Lindsey Graham must have decided that he wants to keep his job. Yesterday he left Eric Holder baffled during Senate Judiciary Committee Hearings, simply by asking him: Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?

This dialogue then followed:

GRAHAM: If bin Laden were caught tomorrow, would it be the position of this administration that he would be brought to justice?

HOLDER: He would certainly be brought to justice, absolutely.

GRAHAM: Where would you try him?

HOLDER: Well, we’d go through our protocol. And we’d make the determination about where he should appropriately be tried. [...]

GRAHAM: If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?

HOLDER: Again I’m not—that all depends. I mean, the notion that we—
GRAHAM: Well, it does not depend. If you’re going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent.

The big problem I have is that you’re criminalizing the war, that if we caught bin Laden tomorrow, we’d have mixed theories and we couldn’t turn him over—to the CIA, the FBI or military intelligence—for an interrogation on the battlefield, because now we’re saying that he is subject to criminal court in the United States. And you’re confusing the people fighting this war.

NYM made the same point as Mr. Graham last week.

4:40 video

Courtesy of our elite law schools, Shearman & Sterling, and a liberal Supreme Court majority, some news agency reports that federal judges are busy right now turning captured jihadis loose.

Complying with a Supreme Court ruling last year, 15 federal judges in the U.S. courthouse (In Washington, D.C.) are giving detainees their day in court after years behind bars half a world away from their homelands.

The judges have found the government’s evidence against 30 detainees wanting and ordered their release. That number could rise significantly because the judges are on track to hear challenges from dozens more prisoners. ...

Bush administration Defense Secretary Donald Rumsfeld once promised Guantanamo held “the worst of the worst.” The judges here have rejected pleas for release from eight detainees, but they have concluded the government doesn’t even have enough evidence to keep 30 other detainees behind bars.

“There is absolutely no reason for this court to presume that the facts contained in the government’s exhibits are accurate,” District Judge Gladys Kessler wrote in ordering the release of Alla Ali Bin Ali Ahmed. He was repatriated to Yemen after a seven-year stay at Guantanamo, where he was brought as a teenager.

“Much of the factual material contained in those exhibits is hotly contested for a host of different reasons ranging from the fact that it contains second- and third-hand hearsay to allegations that it was obtained by torture to the fact that no statement purports to be a verbatim account of what was said,” Kessler said. She ruled the government failed to prove the detainee was part of or substantially supported Taliban or al-Qaida forces.

How can a case against a foreign enemy apprehended by another government possibly be prosecuted within the rules of domestic criminal procedure? Khalid Shaikh Mohammed obviously was never Mirandized. What can Eric Holder and Barack Obama possibly be thinking? Are these people hopelessly naive?

Andrew McCarthy doesn’t think so. He thinks they know exactly what they’re doing.

We are now going to have a trial that never had to happen for defendants who have no defense. And when defendants have no defense for their own actions, there is only one thing for their lawyers to do: put the government on trial in hopes of getting the jury (and the media) spun up over government errors, abuses and incompetence. That is what is going to happen in the trial of KSM et al. It will be a soapbox for al-Qaeda’s case against America. Since that will be their “defense,” the defendants will demand every bit of information they can get about interrogations, renditions, secret prisons, undercover operations targeting Muslims and mosques, etc., and — depending on what judge catches the case — they are likely to be given a lot of it. The administration will be able to claim that the judge, not the administration, is responsible for the exposure of our defense secrets. And the circus will be played out for all to see — in the middle of the war. It will provide endless fodder for the transnational Left to press its case that actions taken in America’s defense are violations of international law that must be addressed by foreign courts. And the intelligence bounty will make our enemies more efficient at killing us.

Read the whole thing.

I don’t always agree with the Jack Russell Terrier camp of Conservative blogging (Michelle Malkin, Pam Geller, Dan Riehl, and so on). I recently thought they were all being silly about the 30 year old Roman Polanski scandal.

But today I certainly think our most belligerent rightwing bloggers are all right and Rick Moran must have failed to take his vitamins recently or has converted to vegetarianism or something. He wrote a sermon advocating RINO conservation, and is dead wrong this time.

Moran’s post opens:

What is it that possesses certain conservatives to fool themselves so spectacularly into believing that they can create a majority out of a minority?

Creating majorities out of minorities is what political ideas and leadership are all about.

We created a majority out of a minority in 1980 and in 1984 and in 1994 and in 2000 and in 2004. We get some excellent assistance from the democrats who do outrageous, foolish, and unpatriotic things all the time, and who sometimes try to nationalize the American health care system.

When Hillary Clinton tried that last time, we converted a minority into majority control of both houses of Congress.

We’re just starting to vote today, but we are predicted to convert a conservative minority into a whopping majority in the Virginia gubernatorial race. And events in New York state’s 23rd Congressional race seem to be well on the way to proving that the conservative minority can oust the establishment ersatz Republican candidate and still win the election.

I hope Rick Moran has a taste for feathers, because it certainly looks like he will soon be eating crow.

I’m with Pam Geller on this one. Olympia Snowe a la lanterne! Give Rick Moran a stiff shot of fiery rum.

Jeremy Meister is becoming a bit irritated with the liberals as the next round of debate on so-called Health Care Reform gets underway.

So now that the fifth bill on health care reform is out, here comes the next round of arguments. Meaning that Conservatives will have to restate everything we’ve already said because all the stuff we were opposed to in the first four bills has been combined into the new legislation.

Personally, I’m tired of giving Liberal idiots sources they never read, reminding them of political promises now being broken, and pointing out the gross hypocrisy of the liberal Congress. Lefties don’t care. They hear the word “free” and they’re sold. Which is kind of interesting when you consider that they dub anyone opposed to health care reform “greedy” and “selfish.”

Talk about “greedy” and “self serving.” Conservatives aren’t the ones out there demanding that someone else pay for their health care/school/retirement/whatever. Conservatives aren’t the ones out there demanding that the government use threats and coercion to force their neighbors into systems said neighbors might not like.

Libs want to defend themselves by claiming that they’ll tax “the rich” who “already have enough.” That’s funny when you consider that the Left marches around with that smug, holier-than-thou glow as they lecture the rest of us about being non-judgmental and forsaking stereotypes. Nice that they leave out a definition of “rich” so that poor, blue-collar, working-class Joes like Michael Moore can join their mob without having to feel bad.

A more obnoxious argument is, “You don’t like government? Then you should pull out of fire and police then.”

Yeah right, there is no difference at all between a 1,900-page Socialized Medicine law—which will affect all people inside the boundaries of the United States—and local law enforcement. Not one single difference. None at all. Thank you for pointing that out.

I found it distasteful to vote for a liberal democrat in the Connecticut Senate Race of 1988, but William F. Buckley Jr. had proposed that conservative Republicans do precisely that in order to rid the US Senate and the Republican Party of that odious skunk Lowell Weicker, and Buckley’s reasoning made sense.

At the time, of course, we hoped we would go on to capture back that Senate seat six years later with a real Republican, but that never happened.

Who would have ever have imagined that voting for Joe Lieberman all those years ago would again result in joy?

It is very possible that Bill Buckley’s delivery of conservative support to Joe Lieberman in 1988 may now, 21 years later, save the country from the democrat party left’s attempt to nationalize 1/6th of the US economy. That good man Joe Lieberman has announced that he will support the GOP filibuster in the Senate blocking passage of the public option.

Dan Riehl condescends to gloat.

Halp! Someone Call Ned Lamont

LMAO Watch the netroot’s heads explode.They betrayed Lieberman for Ned Who?, let’s not forget that. Now that failed Lefty power grab is coming back to bite them on the azz. There’s absolutely no reason for Lieberman to cave on this. They gave him the opportunity to show his strength as an Independent and he proved it. Choke on that, Libs.

Hat tip to the Barrister.

Bill Buckley smokes a celebratory cigar in heaven.

Gallup finds that conservatives continue to outnumber liberals and moderates, and that growing numbers of Americans agree with conservative positions on many specific issues.

Get ready for 2010. We will be taking the country back.

Conservatives continue to outnumber moderates and liberals in the American populace in 2009, confirming a finding that Gallup first noted in June. Forty percent of Americans describe their political views as conservative, 36% as moderate, and 20% as liberal. This marks a shift from 2005 through 2008, when moderates were tied with conservatives as the most prevalent group.
The 2009 data are based on 16 separate Gallup surveys conducted from January through September, encompassing more than 5,000 national adults per quarter.
Conservatives have been the dominant ideological group each quarter, with between 39% and 41% of Americans identifying themselves as either “very conservative” or “conservative.” Between 35% and 37% of Americans call themselves “moderate,” while the percentage calling themselves “very liberal” or “liberal” has consistently registered between 20% and 21%—making liberals the smallest of the three groups.

The Wall Street Journal reported yesterday: The U.S. pay czar will cut in half the average compensation for 175 employees at firms receiving large sums of government aid, with the vast majority of salaries coming in under $500,000, according to people familiar with the government’s plans.

As expected, the biggest cut will be to salaries, which will drop by 90% on average. Kenneth Feinberg, the Treasury Department’s special master for compensation, is expected to issue his determinations today.

Professor Bainbridge explains just how outrageous, unconstitutional, and violative of fundamental principles of law the Obama Administration’s business decrees are.

There really ought to be more outrage about this proposal. As a letter to the editor in today’s WSJ (Wednesday, 10/21—the Journal does not archive Letters to the Editor, so Professor Bainbridge was remiss in failing to credit Peter Kirchman of Bay City, Michigan for this excellent contribution to the debate – DZ) aptly observed:

To those who would defend the government’s ability, justification and right to negate Ken Lewis’s contract and hijack his pay (“The Fall Guy,” Review & Outlook, Oct. 2), I offer a John Adams quote found in David McCullough’s book “John Adams.” Adams stopped at a tavern for lodging. He happened to overhear several locals discussing British actions regarding taxation. One man says to the rest, “. . . if Parliament can take away Mr. Hancock’s wharf and Mr. Row’s wharf, they can take away your barn and my house.”

Mr. Lewis might already be considered rich, as was Mr. Hancock, and the amount of severance may seem to be outrageous, but to you supporters of this confiscation I ask: If you grant the federal government’s pay czar the power to confiscate or alter the pay of 175 Americans today, whose barn or house is next?

The point is exceptionally well taken. The Obama administration has shown a shocking disregard for the rule of law when contract rights interfere with the administration’s ability to reorder the American economy as it sees fit.

As Todd Zywicki observed when Obama threw Chrysler lenders under the bus:

The rule of law, not of men—an ideal tracing back to the ancient Greeks and well-known to our Founding Fathers—is the animating principle of the American experiment. While the rest of the world in 1787 was governed by the whims of kings and dukes, the U.S. Constitution was established to circumscribe arbitrary government power. It would do so by establishing clear rules, equally applied to the powerful and the weak. Fleecing lenders to pay off politically powerful interests, or governmental threats to reputation and business from a failure to toe a political line? We might expect this behavior from a Hugo Chávez. But it would never happen here, right? Until Chrysler. ... The Obama administration’s behavior in the Chrysler bankruptcy is a profound challenge to the rule of law. Secured creditors—entitled to first priority payment under the “absolute priority rule”—have been browbeaten by an American president into accepting only 30 cents on the dollar of their claims. Meanwhile, the United Auto Workers union, holding junior creditor claims, will get about 50 cents on the dollar.

And then Obama bullied GM’s bondholders to the extent that even the Obamabots on the Washington Post’s editorial board were moved to protest that “the Obama administration is coming dangerously close to engaging in financial engineering that ignores basic principles of fairness and economic realities to further political goals.

Ayn Rand, young and svelte, in Hollywood

Ilya Somin, at Volokh, having just finished Jennifer Burns’s excellent new biography of Ayn Rand, makes a point of recommending it, and offers his own view of Rand.

Ayn Rand was the greatest popularizer of libertarian ideas of the last 100 years. Many more people have read Rand’s books than have read all the works of Friedman, Hayek, Mises, Nozick, and all the other modern libertarian thinkers combined. In becoming a libertarian without any influence from Rand, I was actually unusual. Over the last 15 years, I have met a large number of libertarian intellectuals and activists of the last two generations, including some of the most famous. More often than not, reading Rand influenced their conversion to libertarianism, even though very few fully endorse her theories or consider themselves Objectivists. Burns quotes Milton Friedman’s perceptive assessment of Rand as “an utterly intolerant and dogmatic person who did a great deal of good.” I think he was probably right.

Rand turns Marxism on its head. While Marxists argue that “capitalists” make their profits on the backs of the working class, Rand illustrates that the working class, as such, makes almost no contribution to wealth, but relies on the efforts, risks, sacrifices, and most of all the genius of the entrepreneurial class. Consider, as a thought experiment, what living standards would be like if every person in the world had an IQ around the median of 103, and otherwise had average talents and ambition. Does anyone seriously doubt that “workers,” and everyone else, would be a lot poorer than they are today, and indeed would likely be living as poorly as our hunting and gathering ancestors?

