Maybe There is a Conspiracy

I've pooh-poohed the idea that there was any type of conspiracy in Ohio last fall to deny John Kerry the state. But Kevin Baxter, Erie County prosecutor, has brought in indictments against two Cuyahoga County election workers. See story here, blog coverage here. Baxter is a Democrat, it may be worth noting, but he's also been elected the Chairman of the Ohio Prosecutors Association, suggesting that he is respected by his peers, and he's won some pretty impressive victories over the likes of Ira Kunstler and Barry Scheck over the years. We might also note that Baxter is serving as a special prosecutor (which is why he's looking into things outside his county). On the other hand, Cuyahoga County Board of Elections Director Michael Vu is a Democrat, so it seems unlikely he was trying to help Bush.

I still doubt that there is much here (the charge is that two workers failed to follow Ohio statutes on recounts, in order to make it less likely that the entire county would need to be recounted by hand), but it's perhaps worth a look.

Boy am I hurt

Even though Professor Rick Hasen, whose Election Law Blog, is probably the most viewed election law cite in the country, admits that I am, "someone who obviously knows a great deal about election law," he has left me off his, new, expanded blogroll of "Election Law Resources." I think it's the anonymous thing - that seemed to bug him, and I note he is at pains to give the name of the people behind each blog he lists. If the internet had existed in 1788, would he have linked to the anonymously written Federalist Papers? We'll never know, I guess.

Or maybe it's because, as he says here and here, he just doesn't like what I wrote about his op-ed on Judge Roberts. You can judge for yourself whether or not I in some way "mischaracterized" him, as he says near the bottom of the second post linked to in the last sentence.

Oh well, we will just keep plugging away. We are confident that soon anyone who wants to know the full story about election law will consider this must reading!

Bauer on August Reform

The always insightful Bob Bauer is back from vacation with some thoughts on August editorials on one of my favorite subjects, campaign finance reform. Bauer writes that the editorials expressing outrage over a recent FEC decision regarding fundraising by federal officeholders for the California redistricting ballot initiative rely on an old canard of the reform industry: that the Commission "disregarded the advice of its lawyer," i.e. the Commission's General Counsel, who is hired by the Commissioners. (My take on that decision was here.) Bauer notes this line of editorial assault, and writes:

The FEC did not agree with its General Counsel. This is a staple in the
Progressive outlook: the work of the civil servant is pure, while the choices
made by the "political" Commissioners are hopelessly tainted.

To add a few cents worth, what is worth noting is that the so-called reform community only trots out this argument when the Commission's General Counsel agrees with them. Thus, 15 months ago, when the General Counsel proposed delaying any decision on new regulations for so-called 527 organizations in order to study the issue, the "reform" lobby didn't say, "oh, well, the General Counsel recommends that. OK." No. They were outraged. Fred Wertheimer wrote,

Today, the general counsel of the Federal Election Commission (FEC)
recommended that the FEC postpone for 90 days consideration of new regulations
to address the improper use of soft money by 527 groups in the 2004 federal
elections. The FEC is currently scheduled to act on such new regulations at its
meeting on Thursday, May 13.
This 90 day postponement if adopted by the
Commissioners would be the worst kind of bureaucratic farce and a complete
abdication by the FEC of its responsibilities.

When the FEC's General Counsel recommended that the FEC dismiss a complaint filed by John McCain against Republicans for Clean Air without an investigation (on the grounds that the complaint did not state a violation of the law), John McCain did not say, "Oh, well, the General Counsel recommends it. OK." No, Senator McCain railed repeatedly against the FEC for its action. Here is just one example. In a July 10, 2003 news conference, Senator McCain argued that the FEC should be abolished. As one of its failures, he said: (If you subscribe to FDCH, you can get this transcript):

Let me just give you a small personal example . As is well-known, there was an
organization that called themselves Republicans For a Clean Environment that
turned out to be two rich millionaires from Texas who spent several million
dollars in campaign ads attacking me. We asked for an investigation. We didn't
ask for a finding of criminality; we just asked for an investigation.
Three-to-three: no, no investigation.

No, no deference there. As in so many things, the reformers, and their witless editorial allies, are full of brown stuff.

A Long Break Explained

Why the long break in blogging? A combination of busy work schedule, illness, August blahs. No way to keep readers, though. Thank you for your patience.

Bloggers go for the Press Exemption - But is now the time?

The ever vigilant Skeptic's Eye tipped the The Lonely Centrist to the fact that a group of liberal bloggers have filed an advisory opinion request with the Federal Election Commission, seeking to have the FEC declare that they are exempt from the restrictions of the Federal Election Campaign Act (including the McCain-Feingold" provisions added to the law in 2002) on the grounds that they qualify as press entities.

This may not be a wise move, at least not right now. Brad Smith, an FEC Commissioner highly sympathetic to their position, has recently resigned and has not been replaced, so the normally six member Commission is down to just 5 members. But under the FEC's rules, it still requires 4 Commissioners to approve an advisory opinion. In 2002, the FEC passed a regulation exempting the internet - and therefore bloggers - from most regulation. In doing so, they did not rely on the press exemption, but on the more obvious fact that the statute doesn't mention regulation of the internet. The House sponsors of McCain-Feingold - Representatives Chris Shays (R-Ct.) and Marty Meehan (D-MA)challenged this exemption in court (with the support of Senators McCain and Feingold), claiming that the internet was covered under a catch-all provision in the statute applying to "any other form of public communication." They won. Three members of the FEC, including Smith, wanted to appeal that decision, but the Commission's three Democrats voted against filing an appeal.

So there are at least three members of the Commission - Chairman Scott Thomas, and Commissioners Ellen Weintraub and Danny McDonald - who are doubtful about the wisdom or propriety of exempting the internet. To get an the Commission to issue an advisory opinion exempting bloggers under the press exemption will require votes of at least four Commissioners. If Smith were still on board, that would mean just one of the three would have to support the bloggers request, assuming that the three Commissioners who voted for the internet exemption before would vote to give the bloggers an exemption. Given her comments on the issue in the link above, Weintraub seems likely to make that jump. But with Smith gone, however, at least two of these three will have to join with pro-internet speech Commissioners Dave Mason and Michael Toner. In other words, Smith's empty seat is the equivalent of a vote against the bloggers' request.

