Judge in New Jersey Hears Arguments on Gay Marriage (NY Times, June 27, 2003, registration required): A day after the nation's highest court overturned a Texas sodomy law, expanding rights for gay men and lesbians, a state judge here heard arguments on a potentially groundbreaking case that could lead to the legalization of same-sex marriage in New Jersey. During a hearing today in State Superior Court, a lawyer for seven couples who were denied marriage licenses last year argued that the state Constitution afforded lesbians and gay men the right to marry whomever they wanted. A lawyer from the state attorney general's office, which is seeking the lawsuit's dismissal, said the question of gay marriage should be decided by elected officials, not judges. [...] Judge Linda Feinberg of Superior Court asked both sides to submit additional written arguments and said she would not issue a ruling for at least two months. Although she expressed sympathy for those in committed relationships, regardless of sexual orientation, she stressed that her decision would not be swayed by emotion. "It's not what I think," she said. "It's about the law."
My, that didn't take much time at all, did it? To be sure, the suit was already in process when the decision came down from the Court; arguments were already scheduled. Mind, it's entirely possible that the decision might make a difference, but one can't tell. New Jersey wasn't one of the states directly affected by the ruling, so it makes no technical difference to their state constitution.
Frist Endorses Idea of Gay Marriage Ban (ABCNews/AP, June 30, 2003): The Senate majority leader said Sunday he supported a proposed constitutional amendment to ban homosexual marriage in the United States. Sen. Bill Frist, R-Tenn., said the Supreme Court's decision last week on gay sex threatens to make the American home a place where criminality is condoned. [....] "I have this fear that this zone of privacy that we all want protected in our own homes is gradually or I'm concerned about the potential for it gradually being encroached upon, where criminal activity within the home would in some way be condoned," Frist told ABC's This Week. "And I'm thinking of whether it's prostitution or illegal commercial drug activity in the home ... to have the courts come in, in this zone of privacy, and begin to define it gives me some concern."
And that could have been (and was) entirely predicted ... although I must admit, that sort of rhetoric from Frist, right off the bat, is a mild surprise. A mild one. The problem with his viewpoint, from a purely constitutional angle, is that there is technically no such thing as a legal sacrament -- state recognition of marriage has, very technically, nothing to do with religion.
It will be very interesting to see what happens with the Federal Marriage Amendment, now that it's been referred forward to the House Judiciary subcommittee, after having been held up for so long. The plain fact is, most of the representatives probably agree with the concept that marriage should only be between one man and one woman at a time. For most Republicans, there's no particular difficulty in voting for it; for Democrats, voting for it could lead to even more alienation of the liberal bloc within the party -- and they have a graphic example of where that gets 'em, don't they? On the one hand, as many have noted, the extreme wings of both parties literally have nowhere to go -- you either hang with the moderate majority, or watch them hang you out to dry without having any say whatsoever in the matter. On the other hand, if they're going to hang you out to dry anyway, why bother?
Assuming that this, and other like processes, continue forward, the question for the liberal Democrats is eventually going to be: what the hell are we doing here, anyway? Or rather, it may devolve to: who do we dislike more, Dubya, or our own party?
Posted by iain at 11:10 PM
So.
You remember that differential prison term that I mentioned in the last entry? The one that was a result of Kansas having not only a sodomy law but a law that punished homosexual statutory rape much more harshly than heterosexual statutory rape?
Justices Void Prison Term Given Gay Teenager in Kansas (NY Times, June 27, 2003, registration required): In one of the first consequences of its landmark ruling on gay rights on Thursday, the Supreme Court today set aside the lengthy prison sentence imposed on a gay Kansas teenager for having had sex with a younger boy. In a brief order with little elaboration, the court vacated the 17-year sentence imposed in 2000 on the defendant, Matthew Limon, and returned the case to the Kansas courts "for further consideration in light of Lawrence v. Texas." [...] When one member of the couple is aged 14 to 16 and the other is older, the act is statutory rape under the Kansas law and the most common penalty is probation if the two are heterosexual. But probation is not available to same-sex teenage couples.
Matthew Limon was one week past his 18th birthday in early 2000 when he performed oral sex on a 14-year-old boy at the center for developmentally disabled young people where they both lived. No violence or coercion was involved. Had Mr. Limon performed oral sex on a 14-year-old girl, he could have received a prison sentence of about 15 months, and possibly just probation. Instead, he is now about three years into a 17-year sentence in the Ellsworth Correctional Facility. Under his sentence, he was also ordered to register as a sex offender upon his release.
Both the prison sentence and the requirement to register as a sex offender should be voided by the Court's direction. For the moment, in any event. Given that the prison sentence would be a possibility if the law had not treated him differently -- he would likely have gotten probation if the other person had been a female, but a 1-3 year prison term was within the realm of possible sentences -- I would bet that he would be resentenced to time served. Not sure about the registration requirement, however.
Posted by iain at 06:37 PM
The Court has clearly lost its mind this week.
Or perhaps it found it again.
Tyron Garner (left) and John Lawrence
(Photo Credit: REUTERS/Richard Carson)
Case 1: Lawrence v. Texas (short title)
Court overturns Texas sodomy law (MSNBC, Thursday, June 26, 2003): In a major victory for gay rights advocates, the U.S. Supreme Court on Thursday struck down a Texas statute that bans gay couples but not heterosexuals from engaging in sodomy, ruling that the law was an unconstitutional violation of privacy. THE 6-3 RULING reverses course from a ruling 17 years ago that states could punish homosexuals for what such laws historically called deviant sex. The case is a major re-examination of the rights and acceptance of gay people in the United States. More broadly, it also tests a states ability to makes crimes of what goes on behind the closed bedroom doors of consenting adults.
I'm ... stunned, frankly. I wasn't at all sure which way this case would go. Even assuming that the court had decided to overturn the Texas law -- which seemed indicated by the fact that they took this case at all -- it was far more likely that they would overturn it on the more specific grounds of equal protection violations rather than due process violations, which produce a much broader result.
JOHN GEDDES LAWRENCE AND TYRON GARNER, PETITIONERS v. TEXAS (PDF file at scotus.ap.org; web version at Findlaw): Justice Kennedy delivered the opinion of the Court.
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. [...] We granted certiorari, 537 U. S. 1044 (2002), to consider three questions:
"1. Whether Petitioners’ criminal convictions under the Texas "Homosexual Conduct" law--which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples--violate the Fourteenth Amendment guarantee of equal protection of laws?
"2. Whether Petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?
"3. Whether Bowers v. Hardwick, 478 U. S. 186 (1986), should be overruled?” Pet. for Cert. i.
..... We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers. [...] At the outset it should be noted that there is no long-standing history in this country of laws directed at homosexual conduct as a distinct matter. [...] It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. [...] Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.
