POETRY IN MOTION (DENIED)

If you recall, I noted in my last post a certain subterfuge concocted by Senators Graham of South Carolina and Kyl of Arizona, in which the two pretended to engage in a mock floor "debate," the alleged "purpose" of which was to "show" that Congress intended the Detainee Treatment Act of 2005 to apply to pending cases - such that Petitioner Hamdan's (of Hamdan v. Rumsfeld) case could not be reviewed by the high court.

I must apologize for a factual error that I made in the last post. The fake colloquy between these two men was not held in one of their offices. It was, in fact, held in the well of the Senate. Otherwise, I described the conversation accurately. No other Senators were present; there was no actual debate; and the conversation occurred AFTER the actual debate had ended.

I bring up the factual error not just as a reader service, but as a roundabout way of getting to the subject of today's post: every now and then, a Supreme Court justice unleashes a line, phrase, sentence, or even whole paragraph of poetic brilliance on us. Increasingly, such statements either do not further any conceivably point the Justice is trying to convey, or should be trying to convey, but it is pleasing to read such things amid the perfunctory and desultory prose that has creeped into Supreme Court opinions over the years.

Yesterday, Justice Scalia unleashed a corker of a statement - and the statement wasn't even reflective of verbal brutality! In fact, the statement was an offhand musing about how all legislative history is, in effect equal - a point one would expect Scalia to make in theory, but not in practice, since he does not believe resort to legislative history at all.

The majority held that the DTA did not strip the Court of the right to hear the case because, as noted in yesterday's post, the habeas-stripping provision - unlike its two corollary provisions - did not contain a "pending cases" clause. The majority, to strengthen its argument that the Court had jurisdiction, obliquely referred to the fact that, when the Senate debated the DTA, statements made on the floor reflective of debate BEFORE THE BILL'S passage were consistent with a legislative intent to not apply the habeas stripping provisions to pending cases. The majority noted that, by contrast, statements suggesting an intent to apply such provisions to pending cases were made AFTER the debate - indeed, they were "inserted into the Congressional record" after the debate, and were thus a less useful gauge of legislative intent.

Justice Scalia first noted that legislative intent needn't have been divined in this case because the statute's language was plain on its face. (It was not; moreover, in the 2004-2005 Exxon civil procedure case, he found a similarly "plain on its face" statute to be not clear on its face and held that statements made after debate had closed were of no probative value vis a vis the issue of legislative intent. Go figure). But, he said, if legislative intent were to be considered, the observation that some statements "indicative" of legislative intent were made after the debate was over, as opposed to before, should have made no difference. Now, here's the line:

"Of course, this observation, even if true, makes no difference unless one indulges the fantasy that Senate floor speeches are attended (like the Philippics of Demosthenes) by throngs of eager listeners, instead of being delivered (like Demosthenes' practice sessions on the beach) alone into a vast emptiness. Whether the floor statements are spoken where no Senator hears, or written where no Senator reads, they represent at most the views of a single Senator."

Demosthenes, I learned (what is it with Scalia and his passion for Greek history?), was a prominent Greek statesman, orator, and logographer of ancient Athens. Most of his orations were direccted against the growing power of King Philip II of Macedon, whom he saw as a menace not only to Athens but to the autonomy of all Greek cities. Demosthenes delivered a series of speeches, heavily attended, denouncing the King, the first of which came to be known as the First Phillipic; the second, the Second Phillipic, and so on. He practiced delivering these speeches on the beaches of Greece.

So, Scalia, using this elegantly chiseled paragraph, seems to be saying that, assuming legislative history is "in play," statements made by a Senator ex post facto count as much as one made during the debate because it is what the locutor is saying, rather than the size of his audience, from which legislative intent derives its significance. There are only several problems with this view, at least in this context. In an ACTUAL debate, where there is a give-and-take, someone is not, in fact, addressing an audience - someone is actually interacting with many other Senators, whose divergent views create a tapestry from which a COLLECTIVE intent can be gleaned (or not). The individual Senator's voice may carry no more individual weight than the weight of the faux-mock debater's, but it carries more CONTEXTUAL weight because the Senator often makes it in response to being provoked, questioned, or thrown a softball - in other words, he makes it in a genuinely deliberative process. When the majority quoted individual senators' comments, it wasn't, of course, doing that - it was quoting colloquy - it was quoting context, interruption, mess, divergence, revelation and resolution. Scalia, using his "audience" analogy, apparently equates believes that this process can be likened to a multitude of garbled voices whereas the subterfuge can be likened to a no less "vociferous" garble, but the things being compared are apples and oranges. Why? Audiences are passive. Demosthenes, regardless of whether he was practicing on the beach or dazzling an assembled throng, was not engaged in discussion with his audience. He was lecturing - for his own purposes. His intent - to denounce Philip - was PRECISELY the same in each case - and the record from which intent could be inferred - his speech - was precisely the same. A full-throated Congressional record that is the product of debate is more instructive than two courtly bigots' sub rosa subterranean subterfuge. Yes, the views of a Senator are the views of a Senator, but as Orwell said, not all views are created equally. Some views can be concocted out of whole cloth. In other words, two Senators, after the expiry of a debate during which the legislative intent was made beyond clear, can pretend-query each other, "for the record," that the intent was "up is down," "night is day" Robert Bork's America. Views do matter. For even Scalia must resort to usage of legislative history, and thus, by necessity, must decide what intent actually existeted. The question of what intent existed ALWAYS depends upon credibility of witnesses (speakers) in the context of facts and law.

So, I am indeed grateful for the priapic pinpoint to Demosthenes, but Nino, please: when you're going to use ten, a hundred, a thousand dollar words, phrases, or analogies, next time go to the beach first to practice using them. Doing so might clear your head - and save you from throwing yet another Philippic.

AND LET SLIP THE LAWS OF WAR*

* See Shakespeare, Julius Caesar

Today brought and end to the 2005-06 Supreme Court term proper. As per its custom, the Court issued a major decision this day - the last of the term proper - as it typically does on the last day proper of terms.

Two major decisions were actually announced today. One, Clark v. Arizona, basically held that Arizona's insanity defense - which is exceedingly restrictive in terms of what a defendant must prove (and remember - a defendant must prove insanity - and duress, for that matter, as the Court just held, by a preponderance of the evidence) and whose definition bears no logical relation to the clinical definiton of "insanity" - is constitutional. 6-3 vote; Kennedy (whose voting pattern and authorship have been outright fascinating this year) dissented.

Of course, the major major decision was Hamdan v. Rumsfeld. Hamdan, a Yemeni national who was Osama bin Laden's driver at some point (bin Laden now drives himself using the latest portable dialysis/colostomymobile), was captured in Afghanistan, labeled an enemy combatant, and in 2002, was placed in confinement in Guantanamo Bay. The only reason he is allowed to challenge his detention therein at all - in other words - the only reason his case ever got to a District Court (which, by the way, held that the military commission that eventually tried him for the offense with which he was charged, an unheard-of-law-of-war-offense called "conspiracy to commit war) is because of the holdings in the Court's 2004 Hamdi and Rasul rulings. Collectively, these cases held that U.S. citizens, and foreign nationals held at Guantanamo, must be given a meaningful opportunity to challenge their status as enemy combatants. This, Justice O'Connor said, could be done either in a federal district court, or via a "properly constituted military tribunal."

So, the Bush administration, deciding to indulge its jolly old hatred of federal courts, chose to try foreign "enemy combatants" at Guantanamo through the use of military commissions. The Constitution requires that the President cannot undertake certain acts without Congressional approval (i.e. cannot act unlawfully), and, as it happens, for reasons too complicated to explain, for a military commission to be properly constituted, at a minimum, such commission must be legislatively authorized by Congress.

So, the Court today, 5-3, in holding the commission that tried Hamdan to be unlawful, found that the first unlawful aspects of the commissions were that they were not authorized by Congress. Thus, the commissions, as constituted, had no authority. The Court noted that the September 2001 Authorized Use of Military Force, a piece of legislation allowing the President to use all "appropriate force" to deter enemy attacks, did not create or authorize such commissions by its plain language (duh, you would think, but some Senators think the AUMF ACTUALLY and TEXTUALLY makes the wiretapping program legal. "Hi. This is Sprint. How may we use force against you - er, your enemies - today?")

But pointing out this flawed aspect of the commissions was just essentially letting out some gas for the majority author, Justice Stevens. He also noted - in fact he addressed beforehand - a threshold issue that the government forced upon the court through some astonishingly bold sequences of subterfuge late last year.

Late last year, Congress passed the Detainee Treatment Act of 2005 (the Act to which the McCain anti-torture amendment was applied - to which President Bush's signing statement was appended. I'd like to see him, without advance notice that he has to do so, READ OUT LOUD, on camera, the contents of a bill before he appends a signing statement to it. There are rumors there are always rumors) that he is at least partially illiterate. I'll be a conspiracy theorist for a moment, and say: what have you seen him see or do that DISPROVES this theory? This is not an example of "it's impossible to prove something never happened." The theory can be disproven. But, alas, I'm afraid it never will be. The Amazon reader reviews of "My Pet Bloat" make clear that Bush hasn't been into reading out loud since Sept. 11th).

The DTA contained two parts. Part 1 said: no enemy combatant can bring a habeas action challenging the lawfulness of the commissions. This part was silent as to whether individuals who already brought one (such as Hamdan) could continue to pursue a claim up through the circuit court into the Supreme Court. Part 2 said, "The only thing people who think the commissions are unfair can do is wait until the commission has rendered a decision, and then appeal to the D.C. Circuit. This part applies to pending cases." Stevens quite sensibly held that reading the two parts in pare materia, Part 1 controlled Hamdan's case because it did NOT state it applied to pending cases. Part 2 LITERALLY did not apply to Hamdan because at the time the DTA was passed, Hamdan had already LOST at the DC Circuit. The subterfuge part: Senators Graham and Kyl created a fake colloquy (a talk between them not in the well of the Senate, but in one of their offices, which was transcribed for "official" purposes, in which one "questioned" the other, and asked,"So, does the ENTIRE DTA mean to apply to pending cases such that no court other than the DC Circuit can hear any of them?' The other said "Yes." The two men put this phony legislative history into the record and then filed an amicus brief citing this "history" as evidence of legislative intent. Turns out, though, that the ACTUAL legislative intent was specifically to NOT make Part 1 apply to pending cases. Senator Kyl is a piece of shit, by the way, and is quite ugly).

