Saturday, April 02, 2005

VDH does it again

Inspiring questions and commentary from the great Victor David Hanson yet again. Go here to read his latest posting on the ever changing Middle East.

It never ceases to amaze me how the great thinkers can frame the questions that we all struggle with so succinctly. I have, and continue to struggle with many of the questions pointed out in this article. This is a place where socialogists need to learn from the military. The old quote (probably mangled) I have in mind is "When facing war, small minds think tactics, great minds think logistics".

I would argue that 50 years from now people will not argue about whether the tactics of the military were right or wrong. Did we move too quickly or too slowly? Were armoured up HumVees good or bad? Should we have dismantled the military and started over? Only the military strategists will remember these questions and debate them.

Success or failure in the long run will hinge on logistics: Did we leave these people in a position to prosper on their own in their own form of a free society? Germany and Japan both did. They were different societies than each other and than Iraq and Afghanistan. The beginnings of those occupations were no less bloody than this one. It took many years to fully turn over the society to the locals in each. Just because we did it well enough before does not mean that we are doing this one right. But the questions are the same irrespective of the fact that the logistical answers may be different.

VDH points out at the end of his article that our tactics elsewhere may force us to defend these newly forged democracies longer than we should have. If that turns out the be the case it will be because the logistics were ignored.

More real world humor from Powerline

I wonder how many people read the original article and missed the punch line? Hinderocket didn't and here is his post on it. I must admit, I missed it the first read through but was ROTFL when I went back and read it after the punch line was pointed out. The entire article gets funnier after you see the well hidden punch line. Read Hinderockets comments first, then the whole article.

Claudia Rosett on "Kofi Exonerated"

Her latest article is as worth reading as any. If you have never read her work you are missing out.

Humor of the day

As someone who was just this week wildly cut off by someone who turned out to be a coworker (that I didn't know and would rather not having seen him in the parking lot) in his hybrid vehicle with a Kerry/Edwards bumper sticker, I found this particularly funny.

Why do people keep bumper stickers on their cars announcing "I voted for the loser"? I took my magnetised election sticker off of my car shortly after the election.... and I voted for the winner. Thinking about it for a second, I don't remember seeing large numbers of Dole bumper stickers months after he lost. Is this a liberal/conservative thing?

If you are a contractor, avoid NY

You have to read this post on Sneaking Suspicions to believe it. He cites the case as well as applicable federal cases. I have great sympathy for Mr. Hackaby. The rest of us should take note and avoid getting any income in NY unless you happen to live there.

Pie in the Face

William Kristol was apparently hit with a pie while giving a speech at Earlham College a couple of days ago. The full article is here. The last line tells it all... "Earlham is a liberal arts college of about 1,200 students that is well-known for its peace studies program."

Also in the article "The student was suspended and could face expulsion following a disciplinary review, Earlham Provost Len Clark said today." I don't want to seem all high and mighty about the behaviour of college students. I went to college and we did our fair share of pranks on each other and faculty. I would hope that had a student done this at my college to a guest speaker they would have been expelled. This is a private QUAKER school. The Quaker's, for those who don't know, are committed to complete non-violence. They don't even believe in a right to self defense as most of us would define it. To assault someone (and yes, this is assault when committed on a complete stranger as opposed to your boss at a company picnic at a pie eating contest :-) because you disagree with what they are saying is beyond the pale. He should have been arrested and expelled.

The good news for the community is this line of the piece:

"Members of the audience jeered the student as he walked off the stage, then applauded as Kristol wiped the goo off his face with a paper towel and said, "Just let me finish this point," the Palladium-Item reported.

That is the appropriate reaction.... more than likely from students who largely did not agree with what was being said. Maybe there is hope for the next generation.

Another good young blogger candidate out

I learned this morning with great sadness that Girl in Right dropped out of her run for City Council in Golden Colorado. Her explanation is here. It is a real shame that people cannot openly disagree and debate without running down the spiral of behind the back gossip and hate mail.

I did some leg work for candidates in a local election a couple of years ago. While there was spirited debate and less than pleasant editorials I saw or heard no signs of anything like these. The candidates attacked each other's records and positions and to a lesser degree motivations. That is good for democracy. What happened to babs isn't.

Thursday, March 31, 2005

Judge Birch says Terri's Law Unconstitutional

Hugh Hewitt points out that Judge Birch argues that Congress stepped beyond their bounds in passing a law requiring a de novo review of Terri's case. See Hugh's post for both his response and the actual filing by the judge. I agree with Hugh on two points here. First, this judge is in the minority on the federal bench in actually filing an opinion. As such he should be applauded. The vast majority have simply declined to hear the case without publishing any reasoning which is highly cowardly given the extraordinary coverage of this case.