.... The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
It's interesting that elsewhere in his opinion, Kennedy notes, "... we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants." It's very clear that he intends for this decision to cover not only laws aimed at homosexual consensual private conduct, but any private consensual sexual conduct. It's also interesting that he specifically and separately points out the national and international precedents that have specifically declined to follow the course of the original Bowers v. Hardwick decision. One might think that they were perhaps laying the ground for someone to challenge a law on eighth amendment grounds -- cruel and unusual punishment -- which is the type of case that specifically takes note of similar decisions as precedent (vide Atkins).
It's also interesting to note that this is a very broad decision indeed. Nothing seems to have been distinguished. Just to pull something from the air ... the ability of the government to make separate conduct rules for the military is nowhere mentioned. To be sure, it was not directly at issue for this case. Nonetheless, someone with a sexual conduct discharge in process will almost certainly now bring suit to retain their position, under these very grounds.
Scalia in his dissent (PDF file at scotus.ap.org) objects to many things in this decision. He dislikes that the Court did not "declare that sodomy is a 'fundamental right' under the Due Process clause", but it did not need to; the Court declared that private consensual sexual conduct is a fundamental right under the Due Process Clause, whether homosexual or heterosexual. He objects that the Court should not have been so ready to overrule Bowers, which is but 17 years old. He manages to get snarky about Roe v Wade, which is used as partial support for the Court's decision. He gets truly remarkably arch when he notes, "I do not know what "acting in private" means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage." (Well, either he's being arch, or there's a great wide world out there that he somehow managed to miss hearing about entirely.) Nonetheless, despite some rather epic fulmination of a sort that you really don't expect to see in a judicial opinion, he does make some rather interesting points.
To be sure, §21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex. [...] The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts -- and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p.A25. At the end of its opinion--after having laid waste the
foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that [p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
You know what? He's exactly right on that count. If the due process clause requires all laws that distinguish between consensual homosexual and heterosexual conduct to fall, because the distinction itself is a violation of due process, then there is no rational ground for upholding any of the Defense of Marriage Acts. Neither logic nor the plain language of the majority opinion itself would allow that distinction. It's worth noting that the majority decision itself only notes, The present case ... does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. In other words, although this decision may lay the groundwork for future challenges to defense of marriage acts, this decision says nothing directly about them. (Except, you know, that it kind of does, really.)
I note, purely for completion's sake, that I find the language of Thomas' dissent ... surprising, really. He actually calls the law under discussion "uncommonly silly" (or rather, quotes the Griswold v Connecticut decision to do so).
There will be some interesting results from this decision, although perhaps not immediate:
1) Varied and many challenges to the various state and the federal defense of marriage acts; this decision may also put some teeth into the various Full Faith and Credit clause challenges that will be made by all those people who have been trooping into Windsor, Ontario, to get married (I wonder if they realize that getting divorced is a rather more difficult thing in Canada);
2) Challenges by servicemembers to "don't ask, don't tell (except that we don't really mean that)" discharges
3) Perhaps a few challenges to heterosexual sodomy laws, just to make the Court get all nice and explicit about what it meant (although, with a bit of luck, none of the heterosexual sodomy challenges would actually get that far -- in any event, I'd think that it would be very difficult indeed to find someone with standing these days)
4) The Federal Marriage Amendment process will kick into high gear because, as noted, the decision really would seem to allow homosexual marriage, if taken to its logical conclusion. And, assuming no defects in the ratification process, if it passed (and I suspect it would, although I'm not absolutely certain), there would be nothing the Court could do about it.
Purely a side note: since Kansas' same-sex-only sodomy law is now invalid (one would assume, in any event), one would also expect a challenge to the differential punishment for heterosexual and homosexual statutory rape, as mentioned in a previous entry. The specific precedent for that law has been now overturned, and due process would seem to indicate tha the state may no longer treat what is essentially the same crime differently due to the gender of the participants.
(Interesting sidenote: Findlaw released an article -- today, if you will -- predicting that the court would strike down the sodomy laws under the equal protection clause, and fretting that the court's equal protection reasoning seems to be falling down on the job these days. He was correct that the Court would use the "rational basis" test, but wrong about how they would apply it ... probably for the very reasons he identifies. Clearly, the Court absolutely positively did NOT want to identify homosexuals as a "discrete and insular minority" ... partly because, in many ways, they're not. You can have homosexuals in any racial group, any ethnic group, men or women. The Court would prefer its discrete and insular minorities to be visibly identifiable, when possible. (Religious discrimination is a somewhat different issue ... although peculiarly similar to homosexuality, in that most people may be of any religion or sexuality, but have no visible sign of either.) (I bet I get hate mail over that one.) The Court has tried, with indifferent logic and spectacular effort, to keep from equating homosexuals with any of its previously identified discrete minorities. Assuming that this decision survives -- and Congress would have a difficult time overruling it in any way that would stick, aside from an actual Constitutional amendment -- they may have found a way to keep from having to do so.
Until the next discrimination case comes around, of course.
In the meantime ... Party Tonight! Pretty much everywhere in the country, it seems. And this weekend's Gay Pride celebrations will be especially gay (in every sense of the word).
Case 2: The Court also reversed and remanded an "ineffective counsel" challenge (PDF) from Maryland. Rather surprising, that, especially the 7-2 vote. This court has not been much given to allowing that type of argument, unless the conduct was especially egregious (vide Texas -- yes, AGAIN -- and its problem with sleeping lawyers).
Case 3:
Supreme Court kills law that revives old sex crime prosecutions: The Supreme Court ruled Thursday that the government cannot retroactively erase statutes of limitations, a defeat for prosecutors trying to pursue priests accused of long-ago sex abuse.
On a 5-4 vote, the justices struck down a California law that allowed prosecutions for old sex crimes. It was challenged by a 72-year-old man accused of molesting his daughters when they were children. The case was closely watched because of sex abuse problems in the Roman Catholic church, but it also has implications for terrorism and other crimes. Justice Stephen Breyer, writing for the court, said the Constitution bars states from revising already expired legal deadlines. [...] The Bush administration had argued that a ruling against California would threaten the USA Patriot Act, which retroactively withdrew statutes of limitations in terrorism cases involving hijackings, kidnappings, bombings and biological weapons.
Hmm. Imagine that. A ruling that may actually kick some of the underpinnings out from under the PATRIOT Act. Well, that can't be a bad thing, now can it?
