if you think about it...

If you think about it...
I've hesitated from a full out criticism of our Defense Secretary. I'm not much on military smarts. And what has been the biggist popular critism--that Rumsfeld under-trooped our venture in Iraq--is, I think a product of his ambition to slim down the military. My gut reaction is to agree with the notion that we can modernize our military and become less human-life dependant.

However, the under-trooping was also a product of miscalculating the Iraqi insurgency. Even I remember fearing that blowing the lid off Iraq would scatter weapons for street revolters.

This latter point is open for criticism. Miscalculating is human--albeit less-excusible if you are the defense secreatary. But add to that disingenuity, and we have something worrisome indeed. For those untroubled, may I commend this New Republic online article. An important summation of Rumsfeld's recent handling of our troop's concerns.

indecent greeks

We've been speaking of the FCC of late, and an issue in the comments section has been indecency.

Apparently, now, the FCC is reviewing tapes of the opening ceremony of this summer's Olympics- in response to indecency complaints. A bunch of webloggers are flipping their lids on this- so in order to throw a bit of water on the flames: this is an automatic response by the FCC. If people complain, the FCC takes a look. Most likely, the FCC will find no actionable indecency. While I disagree with the complaint lodgers, there's lots of people in the tv watching world, with many a trigger for complaint.

We can reflect, though: what do we think is indecent? I'm guessing the complaints toward the Olympics concern the bare bodies, frolicking lovers, or pregnant woman in the pond. There certainly were sexual themes; but, I would venture, a vast majority of viewers saw this as artistic rather than indecent. Do we come, then, to a what-makes-it-art-rather-than-porn question?

I'm being open ended because I want some comments on this one. Largely, am I right that most of us saw no indecency? And 2) does it having been artistic, or tasteful, have something to do with this?

Local Government tax incentives

Dept. of Local Government Beware
Local governments often offer corporations tax incentives to locate their offices and plants within the locale. It's a common enough scheme: lose some dollars in tax revenue but gain jobs, economic growth, and so on. It is so common, in fact, that I've never much thought of the obvious constitutional problem.

In Cuno v. Daimler Chrysler, though, the Sixth Circuit Court of Appeals rules that this set-up violates the commerce clause of the Constitution. That clause gives control of interstate commerce to the federal government; and by extension, if local/state governments interfere with interstate commerce, the local government has invaded the fed's turf. This bit of law is the dormant commerce clause.

The tax incentives for local business scheme is so old, though, certainly this has come up before. Yes, it has. As the 6th Cir cases discusses, the Court has set this precedence:

A tax provision satisfies the requirements of the Commerce Clause if (1) the activity taxed has a substantial nexus with the taxing State; (2) the tax is fairly apportioned to reflect the degree of activity that occurs within the State; (3) the tax does not discriminate against interstate commerce; and (4) the tax is fairly related to benefits provided by the state. See Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977).

...Indeed, the United States Supreme Court has indicated that the Commerce Clause "does not prevent the States from structuring their tax systems to encourage the growth and development of intrastate commerce and industry," nor does it prevent a state from "compet[ing] with other States for a share of interstate commerce" so long as "no State [] discriminatorily tax[es] the products manufactured or the business operations performed in any other State." Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318, 336-37 1977); see also Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 272 (1984) (the federal Commerce Clause "limits the manner in which States may legitimately compete for interstate trade"). Rather, the parties dispute whether Ohio's method for encouraging new economic investment - conferring investment tax incentives and property tax exemptions - discriminates against interstate commerce.

The issue, then, has arisen. But, apparently no ruling has done much to stop the practice. And you have the Court saying 'you can give tax incentives to corporations in order to woo their local enterprise. So, how does this case reach its conclusion? The problem, it turns out, is in the tax scheme's discrimination towards other states. From the opinion:

Although the investment tax credit at issue here is equally available to in-state and out-of-state businesses, the plaintiffs nevertheless maintain that it discriminates against interstate economic activity by coercing businesses already subject to the Ohio franchise tax to expand locally rather than out-of-state. Specifically, any corporation currently doing business in Ohio, and therefore paying the state's corporate franchise tax in Ohio, can reduce its existing tax liability by locating significant new machinery and equipment within the state, but it will receive no such reduction in tax liability if it locates a comparable plant and equipment elsewhere. Moreover, as between two businesses, otherwise similarly situated nd each subject to Ohio taxation, the business that chooses to expand its local presence will enjoy a reduced tax burden, based directly on its new in-state investment, while a competitor that invests out-of-state will face a comparatively higher tax burden because it will be ineligible for any credit against its Ohio tax.

