A quick one

In an earlier post, I linked to a Washington Post story on John Roberts' Reagan-era OLC memos. I think they are potentially more informative about his sincere legal attitudes than his circuit court opinions, despite being dated, and was preparing a post about one of them in particular.

Luckily, now I don't have to put that one up, because a recent post on the SC Nomination Blog provides an informative analysis of the very memo I was writing about.

The History of Tremendous Wastes of Time

CNET has posted a list of the Top Ten Web fads. The list might cause you to smile or cringe--regardless, you get the point.

Some of my "favorites" are on here, like the Mahir page and All Your Base as well as a few I was indifferent to (Ellen Fleiss, Hampsterdance) or disliked from the beginning (Dancing Baby, Hot or Not). One or two of my favorites didn't make the cut, like the Peep Research fad and Y2Khai.

On a related subject, you could probably do a similar list of faddish "must check" webpages, the kind of thing that you'd make your "start page" for a few weeks or months right after you see it for the first time, then never visit again after it gets tired. I'm thinking of sources of daily amusement like the Cruel Site of the Day or Something Awful.

Then there are those pages you send to friends, bookmark, and forget about until you rediscover them much later while trying to clear out your bookmarks. A few of mine: BIBLE DOCTRINE NEWS, Scamorama, and my favorite, Khaaan!

Seriously, that one's nowhere near as bad as You're the man now dog.com.

Make jokes while you can

So it appears there are no signs of trouble so far for the Space Shuttle Discovery. This despite two incidents of material flying off the craft as it took off yesterday and hitting a bird. Admittedly two of those incidents involved the external tank, but I wouldn't be relieved by these developments if I were an astronaut. That stray piece of tile must have been some of the extra stuff they stapled onto the nose just so something would peel off the ship during takeoff. You know, for dramatic purposes.

Anyway, make your flip comments now, before it's a national tragedy and any humorous comments are embargoed.

The Chillout Post

I've been posting a lot in the last month and a half and almost all of it about the judiciary. That wasn't a plan, it was just a reaction to the end of the SC term and other current events. Another consistency in many of my recent posts is the tone. I've been a little pissed at everything recently and it's come out as an endless gripe session about all this courts and politics stuff. That wasn't a plan either.

Reading over the last month or so of blog entries, I can see it's a been a real bummer. Sorry.

I've still got draft posts carping about several other related subjects. Maybe they'll show up later when I'm hurting for material. Maybe they'll never surface at all.

Anyway, here are a few of the more interesting targeted ads I've gotten recently from Gmail thanks to Google's Adsense program. They range from the curious to the terrifying:

American Guy Wanted
Pretty Russian girl is looking
for serious relationships
www.4singles.ca

Avoid Old Mistakes.
Fill this marriage with faith
and romance from the very start!
www.celarien.com

Focus on the Family
Build Up Your Marriage with Bible
Studies from Focus on the Family
www.gospellight.com

Spy Equipment
Spy equipment, Vehicle tracking
Phone recording & More.
vehicle-tracking-usa.com

Getting Remarried?
Prepare for a successful family!
Find Books, Articles, Vows, more
www.blendingAfamily.com

Stepkids out of control?
How to simplify your authority.
"A must read!"
www.equipress.com

Download I Love My Wife
Free I Love My Wife track.
Free Trial with no obligation.
www.real-download.com

Reviews & Abstracts
Help build the abstract site
Your abstracts earn royalties
Shvoong.com

Official RNC site
Learn how you can help promote
the GOP message today.
www.donationreport.com

The Right Wing Conspiracy
Proudly become an official member.
T-shirt, free newsletter, and books
RightWingConspiracy.org

Promoting the GOP
Aggravating Liberals Everywhere
with our Republican merchandise!
republicanshop.net

Ann Coulter Doll
Unite with the right! Save big on
top conservative books & prods. Aff
www.conservativebookservice.com

Motivated reasoning in action

Many people have made note of Justice O'Connor's retirement letter, indicating that her retirement is effective upon the nomination and confirmation of her successor. I've told friends that this precluded a recess appointment to replace her, as no vacancy (necessary for recess appointments) will exist to fill unless the Senate confirms somebody, and that if that doesn't happen she'll take her seat in October. It's happened before (see below) so I thought this was conventional wisdom.

