Wednesday, October 26, 2005


Pete Schramm, who is himself a lawyer, posts a joke at No Left Turns that some of you will think funny:

One afternoon a wealthy lawyer was riding in his limousine when he saw two men along the roadside eating grass. Disturbed, he ordered his driver to stop and he got out to investigate. He asked one man, "Why are you eating grass?" We don't have any money for food," the poor man replied. "We have to eat grass." "Well, then, you can come with me to my house and I'll feed you," the lawyer said. "But, sir! I have a wife and two children with me. They are over there, under that tree" "Bring them along," the lawyer replied. Turning to the other poor man he stated, "You come with us also." The second man, in a pitiful voice then said, "But sir, I also have a wife and SIX children with me!" "Bring them all, as well," the lawyer answered. They all entered the car, which was no easy task, even for a car as large as the limousine was. Once underway, one of the poor fellows turned to the lawyer and said, "Sir, you are too kind. Thank you for taking all of us with you." The lawyer replied, "Glad to do it. You'll really love my place -- the grass is almost a foot high."

My apologies to those of my friends (maybe they're now former friends) who are lawyers.

A Virtual Shoo-In

Here's John Fund's take on the Miers' imbroglio:

I believe it is almost inevitable that Ms. Miers will withdraw or be defeated. Should that happen, it is important President Bush understand how it really happened. While he acted out of sincerity, the nomination was quickly perceived by many as merely a means to a desired end: getting another vote for his views on the court. While some conservatives backed her because they honestly believed she would rule independently with an understanding of the limited role of judges envisioned by the Founders, that message was drowned out by accusations of cronyism and mediocrity.

The president also was let down by seven senators in his own party who in May agreed to scuttle plans to end judicial filibusters blocking nominees from ever getting a vote. It wouldn't have been unreasonable for him to think the Senate wasn't in a position to confirm a nominee with a long paper trail.

But he may soon have a chance for a fresh start and no choice but to have a fight over substance. When Douglas Ginsburg asked to have his nomination to the Supreme Court pulled in 1987 after allegations he had used marijuana, Ronald Reagan won unanimous confirmation in a Democratic Senate for Anthony Kennedy, then a judge with a decade-long conservative track record on a federal appellate court. Similarly, Mr. Bush recovered quickly from losing Linda Chavez as his nominee for Labor Secretary and Mr. Kerik as Secretary of Homeland Security. The damage to his relations with his conservative base would blow over quickly if Mr. Bush were to quickly name a well-qualified nominee who was not a sphinx when it came to judicial philosophy. Perhaps this time he might even expand the talent pool to include--gasp--men.

Pace Mr. Fund We have a somewhat different take on Ms Miers' prospects. If she doesn't withdraw, her persistence will set the stage for some novel political irony. She will be broadly disliked for quite different reasons by both Democrats and Republicans, but most of them will reluctantly feel compelled to vote to confirm her. Miers will likely be given a pass by many Democrats who will give her every benefit of the doubt since she's probably the best nominee, from their point of view, they can hope to see. If she's rejected, whoever comes after her is going to be far stronger, more ideologically conservative, and much more impressive than she, and far more difficult to oppose.

Republicans, for their part, will be unenthusiastic about Miers but also reluctant to vote against their president's pick, and indeed most of the current opposition to her is coming from columnists and bloggers, not senators.

Unless she's a disaster in the hearings, which she may be, Ms Miers will probably be confirmed by a comfortable margin, unless defections by Republicans, unlikely as they are, bring her down. In other words, nobody in the Senate will want her as a SCOTUS justice, but almost everyone in the Senate will feel constrained to vote for her.

Veto the Torture Bill, Mr. President

Congressional negotiators are currently haggling over an amendment to a military spending bill which would prohibit torture of anyone in American custody. This sounds good, but we're not enthusiastic.

The McCain amendment to the spending bill says this: "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment." The amendment passed the senate 90 to 9 a couple of days ago, but it shouldn't have.

President Bush has threatened to veto the legislation and we hope he does, not because we don't think people suspected of terrorism should be given some protections from abusive treatment, but because this bill is so vaguely worded that it has the potential to severely cripple us in the fight against those who wish to destroy us.

For example, what exactly constitutes "degrading treatment"? Is it imprisonment? Solitary confinement? Ridicule? Being yelled at? Unless the word "degrading" is clearly defined almost anything done to a detainee could be interpreted, and will be interpreted by ACLU lawyers, as degrading, and our courts and military will be bogged down for years trying to get clarification on what is permitted and what isn't.

The same criticism could be levelled at the use of words like "cruel" or "inhumane." Where is the line between cruel and not-cruel? Is giving detainees institutional food cruel? What about the use of fake menstrual blood, or the use of deception in general? Does cruelty depend upon motive or is it merely a function of the act itself? If an interrogator uses methods which might be deemed cruel because he has reason to believe that the detainee has information about a terrorist attempt to blow up the Lincoln Tunnel in New York, would that be prohibited? If so, why? These and other questions need to be answered before the president should affix his signature to such a bill.

This is one of those pieces of legislation that politicians vote for in order to look good by appearing to be doing good. They're no doubt hoping that Bush will save them from their fecklessness and veto this charade.