Friday, November 25, 2005

The Realignment of 2004...and the road to 2006/08

I´m currently on vacation outside of Cancun, Mexico. I was here two years ago in Thanksgiving 2003 when W was headed into the final turn of his forthcoming 2004 campaign. My father asked me how I thought W would do. Democrat that he is, he was certain the GOP was headed for defeat.

My call: W by 52-48%.

In the end it was W 51, Kerry 48. Not too bad for one year out.

This year there is much hope among Democrats that they can retake the Hill.

Don´t bet the ranch on it. One year is a long time, and it´s always possible that the GOP could blow it. But 2004 looks like a realignment election that will set the Democrats in the minority for the next generation: with a moderately competent campaign the GOP suffers no more than customary off-year losses. They shoul hold both the House and the Senate (minus perhaps a dozen seats in House and two in the Senate), and set the stage for another major win in 2008.

The recent uproar in the House over Congressman Murtha simply digs the Democrats deeper into the same pit: they are once again perceived as the party that would rather quit than fight, and after September 11th that is a route to electoral defeat. Right now, the betting is that the GOP will suffer customary off-year setbacks in the Congress, but if 2006 is made a referendum on handing Iraq over to Al Qaeda, the Democrats might go down rather than up in numbers.

And 2008 looks increasingly bleak for the Democrats: Real Clear Politics publishes a poll showing that Hillary looks increasingly unbeatable among the Democrats...while opposition to her outside the Democratic party appears to be hardening: net anti-Hillary sentiment in the South and the Midwest runs 16-18 points, which is to say, she can´t reconstruct her husband´s coalition, and she can´t compete where it counts. The GOP will take the Midwest, the solid (GOP) South, and the White House.

On the GOP side, McCain has serious problems with his own party, but looks unbeatable in a national election. Among independents, pro-McCain sentiments ran 55-29.

Meanwhile, Hugh Hewitt has a Thanksgiving day poll for the GOP:
I went for McCain on the first ballot, and Condi on the second.

Thursday, November 24, 2005

Happy Thanksgiving...from William Bradford and the Pilgrims

In the little Baptist church in Cleveland where I once attended, we had a very special Thanksgiving service every year. The congregation would get up, and for an hour or two one by one everyone would give thanks for something special in the year.

One of our members would read from William Bradford´s classic history of the Plymouth Plantation:
Being thus arrived in a good harbor, and brought safe to land, they fell upon their knees and blessed the God of Heaven who had brought them over the fast and furious ocean, and delivered them from all the perils and miseries thereof, again to set their feet on the firm and stable earth, their proper element. And no marvel if they were thus joyful, seeing wise Seneca was so affected with sailing a few miles on the coast of his own Italy, as he affirmed, that he had rather remain twenty years on his way by land than pass by sea to any place in a short time, so tedious and dreadful was the same unto him.

But here I cannot but stay and make a pause, and stand half amazed at this poor people's present condition; and so I think will the reader, too, when he well considers the same. Being thus passed the vast ocean, and a sea of troubles before in their preparation (as may be remembered by that which went before), they had now no friends to welcome them nor inns to entertain or refresh their weatherbeaten bodies; no houses or much less towns to repair to, to seek for succor. It is recorded in Scripture as a mercy to the Apostle and his shipwrecked company, that the barbarians showed them no small kindness in refreshing them, but these savage barbarians, when they met with them (as after will appear) were readier to fill their sides full of arrows than otherwise. And for the season it was winter, and they know that the winters of that country know them to be sharp and violent, and subject to cruel and fierce storms, dangerous to travel to known places, much more to search an unknown coast. Besides, what could they see but a hideous and desolate wilderness, full of wild beasts and wild men--and what multitudes there might be of them they knew not. Neither could they, as it were, go up to the top of Pisgah to view from this wilderness a more goodly country to feed their hopes; for which way soever they turned their eyes (save upward to the heavens) they could have little solace or content in respect of any outward objects. For summer being done, all things stand upon them with a weatherbeaten face, and the whole country, full of woods and thickets, represented a wild and savage hue. If they looked behind them, there was the mighty ocean which they had passed and was now as a main bar and gulf to separate them from all the civil parts of the world. If it be said they had a ship to succor them, it is true; but what heard they daily from the master and company? But that with speed they should look out a place (with their shallop) where they would be, at some near distance; for the season was such that he would not stir from thence till a safe harbor was discovered by them, where they would be, and he might go without danger; and that victuals consumed space but he must and would keep sufficient for themselves and their return. Yea, it was muttered by some that if they got not a place in time, they would turn them and their goods ashore and leave them. Let it also be considered what weak hopes of supply and succor they left behind them, that might bear up their minds in this sad condition and trials they were under; and they could not but be very small. It is true, indeed, the affections and love of their brethren at Leyden was cordial and entire towards them, but they had little power to help them or themselves; and how the case stood between them and the merchants at their coming away hath already been declared.