In evaluating the absurdity of the Nobel Committee’s Peace Prize Award to Barack Obama, as Bruce Walker suggests, it really puts the whole thing into perspective when you look at who didn’t win.

Few spectacles so clearly show the politicization of life than the surreally silly award of the Nobel Peace Prize to Obama. The Nobel Prize has long been a reflection of the whims of those who run political correctness. ...

(For proof, consider) all the people who did not receive the Nobel Peace Prize. Ronald Reagan won the Cold War without firing a shot, the greatest triumph for peace in world history. Pope John Paul II boldly reached out to end the historic distrust between the Catholic Church and Jews; he also showed how passive resistance could work in Poland; he also went around the world preaching peace and love; he also forgave the Moslem who tried to assassinate him. Alexander Solzhenitsyn won the Nobel Prize for Literature, but not for Peace, even though he proved, perhaps more courageously than any man in modern history, that the pen could be mightier than the sword. Konrad Adenauer worked hard for a peaceful Germany at the end of the First World War; he opposed the Nazis and spent time in a concentration camp for that; after the Second World War ended, Adenauer reunited the three western sectors of Germany and reached out to Israel and offered, without being asked, for the Federal Republic of Germany to pay reparations to Israel. None of these magnificent champions of peace won the Nobel Peace Prize.

The Nobel Peace Prize, like the support of Code Pink is based upon ideology and nothing else. So Obama, Gore, Carter, and Wilson have won the Peace Prize, but Reagan, who dedicated his last term in office to ridding the world of nuclear weapons and who actually won a world war without violence, does not. Willy Brandt, a thoroughly unlikable socialist West German chancellor, who left office in scandal, wins the award, while a magnificently noble conservative West German chancellor does not. So two Soviets who buy the rhetoric of the chic left – Gorbachev and Sakharov – win the award, while a much braver and clear voice for peace, Solzhenitsyn, does not?

We should know by now, if we ever needed to know, that the awards, compliments, and honors which the establishment of the world offers is offered only to those who have first paid homage to the ideology of the left. Awards given to communist terrorists, like Le Duc Tho, or anti-Semitic ogres like Jimmy Carter, are no badges of achievement: such awards are evidence of moral surrender.

Law and order can easily be over-rated in a society with the abundance of laws criminalizing all sorts of things, even orchids, as Bryan W. Walsh explains in the Washington Times.

“You don’t need to know. You can’t know.” That’s what Kathy Norris, a 60-year-old grandmother of eight, was told when she tried to ask court officials why, the day before, federal agents had subjected her home to a furious search.

The agents who spent half a day ransacking Mrs. Norris’ longtime home in Spring, Texas, answered no questions while they emptied file cabinets, pulled books off shelves, rifled through drawers and closets, and threw the contents on the floor.

The six agents, wearing SWAT gear and carrying weapons, were with – get this- the U.S. Fish and Wildlife Service.

Kathy and George Norris lived under the specter of a covert government investigation for almost six months before the government unsealed a secret indictment and revealed why the Fish and Wildlife Service had treated their family home as if it were a training base for suspected terrorists. Orchids.

That’s right. Orchids.

By March 2004, federal prosecutors were well on their way to turning 66-year-old retiree George Norris into an inmate in a federal penitentiary – based on his home-based business of cultivating, importing and selling orchids.

Mrs. Norris testified before the House Judiciary subcommittee on crime this summer. The hearing’s topic: the rapid and dangerous expansion of federal criminal law, an expansion that is often unprincipled and highly partisan.

Chairman Robert C. Scott, Virginia Democrat, and ranking member Louie Gohmert, Texas Republican, conducted a truly bipartisan hearing (a D.C. rarity this year).

These two leaders have begun giving voice to the increasing number of experts who worry about “overcriminalization.” Astronomical numbers of federal criminal laws lack specifics, can apply to almost anyone and fail to protect innocents by requiring substantial proof that an accused person acted with actual criminal intent.

Mr. Norris ended up spending almost two years in prison because he didn’t have the proper paperwork for some of the many orchids he imported. The orchids were all legal – but Mr. Norris and the overseas shippers who had packaged the flowers had failed to properly navigate the many, often irrational, paperwork requirements the U.S. imposed when it implemented an arcane international treaty’s new restrictions on trade in flowers and other flora.

The judge who sentenced Mr. Norris had some advice for him and his wife: “Life sometimes presents us with lemons.” Their job was, yes, to “turn lemons into lemonade.”

The judge apparently failed to appreciate how difficult it is to run a successful lemonade stand when you’re an elderly diabetic with coronary complications, arthritis and Parkinson’s disease serving time in a federal penitentiary. If only Mr. Norris had been a Libyan terrorist, maybe some European official at least would have weighed in on his behalf to secure a health-based mercy release.

Krister Evertson, another victim of overcriminalization, told Congress, “What I have experienced in these past years is something that should scare you and all Americans.” He’s right. Evertson, a small-time entrepreneur and inventor, faced two separate federal prosecutions stemming from his work trying to develop clean-energy fuel cells.

The feds prosecuted Mr. Evertson the first time for failing to put a federally mandated sticker on an otherwise lawful UPS package in which he shipped some of his supplies. A jury acquitted him, so the feds brought new charges. This time they claimed he technically had “abandoned” his fuel-cell materials – something he had no intention of doing – while defending himself against the first charges. Mr. Evertson, too, spent almost two years in federal prison.

As George Washington University law professor Stephen Saltzburg testified at the House hearing, cases like these “illustrate about as well as you can illustrate the overreach of federal criminal law.”

Patrick, at Popehat, describes how Britain’s police these days protect young thugs by arresting old ladies with walkers for confronting them.

Renate Bowling, a 71 year old widow who escaped to the free world from East Germany, is now a common criminal. She had the poor judgment to “poke” a 17 year old hooligan who was part of a gang throwing rocks at her house. While in America or any other sane country Ms. Bowling would have been let off with a warning, Ms. Bowling is not so fortunate.

She has the bad luck to live in the world’s worst nanny state.

The Crown Prosecution Service today defended its decision to take legal proceedings against a 71-year-old woman who prodded a 17-year-old youth in the chest.

Renate Bowling, of Thornton Cleveleys, Lancashire, confronted the boy in the street after stones were thrown at her home. The disabled widow, who walks with a steel frame, said she thought it was a “joke” when police arrived at the scene and arrested her for jabbing the teenager with her finger.

While the Crown, which undoubtedly prosecuted this vicious criminal for the sake of the children, claims there was no evidence that the youth who received this vicious jabbing threw the rock, it ignores Ms. Bowling’s own account, in which she saw the boy standing in the street, in the direction from which the rocks had been thrown, and later hiding behind a wall. Ms. Bowling had to toddle out with her walker to confront the little monster. ...

What sort of country raises entitled young hooligans, who abuse old ladies by pelting them with stones and calling them “German whores”? Hooligans who run to the police when they’re beaten up by the old ladies? What sort of country tolerates, encourages, and condones this sort of behavior?

Hat tip to Will Wilson.

Roman Polanski

The director Roman Polanski is a significant artist of international stature. He is also 76 years old. More than 30 years ago, Polanski had sex with an underage girl in California. The judicial proceedings which took place at the time were improperly influenced by the superfluity of media attention focused on a famous Hollywood director entangled in a sex scandal.

Marina Zenovich’s 2008 documentary film Roman Polanski: Wanted and Desired made it generally known that Polanski accepted a plea bargain which put him behind bars in very unpleasant circumstances “for psychiatric evaluation” for 42 days in Chino State Prison. After which time, according to the deal made with prosecutors, Polanski was supposed to be let off without further incarceration.

Newspaper reports, however, inflamed public opinion about the case, and Judge Laurence Rittenband arbitrarily decided to void Polanski’s plea bargain and impose an exemplary sentence, essentially sacrificing the unlucky director for the gratification of the tabloid mob. Polanski was temporarily at large when he learned of the judge’s intentions, and prudently fled into exile in Europe.

Polanski was certainly guilty of a form of sexual misbehavior which, depending on the overall circumstances, can be prosecuted as a serious crime. But consensual sex with underage girls is only “rape” in a technical sense. Michelle Malkin is making a regrettable spectacle of herself striking ridiculous moralistic poses, calling Polanski a “perv,” and describing sensible persons disinclined to support wasting government time and resources on seeking pointless vengeance on an old man a generation after the fact “crime-coddling apologists.”

This kind of naive legal absolutism rests on a childish fantasy that human acts, their legal status, and the outcome of judicial proceedings are matters of black and white, that good people, like Michelle Malkin and the rest of us on the Right, are always in favor of enforcing the letter of the law. I’m not. Laws (like our immigration and drug laws) can be ill-considered. Courts are sometimes corrupt. They are sometimes mistaken. Laws can be wrongly or simply arbitrarily enforced. After 30 years, some laws are no longer worth enforcing, some cases are no longer worth punishing.

The young woman who had sex with Polanski, now middle-aged, has said publicly that she thought she was being exploited by the court at the time, that she forgives Polanski, and that she finds the idea of re-opening the case against him embarrassing to herself and her family. So whom do we need to be avenging?

Patterico, who actually works at the same Los Angeles District Attorney’s Office has gone even more loco with the same law-and-order zealotry.

He is raving about a conflict of interest in Anne Applebaum editorializing in favor of clemency in a stale and aged case involving an internationally renowned artist who is elderly, who has made significant cultural contributions, and who has himself been more than once a victim of terrible injustices. Anne Applebaum, you see, is married to Polish Foreign Minister Radek Sikorski. Polanski is a Pole, and Poland is protesting his arrest, so Patterico thinks her editorials need to be accompanied by a warning of undue influence from the Polish Government. Lord!

I personally think conservative righteousness, outrage, and pettyfogging argument is more appropriately reserved for graver issues than a case of Hollywood hanky-panky from thirty years in the past. And, until Utopia is achieved and we have a perfect legal system administered by angels, applying a flawless legal code in every case with precision accuracy and scrupulous evenhandedness, I think we can skip all the rah-rah law-and-order nonsense.

Sometimes the law is an ass. And the day the US undertook to extradite Roman Polanski over a roll in the hay that occurred during the opening days of the Consulship of Jimmy Carter is one of those times.

The Stanford Review, that university’s student conservative newspaper, is looking for a few good women.

Jessica Palmer found the ad on a NYU Social Psychology page under Multiculturalism. It looks like a recruiting tool which the Stanford Review has been using for several years.

In New Republic, Jonathan Chait, uses the purported review space for two new biographies of Ayn Rand—Jennifer Burns’s Goddess of the Market: Ayn Rand and the American Right and Anne C. Heller’s Ayn Rand and the World She Made (to be released October 27)—to deliver instead an attack on Rand and her philosophy of which Ellsworth Toohey would be proud.

Admirers of Rand will enjoy reading this relatively sophisticated analysis of her influence, and will probably also perversely enjoy (in the mode of intellectual pathologist) the ingenious and sophistical rhetorical ploys Chait uses to defend his own leftism.

We’re really squabbling over nothing, Chait explains in a particularly artful pair of paragraphs. Accept Chait’s numbers (if you do, come see me about a bridge I’m selling), and it all becomes clear: the difference between conservative and liberal tax policies amounts to a tiny, scarcely significant, percentage.

Most of the right-wing commentary purporting to prove that the rich bear the overwhelming burden of government relies upon the simple trick of citing only the income tax, which is progressive, while ignoring more regressive levies. A brief overview of the facts lends some perspective to the fears of a new Red Terror. Our government divides its functions between the federal, state, and local levels. State and local governments tend to raise revenue in ways that tax the poor at higher rates than the rich. (It is difficult for a state or a locality to maintain higher rates on the rich, who can easily move to another town or state that offers lower rates.) The federal government raises some of its revenue from progressive sources, such as the income tax, but also healthy chunks from regressive levies, such as the payroll tax.

The sum total of these taxes levies a slightly higher rate on the rich. The bottom 99 percent of taxpayers pay 29.4 percent of their income in local, state, and federal taxes. The top 1 percent pay an average total tax rate of 30.9 percent—slightly higher, but hardly the sort of punishment that ought to prompt thoughts of withdrawing from society to create a secret realm of capitalistic übermenschen. These numbers tend to bounce back and forth, depending upon which party controls the government at any given time. If Obama succeeds in enacting his tax policies, the tax burden on the rich will bump up slightly, just as it bumped down under George W. Bush.

Excellent reading for train rides through Rocky Mountain tunnels.

Former conservative Mark Lilla, in Chronicle of Higher Education, welcomes the University of California at Berkeley’s opening of a “Center for the Comparative Study of Right-Wing Movements” (which is obviously destined to link Edmund Burke, William F Buckley, Jr., and Adolph Hitler in a common pattern of pathological aversion to the Good, the True, and the Beautiful), expressing guarded optimism over the possibility of its getting “professors and students to discuss ideas and read books that until now have been relegated to the Index Librorum Prohibitorum.”