Apparently it isn't. That in itself doesn't surprise me, but the contortions of fact and logic some are willing to perform in order to raise a constitutional objection to this are enlightening.

On the National Review Bench Memos blog, Matthew Franck, a political science prof at Radford, argues that O'Connor's conditional retirement is a "legal nullity", because "(f)or the president to appoint, there must be a vacant seat." Conflating nomination and appointment (two powers given separately in Article II) he goes on to say that Bush's nomination cannot proceed without the vacancy existing and, thus, because her conditioned retirement is unconstitutional, O'Connor has already retired. Conservative blogs are echoing this conclusion with unfounded but authoritative-sounding statements like "relevant law seems to say the President cannot nominate a Justice until there is a vacancy."

Edward Whelan points out the conflation, and Jim Lindgren at Volokh Conspiracy explains that Earl Warren served almost an entire term after announcing his retirement when the confirmation of his successor (intended by LBJ to be Abe Fortas) was bogged down in controversy. I think (I'd have to check to be sure) a justice continued to serve while his successor faced confirmation as far back as John Adams.

Franck sticks to his guns, however. Responding only to Whelan's post on Bench Memos, he says that even if the nomination/appointment distinction has bite, O'Connor's failure to retire until confirmation of her successor "nullifie(s) the president's recess appointment power" and that violates the Constitution. I'm surprised he's not more upset, because from that way of looking at it, every other member of the Supreme Court has nullified the recess appointment power as well just by not retiring. The power to fill vacancies during recess exists to ensure that vital functions of government can be performed if a position is vacated and Senate action is delayed, not a privilege of the President to name people to prospective seats. If O'Connor follows Warren's example she'll continue to serve if no successor is confirmed. In other words, there's no recess appointment power where there is no need for a recess appointment.

Beyond the third branch precedents, members of the president's cabinet regularly continue to perform their duties until their successors are confirmed, as well they should. Since the president's powers to nominate and appoint justices and cabinet members derives from the same clause of Article II Section 2, there's no reason why they shouldn't be governed by the same practices.

Given his gratuitous swipe at O'Connor in the first NRO post and condescending tone in the second, it's clear that Franck is looking for a reason to diss O'Connor. Furthermore, his assumption that her conditional resignation is unconstitutional, rather than Bush's nomination of a successor without a vacancy existing, and the ridiculous recess appointment argument suggest that Franck is just looking for a way to strengthen the President's position.

Mister Roberts in Love and War

I've had nothing to post about the Roberts nomination, which I find a little boring. Bush picked a white guy, which is a bit interesting I guess, but not all that surprising. The most amusing aspect of the Roberts nomination is probably his resemblance to J.R. Ewing. Henry Fonda he's not.
As Roberts approaches Senate hearings and seemingly inevitable confirmation he's going to be showered with a lot of love and threatened with war. If you want to feel the love in a decidedly creepy way, go no further than David Brooks. I'm not going to pick on Brooks anymore, except to observe his traditional tendency to make inferences on the basis of lifestyle choices like what neighborhood he chooses to live in and that he submitted a wedding notice to the New York Times. A lot of people see Roberts as a cipher (see below) but we've got plenty of better indications of his legal attitudes than this tripe.

As for the war, Left groups have hit the bricks with the predictable stuff, but I'm inclined to look elsewhere. I usually know better, but I couldn't help reading Ann Coulter's recent column on Roberts, since it was linked by the SCOTUS Nominations Blog. I knew I could depend on Coulter: she attacks the Roberts nomination as a conservative retreat. Her argument, as I gather it, is that Bush should have picked a bold and documented conservative vote rather than go with a respected jurist whose positions on various important issues are more unclear. She believes that because the GOP is politically dominant, Bush should just go for it, it being a judicial troglodyte of some stripe, rather than choose a safe unknown like Roberts.

Someone other than Coulter might notice that the Bush presidency, and the GOP government, is actually running into a lot of trouble. For a comparable situation, we can look back to Clinton's nominations of Ginsburg and Breyer. Rather than being a "reliable left-wing lunatic" as Coulter calls her, Ruth Bader Ginsburg was suggested to Clinton by Orrin Hatch, then ranking minority member of Judiciary, as was Breyer. As Orin Kerr points out, this might have been borne more of political necessity rather than a norm of consultation, but I'd hesitate to call someone suggested by Hatch an extremist. Of course, some elements of the Right are quick to castigate their own if they are suspected of ideological heterodoxy, so I guess Coulter is free to think Hatch is guilty of collusion if she likes. The rest of us on planet Earth can reasonably infer that if Hatch approved of the nominees they weren't outrageous candidates. We can also recall Brooks' claim in his column that "maintaining balance... never matters" to Democrats when they control the White House, belied by these consultation choices in the only two Democratic Supreme Court appointments since the Johnson administration.