Also, two of the three commissioners who have voted against a broad internet exemption - the two viewed as most hostile to a deregulated internet, Thomas and McDonald - are due to be replaced soon. If the bloggers really want the exemption, holding off on this request might make sense. But then, maybe they are devilish - maybe they want the FEC to rule against them to force the issue in court.

John Samples Lauds Everybody's Favorite FEC Commissioner

Here, in the American Spectator.

BTW, Smith really is - or until his recent return to academia, was - everybody's favorite Federal Election Commission Commissioner, even of those who ostensibly hate him, such as John McCain, Fred Wertheimer - the most naive man in America - and the rest of the reform lobby, as Bob Bauer pointed out here. ("If FEC Commissioner Brad Smith did not exist, members of the reform community would work hard to invent him. They disdain his point of view, of course, and wish that they could replace it on the Commission with an approved version. Yet he has his uses, too: when Commissioner Smith raises issues he cares about, it has become standard reform debate technique to divert attention from the merits with an attack on Smith’s person and his motives.")

Barone Analyzes the 2004 Presidential Vote

If you care about understanding electoral trends, you always have to read Michael Barone.

Another Silly Attack on Roberts

Michael Barone, America's best political analyst, has a column exploring another bogus "civil rights" attack on John Roberts. Here, the left is claiming that Roberts opposes equal pay for women, simply because he doesn't want a bunch of bureaucrats to determine salaries for every person in America. Read Barone for the expose.

Chasing Roberts on Civil Rights

The left keeps throwing out the idea that John Roberts opposes "voting rights."

See this Washington Post article. Some quotes:

"breathtaking in his approach to weakening the enforcement of civil rights laws."
- Nancy Zirkin, Leadership Conference on Civil Rights

"attempted to dismantle civil rights rememdies."
- Ralph Neas, People for the American Way

"opposed effective voting rights legislation."
- Senator Ted Kennedy

"questions about the nominee's commitment to progress on civil rights."
- Senate Minority Leader Harry Reid

Note that none of these leaders will actually want to describe just what Roberts has done to make him so "opposed [to] effective voting rights legislation." Why? Because then we would actually have a policy debate, and Roberts would win. Why? As I've described elsewhere, what Roberts's critics are saying on voting rights is that Roberts opposed an interpretation of the law that says that you don't need to prove any discrimination in voting, or any intent to discriminate, to successfully bring a claim of discrimination. You need merely show that the percentage of minorities elected to office is less than the percentage of minorities in the population. In other words, a quota system - if minorities don't fill their quota, the courts consider that discrimination, and can demand remedies such as redistricting by race, or even changing the size of the governing body. This is not a very palatable interpretation to most Americans. So the left just keeps shouting that Roberts opposes "voting rights." After all, everyone favors voting rights. As I've also noted, this is an effort to win the battle on semantics.

Update: Today Senator Kennedy contributes this op-ed to the Post. He claims, "contrary to the intent of overwhelming majorities in both the House and the Senate, it appears that Roberts proposed a very narrow and crabbed interpretation of the Voting Rights Act that would essentially eviscerate the meaning of that law."

But is that true? Yes, the 1982 Voting Rights Act amendments passed with overwhelming majorities - but only after language was added that specifically said, "Nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population."

However, as Justice O'Connor, whom Roberts will replace, noted in Thornburg v. Gingles, 478 U.S. 30 (1986), the court's interpretation of the law, "creates what amounts to a right to usual, roughly proportional representation on the part of sizable, compact, cohesive minority groups.... [U]nder the Court's standard, ... the elements of a vote dilution claim create an entitlement to roughly proportional representation." Kennedy, Neas, and the crew want now to keep intact this judicial interpretation of the law that creates this quota system - in direct violation of the statute that passed with an "overwhelming majority."

Remember, this is O'Connor, joined by Rehnquist, who may also be leaving the Court soon. So if, as they claim, liberals don't want to disturb the court's "balance," don't they have to support Roberts?

It's a Sham! An Outrage! It's a Shmoutrage!

Our old friend Fred Wertheimer, the most naive man in America, is outraged today. (I think I should pre-program this line into my word processor.)

What has Fred's knickers knotted up is yesterday's conclusion by the Federal Election Commission that a ballot initiative - in this case the California redistricting measure Governor Ahnuld has placed on the ballot - is not an "election" for purposes of federal campaign finance law, and thus federal officeholders are free to raise money in accordance with state law to support one side or the other.

Quick background - the main effect of the initiative would be to change the way that legislative district lines are drawn. Under the proposal, they would be drawn by a commission of retired judges, rather than by the legislature (as they are now). Naturally, legislators oppose this vehemently, which is why Governor Schwarzenegger is trying to pass it by ballot initiative. For what it's worth, if I had to vote I'd probably come down on the Governor's side, though I'm skeptical that you really can, or necessarily want to, take politics out of redistricting.

Anyway, Wertheimer wanted to force federal lawmakers to only raise money in accordance with Federal law. The result would have been that Governor Schwarzenegger, not being a federal officeholder, could solicit $100,000 contributions, including corporate contributions, to support the initiative, but federal congressmen - who certainly have much at stake - could not ask individual donors, and no corporations, for more than $2200 to oppose it. The Commission held that a ballot initiative is not an "election" under federal law, and thus the federal fundraising rules don't apply.

Now, you might think that obviously a ballot initiative is an "election." But remember that the alleged purpose of the Federal Election Campaign Act is to prevent buying of votes through campaign contributions. It's hard to see how anyone is buying legislative votes here - the people will vote, not the legislature, let alone the Feds. And it's hard to see how a state law ballot measure, in an election in which no federal candidates are even on the ballot, is governed by federal law. In fact, for many years, since well before McCain-Feingold, the Federal Election Commission has defined "election" as "the process by which individuals, whether opposed or unopposed, seek nomination for election, or election, to Federal office." 11 C.F.R. 100.2(a). Pretty hard to see how a state ballot initiative fits in under that law, even if we take out the word "Federal." The Federal Election Campaign Act, being concerned with candidates, has always limited the term "election" to a candidate election, and so in this case were just following a longstanding law.

