Sometime this fall, two of the five votes that made up the Lopez and Morrison majorities will have been replaced. Only Justice Clarence Thomas will be left from the three Raich dissenters. As the new chief justice (assuming he is confirmed), will John Roberts assume the role of his mentor William Rehnquist -- for whom he clerked -- and lead the Roberts Court to enforce the Constitution's original plan of limited federal power? Will President Bush now look for a nominee to replace Justice O'Connor who is as committed to the New Federalism as she was? Given that so many of the New Federalism cases were 5-4, if either of the new justices adopts the mantra of "judicial deference" to congressional power, then Chief Justice Rehnquist's death, along with Justice O'Connor's retirement, may presage the second death of federalism. A judicial withdrawal from enforcing the original limits on the powers of Congress would undo the New Federalist legacy of William Rehnquist.

As the president now decides who next to nominate, he would uphold the Constitution by selecting a person with a firm and demonstrated commitment to the Rehnquist Court's New Federalism legacy. Only such a choice would continue the movement to restore the "first principles" of constitutionally limited government that William Rehnquist affirmed so eloquently. One can hardly imagine a sadder end to the tenure of William Rehnquist than that his most prized and important contribution to constitutional law is aborted by a conservative Republican president and a Republican-controlled Senate.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape — that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. . . . [A]s far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.

The living Constitution is central to the American constitutional tradition, so central that even its loudest critics actually believe in it. Many Americans fail to realize how much of our current law and institutions are inconsistent with the original expectations of the founding generation. A host of federal laws securing the environment, protecting workers and consumers—even central aspects of Social Security—go beyond the original understanding of federal power, not to mention most federal civil rights laws that protect women, racial and religious minorities, and the disabled from private discrimination. Independent federal agencies like the Federal Reserve Board, the Federal Trade Commission, and the Federal Communications Commission would all be unconstitutional under the original understanding of the Constitution. Presidential authority would be vastly curtailed—including all the powers that the Bush administration regularly touts. Indeed, most of the Bush administration's policy goals—from No Child Left Behind to national tort reform—would be beyond federal power.

The records reveal the following facts:

A 27-year-old Iraqi male died while being interrogated by Navy Seals on April 5, 2004, in Mosul, Iraq. During his confinement he was hooded, flex-cuffed, sleep deprived and subjected to hot and cold environmental conditions, including the use of cold water on his body and hood. The exact cause of death was “undetermined” although the autopsy stated that hypothermia may have contributed to his death. Notes say he “struggled/ interrogated/ died sleeping.” Some facts relating to this case have been previously reported. (In April 2003, Secretary Rumsfeld authorized the use of “environmental manipulation” as an interrogation technique in Guantánamo Bay. In September 2003, Lt. Gen. Sanchez also authorized
this technique for use in Iraq. Although Lt. Gen. Sanchez later rescinded
the September 2003 techniques, he authorized “changes in environmental quality”
in October 2003.)

An Iraqi detainee (also described as a white male) died on January 9, 2004, in Al Asad, Iraq, while being interrogated by “OGA.” He was standing, shackled to the top of a door frame with a gag in his mouth at the time he died. The cause of death was asphyxia and blunt force injuries. Notes summarizing the autopsies record the circumstances of death as “Q by OGA, gagged in standing restraint.” (Facts in the autopsy report appear to match the previously reported case of Abdul Jaleel.)

A detainee was smothered to death during an interrogation by Military Intelligence on November 26, 2003, in Al Qaim, Iraq. A previously released autopsy report, that appears to be of General Mowhoush, lists “asphyxia due to smothering and chest compression” as the cause of death and cites bruises from the impact with a blunt object. New documents specifically record the circumstances of death as “Q by MI, died during interrogation.”

A detainee at Abu Ghraib Prison, captured by Navy Seal Team number seven, died on November 4, 2003, during an interrogation by Navy Seals and “OGA.” A previously released autopsy report, that appears to be of Manadel Al Jamadi, shows that the cause of his death was “blunt force injury complicated by compromised respiration.” New documents specifically record the circumstances of death as “Q by OGA and NSWT died during interrogation.”