The unfortunate fact is that American academics have until recently shown little curiosity about conservative ideas, even though those ideas have utterly transformed American (and British) politics over the past 30 years. A look at the online catalogs of our major universities confirms this: plenty of courses on identity politics and postcolonialism, nary a one on conservative political thought. Professors are expected to understand the subtle differences among gay, lesbian, and transgender studies, but I would wager that few can distinguish between the American Enterprise Institute, the Heritage Foundation, and the Cato Institute, three think tanks that have a greater impact on Washington politics than the entire Ivy League.

Why is that? The former left-wing firebrand David Horowitz, whom the professors do know, has a simple answer: There is a concerted effort to keep conservative Ph.D.’s out of jobs, to deny tenure to those who get through, and to ignore conservative books and ideas. It is an old answer, dating back to the 1970s, when neoconservatives began writing about the “adversary culture” of intellectuals. Horo witz is an annoying man, and what’s most annoying about him is that … he has a point. Though we are no longer in the politically correct sauna of the 1980s and 1990s, and experiences vary from college to college, the picture he paints of the faculty and curriculum in American universities remains embarrassingly accurate, and it is foolish to deny what we all see before us.

Over the past decade, our universities have made serious efforts to increase racial and ethnic diversity on the campus (economic diversity worries them less, for some reason). Well-paid deans work exclusively on the problem. But universities show not the slightest interest in intellectual diversity among faculty members. That wouldn’t matter if teachers could be counted on to introduce students to their adversaries’ books and views, but we know how rarely that happens. That’s why political diversity on the faculty does matter. As it stands, there is a far greater proportion of conservatives in the student body of typical colleges than on the faculty. A few leading thinkers on the right do teach at our top universities—but at some, like Columbia University, where I teach, not a single prominent conservative is to be found.

Contra Horowitz, the blackballing of conservatives and conservative ideas is by now instinctive and habitual rather than self-conscious, reflecting intellectual provincialism more than ideological fervor. I recall being at a dinner in Paris in the late 1980s with a distinguished American historian of France who had gathered her graduate students for the evening. The conversation turned to book printing in the early modern era, which she was studying, and the practice of esoteric writing, which was more widespread than she had imagined. I mentioned that there was a classic book on this subject by Leo Strauss. She searched her mind for a moment—this was before the Iraq war made Strauss a household name—and then said, “But isn’t he a conservative?” In a certain way he was, I said. Silence at the table. She smiled that smile meant to end discussion, and the conversation turned to more-pleasant topics.

Nonetheless, Lilla quarreled with David Horowitz’s “anti-intellectual” “dumbing down” indictment of exactly the same liberal dogmatism and intolerance he himself recognizes in an obviously more becoming and appropriate rueful tone which differs from Horowitz by its passive acceptance of the situation.

But even Lilla’s comparatively timid public recognition of the left’s tyrannical regime within most American universities provoked liberal pooh-pooh-ing in a follow-up exchange.

Bruce L.R. Smith, nearly inadvertently, finds real world practical considerations making denial just a bit awkward.

Lilla states that there is not a single conservative at Columbia University. I can assure him that this is not so. In 2000, I returned to Columbia after a 20-year hiatus as a fellow at the Heyman Center for the Humanities. Over the next five years I renewed friendships and acquaintanceships with many colleagues (and met new ones), some of whom can fairly be called conservatives. Perhaps I will prove Lilla’s point by forbearing to mention them by name, other than myself.

Andrew looks smug in his Atlantic logo illustration. It’s nice having friends in high places.

Remember George W. Bush?

We used to have a president so rigidly righteous that he actually refused to pardon Lewis Libby for defending his own administration and thus becoming the target of a special prosecutor and winding up convicted of perjury (in a case where no crime was really ever proven to have occurred) by a DC jury.

Now we have Barack Obama, who is not like that at all.

Intimidate voters, brandishing billy clubs in Philadelphia? You don’t get prosecuted if you were an Obama supporter. Eric Holder’s Justice Department will overrule career prosecutors for you.

Are you a governor or state official taking campaign contributions in exchange for contracts? If you’re a democrat, you are OK. Eric Holder’s Justice Department will drop the investigation.

Suppose you are a homosexual leftwing blogger, who also happens to be a non-US-citizen, in danger of getting into trouble with immigration if you are convicted of a misdemeanor for smoking marijuana on a Cape Cod Beach? You have a Get Out of Jail Free card, if you are, as Andrew Sullivan is, a faithful defender of Barack Obama and his policies. The US Attorney’s Office will go right on prosecuting non-Obama-supporting-bloggers coming before the court for the identical complaint, but will shock the court by giving you a special pass.

Andrew himself is declining to comment on the advice of counsel.

Boston Globe

Some News Agency

John Hinderaker has a comment.

We were arguing about the bailouts on my class email list, and a liberal classmate noted that George W. Bush started them. Bush was a conservative, he argues, so bailouts are conservative.

My classmate writes:

If Bush is actually a conservative, why did he go along with the bailout?

And if you now say, he isn’t or wasn’t, how can you be so rigid in your identifications of political categories, like “liberal” or “conservative.” Bush sounds like a quantum experiment, he’s a conservative until he isn’t? Is that your Schrodinger cat experiment? Your polemics are so absolute, but the reality is less so.

Reality is less consistent than my politics. George W. Bush ran as a Republican. I think he had some conservative views, but do remember he was always a “compassionate conservative,” the kind of politician striving to be a “uniter not a divider.” GWB’s record is very mixed from a conservative point of view. He was most conservative with respect to siding with ordinary Americans in the culture wars against the leftwing coastal elite. He seems to have had a visceral antipathy to the same elite from which he traces his own roots, and I find that basically the most lovable thing about George W. Bush.

He had ambitions to reduce taxes and to fix Social Security and health care, but Republicans in Name Only rendered his Congressional majority meaningless. Bush got temporary tax cuts (which will soon be expiring, God help the economy!), and got neither of the others.

9/11 turned Bush into a Big Government president. He created the preposterous Department of Heimat Sekuritat. He allowed political correctness to reign in airline security, confiscating nail clippers and searching blue-haired grannies from Nebraska, while continuing to allow Muslims on US flights. He waged two wars, which he conducted in a politically correct, Wilsonian manner, losing the support of the public at home and failing to rebuke domestic treason. He never explained their goals and objectives well enough, and he was too slow. The US public gets tired of wars that take too long. He kept the country safe after 9/11. No second successful mass attack ever occurred, but he also never caught bin Laden, and I do not think he actually did democratize the Middle East.

His panicky bailouts were a terrible departure from Republican principle. And, in the final analysis, we are obliged to conclude that George W. Bush received the support of a comfortable American majority in favor of lower taxes, smaller government, less political correctness, a balanced budget and a strong national defense. He accomplished little, and he managed to throw away that majority and lose Congress and the White House to a radical democrat party rump, so scary left that a lot of people believed the GOP needed only to point to them and it could enjoy an electoral majority in perpetuity.

The framers in Valhalla are doubtless distressed to see a radical community organizer and representative of the corrupt Daley machine sitting in the White House apologizing to Muslims and trying to make America into a socialist welfare state. George W. Bush will have a lot of explaining to do when he sees them

In the Wall Street Journal, Dr. Richard B. Rafal argues that the legal profession should get its own share of “reform.”

Since we are moving toward socialism with ObamaCare, the time has come to do the same with other professions—especially lawyers. Physician committees can decide whether lawyers are necessary in any given situation. ...

Following are highlights of a proposed bill authorizing the dismantling of the current framework of law practice and instituting socialized legal care:...

Legal “DRGs.” Each potential legal situation will be assigned a relative value, and charges limited to this amount. Program participation and acceptance of this amount is mandatory, regardless of the number of hours spent on the matter. Government schedules of flat fees for each service, analogous to medicine’s Diagnosis Related Groups (DRGs), will be issued. For example, any divorce will have a set fee of, say, $1,000, regardless of its simplicity or complexity. This will eliminate shady hourly billing. Niggling fees such as $2 per page photocopied or faxed would disappear. Who else nickels-and-dimes you while at the same time charging hundreds of dollars per hour? I’m surprised lawyers don’t tack shipping and handling onto their bills.

 Legal “death panels.” Over 75? You will not be entitled to legal care for any matter. Why waste money on those who are only going to die soon? We can decrease utilization, save money and unclog the courts simultaneously. Grandma, you’re on your own.

Ration legal care. One may need to wait months to consult an attorney. Despite a perceived legal need, physician review panels or government bureaucrats may deem advice unnecessary. Possibly one may not get representation before court dates or deadlines. But that’ s tough: What do you want for “free”?

Physician controlled legal review. This is potentially the most exciting reform, with doctors leading committees for determining the necessity of all legal procedures and the fairness of attorney fees. ...

Electronic legal records. We should enter the digital age and computerize and centralize legal records nationwide. All files must be in a standard, preferably inconvenient, format and must be available to government agencies. A single database of judgments, court records, client files, etc. will decrease legal expenses. Anyone with Internet access will be able to search the database, eliminating unjustifiable fees charged by law firms for supposedly proprietary information, while fostering transparency. It will enable consumers to dump their clunker attorneys and transfer records easily. ...

New government oversight. Government overhead to manage the legal system will include a cabinet secretary, commissioners, ombudsmen, auditors, assistants, czars and departments.

Collect data about the supply of and demand for attorneys. Create a commission to study the diversity and geographic distribution of attorneys, with power to stipulate and enforce corrective actions to right imbalances. The more bureaucracy the better. One can never have too many eyes watching these sleazy sneaks.

Read the whole thing.

My class list has been obsessing over Skip Gates’s arrest in Cambridge for a couple of days. Most participants tended to agree that the Cambridge cop had not behaved unreasonably, but a few correspondents were inclined to contend that arguing with police and denouncing their presence and behavior should be considered First Amendment-protected instances of Free Speech.

Captain Brandon del Pozo of the NYPD discusses the Gates arrest from a professional police perspective on Crooked Timber, refuting, I think, effectively the Free Speech claim.

Whether or not a person should be arrested for disorderly conduct depends on subjective assessments that are nonetheless important to make. (more on discretion later) These include the extent to which the interaction is actually in public, the extent to which he has genuinely impeded the investigation by being verbally combative with an officer who needs to elicit investigative information from him, or created a situation of genuine public alarm, and, admittedly more controversially, the extent to which he fosters a climate wherein it’s acceptable for people to harass, berate and otherwise annoy the police as they are trying to conduct routine investigations that are in the interest of public safety. ...

The officer instructs the person to exit the house and talk on the porch. This is standard police safety practice. An unfamiliar building with unknown occupants that is the potential site of a burglary is not a safe place for an officer to enter, especially alone. If he is drawn into the home and attacked there, he can be locked in and will take longer to rescue. Kitchens have a variety of weapons, and rooms have limited sight lines and places for suspects to hide. Bringing a suspect to the porch is a prudent move for an officer.

The man knows what’s going on. He did, in fact, just force his own front door open. All accounts indicate the sergeant showed up moments later; the 911 caller personally informed him, in sum and substance, “he just went into the house a few seconds ago.” There is a continuity of events that indicates a reasonable person would understand why the police came to his door a few moments after he broke it open. The only thing that could indicate a race bias is the unobserved hypothetical that the police would not have been there if he was white. This doesn’t matter; for a homeowner of any race there is a facially plausible race-neutral reason why the police have come to the door.

Around this time, the person begins to accuse the officer of racism, at first refusing to cooperate with the investigation. This makes the investigation more difficult, and might make the officer wonder if he is safe. To assume Gates isn’t the type of man to use violence when he is angry and using obscenities is to emasculate him, or patronize him, or to resort to stereotypes based on age, stature, type of employment, etc. Anyway, early on, the sergeant concludes this man is not a burglar, but reports that the man continues to be verbally belligerent. ...

The police cannot be expected to leave a location simply because the person there is screaming at them and ordering them around, even if that person is apparently innocent and likely lives there. They should still thoroughly investigate. If this were a legitimate expectation of the police, then it would sometimes allow genuine criminals to berate cops into leaving the scene prior to a complete and thorough investigation of the crimes they have committed. Officers should leave when they are convinced that the investigation is complete, and that the situation is under control, regardless of the demeanor of a person.

The police need to foster an environment in which they can deliver public safety without being subject to obscenities, accusations and yelling from any party, even innocent parties. The judgments of policing are obviously difficult and subjective, and are often marred when they are made in the face of people issuing inflammatory comments even as the police are rendering routine services with an obvious cause. It is in the collective interest of citizens and police to promote an environment where the police can conduct an investigation calmly and with mutual respect. It cannot become commonplace for people to be allowed to scream at the police in public, threatening them with political phone calls, deriding their abilities, etc. Routine acts like rendering aid to lost children, taking accident reports and issuing traffic violations could be derailed at any time by any person who has a perceived grievance with the police. The police service environment is not the best venue for the airing of such grievances.

