Just a quick note to say that the blogroll is undergoing substantial revision. Phase one has been completed and posted. A more substantial site update comment will be posted later, and this placeholder comment will be removed; I've been promising links to a number of people, though, and I've been delinquent in meeting my promise, so I wanted to get the links posted, at least, before I headed out for dinner.
Saturday, September 7
Friday, September 6
Atrios links to an AP article summarizing the ways in which Americans' rights have been diminished after the passage of the USA Patriot Act. While some of the individual descriptions seem to me to be written in an exaggerated and perhaps unnecessarily alarmist fashion, it can't be denied that there have been serious erosions in individual rights since September 11, and that the Justice Department is bent on further erosions.
Responding to my post yesterday about the ultimately doomed Priscilla Owen nomination, in which I suggested in passing that "it's a travesty for the majority party to use the Senate's arcane and undemocratic rules to bottle up nominations for months and years at a time," Kevin Drum of CalPundit wondered whether the Senate's internal procedures--holds, filibusters, and other antimajoritarian measures--would survive a constitutional challenge.
I think they probably would. As Kevin notes, the Constitution, in Article I, Section 5, states in part that "[e]ach House may determine the Rules of its Proceedings." Delegations to committees for initial assessment a screening, rules governing the scheduling of votes and the circumstances in which they shall occur, and similar rules with potentially antimajoritarian effect would seem to fit within this provision. That would not be the case, of course, if the Constitution elsewhere prohibited deviations from majority rule (or at least such deviations as were not expressly sanctioned by the Constitution itself). But it nowhere does so, at least not explicitly, and any attempt to piece together an argument that it does so implicitly quickly runs up against the history of the early Congress, which strongly suggests that the founding generation saw no constitutional barrier to antimajoritarian institutional rules.
It might, I suppose, be possible to argue that there's something special about judicial nominations. There is no constitutional mandate in Article I that Congress actually vote on any given piece of legislation, so if institutional rules prevent a piece of legislation from reaching a vote, no constitutional harm has been suffered. On the other hand, Article II, Section 2 gives the president the power to appoint ambassadors, Supreme Court justices, and other officers "with the Advice and Consent of the Senate." Here, perhaps, some mandate for senatorial action does exist, as the president cannot exercise the executive's constitutional authority if the Senate declines to act, and perhaps a refusal of the Senate Judiciary Committee chair to schedule a vote would not accord with that mandate. Such an argument would have to be tailored very narrowly, but this would be the strongest case for requiring a Senate vote (or at least a committee vote).
Even so, however, there would be difficult questions of timing: as the Constitution is silent on the time period within which such a vote would have to occur (if indeed a vote were constitutionally mandated), the courts would be put in the awkward position of having to formulate a rule that would balance the institutional prerogatives of both the presidency and the Senate. Courts are understandably reluctant to assume such a role in the absence of clear constitutional guidance. So, on the whole, I'd say that the Senate's rules that allow nominations to be held without votes for long and indefinite periods of time are unwise, but probably not unconstitutional (or not unconstitutional in a judiciable way).
The first part of my analysis, by the way, is based in large part on an article that Professors Catherine Fisk of Loyola Law School and Erwin Chemerinsky of USC Law School published in the Stanford Law Review a few years ago about the Senate's filibuster/cloture rules. It's a terrific review of the filibuster's history and changing institutional role. For those who are interested and have access to a law library, the article may be found at 49 Stanford Law Review 181 (1997).
The Bull Moose, a critic of the Bush administration from the start, has now severed his ties with the Republican Party and declared his independence. Considering the ringing rhetoric the Moose usually employs, the declaration is surprisingly tepid; this has the appearance of a reluctant step by a former loyalist. Still, it's done.
The more interesting question, given the Moose's longstanding and close association with John McCain, is whether the Moose is acting alone or is preparing the way for a McCain bid to seize what I've been calling the radical center--radical because of its growing disgust for the ossified two-party system. With the Republican Party wholly captive to big business and big money, and with the Democratic Party unwilling or unable to mount a consistent opposition even during the Bush administration's summer of bumbling, neither party seems capable of exercising leadership on our most pressing national problems. The Moose has been working toward this conclusion for some time, but the Moose is not himself a public political figure. If the Democrats don't shape up, though, and soon, someone will step forward to try to harness the discontent that's growing in the electorate (discontent reflected in recent poll results showing that more people think the country is on the wrong track than on the right track). The danger is that it might turn out to be a demagogic nutjob on the order of Ross Perot.
