This page includes posts from May 11-17, 2003 in the usual reverse
order. Each posting on the home page is perma-linked to these
archive pages.
My tolerance for excessive political rhetoric has significantly diminished
over the years.
Perhaps I should tell the Democratic National Committee, seeing as how I’m
registered in that party and they’re sending me spam.
This week Terry McAuliffe e-mailed a new piece dealing with the potential for
vacancies on the U.S. Supreme Court. To judge from this spam, the DNC must
think that six of the current justices plan to retire in the next three
months.
The first part of the message allegedly quotes former President Carter, who
tells the spam recipients the following:
"The United States Senate must be vigilant in preventing the approval of
federal judges who are nominated because their extreme right-wing philosophy
will, through future rulings, adversely affect America's environment, basic
freedoms, and social interrelationships."
This passage has its own interesting elements. First, it expanded the area
of interest beyond the Supreme Court to the entire Federal judiciary, where
the Democrats are already engaged in filibuster-light tactical skirmishes
over several nominees. Second, the sentence is dotted with buzz words, sure
to invoke emotional responses instead of generating thought:
“extreme right-wing,” “basic freedoms,”
and
“social interrelationships.”
I
guess the DNC believes that all Bush-nominated judges will outlaw
friendships among gays and straights, men and women, and among the races. I
can’t imagine what else they could be referring to, can you? On the other
hand, I wonder on what basis the DNC believes that a Bush-nominated
judiciary will overrule the individual rights recognized by the
Second Amendment. Maybe the spam writers were thinking about some other basic freedom,
and simply overstated their opposition.
The President’s signature is simply
“Jimmy,”
which still managed to produce a cringe after all these years.
The second part of the spam reminded its readers of the upcoming anniversary
of the Brown v. Board of Education
decision. Of course, that decision was issued during the tenure of a Chief
Justice who was formerly a Republican governor of California, and who was nominated by a
Republican President.
Maybe McAuliffe forgot that part of American history.
The spam continued with this statement:
With Supreme Court retirements looming as the current session winds down,
a Bush-packed Supreme Court is a genuine danger. Bush's extreme right-wing
nominees endanger our most cherished values -- public education, civil
rights, environmental protections, voting rights, and more.
Again with the “extreme right-wing”
language. With all due respect to my fellow Democrats at the DNC, that kind
of rhetoric doesn’t do much for me. Considering that there are no current
openings on the Court, and that there are no nominees awaiting confirmation
to the Court, I can only assume that the DNC is attempting a polemical
pre-emptive strike—this is the kind of opposition any nominee will receive
from the DNC, regardless of actual character and ability, solely due to the
fact that Bush will make the nomination.
The spam then asks its readers to sign
an online petition to President Bush. From the tone of it, the writer of the
message clearly doesn’t really believe it will convince the President to
alter his choices:
We will not sit idly by while you and your right-wing allies plot
to imperil our cherished and hard-fought values.
We will not be silent when you try to pack the Supreme Court with
extremist nominees.
We will stand up and oppose your right-wing nominees to a
lifetime seat on our nation's highest court.
We will hold firm in our commitment to civil rights, reproductive
freedom, workers' rights, the environment, the fight against discrimination,
voting rights, religious liberty, and free speech.
We will fight for our children. We will fight for our families.
We will fight for our future. We will fight for our values.
America
will not take a single step back when it comes to our freedoms.
This is a fight you will not win.
I’m sure that there are similar pieces of spam floating out there from the
Republicans, but I don’t receive them. In either case, I wonder whether
these political party leaders actually believe that this kind of
flame-throwing will increase the number of those who are
on their side.
I
just don’t see how anyone could come to that conclusion. To me, this stuff
seems like preaching to the choir, and every bit as effective.
While out and about
today, I saw two distinctly different kinds of foam.
The first one was soap-based, at a water fountain just
outside a bank in the state capital. According to one bank official, the
suds were the result of a student prank:
The second one was salt-based. Today a nor'easter
blasted our coast, creating some wild surf and some nasty beach erosion:
The natural version was
far more impressive, although the man-made version was good for a grin or
two.
Here's some handy advice
for the criminal seeking to hide the evidence:
If you're going to chop
up the body of the man you kill, make sure you also scrape off all of his
tattoos.
