The Right Coast

January 31, 2006
Republicans Are Evil Racists ....
By Gail Heriot

...or so research reported in the Washington Post suggests. According to the article:

"[A] study ... explored relationships between racial bias and political affiliation by analyzing self-reported beliefs, voting patterns and the results of psychological tests that measure implicit attitudes -- subtle stereotypes people hold about various groups.

"That study found that supporters of President Bush and other conservatives had stronger self-admitted and implicit biases against blacks than liberals did.

"For their study, Brian Nosek, Mahzarin Banaji and social psychologist Erik Thompson culled self-acknowledged views about blacks from nearly 130,000 whites, who volunteered online to participate in a widely used test of racial bias that measures the speed of people's associations between black or white faces and positive or negative words. The researchers examined correlations between explicit and implicit attitudes and voting behavior in all 435 congressional districts.

"The analysis found that substantial majorities of Americans, liberals and conservatives, found it more difficult to associate black faces with positive concepts than white faces -- evidence of implicit bias. But districts that registered higher levels of bias systematically produced more votes for Bush."

"Obviously, such research does not speak at all to the question of the prejudice level of the president," said Banaji, "but it does show that George W. Bush is appealing as a leader to those Americans who harbor greater anti-black prejudice."

As far as I have been able to determine, the study itself has not yet been published. (Don't you love it when newspapers jump the gun and report on studies that are not yet published? It makes it so much easier to write the story, because the writer needn't bother with seeking comment from those who might be skeptical of the study's methodology. How can anyone comment negatively on methodology if no one knows what methodology the study employed?)

I am just guessing here, because I don't have the study in hand, but here are some scattered thoughts:

1. The test used was one of these so-called "Implicit Association Tests" that are popular as internet parlor games these days. I cannot be sure, but I strongly suspect that the test reported on is Banaji & Nosek's "Race IAT" found here. Try it or try one of the other IATs on the web site. They're fun. I just took the Race IAT, and it told me that "[t]he data suggest" that I have "a strong automatic preference for Blacks compared to Whites." And yet many people regard me as a conservative. Go figure.

2. The test doesn't actually ask the test taker whether he or she is a Republican or Democrat or whether he is she supported or opposed George W. Bush. For all we know, it was only Democrats (or only Republicans) who took the test. The test does ask where the test taker rates himself or herself on a six-point scale of liberal to conservative. Note that six is an even number that makes it impossible for the test taker to register himself as a true moderate.

One important thing to note, however, is that all the test takers are volunteers, most of whom probably happened upon the test while surfing the net. This is highly unscientific as a method of comparing one population (conservatives) against another (liberals). At best, you have a comparison between conservatives who surf the net with lots of spare time on their hands and liberals who surf the net with lots of spare time on their hands. They may or may not be representative of the conservatives and liberals generally.

3. All I know about this test is that it measures how quickly and accurately you can sort through a series of pleasant and unpleasant words and black and white faces. It is not clear to me why this is thought to be an accurate gauge of racial bias. But without the paper to analyze, I suppose mine is not to reason why; mine is just to allow the Washington Post to write about whatever it wants to in peace.

I asked my friend Hal Pashler, a professor of psychology at UCSD, and he told me that IAD tests are very controversial and referred me to some the skeptical literature. See Brendl, Messner & Markman, How Do Indirect Measures of Evaluation Work? Evaluating the Inference of Prejudice in the Implicit Association Test, 81 Journal of Personality and Social Psychology 760 (2001); Rothermund & Wentura, Underlying Processes in the Implicit Association Test: Dissociating Salience from Association, 133 Journal of Experimental Psychology-General 139 (2004). I will be reading through the articles soon. Hal also referred me to Hart Blanton, whom he says has amassed quite a lot of evidence that IATs purporting to measure racial bias do not in fact do so. I haven't yet read any of these articles, but you can ...

5. Oddly, the authors test only whites in their study. This biases the study. A very large portion (about half) of the Democratic party is now non-white, and the less-well-educated members of the Democratic party are disproportionately non-white, while the less-well-educated members of the Republican party tend to be white. I've been told that both blacks and Hispanics tend to rank very high on measure of racial and ethnic bias. Hispanics, for example, have been found to rank higher than any other American group in anti-Semitism. If non-whites had been included in the study, it might have shown that self-identified liberals are more racially biased than self-identified conservatives.

6. All of this reminds me of the laughable "Jost study" released back in 2004 and demolished by Northwestern's Jim Lindgren. Jost et al. were of the opinion that conservatives are mean, crazy, and unhappy. Time will tell whether this study will get demolished too. So far, it doesn't look good for Banaji & Nosek.

I look forward to reading the study. I'll report back after I do.

Worse Than Stalin? Part 2
By Gail Heriot

I'm amused that my fellow Right Coaster Mike is deterred from purchasing Mao: The Unknown Story by its 832 pages. If he changes his mind, he can borrow the copy I just purchased from Amazon. I figure it will help fill gaps left by the atrocious Teaching Company tape on Chinese history that I listened to last year.

Iran already has nuke, Israeil former spymaster says
By Tom Smith

It would explain the Hitler wannabe act.

January 30, 2006
Gin, Vodka and so on
By Tom Smith

I did know that you keep vodka in the freezer, and gin too. I have a bottle of each in my freezer, I am somewhat embarassed to note. However, if you do this, you need to add a few drops of water to make your martini. Drops. It makes a difference. Otherwise, the drink is too thick. But my advice is, just don't do it. Martinis are like the drink stands on the marathon to hell. You have one and think, mmm, that was good, I'll have another! And the next thing you know your head is numb and you can't pronounce "continuum" and other words you are trying to use.

Wine is good. Try wine. I bought some expensive wine over the weekend, thinking it would be better than the cheaper stuff I usually buy. It was. You can read Bainbridge on wine, or just let the market do its magic and assume the more expensive the wine, the better it will be. It usually is.

Judge Posner on the NSA program
By Tom Smith

Posner really is my favorite judge, the more so as I get older. He has that valuable thing in a judge, good judgment. His piece in the New Republic is a must read (Hat tip to DZ). Here's a taste:

I have no way of knowing how successful the NSA program has been or will be, though, in general, intelligence successes are underreported, while intelligence failures are fully reported. What seems clear is that fisa does not provide an adequate framework for counterterrorist intelligence. The statute was enacted in 1978, when apocalyptic terrorists scrambling to obtain weapons of mass destruction were not on the horizon. From a national security standpoint, the statute might as well have been enacted in 1878 to regulate the interception of telegrams. In the words of General Michael Hayden, director of NSA on September 11 and now the principal deputy director of national intelligence, the NSA program is designed to "detect and prevent," whereas "fisa was built for long-term coverage against known agents of an enemy power."

Filibuster Feckless
By Maimon Schwarzschild

The cloture vote was a thumping 72-25. The liberals' feckless filibuster means that this was the decisive vote on Alito: tomorrow's actual confirmation vote will be an anti-climax. Alito will get fewer votes for actual confirmation, of course, so the effect of the would-be filibuster is that the vote people will remember, the decisive vote, is the more favourable one for Justice Alito.

Of the 25 Democrats who voted to filibuster, fully twenty were from states where both senators are Democrats; and 16 of the nays (to cloture) are pairs of senators both from the same state voting to filibuster. An indication, no? that most Democrats in less-than-safe seats decided that to filibuster would be to walk over a political cliff.

No doubt the 20 Democrats who voted not to filibuster are grateful to those -- the leftist pressure groups, their own floor leaders, and of course Sen. Kerry (D. Davos) -- who boxed them into the position, in effect, of voting to confirm Alito.

Andrew Sullivan hates President Bush as much as anyone (well, not as much as anyone: but a lot). But Sullivan is surely right in saying, post-cloture: "George W. Bush is one of the luckiest men alive. And in no department is he luckier than in his choice of opponents at home and enemies abroad."

Its About Winning Elections, Stupid
By Mike Rappaport

The liberals are starting to get it. Its about winning elections. Jack Balkin writes:

If you don't like what the Supreme Court is doing today, you or your parents shouldn't have voted for Ronald Reagan, George H.W. Bush and George W. Bush. And if you want more moderate Republican appointees to the federal courts, you or your parents should have returned more Democrats to the Senate. Sure there can be variations at the margin, but you have to look at the larger structural features that have help shape the current situation. When you have a Republican President and 55 Republican votes in the Senate, you should pretty much expect appointments like John Roberts and Samuel Alito.
Republicans didn't get this for a while either, and some still don't. Robert Bork lost for many reasons but the most important was the Republicans did not have the Senate. In individual cases, sometimes you get lucky (Bush with Thomas) and sometimes unlucky (Bush with Souter) but overall the average of Thomas and Souter is not that far from what you would expect George H. W. Bush to produce with a Democrat Senate.

