Several heavyweight conservative bloggers are combining forces for a new, probably influential, group effort, called (for the time being) "Pajamas Media". Contributors (that I know of) include Little Green Football’s Charles Johnsoon, Roger Simon, and La Shawn Barber. Stay tuned….
Bush Ratings Hit New Low; Terror Alert Raised
Connection?
Actually, I think this terror alert is pretty bonafide, and might actually be unrelated to Bush’s ever-sinking popularity.
UPDATE: Okay, maybe the terror scare is nothing.
Plame Update
There’s rumors floating about that indictments are expected soon (like, any day now) in the CIA Leak/Valerie Plame matter. And Rove, some are saying, has been seen much — missing White House meetings that he usually attends, etc.
UPDATE TO THE UPDATE (and post bumped to top): Rove to testify to grand jury. And no immunity. Good. It’s important to understand that Rove is offering to do this. Perhaps he wants to clean up some false testimony he gave the first time around.
Bush: “God Told Me To Invade Afghanistan And Iraq”
Yup. According to the BBC, that’s what Bush reportedly said.
Irony, Thy Name Is Malkin
Michelle Malkin made her name by writing a book suggesting that the United States was correct in locking up American citizens of Japanese descent back in World War II, even though there was no legal justification for doing so. She makes similar claims regarding the profiling of Muslims in the post-9/11 world.
Well, it now appears that we have spies — actual, you know, foreign spies — in the White House. First time that espionage against the United States has reached that level. Unprecedented.
And guess what, Michelle? Like you, the spies are Filipino.
So what say you? Why don’t you voluntarily inter yourself in an interment camp? It’s the patriotic thing to do.
Michelle is not amused with the suggestion.
Who Is Larry Littwin And Why Should He Testify At The Miers Confirmation Hearings?
And what does it have to do with Bush and the Texas Air National Guard?
Good questions.
You may have read that, as part of her patchy career, Harriet Miers was the chair of the Texas Lottery Commission. You may have read that she was credited for cleaning up some lottery scandal in Texas.
Central to the scandal was a Rhode Island company called GTech, which had a contract with the State of Texas to run the Texas lottery. For years, GTech was wildly overcharging the State of Texas for its services.
Despite that, Texas never complained (at least, not until the overcharges became public knowledge).
Why not? Well, let’s get deeper in the details.
GTech’s lobbyist in Texas was a guy named Ben Barnes.
Does the name "Ben Barnes" ring a bell? It should — his name came up during the 2004 presidential elections. A former Speaker of the House (in Texas), Ben Barnes was the guy who claimed that he personally pulled strings to get young Dubya into the Texas Air National Guard (and hence, avoid Vietnam service).
Of course, Ben Barnes, back in the mid-to-late 1990’s wasn’t revealing that information. And it was a good thing, because when Bush was running for governor in 1994, Bush denied the charge that he had strings pulled on his behalf to get into the Texas Air National Guard.
So let’s take a snapshot: A corrupt lottery company is screwing Texas. But Texas continues to allow them to get away with it. Why would the government look the other way? Could it be that the lottery company’s man-in-Texas possessed politically damaging information regarding Governor Bush’s military record?
Eventually, the details of the GTech’s corruption became known the public. And there was a mess to clean up. Many on the lottery commission believed that when GTech’s contract came up for renewal, it should have been forced to rebid against competing companies, rather than simply having it renewed.
But strangely, that didn’t happen. GTech’s contract was renewed by Texas, without competitive bidding. And Ben Barnes was let go by GTech, receiving $23 million as a goodbye gift.
And here’s where it gets interesting (if not more confusing). According to this anonymous letter sent to the U.S. Justice Department questioning the $23 million payoff to Barnes, there was some behind-the-scenes discussions about the whole GTech contract renewal:
Several months ago many of us felt that the Lottery Commission should rebid the GTech contract when it came up for renewal. Leaders of the Republican Party strongly supported rebidding and I believe the Chair of the Commission also wanted to rebid. It is now time to disclose at least one reason why it was not rebid. Governor Bush thru Reggie Bashur made a deal with Ben Barnes not to rebid because Barnes could confirm that Bush had lied during the 94 campaign.