But our naive friend Fred is apopolectic. Fred is really upset because some members of congress actually called Commissioners to lobby them on the issue. All of the FEC Commissioners who received calls from members of Congress publicly disclosed those calls, and Fred notes that, "Under FEC rules ex parte communications are legal," but he is outraged nonetheless. "What we have seen today is the FEC functioning as a complete tool of congressional incumbents to allow huge corrupting contributions to be raised by Members of Congress, and doing so by ignoring the clear meaning of the law."

Question for Fred: Congressional incumbents passed the law. So if the FEC is doing what the congressional incumbents want, isn't it applying congressional intent? And how can Fred be so naive as to think that congressional intent would not be favorable to congressional incumbents?

Friday Night Video: Breaker Morant and Iraq

At the turn of the last century, the British empire was embroiled in a nasty war in South Africa, the Boer War. The Boer War began in 1899, but its roots extended far back.

Dutch settlers had first landed in South Africa in 1652, and for generations maintained a small colony on the coast. By the time of the Napoleonic Wars in the early 19th century, some 30,000 settlers, largely Dutch but also German and French, lived around the Cape. This colony, however, fell under British sway as spoils of Napoleon's defeat, and in 1820 5000 British settlers landed at Cape Colony. The British population grew rapidly, and in the 1830s about 5000 Dutch settlers, taking black slaves with them, migrated inland to escape British rule - these were the Voortrekkers memorialized in Michener's historical novel, "The Covenant." They established two small colonies, the Transvaal and the Orange Free State, in the northern interior, while the British populated the coastal colonies of Cape Colony and Natal.

This division of South Africa lasted until the 1870s. In 1872, however, Diamonds were discovered near Kimberley, and in 1877 the British attempted to take over the Transvaal. (These rich diamond minds - think DeBeers - are still the source of most of the world's gem grade diamonds). The Dutch settlers - known as "Boers" - rebeled, ambushed and wiped out the main British military force (only a couple hundred men), and then surrounded and humiliated the British relief force at the battle of Majuba Hill. The British pulled out, leaving Transvaal to the Boers for the time being. The Boers, understandably, looked for alliances with other powers - notably Germany - and used their diamond money to build powerful forts along their borders and create a nation bristling with Mauser rifles for defense. In 1886, gold was discovered in the Transvaal. British, American, and European prospectors and entrepreneurs flooed the Transvaal, whose wealth continued to grow. The Boers, however, refused to share political power with these new settlers to their land. (Of course blacks, the overwhelming majority of the population, were totally excluded from power). Finally, in 1895 British diamond magnate Cecil Rhodes, he of the famous Scholarship, sponsored a private invasion of the Transvaal, known as Jameson's Raid. The Boers crushed it, but in response the British government began to get more involved. Finally, the British made plain their intention to take over, by force if necessary, the Transvaal and the Orange Free State. Their backs to the wall, the Afrikaaner Republics declared war in October, 1899.

To the great surprise of the British, the Boers had not only refused to buckle under British threats, but on the declaration of war, they launched a major offensive into South Africa, routing British forces in the area, laying seige to Ladysmith, Kimberley, and Mafeking, and threatening the great port of Durban. (It was during this phase of the war that young Winston Churchill was taken prisoner, escaped, and began writing dispatches that would add greatly to his fame. And it was at the seige of Mafeking that Baden-Powell, later founder of the Boy Scouts, first gained worldwide reknown. Kipling and Arthur Conan Doyle also served as journalists in the Boer War, with Conan Doyle writing a book, "The Great Boer War.") But despite the Boers early success, they were simply no match for the British. The entire Boer population in the two Republics was a bit over 200,000, of whom approximately 50,000 were men of military age - the British would eventually send 450,000 troops to subdue them. By mid-1900 the British had captured Bloemfontaine and Johannesburg, the capitals of, respectively, the Orange Free State and the Transvaal. Both were declared British colonies and the war seemed over.

Then began the guerilla war. Boer guerillas, led by Louis Botha, Christiaan de Wet, J.H. de la Rey, and future South African President and Churchill confidante J.C. Smuts, began harassing British units, capturing supplies, and inflicting substantial casualties on the occupiers. The British response was savage. Under the leadership of Lord Kirchener, the British burned over 30,000 Boer farms in an effort to deny the guerillas sustenance. Over 100,000 Boer civilians were interned in over a dozen concentration camps, and over 25,000, mainly women and children, would eventually die of disease and malnutrition in the camps. It was this horrible stage of the war that led to the great speech by the Liberal leader Campbell-Bannerman. Rising in Parliament, he noted that the government denied that there was any longer a war taking place in South Africa. To which he then asked, "when is a war not a war? When it is carried on by methods of barbarism is South Africa."

Early in the guerilla war the British, in their bright red jackets and tight formations, were easy prey for the Boer units. Eventually, the British began to form units of what we might now call "special forces." One such unit was the Bushveldt Carbineers. They were outfitted in plain khaki and broad rimmed hats, and mounted for rapid movement. They relied on intelligence gleaned from the local population and captured enemy combatants to roust the guerillas out of their hiding places and the farms to which they dispersed after action.

It is this climate that is the setting for the true story of Breaker Morant. Morant is a rather dashing Australian, a lieutenant in the Bushveldt Carbineers. His nickname comes from his skill at breaking horses, but he recites Byron at length and sings to his love in a beautiful tenor. During action in the Veldt, faulty intelligence, probably provided on purpose by a double agent, leads the Carbineers into an ambush. Their beloved Captain Taylor is killed in the encounter, and an enraged Morant, assuming command, summarily executes a Boer prisoner of war in revenge. It may be worth noting that the Carbineers, as a light, fast, mounted unit that lived off the land, had little capacity to take POWs and - more importantly - it would be alleged by Morant and his subordinates at trial that the Carbineers had direct orders - unwritten - from General Kirchener's headquarters to "take no prisoners."