The police should not be cowed by threats of phone calls to people such as mayors, police chiefs and presidents of the United States, along with allegations that “you don’t know who you’re messing with.” It is traditionally whites who have had this type of crooked access and influence. These appeals to higher authorities are often meant to exempt the ruling castes from following the rules and laws that the rest of the community will be expected to follow. It happens, it is unfortunate, and it is not in the interests of justice for it to continue. Nobody trying to do their job fairly deserves to hear the equivalent of “My daddy donated fifty million to this university, and you’ll be getting calls from everywhere in the administration about raising my grade enough for this class to count as a distributive requirement.”

It is possible for a person to commit disorderly conduct by unabated screaming and verbal abuse in a public setting. Without drawing conclusions about the Gates case, there comes some point where a person is genuinely causing public alarm, and where he is acting with a rage that exceeds what we can expect from a reasonable person in a heated moment. The mere presence of the police conducting a legitimate investigation should not provoke continuous rage and epithets from such a person. One response is that the police should just leave if the investigation has been conducted successfully, and that this will calm the person down. In practice, this is indeed often the best thing to do. On the other hand, it should be noted that it is just as much the responsibility of the citizen to see that his actions are an inappropriate way to relate to police officers who have not, in the specific case at hand, acted unreasonably. This point may be hotly contested, but I believe it is true: there is no obligation for the police to hurry in their activities or to leave as soon as possible because they have incited the rage of a person who is acting unreasonably. There is a distinction between hanging around to show them who’s boss and working at a steady, professional pace, to be sure. But in the end the mere presence of the police cannot be seen as an acceptable reason for disorderly conduct, and should therefore not spur the police to leave a scene simply to de-escalate it. A police strategy of “winning by appearing to lose” emboldens citizens to attempt to get the police to lose in more and more serious matters, including walking away from situations where a person is genuinely guilty of a crime.

It is in the civic interest for cops to have discretion over violations and some misdemeanors.

Glenn Reynolds reports that, for some strange reason, sales of books like Ayn Rand’s Atlas Shrugged and Friedrich Hayek’s Road to Serfdom are soaring.

The amused cynic contends:

(W)hat is happening is that through the “economic emergency,” Obama is trying to implement Rand’s fictitious “Directive 10-289,” which is what the the combination of “stimulus package,” unsupervised TARP bailouts, “Cap and Trade,” and “Health Care Reform” equal when they are rammed down your throats without discussion (or even the reading of the details) by your supposed “representatives” in the national government.

He quotes none other than Michelle Obama herself, telling an audience at UCLA last year:

Barack, as Oprah said, is one of the most brilliant men you will meet in our lifetime.

Barack is more than ready. He’ll be ready today, he’ll be ready on day one, he’ll be ready in a year from now, five years from now – he is ready.

That is not the question. The question is: What are we ready for?

Wait, wait, wait – because we say we’re ready for change, we say we’re ready for change, butcha see, change is HARD.

Change will always be hard, and it doesn’t happen from the top down.

We do not get universal health care, we don’t get better schools because somebody else is in the White House. We get change because folks from the grass roots up decide they are sick and tired of other people telling them how their lives will be – when they decide to roll up their sleeves and work.

And Barack Obama will require you to work.

He is going to demand that you shed your cynicism, that you put down your division, that you come out of your isolation, that you move out of your comfort zones, that you push yourselves to be better, and that you engage.

Barack will never allow you to go back to your lives as usual – uninvolved, uninformed…

Who knows? Like the Khmer Rouge, he may decide to march urban populations out of energy consuming cities for resettlement at collective farm settlements in the countryside, too.

Stuart Taylor Jr. thinks that Sonia Sotomayor and her liberal colleagues made a deliberate effort to spike the Ricci case. He’s probably right.

(B)ut for a chance discovery by a fourth member of the 2nd Circuit Court of Appeals, the now-triumphant 18 firefighters (17 white and one Hispanic) might well have seen their case, Ricci v. DeStefano, disappear into obscurity, with no triumph, no national publicity and no Supreme Court review.

The reason is that by electing on Feb. 15, 2008, to dispose of the case by a cursory, unsigned summary order, Judges Sotomayor, Rosemary Pooler and Robert Sack avoided circulating the decision in a way likely to bring it to the attention of other 2nd Circuit judges, including the six who later voted to rehear the case.

And if the Ricci case—which ended up producing one of the Supreme Court’s most important race decisions in many years—had not come to the attention of those six judges, it would have been an unlikely candidate for Supreme Court review. The justices almost never review summary orders, which represent the unanimous judgment of three appellate judges that the case in question presents no important issues.

The 2nd Circuit and other appeals courts hear cases in three-judge panels, which almost always write full opinions in all significant cases. Those opinions, which are binding precedents, are routinely circulated to all other judges on the circuit, in part so that they can decide whether to request what is called a rehearing en banc by the entire appeals court.

Not so summary orders. They do not become binding precedents, and in the 2nd Circuit they are not routinely circulated to the judges except in regular e-mails containing only case names and docket numbers. Those e-mails routinely go unread, on the assumption that all significant cases are disposed of by full opinions, according to people familiar with 2nd Circuit practice. ...

(A)ny 2nd Circuit judge who had chanced to find and read the panel’s summary order in Ricci would have found only the vaguest indication what the case was about.

Read the whole thing.

fireworks at Chicago’s Navy Pier

Republicans believe every day is the Fourth of July, but the democrats believe every day is April 15.

-Ronald Reagan.

Sonia Sotomayor: Wrong Again

Sonia Sotomayor’s dismal record of Supreme Court reversals is worse by one more. It now stands 6 out of 7, with the Court, however, unanimously rejecting her argument in the single ruling that was upheld. Sotomayor’s reasoning in that case, however, was not merely rejected. It was scathingly described as “fl(ying) in the face of the statutory language.”

Stuart Taylor Jr. explains that on rejecting Sotomayor’s ruling this time the decision was not even close.

The Supreme Court’s predictable 5-4 vote to reverse the decision by Judge Sonia Sotomayor and two federal appeals court colleagues against 17 white (and one Hispanic) plaintiffs in the now-famous New Haven, Conn., firefighters decision does not by itself prove that the Sotomayor position was unreasonable.

After all, it was hardly to be expected that the five more conservative justices—who held that the city had violated the 1964 Civil Rights Act by refusing to promote the firefighters with the highest scores on a job-related promotional exam because none were black—would endorse an Obama nominee’s ruling to the contrary.

What’s more striking is that the court was unanimous in rejecting the Sotomayor panel’s specific holding. Her holding was that New Haven’s decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a “disparate-impact” lawsuit—regardless of whether the exam was valid or the lawsuit could succeed.

This position is so hard to defend, in my view, that I hazarded a prediction in my June 13 column: “Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed… opinion” by U.S. District Judge Janet Arterton.

Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg’s 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven’s decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

It really ought to be a serious factor in the evaluation of a nominee for the Supreme Court that the person has compiled so consistent a record of decisions requiring reversal.

Ricci v. DeStefano

When Amy Wallace interviewed the late Farrah Fawcett by email a few months ago for an article about the history of efforts to produce a film version of Atlas Shrugged, she discovered that the blonde actress had had a special relationship with Ayn Rand and had been Ayn Rand’s choice to play Dagny Taggart (!).

How did you first learn of Ayn Rand’s interest in you? I gather she got in touch in the late ‘70s, when Charlie’s Angels was one of the biggest hit shows ever to appear on TV?

Ayn contacted me with a personal letter (and a copy of Atlas Shrugged) through my agents. Even though we had never met (and never did), she seemed to think we must have a lot in common since we were both born on the same day: February 2nd.

Why did Rand say she was so determined to see you in the role of Dagny Taggart, the female heroine in Atlas Shrugged?

I don’t remember if Ayn’s letter specifically mentioned Charlie’s Angels, but I do remember it saying that she was a fan of my work. A few months later, when we finally spoke on the phone (actually she did most of the speaking and I did most of the listening), she said she never missed an episode of the show. I remember being surprised and flattered by that. I mean, here was this literary genius praising Angels. After all, the show was never popular with critics who dismissed it as “Jiggle TV.” But Ayn saw something that the critics didn’t, something that I didn’t see either (at least not until many years later): She described the show as a “triumph of concept and casting.” Ayn said that while Angels was uniquely American, it was also the exception to American television in that it was the only show to capture true “romanticism”—it intentionally depicted the world not as it was, but as it should be. Aaron Spelling was probably the only other person to see Angels that way, although he referred to it as “comfort television.”

Did Ayn have any favorite episodes of the show?

I have to admit that I don’t think Ayn was a big fan of the stories themselves because she kept saying that someday somebody would offer me a script (and a role) that would give me the chance to “triumph as an actress.” Ayn wanted that script to be Atlas Shrugged and that role to be her heroine, Dagny Taggart. But because of the challenges in adapting and producing the novel for television, several years went by and the script and role that Ayn hoped I would someday be offered turned out to be The Burning Bed and the role of Francine Hughes instead. And so, in an unexpected way, Ayn’s hope or expectation for me did come true. Looking back, she seemed to see something in me that I had not yet seen in myself.

Had you read Atlas Shrugged or any of her other famous books? What was your familiarity with the Rand world view?

At the time that Ayn contacted me about Atlas Shrugged, my only real familiarity with her work was the movie version of her previous novel, The Fountainhead, with Gary Cooper. I remember liking the movie because it was unique in that the characters seemed to be the embodiments of ideas as opposed to real flesh and blood people with interests and lives. Now that I think about it, I think that’s why Ayn was drawn to Charlie’s Angels. Because the characters that Kate, Jaclyn and I played weren’t really characters (the audience never saw us outside of work) as much as personifications of the idea that three sexy women could do all the things that Kojak and Columbo did. Our characters existed only to serve the idea of the show (even “Charlie” was just a faceless voice on a speaker phone).

But I also responded to The Fountainhead because, as an artist (a painter and sculptress) myself, I related to the architect’s resistance to make his work like everyone else’s—which was, of course, what Ayn’s own art was all about. And that resistance to conformity is probably one of the reasons that she was so determined to see me play Dagny: At the time I would have been the completely unexpected choice.

It sounds as if you and Rand got along pretty well.

Later, when I read Atlas Shrugged, I was reminded of my first and only conversation with Ayn and how some of the characters in her novel(s) take an immediate liking to each other, almost as if they had always known each other—at least in spirit. And this was the feeling I got from Ayn herself, from the way she spoke to me. I’ll always think of “Dagny Taggart” as the best role I was supposed to play but never did…

William Voegeli, in the Claremont Review of Books, contemplates the conservative prospect after electoral disaster.

He notes that lost elections have previously been claimed to mark conservatism’s final defeat very prematurely. The difference this time seems to be a vacuum in our national leadership and a new accommodationist internal (Brooks, Frum, Douthat) movement urging conservatives to concede on liberal positions and scuttle toward the center in hope of finding a majority.

Voegeli disagrees, arguing that we should nail our colors to the mast; and, like Whittaker Chambers, resolve to stand upon the side of truth and liberty however adverse their prospects.

One measure of its strength is that conservatism’s policy victories often engender conservatives’ political defeats. The collapse of the Soviet Union in 1991 paved the way for Bill Clinton’s election in 1992, in the same way that the success of the surge in Iraq in 2007 took the war off the front page in 2008, and made it impossible for John McCain to gain electoral traction as its chief advocate. The tax reduction and simplification achieved by the tax reforms of 1986 cleared the canvas for liberals to immediately begin advocating new increases and complexities. Even as the memory of the great crime wave from 1960 through 1994 has been effaced by the expectation of safe streets over the past 15 years, liberal activists and writers are laying the groundwork for a campaign against America’s “scandalously” high incarceration rates. Their “logic” is that safe streets have rendered full prisons unnecessary-rather than full prisons having rendered safe streets possible.

In short, America’s political division of labor finds conservatives cleaning up liberals’ messes, and liberals sweeping into the newly tidy spaces to start making new messes. If that’s true, what is to be done? ....

The danger liberalism poses to the American experiment comes from its disposition to deplete rather than replenish the capital required for self-government. Entitlement programs overextend not only financial but political capital. They proffer new “rights,” goad people to demand and expand those rights aggressively, and disdain truth in advertising about the nature or scope of the new debts and obligations those rights will engender. The experiment in self-government requires the cultivation, against the grain of a democratic age, of the virtues of self-reliance, patience, sacrifice, and restraint. The people who have this moral and social capital understand and accept that there “will be many long periods when you put more into your institutions than you get out,” according to David Brooks. Instead, liberalism promotes snarling but unrugged individualism, combining an absolute right “to the lifestyle of one’s choice (regardless of the social cost) with an equally fundamental right to be supported at state expense,” as the Manhattan Institute’s Fred Siegel once described it. Finally, the capital bestowed by vigilance against all enemies, foreign and domestic, is squandered when liberals insist on approaching street gangs, illegal immigrants, and terrorist regimes in the hopeful belief that, to quote the political scientist Joseph Cropsey, “trust edifies and absolute trust edifies absolutely.”