While Balkin gets this, it is too easy for him simply to say that independents or Democrats should not have voted for the Republicans. Democrats also have to ask about the political costs of their policies. To paraphrase Balkin, if you don't like what the Supreme Court is doing today, you or your parents should have thought twice about taking positions that seem irresponsible to the American people -- like appearing soft on crime, soft on terror, and soft on welfare. Of course, one might prefer to be pure and on the losing side, but then it is hard to complain about the results of how government policy turns out.

No one who feels strongly about political issues wants to compromise -- I certainly don't -- but compromise is what is often required. Whatever else one says about Bill Clinton, he understood that (at least after the wake up call of the Republican Revolution produced by Hillarycare).

It's not your fault that you're fat
By Tom Smith

It's a virus. Really. Bad news is they have no cure yet.

Even Michael Barone nods
By Mike Rappaport

Michael Barone rightfully criticizes the 70s, except for one thing:

Do you ever get the feeling, while listening to the political debate, that we're stuck in the '70s? The 1970s, that is, that slum of a decade which gave us the worst popular music, the ugliest hairstyles and clothes, and the most disastrous public policies of the 20th century.

The decade in which a Republican president imposed wage and price controls, the decade when we managed to have inflation and recession - stagflation - at the same time. The decade when crime and welfare dependency zoomed upward. A decade when Americans saw our diplomats seized - an act of war - and no effective force used to free them. A decade when a president was forced to resign in disgrace and when America lost its first war.
While I didn't like disco, music from the 70s was great, especially the earlier part of the decade, and in many ways better than the 60s. But that is just one man's opinion.

Some common sense from a law professor on the NSA program
By Tom Smith

Philip Bobbit of the University of Texas Law School gets this exactly right. As I would put it, it is much less important whether Bush technically violated the requirements of what is obviously a grotesquely outmoded law, than it is that NSA be able to carry on the sort of intelligence gathering operations it is gathering. In 1978, no one imagined that by gathering data on millions of persons, none of whom were likely terrorists, you could mechanically ferret out the few who were. The whole paradigm of privacy and probable cause we are used to makes no sense in this context. We need to come up with an approach that both allows us to protect national security and respect some reasonable conception of privacy. A reasonable conception does not include feeling violated if some mindless robot collecting samples from your phone calls and emails raises a red flag if you sound like a terrorist.

January 29, 2006
Be Evil. Whatever.
By Tom Smith

Google protest graphics.

Image censorship. So nice and seamless. This really makes me sick. Let's just edit history. We have the technology.

Question: can two play that game? Maybe Congress should consider some new law, say the Oppressive Regime Anti-Butt Kissing Act of 2006, to the effect that you get to pay some gargantuan fine if you help any country with more than a dozen or so gulags with their censorship program. Or call it, the We'll Help You Not Be Evil Act of 2006. What, you mean you can't be evil for free? At least let's have hearings and let the young billionaires explain why it's good for everybody in the long run to help bring mind control into the twenty first century.

Hey, and if you can mess with your algorithms to make nice with the nice Commies, why not pass along all that great intentionality info to whatever they call their KGB in the PR of Red China. Maybe they could do some insanely cool math and figure out if you search Gershwin, jazz, and whiskey within two weeks of each other, you have an 80 percent chance of being a subversive. Then it's off to the reeducation camp, which thanks to Google, has the latest in internet technology! We find it helps a lot with the reeducation process. That, and the thorazine. Sergey grew up in the USSR, so he knows all about that stuff, you know. Maybe he should have lived a few more decades in a free country before he became a billionaire. Maybe he should take a remedial class on good, evil, and the importance of individual humans and their decisions. (Sergy -- this is America. You are supposed to do the right thing, even if the government doesn't make you. Didn't you get a pamphlet or something?) At this class, maybe he could practice standing in front of toy tanks. Or spend a day in a day in a hell hole eating cockroaches and rats. I don't recall -- do they serve cockroaches and rats at the Googleplex? I know they have their very own chef. Those guys are just so cool, you know. Maybe instead of street hockey they could try guards and prisoners, and if a prisoner talks back, they could beat him senseless.

And another thing. Talk about a case for liberal education. Did these guys never take a class where they read some real books? Or was it just all matrix algebra and such? I mean, this is Werner von Braun with lava lamps and code. Maybe someone should introduce these larvae to the guys at Lawrence Livermore Lab, who helped scare the USSR into collapse by working on x-ray lasers and the like, and let them explain that just because you are an engineer, doesn't mean you have to cut deals with the devil. You don't have to betray everything you said you stood for.

Oh, I know! Let's put the latest in information technology at the service of the most brutal, scariest, and most threatening to freedom dictatorship on the face of the earth! We're geniuses, so it must be a good idea! How could it not be! I mean, maybe there is like some new model of mass human slavery yet to be worked out, and we can help!

Aquinas had a phrase for this, I think -- the corruption of the best is the worst. So maybe it should be: We weren't Evil; But now we are, and really good at it, too. Another tricky thing about evil is, often the evil are the last to know. Or maybe they were just a bunch of souless robot squids all along. Rich, though. Boy, they sure are rich.

Worse than Stalin?
By Mike Rappaport

I caught the authors of this new book on Mao on C Span over the weekend, and they were quite impressive. Unfortunately, the book is more than 800 pages and so I won't be reading it. But they make a strong case than Mao was a fraud and monster from the beginning and responsible for the deaths of 75 million people. Here are a couple of "facts" from the book listed on Amazon:

Far from organizing the Long March in 1934, Mao was nearly left behind by his colleagues who could not stand him and had tried to oust him several times. The aim of the March was to link up with Russia to get arms. The Reds survived the March because Chiang Kai-shek let them, in a secret horse-trade for his son and heir, whom Stalin was holding hostage in Russia.

Mao caused the greatest famine in history by exporting food to Russia to buy nuclear and arms industries: 38 million people were starved and slave-driven to death in 1958-61. Mao knew exactly what was happening, saying: "half of China may well have to die."
And here is this from a controversial review of the book by Nicholas Kristof:

This is a magisterial work. True, much of Mao's brutality has already emerged over the years, but this biography supplies substantial new information and presents it all in a stylish way that will put it on bedside tables around the world. No wonder the Chinese government has banned not only this book but issues of magazines with reviews of it, for Mao emerges from these pages as another Hitler or Stalin.

January 27, 2006
Worthwhile Canadian Initiative
By Maimon Schwarzschild

The Canadian election this week is surely good news for US-Canadian relations: the defeated Liberals were symbiotic with the Canadian legacy media, who may be even more smug, leftish, and anti-American than their US counterparts. Stephen Harper, Canada's new Prime Minister, is very unlikely to pander to these people: his opponents all. So from the American point of view, the results are welcome in much the way John Howard's victory in Australia was welcome, and Angela Merkel's in Germany.

The future of Canada, of course, will be foremost in Harper's mind: and it is not insignificant from the US point of view as well. Will Canada hold together as a country?

Andrew Coyne, a (small-c) conservative and an exceptionally sharp and well informed Canadian writer and blogger, has these thoughts about Harper and Canada's future. Coyne says that Harper and the Tories will be less "centralist" than the Liberals -- that the Tories will allow Canada's provincial governments more autonomy, and will "nanny" less from the federal capital in Ottawa -- and that the separatist impulse will therefore diminish in Quebec, since Quebec will enjoy more autonomy within Canada. David Frum thinks much the same thing (click on "The Real Threat to National Unity").

The Liberal idea, back when Canada's Liberals had ideas, was just the opposite: that more provincial autonomy would invite incremental separation by Quebec. Less government in Ottawa would create a vacuum, which would be filled by provincial institutions, which would tend towards creation of a separate country in French-speaking Quebec.

When Pierre Elliott Trudeau became Liberal leader and Prime Minister in 1968, he was determined to keep Quebec in Canada: he despised Quebec nationalism, which he (rightly, I think) considered parochial and deeply illiberal. About this, Trudeau was never Trudeaupian: he was famously tough about it, cheerfully sending the Army into Quebec and suspending civil liberties when separatist kidnappers tried to hold the country hostage in 1971.

In the 60s (and 70s) context, Trudeau may well have been right that a strong federal government was the only thing stopping Quebec from spinning off into a third-world Quebecistan. Today, Coyne and Frum (and Stephen Harper) are a much better bet. Quebec is more likely to make its peace with a more decentralised Canada, at least, than with a corrupt and patronage-driven latter-day-Liberal nanny-state in Ottawa.

Meanwhile, Canadian politics -- unsurprisingly -- are a very small world. Here is a revealing and interesting (half-hour video-clip) interview with Pierre Trudeau, several years after Trudeau left office in 1984, in which Trudeau attacks his successor for offering too much autonomy to Quebec and insists that Quebec separatism will destroy the country if there isn't a strong central government in Ottawa. The interviewer is... Barbara Frum, who was a prominent Canadian television journalist and personality, and mother of David Frum. (She died prematurely of leukaemia in the early 1990s. Unlike David Frum, she was not at all right-of-centre.) And Andrew Coyne's cousin Deborah Coyne - a Liberal law professor and political figure - had a romance and a daughter with Pierre Trudeau late in Trudeau's life.