I also agree with Hugh that the judge is incorrect in his opinion. As someone who is not a lawyer I have difficulty in parsing and arguing the implications of Article 3 of the constitution as it applies to this case. Other federal judges have argued, see Hugh's post, that this interpretation of said article would leave many (upheld by the USSC) federal laws moot.

That said, a quick reading of the 14th ammendment to the US Constitution by even a lay person is another story.

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,(See Note 15) and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Given that Section 1 says "deprive any person of life..." and section 5 is pretty straightforward, I find it difficult to believe that any rational person could argue that it is not within the rights of the Congress to pass legislation forcing the federal courts to conduct a de novo review of Terri's federal rights. It is potentially arguable that they cannot force federal courts into a de novo review of application of state law but it is not reasonably arguable that they cannot force the federal courts to review her federal rights, including her right to life under the 14th ammendment itself, without regard to judgement of the state courts.

Wednesday, March 30, 2005

Another irrational statement against school vouchers

Laurence M. Vance makes a great argument against school vouchers. The only problem is that he ignores and misstates the facts. There are a number of trials in a number of states that have proven that vouchers work for the students that use them. They also show that there is a tendancy to improve the local schools when enacted.... precisely because (IMHO) the local school generally looses some per student funding for every who is moved to a private school under the local school voucher program. It is true that the local school system has never, to my knowledge, lost funding year over year because of a voucher but that is only because the increase that would have otherwise been bestowed exceeded the lost revenue due to the very limited trials.

I have no children. I do pay taxes, and lots of them. If it comes to a vote that my taxes need to go up to provide a decent education for inner city poor kids, (and let us not kid each other this is what we are talking about, my kids if I had them would be just fine) I would vote for it. At the end of the day that is not the question as the average cost of a good education at a local private school is generally less than the cost of the horrifically poor education in most inner city schools. What is at stake is the jobs of a bunch of grifting beaurocrats from assistant principle to elected board members that make 6 figure incomes they don't deserve (given the performance of the institutions they run) for the opportunity to get even larger kickbacks. The second thing that is in jeopardy is the power of the teachers unions (amazingly the private schools which actually teach kids the 3 R's generally don't have unions). The third thing at stake.... hold on to your hats..... is the future of this country in the form of an educated next generation as opposed to a bunch of illiterates with meaningless diplomas.

That last one is the only one I care about. I grew up on a small family farm. Those days are gone. Having an educated population is the only thing that will keep this country from turning into Mexico..... shares our border, has great natural resources and has massive poverty and double digit unemployment for the last couple decades.

Alan Keyes speaks out on Terri

I often agree with Alan Keyes. He is clearly a very smart guy whom I have grown from in reading his columns and watching his speeches. His most recent post is not one of those. In principle I do agree with him. Part of the balance of power at both the state and federal level is that the judiciary has no power to enforce its decisions without the cooperation of the executive branch. The use of this lack of power by the executive against the judiciary is something that the founders clearly anticipated. That said, it is an extreme remedy that will/can have severe reprocussions. Both President Bush and Governor Jeb Bush have the ability to override the decision of the courts. That is as it should be in our republic. Use of that authority should be recognised as extreme and not a reaction to simply a "bad decision" or a "bad outcome" or even a "personal tragedy". Use of that authority is a statement of a major breakdown in the constitutional process. If one of the Bush's is at fault it is clearly the President. Governor Bush is following the law in his state as interpretted legally (although I would argue poorly). It is arguable that the federal courts have ignored the authority bestowed upon the US Congress explicitely in the 14th ammendment to the US Constitution and implicitely in Article 3. It is much harder to argue the same for the governor. And even in that case of the President, action would create a constitutional showdown the likes of which we have not seen since the Civil War. I have stated before that I think the state appeals courts and the federal courts were wrong in not granting a de novo review of the finding of fact in this case. But if you think that the debate about the "consitutional" or "nuclear" option to change the US Senate rules to disallow the use of a fillibuster for circuit court judicial nominations (a clearly unconstitutional act) is a hot potato imagine the reaction of the mostly uninformed public to POTUS overriding both the judgement of a state high court and, by default of refusal to review, the US Supreme Court.


I wouldn't want to be this guy's coworkers when he returns to work. It is only funny because he survived which may not have occurred in slightly different circumstances.

Neither rain, nor sleet, nor snow........

Maybe it's just a guy thing but I would hard pressed to admit that a 4.5 pound dog could stop me from doing anything. I would have a hard time believing it would stop the US Post Office except for the fact that I just had to go hand deliver a replacement check because the one I sent via snail mail 3 weeks ago hasn't made it 16 minutes by car from my house today. This is the only company I know of in the US that admits to 1 million plus mistakes per day and is still in business.