An Afghan civilian died from “multiple blunt force injuries to head, torso and extremities” on November 6, 2003, at a Forward Operating Base in Helmand Province, Afghanistan. (Facts in the autopsy report appear to match the previously reported case of Abdul Wahid.)A 52-year-old male Iraqi was strangled to death at the Whitehorse detainment facility on June 6, 2003, in Nasiriyah, Iraq. His autopsy also revealed bone and rib fractures, and multiple bruises on his body. (Facts in the autopsy report appear to match the previously reported case of Nagm Sadoon Hatab.)

Prior to the Persian Gulf War, Iraq had one of the highest standards of living in the Arab world. The Iraqi government had invested heavily in social and economic development, both before and during the Iran-Iraq war. Prior to the Gulf War, Iraq had made impressive strides in health, education, and development of the infrastructure. In 1980, the Iraqi government initiated a program to reduce infant and child mortality rates by more than half within ten years. The result was a rapid and steady decline in childhood mortality. Prior to the Gulf War, there was good vaccination coverage; the majority of women received some assistance from trained health professionals during delivery; the majority of the adult population was literate; there was nearly universal access to primary school education; the vast majority of households had access to safe water and electricity; and there was a marked decline in infant mortality rate, and in the under-five mortality rate. According to the World Health Organization (WHO), ninety percent of the population had access to safe water.

In the fall of 1999, a Defense Intelligence Agency (DIA) memorandum entitled, “Iraq Water Treatment Vulnerabilities” was declassified. The January 18, 1991 document focused on how the impending air war would undermine Iraq’s infrastructure:

1. Iraq depends on importing specialized equipment and somechemicals to purify its water supply, most of which is heavily mineralized and frequently brackish to saline.

2. With no domestic sources of both water treatment replacementparts, Iraq may continue attempts to circumvent United Nationssanctions to import these vital commodities.

3. Failing to secure supplies will result in a shortage of puredrinking water for much of the population. This could lead toincreased incidences, if not epidemics, of disease and to certainpure-water-dependent industries becoming incapacitated, including . . pharmaceuticals and food processing . . .

4. Although Iraq is already experiencing a loss of water treatment capability, it probably will take at least six months (to June 1991) before the system is fully degraded.

5. Unless water treatment supplies are exempted from the UN sanctions for humanitarian reasons, no adequate solution exists forIraq’s water purification dilemma, since no suitable alternatives,including looting supplies from Kuwait, sufficiently meet Iraqi needs. . . .

.. . .11. Iraq’s rivers also contain biological materials, pollutants, andare laden with bacteria. Unless the water is purified with chlorine, epidemics of such diseases as cholera, hepatitis, and typhoid could occur. . .

. . . .14. . . . Recent reports indicate the chlorine supply is critically low. Its importation has been embargoed, and both main productionplants either had been shut down for a time or have beenproducing minimal outputs because of the lack of importedchemicals and the inability to replace parts. . .

. . . .20. Iraqi alternatives. Iraq could try convincing the United Nations or individual countries to exempt water treatment supplies from sanctions for humanitarian reasons. It probably also is attempting to purchase supplies by using some sympathetic countries as fronts. If such attempts fail, Iraqi alternatives are not adequate fortheir national requirements.

21. Various Iraqi industries have water treatment chemicals and equipment on hand if they have not already been consumed orbroken. Iraq possibly could cannibalize parts or entire systemsfrom power to higher priority plants, as well as divert chemicals, such as chlorine. However, this capacity would be limited and temporary.

Thus, the DIA anticipated not only the damage to the infrastructureand water system, but anticipated as well that Iraq would be unable to takeeffective measures to provide potable water afterward. The DIAthen anticipated the epidemics and loss of life that would follow.

