International House of Dan: October 2005

Monday, October 31, 2005

Moving to Canada: One Year Later

So it's been almost a year since the electoral fiasco of last fall. I was reminded of this upon seeing a car with one of those "Move to Canada Like You Promised" stickers. It occurred to me that those of us who cannot bear to stay and fight against the scary ideologues attacking our liberties have a plethora of secular humanist states that would have us. The most popular example is, of course, Canada, Bill Maher chose Switzerland, but the list usually includes havens such as Holland, Greece, France, and anywhere in Scandinavia. But what about those on the right? Where will they run away to when the thundering backlash from the left finally puts an end to the insanity being wrought upon us in the name of Jesus? I thought I would try to answer that question.

According to the pro-life (or anti-choice... it's all semantics, right?) Pregnant Pause, abortion is illegal under all circumstances in Chile, El Salvador, Malta and Vatican City. It is allowed only to save the mother's life (not health) in Afghanistan, Angola, Antigua, Benin, Brunei, CAR, Chad, Colombia, the Republic of the Congo, the DRC, Cote d'Ivoire, Dominica, Dominican Republic, Egypt, Gabon, Guatemala, Honduras, Indonesia, Iran, Ireland, Kiribati, Laos, Lebanon, Lesotho, Libya, Madagascar, Malawi, Mali, the Marshall Islands, Mauritania, Mauritius, Micronesia, Monaco, Myanmar, Niger, Oman, Palau, Paraguay, the Philippines, San Marino, Sao Tome and Principe, Senegal, the Solomon Islands, Somalia, Sri Lanka, Suriname, Syria, Swaziland, Tonga, Tuvalu, UAE, Venezuela and Yemen. Ok.

From this list of "life-loving" nations we should remove those countries who are not hypocritical as far as abortion and the death penalty. According to Amnesty International, the list is then reduced to Afghanistan, Antigua, Chad, the DRC, Dominica, Egypt, Gabon, Guatemala, Indonesia, Iran, Laos, Lebanon, Lesotho, Libya, Malawi, Oman, the Philippines, Somalia, Syria, the UAE and Yemen. Unfortunately we had to drop a lot of countries that have the death penalty but "are believed to have a policy or established practice of not carrying out executions," and we don't get to restore anyone to the list by adding those bleeding-hearts who only use the death penalty for non-ordinary (serious) crimes. Now we're getting a clearer picture of where the defeated Republicans would go.

Red-Staters also love a strong military. The CIA reports US military expenditures as a percentage of the GDP at 3.3% (which seems right from what I've seen elsewhere), so we should cut the list to countries that find it necessary to spend at least as much of their income on "strong defenses." Data is not available for Antigua or Dominica, but our list could be reduced to Egypt (3.4%), Iran (3.3%), Libya (3.9%), Oman (11%), Syria (5.8%), Yemen (7.8%) and maybe Afghanistan (2.6%), Indonesia (3%), Lebanon (3.1%) and the UAE (3.1%). I used 2.6% as the absolute cutoff because that's what France spends! They probably wouldn't feel safe from the evil-doers abroad if they went to weak-on-defense Chad (2.1%), the DRC (1.5%), Gabon (2%), Guatemala (0.8%), Lesotho (2.3%), Malawi (0.7%), the Philippines (1%) or Somalia (0.9%).

Their chosen country of exile would never allow same-sex marriage either. From the countries on our list, homophobes... I mean, Republicans would probably feel least comfortable in Egypt or Indonesia, where according to Public Agenda homosexuality is not even illegal!

I could go on and on, but I believe I've made my point about some of the values and issues that define us as conservative or liberal... but just in case I haven't, it bears mention that three out of these six potential conservative utopias are also three out of the six State Department-designated "state sponsors of terrorism" (Iran, Libya and Syria).

To the owner of the stickered vehicle in question I can only say one thing: "you'd like that, wouldn't you?"

What to Make of ScAlito?

I was getting ready to go to the Labor Board this morning to give an affidavit when I heard the news that President Bush had announced his nomination of Judge Samuel Alito to replace Sandra Day O'Connor on the Supreme Court.

At first, reaction to the nomination seemed quiet, but over the course of the day I heard mounting opposition from legislators and groups with which I usually agree. Then I received my PFAW backgrounder email on Judge Alito, scanned their preliminary report and became convinced that this is not a nomination that I can agree with. I signed PFAW's online petition, and urge everyone else to do the same.

