Senate Republicans fire the big gun

There were so many reasons to withdraw the nomination of White House counsel Harriet Miers for the U.S. Supreme Court, it would be sadistic to list them and speculate about which one finally brought the nominee and the administration to the tipping point.

However, there is a very good possibility that President Bush told the truth in the statement he issued on the morning of Ms. Miers' withdrawal.

"It is clear," the president said, "that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House -- disclosures that would undermine a president's ability to receive candid counsel."

What does he mean?

He means the Senate Republicans were willing to use their subpoena power to force the White House to turn over documents.

The Washington Post quoted one GOP strategist who was working for Ms. Miers as saying that the day "things really went down" was the day Sen. Sam Brownback and Sen. Lindsey Graham joined Democrats in demanding that the administration produce documents that would give them the information they needed about Harriet Miers' work in the White House.

Senate Democrats are in the minority and do not have the power to issue subpoenas. But Republicans, in the majority, have the power to enlist the courts to enforce their requests for documents and testimony.

That raises another question. If President Bush has the right to prevent disclosures that would "undermine a president's ability to receive candid counsel," why doesn't he just take his case to court and fight it out?

Because he has no case. Because there is no such thing as executive privilege.

If you are interested in the details of constitutional history that prove this beyond all doubt, read Raoul Berger's 1974 book, Executive Privilege: A Constitutional Myth.

The short version is this: The Constitution gives the Congress the power to impeach the president, and implicit in the power to impeach is the power to inquire, and implicit in the power to inquire is the power to compel production of documents and testimony necessary for the Congress to carry out its constitutional powers.

All the executive departments under the president are creations of Congress, funded by Congress, and overseen by Congress. The president has no constitutional authority to withhold from Congress any information that it requests about anything that is going on in any of those departments, including the White House counsel's office.

President Richard Nixon and President Bill Clinton found this out the hard way, by going to court and trying to argue for a presidential privilege to withhold information.

It doesn't exist.

As in the case of the emperor's new clothes, many people who have to deal with the president on a host of other issues prefer not to call attention to this fact.

But the fact remains.

In the case of the Harriet Miers nomination, the Senate Republicans let it be known that they know.

The White House folded immediately.

Imagine what those confirmation hearings would have looked like. Imagine Harriet Miers refusing to answer questions about her work in the White House when pre-9/11 intelligence reports warned of al-Qaeda threats, when the case was made that Saddam Hussein had weapons that justified a U.S. invasion, when the discussion turned to the detention and torture of terror suspects, when White House aides were called before a grand jury investigating the leak of a CIA agent's identity.

Imagine the administration going to court and arguing that the elected representatives of the people of the United States have no right to see White House documents about any of it.

Imagine the administration losing the argument. Actually, that doesn't take much imagination.

By an odd coincidence, the Texas law firm with which Ms. Miers was formerly associated has just opened an office in Washington, D.C. The partners said they would like to take advantage of their contacts in government.

Congratulations in advance to Ms. Miers and best wishes to her on her future career as a lobbyist. Nobody should have to keep George W. Bush's secrets for a measly $166,000 a year.


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Harriet Miers, toast

Now all she needs is a great exit line.

Knight Ridder newspapers reported Saturday that soon-to-be-former Supreme Court nominee Harriet Miers sold a small piece of land owned by her family to the state of Texas five years ago for ten times what it was worth.

Good business sense and hardheaded negotiating? Guess again.

Ms. Miers' law firm made a $5,000 donation to state District Judge David Evans, who appointed the three-person committee that set the price Texas would pay for the land, which was needed for an interstate highway off-ramp. The committee, which included a friend of Harriet Miers named Peggy Lundy and a property-rights activist named Cathie Adams, set a price of almost five dollars per square foot. Knight Ridder reports that at the time, the land was valued at about thirty cents per square foot because it was part of a Superfund cleanup site.

The Miers family was paid $106,915 for the land.

"I think this is the beginning of a beautiful friendship."

Later, the price of the land was reduced from $106,915 to $80,915. Knight Ridder reports that Ms. Miers has not yet returned the $26,000 to the state of Texas.

"Frankly, my dear, I don't give a damn."

A White House spokesperson told Knight Ridder that Ms. Miers did not know the details of her law firm's donation to Judge Evans.

The details?

"Goodnight, Mrs. Calabash, wherever you are."