Bashur was sent to talk to Barnes who agreed never to confirm the story and the Governor talked to the Chair of the Lottery two days later and she then agreed to support letting GTech keep the contract without a bid.
And the Chair of the Lottery was Harriet Miers.
Now, there’s more to this, and I’ve only given the bare facts. You can read more here. But the foregoing suggests that Meirs was part of a conspiracy to keep Barnes quiet. Bush had to clean up the lottery commission mess, but he couldn’t allow Barnes to be pissed off, lest Barnes divulge the information about Bush’s military record. And that’s where Meirs came in.
So who is Larry Littwin? He was the head of the Texas Lottery Commission at the time (and Meirs was the chair of the TLC at the time). More importantly, he claims to have some important information relating to all this, and he wants to testify before the Senate Judiciary Committee:
WASHINGTON — A former Texas lottery official, who claimed that then-Gov. George W. Bush’s desire to cover up his National Guard record helped steer decisions about a key lottery contract, said he wants to talk to senators about Supreme Court nominee Harriet Miers’ possible role in that effort.
"If I were to be subpoenaed to come to the thing, I would come," said Lawrence Littwin, who filed a lawsuit after he was fired as the lottery’s executive director in 1997. "I would say the committee, I think, would be interested."
“Of Pandas And People”
That’s the title of the textbook about "intelligent design" — the book that the religious right wants in schools to counterpoint the teaching of evolution.
People like me insist that "intelligent design", aside from not being science at all, is merely creationism in new clothes. ID proponents say that "intelligent design" is a theory entirely different from creationism (because it is unconstitutional to teach creationism in public schools).
Seems like an impasse. Except — wait a minute — what’s this?
"Devastating" early drafts of a controversial book recommended as reading at a US high school reveal how the word “creationism” had been later swapped for “intelligent design”, a landmark US trial scrutinising the teaching of ID heard on Wednesday.
The early drafts of the book Of Pandas and People, was used as evidence to link the book to creationism, which it is illegal to teach in US schools.
“ID proponents have said for years that they are not creationists,” says Nick Matzke of the National Center for Science Education in Oakland, California, which is advising 11 parents who are suing the school board of Dover High School in Pennsylvania for incorporating ID into the science curriculum. “This proves beyond a doubt that this is simply a new name for creationism.”
Teach Your Children Well
The following is "Lesson Number Five" from the Creation Museum’s webpage for kids:
"Hi! My name is Matt and this is my sister Laura. We grew up around the Creation Evidence Museum. Our dinosaur friends name is Muncher. This page will teach you about many of the things we have learned about how God created the world. Join us as we explore God’s creation!"
"Hey, Matt. Remember when you said that before Noah’s Flood the weather on the earth was different. That instead of having summer, winter and fall like we do today, the earth had a tropical climate year round."
"Yes, that’s right, Laura."
"Well, I was wondering if there were any other differences between the earth today and the earth before the Flood other than the weather."
"Actually, there were quite a few differences. For starters, the continents weren’t in the same places as they are today. It is believed that at one time South America, southern Africa, Antarctica, India, and Australia all formed one big landmass."
"You mean all those continents were hooked together?"
"Yep. There weren’t any large mountains or volcanoes like the ones that we have on earth today either."
"No mountains or volcanoes. How do you know?"
"Well, creation scientists believe that the event that caused mountains and volcanoes to come into existence was the Flood. Remember in Genesis 8:2 where it says ‘The fountains of the deep and the windows of heaven were stopped.’"
"Yeah. That’s when it’s talking about the 40 days and nights of rain being over."
"That’s right. Those fountains of the great deep were probably the first volcanoes to erupt on the earth. They shot streams of hot water into the air that helped bring down part of the canopy that was around the earth. The eruptions of the fountains of the great deep along with the rushing waters of the Flood had some pretty big effects on the surface of the earth."
"Like what?"
"Well, mountains and canyons for one thing. Mountains were formed when two pieces of land were forced together by the powerful explosions of the fountains of the great deep. As the surface of the earth shifted, the continents were either forced apart or ran into each other. Some moved out into the oceans to form islands, while others ran into each other and formed larger continents with mountain ranges."