While I'm still trying to learn more about the specifics of the nominee's philosophy, I have to take issue with the announcement in general, for similar reasons as I did that of Miers. Said the President of Judge Alito's tenure on the 3rd Circuit Court of Appeals: "Judge Alito has served with distinction on that court for 15 years and now has more prior judicial experience than any Supreme Court nominee in more than 70 years." I'm not going to go into an analysis of the sort I used for Miers, but 1935 puts us between Justice Cardozo (who ascended in 1932 after 18 years on the Court of Appeals) and Justice Black (1937). Clearly "more than 70 years" means "between 70 and 73 years." Most Justices who ascended to the Supreme Court during that time did in fact have less judicial experience than Mr. Alito; Justice Burger comes close with 13 years and next is Justice Blackmun with 11, but the remaining Justices with prior judicial experience tend to be tapped for the High Court within about 5. What the Justices in that 70 year span have in spades over Alito is other experience in private practice, academia, or government. I think it's wrong to reduce the experience that these men brought to the Court (as professors, governors, U.S. Representatives and Senators) to a single aspect of their careers for the sake of making a favorable comparison to a nominee.

What I must reiterate from my earlier post on the Miers nomination is that I find judicial experience to be an irrelevant factor in isolation. A review of the biographies of Supreme Court Justices since 1935 reveals a wealth of experience in various aspects of civic and political life. I don't think it matters by itself that Miers lacked judicial experience, or that Alito has more than most. Supreme Court nominees tend to be in the same ballpark in terms of age, and since there is no list of qualifications for them, they will invariably have spent their lives in a variety of pursuits. Felix Frankfurter taught law at Harvard for 25 years before being nominated, how do we compare that with 15 years on the Court of Appeals for Alito? We don't, and I just wish the President would stop looking at judicial experience in terms of Justices past and reducing accomplished lives to trivial statistics. This oversimplification of issues is typical of a move aimed to appease the conservative base, and it saddens me that if education does not improve, the left will have to adopt it in order to survive.

This "last 70 years" for Alito and "last 35 years" for Miers is just more of this "pro-life", "death tax", "personal accounts", "or the terrorists win" and "activist judge" branding that the right has become so good at during this administration. Woodrow Wilson once said "a conservative is a man who sits and thinks... mostly sits." This is not going to change as long as 51% of the people focus on the slogan created for an issue instead of on the issue itself. I wrote in the Miers post that "a lack of judicial experience casts no aspersions on one's qualifications to serve on the highest court when, as with these men, other experience has taken its place." The converse must be true as well, that mere wealth of judicial experience is not enough to qualify an individual, especially when other experience is lacking.

For what it's worth, in the last 70 years Homer Thornberry had 15 years on the bench when he was nominated, Clement Haynsworth and Harold Carswell each had 12, and you don't see any of them on the bench. As far as people who could still be nominated today, Douglas Ginsburg has 19 years and counting. Perhaps he should be renominated, surely Mr. Bush could agree with President Reagan's 1987 assessment that "Judge Ginsburg is, as I am, as every justice I've nominated has been, a believer in judicial restraint; that is, that the proper role of the courts is to interpret the law, not make it." (Sound familiar?) If he is willing to overlook Ginsburg's past marijuana use and the effect it might have had on his views on privacy, then the President would get to drape himself in the Gipper's shadow once again. Photo-op anyone?

Saturday, October 15, 2005


I was out of the country when news broke of the nomination. Because of the importance of the swing vote in question I am retracing the process from the announcement on. That is why it's taking me a bit to get to the substantive concerns surrounding this nominee, well, that and the fact that while the President knows her quite well, the rest of us do not. Thank you for your patience.

Friday, October 14, 2005

Harriet Who?

I'm just starting to very lightly scratch the surface on this nomination, so please bear with me (that means you Jeremy), I promise I will delve into the issues in the coming days.