On a tangent, I love the way Coulter repeatedly calls Souter "David Hackett Souter", following the three name standard used for assassins (John Wilkes Booth, Lee Harvey Oswald, James Earl Ray, etc.) and insubordinate children.

For present purposes, the Clinton-Hatch example is more important as an illustration of what a president might do if they want to restabilize an embattled administration. In such a circumstance, the president might avoid controversy by nominating an easily confirmable respected centrist or stealth candidate like Roberts. If, as Coulter seems to acknowledge, the Republicans keep losing contests like the filibuster showdown (a claim I'd contest) or backing down from clear victories, it might be because they're not as politically well-placed as she suggests. This is especially true since the GOP includes many she would deem "turncoats" like Hatch (presumably), Arlen Specter and those in the Gang of 14 like McCain, Lindsey Graham and John Warner.

I believe that John Glover Roberts is more conservative than the hysterical Right fears. The best information I've seen so far on John Glover Roberts' legal views comes, in my opinion, from some of his memos written while staff in Reagan's White House counsel's office, presented and analyzed by the Washington Post today. We might also look at the positions he's represented before the high court.

Make me a match

David Brooks' column yesterday makes a modest request for O'Connor's replacement: "Mr. Bush, Pick a Genius". He disparages calls for a "diversity" selection and other criteria like personal loyalty or political convenience and champions Michael McConnell, a favorite of the soft-spoken brainy conservative clique and law professoriate.

As so many times before, I wonder how Brooks keeps his job given the weak, threadbare material he offers as columns.

On its face, this column suffers from leaving untapped the obvious reference to the "Matchmaker" song from "Fiddler on the Roof." "Make him a scholar," Brooks could implore, "a philosophical powerhouse." Bush's appointment of Alberto Gonzalez would be the equivalent to his socially conservative base of Tzeitel's answer: "(Y)ou're a girl from a poor family / So whatever Yenta brings, you'll take."

Having the right positions is important as well, which (literally) goes without saying. I doubt Brooks would think Larry Tribe or Stephen Reinhardt a good selection, regardless of their intellectual force or accomplishments.

As usual, persuasion by anecdote ends up conveniently excluding a lot of important details. The high school story he recounts, for instance, is based on Settle v Dickson County School and neglects to mention that the student didn't even raise a free exercise or establishment claim in her suit and failed to follow the instructions of the assignment in several regards. Under ordinary circumstances, failure to follow the instructions of an assignment merits a bad grade, but if the student writes about Jesus Christ this is all supposed to be ignored.

This and the other example come from McConnell's 1995 testimony, so Brooks' mischaracterization of the case derives from McConnell's. What that point obscures, however, is Brooks' unsupported (and dubious) claim that McConnell's advocacy of neutrality has had any effect on the development of the law absent the presence of other advocates on the Court already. McConnell does put a reasonable face on many of the favorite positions of contemporary legal conservatism, but that shouldn't obscure that an ideological pick is an ideological pick.

I'm putting aside the overall poverty of the neutralist position, which asks for parity between "secular" and "religious" viewpoints in the public sphere without ever defining a secular viewpoint. OK, except for that snipe.

I hate to pick on Brooks, since columnists produce a lot of weak product all the time, but the thoughtlessness of his pieces, calculated to appear as reasonable and worthy of respect as possible, just irks me. It's a fault.

The Decalogorrhea

Van Orden v Perry and McCreary County v ACLU were among the more high-profile of the decisions announced this term, but the cases produce much more heat than light. Rehnquist wrote the majority in the Texas case and Souter in the Kentucky case, but Breyer's split votes (in favor of the Ten Commandments display in one and against it in the other) mean that his concurrence in the former is the most legally significant opinion in the cases (and that's not saying much.) I can't imagine anyone possibly deriving a legal rule from the two majority opinions.