I can't tell if this is all a bit of legal play, or a real difference from other cases. I'm no tax whiz- but it seems this would always be the case when states offer tax incentives. If so, the case will have far reaching impact and local governments everywhere will be watching the appeal to the Supreme Court. This will be fun.

Now- getting away from the case, what do we think of the tax incentives. I, quite honestly, had never given it much thought. That has changed. One, it seems suddenly clear that this is a dormant commerce clause problem. Moreover, as this James Surowiecki comments in the New Yorker, these incentive schemes do more harm than good. It is an excellent piece, so give a read. He points out the local government shopping that businesses do when considering a plant, with the loser so often being the winning bidder.

local governments beware

Read this. I have to run, and will comment on this soon. Briefly: do you think tax credits given by local governments to lure in business are 1) a good thing, and 2) constitutional. The case linked to says no to number two. Very exciting.

Thomas

Dems, learn this lesson: Never, ever, ever dismiss a conservative as dumb.
As the New Republic points out in their blog, our new Senate Minority leader latched on, during Meet the Press, to the idea that Justice Thomas doesn't have the smarts to be on the Supreme Court.
Folks. Thomas is smart. Very Smart. Read this, a book review from The New Republic- pointing out the inanity of underestimating Thomas' intelligence. As far as politics go- this tendancy to dumb-label only costs us votes. Why do you think so many people feel they'd like to have a beer with Bush?

By the way, conservatives have learned the lesson. They never call us (lefties) dumb. 1) they realize that alienates tons of folks. But, largely, it excuses the subject from his works...as dumb mistakes, rather than contrived what have you. Rather, conservatives, to be very very broad here, use words like "seductive," and "clever." Watch and listen. You'll see.

new law blog

Go visit Professors Becker and Posner's new weblog. Currently, they are posting once a week (Mondays).

Judge Posner is the fedral judge/law professor at UofC, and Becker is the Noble Prize wining economist at the same school. I can assuredly project that this will be a consistently fun read. Here is their introduction to the blog:

Blogging is a major new social, political, and economic phenomenon. It is a fresh and striking exemplification of Friedrich Hayek's thesis that knowledge is widely distributed among people and that the challenge to society is to create mechanisms for pooling that knowledge. The powerful mechanism that was the focus of Hayek's work, as as of economists generally, is the price system (the market). The newest mechanism is the "blogosphere." There are 4 million blogs. The internet enables the instantaneous pooling (and hence correction, refinement, and amplification) of the ideas and opinions, facts and images, reportage and scholarship, generated by bloggers.

We have decided to start a blog that will explore current issues of economics, law, and policy in a dialogic format. Initially we will be posting just once a week, on Mondays. In time we may post more frequently. The first postings will be tomorrow, December 6.

You can find the link under my "legal" dropdown menu.

Times op-ed Floor

To be a fly on the N.Y. Times' editorial floor. The eds think, apparently, that their columnist, Bill Safire, is a hound.

All the same, after reading Safire's series on the UN's oil for food program with Iraq, and his calls for Annan's resignation ...

This marks the end of the beginning of the scandal. Its end will not begin until Kofi Annan, even if personally innocent, resigns - having, through initial ineptitude and final obstructionism, brought dishonor on the Secretariat of the United Nations.

...(joined by many many others) and then reading the Times' editorial today, one feels happy for the pluralistic thinking at the grey lady.

From the Times today:

Mr. Annan, who drew the wrath of Republican Washington for opposing President Bush's war in Iraq, will have to face the judgment of United Nations members on how much responsibility he bears. But before the call for his scalp gains more political momentum, it is important to disentangle the melange of charges swirling around. The United Nations bureaucracy does not bear the primary responsibility for letting Saddam Hussein amass a secret treasury estimated by official investigators at $10 billion to $21 billion.
...
But the ever-shriller attacks on oil-for-food and on Mr. Annan play down this fact: Iraq accumulated far more illicit money through trade agreements that the United States and other Security Council members knew about for years but chose to accept.

And then...