There all ready seems to be a problem in attempting to infer characteristics about an undefined population, named "conservatives" for rhetorical power. Thus, my cheeky title of "how the door hit conservatives on the way out"--in the the vein of all the recent "How X Did Y" or "How X Succeeds and When Y Fails" titles now ubiquitous in bookstores--is amusing precisely because we don't know who the conservatives are, where they are leaving from, and why they are leaving (i.e. whether its voluntary or involuntary).

Althouse, not needing to define or operationalize her concepts, continues: "Tierney rejects all of that, and blames the disparity on 'the structure of academia, where decisions about hiring are made by small independent groups of scholars'," and begins quoting Tierney who wrote:

They're subject to the law of group polarization, derived from studies of juries and other groups.

"If people are engaged in deliberation with like-minded others, they end up more confident, more homogenous and more extreme in their beliefs," said Cass Sunstein, a law professor at the University of Chicago. "If you have an English or history department that leans left, their interactions will push them further left."

Once liberals dominate a department, they can increase their majority by voting to award tenure to like-minded scholars. As liberals dominate a field, conservatives' work comes to be seen as fringe scholarship.

There seems to be another immediate problem here (besides the small factor of not knowing really who were are talking about). Liberals apparently, a priori, decide that a fellow faculty member's research sucks because of political affiliation? That's a big charge from the conservative wing who could usually be counted on to say that hiring ought to be based on the merits of a candidate and not any particular group characteristic. There seems to be four factors wrong in asserting that conservatives are being discriminated against per se. One, there does not seem to be a large pool of "conservative" applicants who are denied tenure whom can point out discrimination in the hiring process, or that the reasonably informed observer can identify. Systematic discrimination is by definition very observable. Segregation was not a contested claim, it was an easily observable fact of life. We could see actual discrimination there. Two, the argument seems to lack specificity about which universities are discriminating against conservatives. Are we talking about a correlation between faculty denied tenure at Princeton and voting affiliation? This is important to specify because some institutions, like Princeton, traditionally don't grant tenure to that many people, conservative or not. In fact, many of the top political scientists in the field now, somewhere between 20 and 40 percent, were denied tenure at their first university. Three, there is no specification about which fields these decisions are being made in. The honest to goodness truth is that in some academic fields the job market sucks. Four, this doesn't include how cordial and chummy the supposed conservative is with his or her colleagues. Did the person make meager ideological difference an uncomfortable issue with some of the faculty? That seems to be relevant if one is being given a job for life.

Ann contextualizes her own criticism and demonstrates her dearth of knowledge concerning academia when she self-righteously concludes: "That sounds accurate to me. Tierney concludes that the phenomenon ultimately hurts liberals in the political sphere because they can't draw on the ideas of liberals in academia, who have veered too far left to produce ideas that are appealing to American voters." Can I get a show of hands for people who believe that academics outside of policy studies and the social sciences are attempting to "produce ideas that are appealing to American voters"? I'm sure that the history of Kenya, or, of religious practices in an Indonesian village are aimed at the American electorate. Thanks, Ann. Don't let the door hit you on the way out.

Steven Bainbridge, actually being a law professor, has something intelligent to add. Bainbridge writes:

In my experience, it thus is a lot harder to get somebody hired than it is to block them from being hired. The process isn't as explicit as the blackballing scene in Animal House, but the law school hiring process is just as weighted against hiring. (And I mean hiring anybody, regardless of political affiliation.) Any opposition (for whatever reason) therefore is usually enough, absent a very strongly committed pro-hiring faction. In most cases, a candidate's best chance of surviving the winnowing process is for someone on the committee to become the candidate's champion. The champion will pull the candidate's resume out of the slush pile and make sure it gets flagged for close review. Because most law schools lack a critical mass of libertarian and conservative faculty members, however, there is nobody predisposed to pulling conservative candidates' AALS forms out of the slush pile (and a fair number of folks inclined, whether consciously or subconsciously, to bury them) Applicants with conservative lines on their resume -- an Olin fellowship, Federalist Society membership, or, heaven help you, a Scalia clerkship -- thus tend to be passed over no matter how sterling the rest of their credentials may be. In contrast, the latest left-leaning prodigy from Harvard or Yale has a mentor at one of those schools who makes calls to his/her buddies and ideological soulmates at other law schools. The recipients of those calls then flag the prodigy's file, giving them a critical leg-up in the process. Law school hiring tends to be driven by the self-perpetuating network of left-leaning senior faculty.