The trouble with being suspected of cronyism is that every time you benefit from cronyism somebody accuses you of cronyism. It's getting so a woman can't make a fast $100,000 off the taxpayers of Texas without people saying the last thing America needs on the U.S. Supreme Court right now is a corrupt Texas lawyer with a history of working for tips.

"Say goodnight, Gracie."

It's all so sexist.

"Say goodnight, Gracie."

"Goodnight Gracie!"


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The mysterious Ms. Miers and affirmative action

Supreme Court nominee Harriet Miers frightened constitutional scholars and lawyers last week when she turned in her Senate Judiciary Committee questionnaire. Describing her service on the Dallas City Council in 1989, she wrote that when the city was sued for allegedly violating the Voting Rights Act, "the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause."

New York University law professor Burt Neuborne told the L.A. Times, "If a first-year law student wrote that and submitted it in class, I would send it back and say it was unacceptable." Stanford law professor Pamela Karlan told the paper that Miers' answer was so shockingly inept that she wondered if the White House was trying to set her up.

Ms. Miers' answer related to her effort to make sure Dallas voting districts were drawn so that some of them were majority-black or majority-Latino, to make it more likely that minorities would be elected to office.

She was attempting to comply with a squishy and ambiguous 1982 amendment to the 1965 Voting Rights Act that said cities could be sued over their election districts if minorities were denied the chance "to elect representatives of their choice....Provided that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion of the population."

Proportional representation means members of minority groups hold office in proportion to their percentage of the total population. If a city is ten percent Latino, for example, and there are ten seats on the city council, one of those seats would have to be held by a Latino politician or else the city could be sued and forced to redraw its election districts. The Supreme Court has held, though not unanimously, that nothing in the U.S. Constitution requires proportional representation.

Ms. Miers' reference to the Equal Protection Clause made some experts think she may have been referring to the 1964 Reynolds v. Sims decision, in which the Supreme Court ruled that election districts had to be drawn so that the population of each district was substantially equal. This was a brand-new idea that had never been part of the Constitution before. In fact, in his autobiography, Chief Justice Earl Warren said he thought Reynolds v. Sims was a more important and revolutionary decision than Brown v. Board of Education.

The effect of Reynolds v. Sims was to lessen the political influence of lightly-populated rural areas (presumably white) and increase the influence of densely-populated urban areas (presumably black). Like Brown v. Board of Education ten years earlier, it was a controversial decision in which the Supreme Court overrode the constitutional authority of the elected branches of government in the belief that lawmakers were using their powers in a racist manner that was not deserving of respect or deference.

This is the pothole that busts the axle of the strict constructionist bandwagon. Chief Justice John Roberts drove around it during his confirmation hearings by stating with a nearly-straight face (just a bit of a smirk) that it was the intention of the framers of the Fourteenth Amendment to ban racial discrimination and school segregation.

As a matter of fact, if facts still matter, the Congress that wrote the Fourteenth Amendment cut language out of the Civil Rights Bill of 1866 that would have banned discrimination in civil rights on the basis of race. Lawmakers were afraid the language might lead the courts to ban school segregation.

If Harriet Miers was squishy and ambiguous in her use of language about racial discrimination, she's not alone.

The truth is that the U.S. Constitution has never been amended to ban racial discrimination, or gender discrimination, and all the Supreme Court decisions and federal laws that say otherwise are grounded in squishy and ambiguous interpretations of equal protection and due process.

That's why her personal views matter. That's why Sen. Ted Kennedy asked John Roberts during his confirmation hearings if he accepts the constitutionality of the 1965 Voting Rights Act and Brown v. Board of Education. All of our anti-discrimination laws are secured in the Constitution by the fantasy interpretation that the Fourteenth Amendment bans discrimination on the basis of race and gender.

It just doesn't.

The people of the United States are about a hundred and thirty-seven years late, but it's still not too late, to amend the Constitution to ban discrimination on the basis of race and gender.

That brings us to the issue of affirmative action.

Today the Washington Post reported that as president of the State Bar of Texas, Harriet Miers supported racial and gender quotas and set-asides to increase diversity hiring in the legal profession. The policy she backed called for ten percent of all new associates hired to be minorities, provided they met the firms' hiring standards.

This is another example of squishiness and ambiguity. The implication of the policy is that all Texas law firms are racist in their hiring practices. There would be no need to order them to hire minorities who meet the firms' hiring standards unless they were turning away qualified applicants because of racism.

