My Republican friend Tory (everybody should have at least a couple, right?) emailed me about my take on his former Dartmouth instructor Jeff Smith. Here is my response:

Hey Tory! How's AZ?

The whole thing is really sad. I mean, he deserves to go to prison, because he basically had a million chances to come clean but instead he lied to federal investigators and (worst of all) very explicitly counseled and encouraged other people to lie. That's a classic obstruction conspiracy. If he had come clean about it from the get-go, there would have been a hefty fine that his campaign committee would have payed, and that fine (and a little embarrassment) likely would have been the end of it. For goodness sake ... every campaign gets hit with these fines and they're considered to be basically the cost of doing business. (I think I read that both Obama's and McCain's campaigns had fines numbering in the hundreds.)

There are two sad things about it.

First, just about everybody in Jeff City - of all political stripes and persuasions - thought of Jeff Smith as one of the most talented, hard-working and intelligent legislators around. I don't want to be harsh, but the large majority of the folks up there - of both parties - are complete doofuses. It's a real loss for our state.

Second, Jeff Smith's state senate district geographically is about half-white and half-black. Unlike a lot of politicians representing St. Louis City districts with this kind of segregation, he really worked hard at representing and serving the entirety of his district. People on both sides of town liked and trusted him. His behavior undermines a lot of good work he did to begin uniting our city.

The silver lining, if there is one, is that I think a lot of people still do like and trust him. He seems genuinely contrite about what he did. Maybe he could make a comeback. I likely would vote for him if he did.

-matt

... so, after all that rigamarole, Pfizer is closing shop.

Look out kid
It's somethin' you did
God knows when
But you're doin' it again

The Chief Justice is likely to have, as he has said, an "amigo" on his court.

Frank Rich:

Five years after the Abu Ghraib revelations, we must acknowledge that our government methodically authorized torture and lied about it. But we also must contemplate the possibility that it did so not just out of a sincere, if criminally misguided, desire to “protect” us but also to promote an unnecessary and catastrophic war. Instead of saving us from “another 9/11,” torture was a tool in the campaign to falsify and exploit 9/11 so that fearful Americans would be bamboozled into a mission that had nothing to do with Al Qaeda. The lying about Iraq remains the original sin from which flows much of the Bush White House’s illegality.

Paul Campos at LG&M reacts to the resolution of hostage-taking. Among his points:

I don't feel at all bad for the pirates. They were given ample opportunity to surrender and face trial, and under the circumstances they certainly must have understood that maintaining ransom demands could be fatal. An understanding of why pirates act (both to survive AND to get rich) cannot preclude law enforcement activity.

Over several days, the United States negotiated with the hostage-takers through intermediaries. Moreover, at any time the hostage-takers could have figuratively waived the white flag. The primary substantive message that is sent when a person or group takes a hostage or hostages is "I/We are prepared to murder our hostage(s)." That's why they're called hostages. The party from whom the ransom is demanded must necessarily take the hostage-takers at their word.

Even in a state of supposed, romanticized "lawlessness" that is the "open seas" there are rules and understandings. Both sides knew and adhered to them.

Okay, I've had the chance to read through the unanimous Varnum decision a couple of times now, and, for what's it worth, here are some things I've found notable about it.

First, the Iowa Supreme Court goes out of its way to withhold even the most cursory of nods toward substantive due process "fundamental rights" jurisprudence in supporting its decision. This is notable because United States Supreme Court cases involving sexual orientation discrimination such as Bowers v. Hardwick (which was adverse to gay rights) and Lawrence v. Texas (which explicitly overturned Bowers) rested their reasoning very much on a substantive due process approach. Varnum's reasoning rests entirely upon equal protection grounds.

Varnum is different from the Massachusetts gay marriage decision, Goodridge, as Goodridge can't help itself but rest upon equal protection and substantive due process. This probably is because Goodridge uses a lot of the reasoning as Loving v. Virginia, the U.S. Supreme Court decision which struck down bans on interracial marriage. Loving too rested its decision upon both equal protection and substantive due process. I didn't see the Iowa Supreme Court quote Loving even in passing.

Second, and related to the first obsevation, the Iowa Supreme Court very methodically develops its equal protection reasoning to determine that Iowa laws which discriminate based upon sexual orientation require at least "heightened scrutiny" by Iowa courts. In coming to this determination, the Iowa Supreme Court adopts and explicates the U.S. Supreme Court's "four factor test" for determing whether a classification (i.e. sexual orientation) in a statute should be considered by a court to be suspect. Applying these four factors, the Iowa Supreme Court decides that statutory classifications based upon sexual orientation should be considered suspect.