Bainbridge offers a new hypothesis: libertarians and conservatives often lack the faculty sponsors necessary to secure highly competitive job slots. The fact that academia is a professional association, whose tenured members get to determine the rules and practices of the trade and its reproduction, limits the number of jobs available, Bainbridge argues, and thus has the effect of accidentally discriminating against libertarians and conservatives. Bainbridge's distinction are certainly much better than Althouse's by creating a slightly less concrete mechanism, the machine, rather than the liberal [who for Ann is waiting to ding every conservative.] Bainbridge's issue is that his argument doesn't sufficiently distinguish between conservatives, libertarians, and "liberal" rejected faculty given the small number of persons actually hired. The lack of a direct casual mechanism to select conservatives and libertarians as such means that our only response is "tough" or "deal." Don't let the door hit you on your way out either; trust me its nothing personal.

Andrew Seal gets past all the question-begging and goes directly to the heart of the matter: "But the question they all skip around is, why were the liberals there in the first place? Why is academia a magnet for liberals? They may be entrenched now, but it's not like the university just now took a turn to the left. Well, if you're Steven Levitt (the freakonomist), the place you look is to incentives. Holding all things equal, what incentives do liberals have for adopting the academic life?" His observation that liberals didn't just start to dominate the university is apt; in fact, we have historical evidence that conservatives may have dominated the university at the turn of the 19th/20th century. It would be interesting to note what changed.

Well, why do people choose a career? Andrew continues, I'm going to be reductive and say it's for one of three reasons--to gratify a passion for one's work, to achieve renown/influence or to make money.

Now, just hang on a second, this isn't going where you're thinking. I don't think (not making) money is the principal factor in turning liberals to academia and conservatives away. And, like passion for one's work, it is not limited to liberals. What I do think is a factor--the factor--is influence.

There are two ways of influencing--direct and indirect. (I suppose this is akin to hard and soft power, but for the sake of a future post that relates to this, I will use direct and indirect influence.) You can try to directly influence the circumstances, or you can attempt to influence the flow of ideas that will bring about the circumstances. I think that it is accurate to say that conservatives have historically favored direct influence and liberals have favored indirect influence. That's not a value judgment, it is supposed to be descriptive.

Seal then goes on to distinguish between the fact that, for him, conservatives target conditions (direct influence) and liberals offer ideas that shape conditions (indirect influence). That seems to me to be too clever by half for a reason why we find more "liberals" than "conservatives" in academia.

The idea that no one wants to discuss is: why is it an issue about the ideological preferences of a faculty member or a faculty body? Moreover, how do we go about measuring any given person's preference?

One answer is that the scholarship suffers from too much ideological agreement. We know that's not true. The preponderance of "liberal" academics at an institution seem irrelevant because the academic peer-reviewed journals largely shape the profession of academia. (Law reviews, I believe, are the exception for they are not peer reviewed.) The editors who run the journals are distinct from the faculty who grant tenure in the sense that they don't perfectly overlap. Not every tenured faculty member will head a journal. Moreover, most journals have anonymous readers for articles who aren't selected for their partisanship but for their methodological diversity.

Another answer concerns the brainwashing of the students. No person who has been to college or university recently will tell that they and their peers were blank slates waiting for liberal professors to remake. We need a more complex account than that. Oftentimes students take classes with their own agendas in mind to challenge professors or to mock them. Students argue about their politics, the professor's politics, and the class readings outside the classroom. Critical thinking is not partisan-bound. Students, Republican and Democrat alike, have benefited from taking classes and from talking to one another. In fact, four years of college seems to produce more political apathy and dissatisfaction than anything else.

