217-215. Bush got CAFTA through by the skin on his teeth. It is strange just how schizophrenic this administration is about free trade. It’s also amazing how Bush manages to fuck up even the positive things he has done. Our soldiers in Afghanistan have fought to a draw (charitably), and our “Free Trade” policies… we’re opening Central America, but we’re most likely going to do nothing to ensure that the governments in those countries channel their new trade gotten gains for the greater good.

Likewise, we’ve proposed all of this aid for Africa, mere monetary methodone. The US Army apparently does not have a “regime change” mission against Mugabe. Last I checked, Bush has a strong dollar policy (much like the Clear Skies initiative, I guess) that has seen the dollar tumble–and that’s the only thing he’s done for American manufacturing.

Of course, CAFTA won’t matter much. The anti-globalization (read: anti-American) left managed to kill the FTAA, with the larger trading partners in it. On the right, isolationist business interests left over from the Coolidge era manage to line up with their spoiled trustafarian children who will do anything to “help” brown people who are so dumb they can only manage to be exploited by whites to make sure that nothing ever changes in the poorer continents of the world.

It’s the successes (India, China) , not the failures (Argentina, Africa) of globalization that scare more people, especially Americans, and mutated 60s language (oh no, we must preserve another superstitious virgin-sacrificing “peaceful” indigenous culture! who my college-age son made pottery with) pushes it through the patrician-angst ridden minds of liberals who should know better.

The successes of isolationism in the middle third of the 20th century were the result of a war economy; they were a fluke, unless we want to remobilize the world to fight some illusory conflict (“terrorists?!”).

Meanwhile, leaving Free Trade agreements as the sole realm of Cato institute hacks makes sure they never include environmental and labor protections–the main flaw they contain, and something that actually doesn’t produce free trade, but gives some players an illusory comparative advantage.

If sugar grows best in Guatemala, sugar should grow there. If wheat grows best in the US, it should grow there, but sugar shouldn’t grow in Guatemala because you can pay someone 1 cent a day–that doesn’t make the sugar grow better, just the communist party.

Shit. If we’re going to be stuck with Republicans, how about one that isn’t dumb as shit?

NASA: Scratch three?

I never sat on a panel for NASA or even took a rocket science class. I’m more educated than most people, but it only takes common sense to think that the antique space shuttles should have been retired years ago. When the Columbia splattered across the North American sky, I thought NASA would realize that too. Of course, I wondered in 1986 about the same thing. The problem then was the Space Shuttle was probably in the top 10 things we flaunted to fight the Cold War with soft power.

But now, it looks like Discovery is losing tiles in the same way Columbia did, and, could overheat and explode in the same way. And this time, there were headlines before hand saying that NASA was going to break the rules (or “bend” them, the AP said) to launch anyway.

What a disaster. NASA just got back into the win column with the comet thing and now they’re pulling this. I can accept that we’re not going to have flying cars in my lifetime, but it sure will be disappointing if people don’t go to Mars, and I just can’t see that happening for a long, long time–especially with this kind of idiocy running NASA.

Whither the exploring spirit? To the mall?

Brownback (R-KS) Worried About Roberts

See below. I wondered if this guy wouldn’t get critics from the Right because of his thin record. While Ann Coulter’s comments might be a gambit to make it look like they were concerned in order to disarm us, this is a little more convincing.

But Brownback, one of the Senate’s leading social conservatives, has concerns about Roberts’ views on key issues, such as abortion. With only two years on a federal appeals court, Roberts’ judicial philosophy is largely unknown. While he did co-write a brief as a government lawyer urging that Roe v. Wade be overturned, Roberts told the Senate during his 2003 confirmation hearing that he considers the Roe decision “the settled law of the land.”

“There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent,” Roberts told the Senate Judiciary Committee.

Those are not words that warm the hearts of some conservatives.

“In the past, we’ve seen that if someone is not well articulated on a position, the tendency is to move left on the bench,” Brownback said, citing Justice David Souter as an example.

This is probably just a move to shore up Brownbacks wingnut bona fides. I’ve read a lot of places that this guy is conservative enough to those who know him personally. He’s got Dobson’s support. None of these things make me that enthused.