So, with the threshold issue out of the way, Stevens then proceeded to whip Bush like the corporate-rented mule that he is. Stevens held that not only must Congress authorize commissions, but that such commissions must comport with the procedural and substantive standards of the Uniform Code of Military Justice - 10 U.S.C. et. seq. The commission's procedures clearly failed to do so. These procedures, which govern courts martial, are sufficient to govern commissions. Apparently, the Bush administration's "rationale" for not using them: "federal court procedures are too onerous." As Stevens pointed out, Dumbya didn't ever show how court-MARTIAL procedures and guarantees are too onerous. The basic protections afforded by the UCMJ are indeed quite basic, and yet the commissions still didn't offer them. Under Commission procedures, ANY evidence could be offered - including any hearsay evidence - if it was "relevant"; defendant could be removed from or barred from the proceeding altogether for no reason at all (as indeed Hamdan was), defendant could basically not consult his lawyer, and so on.

But there's more... A whole lot more... And for Scumbya, it all adds up to a whole lot less. Blobberts, while on the D.C. Circuit, rejected Hamdan's claim that the Commissions violated the Geneva Convention, stating that the GC doesn't create a "private right of action." Hamdan, however, wasn't suing to have something enforced, or to obtain money. He was saying something is unlawful. The Constitution itself doesn't create a "private right of action" for violations thereof - i.e. the 4th Amendment - but people who have been victimized by violations can sue to prevent government deprivation of their life and liberty. Stevens, recognizing this anciently obvious principle, and ignoring the osequiosly constipated Roberts' red herring, held that the commissions DID violate article 3 of the Geneva Conventions, which requires that some minimum legal process be afforded to persons in Hamdan's situation. A violation of article 3 is itself a violation of the laws of war, and is actually also a war crime.

4 members (excluding Kennedy) further held that conspiracy is not a recognized offense under the laws of war, so even if everything else about the Commission, mutatis mutandis (as William Buckley would say; when you use a pompous phrase you hope you use it right!), was propeer, Hamdan was STILL improperly charged.

Justice Breyer, in a separate concurrence that graced the 176-page opinion, threw Bush a bone, noting that Bush could start again from scratch simply by obtaining Congressional approval for the Commissions. Of course, Breyer implied that Congress could not approve a scheme such as the one set up here - unless we de-enlist from the Geneva Convention, rewrite the Uniform Code of Military Justice, and/or(probably all three) change the international laws of war. No doubt FauxSchloxNews and the Rethuglican Congress are collectively foaming from mouth to frothing mouth at the opportunity to do all three. It is unlikely, though, that they will succeed.

Oh, I have to mention the dissent. Someone has to be the bearer of REALLY good news. Scalia (FFF), Sloppy Seconds Strip Search Sammyh (SSSSS), and Tight Tonsils Thomas (TTT) all proudly displayed their fat, angry white male draft-dodging hate in their dissenting opinions, as they argued the President needed to violate the law in order to save what he has permanently destroyed. Or something like that. Because, you know, al Qaeda is a new and deadly enemy. When has this kind of argument NOT been made? Each enemy the U.S. has fought in official or unofficial wars can be spinned so as to appear "new and deadly." al-Qaeda isn't so new; they only stirred Justice Thomas' explosive diarrhea-depositing rage five years ago, but have been around much longer. And deadly - yeah, al Qaeda is deadly, but, this statement is an uncontextual platitude. Here's another platitude that is just as applicable: "Nothing is as powerful as an idea whose time has come." Barbaric civilizations throughout history get some ideas - and some have taken them out on the U.S. We have somehow managed to respond without sending our Constitution and laws into the ether.

What was most telling of all about today's decision is this: TTT - that rascally, pubic-hear prankstering, Scalia shit-sucking scold, read his dissent from the bench. As mostly everyone knows, the only thing Thomas does on the bench is sleep and grunt. He has never, in 15 years, read a dissent from the bench, but today felt sufficiently "provoked" by the majority's opinion to rouse himself to some dynasty-defending diatribe.

I don't know whether I wish I was there to see the experience or not. Thomas' blind rage is so powerful that a way should be found to harness it and send it over to Iraq. That rage, locked in mortal combat against insurgent stench, out to produce at least a draw. The outcome of today's epic battle, though, was much clearer: the President was slapped silly. Maybe that phrase is redundant, or even incorrect - no - he was slapped smartly. But just like no one could trust what came out of his father's lips, no one can be sure that a message smacked into his can be read, no matter how red.

MARSH MADNESS

Yesterday, the Supreme Court decided that Kansas' death penalty statute, which REQUIRES the imposition of the death penalty if the weight of the mitigating evidence is in equipoise with the weight of the aggravating evidence, is constitutional. The decision was 5-4. No points for guessing who voted how. And no points for guessing which judge who always claims his colleagues should keep their personal beliefs out of the decision-making process smudged his own personal beliefs all over his colleagues like so much of the sludge that he said in the recently-decided Rapanos case the "enlightened dictator" EPA has no business regulating.

Dahlia Lithwick is on the scene, describing the obscene:

Some initial thoughts on Kansas v. Marsh, which we can chew over at greater length tomorrow perhaps: This was a case out of the Kansas Supreme Court, involving that state's capital-sentencing scheme. As is true in many states, in death penalty cases, after the jurors find the defendant guilty beyond a reasonable doubt, they must weigh various statutory "aggravating factors" against "mitigating factors." The aggravating factors are some of the shocking aspects of the crime (was it done for money, or was it especially heinous), and the mitigating factors are pleas for mercy (the defendant was abused as a child). If the aggravators outweigh the mitigators, you die; if the mitigators outweigh the aggravators, you live, and—adds the Kansas statute—the tie goes to the hangman: If the aggravating and mitigating factors found by the jury are equal—say, three apiece—the defendant dies too (actually, it's not a head-count - three versus three - but rather the WEIGHT of the mitgating factors v. the weight of the aggravating factors - that controls. If there is only one mitigating factor, but there are four aggravating factors, equipoise can result if the one mitigating factor is especially strong and the four aggravating factors are relatively weaker).


The Kansas Supreme Court had decided that such a system was unconstitutional (it also found an independent state law basis for disposing of the case. Nonetheless, the Supreme Court couldn't resist telling the Kansas Supreme Court that it didn't interpret its own law properly, and thus the Supremes granted cert anyway - JUST to render the result it did). This morning the Supreme Court disagreed, holding that such a system does not violate the prohibition on "cruel and unusual punishment" set out in the Eighth Amendment. In a 5-4 opinion authored by Justice Clarence Thomas, the court explained why:

The courts' precedents, specifically its ruling in 1990's Walton v. Arizona, provide that so long as a jury is given the opportunity to consider all the mitigating evidence, there is no reason to micromanage a state's specific sentencing scheme. Jurors have the right to discretion, but there's no constitutional rule requiring how that discretion be allocated. (Walton simply said that if the aggravating evidence does not outweight the mitigating evidence, the death penalty cannot be imposed. It did not address the tiebreaker situation. Justice Thomas used tortured logic to make it look as though Walton implied that an equipoise situation mandated death. Well, at least his bloodlust was satisfied for a day).

In Thomas' view, Walton decides Marsh, full stop. This is a point disputed wholeheartedly by Justice John Paul Stevens in his dissent today. Stevens says Thomas is using a dissent in Walton to mischaracterize the plurality's decision on this issue.

Thomas goes through the requirements for a constitutional death-penalty statute set forth in the high court case law and says these baseline conditions are met in the Kansas statute. "In aggregate," he writes, "our precedents confer upon defendants the right to present sentencers with information relevant to the sentencing decision, and oblige sentencers to consider that information. The thrust of our mitigation jurisprudence ends here." (Actually, it doesn't; if mitigating evidence has less weight than aggravating evidence, the death penalty cannot be imposed. Moreover, what Thomas did not mention is that the "thrust" of the court's "aggravating" jurisprudence has more torque than the thrust of the mitigating jurisprudence; the Court has held that virtually any so-called "victim impact" statement can be admitted into evidence - effectively as aggravating evidence - under the theory that such evidence is "relevant" to the sentencing decision. Is it really relevant to a sentencing decision how a family member feels about the death of a loved one? Say the family member couldn't care less that his son was killed by someone charged with a capital crime who is about to be sentenced to death. Should this family member's apathetic statements dictate that the killer not be sentenced to death, assuming the remaining aggravating evidence carries greater weight than the remaining mitigating evidence? Say a family member lapsed into a deep, irreversible depression upon the son's death. Should this fact be dispositive of what the role of the death penalty is - a considered reflection of the COMMUNITY that a crime was so heinous that the offender deserves to die? The Court members who favor victim impact statements were - surprise - the same ones who voted in the majority in Marsh. In other words, they favor results that favor death, just as they, in Marsh, accused their opponents, out of "personal feelings," of favoring results that do not result in death. The hypocrisy astounds).

Thomas also goes out of his way to show that both the jurors and the state have ample opportunity to exercise their discretion; to bend and stretch to show mercy at any phase in the proceedings (never mind that he gives them a Long Dong Silver tongue lashing whenever they attempt to use same). He appears to be of the belief that italics have some linguistic superpower to confer a multiplicity of choices on the jurors who decide capital cases: "Imposition of the death penalty is an option (duh) … once convicted of capital murder, a defendant becomes eligible for the death penalty only if the State seeks a separate sentencing hearing (duh) … a jury is permitted to consider any evidence related to any mitigating circumstance (duh)."

Why, at almost every stage of this scheme, it seems, the jurors have choices to make. Italicized choices. So many choices, in fact, that Kansas kindly relieves the jury of that final choice: If it's really close, execution is automatic and the jury can go home. (With choices like that, the jury is relieved of having to, finally, think. No wonder Thomas loves the Kansas statute).

Italicization as empowerment: I like it.

Thomas goes on to dismiss Justice David Souter's dissenting argument—that death-penalty cases warrant special scrutiny because people, well, die—as both "irrelevant" and "beyond the scope of this opinion." (Of course, he does not dismiss Justice Scalia's diatribe against the "abolitionists" - a rejoinder to Justice Souter - as irrelevant). He writes that the dissenters' "general criticisms against the death penalty are ultimately a call for resolving all legal disputes in capital cases by adopting the outcome that makes the death penalty more difficult to impose," adding, "[t]his court, however, does not sit as a moral authority." (Thomas thereby acknowledges that the imposition of the death penalty involves a moral dimension. He merely believes that to not impose it is immoral).

Why sit as a moral authority when you can sit as a supercomputer?