Of course the US is not without family relationships in politics as well...

January 26, 2006
Making the World Worse
By Mike Rappaport

Unfortunately, one of the things that would both weaken the US and have devestating consequences for the world is actually constitutional, albeit unlikely: Making Jimmy Carter President of the US again. Carter's most recent gem:

Carter, who led an 85-member international observer team from around the world organized by the 'National Democratic Institute' in partnership with 'The Carter Center,' urged the international community to directly or indirectly fund the new Palestinian Government even though it will be led by an internationally-declared foreign terror organization.

"The Palestinian Government is destitute, and in desperate financial straits. I hope that support for the new government will be forthcoming," Carter said at a Jerusalem press conference.

He added that if international law barred donor countries from directly funding a Hamas-led government than the US and the EU should bypass the Palestinian Authority and provide the "much-needed" money to the Palestinians via non-governmental channels such as UN agencies.

"Regardless of the government, I would hope that potential donors find alternative means to be generous to the Palestinian people [even] if the donor decides to bypass the Palestinian government completely," Carter said, stressing that his main concern was to avert the "suffering" of the Palestinian people, which he said could lead to a new cycle of violence.
Remarkably, Carter embraces the democracy among the Palestinians but does not seem to recognize that the Palestinians are responsible for having freely chosen radical terrorists to run their country. Yeah, we should help them and "avert their suffering."

It would be interesting to imagine what the world would look like under this boob, but you don't really have to do so: It is in the history books: 1977-1980.

What is unbelieveable is that anyone listens to this guy.

Coup for Vanderbilt and a good idea
By Tom Smith

This really is impressive. Vanderbilt Law School is starting a PhD program in law and economics and has hired two of the top legal economists away from Harvard to do it. Don't you just love competitive labor markets?

It is a great idea, provided you are willing to commit the resources to do it right, and it certainly seems like Vanderbilt is doing it right. Apart from more obvious reasons for wanting to produce law and economics PhD's are some less obvious ones. A separate PhD program at a law school could stress the importance of knowing the law you are talking about. At times in the past, I have been pretty shocked at what passes for legal knowledge among economists. Also, law and economics has some of its own valuable, scholarly traditions, such as a commitment to empiricism that is not as absolute as you might think in economics, where some practitioners are pure mathematician wannabe's. So, overall, a very encouraging and exciting development at Vanderbilt.

All nerves about the Alito confirmation
By Tom Smith

Here's one of the dumber things I've read about the Alito vote coming up. It inspired me, however. Using our remarkable set of contacts, I decided to email "Barely" Bob, spokes-nonperson of Fetuses for Life, a not very well known anti-choice organization.

TS: So, Bob, are you nervous about the upcoming vote on Justice-presumptive Sam Alito?
Bob: I've been nervouser. In this job, you just have to learn to deal with stress. I mean, if it's not some new exercise fad, it's wondering if your life will be ended before it's properly begun. Mind you, our position is that it has begun.
TS: Of course.
Bob: Still, in all, we view it as an important vote. It won't keep some of our younger members from, ah, being disposed of. But maybe it means state laws against partial birth abortions will be upheld. As you know, we take an especially dim view of those because . . .
TS: They kill you?
Bob: Well, yes, obviously. But it's worse because you think you are finally getting your shot, and boom, kablooey, you're dead. Kind of build you up to let you down, if you see what I mean.
TS: Sort of.
Bob: Yes, it's hard to see things from our point of view. That in fact is one of our big missions, you know, walk a mile in our little feet sort of thing.
TS: I see.
Bob: Notification is signficant as well.
TS: It is?
Bob: Sure. The big effect notification has is to change behavior. If girls have to tell their parents they are getting an abortion, they are much less likely to get pregnant in the first place, or so the studies suggest.
TS: That old moral hazard thing.
Bob: Precisely. Of course, try to argue that teens can be rational about sex, and you run into a lot of skepticism.
TS: I am always impressed at how cold-bloodedly rational people can be, at least in the sense of self-interested . . .
Bob: You don't have to tell me.
TS: Any other concerns about Alito?
Bob: You mean executive power or something?
TS: Whatever
Bob: Not really. We are pretty much a one-issue organization . . .
TS: Well, good luck
Bob: Thanks much. We all need it.

Hamas' Victory
By Mike Rappaport

While it is certainly an unhappy result, it is useful in many respects. First, and most importantly, it forces the US (and perhaps some in Israel but not, I think, the Sharonites) to face up to the fact that their plans were founded on an illusion. The Palestinians are to a great extent supporters of terrorism and the destruction of Israel. There is no denying that now, although it will be denied.

Second, Fatah and the PA were corrupt and could not, in the current state, be the legitimate rulers of the Palestinians without the use of force. Individual rights, property rights, and the rule of law are sorely needed, but Fatah is just another kleptocracy. The US largely closed its eyes to that.

Third, there is an important division between Fatah and Hamas that US policy ignored. It is quite possible that the Palestinians will have a civil war, and perhaps they need one. They have to decide what they stand for.

Fourth, Hamas may have to face up to its own illusions. It cannot win a war with Israel, and Gaza is behind a fence. (Hopefully, the full Palestinian West Bank will be behind another fence soon.) If it does not moderate its position, it will be in a difficult position. It will be held responsible in the long run by Palestinians. The responsibilities of power may actually allow it to moderate enough so that the civil war between Fatah and Hamas will be avoided.

The great danger for the US and Europe would be to suddenly change their position and bargain with terrorists. But I am thinking that the US government at least understands this, even if it is willing to ignore many other inconvenient facts.

January 25, 2006
The revolution that keeps on giving
By Tom Smith

This article in Atlantic Magazine made for alarming reading. (subscription req'd, but you can get the idea.) It makes me glad I am not trying to raise daughters. And my kids are in Catholic schools, which have their problems, but as far as I know, "rainbow parties" are not among them.

For what little it may be worth, here is my armchair sociological analysis of what has happened. First, the feminist revolution managed to discredit traditional ideas of feminine virtues, such as modesty, let alone chastity, as well as traditionally virtuous male behaviors of protectiveness, chivalry, restraint and so on. That created a vacuum it did not have much on offer to fill. Second, into this vacuum in the 'eighties and 'nineties came the "bitch an' ho" culture of the black ghetto, via hip hop music mostly, I guess. That culture, IMHO, is almost uniquely pathological with respect to the raising of children. No positive male role models, glorification of violence, prostitution, drugs and the most vulgar kinds of materialism. I gather the role for girls in it is to be desirable chattel for the gangster with the most money. Welcome to the marketplace of ideas.

You would have to look far in history to find a culture more destructive of kids. Without the slightest bit of exageration, you can say a baby would be better off being born into a hunter-gatherer family in the middle of New Guinea. The music is probably better, too.

FISA and statutory construction
By Tom Smith

Here's a weird little statutory construction paradox with FISA.

Another oddity. Why would FISA provide for warrantless surveillance during wartime for 15 days only after a declaration of war? This is a very strange provision, if you think about it. There is no reason to expect that the first 15 days of a war would be when warrantless surveillance would be most useful. Or is the idea that in the event of a sneak attack, you might need to begin eavesdropping immediately, but 15 days would give you long enough to line up your applications to the FISA court? If so, that is certainly an outstanding example of Congressional stupidity. It almost seems that the 15 day provision is there to show that the President's Article II power to surveil during wartime has not been entirely eliminated; that is, the 15 day provision has a kind of place holder feeling to it, more certainly than making any kind of practical sense.

I have not read part II of the DOJ memo yet, and I plan to do so with an open mind, but my intuition is that the 1978 Congress, benighted body that they were, probably did intend to put all surveillance, even wartime foreign intelligence surveillance involving US persons, under the regulation of the statute. It may be, that is, that there just is not any ultimately plausible reading of FISA that does not put it into conflict with a reading of Article II that gives the President powers one would certainly hope he has. I tend to think Congress should just repeal FISA and start over.

To bloviate further on this -- the politics of all this is most discouraging. The Democrats, for their own sake and the country's, really should try to develop a position on national security a little more intelligent than Bush lied, and Bush broke the law. Protecting national security against very nasty and clever enemies in an age of high tech WMDs and low tech fanatical wickedness, and preserving civil liberties at the same time, demands deep thought and sincere grappling with the trade offs, not the sort of cant we have been getting from most Democratic leaders and opinion makers. As my Democratic colleague Larry Alexander observed, and as I have also from time to time, nothing would be more damaging to civil liberties than another catastrophic attack on American soil. If you want to see domestic spying on all of us, just wait until a dirty bomb goes off in Chicago, or somebody drops a pound of weaponized anthrax on the floor at LAX. Our enemies want to prove open societies cannot work in the face of terror, and we do not want to test the point. People for whom civil liberty is not just a flag of convenience for their anti-Republican or anti-American animus need to get serious about the threat side of the equation.