Conservatives have no guarantees that they will be able to save the American experiment from those who cavalierly dissipate the capital required to sustain it. They can only struggle to prudently reconcile the experiment’s deepest needs with the exigencies posed by today’s circumstances and threats. If that reconciliation ultimately requires nothing short of morally disgusting compromises that give up basic principles, the conservative will, instead, cheerfully commit to doing his duty for the duration, fully expecting to die on the losing side.

Read the whole thing.

—————————————————
But a recent Gallup Poll shows we still outnumber liberals and our numbers are growing.

40% of Americans interviewed in national Gallup Poll surveys describe their political views as conservative, 35% as moderate, and 21% as liberal. This represents a slight increase for conservatism in the U.S. since 2008, returning it to a level last seen in 2004.

Andrew Thomas observes that liberals want to be punished. Liberalism is a lot like BDSM. Liberals yearn to surrender to a domineering master. For them, pain turns into pleasure.

[L]et’s objectively review the initiatives in the neolib agenda: Environmentalism, global passivism, overpopulation, socialized healthcare, and promoting government intervention into all aspects of life. All of these priorities require individuals to sacrifice their lifestyles, their income, and/or their basic comforts.

This past week, House Speaker Nancy Pelosi exhorted, “Every aspect of our lives must be subjected to an inventory…” in order to sacrifice ourselves to the gods of global warming. As presidential candidate Obama said, “We can’t drive our SUVs and, you know, eat as much as we want and keep our homes on, you know, 72 degrees at all times…” He seems to indicate that he wants us to starve and freeze.

Most of these initiatives involve the inflicting of pain and misery. Tom Daschle, in his book “Critical: What We Can Do About The Health Care Crisis” says health-care reform “will not be pain free” and that seniors should be more accepting of the conditions that come with age instead of having them treated. In other words, you will suffer a slow agonizing death under government mandate.

As a final phenomenological exercise, impassively observe the level of neolib support for this agenda. It has not appeared to wane. In fact, neolib fervor continues to increase as the promised level of suffering increases.

Hatred of life, detestation of abundance and material success, self-infliction of pain are all very old patterns of perversity associated with extreme forms of religious aberration. In the Christian context, this sort of thing was usually classified as a heresy, being rightly identified with Manicheanism, a mystical Middle Eastern sect which viewed the universe as dualistic, featuring a good spiritual world created by a positive “Father of Greatness” and a fallen and defective material world created by the “Prince of Darkness.”

In the good old days, when patterns of insanity of this kind led to destruction of works of art, physical assaults on persons, and rejection of property rights in favor of some new millenialist regime prominently featuring sodomy and free love, the Church of Rome and the knightly aristocracy would take drastic action to stamp it out and restore order.

James Baker embraces Nancy Reagan at the ceremony

Peggy Noonan commemorates the installation of “The Only Statue That is Smiling” in the Capitol Rotunda, one of Ronald Wilson Reagan.

You are there.” The rotunda of the U.S. Capitol, that great, sandstone-walled, light-filled hall ringed with statues of the great of American history—Jefferson, Washington, proud Andrew Jackson in his flowing cape, Eisenhower, U.S. Grant, his eyes surveying the terrain as if he sees something out there in the wilderness. It’s 11 a.m. Wednesday, June 3, 2009, and Ronald Reagan marches in, surrounded by his peers. Actually his newly installed statue is unveiled there, in a ceremony attended by officials of both parties (including the speaker of the House and the leaders of the minority), his wife, Nancy, and a few hundred of his friends, appointees, staffers and cabinet members. It was standing room only.

The mood: mellow, proud and modest with the increased modesty of age. “How lucky was I to walk into history when Ronald Reagan was in the room?” The speeches ranged from the heartfelt to the appropriate, with two (James Baker and Mrs. Reagan) being outstanding. It is usual, after formal ceremonies with their frozen rhetoric, to come away feeling that no cliché was left untouched. In some cases here they were quite thoroughly molested, but no matter. The general feeling was that Ronald Reagan restored America to itself, and that’s what people more or less said. ...

Mr. McConnell had a good speech. Rather than recite a history lesson, he said, he’d note that in the 1980s, when the world said America was over, America said not quite, and when they said freedom was yesterday, America said I don’t think so. Reagan “stood taller than any statue.”

The colors were presented. The U.S. Army chorus sang the national anthem so beautifully, with such harmonic precision and depth, that some dry eyes turned moist, including those of the crusty journalist to my right. Congressmen hear choirs sing patriotic songs all the time and grow used to it. The rest of us do not and are stirred. Tourists walk through the Rotunda and think to themselves that they’d die for the signs and symbols of this place. Lawmakers experience the Rotunda as a connecting point between House and Senate that’s too often clogged by overweight tourists in shorts from Bayonne. We need term limits. When the music no longer moves you, you should leave. When you cannot leave, you should be pushed.

James Baker, who served as Reagan’s Treasury secretary, was elegant in his remarks. To Mrs. Reagan he said, “You created that secure space from which he ventured forward to change the world.” And, “If anyone deserves to be in Statuary Hall it is Ronald Reagan,” a “principled pragmatist” who would fight for the right, push hard, get the best deal possible, accept it at a crucial moment, “declare victory and move on.” The Reagan that Baker presented was a romantic who lived in the real. The nation said goodbye to him when he lay in state in the Rotunda five years ago, but he stands now “a silent sentry in its hallowed halls.”

Mrs. Reagan had a bit of a one-minute masterpiece. Her face said it all. It was her first time in the Rotunda since her husband lay in state. History had come to endorse what she and her husband’s supporters long thought: that he was great. “The statue is a wonderful likeness of Ronnie, and he would be so proud.” And at the end she said, simply, “That’s it,” and the crowd erupted in applause. She turned, helped pull the big blue drop cloth down, and there he was. That was his posture, that was the way he held his arms as he walked, that was the two button suit. The Gipper will be the only statue in the rotunda that is smiling.

Freelance writer, quondam blogger, and (according to IMDB) miscellaneous film crewman & producer Guy Cimbalo tried for sophisticated risque humor Playboy-style and came across more like a stalker with misogynist derangement syndrome.

His list of CWILFs (not surprisingly) led with cute and vivacious little Michelle Malkin and, rather unkindly, altogether omitted Ann Coulter. I guess Ann Coulter is just too much woman for Cimbalo, even in an exercise in journalistic Onanism.

1. Michelle Malkin

2. Megyn Kelly

3. Mary Katharine Ham

4. Amanda Carpenter

5. Elisabeth Hasselbeck

6. Dana Perino

7. Laura Ingraham

8. Pamela Geller

9. Michele Bachmann

10. Peggy Noonan

Jimmie, at Sundries Shack, produced the response title juste: I Don’t Know Guy Cimbalo, but I’d Enjoy Punching Him in the Mouth.

And it didn’t take very long at all, once Cimbalo’s limp effort attracted comment, for Playboy to decide the whole thing wasn’t really worth defending, and they simply hit delete.

Doubtless an amusing take on lust for attractive conservative female commentators from a conflicted liberal perspective could be written, but this one wasn’t it.

Kenneth Vogel, at the Politico, notes that Sonia Sotomayor is burdened by a prominent record of hostility toward First Amendment campaign speech rights.

Sonia Sotomayor may not have a long paper trail on hot button social issues, but in one area of the law—campaign finance—she has staked a position that could have far-reaching political consequences.

The clarity of her support for limits on campaign fundraising and her background as a pioneering campaign regulator is raising eyebrows among election law experts who say her record is more substantial and explicit than that of any Supreme Court nominee since the dawn of the modern, post-Watergate campaign finance regime.

“There hasn’t been one with as vigorously expressed policy views on campaign finance as this one that I am aware of, and I’ve been pretty aware for a number of years,” said James Bopp, a leading conservative attorney who has won four Supreme Court cases challenging campaign finance regulations.

“I can’t think of anybody who has had such a track record,” said Bob Stern, president of the Center for Governmental Studies and a follower of battles on the issue since the early 1970s. “There are clearly going to be cases coming before the court that will be challenges to the law, and there will be some very important cases.”

Sotomayor brings hands-on experience to the issue from her four years of experience on the New York City Campaign Finance Board, an independent, nonpartisan city agency created in 1988. One of the first members appointed to the board by then-Mayor Ed Koch, Sotomayor helped implement—enthusiastically, according to her cohorts—one of the most comprehensive campaign finance laws in the country.

In a rare and little-noticed law review article, she forcefully defended the policy motivations behind such restrictions, questioning the line between campaign contributions and “bribes,” calling on Congress to overhaul campaign finance laws – including suggesting public financing of its own elections – and blasting the Federal Election Commission for not enforcing existing laws.

“The continued failure to do this has greatly damaged public trust in officials and exacerbated the public’s sense that no higher morality is in place by which public officials measure their conduct,” she wrote in a law review article based on a speech she gave to Suffolk University Law School in 1996, when she was a federal district court judge.

On the only occasion when she was confronted with the issue as a jurist, Sotomayor joined a decision that effectively gave a pass to a Vermont law that severely limited campaign contributions and capped campaign spending – a law that the Supreme Court later overturned as a First Amendment violation.

In 1996, the Suffolk University Law Review published Returning Majesty to the Law and Politics: A Modern Approach, by Supreme Court nominee Sonia Sotomayor. This article touches on her legal philosophy in general, as well as her understanding of the First Amendment in particular. The views expressed in this article are troubling, and should give all Americans pause.

Judge Sotomayor writes, “The law … is uncertain and responds to changing circumstances.” It is true that some development in the law takes place as new circumstances arise. For instance, courts today are working out the contours of ‘cyber-law’—a concept that was unheard of a mere thirty years ago. With the proliferation of personal computers and the Internet, however, cyber-law is now a rapidly developing body of law. Some of the old rules regarding the formation of contracts have had to be re-considered to take into account e-transactions. And laws regulating what can, and cannot, be posted on the Internet have had to be evaluated in light of First Amendment protections.

To say that the law develops as new situations arise, however, is far different than what Sotomayor is saying. She calls it a “public myth” that law can be stable, or provide predictable results. Instead, she suggests that the law is in such a constant state of flux that one can never be sure what the law is, or what one’s rights or obligations under it are. What we have, she writes, is an “unpredictable system of justice.” And she believes this “continually evolving legal structure” which leads to what she calls “the uncertainty of law” is a good thing for society.

This is a wrong understanding of the role and function of law in our society. Law is not to be uncertain and arbitrary. Rather, it is to provide rules that all must live by, and guidance whereby we can structure our lives. Sotomayor’s position, though, is that such certainty is a bad thing, and uncertainty in the law is the desired result.

This philosophy opens the door for Sotomayor, and judges who believe similarly, to avoid following what the law actually says. It allows them to place “empathy” above impartiality. After all, if the law is uncertain and constantly changing, why shouldn’t a judge rule in favor of the party that she likes best or agrees with most? Sotomayor’s philosophy facilitates the type of judicial activism and legislation from the bench that decides cases according to what the judges personally believe should be the correct result, instead of what the law actually says should be the correct result. It also destroys any confidence Americans might have in the law’s fairness, if judges are free to make rulings which go against what the law says in order to benefit parties they like or agree with.

Perhaps nowhere is Judge Sotomayor’s problematic philosophy better illustrated than in her approach to campaign finance law. In Returning Majesty to Law and Politics, she compares restrictions on the fundamental First Amendment right of citizens to engage in political speech and association by making contributions to candidates, with restrictions on gift-giving to politicians. Because gift-giving can be restricted, she seems to say, contributions should be restricted, too. She suggests that both gifts and contributions can function as bribes, and seems to be open to the elimination of what she terms “private money” from politics.

The problem with that reasoning, of course, is that there is a difference of constitutional magnitude between buying lunch for a bureaucrat and making of a political contribution to a candidate. The Founders thought that the right of Americans to engage in political speech and association was so important that they enshrined it in the First Amendment to the Constitution and the First Amendment protect campaign contributions.

Our Constitution, including the First Amendment, should not be regarded as evolving. Rather, it should be understood as a constant guarantee: It is a contract between the previous generation of Americans and this one, and between this generation of Americans and the next one. It assures us, and each succeeding generation of Americans, of the nature of the Republic and our rights within it. And so, our freedom to engage in political speech and association guaranteed by the First Amendment—including our right to make contributions to the candidates whose message we agree with—should be absolute. It should not be subject to the whim of a judge who believes that the law is uncertain and constantly evolving.

Judge Sotomayor, however, appears to disagree. While her thoughts regarding campaign contributions are difficult to discern from her law review article, they are more clear in a decision she signed onto in 2005. This case, known as Randall v. Sorrell when it was before the Second Circuit Court of Appeals, involved a challenge to Vermont’s contribution and expenditure limits. A three-judge panel of the Second Circuit upheld the district court’s decision that the contribution limits were constitutional, but determined that the case should be remanded to the district court for reconsideration of the expenditure limits. The plaintiffs in that case asked for the full Second Circuit to rehear the case, and the Second Circuit denied that rehearing. (The plaintiffs would eventually win in 2006 at the Supreme Court when, in Randall v. Sorrell, the Court held that both the contribution and expenditure limits were unconstitutional).