Clearly, the Court is still engaged in a dialogue about the symbolic recognition of religion by the State. More accurately, this is a serial monologue, opinions delivered seriatim. Neither of the four-member blocs voting consistently is really listening to the other; for evidence of this, observe how often each justice in these cases cites their own previous discretionary opinions as authorities. With the only concurring opinion writer in the Kentucky case announcing her retirement I have a good guess who will soon be lecturing primarily in dissent and who in majority. A more conclusive word on establishment will issue soon, ironically enough, from a Bush.

In the meantime, I offer these brief summaries of the Ten Opinions:

1 - Thou shalt not proscribe Government acknowledgment of the Supreme Being if said acknowledgment is just sitting there, minding its own business, when an objecting Petitioner antagonistically walks by and takes offense. (Rehnquist)

2 - Thou shalt not prohibit the State from taking the "Traditional Positions" I've discovered with regard to God or the Ten Commandments, since those Traditional Positions are favorable to my own. (Scalia)

3 - Thou shalt not listen to the pointless Court opinions authored by many of the nation's most revered justices over decades of wrestling with the question of Establishment and Incorporation, but instead shalt listen to several of my concurrences and dissents over the last ten years or so, which clearly state the Correct position on both issues, such Correct position being one of which I enthusiastically approve. (Thomas)

4 - Remember all the Establishment tests devised before now, but don't use them in this case, because all I care about is the fact that this display was around for nearly two generations without causing any static, and I'd rather not end the term with two decisions forcing the removal of Ten Commandments displays. (Breyer)

5 - Honor the Founders' intention of neutrality, but don't pretend like they really recognized non-Christian faiths as worthy of respect just because it's not polite anymore to call people Semites and Mohammedans anymore. (Stevens)

6 - [As I have grown tired of this nonsense and am busy packing my office to head back to Arizona, I refer you to my other opinion below. Try and figure this out for yourselves for a change.] (O'Connor)

7 - Thou shalt not produce state-sponsored displays of religious texts, even in the company of other secular texts and displays, if the resulting exhibit is badly organized. (Souter)

8 - Thou shalt not endorse religion, then it gussy up with the Magna Carta and the lyrics to "God Bless the USA" and expect it to be OK. (Souter)

9 - Thou shalt not leave a paper trail when promoting State establishment of religion. (O'Connor)

10 - Thou shalt not prohibit states from recognizing a monotheistic Creator, since that position accommodates the stances taken every once in awhile by some of the Founders in certain official actions and the beliefs of the people (Christians, Jews and Muslims) you can't openly insult anymore in enlightened company. (Scalia)

Someone to take the weight

Via How Appealing, here's Rehny Watch, a blog devoted entirely to jokes about whether the CJ has retired or not. That means I can stop doing this myself.

A Thin Line Between Love and Hate

So, it seems that my speculations yesterday about Rehnquist delaying his retirement to forestall an Alberto Gonzalez appointment, or to distract from the Plame leak investigation, have become conventional wisdom. I wish I could say it was my doing, but it was just in the air, I think.

I also made reference yesterday to the conservative responses to the possibility of Alberto Gonzalez being nominated to the Supreme Court. Some of those responses have been excessive, enough so to lead the President to request that the rhetoric be toned down. In the wake of that request, conservatives have attempted to make clear that the basis of their objection to Gonzalez isn't personal, but based on their perception of his judicial philosophy or attitudes. Either he isn't sufficiently opposed to abortion and/or affirmative action, or he isn't sufficiently committed to Originalism or the "Lost Constitution" or whatever. Since these "judicial philosophies" are usually little more than stand-ins for policy preferences, I see little difference. At least the more circumspect have noted that their objections are based on lack of knowledge about Gonzalez, rather than dissatisfaction with what they know conclusively about his perspectives.

The sight of conservatives turning on AG²'s possible nomination like a pack of rabid dogs should be amusing to progressives, since earlier this year they were fighting in favor of Gonzalez's confirmation as Attorney General. Many on the left opposed naming him as AG due to his involvement with the "torture memos," discussed at length in his confirmation hearings. Now, many of those critics are salivating, at least privately, at the prospect of moving him into the third branch. I'm not as certain that Gonzalez would be as moderate a justice as some people seem to believe, so I can't get overexcited about the prospect.