Posted by iain at 11:04 AM
Suspect Is Declared an Enemy Combatant: The Bush administration on Monday dropped criminal charges against a Qatari man who was in the United States on a student visa and instead declared him an "enemy combatant" who allegedly led an effort to settle Al Qaeda "sleeper" operatives in this country. President Bush signed the order switching control of Ali Saleh Kahlah Al-Marri, 37, from the Justice Department to the Pentagon the first time such a transfer has occurred. The change in Al-Marri's status denies him nearly all of the rights afforded criminal suspects in civilian court, including access to a lawyer and a show-cause hearing before a judge, senior administration officials said. As an enemy combatant, he could eventually be tried before a military tribunal. In a one-page letter to Atty. Gen. John Ashcroft and Defense Secretary Donald H. Rumsfeld, Bush said he made the decision "based on evidence available from all sources."
I'm guessing -- just guessing -- that the evidence available from all sources would be ... well, exactly. None whatsoever. Frankly, there's no ostensible reason whatsoever to do this except that they don't want to admit that they likely made a mistake. Either the guy never did anything suspicious in the first place, or they picked him up before he could really do anything, but thereby compromised their ability to prove that he was ever going to do anything. Either way, the evidence of his guilt most likely doesn't exist.
"Mr. Al-Marri represents a continuing present and grave danger to the national security of the United States, and the detention of Mr. Al-Marri is necessary to prevent him from aiding Al Qaeda in its efforts to attack the United States," Bush wrote. [...] The Pentagon confirmed Monday that the Department of Defense had transported Al-Marri from Illinois to the Naval Consolidated Brig in Charleston, S.C., the same place where Padilla is being held. Hamdi is in a Navy brig in Norfolk, Va. Al-Marri, also known as Abdullakareem A. Almuslam, has been in federal custody since December 2001....
Excuse me ... the man has been in a federal jail for nearly two years. What could he POSSIBLY know at this point? Do they imagine that everything and everyone in the terrorist organization to which he allegedly belongs is just standing still, waiting for his return, holding the materials to prove his and their guilt?
Of course, the fun part of this is that not only does this theoretically remove him from the normal judicial system, but it also means that he has no right to an attorney, nor does he get to see the evidence of the charges against him. Not that there are any.
Court to hear 'enemy combatant' appeal: NEW YORK (CNN) -- A year after Jose Padilla was tossed into a Navy brig as an "enemy combatant," a federal appeals court has agreed to speed up a decision on whether the alleged "dirty bomber" should be allowed to meet with lawyers trying to challenge his detention. The 2nd U.S. Circuit Court of Appeals in New York has granted motions to hear an appeal in the case on an "expedited" basis, as both the Justice Department and Padilla's lawyers requested in April. The appellate court will schedule oral arguments after October 13, the court's order said, and the case is expected to be heard by the end of the year. [...] The Justice Department has been fighting attempts by lawyers representing Padilla to meet with him to discuss his case, arguing that could jeopardize national security.
It will be interesting to see what comes of this. The question is, can the government arrest an American citizen on American soil for conducting entirely legal -- if possibly reprehensible -- activities, and completely get away with it? After all, essentially what Padilla was arrested for was a conspiracy that went nowhere, that was going nowhere at the time. And there's this: as long as it's nothing more than talk, it's entirely legal to talk about blowing up a bridge, or overthrowing the government. The CIA itself has said that Padilla's group did nothing more than that.
There is also this: we know about these people because the government has deigned to let us know about them. How many are there that we don't know about? The enemy combattant rules dictate that the government may now, at its whim, arrest and hold incommunicado any American citizen for any reason whatsoever. They do not need to show proof of criminal activity, and to date have not. They do not need to charge these people with actual crimes, and to date have not. They do not need to allow these people to meet with lawyers, and to date will not. The prospect of being declared an enemy combattant is so dire that the government uses it as a threat to gain cooperation. None of this is constitutional. All of this is happening today. And the government is right proud that they're doing it!
Posted by iain at 01:53 PM
Just Write: The Gay Agenda, Part 1
... There are PARTS?
You know, whoever wrote the handbook needs a good talking to. (And, you know, to give me an official copy; I had to scrounge one up, and I think it's missing pages somewhere. I thought a new update came with the annual union dues, dammit!) Clearly, they must be leaving out all the good parts lest it fall into the hands of The Enemy, leaving them both stylish AND well informed.
Posted by iain at 11:33 AM
So here's the thing.
I keep having the feeling that I ought to say something pithy and interesting about the decisions announced by the Supreme Court today in the University of Michigan cases and the Library filters cases.
In Split Decision, Court Backs Affirmative Action (washingtonpost.com): The Supreme Court issued a qualified but resounding endorsement of affirmative action in higher education today, in a pair of historic decisions that, taken together, ratified diversity as a rationale for race-conscious admissions and laid out constitutionally acceptable means for achieving it. A slender five-justice majority upheld the University of Michigan law school's approach to enrolling a "critical mass" of African Americans, Latinos and Native Americans, under which the school considers each applicant student individually and sets no explicit quota. At the same time, a six-justice majority rejected, as too mechanistic, Michigan's undergraduate affirmative action program, under which members of these "underrepresented" groups get an automatic 20-point bonus on the 150-point scale used to rank applicants. The net effect of the two rulings was to permit selective public and private universities to continue using race as a "plus-factor" in evaluating potential students, provided that they take sufficient care to evaluate individually each applicant's ability to contribute to a diverse student body. Five justices also endorsed the view that diversity-based affirmative action should not be a permanent feature of American life, urging universities to start preparing for the day, 25 years hence, when it will no longer be necessary.
That last sentence does, in fact, overstate what the opinion, written by O'Connor, actually said. Despite the fact that it starts out, "We expect ...." it's clear that her statement is a hope for the future, nothing more.
Supreme Court Upholds Internet Filters (Washington Post; Monday, June 23, 2003): The Supreme Court upheld today a federal law that seeks to prevent Internet users at public libraries from gaining access to pornography, a decision that could affect the online choices available to millions of Americans who use the World Wide Web at libraries. By a vote of 6 to 3, the court said the Children's Internet Protection Act (CIPA), which requires libraries that receive federal Internet aid to use anti-pornography filtering software, does not violate the constitutional guarantee of free speech.
It is a very mild surprise that rabid free-speech defenders Kennedy and Souter came down on the side of internet filters. (Emphasis on the very mild.) The fact is, the Court has usually deferred to Congress' ability to decide how and where to spend its money. (Well, very technically, our money, but you know what I mean.) After all, the law does not simply mandate that libraries use the filters -- that would be flatly unconstitutional. The law mandates that, if a library system is to continue to receive federal technology funds, it place internet filters on its public computers. Some systems have in fact declined to accept federal technology funds since the law was passed -- although, given the collapse of state and municipal funding of public services, one wonders how many of them are maintaining that position. Nonetheless, not remotely an unexpected or particularly exceptional position for the Court to take; after all, Congress was (finally) responding to the fact that the Court had told them twice before what they needed to do to create a sustainable law.