Signifying Nothing has this explanation. The 15 day period gives Congress some time to decide whether to extend the President's power to surveil without a warrant. Otherwise, the normal FISA requirement kicks in. Without knowing more, this does strike me as a plausible guess of what Congress was thinking. If one looked, one might find other parallels and a common underlying conception of the separation of powers in FISA and the War Powers Act.

There seems to be this meme going around the liberal side of the blogosphere that conservatives are somehow doing an about face on presidential power. This is news to me. I served in the Reagan White House, and there was a great deal of interest and enthusiasm back then in presidential powers. Robust presidential powers have been a big theme among conservative constitutional scholars at least since the 1980's. Someone more energetic than I could put together a long bibliography of law review articles substantiating the same. I'm not sure where that confusion comes from.

Another complaint is that conservatives want to give the President a "blank check" to wage war, including conducting domestic surveillance where necessary, in fighting off terrorist enemies. This criticism may not be exactly fair, but it is one worth making. But on the other hand, I think it is perfectly obvious that the Church-McGovern-Fulbright etc. model of how Presidential war powers should work, a kind of collective closing of the barn door after the horse of Vietnam had long fled, is completely inadequate to the necessities of defending against enemies such as al Qaeda. There is a long story to be told here, which others can do better than I. But as I see it, the whole set of liberal ideas we got out of the Vietnam era -- the "Imperial Presidency," the revisionist history of the Cold War a la W A Williams and Walter LaFeber (my advisor at Cornell), neo-colonialism, etc. etc are just all wrong. Just a dead loss. It is about as useful to us now as a snowmobile in Palm Springs; they were probably wrong answers to the old questions, but they are not even addressed to the questions we face now. The threat now is not, if it ever was, that some big bad America, led by its President, is going to crush some nice democratic socialist revolution of land reformers in some godforsaken third world dictatorship. The Islamofascists defy even the considerable imaginative powers of the American left to recharacterize them as the way to the future. A Leninist thug may look like a reformer from Cambridge, but you cannot do a lot with UBL. This makes it painfully obvious, I think, that the legacy legislation of the 1970's is just utterly inadequate and even downright dangerous in an era of religious nutcases busy working on mass terror weapons. Whether wars of national liberation should have scared us as much as they did or not, we have every reason to be scared of 21st century terrorism. Both the War Powers Act (to the extent anyone pays any attention to it) and FISA are relics of the 1970's, and ought to be as embarrassing to us as people hanging from the helicopters fleeing from Saigon. We've been there, and done that, and it did not work out too well last time, and we certainly do not want to repeat that with respect to the Islamist terror movement, or whatever you want to call them. I don't want Bush to have a blank check, but I do want him to have a line of credit that he can draw on to defend us against very real threats, threats which those on the left seem to want to minimize for tranparently political reasons. I realize there is reason to worry that any government will play on our fears, but it is not as if 9/11 was just a nightmare -- it was a nightmare come true. If I recall Arthur Schlesinger's book correctly, FDR exceeded his powers in the Lend-Lease program. I am not too worried about it.

ABC Nightline's Smear of Justice Scalia's Constitutional Law Seminar
By Gail Heriot

Monday night, ABC Nightline ran a story that made it look like Justice Antonin Scalia missed Chief Justice Roberts' swearing-in ceremony in order to attend a tennis junket. In fact, Scalia had been teaching a 10-hour continuing legal education seminar on constitutional law. The Federalist Society, which sponsored the seminar, has responded with the following letter from President Eugene Meyer, which I quote in full:

January 25, 2006

Mr. David Westin
ABC News
7 West 66th Street
New York, NY 10023

Dear Mr. Westin:

I write to express my deep disappointment and concern about a January 23rd report aired on ABC’s Nightline. The report grossly misled viewers about a recent trip Supreme Court Justice Antonin Scalia took to teach a 10-hour course on the Constitution and separation of powers. Nightline suggested that Justice Scalia’s trip was a “judicial junket,” and even strained to manufacture a link with disgraced lobbyist Jack Abramoff.

ABC chose to focus on the fact that Justice Scalia’s commitment to teach, which he made nearly a year earlier on October 10, 2004, conflicted with the swearing-in of Chief Justice John Roberts. Nightline’s report insinuated that Justice Scalia’s absence at Chief Justice Roberts’ swearing-in was nothing more than Justice Scalia taking the chance to play tennis at a Colorado hotel on the Federalist Society’s tab.

Rather than taking a recreational trip with hours of tennis and going fly-fishing, as ABC would have its viewers believe, Justice Scalia was honoring an agreement made nearly a year in advance with the Federalist Society to teach a serious scholarly program to more than 100 lawyers from 38 states that required considerable work and advance preparation. Prior to the course, Justice Scalia produced a 481-page course book that attendees were expected to review in advance. The course was approved by at least 30 state bars for most of the attending lawyers’ continuing education requirements. Justice Scalia was there to share his knowledge and experience and received only reimbursement for travel and lodging.

It was very appropriate and reasonable for the Justice to honor his longstanding commitment to teach. There was virtually no advance notice that the Chief Justice would be sworn in on September 29, and, were Justice Scalia to have cancelled a couple of days before the scheduled course, most attendees would have lost the money spent on plane tickets getting to and from the course. The Federalist Society would have also faced considerable costs for breaking its contract with the hotel where Justice Scalia taught the course.

Nightline deliberately misrepresented the nature of the event despite the fact that the Federalist Society took pains to establish the facts with Nightline’s senior producer, David Scott, as well as the investigative reporter who worked on the story, Rhonda Schwartz. The Federalist Society set forth the fact that Justice Scalia arrived at the hotel at 11 p.m. the night before the course and departed for home at 6:30 a.m. the morning after the course ended, thus spending no more days at the hotel than necessary to teach the course. It was made abundantly clear that the Justice taught for ten hours, and played less than two hours of some informal “pick-up” tennis.

I am deeply concerned that, reminiscent of the false National Guard story fabricated by CBS’s Dan Rather and Mary Mapes, ABC has simply chosen to score political points by blatantly disregarding the facts and true nature of the circumstances which surround the Federalist Society’s course on September 30, 2005.

Not only does this deliberately misleading journalism irresponsibly call into question the integrity of a Supreme Court and the scholarly mission of the Federalist Society, but it also seeks to advance an extraordinarily troubling argument regarding the range of activities in which judges should engage. ABC seems to be in favor of a world where Supreme Court justices are not allowed to engage in any outside teaching and speaking – before the ABA, the Federalist Society, or any other organization. ABC is content to have the legal community deprived of the benefit of the experiences and expertise of judges, which has for over 200 years been an indispensable feature of the dialogue that leads to the improvement of the law and the administration of justice, as well as the independence of the judiciary.

I am further concerned that what appeared to be good faith efforts on Nightline’s part to provide the Federalist Society with an opportunity to respond to Mr. Ross’s report last night. On two occasions we believed we had an agreement with Nightline producers that Federalist Society executive vice president Leonard Leo would be interviewed by Washington anchor Terry Moran and given an opportunity to respond to the false Nightline report from the previous night. But the producers reneged on both agreements, first insisting that Mr. Ross conduct the interview and then insisting that he come on after the interview. This turned gestures of good faith into bad faith, given that Mr. Ross smeared Justice Scalia and the Federalist Society the previous night in a story that he produced and edited to his liking.

That a major, respected broadcast network would not only air a grossly lopsided story, but willfully ignore very pertinent facts, is a source of tremendous disappointment, and Americans expect and deserve better. We call on ABC to launch an independent investigation into the circumstances surrounding the development and production of this story.


Eugene B. Meyer

I'm not sure the story is quite comparable to Rathergate. In Rathergate, CBS was using forged documents to smear Bush. But it's nonetheless a very sad commentary on the MSM. I do hope this kind of report will not cause judges to seal themselves off from the legal community in a misguided effort to avoid the appearance of impropriety. Up to now, teaching seminars had been one of the few opportunities that judges have to be among fellow lawyers in a serious setting outside the courtroom. I think that benefits both bar and bench. A cloistered bench is an out-of-touch bench.

Don't be evil (unless you have to to make a lot of money)
By Tom Smith

One more heroic dream bites the dust. Google decides to accommodate the 'great firewall of China.' I suppose this means you won't be able to such dangerous terms as liberty, freedom, Tiananmen Square . . . A sad day.