What could now sustain them but the Spirit of God and His grace? May not and ought not the children of these fathers rightly say: "Our fathers were Englishmen which came over this great ocean, and were ready to perish in this wilderness; but they cried unto the Lord, and He heard their voice and looked on their adversity," etc. "Let them therefore praise the Lord, because He is good: and his mercies endure forever. Yea, let them which have been redeemed of the Lord, show how He hath delivered them from the hand of the oppressor. When they wandered in the desert wilderness out of the way, and found no city to dwell in, both hungry and thirsty, their soul was overwhelmed in them." "Let them confess before the Lord His lovingkindness and His wonderful works before the sons of men."

Atta in Prague: the Al Qaeda/Iraq connection

One of the unresolved puzzles is the claim of Czech intelligence that Mohammed Atta met with Iraq intelligence in early 2001. Although the CIA has never been able to confirm it, the Czechs as I understand it have never backed down from their claim.

NRO has an excellent post on this here:

ATTA IN PRAGUE [Andy McCarthy]
Ed Epstein has stayed on the case and has done the 9/11 Commission one better: he has actually conducted something resembling an investigation into whether the top hijacker met with in Prague with an Iraqi intelligence agent five months before 9/11. Ed’s report on what he found out, after traveling to the Czech Republic and meeting with the BIS (i.e., Czech Intelligence) officials who were personally involved in the matter is featured in the Wall Street Journal this morning (registration required).

His article will not be good news for the Richard Clarkes of Clinton revision-world, who maintain that the previous administration so intimidated Saddam after the attempted murder of the first President Bush in 1993 that the Iraqi dictator foreswore collaboration with terrorists against the U.S. – a claim that has never made any sense given that top Clinton officials (including the former president himself) continue to defend their Augugst 1998 bombing of the al-Shifa pharmaceutical factory in Sudan on the ground that it was a joint Iraq/Qaeda/Sudan effort to develop weapons of mass destruction.

The bottom line, as Ed puts it, is that the Atta/Prague connection remains “consigned to a murky limbo” – largely thanks to American officials leaking the possibility while the Czechs were still trying to investigate it.

But this much is known – notwithstanding the energetic effort to suppress it by some former Clinton officials, Democrat partisans, and members of the intelligence community invested in the delusion that there was no connection between Saddam Hussein and terrorism. In 1998, Saddam began trying to blow up an American target, Radio Free Europe in Prague, by having Jabir Salim, his consul to the Czech Republic (but in reality, his top intelligence agent there), attempt to recruit terrorists to carry out the mission. This intelligence became known when Salim defected, and Clinton administration was so concerned about it that it took several steps to protect the facility.

Salim was replaced by Ahmad al-Ani, whom the BIS was obviously interested in – interest that only intensified when the BIS learned he was trying to access explosives and make contacts with “foreign Arabs.” It came to a head on or about April 9, 2001, when al-Ani was observed getting into a car with an unknown Arab male who was later identified as Atta – an identification that has never been disproved, despite Herculean efforts to knock it down. The Atta identification did not happen until after 9/11 (when Atta’s photo was splashed across the international press), but the Czechs were so worried about whomever al-Ani had met with back in April that they decided to take no chances: al-Ani was expelled due to suspicion of terrorism – four months before 9/11.

In the end, the FBI cannot account for where Atta was between April 4 and April 11, 2001, or how he spent the $8000 cash he abruptly withdrew on April 4 before he disappeared for a week. (They’ve pointed to use of his cellphone in the U.S. during that timeframe, but that, of course, does not mean Atta was the one using the cellphone.) Nor can the FBI explain why Atta stopped in Prague in June 2000 right before flying to the U.S. to begin the 9/11 preparations. The Czechs, meanwhile, regard as “pure nonsense” al-Ani’s protestations that he was nowhere near Prague the day he was seen meeting the man a witness has identified as Atta.

This is Able Danger all over again. The "Atta in Prague" possibility never fit the 9/11 Commission’s narrative, so it was buried with a shoddy, slap-dash investigation -- the same treatment Able Danger got; the same treatment the Clinton Justice Department's dramatic heightening of "the wall" between criminal investigators and intelligence agents got; the same treatment the internal assessment of the Clinton administration's performance in the run-up to the Millennium bombing plot got, and so on.

Meanwhile, in 1998 alone, we have $300K going from Iraq to Zawahiri (al Qaeda’s number 2); bin Laden’s famous February fatwa calling for the murder of all Americans and prominently featuring, as part of the justification, U.S. actions against Iraq; meetings in Iraq between Qaeda members and Iraqi officials in March; meetings in Afghanistan between Iraqi officials and al Qaeda leaders in July; the embassy bombings in August, after which, of all potential targets, the Clinton administration chose to retaliate against al Shifa, believed to be an Iraq/Qaeda joint weapons venture; an Iraqi member of al Qaeda (now held in Guantanamo Bay) traveling with Iraqi Intelligence to Pakistan to plot chemical mortar attacks on the American and British embassies there; and Iraq seeking to recruit Arab terrorists to blow up Radio Free Europe. Oh, and in February 1999, Richard Clarke objected to a suggestion that U-2 flights be used to try to find bin Laden because, if bin Laden learned the walls were closing in, Clarke wrote to Sandy Berger that “old wiley Usama will likely boogie to Baghdad.”