Speaking of amusing, if you must read only one conservative blogger's take on O'Connor's replacement, make it the Supreme Tort. Not only does the blogger (excuse me, editor-in-chief) use an all-black goth-metal theme, not only does he ostentatiously refer to himself in the third person (check out his "nomination" of Janice Rogers Brown for the Supreme Court,) he wrote a post comparing the upcoming nomination to a World Series at bat. This post treats us to a future of judicial decisions "splattered across our nation" (presumably after they are hit out of the park) and a comment on Plessy v Ferguson confusing Originalism (his judicial philosophy of choice) with Literalism.

The Pre-law Curriculum

Via the Legal Theory blog, here's the Harvard list of suggested reading materials for prospective law students. It's got some really good choices, especially Freund, Friedman, Horwitz, Dworkin, Hart, Pound, and Llewellyn. Titles I'd add: Edward Levi (Introduction to Legal Reasoning), Mason's bio of Harlan Stone, the Brother's Karamzov, and The Firm, the Market and the Law by Ronald Coase. The latter is also recommended by Larry Ribstein.

I'd also recommend Brush with the Law, not because it's a really good book, but because its first line is "Dumb people go to Harvard Law School."

No Other Possibility

I just noticed that the Onion A/V Club interviewed Mark Hosler and Don Joyce of Negativland last week. I've been a fan of Negativland for about 15 years, discovering them shortly before the infamous U2 incident.

I've continued to follow Negativland's releases despite the fixation on copyright issues that has settled in since their run-in with Island Records. That fixation has led their work to be somewhat repetitive and, as this interview demonstrates, their positions on intellectual property issues indulge in some utopianism. Viewed more charitably, however, Negativland's expressed attitudes toward copyright can be characterized as an extreme position championed to test the assumptions of those who believe that only an oppressive, culturally stifling regime of universal property interest can effectively cultivate value. Seen in that sense, they have good company. Justice Stephen Breyer's tenure piece was a 1970 Harvard Law Review article entitled "The Uneasy Case for Copyright," which makes a good case for the fundamental reconsideration of copyright law.

CJOTUS Interruptus Update

Checking back at the Confirm Them post, I see that SpectatorGirl speculated this afternoon that Rehnquist was delaying his retirement "in order to prevent an activist extremist like Gonzales (in favour of partial-birth abortion and of quotas and protections for illegals) being nominated."

While I appreciate S-Girl's contemplation of Rehnquist's strategic considerations, I have to chuckle at the description of Alberto Gonzalez. This is President George W. Bush's Attorney General, but this description makes it sound like he's a Clinton nominee. Didn't conservatives just fight for his appointment as AG earlier this year despite his support of the use of torture by the U.S.? Obviously, S-Girl didn't get the President's request to tone down the rhetoric in the nominations war.

This is what people mean when they refer to the lack of restraint on the far right. As the SCOTUS Nominations blog posts about Gonzalez's record shows, the information about AG²'s real attitudes on abortion, affirmative action and other stuff is pretty slim, but that doesn't prevent a conservative blog reader like SpectatorGirl from calling him everything short of a crack-smoking serial rapist who kills kittens for fun (wait, that's Bill Frist.)¹ Once a person is deemed undesirable for some reason, it remains merely to paper him or her with whatever evils one's imagination can conjure.

If we really want to get devious, I wager Rehnquist will time his retirement announcement to bury reports that Karl Rove leaked Valerie Plame's name to Robert Novak.

¹ Joke.

CJOTUS Interruptus

Conservative judicial blog Confirm Them reports that many people close to the White House believed the Novak story last week that CJ Rehnquist was going to retire. Speculation has it that Rehnquist plans to retire, but events (O'Connor, the London bombing, Hurricane Dennis, what-have-you) keep conspiring to frustrate it. I'm sure the next thing will be Tom Cruise's wedding. I still think it quite believable that Rehnquist would like to continue as long as he feels able to do so, especially if Bush can install a conservative replacement for O'Connor on the Court for the 2005 term.

Still, if Rehnquist is intentionally delaying his retirement, it could be due to the widespread suspicion that Bush will nominate AG Gonzalez to replace him. Many conservatives think that even more likely if Bush can "package" Gonzalez with a staunch conservative replacement for O'Connor like Edith Jones or Janice Rogers Brown. If Rehnquist can avoid that by serving another term, it's entirely possible he might do that. At least, he could be putting off a retirement announcement until the White House clearly signals that Gonzalez is not being considered for the post. Before you discount the possibility that a Supreme Court justice would seek to influence the naming of another justice, consider the substantial evidence that justices time their departures to ensure that a President of their liking names their successor and the considerable efforts justices in the past have made to get friends and favored colleagues appointed to the High Court (see esp. Walter Murphy, The Elements of Judicial Strategy, pp. 73-78.)