A
Seventh Circuit Court of Appeals opinion issued yesterday makes this
point indirectly.
The opening paragraph of the decision opens with a
descriptive flourish that would have been a perfect start to a classic bit
of film noir:
On a November day in 1990, a backhoe operator at a landfill in Minnesota was
shocked when he saw a severed arm fall out of a plastic bag lodged in a pile
of garbage he was trying to move.
Not your everyday trash-moving experience, it seems.
It just so happened that there was a distinctive tattoo
on the arm, however, showing
a bare-chested woman riding astride a tiger.
The tattoo was a vital clue. It helped the police
figure out the mystery of what happened to a certain Wisconsin lowlife named
Robert Melby. The motorcycle gang member had been missing for six months
when this fleshy reminder of his artistic past came back to haunt the
backhoe operator.
Discovering that Melby died was only part of the
puzzle. It took an additional 12 years before anyone faced any criminal
penalties for his untimely passing and dismemberment.
In 2002 a man named Daniel Boos, Melby's old gang
leader and a former resident of the Federal correctional system, faced a new
set of criminal charges. By then the police knew that Boos murdered Melby,
but evidentiary problems in the case prevented them from directly charging
Boos with that crime. Instead, Boos was convicted for using his gang's
"clubhouse" to sell speed and cocaine, and for possessing firearms as a
felon.
During sentencing, the government suggested Boos should
receive an enhanced sentence because he killed Melby. The two-day hearing
included evidence of jailhouse confessions and other proof of some folks'
inability to keep their own mouths shut and not threaten others. After the
hearing, the judge agreed with the government. The trial court increased
Boos' sentence from the normal 121 to 151 month range to a consecutive
sentence totaling 30 years on the two charges.
Naturally, Boos did not
care for this result, and appealed.
The Circuit Court did
not share his concern that perhaps he had been ill-treated by the system.
First, the consecutive sentences were still within the guideline limits,
although obviously for many more years that Boos would have received if it
wasn't for all those inconvenient facts about Melby. Second, even if the
trial court was held to a stronger proof standard than the
preponderance-of-the-evidence level usually employed in sentencing
proceedings, the two days of evidence heard in this case more than met any
such higher proof requirement.
The real moral of the
story, of course, is that if it weren't for the tattoo of the lady riding
the tiger, it would have been highly unlikely that anyone would have
connected the severed arm to Melby's mysterious disappearance. If Boos had
cut off the tattoo when he cut up the body, he might have successfully
escaped paying the price to society for the murder.
It's always the little
things, isn't it?
May 15, 2003
Major Claude points for this one
The quintessential
Claude award candidate is a headline
or phrase that is as utterly without surprise or newsworthiness as possible,
while still masquerading as news.
Today’s recipient is
a major winner—an
AP headline conveying a near-total absence of fresh information:
Democrats Squabble Despite Clinton
Warning
Ron Fournier’s story
notes the skirmishing among Democrats vying for the 2004 presidential
nomination, at a meeting of the Democratic Leadership Council. The report
included this additional passage, which would have been a good Claude
candidate itself except for the sterling quality of its headline:
The bickering underscored a constant tug-of-war
between the party's liberal core, which tend to dominate primary
elections, and the moderate wing that carries the day in general
elections.
As soon as I saw this
story, the famous quote by
Will
Rogers came to mind:
I am not a member of any organized political party. I
am a Democrat.
Rogers said this over
60 years ago, and it's still true.
This one earned five
Claudes.
May 14, 2003
The New York Times and the Peter
Principle
Readers of a
certain age may recall
The Peter Principle, a popular business book first published in 1969.
This slim
volume described, explained, and embellished upon the fundamental point of
Dr. Laurence J. Peter’s advice to managers of long-established institutions:
In a hierarchy
every employee tends to rise to his
level of incompetence.
I thought of
this informative and factual treatise as I considered the fix in which the
NYT now finds itself concerning the
Blair fiasco. As recounted in the newspaper’s own mea culpa story on the
screw-up, there were plenty of instances of serial incompetence within the
organization--not only with the junior reporter whose meteoric rise in the
newspaper’s ranks shot him past his true abilities, but also with the senior
management that kept promoting him.