But of course the real wackiness today comes with Justice Antonin Scalia's concurrence, which is nominally about the case but is actually a full-bore global assault on any claim ever made anywhere about the execution or exoneration of an innocent defendant. Nobody is immune to Scalia's nail-spitting this morning: He attacks the 1987 study cited by Souter whose "obsolescence began at the moment of publication"; the "exonerees" who are "paraded by various professors" (from whom else could the word professors be a slur?); and the dissent, which merely "parrots articles or reports that support its attack on the American criminal justice system." (Who knows what the phrase "American criminal justice system" means to Antonin Scalia? Scalia may be correct when he states that there have been no DOCUMENTED cases of a later-found-to-be innocent person having been executed, but his implicit confidence that this has never happened and never will happen, and that somehow what he believes to be the "stringent" procedural safeguards meant to prevent such a thing from happening (procedures he has found are not constitutionally required) have in fact done their job, are both misplaced. The overwhelming majority of executed defendants' cases have not been re-examined, for whatever reason; witnesses die, witnesses lie, events fade from memory, evidence is lost. Recreating a situation that itself was recreated (to improper effect many times) is not normally SUPPOSED to lead to a finding that an executed man was in fact innocent. Moreover, as a practical matter, a state or executing authority has no incetive to undertake such a recreation, and those evil criminal justice advocates are limited in their ability to take up even a fraction of the cases in which they believe STRONG evidence of actual innocence exists. Finally, Scalia's diatribe, in addition to being hypocritical, is a red herring. The dissenters are not claiming the death penalty should be abolished. They have merely argued that it should be imposed more uniformly, and that doing so would DECREASE the likelihood of an innocent person being executed. Some people might slip through the cracks of a system that allows for unmistakeable jury passion in sentencing black people to death to exist. In McClesky v. Kemp (1987), four dissenters argued that because such racial animus was so unmistakeable that black people were more likely to be executed in Georgia than white people by a ratio of 10-1, the majority told the dissenters, who argued Georgia's death penalty scheme was racially discriminatory and standardless - to screw off by saying discrimination must be proven in an individual case. This is perhaps the only time the "lust for death" judges really care about focusing on a defendant in particular - go figure. At any rate, these judges, by, as Harry Blackmun said, "allowing the states to execute whomever they please, however they please," have properly opened themselves up to Souter's criticism. Finally, does ANYONE believe that if one, ten, a THOUSAND innocent people were executed, Scalia would change his views on the death penalty one little bit? THIS is what it means to be a hypocrite, folks. Take the fact your opponents claim as true and see if your own views change if it in fact "becomes" true (i.e. are gay people born gay?) If your views don't change, you're not interested in facts - just in death, or bigotry, or both.)

Damn, where are my italics when I really need them?

Now, why, you may be wondering, does Justice Scalia who is—let's recall—on the winning side of this case, feel the need to unload with this scorched-earth diatribe? Why isn't he willing to grant even an inch? A "to be sure"? A nod to the poor representation some capital defendants receive in the trial courts, or the screw-ups that do in fact happen in crime labs? Why is he blogging his concurrence, rather than taking a step back and actually writing it with some reasoned regard for the arguments on the other side? (Psst. Because of his "personal opinions," i.e. hate).

Justice Souter's dissent in this case is itself hardly a scorcher. He mainly urges that since the Kansas statute mandates death even in "doubtful cases," it may be worth pushing the pause button. He suggests, again, that "death is different" because, to most of us, death really is different. This alone seems to be what sends Scalia over the edge.

So, a question: How is it that Scalia always manages to have it both ways? He and Thomas paint the law as this dispassionate machine, into which you enter the legal facts and then download the correct answers. This is not a "moral" process, they say. This is a coolly rational process that works best when meddlesome supreme court judges leave it alone. But then the force of his argument rests wholly on his increasingly hysterical cataloging of the crimes of the so-called "innocent" exonerees. He isn't dispassionate here; he's hardly even rational at points. How can he assert that death isn't different, when it clearly drives him to the brink of insanity? (Answer: to a thinking man, he can't).


Finally, one more hypocrisy: Scalia consistently urges us to disregard the whims of the international community when deciding U.S. law, then today asks the dissenters to hold their powder before "impugning" the American criminal justice system "before the world."

The whole world is watching, Ninny.

TORT DEFORM

Every citizen of Georgia ten and older should be forced to read the following article: two years ago, our state Legislature, that convenes in a gold-domed capitol full of fool's gold legislators, passed a series of tort deformed measures that, among other things, capped the damages amounts that could be awarded by juries in medical malpractice cases (you know, because "OB/GYNs weren't able to practice their love with women anymore because they couldn't afford the high cost of malpractice insurance generated by all of those frivolous lawsuits. Of course, we all know that these bumpkin OB/GYN's were all top-tier doctors who, were they not constantly inundated with such friviolous lawsuits (which were by definition not friviolous, because the verdicts were upheld on appeal, and which were also few in amount, and which barely contributed to a rise in insurance premiums), perfectly capable of purchasing said insurance. After all,the fact that their (in many cases) poor clientele could not afford insurance of their own and could not see these physicians (and thus could not make them wealthy enough to afford the insurance) had nothing to do with why the one OB/GYN in one out of Georgia's170-odd counties was going out of business - nor did the fact that the one health insurance provider for that county sucked to high hell.

Anyhow, the legislature, having properly identified the bogeyman of frivolous lawsuits, passed a law (with the appropriate Orwellian name) capping the damages a Plaintiff could receive were he successful in the prosecution of a medical malpractice suit. The biggest medical malpractice carriers in Georgia PROMISED the Lege that if such legisation were passed, that, IMMEDIATELY (i.e. within the same day of passage), premiums for all physicians would be cut by 10%. The carriers made good on their promise once the legislation was passed. Talk about a bait and switch:

Tuesday, June 20, 2006
"Tort reform" not helping doctors in Georgia
Over the last two years, one of the issues conservatives have pushed the hardest at the state level (and Democrats have gone along) is "tort reform" -- rolling back the legal penalties and options available to consumers who are hurt by negligence.Medical malpractice awards are one of the favorite whipping boys of the corporate interests, and tightened caps on awards to patients for non-economic damages have been enacted in many states. One of the selling points -- and the way the "tort reform" lobby has gotten doctors on board -- has been by promising that capping malpractice awards will lower insurance rates for doctors.But an in-depth story by Greg Bluestein of the Associated Press looks at Georgia's experience with capping medical malpractice, and finds doctors aren't better off -- in fact, their insurance rates are getting worse:
Despite promises that rising medical malpractice insurance rates would be suppressed under new state laws, many of Georgia's insurers have hiked their premiums since the sweeping reforms took effect last year, according to an Associated Press analysis of state insurance records.Six of the state's top insurers of doctors and dentists have increased their liability rates -- in some cases, by more than a third -- since new restrictions on malpractice cases became law in February 2005, according to state Department of Insurance records obtained by the AP through an open records request.The reforms passed by the Georgia Legislature last year included a $350,000 limit on jury awards for malpractice victims' pain and suffering, tougher standards for expert witnesses in malpractice trials, and new incentives for patients to settle out of court.Doctors and hospitals contended the measures, dubbed "civil justice reform," would curb malpractice insurance rates and help lure more doctors to Georgia. Business lobbies, too, threw their weight behind the legislation because it encourages speedy out-of-court settlements and penalizes parties who make frivolous claims.But trial lawyers and patient advocacy groups argued that limiting damage awards puts an arbitrary price on a victim's life, and that the state's medical insurers have fostered a false crisis by driving up premiums in a market with little competition."Our worst fears have come true," said Allie Wall, the director of consumer group Georgia Watch, which vigorously opposed the new laws. "More than a year has gone by, yet Georgia doctors have not saved a penny on their insurance, as promised, and the insurance companies still raking in record profits."

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Why does this surprise anyone? We were told in 2004 by a certain demonized politician that "frivolous lawsuits" drove up the costs of doing medicine by at most 1%. What we were not told was how much the cost of frivolous lawsuits, standing alone, caused medical malpractice rates to rise, and now we know: because the rates rise independently of how many such lawsuits are filed or can be filed, and independently of whether damages are capped.

Think the bumpkin physicians will catch on to the fact that they are being fleeced? Don't bet on it. A prominent Macon, GA physician once testified in the well of the Georgia Capitol Dome that a woman who was a rape victim was incapable of becoming pregnant (guess why he did this) because, as he said, her "vaginal secretions hadn't had time to be adequaely prepared. Obviously this guy's mother's secretions weren't adequately prepared.

As P.T. Barnum might have said in another life, "No one ever went broke underestimating the haste of the American public," or in this case, a supposedly inteligent public professional class that insists upon voting against its interests (it's not just poor people, George Will, who do this - Republicans have so demonized common sense that they've gotten everyone to wage war on it. So next time you hear a Georgia doctor give you the sob story about how a "frivolous" lawsuit put him out of business, hold the doctor to his oath, and don't let him lie to you by telling you that a non-reason is responsible for his woe. After all, to lie is harmful, and a doctor's oath requires that he first do no harm. And not too long ago, a legislature's silent oath required that he first do no smarm.

BATTLESTAR UPDATE

I promised myself - er, you - that I'd eventually post some more about Battlestar Galactica. The first season consists of 11 episodes (the miniseries itself, not officially part of the first season, was the equivalent of four episodes; the second season, which ended in March, contained 20 episodes. The third season begins in October. I just finished viewing episode #11 of season #1 proper).

Many times, we take things to our heart - and take for granted that they are great - simply because they have been AROUND for so long - and have provided no small amount of pleasure to us - that we cannot imagine what things would be like without them. This phenomenon explains, for example, the popularity of Eva Peron, of Yellowstone National Park, and the blow job. On any given day, a person may not be perfectly fellated; a citizen may not have had a picture-perfect encounter with Evita; and a citizen may have been cripplied by a Ski-Doo while he was soaking in the once verdant beauty of El Capitan - BUT, all the same, even the people who have encountered the imperfect experiences have an affinity for the general article in question - the location, the person, or the act - an affinity based upon that article's having served as the equivalent of comfort food - that when a potential newcomer comfort food arrives on the scene, it will be viewed with hostility.

For me, Star Trek is the ultimate in comfort food. It has been a part of my life since I was eight. It's provided a tremendous amount of pleasure to me. To paraphrase Roger Ebert's famous remark about E.T., "Star Trek is the kind of TV Show/movie you can grow old with. It won't disappoint you, and it won't let you down." The "comfort" aspect of Star Trek is especially worth emphasizing to me: on some days, more than I can remember or can care to, Star Trek was the ONLY thing that brought me any happiness at all. Thus, my affinity for this show/phenomenon, which has consisted of some fine drama over the years (and some misfires) is so strong that I even put off watching Battlestar for a year.....

More later - on the substance of the new show, and how there's a new comfort food on the menu.