That would solidify my vote into a ‘no’ if I was a senator. I still can’t support a filibuster, because the odds are the next nominee is worse. Elections do have consequences. And I agree with whoever said that spending money on this fight is wasted–spend it on 2006 elections, so that perhaps–just perhaps–Democrats control the senate the next time a justice is appointed.

Dobbsism may save Unocal, but it can't save America.

Chinese CNOOC’s bid to takeover American oil company Unocal, so 80s-esque I can almost hear the synth-strings, has created a new protectionist alliance. But not matter how many Schiavo-esque midgnight resolutions they pass, it won’t fix the problem.

China has been propping up the American economy by fixing its currency to cheapen its goods and buying our debt to prop up our dollar. China has also been working hard and learning hard. Not so in America.

Unless the Bush administration returns to Clinton-era balanced budgets, and goes on a crash program to save the dollar, there may be no saving America from takeover after takeover by China.

In the 80s, Japanese takeovers also had the healthy effect of increasing interest in education, even if some of the alarmist studies that created the stir misstated the exact problems.

Let’s hope the education problem and the deficit can be fixed. Otherwise, you’d better quickly learn how to say ‘oil’ in Chinese.

More on Roberts

I’ve been posting like a madman about this Supreme Court nomination. Perhaps as a lawyer, it’s just something I’m geeky for. Anyway, Democrats should change the narrative here to something like this:

We won the nomination battle months ago when we stopped Frist from ramming all of Bush’s nominations through. We forced Bush to nominate a stealth candidate, someone without a strong anti-Roe record.

Spending political capital fighting this nomination is nonsense. It won’t work. Let the man through. All of the arguments contra are lame. He’s white and male. So? He’s only been a judge for a while. So? There’s no such requirement.

Save the real fight for when we get a nasty rightwinger.

Analysis of the Roberts confirmation

Roberts cops out a few times in his former testimony (because he was being appointed to the D.C. Circuit) by saying all he had to do was follow the Supremes. That doesn’t mean he would do the same if he was on the Supreme Court.

Mr. ROBERTS. Well, Senator, I don’t know if that’s a flaw for a judicial nominee or not, not to have a comprehensive philosophy about constitutional interpretation, to be able to say, ‘‘I’m an originalist, I’m a textualist, I’m a literalist or this or that.’’ I just don’t feel comfortable with any of those particular labels. One reason is that as the Constitution uses the term ‘‘inferior court judge,’’ I’ll be bound to follow the Supreme Court precedent regardless of what type of constructionist I, personally, might be.
* * *
Senator DURBIN. That is a reasonable answer. It is also a safe answer, and I am not going to question your motive in that answer. I accept it at face value as being an honest answer, but it raises the question that comes up time and again. If this job is so automatic, if the role of a judge is strictly to apply the precedent, then, frankly, I think we would have as many Democrats being proposed by the Bush White House as we do Republicans, but we do not. They understand that it is not automatic, it is not mechanical.

(p. 57-8). So, if this is true of all of Roberts’s answers, then nothing in that transcript means anything. Before this even begins, Leahy admonishes him

It is very easy for somebody up for either a district or a circuit court judgeship to say, ‘‘Well, I have to follow the dictates of the next higher court.’’ But usually when they get to the Circuit Court of Appeals for the District of Columbia, you do not have many cases that get all of the way up to you guys that they are on all fours, on something that the Supreme Court has ruled on. There is hardly any use for it.

(pp. 45-6)

Right Wing Attacks Begin On Roberts.

If you guessed Ann Coulter wouldn’t be satisfied with anyone to the left of Adolf Hitler being appointed, you were right. Here’s her screechiness:

(Seriously, read this. It’s comedy)

First, she feigns concern for the WASPishness of Roberts:

After pretending to consider various women and minorities for the Supreme Court these past few weeks, President Bush decided to disappoint all the groups he had just ginned up and nominate a white male.