Back in action...

This blog has been temporarily out of commission...due to a major scholarly conference I had to attend. But things will be humming soon...

Wednesday, November 16, 2005

What TPM doesn't understand about the Democrats

Josh Marshall's Talking Points Memo runs about the smartest defense of the Democratic Party you'll find. But sometimes you get the idea that the guys over there just don't get it. Take this recent post:

(November 15, 2005 -- 01:41 AM EDT)
E.J.Dionne: "There is a great missing element in the argument over whether the administration manipulated the facts. Neither side wants to talk about the context in which Bush won a blank check from Congress to invade Iraq. He doesn't want us to remember that he injected the war debate into the 2002 midterm election campaign for partisan purposes, and he doesn't want to acknowledge that he used the post-Sept. 11 mood to do all he could to intimidate Democrats from raising questions more of them should have raised."

[Josh Marshall writes:] This is an extremely good point. As is often the case in fierce debates some of the most relevant angles of discussion are left untouched because they serve neither side's purpose. This is most certainly one of them.

On the contrary: far from "injecting the war debate into the 2002 midterm election campaign for partisan purposes", it would be more accurate to say that W took advantage of the fall campaign to force Democrats to do something they have been reluctant to do for a generation: approve military force in order to defend their country in time of danger.

In placing it in that way, I realize that many Democrats have a different slant. But that is precisely the point I wish to make: In the late 1940s, it was the Republican party that was the party of isolationism, and the Democratic party that was the party of national defense. And it might have stayed that way except for Eisenhower's defeat of Taft and the isolationist wing of the GOP in 1952. Meanwhile, the Democrats came progressively under control the 1948 Henry Wallace/1972 George McGovern wing of Democratic isolationism.

September 11th gave the Democratic party a historic opportunity to reverse course, and reclaim national defense as a core value, to do an about face in a manner similar to what happened with the Republicans in 1952. The Democrats failed miserably. For a few months post 11 September 2001, the Democratic party was ready, willing and eager to defend the country...and then the Democrats rapidly slid back into the blame-America-first isolationism that has ruled the party for the last generation.

The tragedy is that W's decision to have the Congress vote on war in Iraq in the middle of the 2002 election season was based on the very realistic assessment that Democrats would be unlikely to vote for war under any other circumstances. Indeed, Democratic leaders such as Josh Marshall continue to underrate how little Middle America thinks the Democrats can be trusted to defend America.

Here are two pieces of evidence that Josh and the TPM gang should save on their laptops as they think about 2008:

1. There is no speech at the GOP national convention that Democrats hated more than Zell Miller's double-barrelled denunciation of his own party for failing to defend America in time of war. But focus groups showed that this was the MOST popular speech of the convention among UNDECIDED voters. No doubt Josh thinks that Miller's speech constituted outrageous questioning of the Democrats' patriotism--but Middle America thought it was a great speech. Democrats need to face honestly the question of why non-aligned voters don't think their party can be trusted in time of war and why they think Zell Miller-like denuciations are fully justified by the facts.

2. Democrats thought they could earn trust with the voters on national defense by nominating war-hero Kerry. But exit polls showed that when asked whether Kerry could be trusted on terrorism, he won a plurality of voters in only two states: Massachussetts and Maryland. In other words, not only did every red state think Kerry couldn't be trusted on terrorism, the blue states didn't trust Kerry on terrorism either (with the exceptions of MA and MD). What is worse, it is not clear that the Democrats had any candidate in 2004 with better credentials on terrorism that Kerry. The Democrats nominated for president a man that they themselves had little confidence in on national security--they can scarcely be surprised that he led their party to defeat.

Unfortunately, there is at present no evidence that the Democratic party leadership has any intentions of dealing meaningfully with national defense. After the 2004 debacle, they then put Howard Dean at the head of their party. And they seem convinced that going even farther to the left on national security issues is the way to win in 2006 and 2008.

Politics is a strange business, and the political future is never fully predictable. But the betting here is that continued efforts to attack W from the left will lead to the same result in 2006 that it produced in 2004: defeat at the polls.

Tuesday, November 15, 2005

Rush's RINOs

Rush is charging RINOs

High on Rush's list are John McCain and George Voinovich. The former needs no introduction, the latter is my senator from Ohio.

McCain as a RINO? Well, for 2004, the National Journal rates his conservativism as 48 on economic issues, 49 defense/foreign policy, and 55 social issues. That might make him a moderate, but not a RINO: his American Conservative Union rating for 2004 was 72; not up to Barry Goldwater, but not bad. His ACLU rating from 2000-2002 was 0. McCain's NARAL rating in 2003/4 was 0; his National Right to Life rating was 82. His John Birch Society rating for fall 2004 was 90; his Christian Coalition rating for 2004 was 83; his Concerned Women of America rating for 2004 was 100. The pro-defense American Security Council rated him for 2003-2004 at 100.