To be sure,
others at
the NYT did not exhibit the signs that they had achieved their own level
of incompetence:
Jonathan Landman, the metropolitan editor,
dashed off a two-sentence e-mail message to newsroom administrators that
read: “We have to stop Jayson from writing for the Times. Right now.”
Far from
disproving my point, however, this example actually fits Dr. Peter’s
analysis, as noted in this
online
book review:
According to Dr. Peter: Work is
accomplished by those employees who have not reached their level of
incompetence. Thus we can see why organizations still function even
as the Peter Principle causes some employees to accept one too many
promotions.
As for
senior management, including Publisher Arthur Sulzberger, Jr., Executive
Editor Howell Raines, and Managing Editor Gerald Boyd, the Peter Corollary
provides perhaps the best explanation for their roles in creating this
indelible stain on the paper’s credibility, its only real asset:
In time, every post tends to be occupied
by an employee who is incompetent to carry out its duties.
As the book points out, examples of the Peter Corollary occur
because those who achieve their own level of incompetence are unable to
detect incompetence in others, thus leading to unwise promotions. In this
instance, if I recall correctly Sulzberger promoted Raines to the Executive
Editor position from Raines’ previous post overseeing the editorial pages.
Perhaps Sulzberger now regrets that decision.
A minor but
telling example also appears in the “bares repeating”
spelling error noted in the NYT e-mail posted at
The Smoking
Gun.
I therefore
respectfully suggest that the Peter Principle and its Corollary provide the
best, most universally understood, and most broadly acceptable explanations
for this awful example of near-total media incompetence.
It remains
to be seen if the rest of the NYT management can recognize these signs
themselves and take effective action. At this point, however, that prospect
does not look promising.
I'm pleased to note that
today is the 25th anniversary of my graduation from
law school.
May 13, 2003
Not entirely blameless, but then again maybe there’s a reason for what
they're not doing
I have some trouble
understanding why the Republican leadership in the Senate continues to
permit the use of filibuster-light tactics by the Democrats opposing some of
the President’s judicial nominations.
It’s not as if the
Democratic Senators have blocked all of Mr. Bush's choices. Many have gone
through successfully, some with barely a whisper of dissent.
On the other hand, to
the extent that Miguel Estrada, Priscilla Owens, and others are left hanging
by the continued opposition of a minority of the Senate, I can’t really
blame the Democrats, as the folks at
OpinionJournal did today.
After all, who’s in
charge?
Bill Frist gives
every appearance of being a courtly yet savvy Majority Leader in many other
respects. Nonetheless, he seems too reluctant to hold the Democrats to the
full requirements of a real filibuster.
Perhaps the real
problem is that the Republicans themselves can’t stand that prospect, for
whatever reasons. Then again, their polling data may be telling them that
it's not yet time to assert the full power of their majority status.
I can understand how
some folks might be a bit squeamish about the political warfare to which
these two nominees have been subjected.
Even so, it’s not the
first time that those in the minority not only picked the fight, but also
selected the turf on which the fight would take place. It’s up to the
majority party to force a change past its opposition, if it truly has the
courage of its convictions.
The OpinionJournal
writer took off after Tom Daschle for his inconsistent arguments. Referring
to Daschle’s 1995 statements for a proposed cloture rule that would have
limited debate and forced a vote for nominations, the piece noted the
following:
That … had the support of none other than Tom
Daschle, who said at the time that "Democracy means majority rule, not
minority gridlock." Mr. Daschle hewed to a different principle on Sunday,
when he told NBC's "Meet the Press" that Mr. Estrada and Judge Owen are
"exceptions to the rule" that every nominee deserves an up or down vote in
the Senate.
The OJ writer
seemed to forget that this was Tom Daschle speaking.
Based on prior
experience, any thinking person would probably be disappointed to see
Daschle remain internally consistent with his arguments, regardless of his
party’s power position in the Senate. It would be such a change in his
basically inconstant character, a trait he shares with many others.
The proposed
filibuster rule changes seem to continue this timorous approach to
recognizing and acting on the fact that there’s a Republican majority in the
Senate—and it’s the Republicans who appear to be the timid ones.