So all we know about him for sure is that he can’t dance and he probably doesn’t know who Jay-Z is. Other than that, he is a blank slate. Tabula rasa. Big zippo. Nada. Oh, yeah…we also know he’s argued cases before the supreme court. big deal; so has Larry fFynt’s {sic} attorney.

Ann Coulter only knows who Jay-Z is if she has mirrors above her bed that she can see while biting a pillow. Larry Flynt’s attorney may have argued before the Supreme Court, but Roberts was a well-reputed solicitor who did so often.

Next we have a homophobic zing on Souter:

But unfortunately, other than that that, we don’t know much about John Roberts. Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever. [Wonder why?]


Does he live in a small, rough-hewn cabin in the woods of New Hampshire and avoid “women folk”?

Souter, a Bush appointee, according to Coulter, is apparently a true “log cabin” Republican. Next, we ignore some facts about Justices Breyer and Ginsburg to make a ridiculous point.

The only way a supreme court nominee could win the approval of NARAL and Planned Parenthood would be to actually perform an abortion during his confirmation hearing, live, on camera, and preferably a partial birth one.

But perhaps the worst transgression for Cunter is:

From the theater of the absurd category, the Republican National Committee’s “talking points” on Roberts provide this little tidbit:

“In the 1995 case of Barry v. Little, Judge Roberts argued—free of charge—before the D.C. Court of Appeals on behalf of a class of the neediest welfare recipients, challenging a termination of benefits under the District’s Public Assistance Act of 1982.”

I’m glad to hear the man has a steady work record, but how did this make it to the top of his resume?

Hahaha, and that starched ken doll Brian Williams thought the Democrats would be howling.

Thoughts on Roberts

I agree with the post below: barring some disgusting revelation, Roberts is in. The Senate will put on a show anyway, just so that each side can score some political points on the way through. If efficiency were an American virtue, First could just call a vote tomorrow.

Roberts’s record as a judge is thin, and the D.C. Circuit is simply not the place where abortion, gay marriage, gun rights, criminal rights, and other social issues are very likely to come up. D.C. has its very own District and Circuit Courts (two really, if you include the Federal Circuit, which covers patents and trademarks) simply due to the number of federal agencies located in the city. Even New York City, which including the outer boroughs has more than one District Court, shares its Circuit court with other states. With the alphabet soup in D.C., lots of lawsuits are brought there.

A better distinction might be to put it this way: D.C. Cicuit judges spend a lot of time interpreting federal statutes and the regulations promulgated under them; they do not spend a lot of time interpreting the Constitution itself. To the extent they do, it is in the context of, maybe, the commerce clause. Many important environmental decisions originated there, but I can’t think of one significant civil liberties case that rose up through the D.C. Circuit.

That doesn’t leave much. I agree that his positions as an attorney really aren’t relevant. Most people simply aren’t going to argue with the political agenda if they are an assistant solitictor general. Being a judge, especially one who can basically create law, is very, very different.

Do we have a slider here, someone who will become a centrist or a liberal like Blackmun or Souter? I doubt it. What we have here is probably someone more concerned with things like the extent of the commerce clause than overturning Roe/Casey.

I’m still not sure Frist had 50 votes against the nuclear option. Maybe Specter told him he wouldn’t help out for a radical judge who would overturn Roe as his number one item this time. For whatever reason, Bush decided to go with someone that can be seen as pro-business, law and order, but not necessarily a religious right-winger.

Given that his position on Roe/Casey is unknown at this point, who do you think, given the current composition of the judiciary committee, is the most likely to grill him on his views? Some might say knee-jerkily Edward Kennedy. I don’t think that’s the right answer.

I think it might be Brownback or Coburn. Except for Specter and Grassley, the Republican members of the committee are very far to the right. Coburn is the whacko that saw rampant lesibianism being spread in Oklahoma schools. Brownback is from Kansas (QED).

The Religious Right is probably about ready to blow a gasket. They didn’t get their anti-Roe champion, or, if they did, they’re being told that in secret by Bush. If Roberts’s anti-abortion bona fides can’t be verified, the Religious Right is going to be pissed.

If I were the Senator from California, I would tell the whipcounters that I would vote for cloture, but might change my mind if there were an actual vote. I certainly wouldn’t vote yes on the confirmation, but that’s wouldn’t hurt him, anyway.