Let no one say we live in uninteresting times.
Thursday, September 5
Tonight is the opening game of the NFL season, and with all the misery that the Mets have brought me this year, it’s nice to contemplate a fresh start with the Giants (although I have to say that my expectations are low). The Giants-Niners game starts at 7:30 Indianapolis time (that’s eastern standard time—it’s a long story) on ESPN.
Today is also my wife’s birthday. So how will I spend the evening? Not even close—however the Giants fare against San Francisco, they’re clear losers in this competition. I'll watch the highlights tomorrow.
Love is a powerful thing.
It looks like Cooped Up is headed for record traffic today, and I feel badly that it is almost uniformly generated by a post—to which Glenn Reynolds linked this morning—describing my negative experiences with Mac OS X 10.2. I haven't mentioned it much here, but I'm a longtime Mac user and Apple supporter. I'm one of two Mac users in the law school, and that's clearly by choice, not necessity. I've stuck with the Mac since college, whenever possible, for two reasons. The first is my general distrust of entrenched corporate power—first on the part of IBM, then of Microsoft—and my belief that encouraging competition within the private sector is a good thing. The second is largely aesthetic—Microsoft's programs, from Word to Internet Explorer, from DOS on down to Windows XP, have always struck me as clunky, ugly, intrusive, and frequently obstructionist. I encounter these problems in Microsoft's Mac software; why would I want to deal with them in my operating system as well? Even though I'm reasonably competent in Windows (to the extent that some of my less tech-savvy friends sometimes call me for help with their Wintel machines), the Mac works better, and has always worked better, for me (that's an important qualification—I would never claim that the Mac is right for everybody). And while OS X when first released represented something of a step backward in functionality, the dramatic improvement in stability was worth the tradeoff. At least until now.
I've received a number of thoughtful emails, most of them offering to walk me through a clean install of OS X. While I appreciate the offers, a dirty upgrade is not the source of my problem—I wiped the hard drive and started afresh with a clean disk and a full (though customized) install of Jaguar. On reflection, there are two unlikely and two more plausible sources of my problem. First, the unlikely sources: I may have a corrupt Jaguar installation disk, as some have reported. I doubt that's my problem, because the problems I've had don't seem to match the symptoms that those with corrupt installer disks have described. Alternatively, Jaguar may not be ready for prime time. There's something to that—Apple did release Jaguar with knowledge that there were some outstanding issues, as is virtually inevitable in any major OS upgrade—but what I'm experiencing goes well beyond the normal kinks in a new release, and well beyond what the vast, vast majority of users are experiencing with Jaguar.
That leaves two more plausible sources of the problem. First, as I mentioned, I did a custom installation, to avoid installing various printer drivers and multilingual localized files that I will never use. Making those changes saved about a half a gigabyte of hard-disk space, as well as about a half-hour of installation time, but it's possible, I suppose, that something got mucked up in the customization process, leading to my problems. But I discount this possibility as well. The freezes don't occur when I use AppleWorks, or when I use Netscape 7.0, or when I use Apple's Mail. They only occur when I'm using—surprise—Microsoft products. My suspicion at this point is that something's awry with my Microsoft preference files. I hope that's right, because the alternative—that Office X and IE 5.2, all essential programs for my work, don't run properly under Jaguar—is too awful to contemplate.
I'm working today from my nearly three-year-old Powerbook G3 using OS X 10.1.5. It's a bit on the slow side, but at least I'm back to rock-solid stability. In the meantime, I'm starting from scratch with another wipe of the hard drive and another fresh install on my desktop machine (a nearly three-year-old Power Mac G4 AGP, for those who care), with the hope that my problems will be solved. But I don't want my previous post to be taken as a general slam at Apple, or at OS X. I regard this as a glitch, frustrating but temporary. When I'm due for a new office computer next summer, I'm planning to make it another Mac.