If the firms are not racist, then the policy means they must hire unqualified minority applicants and find a way to pretend they are in some way qualified. Otherwise the firms are guilty of racial discrimination against the white applicants who would have been hired if the affirmative action policy wasn't in place.

That brings us to the concept of "diversity."

If "diversity" is itself a hiring standard, then race and gender are qualifications.

The Supreme Court that Harriet Miers hopes to join will be asked to decide whether such affirmative action programs are constitutional.

It is possible that the Supreme Court will rule that diversity is so important, the Constitution permits or even requires racial and gender discrimination to achieve it. It is possible that the Supreme Court will rule that the absence of diversity is sufficient evidence of illegal discrimination.

It is possible.

Is it likely?

That depends on the personal views of the nine justices of the U.S. Supreme Court. If they believe they have a higher moral obligation than their duty to uphold the U.S. Constitution, as the Warren Court did when it handed down its rulings in Brown v. Board of Education and Reynolds v. Sims, the Supreme Court might very well rule that racial discrimination for the purpose of achieving diversity is allowed or required by the due process clauses of the Fifth and Fourteenth Amendments.

Would Harriet Miers vote that way?

"Harriet has built a reputation for fairness and integrity," President Bush said when he nominated her. "Harriet has also earned a reputation for her deep compassion and abiding sense of duty."

It's anybody's guess.

A constitutional amendment to ban discrimination on the basis of race or gender would end the guessing game. If the amendment contained a provision granting Congress and the states the power to remedy past discrimination, affirmative action programs could be preserved. The debate over them would then move out of the courtroom and into the legislatures, where lawmakers aren't permitted to hide their views from the people of the United States.


Copyright 2005

Source notes:

Reynolds v. Sims: 377 U.S. 533 (1964)

Earl Warren's autobiography: The Memoirs of Chief Justice Earl Warren (Garden City; Doubleday & Company, Inc.; 1977)

For detailed notes on the debate over the Fourteenth Amendment and the Civil Rights Bill of 1866, please see How the First Amendment Came to Protect Topless Dancing, the appendix to The 37th Amendment: A Novel

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The price of embarrassment

Who is Harriet Miers and what did she do for George W. Bush to earn the sweet plum of a lifetime appointment to the U.S. Supreme Court?

A few clues have dropped into the picture.

Today the Associated Press reported that Governor George W. Bush's campaign paid Harriet Miers' law firm $163,000 in legal fees during his 1998 campaign for re-election. Just for comparison, the 1994 Bush campaign paid $7,000 in legal fees and Bush's opponent in 1998, Garry Mauro, says he paid less than $20,000 for legal services during the campaign.

Everybody's citing attorney-client privilege and no one will even hint at what the big legal problem might have been. Reporters asked the White House if Ms. Miers ever did any work researching the president's background, such as his military record, and presidential aides declined to say.

But yesterday, columnist Robert Novak wrote about the peculiar case of Lawrence Littwin, fired by Harriet Miers when she was on the Texas Lottery Commission. It appears that Mr. Littwin may have been fired for stumbling onto some corruption at Gtech, the lottery management firm, which was paying $3 million a year to its lobbyist, Ben Barnes. Mr. Barnes, the former Texas House speaker, admitted in a 1999 deposition that he helped young George W. Bush stay out of Vietnam by pushing him to the head of the line for the limited slots in the Texas Air National Guard.

Well, that is embarrassing.

But is there still anybody on the planet Earth who doesn't know that the president used connections to stay out of Vietnam?

Surely President Bush didn't nominate Harriet Miers to the U.S. Supreme Court to keep that a secret.

It must be something else.

In her jobs as White House secretary and White House counsel, Harriet Miers was present for and involved in a few interesting things.

She was at the ranch in Crawford in August, 2001, when the Presidential Daily Briefing came in warning that al-Qaeda was planning to hit the United States.

She was on Air Force One on September 11, 2001, when President Bush was flying around the sky as Dick Cheney was giving shoot-down orders at the White House, which the vice president says were cleared with President Bush at the time.

She was at the president's elbow as he reviewed the claims that Saddam Hussein had (or didn't have) weapons of mass destruction and considered his legal authority to invade Iraq, and she was there as White House aides were getting their stories straight for the special counsel investigating the leak of a CIA agent's identity.

