Daily Kos

Crashing the Gate lays bare, with passion and precision, how ineffective, incompetent, and antiquated the Democratic Party establishment has become, and how it has failed to adapt and respond to new realities and challenges.

Pre-order today! Lots of good reasons why here, here, and here.

DeLay's legal "victory" not so glorious after all

Thu Dec 29, 2005 at 01:34:10 AM PDT

When will Texas reporters learn that DeLay spokesman Kevin Madden can't be trusted to tell the truth?

Media reports that U.S. Rep. Tom DeLay had convinced the state's highest court to hear his appeal were as widely circulated as they were, well, wrong.

Justices for the Texas Court Criminal Appeals agreed merely to consider hearing DeLay's money laundering case. They never said they would accept the case, said Edward Marty, the court's general counsel.

The erroneous media reports, which the San Antonio Express-News published in a wire story and displayed online, come from DeLay's spokesman, Kevin Madden, in an e-mail sent to reporters Tuesday evening, after courts had closed for the night.

"FYI-Breaking news out of Austin, TX," the e-mail stated. "The state Court of Criminal Appeals has agreed to hear Mr. DeLay's habeas motion that was filed at the end of last week. The court has set a one-week deadline for briefs to be filed by the parties involved. The court could essentially decide to end Ronnie Earle's prosecution after hearing this motion and the facts presented."

Madden said this afternoon that he made an error and never intended to "spin" the story.

"In an effort to be instantaneous, I wasn't precise.....My understanding (of the decision) was correct. The way I relayed it wasn't," he said.

Late night open thread, nerd edition

Thu Dec 29, 2005 at 12:44:46 AM PDT

Some nerd news for you:

Star Trek is 'most missed' series

Sci-fi series Star Trek is the show most people want to see returned to their TV screens, a survey has found.

Originally broadcast in the US in 1966, it topped a poll of more than 1,000 viewers commissioned by UK interactive TV firm Home Media Networks.

Fantasy action series Buffy the Vampire Slayer was second, followed by long-running sitcom Friends.

I'd love to see Star Trek re-runs, too.  It's my favorite, although ST:TNG is great too.

Let the nerd battle begin!  This is an open thread.

Legal Realism, Precedent, Federalism and ScAlito

Thu Dec 29, 2005 at 12:18:13 AM PDT

The full picture of Judge Samuel Alito -- his ties to the Federalist Society, his decision to join Ed Meese's Justice Department, his expressed views in memoranda and opinions, all lead to strong concerns about his fitness for the Supreme Court. His defenders will try and deflect his record in piecemeal fashion, explaining why his dissents in some cases, his memoranda in others, are all perfectly reasonable.

I adhere to the view that all judges (and lawyers) are Legal Realists at heart --  we can all, generally speaking, justify a legal point of view. My point is that we do so to justify our desired result. And Alito is no different. That is why the results he has advocated are important for more than examining potential policy results; they also help to reveal his judicial philosophy. I am going to examine two of his opinions - his dissents in United States v. Rybar (the machine gun case) and in Planned Parenthood v. Casey (the abortion case) to illustrate Alito's selective adherence to "precedent" to achieve the result he desired in both of those cases. In Rybar, he rationalizes that U.S. v Lopez dictates the result. In Casey, he ignores an on point Supreme Court precedent to achieve the result he wants. I will also posit what I believe these two decisions demonstrate regarding Alito's judicial philosophy.

First Rybar (unavailable for linking). In Rybar, the Third Circuit ruled as follows:

Defendant was convicted of unlawful transfer or possession of machine gun by the United States District Court for the Western District of Pennsylvania, Alan N. Bloch, J., after defendant entered conditional guilty plea, preserving the right to raise commerce clause and Second Amendment challenges to statute. Defendant appealed. The Court of Appeals, Sloviter, Chief Judge, held that: (1) general ban on machine guns had substantial affect on commerce, and (2) defendant's possession of machine guns did not have connection with militia-related activity required for Second Amendment protections to apply.


Alito, Circuit Judge, dissented and filed opinion.

Alito opined that Rybar was controlled by United States v. Lopez:

The activity that the Lopez Court found was not "economic" or "connected with a commercial transaction" was a type of intrastate firearm possession, i.e., the possession of a firearm (including a machine gun) within a school zone. At issue here is another type of purely intrastate firearm possession, i.e., the purely intrastate possession of a machine gun. If the former must be regarded as non-economic and non-commercial, why isn't the same true of the latter? Is possession of a machine gun inherently more "economic" or more "commercial" than possession of other firearms? Is the possession of a firearm within a school zone somehow less "economic" and "commercial" than possession elsewhere-say, on one's own property? If there are distinctions of constitutional dimension here, they are too subtle for me to grasp. It seems to me that the most natural reading of Lopez is that the simple possession of a firearm, without more, is not "economic" or "commercial" activity in the same sense as the production of wheat in Wickard and that therefore such possession cannot be regulated under the Wickard theory.