I don't understand people. If I had more money than I could spend in ten lifetimes, I would say, you know, I started this f*&%ing company, and we're not going to help some nightmare tyranny postpone its already long overdue demise. I might be somewhat less rich as a result, but I can already afford my own 747, so who cares? I mean, seriously. If the Nazis had won the war, and you owned a search company, would you acceed to their request not to allow to search "missing jews"?

Remember this? He probably wasn't smart enough to work for Google. And indeed, we are probably not smart enough to realize that in the long run, cooperating with the oppressors is the best way to bring about liberation in the end. After all, it worked in, well, must have worked somewhere.

Seriously, however, Google should at least let us know what terms you are not allowed to search in the PRC. Maybe freedom; Hayek; free markets; God; torture prisons China; Catholic Church; American constitution? Come on, Serge and Larry! Tell us! Or do the long run interests of freedom not permit that either?

By Tom Smith

Sometimes you are right to be afraid.

January 24, 2006
What is to be done?
By Tom Smith

How best could conservatives reform the culture of the academy? Interesting thoughts here.

I wish I had some deep insights on this. As a pessimist, my inclination is to say, it cannot be done. The academy is just too pervasively on the left to ever become 'balanced' or intellectually diverse. The only real alternative is to build alternative institutions outside of the academy. But then, I really don't know.

I am not sure what the experience in law schools teaches us. Without a doubt, the Federalist Society has made it more respectable, on balance, to be a conservative or libertarian scholar. But the success of conservative ideas, such as Originalism, has been far more striking on the bench than it has been on law faculties. The US Supreme Court may soon boast a solid majority of justices one might call conservative. And yet no top 20 or perhaps any law school faculty will soon or perhaps ever make a similar claim. But if there is a time when the majority of federal judges, say, are what we would now call conservative, does it really matter all that much that law school faculties continue to think conservativism is out of the mainstream? They will say we are out of the mainstream with their dying breath. The mainstream is kind of a platonic thing, I gather.

The most important influence of the Federalist Society, I would hazard, has been on law students and lawyers who go on to take positions of responsibility in public life. It has had this influence without getting anywhere near achieving balance in the academy. Ideas work in mysterious ways.

One might think a similar logic could work itself out in other areas where the academy is notably left wing. When people say the academy is over-poised to the left, I think they are talking much more about the humanities and social sciences than physics or molecular biology. In the liberal arts, such as history, or English Literature, I am far from certain the academy has any great institutional advantage in producing valuable new insights about past events or letters. Futurology is mostly impossible, but it is possible to imagine a world a few decades in the future where wealth and high productivity support intellectuals and artists of various sorts who will be able to do their thing, and have access to by current standards fantastic resources and audiences, quite apart from having to teach graduate students or attend departmental meetings. If all the great libraries are available online through GooglePrint or something similar, why does an historian need the imprimatur of the Harvard history department anyway? I think it may be more a case of, will the last Marxist please turn off the History department coffee machine, while the good, new stuff comes out of new places, which will be located who knows where. The scientific and technical side of universities have never been healthier, I would guess. But everything else -- one almost wonders if it can be rescued or even if it should be.

January 23, 2006
Tory Victory in the Great White North
By Maimon Schwarzschild

Canada has elected a Conservative Prime Minister. The Tories are winning a plurality, though not a majority, of seats in the House of Commons. Canada's Conservatives utterly imploded as a political party in the 1990s, and today's results represent a terrific comeback, and an enormous success for Stephen Harper - now Canada's Prime Minister apparent, the leader of the reconstituted Tories.

More, much more, from the Canadian Broadcasting Corp (or here if you'd prefer the news in French), and from the indispensable Captain's Quarters -- the American blog that was instrumental in keeping the spotlight on the Liberal Party scandals which paved the way for today's Conservative victory.

The question of the hour: What are Herb and Joey's thoughts about all this?

UPDATE: It's a narrow win for the reconstituted Tories, but a decisive defeat for Paul Martin's scandal-ridden, ever-so-politically-correct Liberals. (Canada's four-party system complicates the Liberal-Tory face-off...) Said one newly-elected Conservative: "Canadians decided that they wanted a change, but they want to take the Conservatives for a test drive, and we're happy with that".

The results in Canada happily echo the recent German election where relations with the US are concerned: the more anti-American candidates (Martin, Schroeder) went down to defeat. A good day for Canada, and for Canadian-US friendship; and another bad day for the world's down-with-America/hate-Bush left!

What People at the New York Times are Really Like
By Mike Rappaport

As if there were not enough reasons to hate the New York Times, read this simply incredible story about how reporters protect one another all in the name of high minded journalism. Amazing, but about what you would expect, once you think about it.

Why Republicans Can't Cut Spending
By Mike Rappaport

Jonathan Rauch has an insightful explanation.

Yes, Virginia, there really was a Commie infestation
By Tom Smith

From a certain perspective, this is one of the funnier things I have read in a while. Facts are not only stranger than fiction, they are funnier than fiction.

Academic non-diversity
By Tom Smith

The numbers on conservatives in the academy speak for themselves.

Quite apart from issues of fairness, which leave me rather unmoved (my bad), I think it is bad for the future of the university for them to drift further and further into a leftish orbit. I don't see American society overall going that way, and at some point the people who are paying for all this will ask what exactly is in it for them, other than ever so thoughtful critiques of everything they believe in.

Somewhat relatedly, the left-ization (sorry) of the university may accelerate the process Drucker thought was inevitable, that is, the replacement of the university with more rational and flexible educational institutions. Too bad. I liked universities. They were fun.

Boy issues
By Tom Smith

This is a real problem. Sometime in the last ten or fifteen years, we seemed to have tipped into a very boy-unfriendly society. At my kids' Catholic academy, it is routine for there to be only one or two boys out of dozen honors students at a grade level. Recess is so highly regulated that the boy play we grew up with is long gone. No tag. Nothing at all rough. No dodgeball. On and on. Public schools are even worse, I hear.

We are (planning on) sending our boys to an all boys Catholic high school. Strangely, the feminist revolution or whatever it is, has made the case for all male education stronger than ever before.

January 22, 2006
Is Juan Cole a nut?
By Tom Smith

It may be too early to salt him and eat him, but let's just say that the view may not be dismissed entirely. Just as Cole apparently does not dismiss entirely the view that 9/11 was some sort of Jewish conspiracy -- or maybe he is saying something else. However, that is not a claim that needs to be treated gingerly.

Just to be clear, I am strongly of the view that "the Jews", whoever they are, are not responsible for 9/11, nor for global warming, tooth decay, male infertility or the inability of the Padres to get back to the series.

DOJ brief on NSA program
By Tom Smith

The DOJ memo on legal authorities for the NSA program is out. If you are at all interested in the legal issues raised by the program, you ought to read it. A fortiori, if you are going to appear on the media as an 'expert' on this issue. So far, I have read just Part I, on the President's Article II authority, and his authority under AUMF, and have just started Part II, on FISA.

Part I is very good. It is very well written, clearly and persuasively argued, and marshals a quite impressive mountain of authorities in support of its position. I want to blog on it in more detail later, so this is just some off the cuff reactions.

My prediction is that critics of Bush and the NSA program will try to avoid the arguments and authorities in this memo as best they can. Part I seems to me to be in slam-dunk territory, which means it could garner only 4 votes against it in the current court. Just some tidbits. There is a long historical tradition of Presidents authorizing warrantless surveillance for foreign intelligence purposes, and ample Supreme Court precedent supporting same. These powers are ample even in peacetime. They are even stronger in wartime. This is wartime. You have the AUMF, you even have NATO article 5. Nice touch. Does sound like wartime. They would seem to be stronger still, when the enemy has agents inside the US, has attacked on US soil, has announced its intention to attack again on US soil, and uses electronic communications as part of its plan to wage war against the US, and effecting those plans. Indeed, to invade the US. Does the president have the power to repel invasions using force in its usual and traditional modes? Does he, hell. (My words.)

I especially liked the use of the Youngstown case. The memo argues, convincingly I would say, that the AUMF puts the President in Zone Whatever, the zone where the President is at the zenith of his powers under Article II. I had not thought of that, but it makes sense. The Famous Professors letter against the NSA program argued that FISA put the President in the zone where the President was most circumscribed. But the DOJ argument makes more sense. If Congress tells the President, go get the guys who did this, and stop them from doing it again, and use as much force as necessary, that sounds like a broad authorization to use Article II powers as much as necessary to get the job done. It seems silly and technical to argue that this broad and urgent authorization in a time of national emergency, would not trump any Youngstown power-narrowing effect, produced by FISA. You see, the Famous Professor's argument is that FISA has a kind of penumbra under Youngstown that constrains Presidential powers to their narrowest scope. DOJ says that AUMF dispells any penumbra from FISA, and indeed puts the President in the zone of maximum and authority, where Congress has empowered him to go do what has to be done. That does indeed seem to be what AUMF does. I speak metaphorically here, and probably unclearly, but, to the fair minded, I think it will be clear that much damage has been done to the FISA- plus- Youngstown- equals- a- very- constrained- President argument. I am not that sold on Jackson's concurrence in Youngstown anyway. I dislike 'zones', which are usually just an attempt to lend false precision to sketchy analysis. But still, I would not be surprized if critics start harping on Youngstown now, it being such a two edged sword.