"What about the canyons?"
"Evolutionists believe that different canyons, such as the Grand Canyon, were formed over a period of billions of years. Creation scientists believe that canyons were formed when the Floodwaters cut over the surface of the earth to get to the oceans."
"Wouldn’t that take a long time though?"
"Evolutionists would like you to believe so. They say it would still take millions of years for something as large as the Grand Canyon to form. But a few years ago a volcano in Washington erupted called Mount Saint Helen. It produced a huge pool of water that cut out a canyon in a matter of days. It didn’t take millions of years at all."
"Wow. I guess the Flood really did have some big effects on the way the earth is today."
Flip-Flops
Yesterday, I wrote about a bill in the Indiana State legislature which would essentially require parents (whether married or not) to be pre-approved by The State of Indiana before producing a child.
Well, apparently the bill’s sponsor has had second thoughts, and is withdrawing the bill:
State Sen. Patricia Miller, R-Indianapolis, issued a one-sentence statement this afternoon saying: “The issue has become more complex than anticipated and will be withdrawn from consideration by the Health Finance Commission.”
I also mentioned yesterday that James Dobson claimed to know something about Supreme Court nominee Harriet Miers — something which made him comfortable endorsing her.
Well, apparently he’s not so comfortable anymore:
An anguished James Dobson prayed Wednesday for a sign from God, telling his Christian radio listeners he was questioning his early endorsement of Supreme Court nominee Harriet Miers.
Now, if the Red Sox can only turn things around, it’ll be a perfect trifecta.
“Major Speech”
It was billed as a "major speech" on terrorism, but you know it’s a lie, because Bush gave it at 10:00 in the morning.
I didn’t see it, but it sounds like it was the same old rhetoric: ("9/11", "evil", "WMDs", "evil hearts", "making progress", "9/11", etc.)
Brink Of Elimination
5-4. Ugh.
Well, we’ve been here before. I vaguely recall being down three-games-to-nil not too long ago….
But they’re really bummin’ over at the Red Sox Blog.
Gonzales v. Oregon
I wanted to get into the habit of analyzing constitutional Supreme Court cases on this blog, as I have done in the past, for a couple of reasons:
(1) it interests me; and
(2) as part of my job, it has fallen upon me to write — once a year — a summary of leading constitutional law cases for use in continuing legal education classes, so I need to keep abreast of this stuff (translation: I get "credit" for researching this).
Sadly, more pressing matters occupy my time at the moment, so this analysis will be hastily written.
The first case to come along this term is Gonzales v Oregon.
The papers are covering it today for two reasons: (1) it’s Chief Justice John Roberts’ first case on the Big Bench; and (2) it deals with physician-assisted suicide.
Many of the papers are getting the case wrong. The issue is not about whether or not physician-assisted suicide is constitutional, legal, moral or ethical. The issue is who gets to decide whether it is legal, moral, or ethical.
In 1970, Congress passed the Controlled Substance Act (or "CSA"), the purpose of which was "to provide increased research into, and prevention of, drug abuse and drug dependence . . . and to strengthen existing law enforcement authority in the field of drug abuse." The CSA required, among other things, that anyone who dispenses drugs (i.e., medical practitioners) be registered.
The Attorney General was authorized to proscribe specific regulations in support of the CSA.
In 1971, the then-Attorney General promulgated a regulation under the CSA stating that "[a] prescription for a controlled substance to be effective must be issued for a legitimate medical purpose".
That’s a key phrase in this case: "a legitimate medical purpose"
In 1984, Congress amended the CSA to authorize the Attorney General to revoke a registration if he determines that a practitioner has "committed such acts as would render his prescription . . . inconsistent with the public interest." Congress provided five factors for the AG to consider in reaching that conclusion, the last of which is any conduct "which may threaten the public health and safety."
That’s another key phrase in this case: "public health and safety".
In 1996, Oregon passed a law called the Death with Dignity Act ("DWDA"). The DWDA permits doctors and pharmacists to prescribe and dispense lethal doses of controlled substances to terminally ill patients under restricted circumstances, with a variety of procedural safeguards. Neither the physician nor the pharmacist may actually administer the lethal dosage.