Regarding the admissions decisions, it's not surprising that the more narrowly tailored law school program would survive, while the undergraduate program that gave an explicit, numbered value to race would not. The Court has, since Bakke, disfavored programs that have explicit numbers regarding race attached to them. The difficulty with the current result, as noted by this Newsweek article, is that it clarifies nothing and ensures a continued parade of these cases to the Court. The opinion could generally be summarized as: We don't think that race doesn't matter, but if you give it any sort of quantity, any sort of explicit numerical value, the program isn't going to survive. The dissent is ... interesting. Kennedy's main objection seems to be that the judicial review was perfunctory and insufficient, according to the test established in Bakke, and that the law school did not provide sufficient guidelines to its application evaluators (PDF opinion at the Associated Press site). Of course it didn't provide guidelines; every program that attempts to provide some sort of guideline gets shot down by the court because once you have a guideline, it makes the program evaluation look quantifiable and hence a quota. I must admit, I'm baffled as to where Kennedy derived the consequences of this judgement from; I'm not at all sure why "deferring to the law schools' choice of minority admissions programs" should necessarily result in "the courts [losing] the talents and resourcs of the faculties and administrators in devising new and fairer ways to ensure individual consideration." Frankly, speaking as one who once worked admissions, "constant and rigorous judicial review" doesn't force the faculties to "undertake their responsibilities as state employees in this most sensitive of areas with utmost fidelity to the mandate of the Constitution"; it simply makes for an entirely neurotic admissions department. Rehnquist kvetches in his dissent (PDF at AP) that the UM law school program is nothing more than "a naked effort to achieve racial balancing." Well, yes, I suppose it is. The statements as advanced by the law school are rather silly; what on earth is a "critical mass", anyway? It's also rather clear that the law school is balancing its proportion of applicants and proportion of acceptances. Rehnquist's final objection is that the law school doesn't state when it plans to end such programs. Apparently, the law school is required to magically discern when our society will truly become race unconscious.
Here's the thing: Affirmative action sucks. Sucks big time. Sucks for everyone, whether you're included or excluded by those programs. If you're included, sometimes, you'll never know if you could have made it on your own -- granted, you seldom know that you're included for those reasons. However, everyone else always seems to think that you were. If you're excluded, you feel cheated -- granted, you seldom know that you were excluded for those reasons, but people frequently seem to think that they were. So, yes, as a tool, affirmative action has its problems.
BUT.
The objections to affirmative action programs frequently read as though people are channeling Candide. We should never acknowledge race, we live in a color blind society, we should only judge people on merit alone and, you know, that thing that Martin Luther King said about "the content of their character." In other words, this is now the best of all possible worlds, and we should conduct ourselves accordingly. And that's a teensy bit disingenuous, to put it mildly. We're 140 years out of slavery, 120 years past the spectacularly nasty Chinese Exclusion Act, only 60 years past the Japanese American internment camps, and only 40 years past the first federal voting rights acts. Yes, those first three things are in our past, but it's not as though we miraculously became a kindler gentler society in that short a time. Essentially, we've had some sorts of official discrimination for more than half our history. In many ways, race still matters. It would be nice if it didn't; it would be absolutely lovely. It would not, however, be the present-day United States.
The truly annoying thing about both the opinion and the dissent is the muleheaded refusal to admit that race matters. Race may be purely an artificial construct; so is the rest of society. Nonetheless, in and of itself, it still matters in this country.
In any event, no, today's opinions were not remotely unexpected. Frankly, I'm more looking towards Thursday's opinions, when the Texas sodomy law and Georgia voting rights cases will probably be announced. (Although, to be honest, it's the second-level case in Georgia that I'm particularly fascinated by. You just don't have a governor suing the state's attorney general all that often.) The Court has only this week left in its calendar before it goes on recess until next October.
Posted by iain at 07:00 PM
No, really, it says that in the study. (Well, more or less.)
PlanetOut - Study: Females get aroused by both sexes: It's no surprise that lesbians like to watch lesbian pornography. But the big news in a new study is that they also get turned on by watching heterosexuals and gay men have sex. And straight women? They like it all, too. The findings confirm what researchers have suspected for some time -- women may prefer to date one gender or the other, but they get sexually aroused by both. Men, on the other hand, aren't nearly as flexible. Straight men like to watch women have sex, and gay men like to watch men. Case closed.
Well, no. I really don't think it is, somehow.
"This may well be relevant to the flexibility of female sexuality. I wouldn't be surprised if this is one reason why women transition more between sexual identities than men," said study co-author Michael Bailey, chairman of the psychology department at Northwestern University and author of "The Man Who Would Be Queen: The Science of Gender-Bending and Transsexualism." In his study, completed over several years, Bailey and colleagues recruited 69 men and 52 women, both heterosexual and homosexual, to watch two-minute snippets of X-rated movies in a laboratory.
Well, let's see ... first you have to find people who are comfortable answering questions from total strangers about their sexual preferences. Reduce that number further by making sure they're people who are comfortable watching pornography. Reduce number even further by making sure that they're comfortable watching it in front of researchers with measuring instruments on their dinguses, and then draw generalized conclusions!
(OK, OK, I'll be good. Mostly.)
Thing is, I don't actually doubt the conclusions, beyond a certain point. It's just where that "certain point" is that I wonder about; it may be much further forward or much further back along the continuum of sexuality than they're seeing. For example, our culture seems to place more of a premium on men being very definite about their sexuality and sexual attractions than it does on women. Partly, this is because women's sexuality has been, in many ways, invisible to men in western culture; you can see that in Victorian era laws that outlawed male homosexual practices, but took no notice of female activities. It's not as if our modern day culture has completely gotten past that; if we had, there wouldn't have been any reason to do this study, now would there? One wonders if that plays into their results, producing something of a social desirability bias. Women are allowed to be more flexible because the society hasn't really paid attention; men are required to be more definite because the society has.
Posted by iain at 03:30 PM
Because, you know, we have one. Aside from the whole "live a good life, be a good person, try to die old" thing, I mean.
... gay names? We're supposed to have a gay name? Well, why on earth didn't anyone tell me? I know it was never discussed at the union meetings. (Patrice isn't a gay name? I wonder how that worked out. I mean, it's the sort of name that would get you teased to death as a kid; how did that not make it into the Official List of Gay Names handbook that must be going around somewhere?)
... "brothers and sisters of the chocolate and latte hues"?
... "free lifetime gym pass"? Once again, clearly, my union representative has been lying down on the job. (Not that I would use it. But still. It's the principle!)
But, you know, it is nice to have all those questions answered, isn't it?