It’s just not worth the energy on this guy.

Well well well… He'll Make You… Dr. Roberts!

It was fair to predict, as I did, that Bush would follow his typical style and pick a “movement” Conservatron who would theologize from the bench. The divisiveness from this choice would serve to further polarize the country and allow the Republicans to stoke their hateful pathetic core to point its anger at the Democrats. The Bush junta’s general strategy has been to count on the cohesion of Conservatives to out perform the generally pusillanimous corresponding fist waving from the left and leave moderates too frustrated with the process to care.

So, with Benedict Karl sagging his poll numbers and with the situation in Iraq proving the annoying longhairs of 2003 to have been correct, did Generalissimo Bush decide to appoint a dull non-committal Conservative because he knew that he could wind up on the short side of this divisive fight? Or, is there something that he knows about Doctor Roberts that everyone else does not? Bush is an academically lazy and stupid man, but he has innate intelligence and has been around concentrated power to a degree unmatched by non-royals. He knows power and he knows how to get things accomplished. Is Roberts a stealth revolutionary Conservatron, or just the best an evil President buckling under the weight of his own deviousness could hope for?

Baring any unexpected Thomasesque revelations Roberts will be confirmed, so we shall see what we shall see.

Roberts & The Senate: Like Crap Through A Goose

There aren’t 41 votes against this man. He’s through.

The Religious Right has to be blowing a gasket. In his confirmation hearing he stated that he accepted Roe as the law of the land. Yeah, his brief said it was wrongly decided. Wanna see some things I wrote in a brief as a lawyer? He’s got little record as a judge–very different.

He’s conservative, but we could have expected a lot worse from Bush.

Boston Fed: There is still much slack in labor market

Read the paper here.

According to the study, the unemployment rate adjusted for unusually low labor participation could be between 6.7% and 8.7%. If this is correct (and I think this reality has been well know to non-right wing economic policy wonks fo a while), then any more interest rate hikes this year by the fed would be insanity.

PPI was flat in June, as was CPI. Also, May saw an actual deflation in prices by -0.1%. Despite that, the Fed felt (perhaps this was a liquidity preference?) that a rate hike was still justified.

If there’s no evidence of inflation, and there are no inflationary pressures from the labor market, then why on earth risk piercing the real estate “froth”? The only explanation I can think of is that this is all based on energy.

I guess the Fed has no confidence in the mission in Iraq.

UPDATE: Is there an echo in here, Mr. Krugman? (=


California Attorney General Bill Lockyer has brought a lawsuit to prevent the 31% Governator from putting a redistricting measure on the ballot. I don’t know the details of the measure, but I can’t say that I’m categorically opposed.

Any fair redistricting in this state would leave Democrats in power. The question is which Democrats. If there was a real DLC/Moderate wing of the party able to do anything in this state, Democrats would control both houses 80/20. The problem in this state is that politics exist along one axis: labor versus business. California voters are much more multi-dimensional than that. Some are still 60s liberals. Some are culturally liberal and fiscally conservative. Very, very few are midwest style religious conservative Republicans.

It would be good for the state to redistrict to give voice to this diversity of the country’s largest state.

Make Hockey A Regional Sport

If you include Texas and Florida there are as many hockey teams in the old Southern Confederacy as there are in all of Canada. That is the NHL’s elemental problem. It tried to take a Canadian/Northeastern/Upper Midwestern regional sport and turn it into a national American sport. While the NHL was immolating Texas Hold ‘Em poker, which I love to play but do not care to watch, and NASCAR, which is the large circle of hell that surrounds all of the other circles, have become more popular by sticking to their regional roots and growing from there. The NHL tried to transplant its product into hostile ground; it shriveled and died.

