Instapun*** Archive Listing

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January 3, 2007 - December 27, 2006

Thursday, October 06, 2005

SCOTUS Smackdown!

It's time to get it on.

FIGHTING THE GOOD FIGHT. Do you remember when we set up the cage match between Ann Coulter and Keith Olbermann to settle the question of who was the craziest mass media personality ever to graduate from Cornell University? You don't? Well, that's because we never posted the entry. We withheld it for fairness reasons. Either it made Keith Olbermann look like too much of a smacked ass, or it may have been construed as insulting to Cornell. One of those two. We can't remember which. But we always liked the graphic of Ann Coulter dressed to kill in the ring, waiting for an opponent to annihilate. We thought of it again yesterday when Chain Gang sent us an audio clip of Ann on some talk radio show. She's mad about the Harriet Miers thing. Really really mad. She suggested that conservatives who want to do something could organize a committee to impeach George Bush. You can listen to her argument by clicking on the audio button above..

That -- and a bunch of other screamings and shoutings from the right-hand side of the fence -- got us to wondering about what it is exactly the conservatives want. Yes, we know they want a judicial nominee who went to Harvard with all the justices they hate so much, but there's more to it than that. They want a fight. They want some Republican to stand up to the Harvard idiots in the U.S. Senate and explain to them why their self-satisfied liberalism is killing the country. They want it so much they don't care if the Republican senators from Maine and Rhode Island jump to the other side of the aisle in protest. They don't even care if their heroic nominee fails to be confimed by the Senate. They'd much rather have blood.

Well, we have an idea that might help. A tag-team match between the conservatives and the liberals. Put it on TV. Hire that announcer who bellows the names so annoyingly. Get it on in the Octagon of the UFC. Like so:

If you're with us so far, here are the teams we propose. For the liberals, Teddy Kennedy (Harvard), Chuck Schumer (Harvard), and Joe Biden (Univeristy of Delaware). For the conservatives, Ann Coulter (Cornell), Michelle Malkin (Oberlin), and Peggy Noonan (Fairleigh Dickinson).

We were going to go with Laura Ingraham (Dartmouth) in the number three slot, but then Ms. Noonan published this amazing paragraph today:

(T)he Miers pick was another administration misstep. The president misread the field, the players, their mood and attitude. He called the play, they looked up from the huddle and balked. And debated. And dissed. Momentum was lost. The quarterback looked foolish.

The quarterback always looks foolish when he blows the pickoff attempt and all the runners advance a base. Good call by Ms. Noonan. It's obvious she's as much a master of sports metaphors as she is of, uh, you know. So we'll keep Laura in reserve in case one of our combatants gets accidentally sat on by Teddy.

Of course, the liberals may be too gutless to accept the challenge, because who wouldn't be scared to enter the ring against such formidable opposition? It won't be a pretty sight. Hair pulling, metaphors flying hither and yon, and a hail of epithets that would crush the average senatorial SUV. But that's life in the Big Leagues, where it's far more important to ridicule the enemy than to actually win anything.

One word of warning, though. Teddy is obviously in training for a nasty brawl. Here's a spy photo we snapped just the other day:

Very important not to get sat on by this man. Laura better be ready to come in off the bench and swing the big lumber for a touchdown. If you know what we mean.

Wednesday, October 05, 2005

A Prissy Snit

Alfalfa fulminates.

CIAO. My my my. Get a load of George Will on the Miers nomination:

Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption -- perhaps rebuttable but certainly in need of rebutting -- should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due.

It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. The president's ``argument'' for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their prepresidential careers, and this president, particularly, is not disposed to such reflections.

Furthermore, there is no reason to believe that Miers' nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers' name probably would not have appeared in any of the 10,000 places on those lists.

What a jackass. Honestly. Let's be clear what is being proposed here: that in order to preserve the Constitution, we must dispense with the Constitution and employ confirmation rules dreamed up by a twit in a snit. Who are we to consult for the purpose of identifying 100 people who are capable of making "sophisticated judgments about competing approaches to construing the Constitution"? Let's take a wild guess. Would it be George Will? But he doesn't answer that question exactly. There's much too much showing off to do. For example:

(C)onstitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.