DEAF-CON FUN

The "Onward Christian Soldiers" brigade that has infested our Armed Forces, by shoving Jesus onto the battlefields and into the academies, has scored a genuine coup de grace (well, not quite a coup de grace - Christian soldiers always can keep marching).

A recent Pentagon manual released to the public reveals that the Pentagon still considers homosexuality a mental disorder. The American Psychological Association abandoned this position in the early 1970's, as did most organizations save for the Eagle Forum and Focus on the Family.

I can understand why the military has classified gays as "disordered." After all, it was no less than that staunchest of Republican military supporters, Barry Goldwater himself, who said that, "I don't care if you're straight, as long as you can shoot straight."

But putting aside the force of history that the military has on its side with respect to this issue, a puzzlement remains. In 1993, as many recall, Bill Clinton attempted to let gay servicemen and servicewomen openly serve in the military. This initiative, of course, was shut down by Republicans who knew what havoc such same-sex arrangements could wreak; after all, their multiple deferments had then and continue today to give them superior knowledge of military expertise.

Of course, the "compromise" that was reached with respect to this issue was "Don't Ask, Don't Tell" (a policy that, in the mid 1990's, was upheld as constitutional by J. Harvie Wilkinson of the 4th Circuit. The challenge was brought by a gay organization, but conservatives wanted Wilkinson to strike down the arrangement altogether. So tempted to use the "a" word here).

I'm not an expert vis a vis what conditions can serve to disqualify an individual from military service, but back in the days of Vietnam, as Rush Limbaugh could tell you, having a pilonidal cyst (ingrown, removable butt hair) and a "bum knee" could easily get you out of service. More recently, public shock was on display when it was revealed that the military had duped a 16 year-old autistic child into signing up for Iraq service. Mental disorders, therefore, it is a pretty safe bet to say, have been found as disqualifying conditions over the years. (If I am incorrect about this, after having consulted a blog written by someone who is an expert in military matters, I will correct the mistake).

And yet, as we all know, gay people - "disordered" people - are serving in the military, which most certainly does not, in deciding whom to exclude from service, distinguish between those conditions that are readily discernible and those that are not.

So, the Pentagon wants to stigmatize gay people by preventing them from coming out, and by saying that they are disordered. Such policies, of course, cannot be reconciled with allowing gay people (wittingly or not) to serve in the first place; if other disordered people can't serve, they can't either, right?

But I think I have bridged the paradox here. The desire to stigmatize and to label gays as "disordered" is DESIGNED to get gay servicemen to come out precisely SO they can be fired. After all, it is understandable that someone would want to be fired from a job when that job makes you fear for your life, exposes you to constant ridicule, and the constant threat of physical violence, FROM YOUR OWN "people?" The very fact that a gay person would react to such ridicule in such a logical manner proves he is not disordered. I know what you're thinking. I'm getting all "Catch-22" on you ("I'm too insane to go on any more missions"; "If you say that, then you recognize the danger of the missions, and recognizing that danger is evidence of sanity; therefore, you are sane and must fly.") I'm not. Here's the difference: if you are gay, evidence of either sanity OR insanity will get you fired, without your ever having said anything about whether you were sane in the first place. Why? Because the Pentagon has already done the labeling - and the resulting sealing of your fate - for you. This is not so much, in terms of military movie titles, "Catch 22" as it is "No Way Out."

CRUCIFYING MANKIND

From 1876-1892, the U.S. Presidential elections were decidedly lackluster affairs. (The 1876 Hayes-Tilden election is a possible exception, but only because it became interesting, as did the 2000 election, after election day ended, when the election was INDISPUTABLY stolen from Samuel Tilden). The elections of 1880, 1884, 1888 and 1892 were all rather close in terms of popular and electoral votes, featured unmemorable candidates and unmemorable characters, and low turnout rates.

But then came 1896. At the Democratic convention in Chicago (back then, conventions were held to actually DECIDE who was to be the nominee, as opposed to coronate a pre-selected one), no one knew who was to be the nominee when the convention began. A young, silver (no, not brown)-tongued orator (and religious zealot) named William Jennings Bryan was one of the last potential nominees to speak. He enthralled the audience with perhaps the most famous line ever uttered at a political convention.

A hot issue in 1896 was whether to allow coinage of silver such that 16 pieces of a certain weight of silver would be the monetary equivalent of one piece of a pre-defined weight of gold. The Republicans - then the party of the rich as well, hated this idea, viewing silver as "funny money" whose coinage would lead to inflation and to other countries' viewing the dollar with suspicion (back then, we were on the gold standard; the dollar was backed by gold in case the dollar went belly-up). Democrats, however, felt that a supply of silver entering the market would provide economic relief to agrarian and other lower-income interests, and that such silver would give them "a currency of their own" to use as a bargaining tool. Republicans in the 1896 election, including the Republican nominee, William McKinley, were called "Goldbugs," while Democrats like Bryan were called "silverites."

The famous line: "You shall not press down upon the brow of labor this crown of thorns! You shall not crucify mankind upon a cross of gold!" The crowd went wild. Bryan instantly became the Democratic nominee.

The Bryan-McKinley contest is now viewed as the first modern Presidential election. Firstly, because Bryan, unlike any other candidate before him, traveled throughout the country giving stump speeches. Secondly, because McKinley, while still conducing a traditional "front porch" campaign (in which visitors would come to HIM), spent an ungodly sum of money essentially running a smear campaign against Bryan, threatening that if Bryan won, markets would collapse and industry would turn to ruin. McKinley outspent Bryan by about 10-1, aided by his brilliant fellow Ohioain politican strategist, Mark Hanna. The result: McKinley won a quasi-landslide, 296 electoral votes to 155. From 1900-1928, Republicans won every Presidential election save for the two won by Woodrow Wilson, and were in charge of Congress for most of those years. Republicans like to speak of the 1896 election, therefore, as a "realignment" election. Karl Rove, in particular, identified it as such, and claimed to model the 2000 election on the McKinley 1896 campaign. Naturally, when Bush "won" in 2000, Rove claimed realignment had occurred. Since then, he has continually blathered about how relalignment is still in place.

Today's New York Times thoroughly rips apart Rove's ridiculous argument:

During the 2000 presidential campaign, Karl Rove, the political mastermind George W. Bush called Boy Genius, was wont to draw an analogy with the election of 1896, in which the Republican William McKinley drubbed William Jennings Bryan. McKinley's election ushered in a 35-year era chiefly characterized by G.O.P. dominance; so, too, Rove argued, would Bush's hasten the progress toward an era of virtual one-party rule (note: a realignment cannot be said to be a realignment, as a matter of political analysis, until the 35-year-era is over. In other words, to have called the realignment a realignment as of 1896 would have been to employ a nonsequitur).

And Rove's bold prediction seemed plausible. Over time (6 years, not 35), the Republicans have increased their margin in Congress and reversed years of Democratic dominance in statehouses and State Legislatures (Repugs have not increased their # of governorships, though). The conservative columnist Fred Barnes declared in 2003 that Republicans had attained a state of dominance last seen in the 1920's, the end of the period McKinley ushered in. Realignment, he wrote, "has reached its entrenchment phase." (Bull. Barnes, as demonstrated above, does not know the definition of realignment. Moreover, by 2006, the ration of Republicans to Democrats in Congress was nowhere NEAR what it was when it was at its highest in the 35-year period).

Or has it? President Bush is now more unpopular than Bill Clinton was at any time in his tenure (not to mention more unpopular than any GOP President during the 35-year period except for Hoover, during whose Presidency the GOP dominance came to an end), while public approval of the G.O.P.-dominated Congress has plummeted to 23 percent, a level last seen in October 1994, the month before the Democrats suffered one of the most humiliating wipeouts in the history of Congressional elections (GOP Congressional approval never reached such a low point during the 35-year period)

Many political analysts now say that the Democrats have a real shot at retaking the House of Representatives and an outside chance of winning the Senate too. A great deal can happen between now and November, not to mention between now and 2008, but the Boy Genius certainly looks a lot less brilliant than he did a few years back. (He, unlike McKinley's strategist, Mark Hanna, also literally pulls EVERY Presidential string. McKinley, contrary to popular belief, was capable of thinking for himself. Hanna, while he ran a fear campaign, too, did not practice the kind of global wedge issue campaign that Rove needs to practice for Rove to retain power. Also, the Republicans of 1896 contained two distinct blocs of voters whose interests almost seemed to coincide: industrial interests and non-complete-religious-nutjob interests. Now, the corporate interests mesh with the Christian right interests. This unholy alliance requires that much more wedgifying - an incongruity which Hanna did not have to face, and thus, did not have to expend that much more fearmongering to maintain).

It is not hard to see why Rove fastened on McKinley as Bush's precursor. McKinley was an amiable governor (but not stupid and not politically immature or maladroit) around whom Mark Hanna, the Karl Rove of the day, could raise enormous sums of money from industrial and financial circles. But Rove also insisted on a more far-reaching parallel: with the Civil War a fading memory, the Republicans of 1896 could no longer run as the party of the Union and needed to forge a new politics.

McKinley, "the advance agent of prosperity," as he was known, offered himself as a tribune not only of the new business class but also of an emerging industrial society, as against Bryan's appeal to agrarian values and to the dispossessed. McKinley made Republicans the party of the future. And he brought new voting blocs to the Grand Old Party. Rove noted in a 2002 speech that McKinley "attempted deliberately to break with the Gilded Age politics" he had inherited by appealing to "Portuguese fishermen and Slovak coal miners and Serbian ironworkers," all of whom he made a very public point of receiving at his Ohio home in the course of his "front-porch campaign." (Yeah, but those Portuguese fisherman and Slovak coal miners were unenthused by restrictive immigration quotas the Republican party favored throughout the period; they wer also nonplussed about how their relatives still living in Portugal and Serbia were the "recipients" of enormously high tariffs slapped on goods those countries exported to the U.S. due to oppressive Republican tariff policies, policies that helped to disrupt key industries in Central and Eastern European nations and that helped to foster a sense that the U.S. was practicing hativism).

Rove postulated that Bush, like McKinley, had arrived at a moment when the old politics no longer applied and the new had yet to be formed (uh huh. Rove knew that the old politics still did apply but simply wanted to apply a new paint of wedge coat to them to make them look new). By offering himself as a pro-immigrant (key word being "offer" - look at how the House Republicans have admitted that the immigration bill is dead), pro-growth (read: ownership society, defined as a society where 1 % of the population owns 99% of the rest), "compassionate" conservative, he would attract the new voters of the day, including Hispanic immigrants (only 35% of whom voted for Bush, despite what the flawed exit polls revealed) as well as workers in the postindustrial economy (which ones? The -200,000 that got jobs during Bush's first term?), while at the same time mobilizing the party's conservative Christian base.