In short, the debate over professors political affiliations as either a proxy for hiring diversity or regarding concerns over brainwashing undergrads is a load of crap is ever heard of one. The debate is not only pointless, but it's obnoxious too.

In analyzing Bush's tactical situation before the Miers nominated, we find that many Senate Republicans were not eager to fight a battle over a hard line conservative. The so-called Gang of 14 Senate moderates heavily signaled to Bush that they didn't want a nominee they would have to filibuster. A filibuster in the Senate would have given a green light to power-hungry and irresponsible members of the Republican caucus to invoke the "nuclear option"; this option would permit the 55 Senate Republicans to rewrite the rules on filibustering such that a simple majority would be sufficient to end a filibuster, effectively making the Senate chambers as majoritarian and capricious as the House of Representatives.

Tapscott's Copy Desk, a conservative ideologue if I ever saw one, makes the point most forcefully in an entry title "Memo to My Friends on the Right: Miers isn't the Issue; Weak-Kneed Senate GOP Leadership Is":

That point is this: As long as the Senate GOP leadership refuses to confront head-on the Democrats' abuse of the filibuster and end it, the Democrats have a veto if they choose to use it. And choose it they will for any nominee short of one with an undeniably perfect record - John Roberts - or one with no record at all, Harriet Miers. Bush knows all hell would break loose politically if he nominated a candidate from the Old Guard wing of the GOP who would satisfy the Senate Democrats. Such a move would likely spark a revolt among the GOP's conservative infrastructure (note, it's not just "the base"). The resulting Senate GOP majority of one or two and a paltry five or six in the House would mean Bush would twiddle his thumbs for the last two years of his White House residency.

Stingray, "a blog for salty Christians" (whatever that means), concurs on this point. After pointing out that the constitution, contra Jacob Levy and George Will, is not "some sort of rarefied Gnostic writing that only the initiated can understand. It is a simple, succinct document that any decently intelligent person can sort through and apply to real-world situations. We have had too much constitutional voodoo over the years with the Supreme Court finding all sorts of emanations and penumbras that would make the Founding Fathers slap their heads", he places the blame on the Senate Republicans for this nomination. (Side note: Without agreeing with his point that our constitutional interpretation should be limited by the opinions of those present at the creation of any given constitutional amendment, he is correct that the constitution doesn't require magic, ritual, or divination to understand.) Stingray continues: "Unfortunately, there is an influential mass of conservatives who are upset that Bush did not choose a fire-breathing conservative with extensive right-wing credentials like Michael Luttig, Janice Rogers Brown, or even Priscilla Owen. The real reason for Bush’s apparent shying away from such a controversial nominee...is not that he lacks the guts to fight, but rather that the Senate GOP leadership has their dresses over their heads and refuses to fight the Democrats over a filibuster."

To hammer home the point that for him the problem is the Senate and not Bush, Stingray maintains:

It all boils down to this: First, the Republican leadership ceded control of the Senate to 41 Democrats. Then, last spring, they effectively ceded control of the Senate to a group of 14 people. President Bush has good reason for not trusting the Republican leadership to do its job and force a simple majority vote on his nominees. Appointing a fully-credentialed conservative nominee would be like going into battle and having to depend on the French to win it for you.

Bush is not afraid of a fight. The first thing that he did after the Gang of 14 made its agreement was to re-submit the names of 10 nominees whom the Democrats had previously filibustered. Plus, he made John Bolton the recess appointment as United Nations Ambassador when the Senate was out of session. Previously, the Democrats had threatened to filibuster Bolton. The simple fact is that until the Senate Republican leadership does its job and returns the Senate to a majority rule, Bush will be forced to nominate stealth candidates for high positions. Conservatives are mostly happy with Roberts because he has such sterling credentials but, the truth is that we really do not know where he stands on such hot-button issues as abortion. We probably know, but he may end up being one of those who are personally against Roe v. Wade but will not vote to overturn it. The same thing goes for Harriet Miers. She has had an extremely successful career by any measure yet one of the reasons for Bush nominating her is that she has no paper trail or official public opposition to abortion.