I will just add that Part I of the DOJ letter is fun to read. Without referring to opposing arguments floating around, it does a good job demolishing them. That is always fun. It helps, of course, to have so have so much authority on your side. These arguments against presidential power in national security seemed so much more persuasive when the President was bombing third world fanatics and spying on us, instead of our getting bombed by them, and our spying on them.

Part II on FISA is not going to be as much fun. FISA appears indeed to be a complex and deeply misguided law, crafted at the recent nadir of American self-loathing (1978) by that nice man, friend of my family, but walking national security disaster, Frank Church. The argument is going to be, FISA does not stop the President from doing what is necessary to protect the country, but if it does, it is unconstitutional.

But don't worry about me. Just read the DOJ letter! It is a fine piece of work.

UCLA Profs kerfuffle
By Tom Smith

I must say I think Bainbridge and Volokh have staked out about the right position on this little fight. The dust up involves a UCLA alumni group that has offered to pay $100 for tapes of lectures by UCLA professors that demonstrate a left-wing bias. It sounds like I may be able to use this as a Contracts class hypo for offers of unilateral contracts. If 1000 students show up, each with such a tape, does the alumni group have to pay out $100K? Lots of possibilities there.

The bounties are obnoxious; no need to deny that. On the other hand, it is far from clear that classrooms in public institutions should not be open to some sort of public monitoring. Why not have a webcam in every UC and Cal State classroom? I can think of lots of reasons why not, but whether they outweigh the benefits, such as more awake professors who try harder not to make fools of themselves or indulge their various peculiarities too much, I am not so sure.

However shocked we might be by some UC prof saying Jesus was a communist, Reagan a war criminal, Mao a prophet of freedom and Bob Dylan the greatest poet in the history of English, more shocking still would be what we would see if we monitored our public grade school classrooms.

Epstein on Florida school vouchers case
By Tom Smith

It's depressing that it probably took Richard all of 90 seconds to write this post, lucid and detailed as it is.

The Florida Supreme Court -- quite a band of geniuses, no?

Juan Non-Volokh temporarily retires
By Tom Smith

But he'll be back, under his true colors, I infer. I think his decision to blog anonymously was prudent. He says he thinks bias against conservatives in the academy is overstated by some. He might not still have had that view if he had been signing his real name all along. It always best to complement others for their tolerance from a position of safety. That lion, says the photographer in the Land Rover, would never attack a human.

I agree that much of the bias is unconscious, but so what. Most ignorance is unconscious, too, and we typically don't give people a lot of credit for being ignorant. Apart from that, there is the loneliness and tedium of being the only conservative in your faculty or even town. Bias or not, there are strong reasons for smart, young conservatives to seek their fortunes elsewhere. It is hopeful to say this will change over time, but I doubt it. The universities are too thoroughly of one color to transform themselves, and I think it is neither possible nor desirable to change them any other way. What I do expect is the continued growth of alternative institutions, among which blogs and other alternative media will figure largely, in which 'other voices' may be heard. When the printing press came on the scene, the Church did not change so much, but Christianity sure did.

The Akaka Bill Before the U.S. Commission on Civil Rights
By Gail Heriot

I testified at a U.S. Commission on Civil Rights briefing on the Akaka bill on Friday. Press coverage of the event is here and here. For some reason, Americans from the mainland have a hard time grasping the notion that something that directly affects Hawaii might actually be important to them and the country. Fortunately, the bill is starting to get the attention it deserves. I commend the Commission on Civil Rights for its willingness to look into the issue.

January 20, 2006
Goodbye and thanks for all the words
By Tom Smith

Rosa Brooks has started a bloggy discussion with this post. As we tend to, I feel I can add something to this.

First, it is quite true that most law review articles are read not at all, or only a few times. 40 some percent are never cited. Ever. Twenty percent of law review articles get about eighty percent of all the cites. If you write an article and it manages to get cited ten or twenty times, you are doing very well indeed. We don't have any way of knowing how many times an uncited article might have been read, but it figures it is not a lot.

Conversely, a few players tend to dominate the genre. They are the Stephen Kings and John Grishams of the law review realm. Everybody reads what they have to say Is it because what they have to say is all that wonderful, illuminating, insightful, brilliant, etc. etc.? Actually, no. Weirdly enough, by looking at the distribution of citation frequency, you can get a good idea of what dynamics produced the shape of the curve. To take an analogy, we all, especially law professors, are familiar with, especially during grading time, consider the bell curve. It is amazing in a way how students every year dutifully line themselves up in a bell curve. It's normal! Why is this? It turns out that performance on exams is a function of a number of different factors, such as how smart a student is, how hard he studies, how good he felt that day, and so on, which are independent, at least partially, of each other. The interaction of independent variables tends to produce a normal distribution.

Very different mechanisms tend to produce the long-tailed, power law like distributions that characterize citation frequency. There are quite a few possible mechanisms, but one of them is the "rich get richer" effect, which also works for "the famous get more famous." So, one thing that may well be going on with citations, is that everybody reads and cites Cass Sunstein's latest not only because they expect it to be good, but because he already has such a big reputation. Reputations compound upon themselves. Fame breeds more fame. Do the famous deserve to be more famous? That is hard to say. It is like the guy who makes some money at the beginning of a stock market rally and so becomes very rich. He gets rich while the guy who makes money at the end of the rally does not. Fair does not have a lot to do with it.

What this says to me is that, if you already have a big reputation in legal scholarship land, you should probably keep writing, because you will probably get cited even if you write about your dog Skippy. Perhaps not really, but close. With all due respect, I think this phenomenon helps explain such mysteries as the ongoing influence of Larry Tribe, who as far as I can tell, has not made much sense in a while. But then, I am not a constitutional lawyer; perhaps I am being unfair. On the other hand, if you write stuff, and it tends not to get cited, you are fighting against a strong current. It is more like trying to get a hit single than it is like building a house. It is not clear to me that such a person should continue to write law review articles that won't be cited and probably not much read. It does not mean the articles are not good, though they may well not be. A change of genre might indeed be a good idea. I am not at all sure why law professors should be paid to write stuff that will quickly disappear into the pile of dead papers. There must be a better way for them to contribute to the sum of legal knowledge. On the other hand, it happens everywhere, even in the hard sciences. Maybe they also serve who publish and are ignored, through some process that is not well understood. Maybe it makes them a more appreciative audience of the famous ones. Who knows.

Which leads to blogging. Why on earth not? If blogging can somehow undermine the tyranny of student edited law reviews, then viva la revolucion. If ever institutions were prestigious for being prestigious, it would have to include the leading student edited law reviews. They are, of course, proof that human institutions can be highly irrational, and prosper. Writing an article for publication in a student edited law review is like preparing a feast out of the Thanksgiving edition of Gourmet magazine, and then at the last moment inviting your teenager's pals to come on in and make any changes they would like. How about throwing some chocolate chips in the souffle? Wouldn't that butterflied lamb be even better with ketschup?

Internet publication is faster, and student editors cannot insist you incorporate bad ideas or add pointless footnotes. It can be a scholarly conversation that is more like conversation. Many points, moreover, deserve to be made, but do not merit treatment in a full dress article, at least not by the point maker.

Blawging is evolving. The RC is a frisky blog, with some serious stuff and some not so serious. Other blawgs are much more serious and probably more worth reading too, if not as fun as we. Law blogs will probably change into something else, at least some of them, that are more professinal and useful, and I hope, render the student edited law review biz increasingly irrelevant, like the Nightly News. I also hope that online, peer reviewed journals prosper; whether they will or not, I don't know.

Be all that as it may, the blogosphere is perfect for law professors. It is like a giant faculty lunch table, except that you cannot be talked over, you can make your points as carefully or not, as you like, you cannot be stopped from gathering some sort of audience, you do not have to endure the scorn of late 1940's liberalism, 1990's post modernism, or whatever other historical curiosity you happen to find yourself seated next to, and you only have to listen to what seems interesting. It's like being a law professor, only more fun.

January 18, 2006
The New York Times
By Mike Rappaport


The bad news on Iran
By Tom Smith

Krauthammer is usually right about these things.

You have to think about these things from a game theory perspective, which just means strategically and assuming the parties are rational (in a limited sense). Doing that, the correct move on our part might be to make a credible threat, quite apart from any UN or EU3 action, that we will take some massively destructive action to remove Iran's nuclear threat, if they do not convince us they are not going to develop weapons. We would have to make such a threat credible, which would be possible to do, but not easy. If the threat works, we stop Iranian weapons without war. But this requires a credible commitment to make war if necessary -- not easy to do with our system.