Prizes will be awarded to the readers who come closest to predicting the number of times Harriet Miers refuses to answer a question by citing executive privilege, attorney-client privilege, and the Fifth Amendment.


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Low comedy and high taxes

There's a memorable scene in the BBC sitcom "Yes, Minister" in which the newly appointed British government official confronts some politically treacherous decision that appears to be a career-ender, whichever way he decides.

"What should I do?" the panicked official asks the calm civil servant who is the real head of the department.

"I think you should appoint a commission of inquiry," the staffer says dryly.

"A commission of inquiry!" the minister exclaims in relief as a blissful smile spreads across his face.

This week the President's Advisory Panel on Federal Tax Reform released its recommendations. The final report isn't due out until November 1, but already it's clear that the plan could be useful as a textbook for a clown college course on pratfalls.

Approaching its silly task with great somberness, the panel attempted to design a simplified tax code that collects exactly the same amount of money as the current tax code. Here are some of their side-splitting recommendations:

- Eliminate the federal tax deduction for home mortgage interest

- Eliminate the federal tax deduction for state and local taxes paid

- Put a cash value on employer-paid health benefits and make people pay taxes on that amount as if it were cash income.

- Limit the amount employers may deduct for health insurance premiums they pay for their employees

These proposals, made by panelists who are not planning to put their names on a ballot ever again, were part of an effort to replace the revenue the federal government would lose by enacting a reform that Congress really intends to do, the elimination of the alternative minimum tax.

The alternative minimum tax was put into the tax code years ago after reports that some gazillionaires were using tax deductions and credits in a way that permitted them to pay no federal taxes at all.

Little did Congress expect that the combination of inflation and child tax credits would put so many of their constituents into that category.

Today, lots of middle class families with children pay no income taxes at all and tell pollsters they think taxes are "about right" while people who don't have children pay taxes at artificially high rates to cover their free ride.

It's the child tax credit, not the alternative minimum tax, that's the bigger source of unfairness in the tax code.

In any case, the commission's work is nearly done and now President Bush has the unenviable task of pretending to take their recommendations seriously.

He'd better practice in front of a mirror before he tries it in public.


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Ah, sweet mystery of pro-life

Would Harriet Miers vote to overturn Roe v. Wade if given the opportunity?

The mystery deepened this week. On Monday, Sen. Arlen Specter emerged from a private meeting with the nominee saying she had told him she believes there is a right of privacy in the Constitution and she agrees with the 1965 Griswold v. Connecticut decision that first declared it. Then later in the day, Harriet Miers issued a statement saying the senator had misunderstood her and she had said no such thing.

Then, on Tuesday, the White House gave the Senate Judiciary Committee a candidate questionnaire filled out by Harriet Miers in 1989. The one-page form circulated by a group called Texans United for Life asked candidates -- Harriet Miers was then running for a seat on the Dallas city council -- if they agreed with the group's positions on abortion. Ms. Miers checked the box that said she agreed with the group that there should be a "Human Life Amendment" to the U.S. Constitution to ban abortions in all cases except to save the life of the mother.

But wait, Ms. Miers just filled out a questionnaire for the Senate Judiciary Committee in which she said she has told no one how she would vote if the constitutionality of Roe v. Wade came before her as a Supreme Court justice.

Harriet Miers appears to have had the career of a supreme networker, a chameleon on issues who deftly aligns herself with the views of those in a position to advance her ambitions. The fawning notes she wrote to George W. Bush when he was governor of Texas have a familiar ring to anyone who has watched mediocre middle managers advance their corporate careers.

If that's who Harriet Miers truly is, it's a challenge to guess what she will think about anything once she has lifetime tenure at the top of the federal judiciary. Will she transfer her careerist mindset from seeking promotions to seeking approval? And if so, approval from whom? Harvard law professors? Prominent newspaper editorial boards? Rush Limbaugh?

Who knows?

Wouldn't it be nice to be able to say, "Who cares?"

A constitutional amendment to guarantee a right to privacy in the first trimester of pregnancy and a right to life in the third would constitutionalize Roe v. Wade and put a stop to this nonsense.

Harriet Miers was right about one thing in 1989 -- we do need a constitutional amendment. But there's no reason it has to end privacy rights. It could secure them.

Read more about it in Why There is No Constitutional Right to Privacy, and How to Get One.