Faced with the naked hypocrisy of Sen. Orrin Hatch, Sam Heldman channels Jerry Stiller in an effort to remain calm. It isn't easy. Hatch, who as chair of the Senate Judiciary Committee played a key role in the Republicans' obstruction of President Clinton's judicial nominees, is in no position to complain, as he now does, of "the attempt by some to introduce ideology and base politics into the confirmations process." Hatch, after all, was instrumental in the politicization of the confirmation process for appellate judges. Some of the judges who were denied hearings and votes under Hatch's stewardship were liberals to whom Hatch and his Republican colleagues might have understandable ideological objections; others, though, were moderates whose sole sin (such as it was) was that they had been appointed by a Democratic president. It's common for the party in charge of the Senate to play this kind of game in the last year of a presidency when the president is from the other party. But Hatch and his Republican colleagues began their obstructionism as soon as they gained control of the Senate. And, as Sam points out, the vote on Missouri Supreme Court Justice for an Eighth Circuit judgeship became politicized not because White was a dangerous radical, but because Sen. John Ashcroft, with Hatch's complicity, made it so with a vicious smear campaign.
Serenity now. There are two responsible positions that one can take on judicial nominations: either (a) neither party should take ideology and politics into account when it controls the Senate and the President is of the other party (the perfectly reputable stance that Howard [Bashman] took the other day); or (b) it is acceptable for either party to take ideology and politics into account (the stance that I take, though like most who take this stance I think that the power should be used sparingly -- but that it should be used in this instance with a vote against Owen).
My own position is essentially Sam's, with perhaps a bit of elaboration. Ideally, ideology would play no role in the confirmation process, and nominees would be selected and judged based solely on their qualifications and competence. But when a president takes ideology (demonstrable through reference to the nominee's established record) into account in making a nomination, members of the other party in the Senate are, and should be, perfectly entitled to take that ideology into account in voting on the nomination. Texas Supreme Court Justice Priscilla Owen is no one's idea of a moderate; indeed, it seems likely that that is precisely why she was nominated. If Democrats want to vote against her on that ground, that's fine.
I'm pleased that Owen's nomination is headed for a vote. As I've said before, I think it's a travesty for the majority party to use the Senate's arcane and undemocratic rules to bottle up nominations for months and years at a time. That was true when Republicans did it under Sen. Hatch's leadership, and it remains so when the Democrats do it under Sen. Leahy's leadership. But when a nomination is brought to a vote, and the nomination is one clearly based on ideology, senators have a right, even a duty, to consider that ideology in voting on the nomination.
Update: Howard Bashman has gently reminded me that Ronnie White was nominated to the United States District Court, not to the Court of Appeals for the Eighth Circuit. My apologies for this inexcusable factual error.
Wednesday, September 4
I upgraded my office computer to Mac OS X 10.2 (also known as "Jaguar") last Friday night, reinstalled Microsoft Office X on Tuesday morning, and have had nothing but trouble since then. In particular, my Mac has locked up four or five times a day in Microsoft applications, eating class notes, PowerPoint presentations, and, yes, even blog posts in the process. This is a brand new experience under OS X, which has been rock-solid for me ever since I made the full transition from OS 9.2 in January—I've had programs crash, to be sure, but never the hard freezes that I've been seeing this week. On top of that aggravation, I'm just having a day generally. Blogging will resume this evening from the safety of my home Mac and OS X 10.1.5.
The administration continues to send mixed signals about its Iraq plans, with Colin Powell declaring that the president hasn't decided what to do yet on the very day that Bush himself goes to Capitol Hill to make the case against Iraq to congressional leaders. Taken as a whole, however, the news today suggests that the only real questions are how and when, not if. Powell's statement may well be true, in the sense that the president may not yet have approved orders for an invasion and may still be considering his tactical options. But the overall message is clear: we're going in.
Tuesday, September 3
On Saturday afternoon in Terre Haute, after my worst round of golf of the summer, I found myself having a drink with my father-in-law and three of his friends. These were all successful businessmen and professionals, rock-solid conservatives in a conservative state, and when the conversation turned to politics I cringed inwardly (while resolving to hold my tongue). To my astonishment, all were highly critical of President Bush, especially of his handling of Iraq and the war against terror. These were not doves, they were not appeasers (one was a proud veteran of World War II), and they were not fans of Saddam Hussein. But all had a firm impression that the president had no idea what he was doing.
On Sunday, the front page of the Terre Haute Tribune Star featured a story about Rep. John Hostettler's rude treatment of a group of breast cancer survivors, many of them from Terre Haute (I mentioned this meeting a couple of weeks ago). Seeing the story, my mother-in-law and father-in-law, both registered Republicans, were openly disdainful of Hostettler, whom they regarded as an arrogant, one-note boor.