Hockey can never be a sensationally popular sport in the way that American football, baseball and especially basketball are. Those three sports (along with NASCAR and poker) can be marketed around stars. Any bad basketball game will still produce enough dunks and three pointers to fill an ESPN segment. Baseball is all about individual statistics. Football is a team game, but only a few players truly get the glory. Even a hockey player who scores 60 goals will be shut out in at least a quarter of the games. When the Bulls sucked you could still count on MJ to always drop in 38 points and do something memorable. Our 60 goal scorer could be pointless, yet a true hockey fan could still see that he had a great game. Recognizing this requires an appreciation for the sport that cannot be replicated by one fluke playoff run (Florida, Carolina…). It cannot be marketed, it can only happen organically (as they say in the magazine biz); it is something that a person has to come to, like being able to sense a tell in poker or savoring whatever it is about NASCAR that so many enjoy (perhaps they are high on the leaded fumes).

This lockout was never about any issues that are germane to other labor/management disputes. Unless MC Hammer was managing their money the players were not in any danger of poverty. The owners needed the players for a league, but they were all plutocrats to begin with: they did not need a hockey league to make money. The villains in this fight were teams like the Wings, Leafs, Avalanche and especially the Ranger$ who attempted to spend their way to prosperity Yankees style and inflated the salary of stars and piece-of-the-puzzle players like Bobby “Greedy Republican” Holik. This sent smaller market teams into competitive oblivion and made it necessary for them to compensate for the talent gap by relying on defensive systems.

The final resolution of the lock out is fantastic. The spendthrift teams that ruined it for everyone else are being punished, the Edmontons of the league will finally be able to keep the talent that they cultivate, and the players can “only” make a maximum of $7.8 million for playing a game – boo fucking hoo for them! Excuse my working Joe pride, but I’m only being paid about 40K to keep the juice flowing in a cost-effective and environmentally conscious manner thereby creating the conditions necessary for countless private fortunes. Jeremy Roenick can floss his teeth with my ass hairs as far as I’m concerned.

The glorious thing about hockey is that a team of hustle will beat a lazy team of talent, as the Rag$ always proved. This is contrary to the other, more popular sports. If these casual fans don’t care for that then fuck ‘em. Who needs them? Let Florida, Nashville, and Carolina fold or be relocated to Winnipeg, Hamilton and Quebec where they belong. So long as the arenas are more or less full and I can get the Devils on satellite TV 82 times a year I am more than happy without the ad dollars of these emerging markets. The infantile, foolish Avs fans are annoying enough as it is.

The NHLPA Failed.

So, the NHL is back, I guess. I’m not sure I even give that much of a crap. The NHLPA could have done better than this a year ago and avoided the lockout. 25 year free agency? So what. It’s not like a player like Bobby Holik is going to be able to leave and double his money. That’s over.

Meanwhile, no one offered an olive branch to the fans. The owners haven’t vowed to lower ticket prices, which they claimed were forced high by player salaries. The players never even dreamed on acid of asking for that in the contract (even just as a stunt).

This is perhaps one of the richest unions in existence and they failed. This should mean the end of the labor movement as we know it. If the NHLPA couldn’t get it done — by finding investors to start a player owned league, for example–then no one can. It’s not a good day to be an auto worker.

Next season is going to suck.

How About The Days Off We're Supposed To Get?

For decades now, our economy has been trending towards a “service” economy. More jobs at Wal-Mart, less at GM. And places like Wal-Mart are closed very few days out of the year. A person with a decent job might have two weeks of vacation every year, and a handful of holidays observed at work. Those are the lucky folks that get to push carts on the fourth of july at wal-mart, catching up with the work around the house that a dual income family can’t get done.

But the service workers toil, begging for hours to be slotted in the schedule so they can make ends meet. And I’m not sure what family values have people working every holiday, either.

So, sure, I’m all for more holidays, but I’m probably for finding a way to make more days days that people don’t work. Could the Religious Right agree to a Sunday excise tax? If you want any good or service delivered or performed on a Sunday, it could be subject to a 10% excise tax (religious services, excluded, of course).

And since the government doesn’t seem to be competing with private industry in wages, it tries to offer better benefits. What about 6 weeks standard paid vacation? That would sure make more employers need more works, which would lower unemployment. In many jobs, only the overhead that should be simplified in any such reform would be added. That could be compensated by tax breaks: if you have 6 weeks off paid for your full time workers, and you have to hire new people because of it, we’ll credit you the costs associated with it. How about that one?