We told you yesterday this whole thing was about snobbery. The tirade quoted above demonstrates that and something else; the snobbery is being amplified by pure dudgeon about a number of conservative beefs, including Will's pet peeve:

(T)he president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked -- to insure a considered response from him, he had been told in advance he would be asked -- whether McCain-Feingold's core purposes are unconstitutional. He unhesitatingly said, ``I agree.'' Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, ``I do.''

Let's go Mr. Will one better and actually think about the argument he is trying to assemble here. First of all, interpreting the Constitution is a talent -- unless it's a skill (Which is it, George? Those aren't synonyms in my dictionary) -- that can only be acquired by highly trained specialists who represent only a subset of all attorneys. It can't be done by amateurs, and no amateur should even try. Oka-a-a-y. George Bush isn't an attorney of any kind. Under what article of the new George Will Constitution would the President have the right to pass judgment on the constitutionality of McCain-Feingold? Oh. Of course. Under the article (or its penumbra) which legitimizes all executive actions congruent with the intellectual or emotional whims of the Founding Father, George Will. But instead, the President deferred the matter of McCain-Feingold's constitutionality to the U.S. Supreme Court -- i.e., highly trained specialists in interpreting the Constitution -- who proceeded to declare it (drum roll, please!) constitutional.

Well, by Mr. Will's own argument with respect to the Miers nomination -- remember what he started ranting about in the first place -- this outcome means that the President (if he thought McCain-Feingold was unconstitutional) was wrong, and the great intellectuals of the court were right. So what is George Will's beef? That he disagrees with the highly trained specialists of the court. Hmmmm.

Will was born in Champaign, Ill., and was educated at Trinity College in Hartford, and Oxford and Princeton universities. Prior to entering journalism, Will taught political philosophy at Michigan State University and the University of Toronto...

This is a quote from Will's Washington Post bio. Very nice education. Very impressive. One slight problem, though. No sign of a law degree or "years of practice sustained by intense interest" in constitutional reasoning.

There's plenty of room to criticize George Bush for failing to veto McCain-Feingold, but it's no more than pompous rhetoric to declare that the President has "forfeited his right to be trusted as a custodian of the Constitution." Particularly in light of the Supreme Court's decision to uphold it AND the astonishing conclusion reached by George Will that the Senate somehow merits the trust he no longer feels for the President. His hopes for the senate are lofty indeed:

It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.

Standards of seriousness. Right. Are we allowed to ask who it is that passed McCain-Feingold into law? Who? Oh. The Congress, including approximately the same senate that is now miraculously endowed with the "sophisticated judgment" to detect either the talent or the skill George Will requires, whenever he decides which it is. The approximate same senate that gave 97 votes to Ruth Bader-Ginsberg, who never met a clause of the Constitution she wouldn't be happier rewriting than interpreting.

From this point on, Will's tantrum degenerates into a charge of victimhood the nominee seems to have spent a lifetime eschewing. We can safely ignore all that part of the denouement. But what are we left with? A columnist with no law degree has more authority to select supreme court nominees than a non-lawyer president who has disappointed the columnist's political expectations.

Time to correct a few misimpressions. Supreme Court judges are not the democratic equivalent of Vestal Virgins. They don't follow a special diet, breathe special air, and they don't live in sacred temples. Nor for that matter do they have to be lawyers, any more than the Constitution's authors had to be. Benjamin Franklin had some pretty impressive reasoning skills, but no law degree.

The Constitution does not say that if the President isn't intellectual enough to suit the educational snobs of his generation that he must find 100 smarter people to make his supreme court selections for him. (We'd dearly love to have witnessed the outcome of the duel that would followed George Will's attempt to give this particular lecture to Andrew Jackson. Oh well.)

The inflated demands in this piece remind us of another blowhard's famous canard (Carl Sagan, Cornell, no law degree) that "extraordinary claims require extraordinary proof." As a matter of fact, they don't. They require exactly the same kind of proof needed for ordinary claims. Presidents have selected supreme court justices for all kinds of reasons, including politics, friendship, and legitimate credentials. The founders knew this would happen. That's why they gave the senate a role in advice and consent. Not because the senators would turn out to be better or smarter than the President, but because government appointments take place in the arena of politics and open political proceedings tend to be more noisy and less corrupt than closed political proceedings, except when it's the other way around. That's one of the many many flawed compromises our form of government asks us to accept.

