Friday, July 22, 2005

Philosophies of the Global War On Terror

Thanks to a random slashdot post I came across a very interesting documentary today. It's called The Power of Nightmares, created by filmmaker Adam Curtis. There are three one-hour episodes. It is available for free download from the Internet Archive. I found their download to be very slow, and looked elsewhere. You should have no problem finding it on your bittorrent tracker of choice. The BBC also has an intersting Q and A with Curtis. I've only got the first episode so far (bloody download limits). It's a great look at the origins of the neoconservative and jihadi philosophies and their rise to power, portraying both as a rejection modernity and liberalism. There's wonderful footage of some of the primary figures (young Rumsfeld cracked me up, the man never changes). I found the Reagan-era stuff in particular to be utterly fascinating. I would love to see an academic discussion of the film. There are a gazillion discussions of it on the internet, but nearly all from highly politicized viewpoints, either accepting the film in its entirety or trashing it in every regard. One of the more substantive criticisms I could find was a charge in this National Review article that the conclusions of a book that the film attacks, The Terror Network: The Secret War of International Terror were later verified by the Stasi files. There is also some discussion of criticisms in the film's wikipedia entry. I found it to be fairly even-handed, at least in discussion of the philosophies (although Curtis' version of historical events seems more subject to question), and honestly thought that Leo Strauss and Sayyid Qutb (who Curtis holds to be the seminal visionaries on each side) had interesting and important points to make. It's starting to seem that many of the important political and sociological events of the day can fit within the frame of mankind struggling with the onrush of modernity.

Update (7/24): Finished watching the series. It makes some fairly startling claims in the latter part, and presents really interesting arguments to back them. Quite a thought-provoking program, you should give it a look.

Thursday, July 21, 2005

Hurray For Echo Chambers

A follow up to my post yesterday, quoted from Howard Kurtz's column today:

--The lightning-quick attacks came after 50 top liberal bloggers joined in a 45-minute conference call Tuesday night. "On the left, we've always talked about the need to have an echo chamber," says John Aravosis, a Washington lawyer and gay activist who writes at . "We believe the right has a whole media network, from talk radio to Fox News to Matt Drudge. The left doesn't have that because the left doesn't play well with others."--

Yeah, this seems to be pretty much what Sunstein was talking about... Viva la talking points!

Wednesday, July 20, 2005

Spoiling For A Fight

So John Roberts is the nominee, and now the circus begins. I don't know as much about the man as I'd like (although I saw him speak here a few months ago and was very impressed), but I'm disappointed by the knee-jerk reactions of liberal groups. The Kossacks are predictably upset, MoveOn has already started a mail-in campaign to reject him. I got an email for Human Rights Campaign to tell me that Roberts' nomination puts our rights in "grave danger." Much of the criticism apparently focuses on things Roberts did as an attorney in private practice and in the Solicitor General's office. I'm pretty sure Deputy Solicitor Generals don't make policy, and it seems to me that I once knew an attorney who defended a large corporation in a mass toxic tort case, and I'm pretty sure he wasn't a corporate shill.

The question that keeps coming to me is: who would you rather have? Who do these people expect will be nominated if Roberts is rejected? Roberts is obviously a very smart and talented man, and he doesn't strike me as an ideologue. Yes, he is a conservative, but this is a Republican administration. Was anyone expecting a liberal? Is this just a fight for the sake of fighting?

I have been very excited by the rise of a populist liberal movement on the internet, and to some extent I still am. But lately I'm beginning to wonder if it is possible for a populist movement to be sustained without devolving into partisan extremism. I can hardly read Kos anymore without wanting to throw things at my computer. It seems everything is a conspiracy, and everyone is out to get them. I don't begrudge far-left die-hards their right to have an online community, but is there any liberal community left that isn't dedicated to this level of pointless partisan bickering? Maybe there's one out there that I just haven't discovered yet. But it seems that the liberal populist movement is increasingly mirroring the conservative populist movement, and that both seem to be subject to a strong drift towards partisan extremism. It may be that this is an inevitable result of Sunstinian group-reinforcement.

