Save the Filibuster, Plant a Tree

I've remained silent on this issue for some time (or any issue, for that matter) hoping it would blow over, but it has not. Harry Reid should not accept the so-called Republican compromise for the simple reason that it is less compromise and more Republican victory, a full and unconditional surrender to the whims of the 51%. I don't care if Bill Frist proposes capping the debate at a 100 hours or 1,000 hours, because neither does he. It is incredibly foolish in this era of extreme partisanship to believe that Republican Senators will not confirm Mr. Bush's most controversial nominees because of something they heard Democrats say during debate. It makes no difference how many hours we devote to debate if the decision has been made in advance and the debate is merely a dog and pony show.

Upon hearing the majority speak, one might think that Democrats are unreasonable denying all of Mr. Bush's perfectly qualified nominees "an up and down vote." In reality, Democrats have used the filibuster in only 10 of over 200 confirmations, less than 5% of them, they are objecting mostly to those nominees who are most objectionable. To believe the Republicans is to overlook the fact that much of the current fracas arises from Mr. Bush's re-submission of 7 of the 10 rejected nominees: what kind of hubris does it take to accuse the minority of "obstructionist tactics" because they are trying to prevent the confirmation of judges that they've already rejected? These nominees may not have had an "up and down vote" but neither does the candidate who loses a primary, they were rejected outright. The majority, and especially Mr. Bush, needs to understand that bipartisanship does not mean that the Democrats should sit quietly in the corner while Republicans run roughshod over the Constitution. Roe vs. Wade is the law of the land, and the only "activist judges" out there are the Bush nominees who would "legislate from the bench" in order to undo it.

These are lifetime appointments to the bench, and Democrats are right to scrutinize them. No matter what Republicans say, there is nothing unconstitutional about the filibuster of judicial nominees, as the Senate sets its own rules and has changed them in the past with regard to both filibusters and nomination procedures. The filibuster is no less legitimate a political tactic for a minority to block an objectionable nomination than it is for a weak majority to break a Senate deadlock by using the Vice President's vote.

In March of 2003, Senator Leahy addressed many of the Republican myths about the filibuster. Most prevalent among these is the notion that the use of filibuster during judicial nominations is unprecedented. To this, Mr. Leahy said:

Republicans have claimed that this debate was unprecedented. That is false. Republicans not only filibustered the Supreme Court nomination of Abe Fortas, they filibustered the nominations of Judge Stephen Breyer, Judge Rosemary Barkett, Judge H. Lee Sarokin, Judge Richard Paez and Judge Marsha Berzon, among others. The truth is that filibusters on nominations and legislative matters and extended debate on judicial nominations, including circuit court nominations, has become more and more common through Republicans actions.

Just as Mr. Bush needs to understand that he can't make tough questions disappear by smirking at reporters, the Senate majority needs to understand that they can not make the record favorable to their cause by simply pretending things happened differently. Sadly, though, in today's America, some voters do forget the tough question facing the President when he smirks, and they just take the majority's word for it when they lie about the recent past...

Leahy's comments came during the first cloture vote for Miguel Estrada, one of those "minorities" Mr. Bush likes to nominate in the interest of diversity. I'll end by expressing my amusement at Republican claims that nominees are being objected to on gender or racial grounds. I don't know where Mr. Bush finds women and minorities that share his views, but I sincerely hope we can all agree that Estrada's nomination was withdrawn after six failed cloture votes not because he is hispanic, but because he is a fascist.

Race in politics is less an anthropological classification as an ideological one. This is why we can say that Bill Clinton was the first black president, and why we don't say Strom Thurmond was fine with interracial relationships because he used to sleep with his slaves. When we speak of "hispanic voters" we do not refer merely to voters who are hispanic, rather we allude to an additional set of criteria, such as views on immigration, and English as the official language; to put it another way, in politics there is more to one's race than one's race: does anybody seriously feel comfortable saying that Michael Jackson is black? Miguel Estrada was born in Honduras, but he is about as hispanic as Condi Rice is black: only on the outside, which is the prefect amount for an administration that was elected on slogans and imagery rather than substance and ideas.

In other news, the President planted a chestnut tree today in honor of Arbor Day. His message: "plant trees -- it's good for the economy and it's good for the environment. For more information on how planting trees benefits the economy check out the Natural Resources Defense Council's take on Bush's measures to increase logging...