Judge Sotomayor signed onto an opinion written by two other judges which concurred in the decision to deny rehearing. This opinion which she signed began by noting that the question before the Court involving whether the plaintiffs’ First Amendment rights were being trampled was not important enough to justify rehearing the case. Instead, the judges noted that disputes which are highly political or partisan should not be addressed by the courts.

There’s just one little problem with that: If the Court will not vindicate our First Amendment rights, who will? Judge Sotomayor is correct when she observes that campaign finance is partisan and politicized. Incumbents frequently enact campaign finance laws in order to protect themselves, and if they can do so in a way that benefits their political party, so much the better. Far from providing that the courts be reluctant to involve themselves in such matters, the Founders envisioned a vigorous role for the courts in upholding First Amendment freedoms.

A judge who sees the law as constantly changing and evolving, however, feels more free to refuse to vindicate Americans’ rights when she personally does not think that Americans should have them. So, since Sotomayor is of the opinion that severe restrictions (or, even the elimination) on private money in politics is acceptable, she did not feel the need to consider the plaintiffs’ First Amendment rights in Randall.

Such a judicial philosophy is troubling. It places all Americans’ rights at risk. Judge Sotomayor should be questioned on this extensively, and should not be confirmed if this is really her view.

Janós Blaschke, The Goddess Themis, 1786

Justice is conventionally depicted in countless engraved, painted, or sculpted representations displayed at courthouses and in judicial chambers at every administrative level around the European world in the form of the goddess known to the Greeks as Themis, to the Romans as Iustitia. Justice carries a sword and a balance, and is blindfolded.

Themis’ blindfold signifies not her lack of access to reality or to the facts of the cases she is adjudicating, but her indifference to persons or affiliations, her impartiality and objectivity. Themis was not the goddess of justice as an expression of human whim or desire, but of justice in accordance with the divine order.

Judge Sonia Sotomayor, in delivering the Judge Mario G. Olmos Memorial Lecture in 2001 at the University of California, Berkeley, School of Law, expressed a very different, more contemporary view of justice.

Judge (Miriam) Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then “as not capable of reasoning or thinking logically” but instead of “acting intuitively.” ...

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. ....

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. ...

[O]ne must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage. ...

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering.

In her lecture, Judge Sotomayor acknowledges the existence of an ideal of impartiality, but implicitly rejects the concept of an objective legal or moral order. She additionally denies that human beings are really capable of impartiality and objectivity.

In the place of the Natural Law, which guided the Greeks and Romans and the framers of the United States, Sonia Sotomayer enshrines the left’s identity politics, its narrative of the victimhood of certain groups, its indifference or hostility to others. As a judge, Sotomayor denies the possibility of transcending human partiality and prejudice. Her openly expressed relativism denies that any real distinction between justice and injustice exists in any case.

In place of justice, “as circumstances and cases require,” Sotomayor proposes to substitute personal emotion.

Her cherished personal emotions, of course, amount really to ethnic and gender-based chauvinism combined with carefully cultivated group and class grievances. Instead of believing that judges should strive to emulate the divine, modern liberalism encourages its representatives in the judiciary to sink and become “all too human,” to be their worst, their most self-infatuated and partisan selves rather than to transcend their own prejudices and animosities. The liberal judge does not aspire to be a disinterested servant of the law. The liberal judge proposes to pursue the interests of groups or persons he or she feels to be specially deserving of advocacy and assistance.

Thomas Sowell describes how Judge Sotomayor’s jurisprudence actually works when applied in reality.

Empathy” for particular groups can be reconciled with “equal justice under law” — the motto over the entrance to the Supreme Court — only with smooth words. But not in reality. Obama used those smooth words in introducing Judge Sotomayor but words do not change realities.

Nothing demonstrates the fatal dangers from judicial “empathy” more than Sotomayor’s decision in a 2008 case involving firemen who took an exam for promotion. After the racial mix of those who passed that test turned out to be predominantly white, with only a few blacks and Hispanics, the results were thrown out.

When this action by the local civil service authorities was taken to court and eventually reached the 2nd Circuit Court of Appeals, Sotomayor did not give the case even the courtesy of a spelling out of the issues. She backed those who threw out the test results. Apparently she didn’t have “empathy” with those predominantly white males who had been cheated out of promotions they had earned.

In judging, better to have Themis than Thersites.

The US Supreme Court has reviewed six cases decided by Sonia Sotomayor. Her decisions were reversed five times, and in the only case in which her decision was upheld, her reasoning was unanimously rejected by the Court because it “flies in the face of the statutory language.”

Meanwhile she has a pretty decent chance of receiving a further reversal in Ricci v. DeStefano, an affirmative action case from New Haven, Connecticut involving white firemen being denied promotion because no minority applicants scored satisfactorily on the promotion exam. Sotomayor was part of a three judge panel which supported the city against the firemen, and voted against the full appeals court reviewing the case.

No wonder liberals like Obama and Sotomayor think the Constitution is irrelevant and requires updating.

0:33 video

Hat tip to Ed Morrissey.

The New Republic’s Legal Affairs editor Jeffrey Rosen is today urging Sonia Sotomayor’s confirmation, and claims that “conservatives are misreading” him on Sotomayor, but back on May 4 Rosen wrote the following paragraphs as part of an article titled “The Case Against Sotomayor.”

[D]espite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I’ve been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”) Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.”

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions—fixing typos and the like—rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel’s opinion that contained “no reference whatsoever to the constitutional issues at the core of this case.” (The extent of Sotomayor’s involvement in the opinion itself is not publicly known.)

Not all the former clerks for other judges I talked to were skeptical about Sotomayor. “I know the word on the street is that she’s not the brainiest of people, but I didn’t have that experience,” said one former clerk for another judge. “She’s an incredibly impressive person, she’s not shy or apologetic about who she is, and that’s great.” This supporter praised Sotomayor for not being a wilting violet. “She commands attention, she’s clearly in charge, she speaks her mind, she’s funny, she’s voluble, and she has ownership over the role in a very positive way,” she said. “She’s a fine Second Circuit judge—maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?

By May 8, Rosen was regretting his earlier title, and trying to qualify his own position. But he still took the occasion to publish excerpts from Sotomayor’s entry in the Almanac of the Federal Judiciary, which includes rating of judges based on reviews of attorneys appearing before them.

Usually lawyers provide fairly positive comments. That’s what makes the discussion of Sotomayor’s temperament so striking. Here it is:

Sotomayor can be tough on lawyers, according to those interviewed. “She is a terror on the bench.” “She is very outspoken.” “She can be difficult.” “She is temperamental and excitable. She seems angry.” “She is overly aggressive—not very judicial. She does not have a very good temperament.” “She abuses lawyers.” “She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts.” “She is nasty to lawyers. She doesn’t understand their role in the system—as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like.”

Not all of Sotomayor’s lawyers’ evaluations in other areas were this negative. As the Almanac puts it “most of lawyers interviewed said Sotomayor has good legal ability,” and “lawyers said Sotomayor is very active and well-prepared at oral argument.”

You can get an idea of what Sonia Sotomayor is like from this 2:10 video excerpt from what seems to be a panel discussion of legal career options at Duke University Law School in 2005. We will be seeing her in the clip, indicating with derision her contempt for the notion of judicial restraint, a good deal in the near future.

Jeff Emmanuel, at Pajamas Media, warns that a recent federal appeals court decision affirming the right of state bureaucrats in Georgia, Florida, and Alabama to overrule physicians and deny care to patients covered by Medicaid prefigures the federal rationing of health care nationwide.

Earlier this month, a panel of the 11th U.S. Circuit Court of Appeals ruled in favor of three states that filed suit to have final medical decision-making authority transferred from doctors to state bureaucrats.

In March, as reported here at Pajamas Media, Georgia, Florida, and Alabama appealed U.S. District Judge Thomas Thrash’s ruling that physicians, not government bureaucrats, were qualified — both legally and medically — to decide what was “medically necessary” for their patients, regardless of bureaucrats’ opinions.

The thrust of the states’ argument in Moore was summed up in the amicus brief filed by the state of Florida, which said, “Treating physicians … cannot be trusted with this sort of decision. When left to their own devices, they advocate for their patients, and deem all manner of unproven, dangerous, ineffective, cosmetic, unnecessary, bizarre, and controversial treatments as ‘medically necessary.’”

The “final arbiter” of medical decisions is and should be “the state,” said attorney Robert Highsmith in March 24 oral arguments — and the panel of the 11th Circuit agreed.

As a result of this ruling, doctors within the 11th Circuit’s jurisdiction will no longer be “left to their own devices” to treat Medicaid patients under their care. However, current events suggest the relegation of medical professionals’ recommendations to the status of mere suggestions pending review by state bureaucrats isn’t likely to be limited to Medicaid cases alone for long.

As taxpayer-funded and bureaucrat-run health care programs like Medicaid and the State Children’s Health Insurance Program (SCHIP) are expanded to include more middle-class Americans, and as the federal government’s control over the health care market grows astronomically under the guise of “health care reform,” the issue of government encroachment on doctor-patient decisions will only increase.

Moore v. Medows

The District Court held that “[t]he state must provide for the amount of skilled nursing care which the Plaintiff’s treating physician deems necessary to correct or ameliorate her condition.” ... While it is true that, after the 1989 amendments to the Medicaid Act, the state must fund any medically necessary treatment that Anna C. Moore requires…, it does not follow that the state is wholly excluded from the process of determining what treatment is necessary. Instead, both the state and Moore’s physician have roles in determining what medical measures are necessary to “correct or ameliorate” Moore’s medical conditions…. The agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures.” (Citations omitted, emphasis added.)

Ethan Leib notes that Spain just began a judicial investigation into an Israeli strike on a Hamas leader in Gaza in 2002. Meanwhile, the same Spain released a group of Somali pirates, declining prosecution because the offenses took place “2,000 kilometers away.”

It seems curious that the Spanish view of universal jurisdiction applies to Israel, the late General Pinochet, and officials of the Bush administration, but not to pirates, Especially considering the fact that the whole idea of extra-territorial jurisdiction arose in the first place to justify suppressing piracy.

Hat tip to Walter Olson.

Doctor Zero at Hot Air has a pretty good analysis of the differing viewpoints and methods of appeal of the two opposite American political poles.

Republican politicians often forget that conservatism is an argument, while liberalism is a promise. The conservative champions both the moral and practical superiority of liberty and individualism. The liberal promises tangible rewards in exchange for votes. The conservative argument will never be over, because any free-market system will always include a certain population who fare poorly. No matter how small that population is, or how much the overall wealth of society eases the burden of their poverty, they will always be extremely receptive to the seduction of collective politics: You’re not responsible for your lot in life. You were cheated. The wealth of others is unfair. Give us the “freedom” that wasn’t doing you any good anyway, and we will sharpen it into a weapon against those who took advantage of you. Give us your undying support, and you’ll never have to worry about feeling confused, guilty, or inadequate again. Voting for the Democrat ticket will fully discharge your moral and intellectual duty as a citizen – we’ll take it from there. In fact, we’ve got ACORN representatives standing by to fill that ballot out for you. You have a “right” to housing, a job, health care, a college education, easy credit, and a host of other benefits, and the liberal promises to provide all of these things, while making nameless rich people pick up the tab.

Liberal socialism is the ongoing critique of capitalism’s imperfections. To the casual center-left voter, the world seems overwhelming, confusing, and unfair. This was never more obvious than in the financial crisis that erupted last fall, when a large number of citizens became very angry and frightened about a crisis they couldn’t begin to understand. They just knew something terrible was happening, and they demanded action. The Democrats stepped in with a ready-made narrative, which the Republicans suicidally left unchallenged, and offered the exact same solutions they have offered to every problem since the days of FDR: massive government spending and control. Conservatives found this dismaying and horrifying – who in their right minds would solve the problem Barney Frank created by giving Barney Frank more money and power? But Democrat voters were willing to accept this diagnosis and solution, as they always seem ready to accept liberal solutions, despite a century-long track record of absolute failure… because they need to believe that someone out there knows what they’re doing, and has the answers to the overwhelming problems produced by a complex economy, and packaged by a sensationalist media in love with Big Solutions to Big Problems. ...

We might ask the rank-and-file liberal why he’s so willing to believe slippery, corrupt characters like politicians would be better suited to distribute the wealth of the nation, than the people who earned that wealth. The answer is the talismanic power of democratic elections. The American voter has been raised since childhood to believe voting is a sacred process that confers tremendous moral legitimacy on the winners of elections. Dollar bills are ugly instruments of crass materialism and greed in the hands of private citizens, but they acquire a luminous aura of virtue when handled by an elected official. The liberal voter believes his political leaders are entitled to control whatever portion of their constituents’ wealth they require, because the voters gave them this power, voluntarily. They see ballots as an unlimited power of attorney to act on their behalf. Conservatives view their votes as a way to restrain politicians, while liberals view them as decrees of informed consent.