I am happy with Harriet Miers because, to those of us who are politically and religiously active in Dallas, she is not an unknown quantity. She has proved herself to be a capable leader and extremely competent attorney who has important consensus-building skills (something that Scalia and Thomas unfortunately lack). However, if anyone is not happy with Bush’s choice, they need to look no further than the Republican Senate leadership to see where the blame lies. This is all about having power but refusing to use it. If the Republican Senate leadership is going to allow itself to be run by a mere 14 members, then perhaps we need new leadership.

The New Republic takes a slightly different approach and makes the claim that the conservative backlash against Bush has been building for some time. When Bush first came to power, remarks the New Republic through David Frum, "[Bush] was a new thing. Every conservative knew he was a blend and was going to reach out to new constituencies. What the old coalition was going to get was a tax cut and judges. ... But the tax cut has turned out not to be a very valuable thing. Because of the deficits, this tax cut is not going to be permanent. Now here [with Miers] is the other most important thing he was going to do for conservatives, and he didn't do it." After so many betrayals, the true conservatives in the Republican coalition are ready to move on and are more than slightly peeved about the Miers nomination. The New Republic continues in its lofty authorial voice:

As conservatives tell it, the current insurrection has been building for some time. Bartlett, the mainstream conservative who has written and thought the most about Bush's disloyalty, tells the tale this way. In 2001, conservatives were deeply frustrated by low-level Bush heresies like the education bill. Then, September 11 silenced all dissent. In 2002, things got worse: An enormous agriculture bill, steel tariffs, a bloated budget, and a campaign finance bill that Bush once argued was unconstitutional. (Bartlett goes so far as to say Bush "violated his oath of office" by signing it.) Then, the Iraq war silenced all dissent. Next came the Medicare prescription-drug bill, which simultaneously funneled money to the pharmaceutical industry, expanded government more than any entitlement since LBJ, and violated the traditions, if not rules, of the House when the vote on the bill was held open for nearly three hours while conservative Republicans were bullied into reversing their no votes. "From my own point of view, the drug bill was the line in the sand," says Bartlett. "That's the point I decided to write a book and say this guy isn't one of us."
Other conservatives were also very angry. Then, the presidential campaign against John Kerry silenced all dissent.

We know the rest of the story: Absent a new war or domestic enemy like Kerry, Bush was suddenly exposed to the whole world, including the conservative movement, as a less-than-great president. Social Security reform fizzled. Bush signed an outrageously pork-laden transportation bill. He vacationed while New Orleans drowned. "What a lot of conservatives have always believed is that at least we know how to make the trains run," says a chastened Bartlett. "It was jarring that the MBA president wasn't a good manager." And then it was even more jarring that he wasn't such a good picker of Supreme Court justices, either. "Judges in the mold of Scalia and Thomas were the 'no new taxes' pledge of this presidency," says Frum. Scales fell from eyes, and the rebellion began.

The Senate Democrats

The Senate Democrats had even more reason to be less supportive of Bush. The Democrats have been, sadly, an opposition party without a true platform since the demise of Vice President Al Gore. Their rallying cry in 2002 and 2004 was that Bush "stole" the 2000 Elections. When the Republicans gained seats in the House and the Senate during the 2002 mid-term election, the Democrats were reduced to an anti-Bush platform of "Beat Bush in 2004." Passing over the centrist, moderate Democrat crazy-man Howard Dean for presidential nomination due to his "electability" Democrats could only be confused about the future of their political party after the narrow, but sufficiently decisive presidential and congressional Republican victories in 2004.

