So...where is the thoughtless rage that Kristoff speaks of? The only example he cites is from an email...indeed, an email talking about Coulter. I'm not convinced the D.C. pundits and politicoes are suffering the same deranged 'hatred' for Bush as was the case with his predecesor.

We've found the enemy....and it is


Tyler Cowen, at Tech Central Station (via Volokh Conspiracy) on who's to blame for media bias.
We are, of course.

We look to the media for entertainment, drama, and titillation before objectivity. Journalists, to get ahead, must produce marketable stories with some kind of emotional slant, which typically will have broader political implications. The result: it looks like media bias when in fact journalists, operating in a highly competitive environment, are simply doing their best to attract an audience.

...

In sum, media bias may not be as harmful as many people think. It is perhaps sad that we do not look much to the news for objective information, but this same fact limits the damage that slanted coverage can cause. Keep in mind that many definitions of media bias mean that the media think one way, and the citizenry thinks another way. So clearly the media have not succeeded in forcing us all into the same mold.



We should resist the temptation to think that the TV screen, or the newspaper Op-Ed page, or the blogosphere for that matter, is the critical arena deciding the fate of the world. In reality, these media are a sideshow to the more general human preoccupation with stories. We use TV and other media to suit our personal purposes, not vice versa. No, the media are not fair, but they are unfair in ways different than you might imagine. They are unfair because you, collectively, as viewers, want them to be unfair.

The Stein runneth over

Law Professor Eric Muller writes today about Ben Stein's visit to the law school. In the comments section, Barry Jacobs writes:

Hey, be fair! Stein is more than a "actor/comedian," and Coulter more than a "pundit/whacko." They're both well-credentialed lawyers (albeit no longer practicing--much like most of the law professors I know!). Their legal experience informs their outspoken advocacy of their political views, and hence makes them appropriate speakers to address young people (of whatever political bent) who aspire to enter the profession.

and that got me thinking...especially that line, "[t]hey're both well-credentialed lawyers . . . ."

Mr. Jacobs raises a nice topic, albeit going a different direction than would I.

Lots of folks wrote and spoke, in light of Chicks-Robbins-Sheen, etc dissents from the war, about what it means when celebrities speak about social or political issues of the day. I saw more than a few pundits bemoan the pervasive and supposed illegitimate voice that these celebrities were afforded. Why, they wondered, do we care what the dixie chicks have to say about whether we should go to war.
(Of course, the anti-celebrity-with-opinions crowd seemed happy to listen to Darryl Worley's utterly moronic linking of 9-11 with Hussein in his song, 'Have you Forgotten?'.)

In any event, UNC-Law's Federalist Society seems not to be amongst the group of people that disdain certain speakers that achieve supposed legitimacy merely through celebrity status. Rather, the group, I reckon, has embraced the market...higher sales equates with better. Why they've brought in Coulter and Stein to explain the federalist legal philosophy is beyond me.
While Jacobs may know something about the legal work of these two speakers, an attendee of their respective talks (as myself) would be left clueless as to any place where legal thinking informed the discussion. I doubt I need to go further with Coulter. Stein, at least, was more thoughtful - he responded to questions with some sincerity.

BUT- his only real point today was to compare abortion to slavery. his legal points were inconsistent. In slavery, it was morally imperative to abolish what was allowed for in the constitution, and later, the segregation that followed. Thesis 1) sometimes 'judicial activism' is good.

In abortion, the privacy right cum abortion right is an obscene exercise of judicial power that should be condemned. Thesis 2) sometimes 'judicial activism' is bad.

Fair enough. So this is where Barry Jacobs' faith in the informing legal experience of Stein should come in... but it doesn't. This should have been the point in the discussion where the legal thinker delivers some theory as to when it is appropriate to legislate from the bench, and when not. Such enlightenment was not forthcoming.
Rather, Stein gave a wonderful talk about the moral issues in abortion. If you believe the baby's alive, then our legalized abortion is worse than the institution of slavery. While this could amount to a powerful speach, it is not a legal argument.

This all sounds trite, I know- besides, many legal issues share bedsheets with social issues. My only point is this: why Ben Stein? He's a celebrity. And why do we care what he thinks?

I, actually, do. But, I do wonder if the Federalist Society plans to bring in the Dixie Chicks....or perhaps Tim Robbins. We all have someone famous on our side, don't we?

Enron-ing Education

Do we see a pattern?
No child left behind is the single greatest national experiment involving education, ever. It takes the business model of high-stakes testing (highly touted in Bush's home Texas and here in North Carolina) and applies it nationwide. The idea is this: demand that schools produce students that pass the standardized tests--if too many kids fail, the school fails; in which case the school will ultimately have to reorganize, new management, etc.

Nice concept. but it should be just that; a concept that is worked out in some various states so that we can see where it works and where it has flaws.

One flaw is predictable: as it is a business model, won't some schools feel compelled to cheat...and inflate some numbers so that they don't take the 'failing school' label?

The answer is yes, and it looks like U.S. Education Secretary Roderick R. Paige has some explaining to do.
The Houston Independent School District -- wherein Mr. Paige was superintendant before heading to D.C., and showcase of the "Texas educational miracle" that President Bush has touted as a model for the rest of the nation -- is fending off accusations that it inflated its achievements through fuzzy math
From the Post:

During his tenure, Paige formed a political alliance with Texas Gov. George W. Bush, who became an ardent advocate of accountability and high-stakes testing. After Bush was elected president, Paige's ideas became the inspiration for the administration's "No Child Left Behind" plan, aimed at raising educational standards nationwide. Schools now face penalties for failing to show improvement in such things as dropout rates and reading scores.

the present to-do is about drop-out rates.

Austin is one of more than a dozen Houston high schools caught up in a burgeoning scandal about the reliability of their dropout statistics. During a decade in which, routinely, as many as half of Austin students failed to graduate, the school's reported dropout rate fell from 14.4 percent to 0.3 percent. Even a Houston school board member calls the statistic "baloney."

go give a read for details.

Herbert on an Edwards line.

Wednesday morning reads


Don't think the imminent threat line was cast out in PR before the war? Josh Marshall's article in The Hill addresses the issue. Language in politics is a theme for Marshall- one which I'm glad he's pursuing.


Find Law's Sherry Colb writes a commentary on the third circuit Court of Appeals ruling in United States v. Dejesus-- that prosecutors may use "peremptory challenges" to eliminate jurors who are very religiously involved. A great church and state issue- covered well here.


Are Democrats backing off Howard Dean? Here is Hesiod's soliloquy on his lost faith in the Doctor. while its just a blog- I have always felt the thrust of Dean's campaign is in the internet. Thus, the blogger's sentiments are quite pertinent.


Finally, this nice piece of satire on "the Reagan's" opposition.

There are those that would control your mind

This is utter crap:

Under pressure from Republican and conservative groups, CBS is expected to announce as early as today that it is canceling its plans to run a two-part mini-series in November deconstructing the Ronald Reagan presidency, two people close to the decision said last night.
...
The announcement would perhaps the first time a major broadcast network has ever removed a completed project from its schedule because of political pressure and under the threat of an advertising boycott.
...
CBS executives have been reworking the film over the last week, trying to fix what many critics - none of whom had seen the film and were relying mostly on a report in The New York Times about its contents - called inaccurate and unfair portrayals of the former president.

The CBS chairman, Les Moonves, became concerned amid those complaints and ordered a revision of the film, several people close to the process said.