Posted by iain at 05:04 PM
Gail Shister | Cronkite to write weekly opinion piece for newspapers: He's 86, healthy, wealthy and wise. Why would Walter Cronkite go back to work? "Possibly, I'm mad," says Cronkite, who's launching a weekly newspaper opinion column the week of Aug. 3. "I'm mad in a psychological way, but also in a political sense. I think there are many things going on in our world today that are of great importance to the future of our democracy and world peace, and I was looking for an outlet." King Features Syndicate will distribute "And That's the Way I See It ...," a title that echoes Cronkite's trademark closing to the CBS Evening News: "And that's the way it is." He anchored the broadcast for 19 years, until 1981. During Cronkite's 31-year tenure at CBS, "the most trusted man in America" was paid handsomely not to express his opinions. Getting paid for them suits Cronkite just fine.
It's an interestingly odd step to take. Newspapers are suffering from the combination of declining overall readership, and an increasingly older readership -- younger people don't read newspapers. This isn't going to draw younger people to the papers; after all, he hasn't really been working for 20 years or so, so many of them won't have the foggiest idea who he is. However, it may help hold onto some of the older ones.
Posted by iain at 03:10 PM
The Scotsman - Top Stories - Speaker rebukes Blair: THE Prime Minister has been ordered to appear before MPs to explain the impact of the constitutional changes created by last week's botched Cabinet reshuffle. Amid further fall-out from the disastrous shake-up, Tony Blair was told by Michael Martin, the Speaker, to make a statement to the Commons tomorrow, outlining why he decided to scrap the role of the Lord Chancellor after 1,400 years.
Yes, I should think he might be asked to explain himself, in that case. As part of that government "reshuffle", among other proposals, Blair proposes to create a British supreme court, which would absorb the function of the Law Lords as the court of last resort in Britain.
If I understand what I've been reading, to make such changes actually is within his purview as prime minister, very technically speaking (or to propose that the Commons and Lords do so, in some cases -- although it's rather difficult to imagine that the Lords would go along with the abolition of the Law Lords); it's simply that prime ministers never EVER do such things. (Well, clearly, since the office of lord chancellor and the Law Lords are so very old.) Apparently this is part of his attempt to reform Britain's public sector. It would seem to have started rather badly. (Although, watching what is happening in the US, he does seem to be entirely correct about the Right wanting "to demolish the very ethos on which [public services] are built." One wonders if his pal George and the Republicans have been serving as a peculiar sort of object lesson.)
Blair has also been accused of not consulting the queen about abolishing a 1,400 year old office. Mind, I'm not entirely sure why it matters whether he did or not -- her assent doesn't seem to be required for very much. Nonetheless, it would seem spectacularly politically unwise.
If he wanted to distract from what's turning into a very problematic inquiry over Iraq, I suppose he's succeeded, up to a point. Mind, adding one scandal on top of another would not normally be a sensible way to proceed, and I should think that many more such successes will see him out of office rather quickly.
Posted by iain at 12:55 PM
Salon.com Life | Black like me -- but not too black: In March, the American Society of Plastic Surgeons -- with 6,000 members the largest plastic surgery organization in the world -- publicized a study that appeared in its medical journal, Plastic and Reconstructive Surgery, about new techniques in reshaping the African-American nose. The study, "Rhinoplasty in the African-American Patient," advanced a novel-sounding theory that nose jobs for blacks are now less about diminishing ethnic appearance than about preserving it. Anticipating the skepticism that lay people like me might feel, the association quickly detailed its position. It explained that the timeworn European standard of beauty "has stepped aside, encouraging African-Americans to retain their unique ethnic characteristics while improving their overall look." The pitch contended that "with this shift in attitude, plastic surgeons who appreciate ethnic concepts of beauty and the unique anatomic characteristics of the African-American nose can create the most consistent and best results."
To quote a goodly percentage of the black folk reading the article: "BullSHIT."
To quote my departed grandmother: "If it looks like shit and it smells like shit, it probably is shit, and even if it isn't, why the hell would you want it around?"
I think you get my drift.
Posted by iain at 05:58 PM
How ... odd.
Saudi police arrest six more al-Qaida members in alleged plot to attack Islam's holiest city(SFgate.com, Monday, June 16, 2003): Police investigating a purported Islamic extremist plot to attack Mecca arrested six more suspected al-Qaida members who allegedly escaped a raid on a bomb-filled apartment, newspapers reported Monday. The six suspects arrested Sunday join five others captured during the previous night's raid on the booby-trapped apartment, where police found six dozen bombs and other weapons. A shootout at the site killed five al-Qaida militants suspected in last month's suicide bombings in Riyadh and two security agents. The newspaper Okaz reported that the six suspects arrested Sunday fled the raid in a car that broke down on the outskirts of Mecca. The men continued on foot. Four were arrested at a mosque complex just outside the city. A fifth made it to nearby mountains, where authorities overpowered him after a three-hour standoff in which he threatened to detonate a bomb. [...] The hideout was in a neighborhood just three miles from the Grand Mosque, which houses the Kaaba, the large, cubical stone structure covered with a black cloth that is Islam's most sacred site. Muslims around the world face the Kaaba during daily prayers.
You know ... that seems a terribly odd thing for terrorists hoping to gain public sympathy to do. To be sure, it depends on what they were going to do and where they were going to do it. They were unlikely in the extreme to have attacked mosques in Mecca, for example, or to have done anything anywhere near the Grand Mosque itself, hideout aside. An attack might demonstrate that the official guardians of Islam are doing no such thing and produce public outrage that such a thing was possible.
And yet ... and yet it still seems unlikely that they would attack Mecca at all. Why do that when they can pretty much wander through Riyadh or port cities almost at will, cities where there are so very many more westerners? Why attack one of the two cities where the American military simply will not set foot? (The other being, of course, Medina.) Producing significant death or destruction in Mecca itself would almost certainly produce outright Muslim hostility to the terrorists. Even the extremist imams in Arabia itself would be unlikely to say, "Hey, blowing up stuff in Mecca! Way cool! Keep it up, guys!" in the same way they have for other bombings.
This just seems like it might be a ploy by Saudi security. It's possible that the people in Mecca that they caught were terrorists, yes -- although given the history of Saudi security forces, one wonders -- but they were perhaps using the city as a haven. The one place where authorities assume they will not carry out attacks, so they stay there with the tacit protection of the extremist imams, and the wink-nod-look the other way protection of the Saudi government.
Posted by iain at 05:42 PM
I hadn't realized that there had been any movement on this case since the prosecutors' concession.