A less onerous, yet possible way of achieving this in the private sector would be to make employees exempt from earning overtime if, in addition to the normal rules, they are paid less than $60,000 per year and do not have six weeks of paid time off total.

Employers hate overtime requirements. It means more people on an hourly basis, it means more rates to pay people (time and half here, etc.) So, combine the two ideas above, and I bet you could make it competitively common to have six weeks of paid vacation and decrease unemployment at the same time.

Personally, I like working a lot. I would be out of my mind if I had six weeks off per year, and I’d rather have the money. Part of that is where I work–I can get time here and there whenever, and my wife is a teacher and is off all summer. So, a whole spate of new forced time off would be a drag for me, but most people don’t share my fortunate circumstances.

6 weeks of pto per year would help strengthen families and would probably also reduce crime.

More Days Off = "Tax Cuts" for Democrats

Tax cuts are the centerpiece of the Republican’s success. Of course, the Bush tax cuts have been a disaster as policy, but as politics tax cuts are a sure winner. So long as tax cuts equal “more for me” in the popular imagination anyone who opposes them starts at a disadvantage. Tax cuts are what keep socially moderate Wall Street Republicans associated with a coded-racist, homophobic theocratic party (of course, tax cuts also mean that they can send Buffy to Switzerland to get rid of Jose’s love child if need be). It’s what Republicans turn to when they got nothing (Dole in ’96).

There is a Democratic equivalent of tax cuts awaiting anyone clever enough to seize it: more days off.

Yes, Americans work more days and longer hours than the inhabitants of any other industrial nation. Much as Conservatrons bitch about Hollywood, anyone who doesn’t require a second brain in their abdomen to move their legs knows that lack of quality time will sever ties between lovers and between parents and children.

So I propose making the day after the Super Bowl, the day after Halloween and July 5th National Days Off, or perhaps National Family Days.

These are atrocious workdays any way. On November 1st why stick a bunch of sugar-high kids in the classroom? Parents will have been up late taking their kids trick-or-treating, why squeeze work out of them when they are sleepwalking? Younger people might well have been partying all night and nothing spells productive like H A N G O V E R.

The Super Bowl practically is a holiday anyway. Making the day after the Super Bowl a day off will once again forestall a wasted day of work by headachy people. It will also be great for business. Do you honestly think that the country that turned President’s Day into THE time to buy a mattress won’t be able to get people to the mall on Super Monday? Sunday is for the guys and the big game; Monday is for the ladies and the big sales. Yeesh, this thing practically markets itself.

July 4th is one of the longest days of the year, by the time the fireworks are over it is past bedtime for anyone who must be at the office at 7 AM. Realizing this, many managers will use their A/L and be outta’ there anyways, leaving the line staff and student interns to watch the clock through a wasted day of work. Why force a bunch of sun burned, nitrate-filled zombies into the office on the 5th? In that state they should be spending their money, not earning it.

Of course there are arguments to be made against having more time off to enjoy with your loved ones and enrich your life. I can read the Thomas Friedman column now:

At a time when the Irish and Indians are working 35-hour days and breeding rapidly it is incumbent upon Americans to be overeducated and underemployed in order to compete in a flat world where a Sri Lankan can press your olive oil and a Lexus is assembled by teams of super-nimble Laotian gymnasts. Designating more holidays will send the signal that America is becoming complacent and


Or the pseudo-intellectual George Will argument:

Like Washington’s cherry tree, so to are American holidays symbols of the efficient patriotism of a noble age. I cannot tell a lie, the Super Bowl is not equivalent to Veterans Day. I cannot dream of Martin Luther Commu- I mean Martin Luther King having the day after Halloween be


You see what I mean. Anyone who has ever worked for a living knows what a strong incentive a three-day weekend is. It might be enough for the guy with the Confederate flag on his pickup truck to vote for one of them do-gooder abortion-lovin’ types.

“Screw it,” he says. “It’s a three-day weekend.”