What's interesting about what the Iowa Supreme Court is doing in Varnum is that it's sort of "rewinding" the legal issues over gay rights and putting them in a purely equal protection realm. Then, the Court is developing the equal protection jurisprudence to cover sexual orientation. One can read the Varnum opinion as instructions for what should have happened on the federal level: the issues of gay rights should have been argued and decided solely on equal protection grounds, and decided in the affirmative.

Finally, and related to the first and second observations, Varnum is a very reasoned and methodical opinion almost entirely free of rhetorical flourish. I think that much of this is due to the equal protection approach to the case rather than a substantive due process approach. Substantive due process jurisprudence, which necessarily concerns itself with concepts of rights and liberties, lends itself to soaring passages of rhetoric. The equal protection approach, on the other hand, is more of a "legal reasoning" approach.

That, and Iowans are kind of a humble and reasonable sort.

As somebody told me the day Varnum was announced, maybe the coasts should take some lessons from "flyover country."

Scott Lemieux does a nice job of dismantling a "tort reformer" criticism of the Supreme Court's recent Wyeth v. Levine decision. Basically, this "tort reformer" criticism asks the Court to Lochner-ize, using a policy preference on the part of the Court to override centuries of state common and statutory law.

Also, stimulus-created police.

Also, my brother gets married tomorrow.

From the draft circulating for the forthcoming executive order concerning "REVIEW AND DISPOSITION OF INDIVIDUALS DETAINED AT THE GUANTÁNAMO BAY NAVAL BASE AND CLOSURE OF DETENTION FACILITIES":

##

Section 2. Findings

##

(c) The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus. Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention.

We now just may have an administration which respects basic and fundamental tenets of the concept "rule of law."

Let all those who do justice and love mercy say "Amen."

finger quotes

"Finding Number One

For the reasons explained in section IV of this report, I find that Governor Sarah Palin abused her power by violating Alaska Statute 39.52.110(a) of the Alaska Executive Branch Ethics Act. Alaska Statute 39.52.110(a) provides 'The legislature reaffirms that each public officer holds office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust.'"

Term papers on the horizon of a landscape of voluminous reading. It's time for me to get down to brass tacks. No more fooling around. Got to get fit. Got to get ready.

Has it really been two years?

One more to go. I can't wait to get it over and done with.

Balance sheet, balance shinola.

When you postpone the inevitable, it usually makes the inevitable that much worse.

TILA

Yeah, this could be a big deal.

And since a lot of the alleged "unfair or deceptive" practices were probably boilerplate, putting together a class of plaintiffs should be relatively easy.

Maybe states' attorneys general could end up driving the rest of the unwinding. (Though this would possibly include a race to file by state, which would leave some folks behind.)

Commander-in-Chief Creep

Yet another great piece by Glenn Greenwald on the creep of the concept of "commander in chief" into the domestic sphere.

What I have always thought most disturbing about the telecom immunity business is the apparent seamlessness between the telecoms and the government - the telecom corporations became less an agent of the government and more of an arm of the government. Or, perhaps more precisely, the telecoms and the government took on a kind of symbiotic relationship to each other. Like oligarchical lichen:

What all of this is really about -- the reason why political elites like Nancy Soderberg are so eager to defend it -- is because they really do believe that lawbreaking isn't wrong, that it doesn't deserve punishment, when engaged in by them rather than by commoners. People who defend telecom immunity or who say that it's not a big deal are, by logical necessity, adopting this view: "Our highest political officials and largest corporations shouldn't face consequences when they break our laws as long as they claim it was for our own good." That's the destructive premise that lies at the heart of this deeply corrupt measure, the reason it matters so much. Just like the pardon of Nixon, the protection of Iran-contra criminals, and the commutation of Lewis Libby's sentence, this bill is yet another step in cementing a two-tiered system of justice in America where our highest political officials and connected elite can break our laws with impunity.

The justification for all of this really centers upon a notion of the president as a "commander in chief" not only of the armed forces, but also as "commander in chief" of all of us. Where unilateral "orders" once only applied to the military, we too are now subject to the president's unilateral whim. And the pressure for lawlessness at the behest of "national security" is most high when, as in the telecom immunity debate, the interests of a kleptocratic oligarchy are at stake.

How is this not like a banana republic?

Cheney's Cheney

It's not so much the "banality of evil" as it is the "smugness of evil." The great, big, smug id of the Bush Administration on display:



Sometimes I really hate lawyers. Yet I'm going to be one soon.

If you believe in certain immutable principles of liberty that go back at least 800 years, then today was a good day.