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Sports Illustrated writer gets Michelle Wie disqualified

Sports Illustrated reporter Michael Bamberger inserted himself into the story he was covering on Sunday and told LPGA Tour officials at the Samsung World Championship that he thought golfer Michelle Wie had taken a bad drop on the seventh hole in Saturday's third round.

Here's the account from the Associated Press:

Michael Bamberger, a reporter for Sports Illustrated, told tour officials Sunday afternoon that he was concerned about the drop. Rules officials Jim Haley and Robert O. Smith reviewed tape from NBC Sports before taking Wie and caddie Greg Johnston to the seventh green after the tournament ended Sunday.

"If I had to make the ruling based on the videotape, to me it was inconclusive," Smith said.

He had Johnston and Wie show him where the ball was in the bushes, then where they dropped. They paced it off, then used string to measure the distance and determined it to be slightly closer.

"The Rules of Golf are based on facts," Smith said. "They had to tell us where it was. The fact was, the ball was closer to the hole by 12 to 15 inches."

LPGA Tour officials didn't notice any problem with the drop at the time, but Bamberger asked Wie about it after her round on Saturday. Wie explained how she had measured the distances to make sure she wasn't dropping the ball closer to the hole.

And then Bamberger crossed the line. He went to the LPGA Tour officials on Sunday and told them he had concerns about the drop.

He couldn't report that LPGA Tour officials had concerns about the drop, because they didn't. He couldn't report that rival golfers had concerns about the drop, because they didn't.

He had concerns about the drop.

Even Howard Cosell never tried to walk onto the field of play and correct the officials.

Why would a reporter step into the story and make himself part of it?

My money's on envy.

Michelle Wie is a beautiful, talented, phenomenal success. She plays the game of golf at a level beyond the dreams of men who have spent decades of weekends on the course. She will soon make more money in a day than most people make in a year. Michelle Wie is sixteen years old.

Maybe Michael Bamberger can't stand it. Maybe those feelings are shared by a lot of people.

This is a destructive and vicious impulse that carries within it the power to destroy civilization.

No kidding.

The desire to tear down the great does not lead to happiness for the ordinary. It leads to the kind of society where everybody sits cross-legged in the mud, blaming somebody else for the misery and starvation.

The constructive response to excellence is to welcome it and admire it and encourage those who seek to emulate it.

Journalists have every right to cover a story aggressively and truthfully, but they shouldn't expect a Pulitzer Prize for lurking in the shrubbery and ambushing Michelle Wie.



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Sneak preview of Tuesday's jokes: Argus Hamilton on Michelle Wie

Enjoy an advance peek at a joke from Argus Hamilton's Tuesday column:

Michelle Wie was disqualified in her first tournament as a pro golfer Sunday when she took an illegal drop from the bushes. It may not be over. As close as she was to the bushes, she'll be lucky if she's not indicted along with Karl Rove.

Read Argus every day at www.ArgusHamilton.com.

Copyright 2005 Argus Hamilton. Used by permission.

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Doug Eddings, replacement umpire

The Chicago White Sox beat the Los Angeles Angels Wednesday night with an assist from home plate umpire Doug Eddings who, with two out in the ninth inning of a tie game, called A.J. Pierzynski out on strikes, watched while he ran to first as if the ball had been in the dirt, then called him safe.

The lost third out was followed by a stolen base and a game-winning double.

After the game, the umpire was forced to defend his call to incredulous reporters and angry Angels.

Doug Eddings, according to his bio on MLB.com, became a Major League umpire in 1999. That happens to be the year that Major League Umpires Association chief Richie Phillips decided to lead his members in a mass resignation because their union contract had a no-strike clause.

Major League baseball hired twenty-five minor league umpires in July, 1999, and put them on the field that September.

Doug Eddings was one of them.

Memo to Commissioner Bud Selig: Don't hold a grudge. There must be at least one professional umpire out there who'd like his job back.


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Harriet Miers' private views on privacy

Senator Sam Brownback, Republican of Kansas, did not look happy when he spoke to reporters after his meeting Thursday with Supreme Court nominee Harriet Miers.

He said he asked Ms. Miers' her position on the Supreme Court's 1965 Griswold v. Connecticut decision, which struck down a state law banning birth control on the grounds that it "violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights."

"She did not take a position on it, nor did she say she would take a position on it, nor did she think it appropriate to have a position on it," Brownback said.