Dan Is Sworn In And Saves The ICC

Has it been 9 days? Oh my... There is much going on in the world, notably the election of a new Pope, Benedict XVI (which incidentally cost me $5, I was foolish to believe they'd elect Cardinal Arinze), and the ongoing Bolton saga, unfortunately there is also much going on in my world, hence my absence from here.

As the first part of the title of this post suggests, I was (finally) sworn in to the Missouri Bar on Friday afternoon by Associate Circuit Judge Gary D. Witt. In attendance at the Platte County Court were my parents and some close friends. The event was quick but pleasant, and I thank those there for their support in this seemingly never ending process of getting me a law license. (I didn't get around to taking the bar exam until a year after graduating law school, and then I was out of town for the election and couldn't follow up on my application).

As the second part of the title suggests (perhaps a bit prematurely), I have decided to take it upon myself to get the U.S. to ratify the Rome Statute. I have contacted John Washburn at the American Coalition for the ICC, and I will be working with some good people at Amnesty International USA to head up an effort to spread ICC awareness while squeezing some pressure for ratification out of local organizations. I have no time as it is, but I felt I needed to return to the international law arena... wish me luck.

I have to go back to work now, carry on...

Sudan and the ICC

As noted previously the Security Council has passed Resolution 1593 and referred the situation in Darfur to the International Criminal Court. Prosecutor Luis Moreno Ocampo has acknowledged receipt of the referral and is investigating the matter. Resolution 1593 does not charge particular offenses, and so it is interesting to try to predict what course the investigation will take. My sense is that genocide might be harder to establish than many would like to think, and so I suspect that there will be more charges of war crimes and crimes against humanity than genocide.

The conventional wisdom that the mass murders taking place in Sudan are acts of genocide may not be so easy to establish legally. The key component of genocidal murder is that the intent of the perpetrator must be to "destroy, in whole or in part, a national ethnic, racial or religious group". That is from the definition of the crime used in the Genocide Convention (Art. 2) as well as in the Rome Statute (Art. 6). So where's the problem? The Sudanese government has held the position that the killings have not been motivated by racial, ethnic, or religious hatred, but by outside interference and economic underdevelopment. The killers, they argue, would kill indiscriminately, those inhabiting the lands that they seek; it just so happens that those inhabitants share a racial, ethnic, and religious identity. So if I set out to kill all of Chicago's cab drivers, it might look like genocide because a lot of cabbies here are of South Asian descent, but it would actually not be genocide because the killing was motivated by a hatred of bad drivers, regardless of their ethnicity.

That sounds pretty absurd to many, I know, but it cannot be dismissed outright, in my opinion, because it explains the reluctance of governments to act given the responsibility that arises once genocide is determined to be taking place. Jus cogens, or customary international law, provides very few clear rules. One is that pirates are bad, and so is slavery, and another is that genocide must be stopped. For crimes such as these, all nations share a right and an obligation to prosecute offenders, regardless of jurisdictional barriers that might otherwise exist.

So in other words, a finding of genocide requires action by the community of nations, action that is costly in human and economic terms. This is one of the reasons why we saw so much debate leading up to the adoption of SCR 1593, and why the resolution as adopted does not make a finding that genocide has taken place. Another sore point in the debate was U.S. opposition to the I.C.C., which threatened to derail any resolution referring the matter to the new court at The Hague. A compromise was finally reached, SCR 1593 reserves jurisdiction over non-State Party nationals for their national courts, and the U.S. abstained from the vote.

A final thought came to me on this matter, but I won't dwell on it because I have nothing to support it: could it be that the U.S. has been so quick to label the crisis a genocide because it knew that a reluctant U.N. would look bad by not acting? Anyone weary of attributing such motives to the current administration might remember that Mr. Bush is trying to make John Bolton our next representative to the world body...

Dan Lives!!!

Work has been extremely hectic, and my wi-fi has been extremely unreliable, so I have been extremely absent from here. As a result, I have missed the opportunity to comment on a good number of recent events... big stories, things about which I have much to share. What follows is a quick flurry of mini-posts, just a few sentences, on some of those recent stories about which I would have liked to have written, but wasn't able to.