Alternatively, we could enter into some sort of mutual nuclear defense pact with Israel, to the effect that any attack on Israel by Iran or by an Iranian proxy, would be viewed as an attack on the US and would trigger massive retaliation. This would also have to be credible. It might involve some sort of public sharing with Israel of nuclear weapons and delivery technology. If we gave Israel 100 high yield nukes and the missiles to deliver them, Iran would have to think twice about "wiping them off the map." It is one thing for Israel to have nukes. It is another thing for Israel to have a whole lot of them from us, with reliable delivery, and for everybody to know it. We could also enter into an agreement with Israel that we would deliver to them such weaponry if and when Iran acheived some milestone in its nuclear weapons development (which might include failing to convince us they had not stopped the development). In short, if the US can make credible commitments to respond to certain actions or inactions by Iran in appropriate ways, we might be able to avoid a descent into regional and quite possibly world war. I doubt this or any future president will have either the political will or the political support to do this. Later we will be able to say, we had a world war, but at least we did not have an imperial presidency.

Without a doubt, these are very dangerous times.

An amazing discovery
By Tom Smith

I may be speaking to soon, but I seem to have discovered that rarity, a balanced, thoughtful, insightful liberal (or mostly liberal) who comments on judicial affairs outside of the usual agenda. Benjamin Wittes at the Washington Post. Maybe not new to you, but new to me. I have not read everything he has written, but only a few things, and so far, I am impressed. He also has a really thought provoking piece in this month's Atlantic (subscription only so no point in linking) about how we are now really in the Stevens Court, not either the Rehnquist or Roberts court. Disturbingly convincing, and yet another reason to thank Jesus or other diety of your choice for Alito.

January 16, 2006
Whatever you do, don't let them into the classrooms
By Tom Smith

If we could see what went on in typical urban, public school classrooms, it would be a lot harder for the teachers' unions to resist reform.

Those darn world wars
By Tom Smith

Don't worry. We know that anti-semitic nut cases rarely start world wars. Do the Jews really have that much cause for concern? When some demagogic leader says he wants to "wipe them out," that is obviously just a figure of speech. The idea that the US should preemptively strike a sovereign nation such as Iran is imperial hubris at its worse. This is not like Hitler and Germany.

More seriously, I have been fascinated by 20th century European history since I was in college. Here is a very good new book about The Third Reich. There are significant parallels between Nazi Germany and Islamist Iran. Both were or are dislocated societies in the grips of a diseased ideology. Both groped toward national identity and pride through military might. Both scapegoat the Jews for partly mysterious but wholly pathological reasons. Germany did not and Iran probably would not, hesitate to murder on a genocidal scale if they thought it served their national purposes.

I hope our national leaders are capable of thinking outside the box on this one. Letting the UN dither us into an existential crisis should not be an option.

Those darn facts
By Tom Smith

NYT looks stupid, again. A former student of mine who was a Navy ordinance disposal team leader told me these 155 mm shells are as common as dirt in Iraq, there being literally millions of the them around. So if you don't know what they look like, you don't know thing one about objects that explode in the region. They are the munition of choice in IED's. We supplied them to Iraq in fantastic numbers during the Iran-Iraq war.

Irrelevantly, my father commanded a 155 howitzer battery as a 1st lt. in the Battle of Okinawa. At some point, I plan to blog about his experiences there.

The Left is Smarter and More Sensitive
By Mike Rappaport

This is pretty annoying and not even well argued. You see the reason why right wing justices move to the left is that judging requires them to see both sides of the issue. Why don't the left wing justices move to the right? Apparently, left wingers already see both sides of the issue.

Amazing. The funny (and sad) part of it is that the writers don't seem to realize that they are not looking at both sides of the issue -- that there might something to be said for the right. Of course, the authors are not justices.

January 15, 2006
Weird old England
By Tom Smith

Where an offense against taste is far worse than one against morality.

The fierceness of Ann Coulter
By Tom Smith

Dr. Helen on same.

Why can't we be friends
By Tom Smith

Now that it is clear Judge Alito will be confirmed, we of the permanent government here in Washington would like to get on his good side. There are guest lists to be thought of, former clerks who may be sources, cases we may be party to, and so on. Come, let us reason together. Let us see on which side the bread is buttered. Democracy is a beautiful thing.

Bork, Alito, and the New Court
By Mike Rappaport

As Tom notes, the New York Times is not pleased with the results of the Alito Hearings. The story mentions a miscalculation on the part of the Democrats:

[Alito's success at the hearings] amounts to a repudiation of a central part of a strategy Senate Democrats settled on years ago in a private retreat where they discussed how to fight a Bush White House effort to recast the judiciary: to argue against otherwise qualified candidates by saying they were taking the courts too far to the right.
This strategy was the one that the Democrats used against Robert Bork in 1987. But the Democrats, like many commentators generally, overemphasized this event, reading it to be more important and more telling than it was.

There are least three distinctions between Alito and Bork that ended up leading to the different result:

First, when Bork was nominated, the Democrats had the Senate; with Alito, the Republicans have the Senate. This is of enormous importance. Scalia (and Rehnquist) also were confirmed when the Republicans had the Senate, a year before the Bork nomination.

Second, Alito was far more likable than Bork at the hearings and was much more skilled at answering the questions. Sadly, Bork, who is a very nice man and quite bright, appeared to be mean at the hearings and he did not give very good answers to the questions. Witness the "ink blot" explanation of the Ninth Amendment. That was only one of many weak arguments he made.

Third, Alito learned from the experience of Judge Bork. Nominees understand the risk and take a sophisticated and cautious position about what they will and won't talk about. They also appear to moderate their views, accepting, for example, Griswold.

It is understandable that the Liberal Democrats would have glorified their victory over Judge Bork, but that does not make it more significant than it was. It was a victory in a big battle in a larger war, which is still in dispute. But the Conservative Republicans appear to have won a couple of battles with Alito and Roberts.

That said, the Court may not be that much further to the right than it was a year ago. My best guess is that Roberts will be somewhat more conservative than O'Connor, but not as conservative as Rehnquist. And Alito will be more conservative than Rehnquist, perhaps some combination of Scalia and Thomas (although he could be less conservative than them). That would mean a more conservative court, but not that much more.

The key point, though, is that Roberts is likely to be quite a bit more conservative than Kennedy. While I doubt that Roberts will vote to overturn Lawrence v. Texas, I don't think he would have voted with the majority when that case was decided. So Kennedy will be the swing vote instead of O'Connor -- a clear movement to the right, but not really a dramatic one.

Experts' letter on NSA program
By Tom Smith

Here is a letter, styled the 'experts' letter' on the NSA program, signed by a number of prominent legal academics and former public servants. The average signatory is more left than right, with a number of the usual suspects, Larry Tribe, David Cole, Kathleen Sullivan, etc., but also Richard Epstein, well known libertarian and not a Democrat (but not really a Republican either) as far as I know, Bill Sessions, and few others I have not heard of. An impressive list.

It would be interesting to know who actually wrote the letter. When I was in practice, we needed a letter from a famous constitutional scholar that an egregious piece of special interest legislation our firm was lobbying for was in fact constitutional. So we drafted the letter, paid ten large to a scholar who is also one of the signatories of the NSA letter, and voila, had ourselves a weighty opinion. To be fair, the signatory's contract provided that he/she had to be paid whatever his/her opinion turned out to be, so you can imagine our relief when he/she turned out to agree with our client's position. He/she did have some suggestions for improving the punctuation in our letter, and those were much appreciated. And in fact, the law was subsequently challenged, and its constitutionality was upheld, if memory serves. It was a very bad, but constitutional piece of legislation, as so often they are.

The NSA letter, as legal work, it is of merchantable quality; only one typo (the double period at the bottom of page 8) that I caught. However, I would not say it as good as the average, and certainly not as the sum, of the legal talent represented by the list of signatories. As I say, it would be interesting to know where this group of scholars gets their legal work done. Ten will get you ten thousand it ain't by Ronald Dworkin, who is probably in Zermat or some such place this time of year.

But to the substance! I am not going to repeat the letter's arguments here, so if you earnestly wish to follow my points, for whatever mysterious reasons you may have, I urge you to read the letter, which is well worth it, and at less than ten pages, is far more endurable than listening to ten minutes of Judiciary committee questioning. And, if you read the letter, you will also be far ahead of many learned commentators on this controversy.