I guess I should note that I haven't gone establishment. I'm still as anti-establishment as the next guy. But my problem with the establishment has never been that it isn't liberal enough; it's that it's too fake, too staged, too deeply engaged in politicking without enough consideration for the policy that is supposed to result from politics. It seems to me that this is exactly the problem that comes from the knee-jerk response against John Roberts. I don't see any consideration of what comes from winning (i.e. how would the next nominee be better than Roberts), there's just a strong desire to beat the other side. It's not a results-based response, it's purely political. It signals an approach that will never be interested compromise or in building common ground across political boundaries. That's disappointing. It's important to fight when there's need for it (say, plans for an ill-advised war), but that doesn't mean you have to fight all the time about everything.

Tuesday, July 19, 2005

A Sunstein Teaser

While Larry Lessig is out on vacation, he's left Cass Sunstein in charge of his blog (until the beginning of next week). Sunstein has been discussing his follow-up to, looking at aggregation of information on the Internet in various forms (wikis, open source, etc.) and contrasting these forms of aggregation with Hayek's market pricing theories. He has also discussed the Chicago Judges Project and The Wisdom of Crowds. I look forward to seeing the rest of his posts.

Friday, July 15, 2005

Google Earth - The Coolest Thing Ever

Check this thing out. Note the checkbox that allows you to have roads superimposed on the map, which is pretty key to finding anything. The picture quality seems to vary quite a bit. Charlottesville is a blotchy, blobby mess, but the detail on our old Fox River Grove place is amazing. Even the cars in the driveway look sharp. Bantry Lane isn't quite as good, but it's not bad. D.C. of course looks good, but it seems to me there's a missing apartment building in there somewhere. It also looks like someone has taken a bottle of white-out to the top of the White House. I love doing slow zooms up and down. Once you know where to look, you can see the Pentagon from about 20 miles up. Likewise what looks to be a section of the Great Wall (40d37' N, 116d45' E) is visible up to about 100 miles.

Thursday, July 14, 2005

The World is a Strange Place

CSM had a story on a website that translates foreign news stories to English. So, I went and checked it out. Reading through their stories I was quite taken by one "truth is stranger than fiction" story about an ancestor of our President, named (OF COURSE) George Bush.

Reverend Bush published a book in 1837 entitled The Life of Mohamed. It seems that some of our friends in the Muslim world have discovered this book and are none too pleased that the book, among other things, consistently refers to Mohamed as an imposter. Bizarre and meaningless, yet totally fascinating.

Restorative Justice in New Zealand

Restorative justice is something my dad has been interested in for a while now, and it seems like a good idea to me. CSM has a story about restorative justice in New Zealand, as well as some of the things New Zealand has done to integrate the native Maori culture into daily life. New Zealand is a pretty cool place in my book...

Poor Scott McClellan

This is a pretty funny transcript. My favorite part:

Q: Scott, this is ridiculous. The notion that you're going to stand before us, after having commented with that level of detail, and tell people watching this that somehow you've decided not to talk. You've got a public record out there. Do you stand by your remarks from that podium or not?

MCCLELLAN: I'm well aware, like you, of what was previously said. And I will be glad to talk about it at the appropriate time. The appropriate time is when the investigation...

Q: (inaudible) when it's appropriate and when it's inappropriate?

MCCLELLAN: If you'll let me finish.

Q: No, you're not finishing. You're not saying anything. You stood at that podium and said that Karl Rove was not involved. And now we find out that he spoke about Joseph Wilson's wife. So don't you owe the American public a fuller explanation. Was he involved or was he not? Because contrary to what you told the American people, he did indeed talk about his wife, didn't he?

MCCLELLAN: There will be a time to talk about this, but now is not the time to talk about it.

Q: Do you think people will accept that, what you're saying today?

MCCLELLAN: Again, I've responded to the question.

QUESTION: You're in a bad spot here, Scott... because after the investigation began -- after the criminal investigation was under way -- you said, October 10th, 2003, "I spoke with those individuals, Rove, Abrams and Libby. As I pointed out, those individuals assured me they were not involved in this," from that podium. That's after the criminal investigation began.

Now that Rove has essentially been caught red-handed peddling this information, all of a sudden you have respect for the sanctity of the criminal investigation?

MCCLELLAN: No, that's not a correct characterization. And I think you are well aware of that.....