Morant and two junior lieutenants are then brought up on charges or war crimes, and Major J.F. Thomas is assigned to their defense. But the fix is in. Kirchener is obviously not going to admit that orders were given to "take no prisoners." Furthermore, given the growing public outcry about British atrocities in the war, it is necessary to take firm action here. Although all three defendants are Australian nationals, Australian officials decide to support the British - the nation has only just been granted Dominion status, and they are eager to prove that they are not a backwards nation of descendants of theives. Showing their concern for war crimes by prosecuting Morant is a helpful cover. Nevertheless, the idealistic Major Thomas puts up a surprisingly spunky defense, and the military judges, who understand why they have been assigned the case, are nonetheless forced to concede many procedural points in Thomas's (and of course Morant's) favor as the trial moves along. In the end, it is of course for naught. One of Morant's co-defendants, Lt. George Witten, avoided the death penalty - mainly because of his youth - and would eventually would write a book (on which the movie is largely based) called "Scapegoats of the Empire." Thanks to the movie, it has been re-released in recent years in paperback and can be found at Amazon.

This movie bears all the hallmarks of the great Australian director Bruce Beresford ("Driving Miss Daisy," "Tender Mercies," "The Black Robe"). A strong story masterfully told with flashbacks that are never confusing, excellent camera work, fine pacing. The courtroom scenes are superb, among the best ever done, certainly the best military trial ever on screen. Most of all, Beresford has a real knack for bringing out the best in actors, and Edward Woodward's portrayal of Morant is a sublime masterpiece. A slight tremor in his hand as smokes a cigarette, a slightly ironic grin, a small twitch in the corner of his eye, a catch in his voice - these small, subtle gestures mark the strain under which Morant is functioning, first in the field and then in court. His recognition of the futility of their defense - which Major Thomas simply cannot accept - and his appreciation of Thomas's doomed efforts make for one of the best, most subtle interpersonal relationships ever put to film.

It seems to me that Breaker Morant gives us lots to think about in this day and age. The simple cant on the Democratic Underground would see an easy Iraq allegory, a Michael Moore script: ruthless empire invades peaceful rural backwater in quest for underground riches; targets innocent civilians; commits atrocities, and deserts its soldiers. Of course, in reality there are few similarities of that type - the U.S. did not invade Iraq for oil (we coulda lifted the embargo and bought it anytime); and we are not targeting civilians, randomly burning farms, or herding the populace into concentration camps.

But - "Breaker Morant" reminds us of what can happen in this type of war, when the ability to get intelligence from the enemy is often the difference between life and death; when the enemy is shadowy and hard to identify or locate; when frustration builds from the inability of a great power to put down an insurgency, and when one's comrades are not felled in head to head combat but by murky ambush from the shadows. It is easy to be sucked into the morass, and to lose one's own moral bearings. Abu Grab is not a concentration camp, but there has been at least some mistreatment of internees. We do need to punish soldiers who step over the lines. But we must not let them become scapegoats, roasted and convicted in the press without a fair trial. War produces many moral ambiguities, and the Boer War, or today's Iraq war, are no exceptions. It is important to think about how far we are willing to go - what steps we are willing to take - to win this war.

Roe Will Fall

As I was eating lunch today - lonely, of course - I had this little epiphany. Roe v. Wade is going to fall. WAIT - Stay with me...

Most of you, I'm sure, are unimpressed. Many have long claimed Roe is unstable precedent. I certainly always saw the likelihood that it could fall, especially if particular changes were made to the make up of the Supreme Court. I guess what was different for me today is that, for the first time, I felt really sure it would fall, and relatively soon, and perhaps most important, that it would fall with popular support for its being overruled. I have never felt any of those before.

As a matter of legal reasoning, Roe has always been a weak opinion, castigated by many who liked its result almost as much it was castigated by those opposed to its result. Nevertheless, most Americans support Roe. Most Americans are in the middle on abortion - they think it is a bad thing, and they support some limits on the right, such as parental notification for minors, modest waiting periods, restrictions on "partial birth" abortion. But they generally support the idea of some right to terminate an unwanted pregnancy. Most, I think, do not understand that Roe reaches as far as it does, and this is in part due to the limited success of the right-to-life movement - though most of their efforts to place such reasonable restrictions on the right to choose have been rejected (let alone overruling Roe completely), they have made it uncomfortable enough for abortion providers that providers can be hard to find in many areas. And they almost always keep a very low profile, due to fears of protests or even bombings. Thus most Americans are, I think, unaware of the sweeping scope the courts have given to Roe. Legally, we truly do have abortion on demand, pretty much anywhere, any time, for any reason.

Roe is now over 30 years old. What sparked my little epiphany was seeing a friend yesterday, a libertarian sort. In our conversation, he was totally sold on the proposition that Roe was wrongly decided. He did not always feel this way. I have watched him move from very sharply pro-abortion rights, to pro-right to choose but expressing more moral disapproval of the act, to now supporting the overruling of Roe. But as I thought about it, I realized that the same transformation has taken place in most all of my more libertarian friends. That is to say, it seems to me that the libertarian right has become increasingly pro-life, leaving behind its traditional pro-choice orientation. This is not a real big group, but it is important because, if I am correct in my perception, it means that Roe will soon have little support except among hard core liberals. These hard core liberals will continue, I suspect, to demand that Roe be interpreted in absolutes, including the right to partial birth abortion. That means that the center will become smaller, and people will feel forced to choose: pro-life, or pro-choice. The pro-choice position can beat the pro-life position, if it is seen as a necessary evil, an escape hatch many may sometime need. It will lose to the pro-life position if it is seen as all but celebrating abortion on demand, including partial birth abortion. When that happens, and people feel increasingly forced to choose sides between absolutes, they will go pro-life.

These are my descriptive, not proscriptive thoughts of what is likely to happen on this most vexing issue.