He would be the candidate of growth and the future while casting his rival, Al Gore, as the embodiment of an exhausted big-government credo. And this strategy worked: in 2000, Bush made (slight) gains among Hispanics (but not with Jews, blacks, or Asians) and carried 97 of the country's 100 fastest-growing counties (mostly all of those counties were tiny red state counties, and their growth was not reflective of industrialization per se). Of course, Gore won the popular vote (because he was able to attract at least as diverse a coalition of voters) and, by some accounts, the election.

And yet since that time, the Democrats have come to look like the party of the underprivileged and the highly educated and scarcely anyone else. (Well, it's not their fault that there are so many underprivileged people now, is it?)

So why doesn't 2006 recall the G.O.P.'s glory years? First of all, McKinley was facing a particularly hapless generation of Democrats (but then again, the Democrats McKinley's immediate predecessors faced weren't exactly unhapless themselves). A long period of deadlock had come to an end in the off-year election of 1894, when the failure of the incumbent Democrats to stem a financial panic led to a colossal electoral rout. In a shambles, the party took a decisive turn to the left in 1896 by choosing the populist Bryan, who ran again in 1900 and 1908. Today's Democrats are much closer to the mainstream, and the realignment has been correspondingly shallower. Over the last decade, as the political analyst Michael Barone observes, the national vote for president and for Congress has divided almost down the middle. Second, while McKinley had the good fortune to arrive at the dawn of a new era, Bush came along three decades after Republicans broke into the Democrats' solid South to establish a new majority. The historic tide may have already been ebbing.

And finally, George W. Bush is no William McKinley. The figure we meet in the biography by Lewis Gould, McKinley's great champion and Rove's teacher at the University of Texas, is a canny political veteran, more pragmatist than dogmatist. McKinley governed from the center the Democrats began to vacate in the Bryan era. The president not only made a show of mingling with workers but also appointed labor leaders to his cabinet and publicly supported the call for an eight-hour day for government employees. And for all his reputation as an imperialist who provoked a war with Spain, McKinley appears to have held out as long as he could against the rabid jingoism of the public and Congress, especially after the sinking of the Maine in Havana's harbor in February 1898. "What is remarkable," Gould concludes after reviewing the evidence, "is how long the president was able to obtain time for the conducting of peaceful diplomacy." (This much is true; McKinley was an actually affable, non-belligerent, somewhat thinking, listening,non-polarizing figure).

George W. Bush is, by contrast, a radical figure, a profoundly self-confident leader willing to stake all on his unshakable inner convictions — which is to say that this president made himself a hostage to fortune in a way that the coldly calculating McKinley never would have done. Thanks in no small part to the supreme self-assurance, the disdain for more cautious points of view, of the president and his inner circle, the administration has run aground on Iraq.

The war in Iraq is the biggest, but not the only, reason for the growing crisis. It is instructive that only one-third of mainline Protestants now say they approve of President Bush's performance (as opposed to one-half two years ago), according to a recent poll by the Pew Research Center for the People and the Press. A Congress that spends days arguing over the body of Terry Schiavo or the merits of a constitutional amendment to prohibit same-sex marriage does not feel like the embodiment of the future to more moderate or more secular Republicans. Rove and Bush have driven an already conservative party to the right. "The McKinley party was still plausibly the party of Lincoln," as the historian Sean Wilentz observes. "But Bush and Rove are the culmination of 30 years of realignment in which the Republicans became the party of the South the way the Democrats were in McKinley's day."

John McCain could reinvigorate the party should he succeed Bush, just as the equally magnetic Teddy Roosevelt did when he took office following McKinley's assassination in 1901. But even if that happens, McCain's party is likely to be very different from George W. Bush's. Walter Dean Burnham, the political scientist, defined political realignments as America's "surrogate for revolution." It may be that Karl Rove's revolution was one Americans did not want and have now begun to reject.
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Let's hope so. After all, McKinley won the Presidency in part due to Bryan's scary crucifixion imagery, however eloquent the language that inspired it. Bush, on the other hand, speaks of crucifixions - of Muslims, of Jews, of non-believers, in metaphorical and literal terms - not in the poetic, but in the vulgar, as a matter of routine course. Such language has caused scare and cheer among the foamies,as did Pat Buchanan's language in the 1992 RNC, and scare (if not the accordingly appropriate voting behavior) to everyone else, but remember: you can foam some of the voters all of the time, or foam all of the voters some of the time, but you can't scare all of them all of the time. Bryan found this out - as he, using doomsday religious rhetoric, lost three out of four elections in a period of twelve years. If I were Rove, THAT would be lesson from 1896 to be learned. How wonderful he hasn't learned it yet. Six years left for him to do so, and then,.... crucifixion time!

KNOCKDOWN

On Thursday, the Supreme Court issued its opinion in the case of Hudson v. Michigan. The case was argued this past winter. Justice O'Connor participated in oral argument. After she retired, the court was deadlocked, 4-4, as to how to dispose of the case. Once Strip Search Sammy Alito came on the court (and how!), re-argument was set. He asked a few questions. Clarence Thomas again exercised his right to remain silent (and asleep).

The case itself is a bit of a case study in the lengths parties will go to in order to have the Court decide upon a precise issue, and a case study in the length the Court will go to - when it chooses to - to decide more than it has been asked to.

A man by the name of Hudson was suspected of having cocaine in his home. The police, having obtained a warrant to search the premises, waited about three seconds, announced their presence, and then, without knocking, simply opened the (unlocked) door to the home. They then entered, seized the drugs, and placed Hudson under arrest. (A 2003 case, U.S. v. Banks, held that a ten-second waiting time before barging in to seize drugs is reasonable, thereby negatively implying that anything less is not. 2 cases decided in the mid '90's, Wilson v. Arkansas and Richards v. Wisconsin, held that failure by the police to knock and announce their presence, all other things being equal, weighs against a finding that a search/seizure was reasonable). The warrant that was "executed" in this case was an ordinary search warrant, as opposed to a "no-knock" warrant that many states permit the issuance of (such warrants allow police to enter a home without knocking and announcing if the police can demonstrate to the magistrate that probable cause exists that grave concerns for safety or destruction of evidence justify dispensing with the requirement of knocking and announcing).

Michigan does not permit the issuance of no-knock warrants. The trial court, applying the so-called "exclusionary rule" (which dictates that the product of an illegal search be excluded from evidence at a criminal trial) held that since the police failed to honor the knock and announce requirement without a compelling reason for doing so, the search violated the 4th Amendment, and hence, the fruits of the search had to be excluded from evidence. The Michigan Court of Appeals reversed. The Supreme Court of the U.S. upheld the Michigan Court of Appeals' decision.

Both parties stipulated that the police committed a 4th Amendment violation. (As Justice Breyer, in dissent, hinted, the state's willingness to do this was more than a little arrogant; it was as if the state was saying, "Yeah, we're not even going to try to say what we did was legal - just let us use the evidence, Supreme Court). A state more sensitive to common sense (not to mention commoners) might simply have argued that exigent circumstances existed such that the dispensation with the knock and announce requirement was justifiable. Had the state prevailed upon this argument (and Justice Breyer suggests it would have), the case would not have been before the Court, and there would have been nothing to have been supressed. The current Supreme Court majority has tacitly encouraged its preferred litigants to stipulate to unlawful behavior so that it can give its approval to such behavior. It has taken cases on certiorari in violation of its own rules for deciding what cases "win the cert lottery" (cases reflective of circuit splits, cases where federal law needs clarification, and so forth), taking cases solely to decide them against the respondents for the sake of changing the law in a particular area, especially in the statutory arena. (Justice Scalia has endlessly bleated that the Court should be reluctant to overrule itself in statutory cases, since, after all, Congress can effectively do such overruling itself, but the current majority has shown no hesitancy in overruling cases dependent upon statutory construction - just for the sake of it. Its record of doing this in employment discrimination law, for example, is so shameless that George H.W. Bush signed massive legislation in 1991 that legislatively overruled some activist butchery the Court committed in 1989. Of course, Scalia is allowed to complain that the Court should "be most willing to overrule itself in constitutional law," without being called on his jurisprudential hypocrisy).

At any rate, the Supreme Court ruled, 5-4, that evidence seized in violation of the knock and announce rule is not subject to the exclusionary rule. Alito, Roberts, Thomas and Scalia stated (not held, thankfully; the actual holding was Kennedy's concurrence, the narrowest grounds that supported the basic principle of law gleaned from the case) that the exclusionary rule NEVER applies to such evidence. Indeed, Scalia's entire opinion reeked of explicit and implicit disdain for the exclusionary rule. If he were the straight shooter (gay shooter?) he claims he is, he should have announced his belief outright that it should be abolished with respect to ALL 4th Amendment violations (i.e. failure to enter with a warrant, and so on). But no - the man who ripped Justice O'Connor apart 17 years ago in Webster v. Reproductive Health Services for refusing to overrule Roe v. Wade on the spot has now done an about face, preferring to ravish the 4th Amendment's protections bit by bit. Such are the workings of a man who knows that Justice Holmes' phrase "a page of history is worth a volume of logic" puts the lie to his "truths."

And what are the "truths" Scalia claims justifies abandoning the exclusionary rule in the knock-and-announce venue? (Kennedy explicitly stated that the exclusionary rule is still alive and well, that a knock and announce violation is a serious matter, and that if police now begin violating the rule indiscriminately, the case may have to be revisited).

The "truths" are not factual truths. Since the inception of the exclusionary rule as it applies to the states (Mapp v. Ohio, 1961), the Court has held that the exclusionary rule should not apply to a 4th Amendment violation ONLY when no deterrence value would be achieved by excluding the evidence. Thus,for example, if a station clerk's error led the police to search the wrong man's home in good faith, exclusion of the evidence so obtained would not encourage deterrence of 4th Amendment violations on the part of the police, since the police in this factual scenario did not intend to violate the rule in the first instance. A good-faith policeman is assumed to act as a "reasonable officer would and should in similar circumstances" (i.e. as compared to police who execute similar warrants but who were not given the false information); hence, no deterrence value is achieved by punishing him. An officer, however, who violates the 4th Amendment, is not a good-faith policeman and therefore does not act as a reasonable officer; hence deterrence value IS achieved by punishing him. Scalia's argument to the contrary basically consisted of speculation as to how a police officer will now act now that he can violate the 4th Amendment with impunity. According to Scalia, such an officer will not have an incentive to break the law - his incentives will be the same as they were if he wanted to break the law - protection of his safety and obtaining evidence. This argument misses the point: under the Court's precedents, the inquiry is whether the officer intends to violate/is capable of violating the rule if he knows that evidence will be excluded - NOT what incentive believes he will gain for violating it. The officer in the clerk hypothetical above cannot violate the 4th Amendment no matter how much he wants to because he cannot compel the clerk to make the accidental mistake. However, an officer who arrives at a suspect's doorstep has no shackles placed upon his intentions to violate the rule - and none placed upon his ability to do so. Therefore, the "no deterrence value" argument does not apply to this officer. Indeed, the only way the officer can be deterred (since his mind can dream up a way to violate the knock and announce requirement if for no other reason than to frighten a suspect in the hopes that the suspect may piss on the floor and that the piss will test positive for cocaine - so much for Justice Scalia's deliberately crabbed marble palace "incentive" psychoanalysis) is by excluding the evidence.