Next Appointee May Kill Libertarianism As Well As Liberalism

First let me clarify some oft-thrown-around terms. By “liberalism” I mean the economic policies of the New Deal and the Great Society, the social policies of the Civil Rights Act, Roe, affirmative action, and gay rights. By “libertarianism” I mean the economic policies of the British Empire, the Gilded Age, the House of Morgan, the gold standard, and free-trade, the social policies of live and let live (and die). This latter term is the more correct label for what many people have wrongly (in my opinion) become to call “conservatism.” Some people would associate what I’m calling libertarianism with the Wall Street Journal and the other kind with the religious right. That’s close enough.

The more I read in the papers and hear on TV and talk to people in the know, the more certain I’ve become that any economically centrist appointee by Bush would sail through, regardless of his views on social issues. Read between the lines in the statements of the Gang of 14 on both sides. But assume that happens, and what we get is a socially conservative justice.

He could kill both liberalism and the libertarian dreams of the Federalist Society as well. Here’s how.

The following law is filed as an original petition to the Supreme Court.


Section 101 – It shall be a felony for any person to facilitate the interstate commerce of any item that has the purpose of any of the following:
(a) facilitating abortions;
(b) facilitating suicide;
(c) providing capital for welfare programs;
(d) facilitating any system of racially-based preferences, except in private country clubs

Section 102 – For purposes of this Act “interstate commerce” shall mean all acts within the fullest extent of the meaning of Article I Section 8, except that no Court shall have jurisdiction over the meaning of “interstate commerce” as it applies to this Act.

There is no appeal to the Supreme Court, because Section 102 denies that, so because the Supreme Court is constitutionally established, the only resort for potential appeal is by original petition to the Supreme Court.

Section 102 was amended in the House to include that language, and was met with another filibuster in the Senate. The filibuster, in this case, wasn’t overcome by any “nuclear option,” but because the Right waited for this law for so long, they simply held up the business of the Congress until Senator Kennedy was taken to the hospital after fainting.

When the law is set for oral argument, the ACLU has hired none other than Judge Bork to argue its case, because he believes in the limits of federal power. The solicitor general sent a first-year lawyer, since this one is in the bag.

Bork argues, true to his Federalist Society leanings, that this law simply exceeds the power of Congress under the Constitution to regulate commerce, that both Wickard and the recent marijuana case were wrongly decided, and that the Court didn’t go far enough down the path it started to walk with Lopez and Morrison. Bush Appointee #1 asks him if he’s ever met any fetuses that could read the commerce clause. Bush Appointee #2 follows up by asking him if he thinks rampant homosexuality is a threat to the Constitution. Bork is stunned, and starts to remember his confirmation process and locks up.

Only Justice Thomas has the wherewithal to question the recent law school graduate sent up by the Solicitor General’s office, “Now, Kelsey, when you took the bar exam, did you learn about the Commerce Clause.” In her best Nancy Grace emulating voice (and face makeup) she replies angrily and very mestrual-Scarlett O’Haraishly that “If James Madison wasn’t thinking of protecting unborn babies when he wrote Article I, then I can’t imagine what he meant.”

Justice Stevens is actually dead, and his liberal clerks are pulling the “old weekend at bernie’s” routine, so he is quiet at the arugment. Justice Kennedy thinks about which side to vote for based on what people will say about his “legacy” but then decides to think about more important things, like his next squash game.

The Court takes the matter under submission.

Tom DeLay and Duke Cunningham hold a revival on the Court steps protesting their even having the gall to take the case, since Congress said they couldn’t. All of the Justices are condemned to hell.

Then, it happens. The decisions is reached by the court 5-4 to let the law stand. Justice Thomas’s dissent complains of his “growing revulsion at being labeled the lefty on this court.”

It could happen.

And with that, both the limited government dreams of the libertarians and the equal opportunity dreams of the liberals are dead, drowned in a mix of holy water and oil.

Third Time's The Charm?

Whomever Bush nominates for the Supreme Court you can count on three things:
1.) The nominee will be of a minority group or a woman or both.
2.) She or he will have an appealing personal story.
3.) He or she will have a well-known record of asserting wacko Conservatron ideology from the bench, but this will be advertised as “strict constructionalism.”