Chasing Roberts on Voting Rights

Before heading into the rugged country where I was off the web, I suggested that the assault on John Roberts might well turn on his alleged opposition to "voting rights."

In reality, I noted, this meant that Roberts opposes an interpretation of the Voting Rights Act which goes far beyond abolishing literacy tests, poll taxes, and other measures intended to prevent minorities from registering to vote and from voting. But our courts, with little public fanfare, have adopted an interpretation of the law which requires that minorities be elected to office roughly in proportion to their percentage of the population (a fact noted by Robert's centrist predecessor, Sandra Day O'Connor, in a concurring opinion in Thornburg v. Gingles, a 1986 case). If minorities are not so elected in rough proportion to their percentage of the population, they can then be packed into what the courts call "minority-majority" districts. This technique, which the Court's conservative black Justice, Clarence Thomas, has called "racial apartheid," leads to the bizarrely shaped districts created primarily for the purpose of lumping black and hispanic voters into particular districts. Surrounding districts are, correspondingly, denuded of minority voters.

The result, besides the repulsive but legally mandated use of race to draw districts, is that candidates in "majority-minority" districts don't have to appeal to whites, and candidates in the surrounding bleached districts don't have to worry about blacks. This naturally leads to a more racially polarized electorate.
In any case, while it looks as though Roberts will be confirmed, the attack is beginning to center around "voting rights." On August 10th The Hill, one of those "insider" publications that covers legislative doings at the nation's capital, reported reported that opponents of the nomination would pitch their appeal to "minorities."

“If I had to pick three overall areas: civil rights, access to justice and, I think, privacy,” said Elliot Mincberg, head of the liberal coalition’s research task force, listing the greatest concerns about Roberts’s record.

Civil rights is one of the top issues for black voters... .

The Alliance for Justice, which with People for the American Way is leading the liberal coalition’s response to Roberts, last week sent a press packet to editorial writers and editors criticizing Roberts’s record on civil rights.

Citing documents from Roberts’s service in the Reagan Justice Department and the Reagan White House, the group asserts that Roberts “argued for weakening proposed voting-rights protections,”

Meanwhile, the Chicago Tribune also quotes a number of civil rights leaders questioning Roberts because of his opposition to this interpretation of the Voting Rights - opposition that, I am convinced, most Americans would share if they had any idea it was going on.

But that's just it. The public doesn't know why we have all these lawsuits over redistricting plans, doesn't understand that when these groups say "voting rights," they are not talking about restrictions on voting. Rather, they are talking about "vote dilution," that allegedly can occur whenever minority candidates are not elected in accordance with their percentage of the population. "Voting rights" is a potential winner because everyone supports "voting rights," and groups such as the NAACP have successfully monopolized the term, so that anyone disagreeing with their view is said to "oppose voting rights." Thus, USA Today gets away with the headline, "Roberts Joined Efforts to Limit Voting Protections," something that is far from the truth as most Americans understand "voting protection." Only if you read through a ways do you discover the dastardly secret of Roberts: he argued that, "minorities who alleged discrimination in voting procedures should have to prove that state or local officials intentionally discriminated against them."

Minorities who allege discrimination should have to prove discrimination? What kind of racist would ever argue that? Outrageous.

Roberts' views on the voting rights act are impeccably centrist, and let us hope he doesn't back down, in confirmation or on the bench.

Did Churchill Create Nazis?

The Washington Times has a thoroughly conservative editorial page - no centrism, no balance. But one columnist I always find worth reading there is Todd Lindberg. In today's column he asks if the United States is creating more terrorists with its foreign policy since September 11, and in particular the invasion of Iraq.

Lindberg argues that U.S. foreign policy since September 11, 2001, is creating more terrorists. He writes:

To some, this means it is self-evidently the case that U.S. policy is counterproductive. I don't think so. I think we need to look seriously at the question of whether or not increased recruitment to the Islamist cause at the present moment and under current conditions is as bad as other likely alternatives. ...

Moreover, we tried (albeit perhaps not consciously) a cooler approach to the problem, i.e., we pretty much ignored it. True, that approach was uncoupled from dramatic gestures of appeasement (of the sort that would be politically impossible at home and unlikely to appease anyway). But that approach only got us as far as September 11.

We are provoking what we are provoking because we are seriously confronting the Islamists for the first time. And I think now is a good time to do that, first because we are strong and they are not, second because in engaging as we are, we are encouraging a necessary debate within Islam.

I think Lindberg is probably right. Reading his column also made me wonder what the extreme anti-war crowd would have said in World War II. They would have pointed out that by the spring of 1944 the German Army was substantially larger than it was in December, 1941, or September 1939. In particular, the SS divisions - the real "terrorist" hard core of the Nazi regime, had grown in size and power. Surely the bombing of Dresden and other cities made many Germans loathe and hate Americans and British. By June of 1944 the German military machine was far larger, and far superior, to the largely horse drawn army that had started the war by invading Poland less than 5 years before.

So, did Churchill create Nazis? For a time, he almost certainly did. And aren't we glad that we had him?

The best underrated blog you've never read is back!

Well, I'm back from vacation to parts uncivilized, and able to post once again. I was so pleased to have Krempasky of the popular RedState call this site, "The best underrated blog you've never read" (scroll down to "Lest I be Accused"). It helped me get a record number of hits that day, but of course, the timing could have been better - I then left town for 10 days, had no blogging, and lost my chance to hook new readers!

Fate has a way of doing that to you.

Ginning up the Voting Rights Attack on Roberts

In today's L.A. Times a Cal Tech Professor named Morgan Kousser plays off Professor Richard Hasen's recent Times Op-ed to call Judge Roberts "an extreme opponent of minority voting rights." This is an effort to smear Roberts as an "opponent of minority voting rights" for taking positions back in 1982 that have proven, over time - to be correct. In brief, Roberts argued that a particular interpretation of the Act would lead to a de facto legislative quota system. See my earlier post here on the subject, and here on the nature of the game to cut off debate on the subject by tarring Roberts and others as "anti-voting rights."