Griswold v. Connecticut, as you probably know, formed a precedent that was cited by the U.S. Supreme Court in the 1973 Roe v. Wade decision striking down a Texas law that restricted abortion.

Prior to 1965, there was no constitutional right of privacy. Dissenting from the majority's opinion in Griswold, Justice Potter Stewart wrote, "With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court."

Justice Stewart wasn't alone in that view. Four years earlier, Justice Hugo Black had criticized a colleague's opinion in another case for relying on "some imaginary and unknown fragment designated as the 'right of privacy.'"

Senator Brownback would like a straight answer from Ms. Miers on whether she thinks the Supreme Court correctly decided the Griswold case. Presumably he would like President Bush's nominee to say, as Justice Stewart said, that the Supreme Court was wrong.

Obviously, that's not going to happen.

If Harriet Miers were to say that there is no constitutional right of privacy, the majority of Americans who favor a constitutional right of privacy would pick up the phone and crush her like a bug.

That's why Harriet Miers will answer all questions during her confirmation hearings, if she gets that far, with some lawyerly variation of "That's for me to know and you to find out."

The haughty presumption is that the American people are wrong to believe they have a right to know a judicial nominee's views on the constitutional right of privacy, or anything else.

Let's correct that misimpression right now.

The doctrine used by the Supreme Court to strike down state laws was explained in Justice Arthur Goldberg's concurring opinion in the Griswold case:

In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. "Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling." The law must be shown "necessary, and not merely rationally related, to the accomplishment of a permissible state policy."

In other words, when the Supreme Court declares a right to be a "fundamental personal liberty" (as opposed to an ordinary personal liberty) a state law cannot restrict it without a "compelling" reason.

The U.S. Supreme Court will determine whether the liberty in question is fundamental and whether the state's reason is compelling, and there is no way around the fact that this is always a subjective value judgment.

Here's how it works: The Supreme Court agrees to decide the constitutionality of a state law requiring parental notification of a teen girl seeking an abortion. The people of the state have said, through their elected representatives, that they want that law. May they have it or does it violate the U.S. Constitution?

First, the justices will have to decide if the right to privacy is one of the "fundamental" rights. What is the standard for this? There is no standard. "Some are in and some are out," Justice Felix Frankfurter complained in 1947, "but we are left in the dark as to which are in and which are out. Nor are we given the calculus for determining which go in and which stay out."

If privacy is not a "fundamental right," then the state has the power under the Constitution to enact a law restricting it, just as it has the power to enact a law restricting the speed you can drive on the highway.

If privacy is a fundamental right, we proceed to the next step. The state may restrict a fundamental right if it has a "compelling" reason to do so. A rational reason isn't good enough.

Does Harriet Miers believe the state has a compelling reason for a law requiring parental notification? She will tell us that she must hear the arguments in the specific case that comes before the Court and then decide.

What's wrong with that?

Here's what's wrong with it: the logical implication of that statement is that the constitutionality of a parental notification law changes with the facts of each and every individual's case. The Court will make a decision on the basis of just one of them, and everybody else is out of luck until the justices decide to hear another one and possibly reverse themselves.

Why have a Constitution at all? A Ouija board is just as reliable and considerably faster.

The American people have every right to be fed up with this cat-and-mouse game. There are two ways to end it.

The second-best way is for the Senate Judiciary Committee members to demand an answer when they ask nominees for their views on privacy and all the other hot-button issues that will come before the Court. Polite deference to a nominee who refuses to answer is inappropriate and unnecessary.

The better way is to amend the Constitution to secure privacy rights. If the Constitution actually said what Roe v. Wade said it says -- that there is a right to privacy in the first trimester of pregnancy and a right to life in the third -- we wouldn't have to hear about this any more. Whichever side you're on, there's some appeal to that.


Copyright 2005

Source notes:

Griswold v. Connecticut: 381 U.S. 479 (1965). Read it online at www.FindLaw.com.

Justice Stewart's dissent: 381 U.S. 479, at 530.

Justice Goldberg's concurring opinion : 381 U.S. 479, at 497. In the paragraph quoted above he cited Bates v. Little Rock, 361 U.S. 516, at 524 (1960), McLaughlin v. Florida, 379 U.S. 184, at 196 (1964) and Schneider v. Irvington, 308 U.S. 147, at 161 (1939).