The liberal is comfortable with members of his Party descending from the heavens in private jets, to lecture citizens on the need to drive tiny fuel-efficient cars, and is untroubled by the spectacle of politicians who amassed vast fortunes through political corruption attacking private citizens for their greed… because those politicians were sanctified through the ritual of the popular vote. You might get a friendly liberal to admit that most politicians are crooks… but he’ll hasten to add that businessmen are all crooks too, and at least the politicians gained their power and comforts through the informed consent of the voters, instead of stealing it from them with elaborate business schemes.

The gulf that divides liberal voters from conservative ideas is a crisis of faith. The liberal voter does not believe the system is fair, or that businessmen operating in a free market will provide the necessities of life that every American is entitled to. The upper class liberal doesn’t have faith in the ability of the poor and downtrodden to seize the opportunities provided by capitalism, and build a better life for themselves. The dependent voter relies upon the benevolence of Big Government because he doesn’t have faith in himself – he sees the competition of the free market as a rigged game he is destined to lose, rather than an exhilarating opportunity. The moralistic liberal has no faith in the judgment or compassion of ordinary people, who are products of a society forever mired in racism, sexism, phobias, and greed. The cynical young liberal thinks he knows what the ultimate goals of a wise and just society should be, and doubts that uneducated, Bible-thumping rednecks will ever arrive at those goals of their own free will. The working-class liberal is fearful that collapsing corporations will leave hordes of unemployed people who won’t be able to find another decent job. High schools and colleges are filled with kids who have been taught to have no faith in the ability of free people to take proper care of their environment.

Read the whole thing.

Hat tip to the News Junkie.

“Mr. Rearden,” said Francisco, his voice solemnly calm, “if you saw Atlas, the giant who holds the world on his shoulders, if you saw that he stood, blood running down his chest, his knees buckling, his arms trembling, but still trying to hold the world aloft with the last of his strength, and the greater the effort the heavier the world bore down upon his shoulders — what would you tell him to do?”

Bruce Webster decides to re-read Atlas Shrugged and finds that Ayn Rand’s dystopian predictions are starting to read like the morning paper.

For a work written half a century ago, Atlas Shrugged remains surprisingly timely. In an eerie echo of today, many (if not most) critical economic and political decisions are made not by the President or Congress, but by a host of civilian advisors who spend as much time jockeying amongst themselves for position and influence as they do trying to solve the country’s problems. In the novel itself, the focus on trains, mining, steel, and manufacturing, especially within the United States, all seem very quaint and archaic in our digital/silicon/networked/globalized civilization, but every few pages, Rand will have a passage that is not only relevant but often prescient.

For example, consider this passage regarding one major (unsympathetic) character who ends up as a powerful government bureaucrat:

“My purpose,” said Orren Boyle, “is the preservation of a free economy. It’s generally conceded that free economy is now on trial. Unless it proves its social value and assumes its social responsibilities, the people won’t stand for it. If it doesn’t develop a public spirit, it’s done for, make no mistake about that. Orren Boyle has appeared from nowhere, five years ago, and had since made the cover of every national news magazine. He had started with a hundred thousand dollars of his own and a two-hundred-million-dollar loan from the government. Now he headed an enormous concern which had swallowed many other companies. This proved, he liked to say, that individual ability still had a chance to succeed in the world. “The only justification of private property,” said Orren Boyle, “is public service.” (p. 45)

Byron York published a nice tribute to Ronald Reagan recently in the Washington Examiner. The GOP would be well-advised to ignore people named Bush and to return to fidelity to the legacy of Ronald Reagan.

You drive up a steep, rough and winding road to reach Ronald Reagan’s ranch in the Santa Ynez mountains. For eight years, from 1981 to 1989, this place north of Santa Barbara was the Western White House; Reagan spent nearly a year of his time in office here. Now, what he called Rancho del Cielo is pretty much deserted.

But the ranch, tended by a lone caretaker, is still much like it was when Reagan was alive. It’s not open to the public; these days, the old adobe house and 688 surrounding acres are owned and carefully maintained by the conservative Young America’s Foundation. The group doesn’t have the staff or resources to conduct public tours, but they were kind enough to take me on a visit one afternoon last week.

The first thing that strikes you as you approach the house is how modest it is. The main part of the building was constructed in 1871. Even after Reagan added a couple of rooms when he bought it in 1975, the whole house only measured about 1,500 square feet. ...

The house is nestled on the edge of a mountainside meadow. It’s idyllic, but if you drive about five minutes away, you’ll find another spot on the property, at the top of a hill, where the president could have built a new home, perhaps an impressive monument to himself, with fabulous views of the Pacific to the west and the valley to the east. Instead, Reagan preferred the little house by the meadow.

Walking around the ranch, you can’t help thinking about the current Republican party and its relationship to Reagan.

He was too young to leave us, and we’ll miss him now particularly badly.

LA Times:

Jack Kemp, a former Republican vice presidential nominee and professional football star who cut a path as a conservative purist and a fervent advocate of tax cuts, died Saturday. He was 73.

The longtime professional quarterback, who went on to become a New York congressman, presidential candidate, Cabinet secretary and vice presidential candidate, died at his home in Bethesda, Md.

Kemp was diagnosed with cancer in January, and his swift decline stunned friends and associates. A statement released by his family late Saturday said he died peacefully shortly after 6 p.m. “surrounded by the love of his family and pastor.”

“He was a bleeding-heart conservative,” said Edwin J. Feulner, a former campaign advisor and president of the Heritage Foundation who confirmed news of Kemp’s death. “He was a good friend and a real hero to a lot of us.”

Kemp first gained national prominence with the San Diego Chargers in the early 1960s and then went on to lead the Buffalo Bills to the American Football League championship in 1964 and 1965.

He used his popularity on the football field to win election from a Buffalo-area district to the U.S. House of Representatives, where he served from 1971 to 1989.

As a congressman, Kemp was one of the few members of the House—along with Democratic Speaker Thomas P. “Tip” O’Neill—to have national name recognition. With his Kennedyesque hairstyle, boyish good looks, unbounded enthusiasm and raspy voice, Kemp seemed a natural to bring new energy and interest to the Republican Party when he ran with Sen. Bob Dole of Kansas in 1996.

The congressman was the leading architect of the Kemp-Roth tax bill, first proposed in 1978 with Sen. William Roth of Delaware, that proposed a 30% cut in federal taxes over three years. Kemp’s 1979 book, “American Renaissance: A Strategy for the 1980s,” contained what became known as Reaganomics during Ronald Reagan’s presidency and helped redefine the GOP’s economic identity. ...

Kemp, as much as anybody, helped convince Reagan to embrace supply-side economics, designed to stimulate growth through tax reduction.

Kemp’s tax bill was defeated in the House, but a similar measure was approved two years later, offering a 25% cut in taxes.

Jonathan Haidt (Y ‘85) is a Social Psychologist at UVA who focusses on the moral foundations of politics. He has made, what the left perceives as a breakthrough discovery: liberals and conservatives place emphasis on different moral values.

More interestingly, Haidt’s research finds that conservatives understand liberals much better than vice versa.

Jonathan Haidt is hardly a road-rage kind of guy, but he does get irritated by self-righteous bumper stickers. The soft-spoken psychologist is acutely annoyed by certain smug slogans that adorn the cars of fellow liberals: “Support our troops: Bring them home” and “Dissent is the highest form of patriotism.”

“No conservative reads those bumper stickers and thinks, ‘Hmm—so liberals are patriotic!’” he says, in a sarcastic tone of voice that jarringly contrasts with his usual subdued sincerity. “We liberals are universalists and humanists; it’s not part of our morality to highly value nations. So to claim dissent is patriotic—or that we’re supporting the troops, when in fact we’re opposing the war—is disingenuous. ...

The University of Virginia scholar views such slogans as clumsy attempts to insist we all share the same values. In his view, these catch phrases are not only insincere—they’re also fundamentally wrong. Liberals and conservatives, he insists, inhabit different moral universes. There is some overlap in belief systems, but huge differences in emphasis.

In a creative attempt to move beyond red-state/blue-state clichés, Haidt has created a framework that codifies mankind’s multiplicity of moralities. His outline is simultaneously startling and reassuring—startling in its stark depiction of our differences, and reassuring in that it brings welcome clarity to an arena where murkiness of motivation often breeds contention.

He views the demonization that has marred American political debate in recent decades as a massive failure in moral imagination. We assume everyone’s ethical compass points in the same direction and label those whose views don’t align with our sense of right and wrong as either misguided or evil. In fact, he argues, there are multiple due norths.

“I think of liberals as colorblind,” he says in a hushed tone that conveys the quiet intensity of a low-key crusader. “We have finely tuned sensors for harm and injustice but are blind to other moral dimensions. ...

Haidt is best known as the author of The Happiness Hypothesis, a lively look at recent research into the sources of lasting contentment. But his central focus—and the subject of his next book, scheduled to be published in fall 2010—is the intersection of psychology and morality. His research examines the wellsprings of ethical beliefs and why they differ across classes and cultures.

Last September, in a widely circulated Internet essay titled Why People Vote Republican, Haidt chastised Democrats who believe blue-collar workers have been duped into voting against their economic interests. In fact, he asserted forcefully, traditionalists are driven to the GOP by moral impulses liberals don’t share (which is fine) or understand (which is not).

To some, this dynamic is deeply depressing. “The educated moral relativism worldview is fundamentally incompatible with the way 50 percent of America thinks, and stereotypes about out-of-touch elitist coastal Democrats are basically correct,” sighed the snarky Web site Gawker.com as it summarized his studies.

Hat tip to the News Junkie.

I think Haidt’s five foundational moral impulses are far from accurate.

Speaking as a conservative, I think liberal’s notions of fairness/reciprocity are both different from ours and are fundamentally inaccurate, constantly asserting exaggerated and unreciprocated claims to supposititious rights.

Example: liberals believe the US is obliged to award humane treatment in accordance with Geneva Convention standards to unlawful combatants who do not abide by that Convention.

Haidt overlooks the conservative “foundational moral impulses” pertaining to individual liberty, the right of the individual human being to think and act freely within his own private sphere, as well as those pertaining to the rights of society, the right of the people to preserve their own institutions and identity. Conservatives believe that change should be organic and voluntary. Liberals believe in the forcible imposition of their own superior moral insights.

Pat and Bill Buckley, 1981

About 30 years ago, William F. Buckley, Jr. published a monumentally insensitive obituary in which his own subjectivity and personality were allowed to usurp the space traditionally reserved for compliments toward and expressions of personal regard for the recently departed. A number of friends of the deceased, including present company, were absolutely infuriated, and some of us never really looked upon WFB in exactly the same way again afterwards.

A tradition of inappropriately self-indulgent behavior in the face of death must be part of the Buckley family culture, because here is Chris Buckley in this week’s Sunday Times Magazine cheerfully quoting Oscar Wilde (“Jack: I have lost both my parents. Lady Bracknell: To lose one parent, Mr. Worthing, may be regarded as a misfortune; to lose both looks like carelessness.”) as an epigraph to a feature on the deaths of his parents, before moving right along to share, with awe-inspiring complacency, the sorts of private details and opinions on family relationships and deathbed scenes which the overwhelming majority of us do not share.

Soon after, a doctor came in to remove the respirator. It was quiet and peaceful in the room, just pings and blips from the monitor. I stroked her hair and said, the words coming out of nowhere, surprising me, “I forgive you.”

It sounded, even at the time, like a terribly presumptuous statement.

Indeed, it did.

Professional writers, I tend to think, particularly those of Ivy League background, acquire too commonly an addiction to attention. They sometimes just don’t know when to stop.

3:59 audio slideshow

Recent political developments have made Ayn Rand’s masterpiece timely and topical and Hollywood.com reports that financing may be in the works to begin production of the film version.

Charleze Theron seems to have replaced Angelina Jolie as the front runner to play Dagny Taggart.

Ryan Kavanaugh is said to be circling the eternally stuck-in-development-hell big-screen adaptation of Ayn Rand’s self-styled ‘magnum opus,’ Atlas Shrugged.

Kavanaugh’s Relativity Media, according to the Risky Biz blog, could come aboard to finance the Baldwin Entertainment project with Lionsgate.

While Angelina Jolie was the most recent name attached to play protagonist Dagny Taggart, the blog says that other stars now interested include Charlize Theron, Julia Roberts and Anne Hathaway.

Given the book’s themes of individualism that resonate in the era of Obama, government bailouts and stimulus packages, this could be the perfect time to finally get the book to the screen.

“This couldn’t be more timely,” Karen Baldwin, who along with husband Howard is producing, told BIZ. “It’s uncanny what Rand was able to predict—about the only things she didn’t anticipate are cell phones and the Internet.”