The Washington Post reports Howard Dean's angst over the judicial nominees: "In an interview, Dean said Democratic unity is essential in the upcoming battle and that the party "absolutely" should be prepared to filibuster -- holding unlimited debate and preventing an up-or-down vote -- Bush's next high court nominee, if he taps someone they find unacceptably ideological. He cited appellate court judges Priscilla R. Owen and Janice Rogers Brown as two who would be likely to trigger such opposition. "Those people are clearly not qualified to sit on the Supreme Court, and we're going to do everything we can to make sure they don't," he said. "If we lose, better to go down fighting and standing for what we believe in, because we will not win an election if the public doesn't think we'll stand up for what we believe in."" Was Howard Dean justified in castigating Judges Priscilla Owen and Janice Rogers Brown as "unacceptable"?

In the case of Judge Priscilla Owen the answer is yes. Wikipedia gives the down and dirty on Priscilla Owen nomination to the federal courts: "In 2001, Owen was nominated by President George W. Bush to her current post on a federal appellate court that hears appeals arising in several states, including Owen's home state of Texas. However, due to Senate disagreement over the issue of appointees considered to be extremely conservative, Democrats (who controlled the U.S. Senate at the time) did not let her come up for a vote. In 2003, after Republicans had taken the Senate back, Democrats filibustered her, along with her several other federal court nominees. Only in 2005, after Republicans picked up four more seats in the Senate did she again come up for a vote. Democratic Party senators had filibustered her nomination until May 2005 when a compromise was arranged by the "Gang of 14," which were a group of moderate senators from both the Republican and Democratic Parties. She was finally confirmed by a vote of 55 to 43 on May 25, 2005 and was sworn in on June 6, 2005. " Priscilla then was confirmed by strict party line votes after the deal to filibuster. The ideological nature, in the case, of the nomination seems to warrant concern.

What of Janice Rogers Brown? "She was nominated by President Bush on July 25, 2003 to be a United States Court of Appeals judge. The Senate Judiciary Committee held a hearing on her nomination on October 22 of that same year. After her name had passed out of committee and had been sent to the full Senate, there was a failed cloture vote on November 14, 2003. Bush renominated her on February 1, 2005.On April 21, the Senate Judiciary Committee again endorsed Brown and referred her name to the full Senate once more. On May 23, Senator John McCain announced an agreement between several moderate Republican and Democrat U.S. Senators, the Gang of 14, to ensure an up-or-down vote on Brown. On June 8, Brown was confirmed as a judge on the United States Court of Appeals for the District of Columbia Circuit by a 56-43 Senate vote. She received her commission on June 10. Although no official announcement of her swearing-in ceremony was made, she began hearing federal cases on September 8." Brown also seems to have been confirmed by party line vote plus one Democrat.

The White House perception is that John Roberts squeaked by due to his lack of record. Many Republicans and Democrats couldn't pin him down on key issues and thus, had, no real reason to oppose him. Thomas Sowell, in a column entitled "Harriet Who?" on 7 October 2005, wrote: "President Bush has taken on too many tough fights -- Social Security being a classic example -- to be regarded as a man who is personally weak....Before we can judge how the President played his hand, we have to consider what kind of hand he had to play. It was a weak hand -- and the weakness was in the Republican Senators." Thomas Sowell, trying to be optimistic about Miers, added (in only the way Sowell can):

Does this mean that Harriet Miers will not be a good Supreme Court justice if she is confirmed? It is hard to imagine her being worse than Sandra Day O'Connor -- or even as bad. The very fact that Harriet Miers is a member of an evangelical church suggests that she is not dying to be accepted by the beautiful people, and is unlikely to sell out the Constitution of the United States in order to be the toast of Georgetown cocktail parties or praised in the New York Times. Considering some of the turkeys that Republicans have put on the Supreme Court in the past, she could be a big improvement. We don't know. But President Bush says he has known Harriet Miers long enough that he feels sure.

For the rest of us, she is a stealth nominee. Not since The Invisible Man has there been so much stealth. That's not ideal by a long shot. But ideal was probably never in the cards, given the weak sisters among the Republicans' Senate "majority."