The below post argues that Bush will try to either undo Roe or the New Deal with his choice. I disagree. He will try to do both. The Consrvatrons and their media will attempt to make this a personal Horatio Alger story in which the nominee is denied fulfillment of hir (It’s just too fun to not use Leary’s gender-neutral pronoun here) self-actualization by a bunch of no-good obstructionist Democrats. This gels with their ‘06 election theme. Of course, all of this nonsense will allow for as little popular examination of hir record as possible.

The talking points can almost be in Mad Lib form:

[Nominee] grew up in [backwater], [verb]ing [number] hours-a-day to take care of mommy and pappy who were [adjective] and had [ailment]. Some days the only thing they had to eat were [adjective] [food] and [adjective] [food]. [Nominee] had to [verb] the [food] just to make it [adjective]. Now those [fnord] Democrats won’t accept [Nominee’s] account of how [Nominee’s] [adjective] addiction was immediately cured by [deity] as justification for putting the Bill of Rights up for a binding vote of the Republican caucus. They hate [deity] and [country] but love [fnord] do-gooders and their [adjective], limp-wrist “rights”.

A bit hyperbolic perhaps, but assuming that Bush nominates a mediocre troglodyte with views that most Americans find abhorrent this will be the Democrats’ third big chance. As a whole (but to be fair, not all of them) they blew the first two by not standing up against the absurd Schiavo intervention and not voting en masse against the venal Bankruptcy bill. A Supreme Court nomination is a high-profile enough fight that a solid “No” to a horrible candidate will score them enough memorable points that perhaps – assuming the other justices keep on eating their spinach, blueberries, and wild salmon and hang on for another three years – a Democrat will be in a position to name the next judge even if Justice Tojo “The Messiah” Franco gets confirmed this time.

Roe for the New Deal: A Fair Trade?

Over at TPM Cafe, there is a discussion about some of the things Bush can do to get an anti-Roe judge through the senate. One suggestion is to make sure that this judge is at least centrist in other respects.

I had this exact conversation with my wife at dinner. There’s no way Bush can appoint anyone who’s not a sure anti-Roe vote. I’m even worried that the test case is a piece of federal legislation. But poor Harry Reid, who himself is anti-abortion, will have trouble holding on to 41 Democrats if the candidate is otherwise non-conservative. Both Nelsons, Max Baucus, and maybe Landrieu will be problems here — assuming none of the Republicans would vote against cloture, which I assume is a reasonable expectation (even if they vote no on the nomination).

I also think we’ve only got 50, not 51, votes against the nuclear option, and I’m struggling to count 51 that would vote no on an anti-Roe nomination. Assuming all Democrats, Linc, the Mainers, Specter … that’s only 49. Shit.

So, it seems clear that Roe rests in the hands of Justice Kennedy. And I just don’t think the man has the courage to be the 5th vote.

Bush can get this person through. It’s simple. He only needs to peel off one or two Democrats on non-abortion issues. Someone who would uphold New Deal-era economic legislation and other civil rights laws would probably be all it would take.

Is it a fair trade? I haven’t decided, but it may be what happens.

And, let’s face it, there’s no guarantee Justice Stevens can hang on until 2006, let alone 2008.

I’m sure I’ve denied it before, that Roe would ever be repealed. Now, I think I was wrong.

Anyone got Canadian Immigration's Phone Number?

Now it will get bad. Because as much damage as Bush and Congress have done, it has primarily been in the economic realm where the Supreme Court has promised for 70 years to limit involvement (with only a blip a few years ago indicating otherwise).

But thanks to a center-right Supreme Court, they haven’t been able to complete unwind the social rules of the 20th century. This Court, for all its “constitution in exile” vitriol has managed to uphold abortion rights, affirmative action, some gay rights, and put humane limits on the death penalty.

At least a few of those decisions depended on Justice O’Connor.

This is an unfortunate retirement. You could have replaced Justice Rehnquist with Mussolini and it wouldn’t have upset the balance on the court. But this, this means a conservative majoirty except for what ever biography-padding issues Justice Homer Kennedy feels like advocating this year.