Tuesday, March 29, 2005

More whackos at CU Boulder

This is a pretty scary article (hat tip Pilsener) written by the new head of the ethnic studies department at CU Boulder. I wish somebody had let me know there was a national organized movement to get whackos off of the tax roles at public universities. Apparently this organization has been active for years... and nobody invited me to join or send money or anything. This woman may be as deranged as Churchill.

Is Paul Krugman insane?

Hugh points out that RightWingNutHouse is wondering if Paul Krugman is insane? It is a funny post and worth a look. Thanks Hugh for reminding me to get back over there... always amusing. Read Krugman's column first for maximum effect.

To the point, of course Krugman is insane. Look at any of his columns for the last few years. Any grasp of reality or fact left him a long time ago. I highly recommend watching any talk show where he is on with a conservative. It is further proof of his insanity that he continues to subject himself to public reality checks. Most lunatic left columnists won't as they are at least sane enough to know when they are being ridiculed by millions of people.

Terri's original injury

I am not a doctor and do not play one on TV. The guys at codeblueblog are and I have found them to be pretty reliable in the past. This is astounding. As of this posting she is amazingly still alive.

Monday, March 28, 2005


Since everyone else has.... below is my long $0.12 about the Terri Schiavo case. I am not a lawyer, don't play one on TV, and don't live in FL.

1. From my understanding listening to many folks who are FL lawyers... the law in that state is such that it just doesn't matter if this would have been Terri's decision. The law makes him, as her legal guardian, responsible for these and many other decisions on her behalf. I suspect if she had written documentation to the contrary it might make a difference but as far as anyone can tell she didn't.

2. A lot of people have vilified the husband. I do not believe there is evidence that this is reasonable. He may be worthy of this disdain but it is also reasonable that his "attitude" is a result of being fought tooth and nail by others when he truly believes he is doing the right thing. According to many sources he was a model husband for a long time after her initial "accident". He went to her side every day and seemed to be a loving and committed husband. He hasn't been there regularly for many years and he has moved on with another woman with whom he has children. That can be explained either by his moving on and wanting her to die because she has become inconvenient OR by his conscientious decision that his wife is no longer present in the shell before him and won't be coming back. I have no way of knowing and I think most of the people pontificating on this topic don't either. There are certainly coincidences that do not look good. That said, we should not judge until we have walked a mile in his shoes.

3. The court seems to have initially ruled on Terri being PVS based on the testimony of 1 doctor (whose reputation makes his diagnosis somewhat suspect) that was hired by the husband. This does not seem right to me. It may be legal in FL law but it is highly suspect. I once got a second opinion on how to treat my planters warts. I would certainly want a second, independent opinion on a patient's diagnosis if I were a judge about to sentence someone to death based on that diagnosis. There are a lot of doctors out there who say that this diagnosis is more than suspect given the innumerable tests that might show it to be incorrect which were never run. Some of these doctors have an obvious axe to grind, others do not appear to.

4. All the other courts at the state and federal level took that diagnosis on face value. It was never reviewed. This is common in the legal system. Upper courts will generally stipulate to any finding of fact by a lower court and question processes and legal opinions based on those facts only. The rhetoric that 19 judges have reviewed the case is just hot air. Only one judge ever evaluated Terri's condition from a medical perspective. That finding was treated as indisputable fact at every subsequent step. That finding is the basis of most of the controversy and it was never questioned by another court. The process of determining an outcome based on that and other findings were reviewed and found to be within the bounds of the initial judge's discretion. In my opinion that judge made a huge mistake. In the opinion of other judges it was not so outlandish that it should be reviewed. This is sad, but legal under our system of government.

5. The US Congress passed a law inviting (some would say ordering) the federal courts to review the case. The federal courts did conduct a de novo review of whether Terri's federal constitutional rights were violated. This is, again, a procedural review. They did not de novo review the underlying finding of facts. Many congressmen have stated that the courts ignored the law in not doing a de novo review of the findings of fact. Many lawyers fall on both sides of this issue. It seems to me that if Congress claims that they ordered the courts to re-review the basic facts of the case then they have stepped over their own boundaries of authority and the law itself may be unconstitutional. This is a very sticky wicket even with the expanded powers of 14th amendment considerations. We explicitly allow the Congress of the US to tell the federal courts when to go sniff out 14th amendment constitutional violations by state courts but it is another matter for the Congress to decide that gives them the power to order de novo review of the finding of fact in a state court case not involving any officially alleged criminal action or prosecution.