(Emphasis supplied.) So is Alito correct? Is that the required reading of Lopez? I think not.

For example, in United States v. Bass, 404 U.S. 336  (1971), the Court interpreted former 18 U.S.C. 1202(a), which made it a crime for a felon to "receiv[e], posses[s], or transpor[t] in commerce or affecting commerce . . . any firearm." 404 U.S., at 337 . The Court interpreted the possession component of 1202(a) to require an additional nexus to interstate commerce both because the statute was ambiguous and because "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance." Id., at 349. The Bass Court set aside the conviction because although the Government had demonstrated that Bass had possessed a firearm, it had failed "to show the requisite nexus with interstate commerce." Id., at 347. The Court thus interpreted the statute to reserve the constitutional question whether Congress could regulate, without more, the "mere possession" of firearms.

And the Lopez Court also did not decide the question. To wit, Alito's "natural reading" of Lopez is expressly disclaimed by Lopez itself.

Continued below the fold.

Bush Changes, Politicizes Pentagon Succession

Thu Dec 29, 2005 at 12:05:22 AM PDT

From AP:

WASHINGTON -- The three military service chiefs have been dropped in the Bush administration's doomsday line of Pentagon succession, pushed beneath three civilian undersecretaries in Defense Secretary Donald H. Rumsfeld's inner circle.

A little-noticed holiday week executive order from President Bush moved the Pentagon's intelligence chief to the No. 3 spot in the succession hierarchy behind Mr. Rumsfeld. The second spot would be the deputy secretary of defense, but that position currently is vacant. The Army chief, which long held the No. 3 spot, was dropped to sixth.

The changes, announced last week, are the second in six months and mirror the administration's new emphasis on intelligence gathering versus combat in 21st century warfighting.

Technically, the line of succession is assigned to specific positions, rather than the current individuals holding those jobs. But in its current incarnation, the doomsday plan moves to near the top three undersecretaries who are Rumsfeld loyalists and who previously worked for Vice President Dick Cheney when he was defense secretary.

Apparently, it's not just liberals who sense a stinking political motive in this "little-noticed holiday executive order."

Thomas Donnelly, a defense expert with the American Enterprise Institute, said the changes make it easier for the administration to assert political control and could lead to more narrow-minded decisions.

"It continues to devalue the services as institutions," said Mr. Donnelly.

Seriously, if the AEI is calling a Republican president out for asserting political control, you've not just spent your political capital, you're in serious political debt.

Open Thread

Wed Dec 28, 2005 at 07:02:56 PM PDT

It's that time of the day.

ScAlito's World: S. Dakota and Mississippi, Here We Come!

Wed Dec 28, 2005 at 05:26:07 PM PDT

Yesterday georgia10 highlighted what's at stake should the Supreme Court gain a majority of anti-choice justices--i.e., what happens if ScAlito is confirmed. She presented the chilling example of South Dakota.

   1.  There is only one abortion clinic in the state....
   2.  An anti-choice task force is successfully lobbying for a law "requiring that a woman watch an ultrasound of her fetus, that doctors warn women about the psychological and physical dangers of abortion, and that women receive psychological counseling before the abortion, among other measures."
   3.  The procedure costs $450. The state refuses to pay any of it, even in cases of rape or incest....
   4.  Some women in the state have to travel 700 miles in one day to get the procedure done....

The state is a prototype for anti-choice activists who, like Alito, prefer to dismantle Roe on the road to overturning it.

Today, it's Mississippi. Another state that has some of the highest levels of poverty in the nation. Another state that has a largely rural population, living far away from population centers. And another state that has just one abortion clinic, the Jackson Women's Health Organization. Another state in which the only abortion clinic is on the verge of being shut down.

Earlier this year, a federal judge knocked down a recently enacted state law that would have barred early second-trimester abortions at the clinic.

The law would have prevented abortions after 13 weeks' gestation, except in places with ambulatory surgical center standards. The clinic said it was ineligible for such a license in the state.

Gov. Haley Barbour urged lawmakers to pass another law after the judge's injunction. That law, which took effect July 1, made the clinic eligible to apply for a license to meet those ambulatory surgical standards.

Unless the clinic gains the certification, it will be illegal for the clinic to perform abortions beyond the first trimester.

About that certification, via Salon's Broadsheet (subscription):

What most news coverage has not noted is this: (1) Mississippi already has on the books 35 pages of requirements for clinic facilities, even down to parking lot size, and (2): as Hill confirmed today when Broadsheet called her to check, such standards are not, well, standard. "There are plenty of states, probably half, that don't require second semester abortions to be done in a surgery-center type facility," she said. "And the irony is, we've been doing them up to 16 weeks in a clinic that's been licensed for ten years. These are new regulations for the same facility. And sheer punitive actions against women."