This isn't an accident: McCain has taken the lead defending W on the War on Terror; he's led the efforts to cut spending post-Katrina; and notwithstanding the Gang of 14, he's been outspoken on the issue of pro-life judges. With 99 senators like him, the Senate would be united on the War on Terror, the budget would be balanced, and the federal judiciary would be stocked with judges loyal to the Constitution.

Voinovich as a RINO? For 2004, his National Journal conservativism ratings are 61 economic, 57 defense/foreign policy, 53 social issues. His American Conservative Union rating was 76--which sure isn't Ronald Reagan, but he's no RINO either. More: Voinovich has a 100% National Right to Life rating; an 80% rating from the John Birch Society; and a 100% rating from the Christian Coalition.

Exactly how did a guy with a 100% Christian Coalition rating get confused with a RINO?

Okay: John Bolton. An issue I think he was mistaken on. But that doesn't make him a RINO. If you doubt it, check out yesterday's vote on withdrawing from Iraq, where Voinovich came down squarely on W's side. That shouldn't surprise anybody since his American Security Council rating for 2003-2004 was 100.

Hunting RINOs is legitimate big-game sport...But McCain and Voinovich shouldn't be in the cross-hairs.

Monday, November 14, 2005

W's home run: Alito rejected Roe in 1985

It is a long-standing baseball legend that Babe Ruth in one game once pointed to centerfield, and then knocked the ball over the wall.

Two weeks ago I wrote that Alito authored a law review article in 1986/87 that indicated that he probably did not believe that the right to privacy included a right to an abortion.

I looked carefully at the judicial philosophy contained in this article, and Alito's approach to jurisprudence; on 2 November 2005 I concluded on the basis of this article:

it is clear that Alito: 1) sees Constitutional jurisprudence as ruled by original intent; 2) is willing advocate the overruling of precedents going back a century; 3)thinks decisions that lead to unworkable results need to be overruled; 4) thinks that when the Court begins writing law, rather than interpreting it, the results are quite likely to be unworkable: for the Court does not have the skills to write laws well.

All this suggests that Mr Justice Samuel Alito is not likely to look on Roe with sympathy. But we won't know for sure until he is seated on the Court.

Well, that's the careful, measured language of an academic, not the bravado of a baseball player--but you get the idea. The logic of Alito's analysis of 5th Amendment privacy cases, expressed in 1986/87, made it unlikely that he supported any right to privacy that included abortion.

Now in a key breakthrough the Washington Times has located Alito's 1985 job application to the Reagan Administration--and has effectively vindicated my 2 November 2005 post. Alito's job application was written around the same time that Alito was writing the law review article. And Alito clearly repudiates Roe v. Wade--exactly in keeping with what one should have inferred from his 1986/87 article:

"It has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly," he wrote.
"I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."

It is, of course, possible that Alito has changed his views in the succeeding twenty years. But there is at present no special reason to think that. Millions of pro-life voters supported President Bush in 2004 hoping for a Supreme Court nominee opposed to Roe v. Wade.

W has hit a home run.

But I like to think I called it....:)
The link to the document is here.
See page 15. (Hat tip: ConfirmThem).
Special note: Alito at Reagan DOJ did not merely oppose Roe; he argued that it should be REVERSED. He played a key role in writing the legal briefs arguing for reversing Roe, and it appears to be THIS work that he is proud of. (HT: DHS at ConfirmThem)

here’s more on Alito’s days at the SG office:

The clues come from Charlies Fried. In 2002, Ted Olson hosted a symposium in memory of Rex E. Lee, a Solicitor General under Reagan. During the symposium, Fried, Alito’s boss, offered up the following:

Walter Dellinger: And Charles, you did not know President Reagan?

Charles Fried: I did not know the president. My situation was special and rather like Seth [Waxman]’s in a way. I had been the principal deputy in the office and the office was vacant from, I think it was March or so, until I was named. So, I was acting in the office and doing all these things and they had a chance to get a really good look at me. There was the abortion brief and also the brief in the Wygant case. I had a big hand in writing it, and so did Sam Alito, who had this marvelous phrase saying that a particular African American baseball player would not have served as a great role model if the fences had been pulled in every time he was up at bat, a point which some people were greatly offended by because they thought it to be pamphleteering. I thought it was entirely appropriate. If it had been made in the other direction, it would have been applauded rather than deplored by the New York Times. But I was able to bring those briefs to the senators upon my courtesy calls and say, “Now, this is what you will get. Take it or leave it.” So, I had been in the job. That is unusual.

2003. “Transcript: In Memory of Rex E. Lee (1937-1996) Rex E. Lee Conference on the Office of the Solicitor General of the United States.” Brigham Young University Law Review. [2003 B.Y.U.L. Rev. 1]

Fried’s statement is unclear on Alito’s involvement with “the abortion brief,” filed in Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986) according the the BYU footnotes. Senators will need access to documents from the era to clarify the ambiguity.