Dilithium and Dystopia

Last year I attended a panel at DragonCon about a seminar/workshop at Kent State on Star Trek and wrote up some thoughts on it in the course of reviewing the Con generally. My bottom-line response, as I recall, was that this particular approach to an academic assessment of Star Trek as a political/social phenomenon was lacking application. Put another way, there comes a point in any scholarly enterprise worth doing where theory has to meet data, whatever that happens to be, and this Enterprise treated data like a "Forbidden Zone."

I also said that the class could probably use a theoretical perspective, but this morning I spotted a link on Greencine Daily to an article that calls me to rethink that advice. David Hudson calls it "probably easily the most brilliant analysis of Star Trek. You will never see Star Trek the same way again." The article is called "The Political Aesthetic: Nation and Narrativity on the 'Starship Enterprise'" and it may fulfill Hudson's prediction by making you never watch Star Trek again at all. I can't call it brilliant, but I can call it hilarious and that's better, really.

The first couple of sentences should do:

To illustrate the Jamesonian maxim that "objective effects have their consequence in in the aesthetic realm" or his claim that in the logic of late capitalism, the political deviously reconfigures itself as the cultural, one might consider a televisual text such as that regressive, post-colonial chimera known as Star Trek.

Let me explain...

As someone who thought he'd seen the last of Fredric Jameson after finishing The Political Unconscious 15 years ago, I'm grateful.

This piece reminds me of things I used to read and write on alt.postmodern back in undergrad goofing on Gilligan's Island and The Brady Bunch.

Rehnquist-Watch Countdown - Update

The Supreme Court Nominations Blog recounts Novak's claim that Rehnquist will announce his retirement at 4:15 this afternoon. I guess we'll see.

UPDATE

And now we read that it's not happening.

Times' Miller Does Time

Presumably we could call it "Miller Time." I've seen many of the pious statements and editorials since the Court declined to intervene in the contempt proceedings against Judith Miller and Matthew Cooper (of Time magazine) at the end of their term. Miller's employer, the New York Times, led with an editorial yesterday harshly critical of the contempt citation and the lack of protection offered by the courts (and Congress) for the protection of journalists' sources.

The Times' editorial is pretentious and obtuse in its equation of the stand Miller is taking with the prohibition against prior restraint embodied in the First Amendment (and the position of the Times in the Pentagon Papers case) let alone the civil disobedience of the Underground Railroad and the civil rights movement. Fortunately, Findlaw posted a guest column today by a political scientist spelling out just how off-base many of the defenses journalists are offering for Miller's defiance are. Among other things, it explains the Supreme Court's decades-old decision in Branzburg v Hayes concluding that the First Amendment does not immunize journalists from the general requirement that citizens respond to valid subpoenas.

Even this piece, however, does not point out that Lewis Powell's fifth-vote concurrence in that case acknowledged that journalists can seek to quash subpoenas not sufficiently justified by the investigator as necessary. Judge Thomas Hogan did require special counsel Patrick Fitzgerald to prove that requesting information from journalists was the only way to obtain information needed for his investigation, something he wouldn't have to do were the subpoenaed party not a journalist.

The Case for Hume

A piece by Julian Baggini in the Sunday Herald published June 26th but just now appearing on ALDaily has some inside scoop (now possibly dated) on the BBC poll for "World's Greatest Philosopher." It's probably a case of national pride, as Baggini points out, but Hume may turn out the winner. You can check out their short list here.

Although there are several worthy candidates in the finals, and a few odd exclusions, Hume is as good a choice as any. I never agree with these public poll things, so this is a big surprise. Of course, I could still be disappointed, since the winner won't be announced until next week.

Rehnquist-Watch continues

Robert Novak reports today (7/7) on "word from court sources that ailing Chief Justice William Rehnquist also will announce his retirement before the week is over." In case no one has noticed, the week is very nearly over. Novak is despondent that Bush's recent statements indicate his intention to nominate Alberto Gonzalez to the Court. I can't help hoping that he does, if only because it will make conservatives unhappy. Although I've been wishy-washy on this question, I think it more likely that AG² will get a nom if Bush has two to handle this summer.