Karol Wojtyla, better known as His Holiness Pope John Paul II, passed away last weekend and was buried yesterday. Born in May of 1920, he lived through Nazi occupation, Communist rule, an assassination attempt, and severe illness late in life. As a young man in Poland he was deeply involved in his faith, as well as sports, academics and theater. I am saddened, and a bit angered at the way some in the Right have attempted to politicize the life and work of this incredible human being, using the "culture of life" spin to further their own political agendas. Having said that, I must quote Mr. Bush's speechwriting staff, as I feel they did a good job with the President's statement on John Paul II's passing:

"The Catholic Church has lost its shepherd, the world has lost a champion of
human freedom, and a good and faithful servant of God has been called home. Pope
John Paul II left the throne of St. Peter in the same way he ascended to it -- as a witness to the dignity of human life ... We will always remember the humble, wise and fearless priest who became one of history's great moral leaders. We're grateful to God for sending such a man, a son of Poland, who became the Bishop of Rome, and a hero for the ages."

The Sovereign Prince of Monaco died as well, His Serene Highness Rainier Grimaldi III passed away on Wednesday. Because of constitutional restrictions, Monaco does not have a king, but the Crown Prince still carried out the role of monarch with an aplomb and dignity we do not often see in modern statesmen. I saw a special on his U.S. educated son, Crown Prince Albert, a few months ago, and I remember thinking that he might be gay, though he denies it. I suppose the speculation comes from the fact that despite dating many models and actresses, he has never married. That, and the fact that he was in the Glee Club while at Amherst. In any event, he appeared to be very intelligent and capable, he appears to have learned much from his father, and I am confident he will make a good, strong leader.

Baseball got underway without a hitch, the Yankees were unfortunately unable to sweep the BoSox, but we still put a good hurt on them, look for them to sweep them in Fenway starting Monday. No comment on Kansas City until the countdown to 100 losses picks up the pace.

The North Carolina win over Illinois in the NCAA basketball tourney finally disproved my "blue state vs. red state" theory of sports. My Chicago friends will be sad to note that I had my money on the Tar Heels.

A roving gang of idiots calling themselves the Minutemen have descended on the deserts of Arizona. These racist, gun-toting morons claim to be doing their part to fight illegal immigration for the sake of national security. Call me skeptical, but I have a nagging suspicion that these people were talking about doing something like this long before 9/11. There need to be clearer boundaries in the debate over immigration reform so that the need for legitimate scrutiny to prevent entry by terrorists cannot be used for political gain by the proponents of reforms that are objectively more anti-immigrant than anti-terrorist.

It has just become more dangerous for men of color to live in Florida. A bunch of idiots in Tallahassee have legalized the use of deadly force anywhere, by anyone who "reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another" (S.B. 436, Section 776.012(a)). Republican Dennis Baxley and the NRA strongly support the measure, though at least one of the two claimed to believe in "a culture of life" when it came to Terri Schiavo. We've all heard of people walking to the opposite side of the street to avoid some "scary-looking black kids" coming their way, and while some argue that this is a very racist thing to do I think it beats the alternative of opening fire against the kids. I will be taking bets on how long it will be before a jury of Floridians decides otherwise.

There were many other developments in the world last week, Sino-Taiwanese tensions grew, the Kansas City Wizards started the season off with a win, Tony Blair will seek another term, the ICC has begun investigating Darfur at the Security Council's request (though with immunity for contributing non-State Parties) and is investigating the situation in Colombia; also, the Bolton nomination process has gotten interesting. I cannot delve into all of these, as well as other topics at this time, but I imagine that at some point, I will have spare time in which to do so.

Mitch Hedberg, 1968-2005.

One of my favorite comedians, Mitch Hedberg has died of a heart attack at the age of 37. Hedberg's long hair and sunglasses fit his mumbly and stage frightened delivery of one-line comedy, which was reminiscent of Steven Wright's. I'm not sure what else to write about this, other than to express my sadness at his passing, and include some of his jokes, which are not for everyone, but which I find to be hilarious.

"I haven't slept for ten days, because that would be too long."

"My roommate says, 'I'm going to take a shower and shave, does anyone need to use the bathroom?' It's like some weird quiz where he reveals the answer first."

"I think foosball is a combination of soccer and shish kabobs."

"I don't have a girlfriend. I just know this lady who'd be really mad if she heard me say that."

"I once saw a forklift lift a crate of forks. And it was way too literal for me."

"You know when they have a fishing show on TV? They catch the fish and then let it go. They don't want to eat the fish; they just want to make it late for something."

"I was at this casino minding my own business, and this guy came up to me and said, 'You're gonna have to move, you're blocking a fire exit.' As though if there was a fire, I wasn't gonna run. If you're flammable and have legs, you are never blocking a fire exit."