The brief strongly urged the Court to overturn Roe v. Wade:

"Indeed, the textual, doctrinal and historical basis for Roe v. Wade is so far flawed, and, as these cases illustrate, is a source of such instability in the law that this Court should reconsider that decision and on reconsideration abandon it".
[Quotation marks in last paragraph supplied by GrenfellHunt].

Although the evidence is not absolutely definitive, it looks as though Alito helped write the brief arguing for the reversal of Roe, and it is THIS work that Alito is proud of...and not merely as a technical piece of legal excellence; Alito appears to be stating that it reflects strongly his own personal beliefs.
AND FURTHER: Left out of the Washington Times article is this key sentence:
"It is obviously very difficult to summarize a set of political views in a sentence but, in capsule form, I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, AND THE LEGITIMACY OF A GOVERNMENT ROLE PROTECTING TRADITIONAL VALUES." (Capitalization mine). Goodbye, Lawrence v Texas, and the right to gay marriage.
UPDATE:Many thanks to Fred Barbash for the kind words and the link!

Friday, November 11, 2005

Veteran's Day: two poems by Carl Sandburg

In memory of Dan H Davies, World War I veteran; and Mary Wagner Griffin, American Army nurse at Verdun.

Carl Sandburg (1878-1967)

PILE the bodies high at Austerlitz and Waterloo.
Shovel them under and let me work--
I am the grass; I cover all.
And pile them high at Gettysburg
And pile them high at Ypres and Verdun.
Shovel them under and let me work.
Two years, ten years, and the passengers ask the conductor:
What place is this?
Where are we now?
I am the grass.
Let me work.

I was a boy when I heard three red words
a thousand Frenchmen died in the streets
for: Liberty, Equality, Fraternity--I asked
why men die for words.

I was older; men with mustaches, sideburns,
lilacs, told me the high golden words are:
Mother, Home, and Heaven--other older men with
face decorations said: God, Duty, Immortality
--they sang these threes slow from deep lungs.

Years ticked off their say-so on the great clocks
of doom and damnation, soup, and nuts: meteors flashed
their say-so: and out of great Russia came three
dusky syllables workmen took guns and went out to die
for: Bread, Peace, Land.

And I met a marine of the U.S.A., a leatherneck with a girl on his knee
for a memory in ports circling the earth and he said: Tell me how to say
three things and I always get by--gimme a plate of ham and eggs--how
much--and--do you love me, kid?

Wednesday, November 09, 2005

POLL & FORUM: The Truth about the War

Norman Podhoretz has just published a classic on the recent debate on the war in Iraq.

It is clear, calm, and unequivocal: President Bush told the truth about WMDs in Iraq.

If you are a supporter of the War, it is must reading. If you are opposed to the War, then Podhoretz's defense of the Administration calls for a careful answer.

I'm hoping to discuss the Podhoretz article with both supporters and critics in the comments section.
UPDATE: This poll has caused serious problems with Blogger and has been deleted.

Monday, November 07, 2005

A third century church in Israel?

One of the adventures of biblical studies is the periodic announcement of ASTONISHING NEW EVIDENCE OF EARLY CHRISTIANITY!! which regularly hits the headlines. Some of these announcements turn out to be real. Others turn out to be...overstated.

I was in Toronto in November of 2002 at a major convention of biblical scholars when the news focussed on an ossuary said to be linked to Jesus' brother (well, strictly speaking, relative) James. Three years later, the authenticity of the inscription on the ossuary is seriously in doubt. And periodically over the last few years, claims have been made for re-dating New Testament papyri to the first century. So far, none of these claims has proved true.

Now we hear that a church from the third century AD has been discovered in Palestine. Is it true? Catholicism was not a legal religion in the Roman Empire until the edict of Milan in AD 313. The possibility of a real church building from before that time is quite small. We know of a house-church from Dura Europus in modern-day Iraq dated to c.AD 232. A papyrus from Oxyrhynchus, Egypt attests a church in the south of the city in AD 304 (POxy 2673). But both of these seem exceptional in light of the legal status of Christianity.

Serious questions are already being asked:

But Mr. Zias said it struck him as strange that a Roman military officer would take credit at a time when the Roman authorities prohibited practicing Christianity. "If I were a Roman soldier in the third century, I certainly wouldn't want my name on it," he said. "This would not have been a good career move. In fact, it sounds like the kiss of death."

If the Megiddo site does date to the third century, "then I would ask why it was not reported or discussed by early church historians," said Yiska Harani, a historian with expertise on Christian pilgrimage to the Holy Land. "How did they overlook a successful place of early worship?"

This evidence is not definitive either way, and there is not much an outsider can do at this point except wait for the publication of the evidence. But caution is advisable in this in many others.

Friday, November 04, 2005

The end of the anti-Catholic bias? Alito and the five-Catholic Supreme Court

It has not gone unnoticed, but it has gone largely unremarked, that Judge Alito will make five justices out of nine on the Supreme Court who identify themselves as Roman Catholics: Kennedy, Scalia, Thomas, Alito, and Roberts. In a country about 25% Catholic, we now see a majority of Catholics on America's highest court.