When Oregon did this, John Ashcroft (then, a Senator) called upon Attorney General Janet Reno to to issue a declaration that Oregon’s doctor-assisted suicide statute violated the CSA. She declined. So, when Ashcroft himself became Attorney General in Bush’s administration, he issued a directive (the "Ashcroft Directive") declaring that doctor-assisted suicide served no "legitimate medical purpose" within the meaning of the 1971 regulation, and that conduct authorized by the DWDA might render a practitioner’s registration "inconsistent with the public interest" and so subject to revocation.
Oregon challenged the Ashcroft Directive in court (the case is named Oregon v. Gonzales to reflect the fact that Gonzales is currently the Attorney General). Oregon won in the lower courts.
Now, again, it’s important to understand the issue. The Court is not being asked to decide whether or not physician-assisted suicide is/isn’t constitutional. That particular issue was central in a 1997 case, Washington v. Glucksberg. In Glucksberg, the state of Washington banned physician-assisted suicide, and the Supreme Court said that doing so did not violate Due Process. Importantly (for the Oregon case), Justice O’Connor wrote that the difficult issue of assisted suicide should be entrusted to the "laboratory of the states" without federal involvement.
And that’s what Oregon is essentially arguing here. It says that health policies are essentially the province of states. It also argues that by enacting the CSA, Congress was primarily concerned with constraining controlled substances to legitimate channels, and stopping doctors who are effectively drug "pushers". Furthermore, Oregon says, nothing in the text, history, or judicial interpretation of the CSA establishes that Congress meant to prohibit (or allow the Attorney General to prohibit) the use of medically approved drugs for physician-assisted suicide. The CSA was not meant to give the Attorney General the authority to single out particular medical practices and ban the use of drugs in connection therewith, or to regulate such medical policy decisions as whether to permit assisted suicide.
The federal government ("Gonzales") argues the opposite. It says that the CSA bans all prescriptions of controlled substances except those issued for a "legitimate medical purpose", and that it entrusts the Attorney General to make the legal interpretation of that phrase. A Court can overturn the Attorney General’s interpretation only if the interpretation is "unreasonable" (as opposed to the Court merely disagreeing with the interpretation). In addition, the federal government argues, the CSA was intended to create a federal standard with regard to the dispensation of drugs, so it can’t be left to individual states. (As law students know, when the federal government intends to create a comprehensive regulatory scheme in a particular area, it trumps state interests).
So this case, while appearing on first blush to be about the right-to-die, is really about federalism.
UPDATE: Lyle Denniston of the excellent SCOTUSBlog attended the oral arguments this morning. Some snippets from his "review":
"The ebb-and-flow of questions and comments by the Justices made any prediction too uncertain."
"New Chief Justice John G. Roberts, Jr., however, gave a number of quite strong hints that he is inclined to support the government’s authority to forbid doctors to prescribe the drugs that terminally ill patients would use to end their lives. This is the most controversial case he has faced, and among the most controversial he will face, in his new role."
"Solicitor General Paul D. Clement encountered a mostly skeptical bloc of Justices on his claim that the U.S. Attorney General had clear authority to order doctors not to prescribe the drugs used under Oregon’s “Death with Dignity” procedures… that claim was questioned aggressively by Justices O’Connor, Ruth Bader Ginsburg and David H. Souter, and less rigorously by Justice John Paul Stevens."
"Clarence Thomas, asked no questions, as is his usual practice. Thomas presumably shared the strongly negative statements that Justice Antonin Scalia made repeatedly about helping people to die, something that Scalia said Congress could not possibly have thought it was allowing when it passed the Controlled Substances Act."
"Chief Justice Roberts several times questioned how the federal government could carry out uniform enforcement of the federal drug laws if states, on a theory of regulating the practice of medicine, were free to allow doctors to dispense controlled substances despite the federal law."
"Justice Anthony M. Kennedy seemed somewhat conflicted by the case, but the thrust of most of his questions and comments seemed to be favorable toward the government."