A Quick Question

Anybody else tired of the far left's war on the Boy Scouts? Me too.

Vacation

I've been on vacation for a couple weeks, and finish up with a little trip away from the close embrace of civilization. No internet cafes and the like. I doubt that there will be any blogging for the week. After my return, I'd like to start exploring exactly what does constitute the center of American politics.

The Discourse of Democracy: Using Semantics to Discredit One's Opponents

Professor Richard Hasen of Loyola Law School doesn't seem to think much of a this piece I penned (or click-clacked on my keyboard, as the case may be), responding to a recent op-ed he wrote for the L.A. Times claiming that Judge (and Supreme Court Nominee) John Roberts' support for "voting rights" is "iffy" and that he appears to be "hostile to expansive voting rights legislation." (You can find excerpts here, too, scroll down to August 3, 2005.)

Hasen thinks I'm not the centrist I claim to be. About me, he writes:

Centrist? Not so much. In this post he asks "Why is it that when I talk with my conservative friends I feel so liberal, and when I talk with my liberal friends I feel so conservative?" But when you read his critique of my oped on Judge Roberts, he seems more in line with Justice Thomas than with any definition of the center that I know.

Well, first, I appreciate that Professor Hasen even reads my little musings. But his response is, I think, a bit odd. Professor Hasen doesn't seem to want to address the points I made, or actually defend his claim - which I criticized - that Judge Roberts is against "voting rights." Rather, he simply takes a quick, ad hominem swipe at me: I am not really centrist, and presumably, I therefore am not to be trusted. I must be a conservative, he suggests, because I seem to agree with Justice Clarence Thomas on this one issue.

Now, let's start by setting forth that we can be pretty sure that Rick Hasen is a liberal. I guess I don't really know this, but his web site (link above) notes that he advised Al Gore on legal matters (that alone hardly paints him a "liberal" - Gore was a pretty centrist Democrat, at least right up until his 2000 campaign, when he veered left and never came back). I've scanned some of the law review articles he's written (you can find the list on his home page linked above - unfortunately, the couple I'm going to cite do not appear to be available on-line, so no link here, you'll have to get hard copy), and some of them are quite radical. Most notably is "Clipping Coupons for Democracy: An Egalitarian / Public Choice Defense of Campaign Finance Vouchers," 84 California Law Review 1 (1996), in which he argues that nobody should be allowed to spend any private money - any - on campaign activity (it should all come from grants from the state), and "Campaign Finance Laws and the Rupert Murdoch Problem," 77 Texas Law Review 1627 (1999), in which he argues that, as part of campaign finance reform, and in the name of promoting "equality" and lessening the influence of wealthy individuals the press should be censored. This is not real conservative - or centrist - stuff. He has also represented the ACLU, a perfectly respectable group to which I once belonged (in my less moderate days) but one which is not generally considered part of the American political center. And then, of course, there is his support for the quota interpretation of the Voting Rights Act, the point on which he criticizes Judge Roberts (for not supporting this quota system of representation) and on which he concludes that I am not within "any definition of the center" that he knows.

All this could suggest that Professor Hasen either doesn't have a very good grip on where the American political center is located. But I think what we really see is an effort to win debates not on the merits, but by semantic trickery.

The use of words has always fascinated me, and does until this day. Indeed, I think part of my bizarre fascination with election issues - especially campaign finance - is watching the way in which one side of the issue - a side that is certainly not moderate or centrist in the results it favors - has dominated the issue and managed to paint all opposition as either corrupt or extremist.

Groups such as Common Cause and Democracy 21 have managed to get themselves labeled as "pro-reform" organizations; efforts to regulate, such as McCain-Feingold, are always referred to as "campaign finance reform." An effort to deregulate, while potentially more far reaching, is never labeled "reform." Now "change" can be good or bad, but "reform" is by definition an effort to refine and improve. Who is opposed to improving anything? Thus, by claiming the mantle of "reform" so successfully, those who want to regulate free speech have largely won the debate in advance.

Professor Hasen is attempting to perform similar semantic jujitsu here. If Judge Roberts does not support Hasen's favored interpretation of the Voting Rights Act, then Roberts' support for "voting rights" is "iffy" - indeed, he may even be "hostile" to "voting rights." I doubt you could find 5% of the public against the generic label of "voting rights." Against voting rights for illegal immigrants, most; against voting rights for non-citizens - probably a sizeable majority; against voting rights for convicted felons - probably a slimmer majority. But against "voting rights" generically? Hardly a soul.

Now, most Americans have no idea what the Voting Rights Act actually does, and they are even less likely to understand how the courts - with the support of Professor Hasen and others - have interpreted it. When they do understand this judicial interpretation, my personal experience is that opposition is swift and strong. Americans don't like quota systems, which is what this particular element of the Voting Rights Act has become. They don't like being placed into voting districts based on their race, which is what this interpretation of the Voting Rights Act requires. They do not think that "voting rights" are violated when a city council elects its five members from the populace at large, rather than by districts designed to make sure that a certain percentage of seats go to members of racial or ethnic minoritities. No, these things are the favored baliwick of a small cadre of professors, lawyers, activists, and judges, who have more or less pulled one over on the public by claiming that opposition to their policies is "hostility to voting rights."

To defend that semantic triumph, it is important for Professor Hasen and others to try to similarly discredit those who will question their views. Thus, Hasen is not interested in engaging in debate on the issue - rather, he simply declares that the Lonely Centrist must be "like Justice Thomas," and therefore in no way a centrist (not in line with "any definition of the center"), and thus by implication an extremist. In that way, Professor Hasen hopes to cloak his views as "mainstream," and those of his opponents as "extreme." (To be clear on my own views, as I noted in my initial post on this blog, by "centrist" I don't mean always in some "mushy," middle ground, looking for compromise on every issue. Rather, I mean not rigidly ideological; I mean an approach to discussing and thinking about politics based on serious consideration of arguments pro and con, based on recognizing weaknesses in one's own position and strengths in the views of others; of openmindedness and moderation in tone).