Even more remarkable is this: All of them were appointed by Protestant presidents. All of them were confirmed by an overwhelmingly Protestant Senate. None seems to have been an affirmative action choice; in none does a deliberate strategy of appealing to the Catholic vote appear to have been a central reason for the appointment. In each case it simply appears that the president in question thought the candidate was the best man for the job.

The sea change has been quiet but dramatic: in nineteenth century America, Rome as the whore of Babylon was thought to be a threat to democracy itself. Rome's hierarchical church was imagined to be incompatible with egalitarian democracy. In 1928, the nomination of Catholic Al Smith as the Democratic party's presidential candidate resulted in a massive anti-Catholic backlash that Herbert Hoover rode to the White House. As late as 1960, the campaign of John Kennedy raised widespread fears that the pope was trying to take over America. Harry Truman, with a shrewd insight into the power of the pursestrings pulled by Kennedy's dad, quipped: "It's not the pope I'm concerned about, it's the pop!"

The hysteria that five Catholics on the Supreme Court would have evoked only a generation ago, and the contrast with the present day, is something to behold. The Senate is about to put a fifth Catholic on the Court, and nobody much seems to care. Is this the end of the anti-Catholic bias? Can we now write finished to one of the longest and most deeply held prejudices in American history?

For the most part, yes. Oh, anti-Catholicism can still be found here or there. If you dig deeply enough into the American trash can, you can still find the few cockroaches of anti-Catholicism crawling around on the bottom. But for the most part, this is a bias that is dead and buried--more so, I think, than some in the older generation of American Catholics may realize.

It's worth noting too that this is not merely a transformation in the attitudes of non-Catholics. It reflects as well the enthusiasm for the American experiment in democracy that was a long part of the American Catholic experience, but received a special boost at Vatican II. John Paul II made it a part of his special mission to put the Catholic Church squarely behind democratic reformers: the result was a wave of Catholic energy for democratization that brought to power democracies in Poland, Nicaragua, the Philippines, Latin America, and throughout the Catholic world.

Today many people think that Islam and democracy are fundamentally incompatible. The dramatic elections in Afghanistan and Iraq are evidence that there is nothing in Islam that stands in the way of an authentic commitment to democracy. The day may well come when the Islamic commitment to democracy is taken for granted, as much as the Catholic commitment to democracy is now.

And perhaps the day will come when there are five Muslims on the US Supreme Court, appointed by non-Muslim presidents and confirmed by a non-Muslim Senate...and the fact that there are five Muslims on the Supreme Court will raise hardly an eyebrow, since nobody will much care.

Thursday, November 03, 2005

Roe, the Constitution and the American people

"Yet overturning Roe v. Wade should be the sine qua non of a respectable jurisprudence." So writes Robert Bork in a superb article.

But don't the American people affirm Roe v. Wade overwhelmingly?

DailyKos, citing a Gallup poll, says the American people would reject a nominee to the Supreme Court who wants to reverse Roe by 53%-37%.

Which is half-right. The problem is that the American people don't know what's in Roe, and think reversing Roe means banning abortion at all times and under all circumstances. A huge catalog of polls on abortion is now available over at AEI.

In an April 2005 CBS News/NYTimes poll, Americans were asked if abortion should be generally available as it is now, available under stricter limits than it is now, or not available at all:

As now: 36
Stricter: 38
Not permitted: 24

Roe's status quo only gets about 36% approval. Stricter limits would require, whether the American people know this or not, either modifying or reversing Roe. That position has the support of about 2/3 of the American people.

Here's another poll, much more specific, that helps clarify this point:

In January 1998 a CBS News/NYTimes poll asked Americans if abortion should be legal as it is now; under stricter limits; illegal except for rape or incest or when the mother's life is in danger; or illegal under all circumstances:

As now: 25
Stricter: 25
Rape/incest/life: 41
Not permitted: 9

Here, the pro-Roe position gets only 25%; a hard ban on abortion gets about 50%.

These figures are somewhat higher on the pro-life side than other polls that have asked the same question. In August 1996 the answers were:

As now: 36
Stricter: 20
Rape/incest/life: 34
Not permitted: 9

Here, the pro-Roe position only gets 36%; 43% want some kind of strong ban on abortion with another 20% wanting stricter regulation than currently--about in keeping with the April 2005 survey.

A March 2001 LATimes poll asked which was closest to the respondent's position: legal under all circumstances; legal except in cases of rape or incest or where the mother's life is in danger; illegal in all circumstances. The answers were:

Legal all: 42
Legal except rape/incest/life: 41
Illegal all: 12

Again, that puts a majority of the American people (53%) in favor of restrictions that would require reversing Roe.

We can put this in very specific terms: Judge Alito is now taking furious criticism for allowing a Pennsylvania law to stand that requires a woman to certify that she has notified her husband of her decision to have an abortion. That law was later struck down by the Supreme Court as contrary to Roe. What do the American people think?