Those who don't accept such compromises are free to propose their own rules, as George Will has done. God bless his First Amendment right to speak down to the rest of us. Perhaps we should follow his lead. Here are three rules we think will improve the confirmation process for Harriet Miers:

1. Don't ever take seriouslyany sermon delivered by an adult male who is wearing a bowtie.

2. Don't ever forget that lawyers are great at causing trouble and rarely competent at fixing it..

3. Regardless of what happens in the Miers hearings, we will -- most of us -- continue living our lives as if the terrible outcome of the confirmation process had never occurred.

Now get some rest. Relax. Do something that makes you feel good and happy today. Here endeth the lesson.

UPDATE:  Now here's an idea we can all get behind.

Tuesday, October 04, 2005

Bush nominates "pit bull."

He knows what he's doing... unless we're
mis-overestimating him this time.

BREAKING THE CHAIN. A lot of conservatives are sounding pretty upset about the nomination of Harriet Miers for the Supreme Court. Bill Kristol of the Weekly Standard is "disappointed, depressed and demoralized." Rush Limbaugh says, "It's hard to resist the pull to be angry and depressed over this." Former Bush speechwriter David Frum says:

I worked with Harriet Miers. She's a lovely person: intelligent, honest, capable, loyal, discreet, dedicated ... I could pile on the praise all morning. But there is no reason at all to believe either that she is a legal conservative or--and more importantly--that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left.

We don't have all the inside information these folks do, but sometimes the outside view brings a different and softer light to bear on events that occur in the dazzling glare of the media mob. So we'll offer one or two quick observations. Whoever Harriet Miers is, she isn't David Souter. Bush has known her well for a long time, which means that even if she's a stealth candidate in the eyes of the conservative power establishment, she isn't in the eyes of the man who nominated her. The question rapidly boils down to what appraisal we make not of Harriet Miers, but George Bush. Is it really conceivable that despite all his promises and assertions, he's a secret moderate about Roe v. Wade, public atheism, and judges micro-engineering our national culture from the bench? We suspect not.

But we also suspect something else that the conservative braintrust may be too smart -- or too snobbish or (gasp) sexist -- to perceive. Time and again, George W. Bush has proven that he is smarter than his critics and his mortal enemies can bring themselves to believe. Why do they have so much trouble recognizing his intelligence? Because he is not an intellectual. Definitely, positively, absolutely NOT. The meaning of this distinction frequently eludes even those who generally support the President. Take David Frum, for instance. He is terribly worried about the insidious pressures Washington exerts on supreme court justices:

There have just been too many instances of seeming conservatives being sent to the high Court, only to succumb to the prevailing vapors up there: O'Connor, Kennedy, Souter. Given that record, it is simply reckless for any conservative president to take a hazard on anything other than a known quantity of the highest intellectual and personal excellence.

The pressures on a Supreme Court justice to shift leftward are intense. There is the negative pressure of the vicious, hostile press that legal conservatives must endure. And there are the sweet little inducements--the flattery, the invitations to conferences in Austria and Italy, the lectureships at Yale and Harvard--that come to judges who soften and crumble. Harriet Miers is a taut, nervous, anxious personality. It is hard for me to imagine that she can endure the anger and abuse--or resist the blandishments--that transformed, say, Anthony Kennedy into the judge he is today.

Frum is so caught up in the turmoil of DC social politics that he can't see the contradiction in his own argument. Consider the academic backgrounds of the justices who have previously failed to resist the "prevailing vapors," the "conferences in Austria and Italy," and the "lectureships at Yale and Harvard."

Anthony Kennedy, Stanford, London School of Economics, Harvard Law.
Sandra Day O'Connor, Stanford, Stanford Law.
David Souter, Harvard, Oxford, Harvard Law.