All of this, of course, is not unique in politics. Battles are often fought over labels for just that reason. Pro-choice advocates on abortion have had tremendous success in getting major news outlets to ban the use of "pro-life" to describe abortion opponents, in one such semantic victory. Everyone tries to fashion their positions in favorable language. My own approach - because I want to discuss merits, not labels - is to call people what they call themselves. Call yourself pro-life, I'll call you pro-life; call yourself pro-choice, I'll call you pro-choice; call yourself a "reformer," I'll call you a reformer. But I will not let the label keep me from discussing the substance of your position, and I will not let you demand that I call others by your prefered phrase - for example, I will not concede to you for a second that Judge John Roberts is "hostile to expansive voting rights legislation" merely because he disagrees with an interpretation of the law that, I think, most Americans would disagree with (if they knew of it), and which does not, as a matter of fact, indicate any hostility to "voting rights" as most people would define the term.

In any case, I have very mixed feelings about Judge Roberts. What's clear to me is that most of the attacks on him, coming from the left, are without merit. That is not to say he's the type of judge I would have wanted. He's not - at least I don't think he is. But I believe he is qualified, and it is the President's proper choice.

If there is an effort to tar Roberts as being against "voting rights," I hope that he smashes it right back. One can hope for this exchange:

Senator Schumer: Would you care to explain your opposition to the Voting Rights Act?

Judge Roberts: Senator, I support the Voting Rights Act.

Senator Schumer: Well, let me read from Professor Richard Hasen, a respected expert in Election Law [of course, he'd more likely read from a release by the NAACP or People for the American Way, but humor me - LC]: Circumstantial evidence proves that Judge Roberts is hostile to Voting Rights legislation. His support for the Voting Rights Act is iffy."

Judge Roberts: With all due respect, Senator, that is not true. The Voting Rights Act, in removing barriers to voting by minorities, has been one of the great legislative success stories of our nation's history. But I have been concerned about an interpretation of that law which, as Justice O'Connor pointed out in concurring in Thornberg v. Gingles, risks turning our electoral system into a quota system. I am sure, Senator, that you do not support election to office by racial quota, and so I am sure you agree with me that the Court must keep an open mind on this issue and consider future cases closely, and should not be restricted by precedent if the facts in evidence show that the result of the Court's interpretation of the Voting Rights Act has created such a quota system. Of course, I would not touch the core provisions of the Voting Rights Act that have removed barriers to voting by minorities.

Then let the debate be joined on the merits, rather than by semantic tarring and feathering.

Friday Night Video: The Black Robe

We're on vacation and won't be watching tonight, but we've still got a recommendation for you. This week, we recommend The Black Robe, a 1990 film by Australian Director Bruce Beresford (best known for Driving Miss Daisy, but also the director of two other superb films we'll be reviewing soon: Breaker Morant and Tender Mercies).

The film is they story of a young Jesuit priest out to convert Indians in Canada in the early 17th Century. The movie is the most realistic portrayal of this time period ever done on the big screen. It thus offers tremendous insight into that unique era of history, when the forces of the old world were first meeting those of the new, and trying to come to grips with one another. Have you ever thought of what it must really have been like to go forth as a missionary into an almost unknown world, totally separated from one's own culture, reliant on others whose friendship and good will cannot be taken for granted, and whose customs are totally foreign (as yours are to them)? The noted medieval historian Norman Cantor notes that the movie could almost as easily represent earlier missionary efforts - "think of St. Boniface and the Frisians in the eighth century." A "fiercely accurate" portrayal of the late medieval church, and a fascinating story, all beautifully filmed in lush wilderness reprsenting Quebec of 500 years ago.

The film was brought to mind by a recent conversation with a friend. I haven't seen it in a while, but I intend to when I'm back in town. I wonder if, on reviewing, it won't have some message or insight into the similar clash of missionary cultures now occuring 500 years later, between Muslims and Christians.

Judge Roberts and the Voting Rights Act

On the Election Law blog, Professor Richard Hasen quotes from his own op-ed in the Los Angeles Times, to the effect that John Roberts won't support voting rights.

What Hasen really means is that Roberts won't support the bastardized version of voting rights based on Supreme Court interpretations of Amendments to the the Voting Rights Act that Congress adopted in 1982. Under that version, you don't have to prove that anybody has done anything with the intention to interfere with anyone else's voting rights - it is enough if the practice in question has a "discriminatory effect." I'm not sure that that is a good reading of the law, but I suppose it would be tolerable if it were interpreted in a sensible way. But how it is interpreted, and how Hasen wants to continue to interpret it, is that the number of minorities (usually African-Americans, although it also applies to some other minorities, such as Hispanics, but not, for example, to Hasidic Jews) must be elected roughly in accordance with their percentage of the population. So, for example, if a state has a 20 member state senate, and a 10% black population, it must elect at least 2 black state senators from "safe" "minority-majority" districts - that is, districts in which blacks make up most of the voters.

The effect of this has been that when drawing district lines, blacks are "packed" into districts with other blacks; other districts therefore have very few blacks. Thus, in the above example, two blacks may be elected to the state senate, but black voters have virtually no sway over the other 18 senators, whose districts have been stripped of black voters to pack them into the other two districts. Because blacks vote overwhelmingly Democratic, Republicans have cynically used this to increase their representation - black Democrats win a couple seats by big margins, but there are fewer Democrats elsewhere, and so more Republicans are elected. Meanwhile, the elected blacks - from very safe Democratic seats - tend to be extreme liberals who hardly, I think, represent most blacks. Think John Conyers, Maxine Waters, and Charlie Rangel in Congress. And Republicans can also safely ignore black concerns, as there are few black voters in their districts. Justice Clarence Thomas calls this "racial apartheid," and if the language is inflammatory and harsh, it is certainly not far from the truth.

Here is what Hasen has to say about Roberts, based on memoranda Roberts wrote for the White House in 1982:

In these documents, Roberts wrote that the new Section 2 would "establish a quota system" and "provide a basis for the most intrusive interference imaginable by federal courts into state and local processes." He added that it "would be difficult to conceive of a more drastic alteration of local government affairs."