Spousal notification--approve/disapprove:
1992 Gallup/CNN/USA Today: 73 yes/25 no
1996 Gallup/CNN/USA Today: 70 yes/26 no
2003 Gallup/CNN/USA Today: 72 yes/26 no

Since the 1992 Casey decision which struck down spousal notification, the position held by about 70% of the American people would either require reversing Roe or substantially modifying it.

So, yes: most Americans say they support Roe. Until they realize what it really stands for...

Where Antonin Scalia gets his wisdom...

The Dawn Patrol
sets Mr Justice Scalia straight...

Wednesday, November 02, 2005

Scalito and the Founding Fathers: why he supports original intent and why this threatens Roe

[New poll at bottom!]
There's no question but the party of the elephants is feeling very good right now about the future Mr Justice Alito.

After the searing weeks of the Miers affair, the party is all but fully re-united and proud once again of their president. Whatever one might think of their judicial philosophies, there's no question but that John Roberts and Samuel Alito are two consummately well-qualified jurists. After a bit of controversy, W has done good work, and there is no doubt that Roberts and Alito will represent the highest judicial standards on the Supreme Court.

This doesn't mean that we have as clear a picture as we might like of what Samuel Alito's judicial philosophy is. As the model of the type of judicial philosophy he was looking for, W set forth Thomas and Scalia--two jurists of the original intent school, both of whom have called for the reversal of Roe v Wade as contrary to the original intent of the Constitution.

Whether Alito actually falls into this school is now a matter of some debate. No one doubts that he is conservative. But whether he is an originalist, and whether he is likely to see Roe as requiring reversal is a question that has no consensus. Senator Specter seems confident that Alito will perpetuate Roe. Rumors from the White House suggest that key people in the administration have the same view.

There is a key clue in an article written by Alito in the 1980s: "Documents and the Privilege Against Self-Incrimination"; University of Pittsburgh Law Review 48 (1986-87): pages 27-81. Now that is about as BORING a title as one could ask, and the literary style of the piece might well suggest a threat to the sleeping pill market. The CONTENT, however, is quite interesting.

The article looks at the 1886 Boyd case where the Supreme Court ruled that if you subpoena a man's written documents, you violate his Fifth Amendment right against self-incrimination. We are used to witnesses before Senate committees "pleading the Fifth" to avoid self-incrimination. But the Boyd case went one step farther: Boyd said the Fifth Amendment also applied to a man's written documents. Among other things, this could make prosecutions of corporate crime very difficult if it is a violation of the Fifth Amendment to subpoena a corporation's internal records. Now before you reach for the No-Doze, let me suggest that what Alito has to say about this case tells us a lot about how he thinks about the Constitution and what he'd do with Roe.

Alito makes it reasonably clear what his Constitutional philosophy is: he says that "the Constitution provides no clear standard for regulating document subpoenas and that this problem could have been satisfactorily solved through the democratic process had the Supreme Court not insisted on finding a constitutional answer." [page 31] Read in context, Alito makes it clear that 1) the standard of interpretation is the original intent of the Constitution; 2) where the Constitution is unclear or silent, the Court should leave issues to the legislative branch; 3) failure to leave these questions to the democratic process makes matters worse, not better.

Alito goes on: "By sweeping so broadly [in the Boyd case], the Court made its work much more difficult than was necessary. It could have struck down the 1874 provision on the narrower ground that the fifth amendment was intended to preserve the common law privilege against self-incrimination and that the privilege, as interpreted at the time of the Bill of Rights, encompassed the compulsory production of papers." [page 35]. Here Alito applies two rules of interpretation as a basis for criticizing the Court's work: 1. he appeals to the original intent of the 5th amendment as refuting the Court's conclusions; 2. he identifies the Court's sins as rooted in a "broad sweeping" interpretation where a "narrow" interpretation would be more appropriate.

Alito goes on to reject the Court's decision to extract from the 5th amendment a right to privacy broad enough to encompass written documents. Alito's conclusion here is very interesting because the right to privacy, and hence a right to an abortion was exactly what was discovered much later in Roe: Roe was a broad sweeping interpretation of the 5th amendment (among other areas). And it is exactly Roe's kind of broad sweeping privacy right that Alito denies in his article. Although Alito never expressly addresses Roe, the basic constitutional logic of his critique of the Boyd case strongly suggests that Alito thinks Roe is wrong.

Alito develops his critique of Boyd in a thorough, meticulous analysis of the Constitution with original intent as the linch-pin: the Court's work in Boyd is condemned because under Boyd the meaning of the 4th amendment and 5th amendment overlap, whereas the original meaning of the Constitution separates the two amendments sharply.

So Alito hews strictly to original intent as the touchstone of Constitutional interpretation. But he does not run immediately to the conclusion that Boyd should have been directly reversed: "Right or wrong, Boyd was not easy or convenient to overrule because it was woven into the fabric of so much subsequent case law." [p.39] We see here a commitment to original intent, coupled with a concern for the principal of stare decisis. Boyd was not to be reversed merely because it was mistaken.