HoustonChronicle.com - Tulia lawyer's long struggle rewarded today: Forty months older and $70,000 poorer, Amarillo attorney Jeff Blackburn will stand in a courtroom here today and, at last, watch his pro bono beneficiaries -- 13 people imprisoned on questionable drug charges -- set free. "There were plenty of times when I thought this day was never going to come," Blackburn said. "We fought a losing battle for two years. The only say we had was in the press." At a hearing at 1 p.m. today, retired state District Judge Ron Chapman of Dallas is expected to release the defendants without bond until their cases are resolved by the Texas Court of Criminal Appeals. It was Chapman who, after evidentiary hearings this spring, ruled that the convictions were tainted by the testimony and actions of an "unreliable" undercover officer and urged the appeals court to grant new trials. Even with that ruling, it took political action to bring the defendants to freedom. A bill sponsored by state Sen. John Whitmire, D-Houston, was enacted late in the legislative session, allowing Chapman to release them before the higher court rules on Chapman's recommendation. "It is a terrible example of how far gone the court system in Texas is," Blackburn said.
In the meantime, Texas is having a fiendishly difficult time establishing a commission to study the problems in the Houston crime lab, which resulted in all HPD cases being purged from Texas and federal databases due to the unreliability of their data. Elsewhere, the Texas legislature did its level best to restrict access to the courts and redress in malpractice suits, kick kids off Medicaid and their Children's Health Insurance program in favor of big business enterprise zones, sharply lower the funding for trauma care, and further restrict the liability for companies having anything to do with asbestos. (Down at the bottom of that Texas Observer article, there's a fascinating little coda to the Flight of the Texas Ds -- Democrats -- to Oklahoma earlier this spring. Seems there's a Voting Rights Act violation lawsuit out there from one member of the lege against the Republican head. It won't go anywhere, of course; this particular federal Department of Justice has little interest in prosecuting such cases to the detriment of Republicans, no matter what the relative merits of the case.)
Justice in Texas would appear to be having a very bad year, indeed.
Posted by iain at 10:33 AM
Media Relations: spike spikes spike/ June 13, 2003
Posted by iain at 01:03 PM
CNN.com - Despite promise, gay Boy Scout ousted - Jun. 12, 2003: Philadelphia's Boy Scout council, which defied the national organization last month by promising not to discriminate on the basis of sexual orientation, has ousted a Scout for publicly announcing he is gay. Gregory Lattera, 18, said he learned of the decision on Saturday when he got a letter from the Cradle of Liberty Council, which runs the Boy Scout programs in Philadelphia and two suburban counties. The same council, the nation's third largest, voted May 28 to add sexual orientation to its nondiscrimination policy.
So less than a month after, with moderate fanfare, they make a point of defying the national organization, they do THIS? What the hell?
"He decided to hold a press conference to come out as a member of the gay community," said William T. Dwyer, the chief executive of the council and one of the officials who signed the letter. "Our staff knew he was gay and never made a big deal about it. He decided to make a big deal about it. The don't-ask, don't-tell policy is pretty clear."
However, the policy adopted in May did not make any mention of gays not being allowed to make their sexual orientation public knowledge.
You know, without that being explicit in the policy, they couldn't reasonably have expected him to know that. Moreover, it would render the policy meaningless on its face. They'll probably compare it to the military policy, but the distinction between the two is really fairly clear. The military says, "We won't ask (but we do, because we don't give a rat's ass about what we're supposed to do in that case, but we know we're not supposed to), and you don't tell, because we DO discriminate, and if we find out, we'll kick your ass out of here." The Philadelphia scouts policy is, effectively, "We won't discriminate on the basis of sexual orientation. Unless you actually tell us about it, in which case, you're outta here." I suppose it's impossible to discriminate on the basis of facts unknown, isn't it? The Philadelphia scout council wants to be the equivalent of Sgt Schultz on Hogan's Heroes -- "I see nothing! I know nothing! NOTHING!" -- but it's kind of hard to manage that with written policies that say, "If we see it, we don't care!"
Lattera spoke publicly about his homosexuality and criticized the Boy Scouts' anti-gay stance during the organization's national meeting, held last month in Philadelphia. [...] Duane Perry, a gay rights leader who was involved in discussions between the United Way and the local scout council for two years, said David H. Lipson Jr., chairman of the council's executive board, told him pressure from the national organization had been intense. "He told me they threatened to revoke the charter and replace the board if the policy wasn't changed," Perry said.
Lipson said the local council wants to work with the national organization. "At this time, we want to work with the national council to slowly, methodically bring about change," Lipson said. "But whatever the national policies are, we want to stay within that policy."
And that, frankly, is probably the crux of the matter. Somehow, they seem to have thought the national council would just let them do what they wanted. Maybe they'd get a bit pissy about it in public, but otherwise, they'd be ignored. But you can't ignore it when your third-largest section decides to defy you in public. Any reasonable person would have realized that there would be consequences and would have prepared for them. Clearly, Philadelphia's scout council didn't. And, of course, given the Supreme Court decision on these matters, if the national council had voted to expel Philadelphia -- and they almost certainly would have -- then the local would have had no real choice but to change their nondiscrimination policy or accept the expulsion.
I would also imagine that, because Lattera spoke publicly at the national meeting -- thinking, that because of the Philadelphia nondiscrimination policy, he was invulnerable -- the Philadelphia council also came under heavy pressure to make an example of Lattera, specifically. One suspects that Philadelphia was hoping that he would just go quietly, and then they could also very quietly withdraw the sexual orientation nondiscrimination clause, and maybe nobody would notice. Utter and absolute fools, they are.
Mind, what they've done is seriously impressive. In one month, the Philadelphia council has managed to inflict the maximum damage on themselves that they could do over this matter. When they announced the policy, one suspects that they lost the children of more conservative parents, and the dollars of more conservative donors. Then they did this public flipflop, and will lose people and dollars because of that. They've managed to put themselves in the position of being held in deepest contempt by both sides of the debate. That's a really impresive feat to manage in less than a month.
Posted by iain at 12:08 PM
You know ... if it weren't for the fact that the House Republicans are screwing around with the lives of the poor, this would be entirely amusing. As it is, although it does have its amusing aspects, it's mostly the sort of thing that will piss off many many people, including the White House.
DeLay is playing hardball politics with a president of his own party. To be sure, in theory, he's playing hardball with the Senate, but in practice, since Bush has already directed both houses to get this issue off the table, it's with the president.
G.O.P. Leader Brushes Off Pressure by Bush on Taxes(NY Times, June 10, 2003, registration required): A powerful Republican leader in the House today dismissed pressure from the White House to pass a Senate bill that would provide child tax credits for low-income working people. The action highlights a potential clash between President Bush's desire for legislative achievements ahead of next year's election and demands from conservatives in his party. The House majority leader, Representative Tom DeLay of Texas, rejected a demand from the administration that the House pass the Senate bill, which would provide an increased child tax credit to 6.5 million low-income families. [...] Reminded at a news conference that Ari Fleischer, the White House press secretary, had said that Mr. Bush wanted the House to pass the Senate bill quickly, Mr. DeLay reacted derisively. "The last time I checked, he doesn't have a vote," Mr. DeLay said of Mr. Fleischer.