Kofi Annan's role will also have to be laid out fully. He has, unfortunately, issued inconsistent statements about the role of his son, Kojo Annan, in working abroad for a Swiss company that won a contract to monitor imports under the oil-for-food program. The whiff of nepotism has set the hounds baying, and may bring grief to Mr. Annan, but what all that has to do with Saddam Hussein's illicit billions remains murky. It seems wildly premature to call for Mr. Annan's resignation.

High Speed slow down

Phone companies were forced to allow internet providers use of their lines. This makes sense- imagine the cost of interent use if aol, et all laid down their own lines. And imagine the construction if each new utility laid down its own lines.

So, shouldn't cable companies also share their lines with high speed internet providers? The Court decided today to hear the case. The question is whether cable is a "telecommunications service," and thus subject to the FCC rules that govern phone lines. Chairman Powell says no. Here is his reaction:

High-speed Internet connections are not telephones, and I'm glad the Supreme Court has agreed to review the 9th Circuit's ruling that they are. The 9th Circuit's decision would have grave consequences for the future and availability of high-speed Internet connections in this country. As the Commission is uniquely charged with the task of promoting the deployment of such advanced services to the public, we look forward to our opportunity to present our case before the high court.

Grave consequences? Like the grave consequences when phone companies had to lease lines to internet providers, and costs went way down?

FCC sum up

Understanding the FCC and Communications Law.
Chairman Powell offers a very good summation, in today's Times, of communications law and the FCC's role within. He is responding to some of the hype as of late, and I agree with his position. (For instance, giving a ruling before the airing of Saving Private Ryan would have been a prior restraint, running afoul of the 1st amendment.) But it is also simply a nice primer on the FCC's function under current law. As an example:

The F.C.C.'s job of regulating indecent content on the airwaves is not optional; it has been required ever since Congress first made the broadcast of obscene, indecent and profane material illegal more than 70 years ago. The law continues to enjoy strong bipartisan support.

Even so, there are important limits placed on the F.C.C. Our rules do not ban indecent content entirely; they merely restrict its broadcast during times in which children are likely to be in the audience, namely from 6 a.m. to 10 p.m. Courts have consistently held these rules constitutional, accepting that the government has a compelling interest in protecting children from inappropriate material.

For material to be indecent in the legal sense it must be of a sexual or excretory nature and it must be patently offensive. Mere bad taste is not actionable. Context remains the critical factor in determining if content is legally indecent. Words or actions might be acceptable as part of a news program, or as an indispensable component of a dramatic film, but be nothing more than sexual pandering in another context. That context and the specific facts of each program are reasons the government can't devise a book of rules listing all the bad stuff. In 2001, however, the agency issued policy guidelines summarizing the case law on indecency, and each new ruling since then clarifies what is prohibited.

New York's Leandro

Leandro comes to New York.
In North Carolina, the Constitutional demand for a sound, basic education is old, well- at least middle-aged, news. New York state courts have just made the same conclusion.

The Times has an interestingly annoyed take on this. The schools are, now, "wards of the court." The Times' complaint, in its editorial today, is that school officials and local leaders failed to act, where acting would have prevented the drag that is the courts. Now, durnit, we have to pay up.

I'm not sure I agree. From what I can tell, the Times is arguing that the courts will demand a much higher payment to the schools, where negotiations between local officials could have prvented what will now sall for some creative (if we don't increase taxes) fundraising. Sure- this is problematic.

But I'm not sure that having a sound, basic education declared a constitutional demand is all bad. We've talked recently about creating rights on this weblog. (Given, the "sound, basic education" isn't so judge-created when it's in the text of the state constitution itself, is it?) In education policy, I am in favor of both the Leandro declaration and New York's entry to the club.

Raich, Federalism, and stuff

Commerce Clause.
If the federalism post below was a bit short on the commerce clause, may I refer you to this offers a nice, albeit tinted, overview. The webpage decries the expansion of Congressional power, under the commerce clause, in the mid to late part of the century.

Also, let me recommend your going to the Volohk Consiracy. The lawyer that argued for Raich is a mamber of the legal weblog. See this post, for instance.