If the minority party
succeeds in convincing or tricking the majority party to refrain from acting
like the majority, therefore, I can’t really blame the minority.
May 12, 2003
You assassinate a few leaders, fire off a couple
mortar attacks at some others, and all of a sudden somebody thinks you’re a
terrorist organization. What’s up with that?
Sometimes you can
only marvel at how some folks can be so morally obtuse.
Reading between the
lines of a DC Circuit
Court of Appeals decision issued last Friday, it looks like the
appellate panel shares this sense of wonder.
The Secretary of
State has the power to declare certain qualifying entities as “foreign
terrorist organizations.” This declaration carries with it some serious
consequences, such as blocking access to U.S. financial institutions,
criminalizing any support given to the organization, and denying entrance
into the United States to any of the organization’s representatives.
On at least three
occasions, 1997, 1999, and 2001, the Secretary made just such a
determination about The People’s Mojahedin Organization of Iran (PMOI). In
so doing the Secretary relied upon both classified and non-classified
information, as permitted under the statutory and administrative scheme that
applied to this process.
PMOI appealed these
designations to the DC Circuit. The primary basis for the appeal centered on
the fact that classified information was part of the decisional mix used by
the Secretary, and that the Iranians had no ability to access the
information and no right to respond to it.
If the terrorist
designations were based solely upon the classified record, perhaps the
courts would have been faced with some interesting separation of powers
issues.
In this case,
however, PMOI had been given access to the unclassified record, and in fact
contributed to it with its own submissions to the Secretary. As the Circuit
Court found, there was more than enough damning information in the
unclassified record to convert any legal quibbles about the classified
documents into harmless error at best:
By statutory definition, "terrorist activity" ... involves any of the
following: ...
(III) A violent attack upon an internationally protected person (as
defined in section 1116(b)(4) of Title 18) or upon the liberty of such a
person.
(IV) An assassination.
(V) The use of any … explosive or firearm (other than for mere personal
monetary gain), with intent to endanger, directly or indirectly, the
safety of one or more individuals or to cause substantial damage to
property…[citation omitted].
By its own admission, the PMOI has
(1) attacked with mortars the Islamic Revolutionary Prosecutor's
Office; (2) assassinated a former Iranian prosecutor and killed his
security guards; (3) killed the Deputy Chief of the Iranian Joint Staff
Command, who was the personal military adviser to Supreme Leader Khamenei;
(4) attacked with mortars the Iranian Central Command Headquarters of the
Islamic Revolutionary Guard Corps and the Defense Industries Organization
in Tehran; (5) attacked and targeted with mortars the offices of the
Iranian Supreme Leader Khamenei, and of the head of the State Exigencies
Council; (6) attacked with mortars the central headquarters of the
Revolutionary Guards; (7) attacked with mortars two Revolutionary Guards
Corps headquarters; and (8) attacked the headquarters of the Iranian State
Security Forces in Tehran.
Were there no classified information in the file, we could hardly find
that the Secretary's determination that the Petitioner engaged in
terrorist activities is "lacking substantial support in the administrative
record taken as a whole," even without repairing to the "classified
information submitted to the court." 8 U.S.C. § 1189(b)(3)(D).
The civil appeal by
these unambiguously uncivil litigants was therefore dismissed.
To be blunt, on this
record it’s a mystery to me how the Iranians thought they could win this
appeal in the first place.
May 11, 2003
A local variation on the Lake Wobegon effect
We're all a little sleepy this morning.
We were up late watching the promenade.
Like hundreds if not thousands of small towns
throughout much of the country, around here the annual high school prom is a
highly popular social event, and not just for the kids attending it.
Hundreds of folks gathered outside the Rehoboth
Beach Convention Center to see each couple being announced, walking down a
carefully prepared path, and smiling through a gauntlet of flash
photography, cheers, and occasional hoots of laughter.
The promenade shows off the girls in their stunning
outfits, all looking at least 25. The boys, sometimes also dressed in
stunning ensembles, but usually in fairly conservative tuxes, tend to look
not much older than 15.
There are no ugly kids at the Cape Henlopen prom.
Instead, all of them are smart, good-looking, and
well above average, a slight variation on
the Lake
Wobegon effect.
At least, that's how the community treats them
during the promenade.
Did I mention we love living here?
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