Most news coverage has also not mentioned that Mississippi has the highest teen birth rate, but there you go.

Like the case of South Dakota, the doctors who provide abortion services at the Jackson Women's Health Organization fly in from out of state. One of the new requirements for certification? The provider must have hospital admitting privileges in Mississippi. One of the requirements of having such privileges? You have to reside in the state. These are just some of the many restrictions the Mississippi legislature has forced on the state's only abortion clinic and the state's women, all in an effort to do what ScAlito could do with one vote--end legalized abortion.

Think that's hyperbole? These are precisely the kinds of restrictions that ScAlito has recommended: "a legal strategy of dismantling abortion rights piece by piece" in order to eventually see the law overturned.

You might think of South Dakota and Mississippi as the outliers on this issue--that these states are backward and behind the times and things really aren't that bad out there in the rest of the country. You'd be wrong.

Tagging best practices

Wed Dec 28, 2005 at 12:24:54 PM PDT

A reminder, since many people are misusing the tags. The big thing to keep in mind when tagging -- they are a search tool. What do people search for? Issues, people, and races. Tags should ALWAYS address one of those three.

  1. Use combinations of simple tags rather than inventing complex ones.

  2. Try to think of what tags people might use to search for something and use those. Remember, tags are like categories. And people don't search for "humor" or "satire". They search for issues, races, and people.

  3. Try to re-use existing tags.

  4. Keep it simple. Don't use tags that are redundant.

  5. For election blogging, add the year, state and office. So the Colorado governor's race in 2006 is tagged: "2006, governor, Colorado". Also add the dKos-style abbreviation of the race (two digit state abbreviation and race). So a governor's race would be "CA-Gov", a Senate race "CA-Sen", and a congressional race would be "CA-06".

  6. Stop with the "cutesy" tags. This is a tool to help organize content, not show how clever you are with keywords like "HUNTERRIFIC" to express how great Hunter's diary was.

  7. Use first and last names for all people. Believe it or not, people sometimes share last names.

We're in the process of retooling the comments for the site. When that is done, we've got to finish the stats page and the search. After that, we'll go back to bolstering the tags functionality.

Republican reveals Bush Plan to avoid Impeachment

Wed Dec 28, 2005 at 12:17:37 PM PDT

(From the diaries -- kos)

Former GOP Congressman, Bob Barr of Georgia, has penned a second op-ed column condemning Bush's illegal wiretap scheme. It appeared in today's Atlanta Journal-Constitution. This time the former US Attorney explains how Bush will try to avoid a well-deserved impeachment proceeding. It's a good primer for what to expect as the coverage progresses.

Barr covers the expected plan of lying, word-parsing, stonewalling, smearing the accusers and utilizing partisanship in defense of his "illegal spying on American citizens" that has already begun.

Selected snippets from the column below:

Sunstein on "The President's Inherent Power"

Wed Dec 28, 2005 at 11:45:21 AM PDT

Cass Sunstein has a new post on the claims of a President's inherent power as Commander in Chief:

The Bush Administration has made strong claims about the "inherent" power of the President. These claims are not unprecedented, and they are rarely if ever preposterous; but they are nonetheless bold. Thus it has been argued that the President's inherent authority includes (1) the power to go to war without congressional authorization, (2) the power to engage in foreign surveillance, (3) the power to detain "enemy combatants," including Americans captured on American soil, without access to a lawyer or to hearings, and (4) the power to engage in coercive interrogation of enemies, even torture, when necessary.

I have been very hard on Professor Sunstein and, personally, I appreciate him taking some time to discuss the issue in more detail. His earlier efforts were, in my view, simply not up to par. I discuss this effort below the fold.

The Fighting Dem phenomenon spreads

Wed Dec 28, 2005 at 11:10:19 AM PDT

The Fighting Dem phenomenon continues to grow.

More than 30 Iraq and Persian Gulf War veterans have entered congressional races across the country as Democrats, hoping to capitalize on their military experience to topple the incumbent Republican majority [...]

On Dec. 20, Fawcett and Winter joined 35 Democratic veterans running for Congress at a strategy session in Washington, D.C.

The veterans voted on a name for their emerging caucuslike campaign coalition: Veterans for a Secure America. They also agreed that their military backgrounds should be promoted as credentials for leadership across the full spectrum of public policy, said Fawcett, an Air Force veteran of the 1991 Gulf War who has taught at the Air Force Academy and now works as a consultant to Northern Command in Colorado Springs.

The group will reconvene in Washington in February to respond to President Bush's State of the Union address in a news conference on the steps of the Capitol, Winter said. An attorney and the former president of the grassroots liberal organizing group Be The Change, Winter spent 10 peacetime years in the Marine Corps and the Navy.