And here's another poster from the Conspiracy getting at what is mentioned in the post below:

[Nina Totenberg] ended her segment by suggesting that "by the end of the argument, it wasn't clear that Barnett had even one vote for his position," or words to that effect. Solum's transcript of the argument suggests otherwise, and I think that Randy did a great job. Whether that will be enough to overcome the statist liberal obssession with ensuring that every aspect of human life may be regulated by the federal government (despite a profound lack of constitutional legitimacy for such a position), and the statist conservative obssession with making marijuana users into criminals, remains to be seen. I'm not optimistic, largely because I think that the Court tends to take cues from the political branches, and the conservatives Randy needs to win over aren't exactly getting the sort of strong limited-government signals from Republicans in Congress they were getting in 1995, when the Court began its so-called "federalism revolution" (hah!) in Lopez.

federalism goes to pot

Federalism Goes to Pot. (updated)
The Supeme Court heard arguments today on California's Compassionate Use Act, the 1996 initiative that allows marijuana growth and use where doctors deem appropriate. The case today came after federal agents prosecuted a California woman that grew and used marijuana to treat a degenerative spine condition. She and another woman sued the federal government, arguing that the federal Controlled Substances Act, under which the federal agents prosecuted the marijuana use, does not prevent people in California from using marijuana permissible under the California law.

I am not sure exactly how the legal issues are framed. Apparently, the California women seek an injunction against federal action that conflicts with state law on marijuana. A New York Times editorial suggests they are arguing that the federal law reaches beyond what is permissible under the Commerce Clause. That editorial, though, reveals the odd relationship people have with the commerce clause.

In criticizing the states-autonomy crowd, The Times thinks, incorrectly, that "the
Advocates of states' rights have latched onto this case and are urging the court to use it to radically rewrite its commerce clause rulings, reviving ancient precedents that took a more limited view of Congressional power." The advocates may have so latched- but the precedents here are more watery than the Times implies. Congressional power under the commerce clause is far from set in stone. The scope of federal congressional power has waxed and wained over the years. In the same editorial, The Times correctly notes that the scope has narrowed of late.

The reception to lawmakers' scope under the commerce cause problematically changes; usually, the Court observer's views shift with the federal policy at play. For inststance, many of those that complained that Lopez was wrong to say that guns were outside the scope of interstate commerce will now jump to argue marijuana is outside that scope. And, of course, visa-versa.

I fear the Times editorial displays this trend. Like the majority writers for Bush v. Gore, the Times wants a narrow ruling on these facts alone. The California marijuana use ought to exist outside the commerce clause because it has nothing to do with interstate business. The Times does not explain, though, why medicinal marijuana use and growth is unconnected to interstate commerce while guns in schools (or bathrooms in restraunts, for that matter) are.

The commerce clause has done a great deal to bring progress where state governments have blocked it. My thought right now is that we have to take the oyster with the pearl, and accept broader rather than stricter congressional power. I was anti-Lopez; thus, I think I need to be pro-Controlled Substances Act.

Still, I do not abandon the notion that my jurisprudential attitude can change with policy. There are plenty sound thinkers in the pragmatists school.

umbilical cords

Umbilical cord blood stem cells used to successfully treat spinal injury.
This is a hopeful story- as umbilical cord stem cells are very much less controversial, ethically, than embryonic. Here's Yahoo News:

Hwang Mi-Soon, 37, had been bedridden since damaging her back in an accident two decades ago.

Last week her eyes glistened with tears as she walked again with the help of a walking frame at a press conference where South Korea researchers went public for the first time with the results of their stem-cell therapy.

They said it was the world's first published case in which a patient with spinal cord injuries had been successfully treated with stem cells from umbilical cord blood.

Though they cautioned that more research was needed and verification from international experts was required, the South Korean researchers said Hwang's case could signal a leap forward in the treatment of spinal cord injuries.
...
Medical research has shown stem cells can develop into replacement cells for damaged organs or body parts. Unlocking that potential could see cures for diseases that are at present incurable, or even see the body generate new organs to replace damaged or failing ones.

So-called "multipotent" stem cells -- those found in cord blood -- are capable of forming a limited number of specialised cell types, unlike the more versatile "undifferentiated" cells that are derived from embroyos.

However, these stem cells isolated from umbilical cord blood have emerged as an ethical and safe alternative to embryonic stem cells.

Clinical trials with embryonic stem cells are believed to be years away because of the risks and ethical problems involved in the production of embryos -- regarded as living humans by some people -- for scientific use.