The London Mirror

We should all be able to see ourselves in those affected by the attack in London today. Coming just one day after the announcement of the 2012 Olympics decision, I can't help but remember the 1996 Centennial Olympic Park bomb. I didn't hear about it until the next day, but I had been strolling on the street not far from the park a few hours before it went off. Not even remotely the same, of course, but a reminder that nothing immutable separates me from one of the innocents killed, injured or otherwise bereft by such an attack.

The bombs in London today have set a different tone for the G8 summit, so it seems. I would be heartened by the show of solidarity among the nations represented at the session were it not for President Bush's comment that "the war on terror goes on."

Although Bush is often accused of using language imprecisely, I've always thought that his preference for "terror" over "terrorism" or even "terrorists" had a very precise meaning. To me, it indicates that Bush's grand vision for American use of force abroad and safety at home is dedicated to a specific form of institutional security, because only absolute security can replace the generalized concept of "terror." George Lakoff says the "war on terror" language is intended to support perpetual conservative political dominance, but I don't see it as quite so instrumental. A war on terrorists, identifiable enemy combatants, is probably the least ambitious phrasing. I could get behind a war on terrorism, the political use of violence, as long as that definition weren't itself subject to political manipulation. I think Bush sees a war on terror as won only when all sources of disorder and concern are quashed, a radical notion of international hegemony.

FDR's first inaugural address stated his belief that the only thing to be feared was "nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance." His ambitions, broad as they were, were limited to combating unjustified fears. Confrontations and uncertainties, perhaps even pronounced ones, were to be expected. In foreign affairs, Roosevelt endorsed the role of the good neighbor, language that would do us some good now.

I hope we can fulfill our responsibility to be a good neighbor to the United Kingdom, Europe and the rest of the world.

Indulgences

I've let the end of the Supreme Court term and announcement of the first retirement from the Court in over a decade distract me from real work. My blog posting has been prolific recently (for me, that is) but that's just a fraction of the time I've spent reading and speculating on these subjects in person and through email. Things are returning to normal now, so there's no reason to check the page every fifteen minutes or get up at 3 AM breathless with anticipation of another post.

Meanwhile, the Lady Crumpet is out of town this week for a visit to Pemberley (actually, San Francisco) and has just posted the first "Lady Crumpet, On Location" dispatch. She has now met one more Presidents than I have. In her absence, I will be gorging on direct-to-video horror films, which I don't get to watch much when she's around. The hack slasher flicks and filler killer creature features were delayed one evening, though, as I watched a different kind of monster movie, The Corporation, last night. At 2 hours and 25 minutes (not counting the DVD extras,) the filmmakers themselves could be accused of excess, but overall it was a worthwhile doc.

Speaking of hideous creatures, I just read that Fred Thompson, star of Baby's Day Out, has been tapped to "guide (Bush's) nominee through the confirmation process." I think this means that Bush is going to name a far-right conservative. It's tough to read anything out of decisions like this one, but putting a former Senator (and Judiciary committee member) and popular public figure out front suggests to me that Bush is trying to soften what will be a very unpalatable choice.

The Culture Wartime President

Abortion is the focal point of most outspoken activists on either side of the Supreme Court nomination contest, but the Court's split Ten Commandments decisions highlight another issue that might very well be resolved by the appointment of O'Connor's replacement. I've got some thoughts on this subject, and on the Van Orden and McCreary decisions themselves, but first some interesting linkage on the topic broadly.

First, Noah Leavitt reviewed two books on Church-State relations for Findlaw recently. He begins with a reference to de Tocqueville, but don't let that stop you from reading it. Elsewhere, another Noah (Feldman) proposes a solution to the Church-State problem. Since I hate people linking to articles everybody has read already, I also want to point out that Jack Balkin posted a response to the proposal on Balkinization, to which Feldman has responded on SCOTUSblog.

Rehnquist to stay on?

Reading evidence of the justices' retirement intentions is turning into an exercise like figuring out what the Fed is going to do from Alan Greenspan's choice of shoe leather, but here's a tidbit from the SCNB indicating that the Chief may stick it out for another term. I have to admit, Rehnquist staying on makes a bit of sense to me, as this term has been something of a disappointment to conservatives and probably to Rehnquist himself. If he can add a reliable vote to the conservative bloc for next term, he might be able to go out with a winning season.