6. I believe that the federal courts had the right to review the basic findings of fact and should have done so in the face of so much evidence that the finding of PVS may be incorrect. This is rarely done but certainly can be done and has been done many times in the past when the federal courts have any reason to believe that a lower court (state or federal) may be creating facts that are convenient to its desired outcome in a case rather than fairly interpreting both the facts and the law as it applies to those facts. The same applies to the upper state courts who could have, and in my opinion should have, reviewed the diagnosis of PVS which is so critical in this case. The most common use of this level of review at the federal level have had to do with civil rights cases but there are others. All of this said, it is also a discretion of the courts to decide when to question findings of fact and when not to.

7. The US Congress used it's supeona powers in an effort to force a stay prior to passing "Terri's Law". This one, unlike "Terri's Law", is highly suspect to me. Legal scholars I have heard claim that this is certainly within their powers but is clearly a disgraceful abuse of those powers. Many would argue that the courts are so out of control that the legislatures must overreach to bring them back in line. If that is the case we are in big trouble. I would argue that we should appoint better judges and force our legislature to behave themselves and use their constitutionally granted powers to remove the really bad judges legally (impeachment anyone?) rather than "stoop" to constitutional abuses themselves. This move should have never been made. That said, given that the knuckleheads did it, shouldn't they hold the judge in contempt of congress for ignoring them? I believe they should, and then after a closed door session and not a publicity stunt, let him off with a fine or something. State judges are not exempt from congressional supeonas and they should not be. I would argue one should not have been issued in this case but we should not allow a judge to break the law just because he is reacting to a stupid and partisan abuse of power.

8. Many people are calling on Jeb Bush to use his authority as Governor to ignore the current court rulings and take custody of Terri. Governor Bush has been as strong an advocate as this woman has had. I am glad that he did the things he did. I am also glad that he is refraining from violating legal (flawed, but legal) court orders. Again, we should not deteriorate into lawlessness because of a bad ruling from the bench. I respected Judge Moore's position on his now famous 10 Commandments display......... right up to the point that he knowingly violated a federal court order. He should have continued his fight within the law instead of stepping outside of it. I may choose to violate a court order or bad law as a private citizen and accept the outcome of doing so. It is my right and your right to do so. We do not want or need state judges or governors doing so in public matters. The ramifications are too severe.

9. How in the world do we allow a human being to be dehydrated to death? This is apparently a very common solution to "allowing someone to die with dignity." There is no dignity in dehydration. We need to write to our legislators and change our laws so that when someone is going to be allowed to die when they are PVS or brain dead or whatever - they are truly killed in a humane way. If I decided that my dog was PVS and let him "die with dignity" in this way I would be locked up for animal abuse. These laws need changing and we should push our elected representatives to get them changed. If a state assembly passed a law making it possible to carry out the death penalty this way the courts would throw out said law in the blink of an eye.

10. On that note, why are the doctors giving Terri morphine? If she is PVS she wouldn't feel pain. If she isn't in pain why the painkillers? If they are not so sure she is PVS then why is she being allowed to die by dehydration?

11. Should a man (or woman for that matter) be allowed to continue to act as legal guardian to their spouse once they have another de facto marriage with someone else? This is a tough question... much tougher than many claim. If my wife truly believed I was PVS and was trying to carry out my wishes to allow me to pass on would I want her to wait 10 or 15 years to move on with her life? Would I want someone else who might not carry out my wishes to be allowed to get legal custody of me if she did move on? This question seems the hardest one to get my arms around in this whole mess. Like most tough questions the devil is in the details and this is a great example of details that legislatures have a great deal of difficulty getting right. It is too political for our political system.

12. Conservatives are clearly as capable of jumping into the fever swamp as liberals. I am disappointed. I do not like the outcome of this case for the simple reason that I don't think this woman is PVS and I am certain that it hasn't been reasonably proven. We cannot start asking our federal courts to insert themselves into a state court decision because we don't like state law. No system is perfect and the citizens of each state must retain the ability to define their system as they choose (within the bounds of not violating the federal constitutional rights of other citizens of course). FL law clearly has some holes that most Floridians would like to get plugged. Let them work with their elected representatives to do so in constitutional and legal way and not fall into the trap that it is somehow the federal governments business because we don't like the outcome in this one case. Judicial activism is wrong even when the outcome of the case is moral (Brown vs. Board of Ed being the most famous of many cases of conservative activism). If we encourage conservative-minded judges to commit these sins we cannot complain when liberal ones do it. Judges must be forced to simply interpret the law and legislators must be forced to past just and sane laws. Governors must uphold the laws passed by those legislators and interpreted by those judges. Anything less is lawlessness.