In contrast, there is no ethical dimension when stem cells from umbilical cord blood are obtained, according to researchers.

Additionally, umbilical cord blood stem cells trigger little immune response in the recipient as embryonic stem cells have a tendency to form tumors when injected into animals or human beings.

For the therapy, multipotent stem cells were isolated from umbilical cord blood, which had been frozen immediately after the birth of a baby and cultured for a period of time.

Then these cells were directly injected to the damaged part of the spinal cord.

Still- no ethical dimension? I'm guessing ethics still comes in.

The view from 47th Street.

Chrissy and I saw the Croc Hunter floating and waving down Broadway, followed by mega balloons. Something was up.
Everybody loves a parade. I'm wondering why there hasn't been a StayPuff Marshmallow Man featured yet?

frisell

Those of you familiar with my cd collection will know why I squealed like a lil school boy upon seeing the Village Vanguard schedule for early December:

The Bill Frisell Quintet; with Ron Miles, Greg Tardy, Tony Scherr, and Kenny Wollesen.

I 'bout fell out the boat.

pro punch

When Ballers Brawl.
I didn't figure I'd post anything on player/fan fighting in pro sports. But, sometimes, I read a counter opinion that is so good, I am compelled to submit my own opinion so as to have an excuse to link to another.

This is not a good guy vs. bad guy situation. The fan is stupid to throw a cup. Wallace is stupid to shove. Artest did many stupid things--namely, the initial foul against Wallace, who'd just lost his brother to cancer. A plethora of bad behavior was on display in Detroit.

Folks, though, want inherently to blame someone in particular. Who was most at fault? My simple opinion is Artest. As the professional in this context, the higher degree of responsibility rests on him. Regardless of where the chain of events began, the professional has the responsibility to stop it.

Of course, I can already see problems in that analysis: is part of his profession quelling fights? I say yes- in that, in a physical sport, fould happen. Players have a responsibility to have cool nerves. They also have a responsibility, as performers, to ignore threats from the audience. Artest breached that responsibility.

Anyway- the point of this post is to link to this great comment from DailyKos. Largely, it responds to the general contempt given to professional athletes.

Happy Thanksgiving, all.

spur it on

Anti-Duke Post for november 24, 2004.
It is nice to see major media give criticism where criticism is due. It is also nice to see some vindication for the fears we Carolina fans felt upon rumors that Steve Spurrier might come to coach our Tarheels. Yes, there were those misguided fans that wanted to replace "the Heart" Bunting with "the you can read his lips saying $%^$" Spurrier. It is one thing to want wins. It is another thing, altogether, to get those wins from a dookie.
The Times comments, today, on Duke football coach (ok, and then Florida, and then Redskins) Steve Spurrier. For those Carolina fans that looked, confused-othello-like, longingly at Spurrier, a more prescient anology serves well: imagine Coach K doing the Sunday morning wrap up with Woody Durham.
Here is the Times, on the new SC coach:

Sorenson [University of South Carolina President] explained how he couldn't excuse the Gamecocks' uncivilized outburst on the field because it would be "the rankest form of hypocrisy," as he told The State in Columbia, S.C., on Monday; then he embraced a new coach who ranked No. 1 in taunting his Florida State rivals at "Free Shoes University."

This same ball coach has also experienced visor rage and a need to bully the protractor crowd at Vanderbilt as if extra touchdowns made up for lost SAT points. He has revealed a wicked game of musical chairs when choosing his quarterbacks and an unapologetic venom toward the cuddliest granddaddy in Oakley shades, Bobby Bowden.

It was always great theater - until someone got punched, chop-blocked or blindsided. This unsportsmanlike history, however, was not part of the grand presentation yesterday as Sorenson introduced the one and only Steve Spurrier to be the head coach of the South Carolina Gamecocks.

heels

Got to see the Heels Basketball for the first time this season, last night. Almost made me feel sorry for BYU. We look good. We also look alot like last year, just better. The players, I think, will have the same group dynamic. So, even though this time around we are an old team- we will be fun to watch.

supremes

Jeff Rosen, over at TNR digital, runs through eight supposed top-of-the-list-ers for Bush Court nominees. He separates them into two groups: principled conservatives and conservative activists. The descriptions of each judge, along with his brief intro and conclusion, do well to fight the great rhetorical trick that is "activist judges."
Here, Rosen describes four potential nominees as activists; generally libertarians that want to undo post New Deal precedent and return the Constitution to "exile." The other four, argues Rosen, believe the courts should defer, as much as possible, to legislators. Always.
Here are bits from Rosen's intro and outro:

According to administration officials, there are eight candidates on Bush's short list, all of whom fit the bill. Senate Democrats will try to distinguish between conservatives and moderates by focusing on the candidates' views of Roe v. Wade. But the more important distinction is between principled conservatives (who believe in deference to legislatures through judicial restraint) and conservative activists (who are determined to use the courts to strike at the heart of the regulatory state). The activists want to resurrect what they call the "Constitution in Exile," enforcing limits on federal power, that have been dormant since the New Deal, in part through narrow interpretation of the interstate commerce clause.
...
Democrats have to be realistic about a Bush nominee to the Supreme Court rather than be distracted by Roe v. Wade. Their best hope lies in a principled conservative judge as opposed to an activist eager to undermine Congress's power in the name of the Constitution in Exile. By this measure, Alito, Brown, Clement, or Garza may be worth a Senate fight. Luttig, McConnell, Roberts, or Wilkinson, by contrast, could well be distinguished appointments.

Good article if you want a quick review of the nominees we'll be hearing about oveer the next four years.

new view

My view...


...except it's daytime. While I usually do my internetting these days at a Chelsea coffee shop, Chrissy brought me to the seaport today, pier 17. Found a table with a nice view of the Brooklyn Bridge to the left, and Gov's Island to the right. Oh, and the Statue of Liberty pops over a building further to the right. Not so bad.

tax

Don't you think majority chairs in some congressional committess should be able to have free access to income tax returns of ANYBODY without general privacy protections?
So does Oklahoma Republican Ernest Istook, the member that inserted this into the appropriations bill:

Hereinafter, notwithstanding any other provision of law governing the disclosure of income tax returns or return information, upon written request of the Chairman of the House or Senate Committee on Appropriations, the Commissioner of the Internal Revenue Service shall allow agents designated by such Chairman access to Internal Revenue Service facilities and any tax returns or return information contained therein.

Frist says Rep. Istook specifically asked for the provision. From the Guardian:

`"There will be no window where this will be law," Senate Majority Leader Bill Frist said. He referred to the provision as the Istook amendment and congressional aides said it was put in the bill at the request of Rep. Ernest Istook Jr., chairman of the House Appropriations Committee's transportation subcommittee.

Oops..

delays expected

Really. Can we step back and ask why this isn't res ipsa loquitur?
msnbc news:

Republican lawmakers struggled in closed session before ending a requirement that leaders indicted on felony charges relinquish their positions. Republicans will now decide a House leader's fate in a case-by-case review.

Welcome to the unveiled world. Guess what moral compass led to this decision by the House Repubs.

Call them on their bluff

The next Governor of New York.
Speaking of Eliot Spitzer, the NYAG writes a column for The New Republic Online with which I thoroughly agree. It is high time, he argues, that Democrats call the GOP out on its deceptive rhetoric. THE reason I am skeptical of our President is that he embodies (and embraces?) what I find most hidious on politics: empty rhetoric. This is different from saying one thing and doing another. There, at least, the public figure proposes something of substance against which we can measure her performance. It is more difficult, though, for opponents to find effective, public rhetoric atacking a failure in "Compassionate Conservativism" or the "ownership society." It is as if Bush constantly says 'you can read my lips;' but, never lets his lips usher anything readable.

Here is Spitzer:

Consider the "Ownership Society," a term Republicans use to describe their vision of the American dream--an environment where any American, no matter his or her station, can compete and achieve financial success, security, and a lasting stake in their community, all by dint of hard work. So integral to Republican political imagery are these phrases that it is hard for some voters to imagine that a Democrat can even say them, much less believe in them.

But, even as Republicans invoke pleasant-sounding slogans at every turn, they pursue policies that undermine the values they claim to represent. Take the following three recent scandals: conflicts of interest among Wall Street analysts, who duped small investors with tainted research; predatory lending, which imposed illegal and unconscionable mortgages on homeowners; and illegal practices of mutual-fund traders, who skimmed billions from people saving for their kids' college tuitions and their own retirements. In each of these situations, the Bush administration and congressional Republicans not only impeded the investigations but actually proposed legislation that would preempt the ability of state regulators to combat the problems.