Boyd was, however, unworkable. Alito launches into a long discussion as to how a decision that dispatched with the original meaning of the Constitution led the court into series of Constitutional quagmires. We need not here review these problems. The key point is that Alito shows that in this case going beyond the original intent of the Constitution did not succeed in solving the problems: it merely lead to an incoherent and unworkable body of law. He then concludes: "The problems... inevitably raise the question whether the application of the fifth amendment privilege to subpoenas for documents is necessarily as difficult as the Supreme Court's decisions have made it seem. The answer is that it is not, provided that one is willing to entertain the possibility that the fifth amendment privilege simply does not address the problem of subpoenas for existing documents, and that this problem is one that must be resolved on nonconstitutional grounds." [page 78]

Alito here insists that where the Fifth Amendment is silent, the Court ought not to have tried to extend its principles to solve broader problems. Rather, the Court ought to have left the question of the right to privacy of written documents to be solved by the legislatures and the democratic process. Alito writes: "The individuals who framed, adopted, and ratified the fifth amendment left no clear evidence that they ever considered the application of the privilege to subpoenas for documents." [page 78]. Hence the Court ought not to have violated the original intent of the Constitution; it ought to have left the problem alone.

But would this not have left the right to privacy unprotected? Is it not the role of the Court to read the right to privacy as broadly as possible? Alito rejects the notion that the Supreme Court serves as the principal guardian of the right to privacy: "The law of evidence recognizes many sensitive and important nonconstitutional privileges--such as the attorney-client privilege, the physician patient privilege, spousal privileges, and the privileges, and the privilege for communications to a clergyman. Although lacking constitutional status, these privileges have nevertheless developed, endured, and flourished. Federal and state lawmakers have not generally evinced hostility toward these other nonconstitutional privileges but in fact in recent years have recognized a host of new privileges." [page 80]. In other words, it is not necessary for the Supreme Court to intervene to protect rights not written into the Constitution--Federal and state lawmakers are both competent and capable of acting to protect these rights.

More to the point, legislatures are better at these issues than the Court is: "This is a problem of weighing important, but nevertheless extra-constitutional, values. It is a problem of balancing, of picking and choosing, of drawing fine lines. Legislative and rulemaking bodies are well-equipped for this task; courts are not." [page 81]. One cannot read this passage without thinking about how this principle would apply to the right to privacy as considered with respect to abortion. In Roe, the Supreme Court tried precisely to "balance" the woman's right to privacy in abortion against the potential life of the fetus. Yet neither the right to an abortion nor the right to life of the fetus is expressly written in the Constitution. In Boyd, Alito concluded that the balancing of unwritten rights is best left to legislatures who are much more capable. It is difficult to avoid the question of the logic of his analysis of the Boyd case: it seems to suggest that the right to privacy of abortion, like the right to privacy of written documents under the Fifth Amendment, raises questions of balancing best left to legislatures who are more competent at it. When Alito refers to the "drawing of fine lines", it is hard not to think of Roe's fine lines: the lines drawn in Roe's trimester scheme, or the lines drawn in Roe's viability test.

Here is Alito's last paragraph: "For ninety-nine years, the Supreme Court has struggled with the problem of applying the fifth amendment privilege to subpoenas for documents, and the most difficult cases may still lie ahead. Yet the problem of regulating subpoenas for documents is not inherently intractable. It is not, however, amenable to easy solution using the Self-Incrimination of Clause of the fifth amendment. The Supreme Court's past and future difficulties are the wages of insisting that the Constitution answer a question that should be entrusted to the mundane processes of democratic government." [page 81].

If Alito votes to reverse Roe, we can expect he will write a paragraph much like this. In the case of Boyd, we have a century of intractable privacy law with respect to written documents; in the case of Roe, we have some thirty years of intractable privacy law with respect to abortion. In both cases, Alito may well recommend the same result: get the Supreme Court out of the business of writing laws, and return this function to the processes of democratic government.

The above conclusions, of course, can only be tentative. Alito never expressly draws the parallel between the privacy laws of Boyd and the privacy rules of Roe. Perhaps Alito sees other issues in the privacy questions of abortion that would lead to the abandonment of the parallels drawn above.

It's possible. But it is clear that Alito: 1) sees Constitutional jurisprudence as ruled by original intent; 2) is willing advocate the overruling of precedents going back a century; 3)thinks decisions that lead to unworkable results need to be overruled; 4) thinks that when the Court begins writing law, rather than interpreting it, the results are quite likely to be unworkable: for the Court does not have the skills to write laws well.

All this suggests that Mr Justice Samuel Alito is not likely to look on Roe with sympathy. But we won't know for sure until he is seated on the Court.
UPDATE: Welcome to ConfirmThem and Polipundit readers!
UPDATE 2 from 14 Nov 2005: This post can now claim to be vindicated. See the discussion of the new evidence above.


Will Alito vote to reverse Roe v Wade?
Probably not

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