This country craves leadership, and these guys are providing it unbidden. They are self-organizing, taking the initiative, and taking the fight to the enemy. These guys are rock stars.

So we've got dozens of Iraq and Persian Gulf vets challenging Republicans for public office. How many do Republicans have?


(The 36 Iraq and Persian Gulf War vets cited in the article seems high. That number makes sense if we include all veteran challengers. And by that metric, the Republican numbers would be boosted to two veteran challengers.)

DavidNYC explains why this is important:

  • Veterans' views on matters of war and national security are often accorded greater respect in the public sphere (whether fairly or unfairly). These issues are going to matter a whole hell of a lot in 2006, and we need candidates willing to engage - not avoid - this debate.

  • The media typically adores veterans, especially the straight-talking kind. (Think Hackett & McCain.) Moreover, our lazy media has bought into the GOP's smear of the Dems as "weak on security" wholesale. It doesn't matter how sophisticated our think-tank-produced plans on foreign policy are - the media just doesn't care. But if you've worn a dogtag around your neck or have had ribbons pinned to your chest - now that is something the media can understand.

  • The American people love our armed forces. The military always ranks at the very top when pollsters ask people how much confidence they have in various public institutions.

  • Strength in numbers: It's a lot easier to Swift Boat a lone vet in isolation. While I put nothing past today's GOP, it's much harder to slander your opponents when you're talking about dozens and dozens of men and women across the country. And these guys, I can assure you, will fight back when attacked.

  • And there's one more -- I wouldn't be who I am today without my service to my nation. It gives me a greater sense of appreciation for what my country means and motivates me to fight for her. Many politicians view DC as a path to personal power and enrichment. Heck, that view of government is driving the modern GOP. But it's hard to pledge your life to your nation to later betray it in legislative chambers.

    Too few Republicans have ever sacrificed for their nation and their utter contempt for it shows. It's no accident that some of the most principled Republicans are veterans, like Chuck Hagel and Lindsey Graham. But there are unfortunately too few of them.

    Democrats are already the party of veterans. The Fighting Dems are going to help make this point to a whole new generation of voters.

    Midday Open Thread

    Wed Dec 28, 2005 at 10:48:55 AM PDT

    (Bumped -- kos)

    • One of two anti-gay hate groups collecting signatures for an anti-gay ballot initiative in California has failed. Seems that California straight marriages have somehow survived the onslaught of gay civil unions.

    • The US billion-dollar GPS industry is about to get serious competition. Currently, it relies on US military satellites, but those satellites can be turned off for civilian use or emit false readings in the course of military operations. Exact positioning is a huge military advantage, and the Pentagon understandably doesn't want its technology used against it by hostile forces. But as the US is increasingly distrusted thanks to its current regime, the rest of the world is looking for an alternative. And the EU has obliged. The first Galileo satellite was launched this morning and will be fully deployed by 2010.

    • Juan Cole lists the Top 10 Myths About Iraq in 2005. (Cole's site might be down, its servers have been unreliable of late.)

    • The history of the conservative movement in a few short sentences.

    • When will the conservative blogosphere get something right?

    • Home loan applications at a 3 1/2 year low as refinances drop. Refi money has helped keep consumer spending high.

    • More gains for state legislative Democrats in Minnesota. Dems are on the march at the state level.

    Update: Man, after reading posts like this one it makes me EXTRA GLAD I'm not single.

    The future of the conservative movement: tin-foil hats

    Wed Dec 28, 2005 at 10:25:45 AM PDT

    Move America Forward just makes shit up. Literally.

    The television commercials are attention-grabbing: Newly found Iraqi documents show that Saddam Hussein possessed weapons of mass destruction, including anthrax and mustard gas, and had "extensive ties" to al Qaeda. The discoveries are being covered up by those "willing to undermine support for the war on terrorism to selfishly advance their shameless political ambitions."

    The hard-hitting spots are part of a recent public-relations barrage aimed at reversing a decline in public support for President Bush's handling of Iraq. But these advertisements aren't paid for by the Republican National Committee or other established White House allies. Instead, they are sponsored by Move America Forward, a media-savvy outside advocacy group that has become one of the loudest -- and most controversial -- voices in the Iraq debate.

    Move America Forward has avoided classification as a political organization, hence it must not disclose the names of donors. It's not surprising that donors wouldn't want to attach their names to the lies the organization spews.

    It's the face of conservative politics in the 21st Century. As each Republican "idea" fails the test of governing and shrivels in the harsh reality, increasingly corrupt conservatives are forced to demagogue progressivism in order to maintain some sembleance of electability.

    If Move America Forward wants to engage in "debate", why not stick to the facts? But this conspiracy nonsense it is spewing is frankly embarrassing. Are Republicans so bereft of a positive agenda and accomplishments that it must resort to tin-foil territory in order to stay afloat?

    Sure looks that way.

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