Imposing the new Section 2 nationwide, he concluded, would be "not only constitutionally suspect, but also contrary to the most fundamental [tenets] of the legislative process on which the laws of this country are based."

One could perhaps argue that Roberts' writings did not reflect his personal views and were simply the arguments of a zealous advocate for a client. But the papers I have seen suggest otherwise.

During the Senate debates, for instance, Roberts wrote that the attorney general had to "get something out somewhere soon" [original emphasis] explaining the administration's position because the "frequent writings in this area by our adversaries have gone unanswered for too long." He called on the administration to take an "aggressive stance" against the changes to Section 2. When it was over and Section 2 had been amended, Roberts wrote that "we were burned."

...None of these statements absolutely proves that Roberts is hostile to expansive voting rights legislation, but as he wrote in his talking points for the attorney general, circumstantial evidence (rather than a "smoking gun") should be enough to prove intent.

And what, I ask, is not true in what Roberts wrote? And second, how does it show any hostility to voting rights?

Section 2, interpreted as Hasen prefers, has established a quota system, and this was recognized by Justices Burger, O'Connor, Powell, and Rehnquist in their concurring opinion (on different grounds) in Thornberg v. Gingles, 478 U.S. 30 (1986). It has led to a marked federal and judicial interference in state affairs (think of all the redistricting lawsuits brought nowadays - most are based on the Voting Rights Act); it has drastically altered local government affairs (among other things, it has been used by courts to force city and county governments to elect commissioners from specific districts rather than city or countywide - precisely to insure that the minority voters can be "packed" into one or two districts to guarantee that the quota of minority legislators is met. The effect of this is often to polarize local politics).

Finally, the 1982 Amendments to the Voting Rights Act are contrary to the legislative process on which the country was founded, and for that reason they are constitutionally suspect: Justices Scalia and Thomas would hold them unconstitutional, (Holder v. Hall, 512 U.S. 874 (1994)).


And finally, the Attorney General should have gotten something out soon - there were unanswered attacks by their adversaries that were allowed to shape the debate and convince too many people that opposition to these provisions meant one was opposed to civil rights.

Let's hope, then, that these memos not only are Roberts' effort to zealously advocate, but also that they do represent his personal views.

And let us not allow people such as Professor Hasen to smear these views as somehow being anti-minority or against "voting rights."

Finally, Hasen quotes from a later Roberts memo in which he urged the Department of Justice to intervene in a case:

"it is critical that the Department participate in the developing process of giving meaning to the vague terms of the new section 2, and help courts avoid the outcomes we argued against and which the proponents of an amended section 2 assured us were never intended."

Just so. And it has been unfortunate for the country - particularly the political center - that Roberts advice wasn't heeded.

Must Read

Daniel Pipes on the Council for American-Islamic Relations. In CAIR's defense, it has recently supported a religious ruling condemning terrorism. The ruling states that "terrorism targeting civilians is forbidden." Of course, some Islamic clerics argue that there are no civilians.

Another contender in the Naive Man contest

About 10 days ago I asked if long-time campaign finance reformer Fred Wertheimer was the most naive man in America. But perhaps we need a weekly award, with a year-end runoff. Being on vacation allows one to catch up, I guess, and I've found an interesting little article from a couple weeks ago in the "catch up" reading I brought along, suggesting Fred is not alone in not understanding what he is doing.

It's BNA Money and Politics Report (subscription required), talking with Larry Noble, the head of another reform group, The Center for Responsive Politics, a few days back.

Noble is talking about an effort in congress to slip into an appropriations bill* a clause allowing "Leadership PACs" to make unlimited contributions to political parties. A "Leadership PAC" is a PAC that, for obscure reasons unknown to we ordinary citizens, a member of congress can have so that he can double his take under the law. Note that the name says it all - there are no special exemptions for challengers or backbenchers, just party leaders. John McCain's "Straight Talk Express" is a leadership PAC, serving as sort of a slush fund to cover his travel and campaigning - the only hitch is that he can't actually say he is campaigning when Straight Talk picks up the tab. Nancy Pelosi, Bill Frist - they all have "Leadership PACs."

At the end of a lengthy article, BNA sums up Noble's reaction thusly: "[A]nother instance of lawmakers trying to manipulate the campaign finance system to maximize their ability to raise campaign money."

What? Lawmakers would try to manipulate the system to raise more campaign money. Wait a minute: how can that be? Aren't the reformers always arguing that we have to trust Congress to regulate here, nevermind the First Amendment? Didn't they celebrate when the Supreme Court bought that argument a couple years ago and upheld McCain-Feingold as constitutional? And now you tell me they're not all public spirited, but trying to manipulate the system? And that this is "another instance," suggesting that you've known that all along?

I, for one, am shocked! But hey, Larry, it's guys like you that gave them that power.

*Don't get me started on unrelated little provisions slipped into appropriations bills!

School's Out

You might have noticed that the Centerman is writing a bit less these days. In theory, you see, he's on vacation. Next week blogging will be especially light. But it's OK -- the Republic is safe for a few weeks now. Congress, you see, is in recess!

"No man's life, liberty, or property are safe while the legislature is in session."
- Mark Twain*

*Sometimes attributed to Judge Gideon J. Tucker.

Clowns to the left of me, Jokers to the right...

Here's a fine little column by the Charleston Gazette's Susanna Rodell, linked through the Duluth News Tribune. Susanna's a pretty liberal Democrat (at least she proclaims herself such), but even she is fed up with the party's non-stop, hysterical rhetoric these days.

Here in West Virginia as in a lot of other states, I keep running into people who used to be Democrats....

The whackos and their interest groups send me snide e-mails ridiculing everything Bush in language that I find offensive. They preach exclusively to the choir. I am in that choir, but more and more I find myself skulking out the side door in the middle of the sermon.

The Democrats need to get ahold of themselves, get their rhetoric back to earth, and start offering serious alternatives to the Republicans.

Free tip to Howard Dean: "Bush Lied, People Died," and
Karl Rove must go" won't get the job done.