Through these and other actions, the Ownership Society is revealed as an empty slogan that should have been turned against the Republicans. Some might say that this is an unduly negative approach, certain to turn off voters. I disagree. Highlighting the disconnect between the Republicans' sound bites and the alarming reality of their policies is fair game. And it would have been an even more effective strategy if coupled with a passionate articulation of our commitment to fairness and equal access to the American dream.

Read his whole column here.

Spitz for Gov

NY Politics.
It is quite big news, if you've been following NY State politics, that Senator Schumer today ruled out a run for Governor. Pundits have long been awaiting a Schumer/Spitzer showdown in the primaries, now quickly approaching. I must say, I'm happy to not see the two go at it. I am only curious, now, if Spitzer will really be happy as Governor, unable to Sue for the People.

Schumer goes on to head up the Democratic Senatorial Campaign Committee and takes a seat on the Finance Committee. With that power, is it an suprise he says: "I've been a legislator my whole life, it's what I know how to do. I know people didn't believe me, but Senate was the only thing on my radar screen."?

As for NY's current gov., Pataki: he gets mentioned as a possible GOP presidential candidate in 2008. It just occured to me--in speaking and presence (style, not substance), Pataki sort of reminds me of Gephart. Anyone else get that?

InSpecter Chairman

Specter for Chairman.
The Pennsylvania Senator, Arlen Specter, is the man in line to take over for Senator Hatch as Chair of the Judiciary Committee. The majority leader, though, today made it clear that Specter won't be automatically put in place. This, after Specter said this after Bush won a second term:

When you talk about judges who would change the right of a woman to choose, overturn Roe vs. Wade, I think that is unlikely.

The press and the GOP turned this comment into a small storm. Sen. Frist is still mad. Here he is today, on Fox News:

Arlen made some statements the day after the election. They were disheartening to me, they were disheartening to a lot of people.

So, what exactly was disheartening to Frist? What is disheartening to the majority leader is the prospect of a vocal pro-choice Republican heading up the judiciary. This, though, is translated into the code language that Specter will have a litmus test for Judges and Justices sent by the President for confirmation. Let us, then, look at that claim.

Remeber the process: the President appoints a jurist, and the Senate gives advise and consent. While reasonable people differ as to the extent the Senate ought to screen judicial candidates, no one (reasonably) argue the Senate should apply no screen whatsoever. Asking some questions within the Judiciary Committee is uncontroversial--what is your experience, how do you approach a case, etc. So, within this process, what is a litmus test? Screening out jurists untrained in the law might be such a test; but is, I doubt, controversial.

The question of judicial approach garners the conflict. And the problem is not in differeing approaches to judicial decision making--it is in the problematic code language used by both sides. Specter's comments dealt specifically with the treatment of precedent. Some people believe in 'super-precedent,' cases so entrenched as to be basically inpenetrable. In other words, cases whose rights-giving can't be overturned. Other people believe anything is vulnerable. Specter is of the former belief, Frist, apparently, of the latter. Of course, one has difficulty seeing through their jungle of code language.

The fact is this: the litmus tests exist; they are on both sides, and with different properties. The more aggressive test is on the side of Frist. The Senator is disheartened that the potential Chair lacks the same litmus test; to wit, that the jurist must desire to overturn pro-choice precedent. It is that simple.

A quick analogy may do some help here. Say Specter said: "When you talk about judges who would overturn Brown v. Board, I think that is unlikely." Certainly, Specter is taking a stand on the qualifications of an acceptable jurist. Broadly, Specter might also add that the submitted judges ought to have an accomplished legal training. These are litmus tests, to be sure. More specifically, Specter will demand that nominees uphold strong precedent cases, such as Brown and Roe. Incidentally, Justice O'Connor shares this view. Does Frist want to take this up with her?

Both Brown v. Board and Roe v. Wade are decisions that found constitutional rights that are not explicit in the document. Not everyone agrees such cases are sound law. Brown had its intelligent dissenters (the case Brown overturns, Plessy, is a lesson in strict construction); Roe has its likeminded dissenters. Certainly, the Court's rulings can be overturned. But coming to the Court with a predetermination to so overturn should be called what it is: activism. And seeking that activist judge for the task of overturning particular precedent should be called what it is: applying a litmus test.