The Justice Hugo Black quotation is from a letter from Justice Black to Justice Tom C. Clark, June 15, 1961. Tom C. Clark Papers, Tarlton Law Library, University of Texas; cited in Bernard Schwartz's 1983 book, Super Chief, pages 397-8. The justices were deciding Mapp v. Ohio, 367 U.S. 643 (1961), and were debating whether to overrule Wolf v. Colorado, 338 U.S. 25, at 27 (1949).

The Justice Felix Frankfurter quotation is from Adamson v. California, 332 U.S. 46, at 65 (1947).

Read more about constitutional amendments to secure the right of privacy in Why There is No Constitutional Right to Privacy, and How to Get One at www.SusanShelley.com.

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Coughing chickens and the seeds of dictatorship

The U.S. Department of Health and Human Services has prepared a report on what the bureaucrats believe could become the worst disaster in the nation's history, an outbreak of pandemic influenza, apparently triggered by that bird flu bug now making the rounds of chicken farms overseas jumping to humans and getting on a plane to Los Angeles.

The New York Times reports today that the 381-page Pandemic Influenza Strategic Plan predicts a major flu outbreak could begin in Asia and reach the U.S. within weeks. If that happened, the government believes, there would be riots and violence around the overwhelmed hospitals and vaccination clinics, there would be shortages of electricity and food, eight million Americans would be hospitalized and two million Americans would die.

They have really seen too many movies.

You won't be surprised to hear that the federal government has concluded it needs more power in order to deal with this.

The federal government concluded it needed more power to deal with city-wide disasters after the September 11th attacks, implementing a new "National Response Plan." We saw during Hurricane Katrina how well that worked out.

Now, President Irwin Allen has determined that he ought to have the power to call out the U.S. military to enforce a quarantine of entire American cities.

The HHS report admits that even if quarantines and travel restrictions are implemented, they "are unlikely to delay introduction of pandemic disease into the U.S. by more than a month or two."

There's a simpler solution. All we have to do to delay the arrival of avian flu is put FEMA in charge of getting it here.

This is actually a very serious matter and the stakes are very, very high. It is dangerous to freedom in America to permit the federal government to use passing events, no matter how awful, as a reason to permanently subvert the U.S. Constitution's limitations on its power.

Freedom means: you live under a government of limited power.

Dictatorship means: you live under a government headed by an individual who takes whatever action he chooses, with no limitations on his power.

You can tell you live in a free country if you hear constant whining that the government isn't doing enough to help people.

You can tell you live in a dictatorship if the government declares emergency powers for emergencies that never end, if the government conceals information and suppresses dissent, and if the whole country is forced to wait for government permission before taking actions that are perfectly reasonable and plainly necessary.

Keep your eyes open.



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Crony Constitutionalism

President Bush's decision to nominate his own lawyer to the U.S. Supreme Court should make for a very quick confirmation hearing. Following the John Roberts template, Harriet Miers won't answer any question about any subject that might come before the Supreme Court, and just about everything else falls behind the shield of attorney-client privilege.

There's absolutely no way to know how she would vote to decide any issue. She said Monday she favors a strong judiciary that will strictly follow the Constitution.

It's one or the other, but let's not quibble.

President Bush spoke of Ms. Miers' public service and church involvement and charity work. "I know her heart," he said.

This meant-to-be-reassuring comment is actually the president's way of telling the country to shut up and do what he says. He wants a speedy confirmation of his nominee and no intrusive questions about what she may or may not have done for him to merit the plainly unmerited patronage handout of a lifetime appointment to the Supreme Court of the United States.

Not his finest hour.


Copyright 2005

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An astonishing admission

NASA's top official told USA Today last week that the space shuttle and the International Space Station were mistakes.

"It is now commonly accepted that was not the right path," NASA Administrator Michael Griffin said. He told USA Today's editorial board that the space agency made a wrong turn in the 1970s by ending the Apollo moon missions and concentrating on the shuttle and the space station, which never leave the Earth's orbit.

The paper said NASA has spent about $150 billion dollars on the utterly pointless shuttle program, which has so far killed fourteen astronauts. The still-unfinished space station will cost more than $100 billion, not counting the property damage when the flying motor home finally falls out of the sky.

Now NASA wants $104 billion to go to the moon.

I'll give them twenty dollars to go jump in the lake.

There may be some benefit in returning to the moon. Let's line up all the NASA Administrators going back to 1970 and send them there by the Ralph Kramden method.


Copyright 2005

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