Well ... effectively, he was saying that about the president, wasn't he? After all, Fleischer was only relaying the wishes of the president.
Frankly, the puzzlement is the way the House is approaching it. To be sure, doing it this way would pull the tax bills overall off the table as an issue; if the Senate approved a tax bill that wold add nearly another $100 million to the deficit, the Democrats could hardly squawk, since the approval of at least some of them would be required, with the 60 votes required under Senate budget rules. But even allowing that raising customs fees is a tax increase of a sort, it's an extraordinarily esoteric one. Somehow, I can't imagine that given the presentation that relief for poor children can be paid for by raising an esoteric tax that doesn't appear to affect that many people, and giving relief that simply adds to the deficit so that we have less money available for any programs... frankly, I can't see how the Republicans can possibly win that public opinion battle. Nor should they, really.
Posted by iain at 01:37 PM
Media Relations: spike lee vs spike tv/ June 9, 2003
Posted by iain at 07:01 PM
And just in time for the political slow season, a major problem for Our Glorious Leader and his friend.
FindLaw's Writ - Dean: Missing Weapons Of Mass Destruction: President George W. Bush has got a very serious problem. Before asking Congress for a Joint Resolution authorizing the use of American military forces in Iraq, he made a number of unequivocal statements about the reason the United States needed to pursue the most radical actions any nation can undertake - acts of war against another nation. Now it is clear that many of his statements appear to be false. In the past, Bush's White House has been very good at sweeping ugly issues like this under the carpet, and out of sight. But it is not clear that they will be able to make the question of what happened to Saddam Hussein's weapons of mass destruction (WMDs) go away - unless, perhaps, they start another war.
The administration is, of course, fighting back, hoping to squelch things before they get too out of hand....
Iraq reports defended; Powell, Rice say prewar estimates of threat not exaggerated: The Bush administration's two top foreign policy advisers said Sunday it was the judgment of the U.S. intelligence community that Saddam Hussein possessed chemical and biological weapons and that the president and others did not exaggerate the threat in the months before going to war. National security adviser Condoleezza Rice described as "revisionist history" recent criticism that senior Bush officials starting with the president may have overstated what was known about Iraq's chemical and biological weapons leading up to the war in March. "The truth of the matter," Rice said on NBC's "Meet the Press," "is that repeated directors of central intelligence, repeated reports by intelligence agencies around the world, repeated reports by United Nations inspectors asking hard questions of Saddam Hussein, and tremendous efforts by this regime to conceal and hide what it was doing, clearly give a picture of a regime that had weapons of mass destruction and was determined to conceal them."
There would seem to be one small problem with this, however. Sensing that they're about to be sacrificed on the altar of political exigency again, the intelligence agencies are mounting their own pre-emptive strike ... against the administration.
Retired State analyst alleges distortion, misstated conjecture in leadup to Iraq: The Bush administration distorted intelligence and presented conjecture as evidence to justify a U.S. invasion of Iraq, according to a retired intelligence official who served during the months before the war. "What disturbs me deeply is what I think are the disingenuous statements made from the very top about what the intelligence did say," said Greg Thielmann, who retired last September. "The area of distortion was greatest in the nuclear field." Thielmann was director of the strategic, proliferation and military issues office in the State Department's Bureau of Intelligence and Research. His office was privy to classified intelligence gathered by the CIA and other agencies about Iraq's chemical, biological and nuclear programs.
In Thielmann's view, Iraq could have presented an immediate threat to U.S. security in two areas: Either it was about to make a nuclear weapon, or it was forming close operational ties with al-Qaida terrorists. Evidence was lacking for both, despite claims by President Bush and others, Thielmann said in an interview this week. Suspicions were presented as fact, contrary arguments ignored, he said. [...] Thielmann suggested mistakes may have been made at points all along the chain from when intelligence is gathered, analyzed, presented to the president and then provided to the public. The evidence of a renewed nuclear program in Iraq was far more limited than the administration contended, he said. "When the administration did talk about specific evidence -- it was basically declassified, sensitive information -- it did it in a way that was also not entirely honest," Thielmann said. [...] Thielmann said he had presumed Iraq had supplies of chemical and probably biological weapons. He particularly expected U.S. forces to find caches of mustard agent or other chemical weapons left over from Saddam's old stockpiles. "We appear to have been wrong," he said. "I've been genuinely surprised at that."
The administration will probably seize on to Thielmann's suggestion that mistakes may have been made all through the intelligence gathering process. Absent the discovery of chemical, nuclear and biological weapons, it's pretty much the only reasonable explanation they could possibly have for what otherwise seems to be an outright campaign of deception. (That said, even the discovery of such weapons wouldn't necessarily help now. Since the US has rigorously excluded the UN from most of the search process, it's fairly likely that the rest of the world will believe that anything found was planted there. Even handing over the process to the UN now, were they willing to tackle the job, wouldn't prevent a charge of planted evidence that many would see as credible, under the circumstances.)
Things are not going well for the administration on related fronts, as well. Some intelligence analysts are saying that the mobile labs that the administration thought were intended for biological weapons production may have been intended for other purposes. (NY Times, June 7, 2003, registration required.) Additionally, the search for said weapons is being stepped down:
Weapons hunt slows as teams await new leads, instructions from Pentagon: ..... Ahead of the war, planners were so certain of the intelligence that the weapons teams were designed simply to secure chemical and biological weapons rather than investigate their whereabouts, as U.N. inspectors had done. But without evidence of weapons, the CIA and other intelligence agencies have begun reviewing the accuracy of information they supplied to the administration before the March invasion of Iraq. Government inquiries are being set up in Washington, London and other coalition countries to examine how possibly flawed intelligence might have influenced the decision for war. "The smoking guns just weren't lying out in the open," said David Gai, spokesman for the Iraq Survey Group. "There's a lot more detective work that needs to be done." The group will work more along the model of U.N. weapons inspectors.
Speaking of UN weapons inspectors, Hans Blix is now saying that Iraq was free of chemical, nuclear and biological weapons before the war ... although at the time, while it was clear that was what he believed, he did seem to be hedging his bets. That seemed, in large part, to be based in the clear obstruction that Iraq was placing in the way of the inspections. (And we're now appealing to the Iraqis to help us find said weapons. After we've made a disaster of their country. Oh, my goodness, that should go well, shouldn't it?)
Meanwhile, in Britain, Blair is being "threatened" by his own intelligence services, who feel that they're about to be hung out to dry. He's apparently also about to blow off the MPs conducting an inquiry into who knew what and when, which can only be politically disastrous for him. (Although perhaps not so disastrous as the inquiry itself. That said, he seems to be basing his probable refusal not on any content issues, but on precedent and privilege.)