Not so, Nino says. 42 U.S.C. 1983 actions can be brought against such officers. Nino says that such trials (which almost are always unsuccessful simply because Plaintiffs cannot overcome the state's immunity arguments, and the reason they cannot overcome them is because of.... Justice Scalia) have - as fact - been shown to have deterrent value. He offers no empirical support. Of course, there is none. The few plaintiffs that have prevailed in such trials can only be afforded essentially monetary relief - and what kind of monetary relief are they going to get? Money representing the value of their cocaine?

Scalia then says that "citizen watchdog groups" have been effective (unfortunately, for him) in preventing knock-and-announce abuses. No evidence is cited. Scalia would be the first person alive to jump up and declare that such citizens have no standing to bring any kind of suit against police or the state for knock and announce violations. He then claims that police undergo more rigorous training now than in years past as to how to comply with the 4th Amendment. Ironic, then, that the number of 4th Amendment violations is higher now than in the good old days (perhaps 42 U.S.C. 1983 isn't working there, Nino?) At any rate, what he fails to mention is that this "training" consists primarily of instruction in how to barely (if at all) comply with 4th Amendment law, with the training featuring extensive lectures about the latest tip sheets on how to do this (tip sheets? Sorry.. I meant "judicial opinions") from Fat Tony Scalia, Sloppy Sammy Alito, John Robots, Slappy Thomas, and Tony "Mugwump" Kennedy. If that's training, I'll take "you're doing a heck of a job" incompetence.

But Scalia saves his best argument as to why police will be deterred from violating the knock and announce rule for last: according to him, police who violate the rule face discipline - even the threat of termination! Thus, they have a career incentive, you see, to follow the Constitution. We know this is true. See, e.g., the Bush Administration as an example of living proof of the fact that the following the Constitution is the equivalent of getting a work-for-life agreement out of the government.

But enough laughter. Let's turn to the police example specifically. Scalia's argument presumes that an officer's superiors are actually made aware of 4th Amendment violations by their subordinates, and that, once made aware, these superiors (now flush with evidence that will put people in jail) will react angrily and fire the police who nabbed the evidence (presumably after the trial, once the policeman has given the testimony needed to put the criminal -who, by the way, in this case, happened to be black) behind bars. As for the "being made aware" assumption, Scalia has made sure of the fact that superior officers and district attorneys need not burden themselves with having to be made aware of such violations, or of accusations of same. In Garcetti v. Ceballos, decided several weeks ago, the Court, with Scalia in the majority, held 5-4 that a D.A. who told his boss that a policeman who committed an improper search did not engage in protected speech activity even though the relevation was a matter of public concern. Thus, the Court held, such employees - employees who are the people most likely to know what a 4th Amendment violation is, and the only ones to care to report one - can be FIRED. The cop in this case was not fired. Yeah, his "career incentives" went down the drain, along with the piss from the golden shower that the L.A.P.D. took on Mr. Ceballos. Scalia can make stupidly disingenuous comments like "career incentive" precisely BECAUSE he knows - firsthand, shall we say, that they are not true.

So, the Court in Hudson failed to explain why it departed from decades-long precedent in abandoning the exclusionary rule. It billowed and bellowed out some smoke about the need to arrest criminals, to ensure police safety, and other generic "law and order" concerns that have never been found adequate to justify abandonment of the exclusionary rule. Scalia and his ilk claim to hate balancing tests as methods of legal analysis and rulemaking. But when he wants to abandon precedent to suit his convenience, the 4th Amendment somehow miraculously becomes subject to a "balancing test": the needs of law enforcement vs. the importance of not surprising someone in her nightclotes. The Framers, of course, hardly intended for this Amendment to be subject to a balancing test. And Scalia of all people should know that. After all, he has them on speed dial. Or maybe not. Maybe they've finally stopped talking to him. If so, pity that he hasn't taken the hint.

INFALLIBLY FALLIBLE

(In?)human bilge pump, cooler, heater, collector, regurgitator, pipe, broom and conductor Ann Coulter and her bilgette supporters claim that her (typically) anowretchtic recent remarks (in which she called four 9/11 widows who had the nerve to disagree with George Bush about something "enjoyers of their husbands' deaths, "griefparazzis," (what does that make her? A Nazirazzi?), and harpies who "may have been dumped by their husbands anyway), while crude, rude and as loose as Ann's stool (which consists of Karl Rove's refried beans), bear out a point (most people are able to make salient points in arguments not containing 99% ad hominem tripe and speculation, especially attorneys like Ann, but never mind. Hate means never having to say "I'm thinking!").


The point these people think they have is that certain people (libruls and libruls alone, because, by definition, librulism is a mental disorder, even though conservatives don't believe in mental disorders) have created a climate giving rise to a phenomenon known as the "infallibility of grief" (or as Ann calls it, "liberal infallibility." Ann's new book is about 400 pages long. Skip each usage of the word "liberal" and you'd have a pamphlet, not a book).

As one blogger who has come to Ann's defense describes it, "the infallibility of grief" is a tactic used by individuals who have experienced a tragedy in their lives to "silence" opposition by exploiting basic human decency.

An alleged example of the phenomenon at work, as related by Coulter: four widows of firefighters who were burned alive on Sept. 11th as they tried to rescue people voted for George Bush in 2000. These widows then became outspoken critics of the failure of our intelligence agencies to take whatever cautions might have prevented the attack. Actually, I'm not even sure what the widows spoke up about, and I don't want to open up another web page. What they spoke up about doesn't matter. The widows were instrumental in creating the "9/11" Commission, whose recommendations have been either ignored or not implented (despite promises to do same) by the Bush Administration.

So, what's Coulter's problem with these widows? To Coulter, Bush is infallible. To question the war and Bush's patriotism is "treason." The 9/11 Commission itself was an act of treason. Given her views, one should not be surprised that she claims, "as fact," that "she has never seen women enjoying their husbands' deaths so much." (This from a woman who cracked a truly tasteless joke about a man who had just died to his widow within seconds after the death. Ann is a big enough projector to seat the entire city of Los Angeles for a restored "Gone With the Wind" screening).

Let's say that Coulter didn't have these beliefs, though. Let's say, as she (sort of) claims, that she merely BELIEVES that Bush acted appropriately in that he took all necessary steps to prevent an attack on American soil. Ann, as someone with no job, has no other job than to convince people that her view is correct. So, what does she do when she encounters someone who disagrees with her? She simply calls them a "librul." A good day's work. But what does she - or anyone who believes the President acted appropriately - do when someone - i.e. one of the four widows - gets on the air and states, based on the information they've gathered from Congress and their own research (which, as far as anyone knows, is at least as qualitatively strong as Ann's is) that the President should have taken additional steps? She instinctively wants to smear such people as "libruls" as she does everyone else. But she is no fool. She knows that her usual smear job will not work on women who voted for Bush in 2000 and who come off credibly as national security hawks.

She has to do something to attack these women - it's in her nature. After all, an attack upon Bush is an attack upon her patriotism, which is in itself axiomatically infallible. She so believes in this infallibility that if by some miracle any challenge to it seeped into her brain, the brain would go Stepford-haywire. Annie can't go haywire. Too much hate left to monger. So, she says to all of the world, "Look at these women, exploiting their grief. We can't attack them." (Notice how she does not indicate who "we" is, but how all the same, the use of the word "we" implies that Ann is automatically in the right and that the natural order of things is to attack, as opposed to breathe, clean, cook, or work.) "They're exploiting this tragedy by attacking President Bush, and we can't respond to their arguments because we'll look callous if we do so. They have effectively silenced us. Thus, they have used their grief to render themselves infallible." Hence, the "infallibility of grief" doctrine is born.

Coulter's logic itself is an attack upon the widows and their substantive comments. The logic also presumes that silence is a rather easy thing to achieve: just griefarazzi it up, and a few talking heads will not respond to you, and hence all legitimate criticism will be silenced. This is bullshit. To be TRULY silenced involves those who have real power in this world taking actions that render the would-be legitimate criticizers' arguments simultaneously moot, publicly unattractive, and politically untenable, and then some. Put another way, Bush, by not giving a shit about the fact that his own CIA and FBI couldn't have cared less about the threat of terrorism, effectively made sure that the Ann Coulters of the world were anything BUT silenced. If anyone came close to being ACTUALLY "silenced," it was the widows, who advocated for change not out of the desire to win an argument or blind partisanship. "Silencing" someone means depriving him of a voice in our national discourse, of a say in our public policy - it does NOT mean making him "fearful" of displaying his "patriotism" toward a Sept. 11th widow out of losing an argument. Not only did Bush not listen to the Commission's advice, he and the Ann Coulter types directly attacked the Commission's recommendations and thus directly attacked the widows. Coulter directly attacked the widows before making the "death fellating" arguments by suggesting their ideas were preposterous. So, again, who is the "we" that is being silenced, and how are they being silenced? If you claim the truth is on your side, then if you do not speak it, YOU are silencing yourself, regardless of who your claimed adversary is. The widows have not restricted anyone's speech (nor can they); they have not cut off interviews or walked away from them.

Perhaps Coulter thinks "we" are being silenced because the widows, when they speak about Sept. 11th and its aftermath, make reference to their own husands' death. So what. Republicans who think Bush made all the right moves before Sept. 11th make gratuitous references to how he is a hero. In even the most honest debate, points extraneous to the main point can be expected to be made by both sides. Such points do not "silence" the opposition unless the opposition CLAIMS they do as a feeble attempt to disguise the fact that he is losing an argument.