On the one hand conservatives are extremely vocal about decrying the pernicious influence of the country's most prestigious universities on the intellectual elite. They're inclined to use the names of certain institutions almost as swear words: Harvard, Yale, Stanford, Berkeley, and the University of Chicago. But when it comes time to nominate a supreme court justice, who do they regard as ideally qualified? Graduates of Harvard, Yale, Stanford, Berkeley, and the University of Chicago. Huh? (Remember, one definition of 'stupid' is repeatedly doing the same things and expecting a different result.) It's hard not to think that what depresses them the most about Harriet Miers are the initials "SMU." That's right. Harriet Miers got her law degree at Southern Methodist University in Texas. How awful. How gauche. How disappointing. Especially if you're an intellectual who got your degree from Harvard, Yale, Stanford, Berkeley, or the University of Chicago.

Now for a fascinating conjecture. What if George Bush has looked hard, through his non-intellectual eyes, at the repeated seduction of presumed conservatives and come to the common-sense conclusion that the people who are most likely to be swayed by the "blandishments" of European conferences and the social approval of Harvard and Yale are the hyper-intellectual academics trained by Harvard, Stanford, Oxford et al in the first place. And maybe he's smarter -- via his experience with his cagey common-sense wife and shrewd housewife-cum-communications director Karen Hughes -- than to be fooled into thinking that a soft-spoken lady with good manners can't be tough enough to withstand the social enticements of the left.

On the face of it, Frum's characterization is ridiculous. Harriet Miers didn't become head of a law firm in Texas, president of the Texas Bar Association, and Chief White House Counsel by being soft and compliant. The opposite case seems far more likely, that's she's hardheaded, practical, resilient, and rock-solid in her knowledge of who she is and what she believes. And she probably ain't no indecisive, pussyfooting intellectual neither. Would she rather take tea at Oxford or whip up some potato salad for the Sunday box supper at her church? If, as we suspect, it's the latter, she seems a pretty good bet to bring some real word savvy and sagacity to an institution that's sorely in need of it.

Don't forget that George W. Bush has gotten degrees from Harvard and Yale. Maybe he's finally acting on what he learned in those places decades ago.

That's our ignorant opinion anyway. The authority we'd most like to hear from is Barney. What does he think?

He hasn't commented yet, but we're damn sure he's smarter than Frum.

UPDATE. Here's a fine essay on the Miers nomination by Thomas Lifson. Don't skim it. Read it. Also see Villainous Company, who seems more scrupulously objective than her nom de guerre would indicate.

Monday, October 03, 2005


EDDICATION. This is cute.

Nearly 100,000 California 12th graders or about 20% of this year's senior class have failed the state's graduation exam, potentially jeopardizing their chances of earning diplomas, according to the most definitive report on the mandatory test, released Friday.

Students in the class of 2006, the first group to face the graduation requirement, must pass both the English and math sections of the test by June.

The exit exam which has come under criticism by some educators, legislators and civil rights advocates is geared to an eighth-grade level in math and to ninth- and 10th-grade levels in English.

But the report by the Virginia-based Human Resources Research Organization showed that tens of thousands of students, particularly those in special education and others who speak English as a second language, may fail the test by the end of their senior year despite remedial classes, after-school tutoring and other academic help.

Teachers, according to the report, said that many students arrive unprepared and unmotivated for their high school courses and that their grades often reflect poor attendance and low parental involvement.

The group reviewed the test results as part of a report ordered by the Legislature when it instituted the exit exam several years ago.

Among its findings: 63% of African Americans and 68% of Latinos in the class of 2006 have passed both parts of the exam.

By comparison, 89% of Asians and 90% of whites have passed. The report recommended that the state keep the exam but consider several alternatives for students who can't pass.

"Clearly, we need to have some options for these students," said Lauress L. Wise, the firm's president, in a telephone interview with reporters.

The state, for example, could allow seniors to submit portfolios of work that demonstrate mastery of English and math, the report's authors suggested.

Options? Portfolios? Uh, we're working on it. Bring your portfolio of masterful Englishizing and Mathologizing to the drive-thru window at your nearest McDonald's, and the government will... what? Shoot your dumb ass right in the face? (Extra credit for figuring out from that sentence where the bullet will hit and whether or not it will be fatal.)

We'd like to offer another option: Get a saw. Start at the Oregon-California border and -- very carefully -- separate the Golden State from the North American continent. Kick it out to sea with your enormous Nike sneakers. Start over with a new west coast.

No wonder everyone in Hollywood is a moron.

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