MY PREDICTION: Scalia talks a good game of "states rights", but only when it suits him. On hot button issues like this one, he will back the side he likes regardless of the federalism issue. I’m not as convinced that Thomas will follow Scalia, however, as he has been showing more independence these past few years.
I think Denniston’s comments reflect something we are going to see a lot more of: the rise of Kennedy as the swing vote (he always was, but in O’Connor’s absence, it will be more prominent).
Still, my prediction-guess is 5-4 in favor of Oregon (the five being O’Connor, Ginsburg, Souter, Stevens and Breyer). If O’Connor is off the Court by the time they convene to "vote", it will be 4-4, in which case Oregon still wins (since they prevailed in the lower court). Watch for Roberts making a big deal in his first dissent.
RESOURCES:
The lower court opinion can be found here.
The brief of the United States can be found here.
Oregon’s brief can be found here.
The patients’ brief can be found here.
The doctor’s brief can be found here.
The reply brief of the United States can be found here.
The Ashcroft Directive and supporting OLC memo (plus lower court opinions, statutes, and regs) can be found in the Pet. App. available here.
Founding Fathers Would Reject Miers
Miers, we’re told, is an "originalist", someone who believe we ought to follow the intentions of the founding fathers who authored and advocated the passage of the Constitution.
That’s a problem . . . for Meirs.
Here’s what founding father Alexander Hamilton wrote in Federalist No. 76, in which he discusses why the Constitution gave the U.S. Senate the power to confirm – or reject – the President’s Supreme Court nominees (huge hat tip to David Sirota):
"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment…"
It continues:
"[The President] would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure."
Let’s let Sirota translate this: the framers thought that the mere existence of the U.S. Senate’s advise and consent powers should deter a President from nominating someone like Miers in the first place.
Dobson’s Secret
I admit, I was a little shaken when I read (well, heard, initially) that religious icon James Dobson (Focus on The Family) said this when coming out in support of Supreme Court Nominee Harriet Miers:
Some of what I know I am not at liberty to talk about.
Publius has the right response:
SUBPOENA DOBSON
Well, Mr. Dobson, if you have been given information from someone at the White House, I think the public has a right to know just what you have been told – especially in light of how little we know. Did you get a firm anti-Roe commitment? If not, what exactly did you mean? The people want to know.
The Senate Judiciary certainly has the power to subpoena Dobson in order to get an understanding of Miers. You want a precedent? How about Anita Hill?
UPDATE: Senator Salazar (D-Co) says:
"It’s troublesome to me the comment would be made," Salazar said at a Tuesday news conference in Denver. "It seems to me, all of the (information) the White House knows about Harriet Miers should be made available to the Senate and the American people. If they’re making information available to Dr. Dobson – whom I respect and disagree with from time to time – I believe that information should be shared equally with a U.S. senator."
RELATED: Here’s an interesting flashback, via Atrios:
The Associated Press
July 7, 1981, Tuesday, AM cycleAsked about Mrs. O’Connor’s position on the extremely sensitive abortion issue, Reagan, who said he had interviewed the intended nominee, told reporters as he left the press room: "I am completely satisfied."
At her press conference, Mrs. O’Connor declined questions over that issue, the ERA and others, saying "I’m sorry. I cannot address myself to substantive issues pending my confirmation."
and
United Press International
July 8, 1981, Wednesday, AM cycleTelevision evangelist James Robison, taking the opposite position of many of his conservative colleagues, Wednesday said he supports the nomination of Sandra O’Connor to the Supreme Court.
In a statement, Robison said he based his support for Mrs. O’Connor on a conversation Tuesday with presidential counselor Edwin Meese. A Robison spokesman said Robison obtained the following statement from Meese:
”Sandra O’Connor thinks abortion is abhorrent and is not in favor of it. She agrees with the president on abortion.
O’Connor, as it turned out, was not the abortion foe that many thought.
Short Bites
Ever said "There oughta be a law…."? Here’s your chance…
Um, why?
With this avian flu thing hanging over us, is it really a good idea to intentionally reconstruct a 1918 flu virus that killed 50 million people?