The resume of Harriet Miers is good, I suppose, but her achievements do not even begin to approximate those of the Justice she would replace. I base this on a variety of things, such as the fact that in 1972, when "Ms. Miers became the first woman hired at Dallas's Locke Purnell Rain Harrell", O'Connor became the first woman elected majority leader of any state senate in the country. Both were in Law Review, but Miers went to Southern Methodist and earned a bachelor's in math and a JD, while O'Connor graduated high school at 16, went to Stanford, and graduated magna cum laude in economics, earned her JD, and made Order of the Coif. Following the announcement of the Miers nomination, the President claimed on his weekly radio address that:
Harriet Miers would come to the Supreme Court with a background in private practice and high-government service, and this puts her in strong company. Indeed, since 1933, 10 of the 34 justices came to the Supreme Court directly from positions in the executive branch, such as the one Ms. Miers now holds.
O.k., let's see about these other 10... As far as I can tell, there have only been 9 Justices since 1933 who worked for the executive at the time of their nomination. Fortas did not work for the executive at the time of his nomination, but it was the only branch he'd ever worked for. Harriet Miers "now holds" the position "in the executive branch" of White House Counsel. Since 1933, the 10 Justices who've ascended from the executive branch have been Justices Stanley Reed (1938 - Solicitor General, never got his law degree), William Murphy (1940 - U.S. Attorney General - had been Mayor of Detroit and Governor of thePhilippiness), Robert Jackson (1941 -Solicitor General - had been Assistant U.S. Attorney General and IRS General Counsel), Fred Vinson (1946 - Secretary of the Treasury, had been on the U.S. Court of Appeals and a U.S. Representative), Tom Clark (1949 - U.S. Attorney General, from Dallas, had been at Justice for 12 years and was civilian coordinator for Japanese internment camps), Byron White (1962 - Deputy Attorney General, a Rhodes Scholar and WWII vet who played in the NFL, graduated first in his class at Yale Law and clerked under U.S. Chief Justice Vinson), Arthur Goldberg (1962 - Secretary of Labor, had been a WWII OSS agent and prominent labor attorney), Abe Fortas (1965 - was actually in private practice at the time but he has to be the 10th, ran the SEC, was Undersecretary of the Interior, and won Gideon v. Wainright) Thurgood Marshall (1965 - Solicitor General, had been on the U.S. Court of Appeals and won Brown vs. Topeka Board of Education), Warren Burger (1969 - Assistant Attorney General, had been a law professor, argued before the Court and been on the U.S. Court of Appeals), William Rehnquist (1971 - Assistant AG in the Office of Legal Counsel, a WWII vet with multiple degrees from Stanford and Harvard who clerked for Justice Jackson). It seems to me that, as with these (mostly) able Justices, the fact that Miers came directly from the Executive is not the problem. A lack of judicial experience casts no aspersions on one's qualifications to serve on the highest court when, as with these men, other experience has taken its place. The President continued:
And no Supreme Court nominee in the last 35 years has exceeded Harriet Miers' overall range of experience in courtroom litigation, service in federal, state and local government, leadership in local, state and national bar associations, and pro bono and charitable activities.
For starters, bar association membership and activity is about as relevant in assessing a nominee's qualifications as fraternity or sorority affiliation. As for the rest of the factors, I find them difficult to gauge, and their importance overstated. Harry Blackmun was nominated in May of 1970, and Mr. Bush spoke last week, so I suppose he missed the cut by a few months. This means that "the last 35 years" leaves us only Reagan's 2 failed nominees for Justice Powell's seat (Robert Bork and Douglas Ginsburg) and every Justice to have sat on the Court since Justice Powell. Whatever "overall range of experience" may mean to the President, if Miers has more of it than the current sitting Court, then I'm not sure that it's anything a Supreme Court Justice needs to have. If he was talking about the failed nominees (nomination politics aside), then we should scarcely be reassured by her having more of something than the two people who were deemed not to have enough.

At her confirmation Sandra Day O'Connor got 99 yea votes. I'm willing to bet a substantial sum that Harriet Miers won't. Any takers?

Saturday, October 01, 2005

Bucky Lives!!

Sam, thanks for the kind words, they almost make me feel bad for doing this... almost.

All of you who have asked me over the past months if the Yankees will even make the Wild Card have received the same reply: "I'm not worried about the Wild Card, they're going to win the East." I realize that I am tempting fate by even mentioning this on the eve of the playoffs, but I feel compelled to gloat because of all the ridicule I've endured from you people during the regular season. The Yankees are A.L. East champs... again. They clinched the Division at Fenway for the first time in 26 years and 364 days, the last time being October 2, 1978 when Bucky Dent... well, you know the story...

I will be without Internet access until next weekend... until then, go Yanks!