With the recession, the book has experienced a resurgence. As of today, it is listed as top seller on Amazon in the Literature & Fiction Literary and Classics categories.

The story first appeared at Hollywood Reporter’s Risky Biz blog.

Mu Ch’i, Six Persimmons, 13th century, Japan, ink on paper, Daitoku-ji, Kyoto, Japan

Andrew Sullivan, with an air of pious approbation, yesterday linked and quoted an interesting essay by Stewart K. Lundy which proposes to define Conservatism as a form of Zen. It seems a bit odd to me that the perennially agitated and volatile Andrew Sullivan, notorious for combining vehement certainty with rapidly shifting positions, thinks he finds some reflection of his own philosophy or personality in Lundy’s mystical quietism, but there you are.

Mr. Lundy is evidently a neighbor of mine in Loudoun County, Virginia, a senior at Patrick Henry College in Purcellville.

Ignorance is the source of knowledge, silence is the source of noise, and stillness is the source of change. The emptiness of the future provides the possibility for movement. This is the principle of conservatism: preserving not only possibility, but the very possibility of possibilities. This impulse is conservative, but never at the expense of future generations. Conservatism is the art of living.

“The best people have a nature like that of water. They’re like mist or dew in the sky, like a stream or a spring on land. Most people hate moist or muddy places, places where water alone dwells. . . . As water empties, it gives life to others. It reflects without being impure, and there is nothing it cannot wash clean. Water can take any shape, and it is never out of touch with the seasons. How could anyone malign something with such qualities as this.”

— Ho-Shang Kung in Red Pine’s translation of the Tao Te Ching.

Why the example of water? Water is inherently conservative, conforming to its conditions yet remaining essentially the same. Water prefers stillness. If it is a stream, it runs downhill until it finds a resting place; but it is always in the process of changing, yet it is always only water. In the same way, the essence of conservatism is always the same, even though its conditions constantly change. Were conditions to cease their perpetual flux, conservatism comes to rest as a tranquil pond. The goal of conservatism is tranquility.

In itself, conservatism is tranquil. In relation to the ever-changing human condition, conservatism is always adapting. Conservatism is “formless” like water: it takes the shape of its conditions, but always remains the same. This is why Russell Kirk calls conservatism the “negation of ideology” in The Politics of Prudence. It is precisely the formlessness of conservatism which gives it its vitality. Left alone, the spirit of conservatism is essentially what T.S. Eliot calls the “stillness between two waves of the sea” in “Little Gidding” of his Four Quartets. Conservatism is both like water and the stillness between the waves—the waves are not the water acting, but being acted upon; stillness is the default state of conservatism:

Not known, because not looked for
But heard, half-heard, in the stillness
Between two waves of the sea.
Quick now, here, now, always—
A condition of complete simplicity

Like the Greek concept of kairos—acting in the right way, for the right reasons, at the right moment—this sort of waiting is simply careful conservatism. Conservatism is responsive, reactionary, reserved. Conservatism waits. Perhaps this is why conservatism is most needed in the modern age of mobility. Being careful, and above all patient is crucial to doing something right. Realizing that one does not know the best way of doing anything guarantees not that one will find the best way, but that one might not find the worst way. The same principle applies to knowledge: conservatism (hopefully) does not pretend to know the definitive way, but rather professes the virtue of ignorance with the quiet hope of finding knowledge.

Read the whole thing.

Carol Baum, at Bloomberg, reads today’s news and finds herself living in a Rand novel.

Somewhere John Galt is smiling.

The hero of Ayn Rand’s “Atlas Shrugged” is smiling because he’s seen it all before: the government’s intervention in the private sector; the constraints placed on business in the name of the people; the desperation on the part of government bureaucrats when they realize their leverage is limited; and—this part is still fiction—the decision on the part of business leaders to walk away from the enterprises they built.

That’s all I could think about when I read that American International Group Inc., recipient of $173 billion in taxpayer funds, was paying out $165 million in bonuses to employees of its financial-products group, the poster boy for risk and greed.

The Obama administration, Congress and the public are outraged taxpayer dollars are going to enrich the folks who got us into this mess. So am I.

Members of Congress want to blame Edward Liddy, the former chief executive officer of Allstate Corp., who was recruited by former Treasury Secretary Hank Paulson in September to steer AIG away from the shoals.

Liddy is paid $1 a year for his efforts. “My only stake is my reputation,” Liddy said in a March 16 open letter to Treasury Secretary Timothy Geithner.

His only crime, as far as I can tell, is inheriting compensation contracts providing for retention bonuses for certain AIG derivative traders, some of whom have left the company, and listening to lawyers on his options. ...

I’m not alone in noting the parallels in the government’s evolving response to the financial crisis. For a year I’ve been waiting for Paulson or Geithner to announce “the John Galt Plan to save the economy,” which is right out of Rand’s novel.

It wasn’t until the AIG bonus brouhaha broke last weekend and I watched government officials flailing to contain the fallout that I realized the government is losing its leverage. Or maybe it never had any leverage to begin with.

Let me explain. The government has been propping up teetering financial institutions, including AIG, Citigroup and Bank of America, creating the illusion that the banks need the government.

The government doesn’t care about these institutions. It cares about the stability of the financial system: the totality, not the parts.

Congress can refuse to allocate more money to institutions in which it already owns a share (80 percent in the case of AIG). It can levy a tax on the AIG bonus payments or withhold them from the next $30 billion cash infusion, although who would notice? And it can install new management.

Why hasn’t the government put in its own people already? Maybe no one wants the job.

The government needs Liddy and Citigroup’s Vikram Pandit and Bank of America’s Ken Lewis to continue working to restore their firms to prosperity in the same way the looters in Rand’s novel need Hank Reardon and Francisco d’Anconia and Dagny Taggart, respectively, to run their steel mills, copper mines and railroad.

From their perches as chairmen of the House Financial Services Committee and Senate Banking Committee, respectively, Democrats Barney Frank and Chris Dodd fulminate about the lack of regulation and about inflated CEO compensation. For Dodd, it’s a good opportunity to deflect attention from his sweetheart mortgages from former Countrywide CEO Angelo Mozilo and his questionable real estate deal in Ireland.

All that’s left for life to imitate art completely is for these CEOs to quit. Let Barney Frank and Chris Dodd run AIG. Let’s see how they fare.

The government needs these companies to survive—and buy back the government’s ownership stake—more than they need the government. Most of these CEOs are already wealthy. They don’t need a job working for the government, which is what running a bank amounts to today.

What’s in it for them? One dollar of compensation? Their reputations? The house on the lake looks more appealing by the day.

Is anyone surprised sales of “Atlas Shrugged” have spiked in recent months as reality comes to resemble Rand’s fiction?

Sondra K. offers photographic evidence of the Change.

Over the last few decades, the powerful impact of Conservatism on jurisprudential reasoning, both in law school publications and in judicial opinions, has caused progressives reluctantly to deal with original intent in Constitutional Law.

Jess Bravin, in the Wall Street Journal, reports on a fascinating new development, in which some liberals are considering a positive embrace of Constitutional Originalism philosophically.

A progressive originalism would reject the ruling of the Slaughter-Houses Cases of 1873 which limited the impact of the 14th Amendment’s guarantee of the “privileges or immunities” of individual citizens against the states.

The libertarian potential of such a move could be tremendous, and the conflict within the legal community on the left between an inclination to suppress States’ Rights while enhancing individual rights claims on the basis of the post-Civil War Amendments versus their love of regulation and generally enthusiastic embrace of the cult of Statism will be absolutely fascinating to watch unfold.

A must read.

Everett Raymond Kinstler, Ayn Rand

Edward Cline observes that the left’s dishonest and temporary triumph is being marred by a stubborn dissent on the part of ordinary Americans armed with very different ideas, ideas having a great deal to do with a very thick novel published just over half a century ago.

The world seems to be emerging from a moral and intellectual coma, perhaps temporarily, perhaps permanently. It is discovering that other ideas have other consequences, as well, ideas that promote life, promote prosperity, promote ambition and personal success, and that they are possible only in political freedom, and that this freedom has been violated, abridged, and nullified by the first set of ideas. True, politics is the last thing to be affected by a philosophical revolution. But one cannot help but be pleased with how startled the collectivists and altruists are now by the knowledge that they have not successfully pulled a fast one on Americans. These Americans have come knocking on the doors of elitists or leaning over the café railings or invading their legislated smoke-free bars and restaurants to ask: What in hell do you think you are doing?

The Americans who recently protested the spendthrift policies of the Obama administration and Congress with “tea parties,” and who plan to protest them on an even larger scale in the near future, one can wager are not regular readers of The New York Times. They cannot have much in common with its columnists and editors, nor with the news media.

So the collectivist and altruist elite become very touchy when the people for whom they are “doing good” for their own sake, even to the point of enacting coercive and felonious legislation, exhibit signs of intelligence, resistance and anger. How dare these yokels!

And nothing raises their hackles higher than any mention of Ayn Rand.

David Harsanyi at Reason also thinks there is nothing wrong with hoping self-important liberal pols step on a banana and take a huge public pratfall.

Is it inherently unpatriotic or immoral to want to see a president fail? After chewing over the larger implications of that vital question, I’ve come to a conclusion: I am a twisted human being. Thankfully, I’m not alone.

You see, when I’m not wasting time greedily praying to be rich, I plead with some higher power to sentence my middling local representatives to painful obscurity and professional failure. My congresswoman, for instance, carries an intellectual confidence so severely out of step with her skill set that the promise of disappointment, I trust, one day will bring me great joy.

If we can’t look to our politicians to fulfill our yearly schadenfreude quota, whom can we trust?

Which brings me to radio talk show host Rush Limbaugh, who recently, at a conservative conference, had the temerity to reiterate his desire that President Barack Obama “fail”—not the economy or nation, mind you, but the politician. Pundits across the nation went into apoplectic tizzy fits over such blasphemous and ugly thoughts.

Since when is rooting for the success of an ideologically driven elected official a civic duty, you may wonder? Wonder no more. It merely depends on the politician. ...

[M]any of us are hoping that all those in power fail, because those in power have a grating habit of being annoyingly self-righteous, hopelessly corrupt, resolutely incompetent and completely apathetic about the freedoms that they have sworn to protect.

Embrace the failure. It’s patriotic.

Ben Smith, at the Politico blog, joins the conventional chorus of down-shouters, marginalizing everyone with doubts on the question of Barack Obama’s native born status as irrational conspiracy theorists.

Personally, I always experience a dramatic increase in skepticism when I observe the argument from intimidation underway. Whenever people point to a bien pensant media consensus as established and inarguable fact, I start looking around for the alternative theory.

As to Obama’s native born status, I’ve read Internet rumors that say his grandmother supposedly said some time somewhere that he was born in a hospital in Kenya, but I’ve never seen any form of reliable report confirming that.

I’m well aware, and support the fact, that the United States traditionally bases citizenship both on jus sanguinis (citizenship by right of blood descent) and jus soli (citizenship by right of birth on US soil). I also think that if a person elected to national office by 60-odd million votes as the result of a process as expensive, time-consuming, and elaborate as a US Presidential election were to be disqualified by an arcane, subsequently eliminated, technical and ill-conceived provision of 1960s era citizenship laws, that it would be a disaster.

But I do also think the law is the law, and Barack Obama’s citizenship status, which undoubtedly features a number of occasions for questions, ought to have been thoroughly and openly explored before the democrat party ever nominated him.

I think it is probable that democrat party member state officials in Hawaii are telling the truth, and Obama’s birth certificate is real, valid, and in proper order, but I also wonder, if that is the case, why has he spent more than $800,000 (at last count, which was some time ago), fighting lawsuits in numerous states to resist allowing it to be released.

Obama’s effort and expense at litigating only makes sense if there is something to hide. (In an earlier post, I suggested that perhaps he was really named Sue.)

Beyond the alleged birth in Kenya to a slightly underage US citizen mom, there are also obviously live possibilities of problems with conflicting dual citizenships held contrary to US law. Obama might very well have been adopted by Mr. Soetero. His admission to Indonesian schools apparently required Indonesian citizenship. If Obama lost his US citizenship by adoption as a juvenile, he would have had to take official steps later to restore it.

Obama could have in the past claimed to be a British subject by virtue of his father’s Kenyan nationality. It is reported that Obama travelled to Pakistan in 1981, at a time when US citizens were not allowed to enter the country. Those circumstances suggest he could have used a different passport at the time.

There can be no doubt that the national news reporting organizations allowed political partisanship to deter them from undertaking the questioning and scrutiny of the candidacy of Barack Obama that would normally be expected. It would not be hard to argue that, at this point, the country would be better off, our electoral processes better served, simply by averting our eyes from what is bound to be, at most, some technical disqualification, faced with plunging the country into an appalling and unprecedented leadership crisis (and perhaps making that idiot Biden president), but it is simply not true that no rational basis for skepticism of Barack Obama’s eligibility for office exists.
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Earlier posts.