A general point first. This letter is not really a memo advising the Attorney General or some other official in the Executive on the legality of the NSA program. What it actually is, is a short brief, written from the perspective of some party who wants or needs to argue that the NSA program is illegal. So, if you end up in a federal court because of the perfectly innocent radiological powder experiments you have been doing in your basement, and which were unwise enough to discuss with your pals pursuing their religious studies in Pakistan, this letter would be a good place to start. No attempt is made in the letter to make the best arguments on both sides, and then suggest what is the stronger position. One may indeed wonder what the purpose of the letter is. The letter is addressed to Members of Congress, so I suppose it is meant to influence the politics of the upcoming hearings on the NSA program. And I think it is really more a political than a legal document. But that's fair enough.

The gist of the letter is that the NSA program, which appears to involve domestic wiretapping for foreign intelligence purposes, violates FISA, and so is illegal. The letter argues that the position taken by DOJ, that both Article II and the AUMF authorize the NSA program, is (nearly) indefensible.

My first reaction is that the argument that Congress intended to prohibit all domestic wiretapping for foreign intelligence purposes, even in time of war, except as authorized by and consistent with the procedures in FISA, is, as this letter makes it, fairly persuasive, as far as it goes. One would have to study the FISA statute more, of course, but the letter makes some sense on this score.

One of the things this does, of course, is highlight what a profoundly stupid law FISA is, even with the Patriot Act amendments. So, for example, apparently FISA allows domestic wiretapping for wartime foreign intelligence purposes, if and only if the Executive gets special permission under FISA within 15 days of the declaration of said war. Could FISA really be that stupid? Just to take a wild and crazy law school hypo, what if, just suppose, the CIA discovers that some US citizens are conspiring with some evil Nazis to blow up the Statue of Liberty, and they want to tap the phones of the domestic conspirators, not to prosecute anyone, but just to stop the plot. But, the war has been going on for 30 days. And no one in the Executive thought to ask permission to do warrantless wiretapping during the first 15 days of the war. In their defense, these were some kinda busy 15 days. Suppose further, there is some technical reason why getting a warrant would be impractical, such as the CIA doesn't know the names of the domestic saboteurs, or their phone numbers -- they're going to rely on some new technology to listen into the phone calls of every cell phone in O'Mally's Bar (these are Irish terrorists), where the evil doers are thought to hang out. If I understand FISA correctly, that's just too bad, so sad. Good bye, Lady Liberty. Here's a relevant passage from the letter:

As noted above, Congress has comprehensively regulated all electronic surveillance in the United States, and authorizes such surveillance only pursuant to specific statutes designated
as the “exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” 18 U.S.C. § 2511(2)(f) (emphasis added). Moreover, FISA specifically addresses the question of domestic wiretapping during wartime. In a provision entitled “Authorization during time of war,” FISA dictates that “[n]otwithstanding any other law, the President, through the Attorney General, may authorize
electronic surveillance without a court order under this subchapter to acquire foreign intelligence
information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” 50 U.S.C. § 1811 (emphasis added). Thus, even where Congress has declared war—a more formal step than an authorization such as the AUMF—the law limits warrantless wiretapping to the first fifteen days of the conflict. Congress explained that if the President needed further warrantless surveillance during wartime, the fifteen days would be sufficient for 4
Congress to consider and enact further authorization.3 Rather than follow this course, the President acted unilaterally and secretly in contravention of FISA’s terms. The DOJ letter
remarkably does not even mention FISA’s fifteen-day war provision, which directly refutes the President’s asserted “implied” authority.

On its face, you have to admit this 15 day provision does indeed suggest that in FISA, Congress did not intend the President to have any implied authority to conduct spying operations under his war powers, if it involved doing so domestically. It is also an astonishingly dumb provision, even for Congress.

Maybe this is not really what FISA provides. But assuming it is, this leads to the question, which frankly puzzles me, of whether Congress in 1978 can limit the conferral of war powers to the President by Congress in 2001. It strikes me as not the same problem as trying to reconcile two statutes, one specific and one broad, where, of course, the more specific statute trumps, an argument invoked with at least superficial plausibility in the letter. Do you construe a declaration of war, or an "authorization to use military force," as you would the Poultry Health and Safety Act of 1981? It strikes me that this might be an instance in which the broader authorization trumps the narrower statute. "War" and "use of force" are broad terms, but they are also legally important terms. If they are trumped by every piece of legislation that is more specific, there is not going to be much left of them.

Be that as it may, it certainly does raise the question of whether this dimension of FISA is constitutional. Under the logic of the letter, the President could not engage in warrantless wiretapping of US persons in direct contact with foreign combantant enemies during wartime. If a US person were standing on the Capitol Mall, cell phone in hand, talking down a jetliner in so it could plough into the Capitol Building, nobody, the FBI, CIA, Air Force, nobody, could listen into that conversation (without a warrant) in an effort to stop the attack, unless, of course, the President thought to ask for such authority during the first 15 days of the war, and perhaps not even then -- perhaps the attack would have to occur within the first 15 days of the war! In all seriousness I ask, can that possibly be right?

Here I should identify myself as something of a Posnerian pragmatist in these matters and say, I think we really don't want to let an act of profound Congressional stupidity in 1978 (a good year for stupidity) stop the President from defending the country in ways it seems obvious, from what you might call the common sense view of people who don't want to die, he should be able to use.

This set of concerns leads quickly to the letter's reliance on Youngstown Steel, and in particular Justice Jackson's opinion, which it is now customary not to identify as a mere concurrence. (If I may digress momentarily, I must say I find it a little annoying that the Jackson concurrence in Youngstown is, according to the letter, supposed to rule the day, even though that case was about nationalizing steel mills, not FISA, and was only a concurrence, while the assumption that the President does have Article II powers to wiretap for foreign intelligence purposes under FISA (where "foreign intelligence purposes" includes such things as trying to stop Islamic nutcases from blowing us up) in Sealed Case 02-001 is dismissed as mere dicta in footnote 11 of the letter. But IT'S NOT DICTA. Sorry. I can see it may be necessary to explain in detail why it is not dicta, but that is the subject for a future post.)

Apparently, we are supposed to conclude, on the basis of Youngstown, that Congress has the power to occupy the whole field of what would otherwise be the President's power to act domestically in wartime to defend the country. To repeat myself, you just really have to ask, can this be true? If and when Congress passes a law that makes defense of the country by the President in wartime in some important respect impossible or highly impractical, is that just the end of the argument? If so, the title for the book about it could be Our Foolish Constitution.

I am coming to the view that it may be necessary to face the hard fact that, as shocking as it may seem, a concurrence by a not particularly distinguished Justice in a fifty year old case about steel mills may not be able to guide us through this strange new war against the let's bring back the Caliphate crowd. Working on just my amateurish understanding of these profundities, I am hoping that it is reasonable to suppose that a concurring opinion in a not exactly on point Supreme Court case, is not the law of the land, at least not to the degree that we have to die for it. If lots of people are going to die, I think we should hold out for a majority opinion, maybe even 6-3. We may have to wait for Professor Dworkin to opine on that one, however. Supposing, in any event, that we are not stuck with Jackson in Youngstown, one would think one could come up with better guidance than, the President can act to defend the country in wartime, even domestically, unless Congress has said he cannot, in the relevant respect. The sublime idiocy of the 15 day requirement is as good an illustration as one could ask for about why Congress is not so good at regulating how wars should be fought, not to imply that they are particularly skilled at other modes of regulation, just that they are notably bad in this respect, as I believe the Framers foresaw they would be.

Much more could be said here, but as I am not, as in a former life, being paid to draft letters to be signed by famous constitutional scholars, I will wrap this up. What bothers me most about the letter is that it is a transparently political demonstration intended to undermine the President's entirely laudable efforts to prevent evil and crazy people from murdering us in large numbers. Even though he is a Republican, I believe Bush should be given some credit for doing this. How to defend us from threats that would deeply frighten even our most sanguine scholars if they became learned about them, presents some very difficult questions. Questions to which, "let's get really serious about FISA" -- a law that was a disaster from the moment it was passed, and which contributed materially to the deaths of thousands of innocent people on 9/11, and which may not be done working its mischief yet -- is a singularly unpromising approach. What constitutional scholars should be thinking about is not, how can we use the revelations about the NSA program to undermine the current administration, the national security consequences of which are not our department, but rather, how can we defend ourselves against the threat of modern, high-tech, loosely networked, ideologically fanatical, and utterly ruthless terrorism, but still preserve our liberties? When some defendant is paying you to come up with just the arguments that some evidence against him cannot be admitted, that is one thing. But when you are writing an open letter to Congress, you can consider whatever you want, presumably, and question, well, what exactly is the President supposed to do? still rather hangs in the air -- unless this is just a political exercise, which I rather suspect it is. One thing the "expert's letter" does succeed in doing is persuading one that the answer "just use the FISA process" is no answer at all. This is a law that should be repealed or fundamentally revised in short order, assuming we are all around long enough to do that.

(Just one more thing -- the expert's argument that there were no "special needs" under FISA strikes me as implausible and passed over rather quickly, as in, 'ignore the man behind the curtain,' so perhaps more on that later.)