Frankly, it seems as though there was an impressive concatenation of faulty intelligence combined with political .... overstatement, let's say. And all that said, unless it can be absolutely proven that the administration knowingly and wilfully lied to the public, it probably won't make much difference in the long run. It's unlikely to be proven or disproven, which means that its use as a political issue is limited. If Congress were still Democratic, that would be one thing, but absent outright proof of malfeasance, a Congress of the sitting president's party is unlikely to initiate or allow to be initiated an inquiry of any substance. Frankly, if the economy continues to meander about, and the deficits continue to swell (reports about which the administration seems to have tried to bury -- that said, ignoring economic predictions based on income and outlay seems to be a fine old bipartisan government tradition), that's more likely to be a problem for the administration in the long run. Where Iraq itself is more likely to make a difference is when people realize just what sort of longterm commitment we've signed up for. Even allowing that the administration did not mislead about that, at least, hearing them say, "Well, this may take a few years," is very different from the reality of hearing about the deaths of something like four soldiers per week in what's supposed to be a pacified country.
Posted by iain at 04:23 PM
Given New Legs, an Old Idea Is Back (NY Times, June 4, 2003): .... The Republican-controlled House understands that these are good times for Old Glory, as Americans respond to the threat of terrorism and the war in Iraq. So today, when the House considered a perennial legislative favorite a constitutional amendment that would give Congress the power to bar desecration of the American flag it came as no surprise that the measure passed handily, 300 to 125. This was the fifth time the House had passed the measure. But it has always died in the Senate, where opponents, mainly Democrats, argue that it would infringe on the First Amendment. Now the question is whether the surge of patriotism will overcome those objections and carry the measure to passage.
Heavy sigh....
You know, I can't figure out what's more distressing. The fact that Congress keeps considering this boneheaded amendment, or the fact that some in Congress apparently don't quite understand how this constitution thing works. It is, after all, legally and logically impossible for a Constitutional amendment to be unconstitutional. It can be, as noted, boneheaded, thoroughly unwise, and an attempt to pander to the masses -- who don't seem to be demanding a flagburning amendment these days, do they? -- but perforce, it cannot be unconstitutional. Moreover, as a Constitutional court bound to hear cases in the light of said Constitution, the Supreme Court could not hear a textual challenge to the amendment. What could they say? "Well, we think it really ought to be unconstitutional, but since it's part of the document now, all we can say is, c'est la vie!"
Posted by iain at 08:00 PM
Updated - 8:07pm
Martha indicted (CNN): NEW YORK (CNN/Money) - Martha Stewart was indicted Wednesday on charges of securities fraud and obstruction of justice arising from her controversial sale of ImClone Systems Inc. stock. A federal grand jury in New York handed up a nine-count indictment that included charges of securities fraud and obstruction of justice. Stewart's former broker, Peter Baconavic, was also indicted. Talks between Stewart and prosecutors broke down when she would not agree to plea to any charge that carried the potential for jail time, the Wall Street Journal reported Wednesday morning.
Well, that's hardly surprising. She's the CEO of a company bearing her own name; if she pled to a charge with jail time, she would almost certainly have had to step down immediately.
It will be interesting to see what happens. Frankly, I can't see how Martha Stewart Living Omnimedia can survive this. Especially if she's convicted, how does the company bearing her name survive without her? How can it have its figurehead in jail?
For what it's worth, she's not accused of insider trading; she stands accused of securities fraud and obstruction of various flavors. The principal issue seems to be that she's accused of making false statements of innocence in order to prop up the stock price of her company ... which is going to be impossible to prove, I should think. After all, assuming for the sake of argument that she was making false statements of innocence, how can you determine that it's for her company's benefit or for her own benefit, to persuade potential jurors that she was innocent and should not be charged or convicted?
Frankly, one suspects that the government is going after her like this purely as a matter of bad timing. Depending on who you're listening to or reading, she made a profit of $50,000-450,000 on her sale of Imclone, not a patch on her net worth. The scandal sent MSLO stock into a long tailspin, with something like 40-50% of its net worth lost. Martha herself has lost something like $450 million of her very own money. If her statement of innocence was meant to prop up her company stock, it would seem to have singularly failed. On the other hand, lurking out there are the ghosts of Enron and Global Crossing and the other business scandals of the past two years. Despite the fact that, by now, it seems to be pretty well known who did what, when, where, and why, not a second of jail time has been served by anyone. The only people who have really paid for their part in that mess were Arthur Andersen, which no longer exists as a functioning company.
As the poobahs have been pointing out all day long, the government failed in its attempt to convict Bill Clinton of obstruction, despite a much MUCH clearer case, despite clear prima facie evidence of obstruction. The standard for conviction was simply too high. If a federal obstruction case couldn't be made against Clinton, then how on earth can it succeed against Martha?
UPDATE: Martha Quits As Head of MSO (Newsday, June 4, 2003): Martha Stewart resigned Wednesday night as her company's chief executive and chairwoman of the board of directors, but said she would remain a director and continue to help develop her popular homemaking aids. "I love this company, its people, and everything it stands for and I am stepping aside because it is the right thing to do," Stewart said in a prepared statement. "This will enable the company to continue ... without the distraction of my personal legal issues... I will continue to be instrumental in the company's creative efforts."
Not surprising; it's really all she could do to try to protect her company. And frankly, as much as they could use the freedom from distraction about her legal efforts, that's not really going to work. Mostly, what it means is that she's in a position to let them fend for themselves, and concentrate on her own defense.
Posted by iain at 12:04 PM
File under "What the hell were they thinking?" At least, that's almost certainly what the various media arms of Time Warner yelled at them when they discovered what Nullsoft had done.
AOL pulls Nullsoft file-sharing software | CNET News.com: A day after developers at America Online's Nullsoft unit quietly released file-sharing software, AOL pulled the link to the product from the subsidiary's Web site. The software, called Waste, lets groups set up private, secure file-sharing networks. The product became available on Nullsoft's Web site on Wednesday, just days shy of the four-year anniversary of being acquired by AOL. Waste is a software application that combines peer-to-peer file sharing with instant messaging, chat and file searches. Users can set up their own network of friends and share files between each other. The quiet launch of Waste was the work of Nullsoft's principal developer, Justin Frankel, a soft-spoken 20-something known for his tech savvy and his streak of rebelliousness.
I'm guessing that unless Frankel has some sort of protection in the contract under which AOL acquired Nullsoft, he's awful close to being dismissed out of hand today. Surely there's nothing that would require AOL to continue to employ someone who is constantly being a pain in their ass. (And if his contract really is that iron clad, someone else in the Time Warner empire is getting fired for having written it in the first place.)
Posted by iain at 01:04 PM