And I agree with Matt Lauer. When Coulter told him, "The libruls never give us someone we can respond to," he said, "Well, you're responding, aren't you?" She didn't answer, nor could she. She simply said, "Are you getting testy with me?" (As if the right to engage in rough-and-tumble debate is hers alone; she already holds the patent on verbal battery and brutalization. Some would say she has "silenced" liberals by essentially declaring that they are non-human and thus non-debatable, but one must be consistent and reject this argument. In a society where the government (not yet, anyway) does not restrict what the punditocracy can say, one silences only oneself).

I think it's pretty clear what Ann is getting at by being "silenced": she is upset about the fact that some people (not her, of course) are reluctant to spew puke piles of hate at the 9/11 widows, hate that has nothing to do with the merits of any argument. This reluctancy, Coulter believes, stems from these people's simple respect for other fellow human beings. To Ann, FAILURE to spew pea soup vomit hate is disrespectful. She has done it already to the 9/11 widows, and would be glad to do it to their face. When she says others are being silenced, all she means is that she's steamend that others who make the same pro-Bush arguments as she does would not engage in the same acts of spewing.

Ann, as someone who is no fan of the First Amendment, and as someone who says libruls should be silenced, surely you should know that retstraining from spewing hate and being ACTUALLY silenced is akin to the difference between eating like a healthy human being and following the Annorexia diet.

WANTED: A THIRD LEG

If you're Bill Frist, the Senate's one-stop bigotry shop, what do you do? Last week, you watched the Gay Hate Amendment go down in flames (60 votes were needed to bring the measure to a floor vote and the Repugs could only scrounge up 49. I can just picture the White House spin now. "The people who voted against hate are activist lawmakers who ignore the will of the people and are legislating from the legislature." Or some shit like that.) And then, a day later, June 8th, the Senate proposition to repeal the estate tax (remember, Senator Byrd's Sunset Provision is still in place) came up for cloture. Only 57 votes were scrounged up; the proposition was filibustered, leaving Frist to whine like the cat-killing, cadaverous, mewling baby that he is, "This death tax is unfair!" It is. Not to the people who die - they don't have to pay it. Not to family farms - not one in recorded modern history has suffered the ignominious financial consequences Republicans claimed they have on account of having to pay the tax. It is unfair to the rest of the country. The tax has been around for roughly 100 years. It is now at its lowest level ever, just as taxation of the wealthiest in America is more or less at its lowest level since the income tax was instituted. But, because we are engaged in a war in which we cannot afford, and are running up the national debt to an extent that would make Ronald Raygun blush if he could retain the power of memory for a few seconds, it's unfair, you see, that the richest of the rich be made to pay taxes like everyone else does. Never mind that the estate tax, as it stands now, is at its lowest level in modern history, and is only imposed on estates of significant wealth, and that the elimination of the tax would destroy incentives for charitable giving (Republicans claim that charitable giving makes government programs doing such work unneecssary). No - we must repeal this tax in its entirety - because the upward redistribution of wealth, which this gang sees as rewarding moral virtue - as opposed to seeing as leading to creation of wealth for all - must be encouraged.

So - two down - the gay hate amendment and the estate tax repeal - and one to go. We all know what that one is: flag burning! Ever read the preamble to a piece of legislation? The preamble almost always states something along the lines of "Congress has found that (say, in the case of a federal anti-discrimination law) employees have been victims of discrimination based on race," or (on the case of an antitrust law), "Congress has found that the joining together of large corporate enterprises in recent years has been injurious to the public welfate." The preambles, in other words, set a factual predicate for the legislation to follow, by telling us that specific facts/instances indicative of a problem warrant a legislative response. The flag-burning legislation preamble - what I wouldn't give to be a fly on the wall to be at the drafters' conference for that one! ANYONE can draft it, because there have been precisely ZERO instances of the so-called problem - flag-burning - that warrant outlawing this type of activity, despite, let's face it, the government all but cajoling and stopping short of paying citizens to burn flags by dint of its actions in the past six years. I, like most sane people, believe that legislation, as a general matter, should not be passed unless such passage is in response to a particular public need. Usually, such need derives from human activity that, if left unchecked or unregulated, can be injurious in some way. Sure, sometimes "pre-emptive" legislation is passed - legislation that attempts to anticipate wrongdoing before it has started so as to provide, say, for an efficient system of administration of a certain type of administrative scheme - such as a motor vehicle code. Such codes, though, are needed to protect public safety. A flag-burning amendment is not proper pre-emptive legislation - it does not attempt to anticipate wrongdoing in an effort to provide for an efficient system of administration; it does not attempt to predict the future of criminal wrongdoing in an attempt to stay one step ahead of it; it does not even attempt to stay "on the cutting edge" of morals legislation by predicting what alleged activities human flotsam are likely to engage in. No, such an amendment is designed for one purpose only: to make a point - to say "those who support this legislation are patriots and those who don't are scum." Criminal laws are not enacted so as to give sanction to such purposes. Fristula and company know that this third leg of their wedge trifecta will fail, and I can't wait until it does.

It's soon time for triple turd score, guys. Karl Rove, go back to the barn, and roll in some shit some more until you find some better wedge issues.

SUICIDERS, PART 2

WASHINGTON (Reuters) - The suicides of three Arab detainees at Guantanamo ignited new calls on Sunday for the United States to shut down the prison camp but a U.S. diplomat called their hangings a "good PR move" to gain attention.

Two Saudis and a Yemeni hanged themselves with clothes and bedsheets in maximum security cells on Saturday -- the first prisoners to die at Guantanamo since the United States began sending suspected al Qaeda and Taliban captives there in 2002.

Prisoner advocates blamed the Bush administration for the deaths and said the men were held under conditions that "for all intents and purposes had already taken their lives." Several countries urged Washington to shut the camp down.

"Their blood is on the hands of the Bush regime and their deaths will fuel the anger of the global Muslim community," said Cageprisoners.com, a Web site that draws attention to the cases of detained Muslims.
Saudi Arabia's Interior Ministry identified the two Saudis as Manei al-Otaibi and Yasser al-Zahrani but gave no further details.

Pentagon documents show Zahrani was 21, meaning he was sent to Guantanamo as a teenager.

Saudi Arabia, a staunch U.S. ally, asked for the return of the bodies, and said it was stepping up efforts to repatriate more than 100 Saudis held at the prison so they could be tried "based on our laws and regulations."
(To our "ally," I say this: take these people. They almost certainly are not, in fact, enemy combatants, so you can have your vermin anyway. If they are enemy combatants, or are discovered to be, we know you'll do nothing to them, and then maybe even some of the brain-dead Republicans will realize that, when you decide to do nothing with them, you're about as helpful an ally as fecal sludge, and will demand the end of the days of the House of Saud-House of Bush dynasty).

A Yemeni rights group, the National Organization for Defending Rights and Freedoms, said it could not accept U.S. accounts of the deaths without an impartial, international probe. ("Impartial" - what does that mean to these people? When the word "Mohammed" is mentioned by a non-Muslim in public, these people become so unhinged that they start resorting to killing each other. If you want others to respect your religion, you must allow for it to be held open to public scrutiny. These people won't do this, and they won't, as a corollary, abide by the results of an impartial investigation.

The prison on the U.S. naval base in Guantanamo Bay, Cuba, holds about 460 foreigners captured during the U.S.-led war to oust al Qaeda from

'BIG QUESTION MARK'
Colleen Graffy, U.S. deputy assistant secretary of state for public diplomacy, told the BBC World Service the suicides were a "good PR move to draw attention."

"It does sound that this is part of a strategy in that they don't value their own life and they certainly don't value ours and they use suicide bombings as a tactic to further their Jihadi cause," she said. (Perhaps - IF we knew these people were enemy combatants - which they probably are not. Wouldn't it be terrific if, in the war on terror, we actually tried fighting terrorists? Wouldn't it be terrific if, in Iraq, our policy was not to train people who do not want to be trained, not to build permanent embassies the size of the Vatican, not to install one puppet Prime Minister after another, but to actually find AND kill the terrorists who have come to the region because we went there? God forbid!)

Graffy coordinates efforts with Karen Hughes, a former top aide to
George W. Bush who is now a special envoy charged with trying to improve the U.S. image abroad, especially in Islamic countries. (And the brain-dead Hughes wonders why she hasn't been asked a single friendly question).

VALEDICTORY

Graduation season is upon us, and with it, comes the blather of politicians offering commencement addresses. The other day, Dick Cheney glowered to LSU students about their responsibility to ensure that the next generation of Americans continues to bomb the world into submission. Stephen Colbert informed the graduates of a small Illinois college: "The whole world is waiting for you.... with a club." John Roberts stressed, to the graduating class of Georgetown, the importance of joining the pederasty (or was it clergy? Who knows? The pope, in recently touring Auschwitz, concluded that the cardinal crime of the Holocaust, was that it was a sin against Christianity. And the man wonders why he is called a Nazi).

Great speeches, all, to be sure, but the remarks that have stirred me the most from this speech season come not from the bigotocracy or from the punditocracy but from plain-spoken, bullshit-detector always-fully charged Bill Moyers, who recently gave a commencement adddress at Hamilton College in upstate New York, the end of which I have reproduced here:

Let me tell you one of my favorite stories. I read it a long time ago and it's stayed with me. There was a man named Shalom Aleicheim. He was one of the accursed of the Earth. Every misfortune imaginable befell him. He lost his wife, his children neglected him, his house burned down, his job disappeared--everything he touched turned to dust. Yet through all this Shalom kept returning good for evil everywhere he could until he died. When the angels heard he was arriving at Heaven's gate, they hurried down to greet him. Even the Lord was there, so great was this man's fame for goodness. It was the custom in Heaven that every newcomer was interrogated by the prosecuting angel, to assure that all trespasses on Earth had been atoned. But when Shalom reached those gates, the prosecuting angel arose, and for the first time in the memory of Heaven, said, "There are no charges."

Then the angel for the defense arose and rehearsed all the hardships this man had endured and recounted how in all the difficult circumstances of his life he had remained true to himself and returned good for evil.
When the angel was finished, the Lord said, "Not since Job himself have we heard of a life such as this one." And then, turning to Shalom, he said, "Ask, and it shall be given to you."

The old man raised his eyes and said, "Well, if I could start every day with a hot buttered roll..." And at that the Lord and all the angels wept, at the preciousness of what he was asking for, at the beauty of simple things : a buttered roll, a clean bed, a beautiful summer day, someone to love and be loved by. These supply joy and meaning on this earthly journey.