And we want to be helpful so that they can get to the bottom of this. Because no one wants to get to the bottom of it more than the president of the United States.

It's gotta suck being a Bush press secretary...

Wednesday, July 13, 2005

Re: Insufficiently checked and balanced?

First, I apologize it has taken me awhile to offer a response to Ryan's post. Second, as I stated in my brief comment, I do not purport to be a constitutional or legal scholar but hopefully I can offer something useful.

As best I can tell, the short answer to your question, Ryan, is that the founders did not even consider election of judges at the time they drafted the Constitution. In the Federalist Papers, No. 76, Alexander Hamilton wrote that
It will be agreed on all hands that the power of appointment, in ordinary cases can be properly modified only in one of three ways. If ought either to be vested in a single man, or in a select assembly of a moderate number, or in a single man with the concurrence of such an assembly.
Of course, as you point out, all hands would no longer agree those are the only options for selecting judges that are on the table. To be sure, other methods of selection might more properly be referred to as something other than "appointment." Two other models have been implemented in the United States: election and merit selection. (For more background on these other methods, see these materials posted in connection with Frontline's special titled, "Justice For Sale.") To avoid this post becoming too unmanageable, I will focus upon the election of judges -- in particular, the election of appellate judges.

The election of trial or magistrate judges has a very long history -- too long to trace its source by this amateur historian. According to this article (again from materials provided by Frontline), Mississippi was the first state to require the election of all judges (in 1832). Many states followed course, particularly in the period between 1846 and 1860, during which period many states revamped their state constitutions. According to this press release by the Brennan Center for Justice at the NYU School of Law, as of 2002 38 states, representing 87% of all state judges, use elections to select judges. In 18 of these 38 states, judges are initially selected by election; in the remainder judges are appointed and then must be reelected to stay in office.

There is too sizable a debate to summarize here all the reasons in support of and against each methods of selecting judges. The argument I would make against the election of judges conforms with the reasons Hamilton offered in No. 78 of the Federalist Papers, but a brief lead-in is first necessary. I assume the election of judges entails not only the initial selection of judges, but also their periodic reelection -- as far as I can ascertain, no state has ever instituted a system by which judges are initially selected and remain in office "during good behavior," the standard the Constitution provides for Article III judges.

In my view, the harm of electing judges comes about by subjecting the interpretation and application of the law to the same public pressure as is responsible for crafting of the law. Assume a narrow majority succeeds in promulgating some vague standard of behavior to which all citizens must comply -- insert any controversial issue of your choice, particularly those involving criminal behavior or health and safety standards (euthanasia, abortion, and the prohibition of recreational drugs come to mind). Assume also that a harsher standard could not have garnered a majority. It is reasonable to expect, and experience confirms, that judges will often favor the harshest reading of the law that can be reasonably extracted from the text (and sometimes even unreasonable interpretations too) out of concern for getting reelected. The concern, to frame it differently, is that judicial interpretation plays less in most electors' minds than does outcome -- a tendency I suspect often factors into the decisions of elected judges. That concern is more significant where the law to be interpreted is a constitution, which serves in part to protect the rights of the minority.

My argument against election of judges, therefore, depends more upon the value of the life tenure of judges than it does upon how they are initially selected. I entirely agree with the sentiments expressed by Hamilton when he stated that
The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is no a less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.
Here (in RealMedia format) is a video excerpt of an interview with Justices Kennedy and Breyer displaying some hostility to the concept of election of judges.

I would be happy to elaborate upon any points I made here or, for that matter, upon points I missed. More important, I would be very happy to learn what you think.

Sunday, July 03, 2005

Insufficiently checked and balanced?

I have a question for you legal/constitutional experts out there: Why are supreme court justices appointed and not elected? What did the framers have in mind when they made these appointed positions? It seems logical to me that if the judicial branch is to be able to check and balance the other branches of government, then they should be elected independently by the people of the United States. I realize this wouldn't be a practical measure for all federal judge positions, but one might at least consider it for the supreme court. As it stands now, it seems that the executive and legislative branches have too much say in the makeup of the court. One could argue, however, that requiring the other two branches of government to agree on a judge creates a balanced enough approach. On the other hand, what would the ramifications be if justices were subject to general election? I would love to hear your comments.