The common thread here is dislike of politics as usual, together with distaste for politicians who combine a lack of serious thought with an utter certainty in their own rectitude. That category certainly includes the president, and it encompasses much of the Republican leadership on the Hill as well. To be sure, such politicians are not inevitably Republican. If anything, though, many Democratic politicians these days seem to have the opposite problem: while they also fail to display seriousness of thought, they are reluctant to take a stand on anything (witness their criticism of Bush's tax cut but unwillingness to call for its revision or repeal).
The weekend provided anecdotal reinforcement of my impression that we are headed for a political realignment in this country. The Democrats have a chance to take advantage of this realignment, but their hand-wringing inaction in Congress suggests that they are unlikely to seize the opportunity. With the calcified political parties increasingly unresponsive to the voters' concerns, the opportunity for a serious centrist independent movement is increasing. Ross Perot tried to fill this opening in 1992 and 1996, but his appeal was limited by the fact that he was a kook. Even so, he briefly led the polls in 1992. The opening is still there—indeed, it may have grown; it just remains to be seen who will move to fill it this time.
Monday, September 2
I have a major site update in the works, but I have some work to do in preparation for tomorrow's class, so it may have to wait. I do, however, want to thank TalkLeft for the kind words about Cooped Up today. I am deeply flattered to be included in the company of sites mentioned in the post. TalkLeft does a superb job of discussing criminal law issues from a left-liberal perspective; the post today about the problems underlying the guilty verdict against Michael Skakel for the 1975 murder of Martha Moxley is a brief but insightful summary of the complex problems of proof posed by the case. I check TalkLeft daily—it's a terrific site.
St. Hallett Old Block Shiraz (Barossa) 1994
Wynns Michael Shiraz (Coonawarra) 1994
Ten years ago tomorrow, following the bar exam and before beginning work in a large D.C. law firm, I departed for a six week trip to Australia (with a ten-day side-trip to Nepal). While in Australia, I took tasting trips through some of the major wine regions: the Hunter Valley in New South Wales, the Yarra Valley in Victoria, and the Barossa Valley in South Australia. Of these, the Barossa was easily my favorite—in part because I splurged for a superb tour guide, and in part because the wines, many of them made from century-old vines, are flat-out fantastic.
(An aside to law students: if you can at all afford it, take a long trip after the bar exam. Once you've begun work, opportunities for extended travel are hard to come by, and it's important to recharge your batteries after the grueling experience of preparing for and taking the bar).
St. Hallett was one of the wineries I visited in the Barossa and one of my two favorites in a long day of tasting. The other was Rockford. I visited the two back-to-back, and they really couldn't have been more different: Rockford looked like something out of the 1920s, while St. Hallett was modern, pristine, and industrial. The two shared an important characteristic, however: dense, concentrated fruit from hundred-year-old vines. I'll write about the Rockford Basket Press Shiraz when the weather gets a bit cooler—it's really too massive a wine to enjoy in the heat of early September. But Stuart Blackwell, St. Hallett's winemaker, shows a bit more restraint than Rocky O'Callaghan at Rockford, so opening a bottle of the Old Block Shiraz seemed an appropriate way to mark the passage of a decade since my trip. And the wine is indeed wonderful. Deep raspberry and blackberry fruit are matched to a firm but ripe tannic structure, with notes of freshly crushed black pepper on the midpalate. The aromas initially seem over-oaked (a characteristic not entirely unusual in premium Australian shiraz from the 1980s and early '90s), but come into balance with airing, revealing eucalyptus, mint, and licorice as well as ripe red fruits. The wine is long and concentrated, with a clean red fruit finish; at the age of eight years, it is still remarkably youthful. The 1994 isn't quite up to the standard of the 1990 (which is the vintage I tasted at the winery, when it had just been bottled; I've had it several times since then as well), but (as my friends in Melbourne would say) it's a good drop.
Wynns produces one of my favorite Australian cabernet sauvignons, the John Riddoch, which is a marvelous example of what the Coonawarra's red soils can produce. The Michael Shiraz is Wynns' premium shiraz, as the John Riddoch is the winery's premium cabernet sauvignon, but it's not up to the John Riddoch's standard. Although it shows good concentration, its aromas and flavors are monolithic—all jammy blackberry fruit. It's enjoyable for that, I suppose, but with a price around $50 a bottle I think we're entitled to expect more.