Tha Next Episode

There are plenty of roundups on likely nominees, but here's a nifty page collecting a bunch of them from Slate.

I should point out that I don't like any of them.

Scenarios, Part 1

This is an exciting time for someone who studies courts, even if it's a harrowing time for someone not enamored of GWB's nomination choices. I'm both those people, so I'm trying to stay in a cool, "scientist" mode rather than think about the policy consequences of the things I'm contemplating.

The Supreme Court Nominations Blog is blowing up with posts collecting observations, posts to other court blogs and journalism about today's developments (for more see How Appealing.

To convey a sense of the stakes in O'Connor's replacement, a fresh post states:

Between 1995 and the present, Justice O'Connor has been in the majority in 148 out of 193 cases that the Court decided by a 5-4 majority in whole or in part. Between 1996 and the present (stats for 1995 are unavailable), Justice O'Connor authored 25 of the cases decided by a 5-4 majority in whole or in part.

On the when of that replacement, we read that Bush won't name a candidate until after he returns from the G8 on July 8th.

The who question looks staggeringly complicated. Persistent rumors, discussed here before, named AG Gonzalez as the man likely to be tapped for a replacement, a scenario analyzed here. Lyle Denniston argues that Gonzalez is an unlikely replacement for O'Connor, because conservatives see this as a chance to make gains on several issues where O'Connor dissatisfied them, especially on abortion. He describes Gonzalez as "marginally" more conservative than O'Connor, but not high on conservatives' lists. Bush, he continues, is more likely to give Gonzalez Rehnquist's seat, making "a major political statement by naming the first Hispanic-American to the Court -- and, no less, to the Chief Justiceship." I'll note here that depending on how one defines "Hispanic-American," Benjamin Cardozo could qualify as the first on the Court.

This reasoning makes no sense to me. If Rehnquist were a moderate, then replacing O'Connor with a staunch conservative and rewarding Gonzalez with the CJ chair would represent a gain for conservatives (given their vocal opposition to Gonzalez.) But under this scenario, Bush would be asking conservatives to trade an O'Connor gain for a Rehnquist loss and leave them at or near zero. For a brief bio and analysis of AG AG's voting on the TXSC, see here, here and here.

It's on

Sandra Day O'Connor is retiring.

Sorry, sorry, sorry - more about Kelo

Actually, more about the reactions to Kelo v. New London, CT. First, John Cornyn's bill has picked up 15 cosponsors in the last couple of days, including Floridian Democrat, Bill Nelson. Meanwhile, the House has voted, 231-189, to amend an appropriations bill to withhold federal funds from state projects that use eminent domain for private development.

In the title to my last post, I referred to Kelo reactions as "hysteria" and "position taking" and this Washington Post story illustrates why I did. The comments of activists, Tom Delay and James Sensenbrenner, blaming this action on "an unaccountable judiciary" and referring to it as "the Dred Scott decision of the 21st century" are just ludicrous. The 1981 Michigan SC Poletown decision is only the highest profile case of eminent domain use for private development before this. Several states have decided through legislative, constitutional or judicial processes to exclude private development from the definition of public use (and several have explicitly chosen to include it, as Connecticut did.) Interestingly, the Michigan SC has since reversed their Poletown decision, setting Michigan state law against the use of public taking for private development.

That said, Minority Leader Nancy Pelosi's comment is less ridiculous than irrelevant. She accuses the sponsors of the spending measure of violating separation of powers by withholding funds to enforce a Supreme Court decision, but the Court didn't order state and local governments to take property for private development. It just said they could do so if they chose. I can understand conservative Republicans blowing the decision out of proportion to energize activists for whatever nominations fights are coming, but Pelosi sounds like she doesn't even know what the case is about.

Even the reporter mischaracterizes the decision, writing that Kelo "greatly broadened the types of projects for which the government may seize property to include not only bridges and highways but also slum clearance and land redistribution," as if the Court hadn't already approved of such takings decades ago.

As with O'Connor's vote in the case itself, the federalism dimension is missing here. Devolution conservatives of the Reagan era who were anxious to return substantial authority to state and local policymakers are curiously silent. Of course, it makes more sense to nationalize political issues when you control both houses of Congress and the Presidency, so I shouldn't be surprised.