There is another aspect of this. The Senate Democrats huffed and puffed when Judge John Roberts was nominated but, in the end, he faced them down and was confirmed by a very comfortable margin. The Democrats cannot afford to huff and puff and then back down, or be beaten down, again. On the other hand, they cannot let a high-profile conservative get confirmed without putting up a dogfight to satisfy their left-wing special interest groups. Perhaps that is why some Democrats seem to welcome this stealth nominee. Even if she turns out to vote consistently with Antonin Scalia and Clarence Thomas, the Democrats are off the hook with their base because they can always say that they had no idea and that she stonewalled them at the confirmation hearings.

The Senate Democrats can't afford to have another high-profile intellectual conservative, and the Senate Republicans don't want a fight. As a person who wanted either Janice Brown or Alberto Gonzales on the Court as the best possible Bush picks--unless I could vote for Charles Ogletree or Cass Sunstein--Miers is looking like she's not so bad so far. More on her qualifications another day. We still have a chance at Gonzales, though, if John Paul Stevens leaves the court.

you're not going to be surprised that this group is fucking homophobic. it takes all of two clicks on their website to find the following preface to a big ol' heap of religious/pseudoscientific pile of bullshit bibliography: "We have not shied away from religious based arguments - or arguments advanced by religious leaders - as we are open to a good pluralism in which arguments from all vantage points that buttress familial and sexual life and ethics are welcomed."

let's go over the "religious based" (sic, motherfuckers, come on. i thought you went to princeton) argument against homosexuality: in leviticus 18, the bible gets to talking about whose nakedness to uncover and not to uncover, etc, and then drops a bomb in verse 22: "Thou shalt not lie with mankind, as with womankind: it is abomination." now, that sounds like a pretty serious indictment. but rewind 7 books back to leviticus 11. in verse 10 he says: "And all that have not fins and scales in the seas, and in the rivers, of all that move in the waters, and of any living thing which is in the waters, they shall be an abomination unto you: they shall be even an abomination unto you; ye shall not eat of their flesh, but ye shall have their carcasses in abomination."

now, essentially, we have a normative position taken by leviticus, or God, or whoever, against "abomination." what constitutes abomination? for one thing, hot, gay assfucking. wait, i mean assfucking AND/OR the consumption of mussels, clams or other oceanic bivalves.

at this point it should be pretty clear that the "religious based" arguments against homosexuality are really fucking stupid, and we should move on. perhaps i am betraying my identity as a left-wing cultural elitist when i say that it's okay to go ahead and define any group or individual who gives the slightest bit of credence to the "religious based" arguments against homosexuality to be homophobic, as well as a gibbering fucking moron. this wouldn't be such a big deal, except there really AREN'T any other arguments against homosexuality. malchow likes to trip on its "biological abberance," but first of all, being biologically aberrant/engaging in "aberrant" behavior should not carry any kind of normative weight as far as whether society should confer rights on an individual. i could go on and state that we're seeing more and more results of homosexuality in the animal kingdom, etc., but i shouldn't have to.

is he really talking about people "hoisting" (or foisting) homosexuality on other people? what the fuck kind of bullshit is that? homosexuality is about a man or woman wanting to fuck an individual of the same gender. the only way that could be "foisted" on me is if a dude tried to rape me. going up to me and screaming "I THINK IT'S OKAY THAT I WANT TO FUCK OTHER DUDES IN THE ASS" isn't foisting shit, except for what should be an obvious statement of fact.

In my youth, in my manhood, in my old age, I had fondly dreamed that when
any fortunate chance should have broken up for a while the foundation of or
institution, and released us from obligations the most tyrannical that ever
man imposed in the name of freedom, that the intelligent, pure and just men
of this Republic...would have so remodeled all our institutions as to have freed
them from every vestige of human oppression, of inequality of rights,
of the recognized degradation of the poor, and the superior caste of the
rich...This bright dream has vanished 'like the baseless fabric of a dream.' I find that
we shall be obliged to be content with patching up the worst portions of the
ancient edifice, and leaving it, in many of its parts, to be swept through by...the storms of despotism. (39th Congress, 1st Session, 3148)