So I brought this with me. It's an ordinary breakfast roll, perhaps one like Shalom asked for. I brought it because it drives home the last thing I want to say to you. Bread is the great re-enforcer of the reality principle. Bread is life. But if you're like me you have a thousand and more times repeated the ordinary experience of eating bread without a thought for the process that brings it to your table. The reality is physical: I need this bread to live. But the reality is also social: I need others to provide the bread. I depend for bread on hundreds of people I don't know and will never meet. If they fail me, I go hungry. If I offer them nothing of value in exchange for their loaf, I betray them. The people who grow the wheat, process and store the grain, and transport it from farm to city; who bake it, package it, and market it--these people and I are bound together in an intricate reciprocal bargain. We exchange value.

This reciprocity sustains us. If you doubt it, look around you. Hamilton College was raised here by people before your time, people you'll never know, who were nonetheless thinking of you before you were born. You have received what they built and bequeathed, and in your time you will give something back. That's the deal. On and on it goes, from generation to generation.

Civilization sustains and supports us. The core of its value is bread. But bread is its great metaphor. All my life I've prayed the Lord's Prayer, and I've never prayed, "Give me this day my daily bread." It is always, "Give us this day our daily bread." Bread and life are shared realities. They do not happen in isolation. Civilization is an unnatural act. We have to make it happen, you and I, together with all the other strangers. And because we and strangers have to agree on the difference between a horse thief and a horse trader, the distinction is ethical. Without it, a society becomes a war against all, and a market for the wolves becomes a slaughter for the lambs. My generation hasn't done the best job at honoring this ethical bargain, and our failure explains the mess we're handing over to you. You may be our last chance to get it right. So good luck, Godspeed, enjoy these last few hours together, and don't forget to pass the bread.
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Yes, perhaps this are just, as Admiral Kirk told his son David in Star Trek II, "just words." But as David replied, "but good words.... that's where ideas begin..."

NEEEEEEEEY!

Now that Tom DeHate(R-Sack of Something So Repellent There's No Word For It) has departed the House of Representatives (having done so in grand fashion a few days ago, right after giving a valedictory address to the audacity of hate - er, the importance of partisanship), and now that Randy ("The Commodian") Cunnigham is sitting (well, hopefully not sitting) in a federal penitentiary, the House Republican most clearly marked with an "X" on his back is Bob Ney of Ohio.

Ney is a typical House Republican - he thinks "morals" consist of hating gays and mentioning Jesus as much as possible without knowing a thing about him... Big surprise. He's up for re-election, and has acused his opponent, Zach Space, of, not caring about traditional "Ohio values" (hatred and bigotry, I guess) because the opponent appeared.... on an "ultra" liberal talk show. (That does it, I'm leaving right now!) No surprise there, either - the guy can't think and he's into "family values" (he only sodomizes his WIFE - under a gentle Stepford whisper of protest, of course).

What is unusual about Ney is how the pressure has finally gotten to him. So many Republicans seem to never short-circuit - even when theiir poll numbers take a dive, even when they know they're going to be indicted - and even before the days Diebold started fixing elections and before there was no wedge Karl Rove coudn't drive (memo to Karl: find a new set of wedge issues. Gay marriage, flag burning and the estate tax have been flogged so badly some Republicans appeared to have grown a brain as they voted against out of lock/goosetep with the party in the past few weeks on these issues. Yes, you can fool all of the sheeple all of the time, but their representatives may go so far as to refuse to chew on the same pus-ridden cud time after time if doing so means they'll lose a race and thus their ability to sheeple-ize. Suggested new wedge issue: take a line from Ann Coukter, and have Congress debate a "we should be allowed to ridicule the 9/11 widows bill, because the widows hate us for our freedom." This bill hits the themes of terra, 9/11 amd irrational hatemongering that are your calling card. It's like a shit-stained trifecta. Go for it. Oh, and get that "9/11 Non-Widows For Truth" (i.e. people who never questioned anything after the attacks happened) ready and mobilized.

Anyway, back to Ney. Here's the story:

Under pressure, Ney lashes out at press coverage
By GEORGE E. CONDON JR., Copley Washington Bureau Chief
6/9/06
WASHINGTON – Rep. Bob Ney, under enormous political and legal pressure for more than a year, has lashed out against press coverage of his plight, voicing great displeasure over stories focusing on the controversial golfing trip to Scotland that threatens his grip on the congressional seat he has held for six terms.
In two rambling e-mails sent from his Blackberry device to Copley News Service reporter Paul Krawzak, the Republican congressman from Ohio ridiculed the veteran reporter, challenging his ethics and mocking the 5-foot-7-inch Krawzak as “big man.”
The trigger for Ney’s rage was Krawzak’s coverage, carried in The Times-Reporter and its sister Copley Ohio newspapers, The Repository and The Independent, of the trial of White House procurement official David H. Safavian (who worked for GSA during the time of a case I handled for a GSA employee; I even have some emails to and from this guy that are part of the case). Safavian is accused of lying and obstructing the criminal investigation of the once-powerful and now-discredited Republican lobbyist Jack Abramoff.
Testimony by Ney’s former chief of staff, Neil Volz, on May 30 provided some new details on the 2002 Scotland golfing trip that has been the cause of much of Ney’s difficulties. That trip was paid for by Abramoff and included Volz, Ney and several other political insiders.
That story was written by Krawzak late in the evening and the reporter did not call Ney for his reaction to the testimony (nor was he required to). The next day, when Ney’s office complained about that, Krawzak explained the lateness and press of deadline but acknowledged it would have been better to have sought Ney’s comment.
That acknowledgment was not enough for Ney (it never is), who four days later – on June 3 – had his thumbs flying over the tiny keyboard of his Blackberry, with punctuation and spelling often yielding to his evident anger.
“Let me tell you paul-last week you did not call us for comment ‘you were under deadline,’” began Ney, who then reflected his belief that his critics just keep recycling the same story about the golf trip. “Print the same story-change it to reprint the same story-people in new philly – d’s and r’s call it ‘elk’s politics.’”
He concluded his message with “Go for it – harass my wife and daughter a little bit more big man – maybe I will take out an add talking about your ethics.” The reference to his wife and daughter reflected his continuing anger that earlier this year another Copley News Service reporter, based in Ohio, interviewed his neighbors and knocked on his door seeking comment from his wife. (Love that Republican definition of harassment - it's two words when it applies to one of their bent-over pages, but when someone knocks on the door of one of their family members, it's "harassment.")
Lest there be any doubt about either his anger or his desire to vent that anger, the congressman sent a separate note from his Blackberry later in the day. “Please-please-print this paul-you don’t care about ohio-i am sick of your crap. You are a d c person who couldn’t find ohio unless we gave you a map. You don’t give two shoots about our people.”
Increasingly, Ney has complained that reporters based in Washington do not understand the dynamics of Ney’s district, explaining his jab at Krawzak as “a d c person.” (The "dynamics" of the district, as represented by Ney, include the same pay and play K Street bullshit that IS DC. What's the difference?)
Brian J. Walsh, Ney’s communications director, acknowledged Thursday that the congressman is frustrated at the news coverage he has received.
Walsh said that Ney continues to work hard on(demonizing). issues such as housing and immigration and energy

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two things Republicans have learned to do over the last 40 years that have served them tremendously well:

1. Avoid debating your actual opponent (this assumes, obviously, that you've already made a conscious effort - for a Republican) to avoid debating issues of substance, which, if you're a Republican, is a given. Witness the Bilbray v. Busby race, where Republicans took a verbal gaffe committed by Francine Busby that they knew had nothing to do with anything and made it seem as if the gaffe implied that Busby was encouraging ILLEGAL ALIENS TO VOTE WITHOUT DOCUMENTATION! These guys can't win elections any other way. They do the non-thinking for you. Call their ads a a public disservice announcement. And why, oh why, can't Democrats, for once, either confront these people head-on about the fact they are bigots and scare-mongers, or for just one goddamned election and purposes of that election only, pretend to AGREE (sort of - you'll see what I mean) with the biggies on things like I-llegal immigration -JUST TO SEE if parallel wedge-issuing will get them some votes! They can, once elected, of course, abandon all pretense about agreement and address the real problems facing their constituents. For those of you saying this is "unprincipled," you're missing something that you claim to recognize: the electorate is brain dead. The only way in the foreseeable future to restore cranial health is to defeat a Republican's opportunity to create a (workable) wedge - turn by turn - using some creativity. I'm not saying this means Democrats should go out and support gay marriage bans. How about, though, at the LEAST, doing something like at least RECOGNIZING the bigotry of your constituents and saying, "My opponent is only trying to flame it. He doesn't actually care about who he hurts in this process. I'm looking for a way to solve this problem that will make people STILL WANT TO LIVE HERE!! How about THAT? How about, if, say, you really feel we need to expel some illegals, saying, "I think we need to do this because of legitimate reasons x, y and z." My opponent thinks we need to do it because he's a bigot, pure and simple, because if 12 million Northern white constipated Europeans suddenly "invaded" America, he wouldn't have a damn thing to say about it!" THERE'S A THOUGHT - a thought! But NO! Democrats who want to win in bigoted districts are still laboring under the impression that they'll win using the same musty bag of tricks. Perhaps they can win is by being hard-nosed but without the screeching.

2. Create an opponent to run against - i.e. the press. Ever since Richard Nixon's extraodinarily nasty 1962 concession speech, in which he treated people who had spent thousands of hours working for him to am embarrassing spectable of self-pity that concluded with a harangue against the press, punctuated by the words, "You [the press] won't have Dick Nixon to kick around anymore!", Republicans have always tried running against "the press," as Ney has chosen to do so here. Running against "the press" is a lot easier than running against a candidate, because the press does not put out position papers and does not debate you, and is an easy figure of ridicule. And how can the press respond to the campaign against it? It can't. The opponent can't either. Democrats literally need to call Republicans day and night on this strategy. Their campaign consultants need to call the other side every day and ask, "Who is your candidate running against today? Me or the press?" "If the press, what's the press's position on social security reform? The liberal press? The conservative press? Which press' side does your side favor? Why? Who do you think your candidate will wil against? The press, or our candidate?" In short, the Democrats must mock these "I'm running against the press" candidates into the ground.

There's still time left, and Lord knows we'll need every minute of it, as Rove will be reminding us that the capture of Zarqawi has made us more safe. Which is why, of course, immediately after his death, 6 bombings ensued that killed 60 people. And, of course, Zarqawi is why the civil war - Iraqis killing their neighbors - is going on. And had we not invaded Iraq, let's not forget, to paraphrase Dick Cheney, he never would have went on his rampage. Blah Blah Blah. If thiis guy was so important, then since we killed him, can we leave now? No - because we must create MORE TERRORISTS so more of our troops can die - thereby honoring the sacrifice of those who needlessly died already! It was this logic that created Zarqawi in the first place.