I had written
I was recently in Missouri on business and saw a car with a “They Murdered Terri” bumper sticker. Your base at work.

Simon replied
And did the bumper sticker define “they”?

Well—I’ll apologize, I guessed they meant liberals we are generally the bogeyman in any right wing complaint but the larger point was the attempt to blame anyone when most of her brain was mush. No one killed her.

I also wrote
On lawyers I was talking about the Monica Goodling – ization of the Justice Department. —60 percent of the class of 1999 — Goodling’s class — failed the bar exam on the first attempt….

Simon replied
Yes, and do you know what percentage of all first-time takers fail the bar?

I guess this was like the OJ glove question
http://www.ncbex.org/fileadmin/mediafiles/downloads/Bar_Admissions/1999stats.pdf

Regent was better than only the Northern Marianas and Palau if I understand what you were looking for. It appears Virginia as a whole had 66% passing instead of 60% failing. I think I understand the math there unless there is something else missing. If you truly think Regent University is one of the preeminent legal educations in the country, I doubt we will ever see eye to eye. I get that the bar is a tough exam. I also think that we should have bright people working on the major issues confronting us. It appears to my eyes, that has not been the prime consideration. We’ve seen it before after years of decrying affirmative action we got Sandra Day O’Connor (if I remember right 1/2 years on the bench and Clarence Thomas, best man in the US for the job?)

Simon had no issue with the (and my mistake here) the partisan nature of the firings and handling of DOJ. He told me to read Lithwichk’s article

I read Lithwicks article http://www.ncbex.org/fileadmin/mediafiles/downloads/Bar_Admissions/1999stats.pdf and she seems to say that it was a power grab by the Administration that Senators of both stripes didn’t catch put into the Patriot Act. (I’ve repeatedly said that anyone who did not read the thing had no business voting on it. I know it is routine. That doesn’t make it right) Perhaps it was the constant beat of the drum that if you weren’t with us you were with the terrorists? The fact that something is legal doesn’t make it ethical or moral in my mind. Serving at the discretion of the President is understandable that’s politics. Partisanship would have been a better name for the complaint. The complaint was that he wanted a partisan justice department.

Then on Sarah Palin he called me a liar.

There was no lie in my complaints about Sarah Palin. NONE. You might think she did not whiff on her press interviews. The world differs with your judgement as did an unprecedented number of the non Rush/Hannity/Beck group of conservative commentators. As to the statement on witchcraft, Don’t let your eyes and ears deceive you http://www.youtube.com/watch?v=kj-on3kfWuE or http://www.dailymail.co.uk/news/worldnews/article-1057181/Palin-African-pastor-friend-waged-witch-hunt-woman-believed-caused-car-crashes.html. I haven’t heard her say she disavowed the statements and she must have heard them since she was there and about 10 inches in front of the guy saying them. Hiding under religion’s wraps is partly what got us into this mess. It’s time for belief in the unbelievable to stop getting a pass.

In all the discussions, I’ve ever had though this one takes the case. He quoted himself as an expert backing up his own position on a blog with Support Sarah Palin ads and drivel like MSM? I never even thought to try that one. As Bill Hicks used to say you’d need a wheelbarrow to carry balls that big. (I totally apologize beforehand if I am wrong that you were not the same Simon-I would never slander someone with that kind of charge intentionally) If I take you at your word it’s even more damning. She’s the best you’ve got, she was thoroughly vetted and you really stand by that judgment?
2000 Election
Don’t want to go back there again but you misstated my opinion
and tried to equate it with something off the wall. The count was one of many things wrong, not the only thing. Obama’s election and Bush’s have no correlation whatsoever.

Several liberal news organizations did just that after the fact, and were forced into the humiliating admission that Bush did in fact win Florida.

Not if all the votes were counted. Look again

He then said
That’s cute, but you had your chance to vote against him, you used it, and the country decided to go a different way.

The country didn’t however. The Supreme Court did.

I don’t think Obama should ever have been President, but the country decided to go another way.

And the country rejected you and your thinking.

On Scalia and recusal
Simon said
Dick Cheney wasn’t before the court, the Vice President of the United States – an office held at that time by Cheney – was. You may not appreciate the difference, but as Scalia explained in his memo, there is a vast difference between being a de facto defendant because one holds a public office named as a defendant, on the one hand, and being a defendant oneself; that is why, for example, Rule 25 provides for the automatic substitution of defendants if an officer sued in their official capacity ceases to hold that position and is replaced. See Fed. R. Civ. P. 25(d)(1). The case follows the office not theperson, and it would be absurd to pretend otherwise. To see why, one need only consider a practical example: Afzal v. Holder, decided last month by the Seventh Circuit will suffice. The titular Holder is Eric Holder, the Attorney General, but when the appeal was filed, and when the case was argued last September, the appellee was Michael Mukasey; per Rule 25, Holder was substituted as appellee when he became AG. Suppose Judges Wood and Posner are personal friends of Holder: should they immediately recuse themselves, causing the case to be reargued? Unless you’re willing to look foolish by pretending the answer would be yes, you’re stuck conceding Scalia’s point. Neither Holder nor Mukasey were the defendants in Afzal; the Attorney General was. Likewise in Cheney’s case.

I am no legal expert although since the parties routinely have experts on both sides with opposing views I’ll try to point out the obvious difference In Holder’s case it would be him as AG standing in for the office. In Cheney’s case the office was his decision and it was protecting his decision. Legally that may not be a difference. In reality it is a huge one.

A bold conclusion followed
Scalia’s impartiality could not reasonably be questioned, for reasons given above.

And yet, reasonable people did. The consistent pattern I am seeing in you Simon is that that will always be the case. You can disparage me all that you like, but I am hardly the first or the only one that has made the arguments. You don’t like the press, the universities, the Bar Association and any liberal or conservative source of anything that disagrees with your position. I find now that you do use and trust yourself as a source. So far I have seen no reason to do so. Hell, you didn’t even like Scalia’s reasoning when it differed from your own. :-)
Sorry we have not been able to find anything to agree on. I’ll try not to respond again.

Bottom line seems to be then that since they had in fact been used far more by Bush and his administration than all previous adminstrations combined that you think his administration must have a better grasp of the law and the Constitution than all of the previous administrations.

No, the bottom line is that claims about signing statements have to be made in the context of specific examples. You have so far failed to bring forward a single example of any signing statements, let alone explaining (a) why you think it’s a problem and (b) why it’s typical of a broader class of signing statements. Those are the hallmarks of someone who is regurgitating their talking points inspead of actually engaging with the material.

Even stipulaing your premises, arguendo, your conclusion does not follow. The fact that the Bush administration made aggressive use of signing statements does not imply that previous administrations “ha[d] a better grasp of the law and the Constitution than all of the previous administrations.” That would be one theory that fits the facts, but at least three other obvious contenders spring to mind (that the last administration was simply more solicitous of such concerns than previous administrations; that the Congresses that sat during the last administration simply presented more bills raising concerns than earlier congresses; and that, to whatever extent (which you have made no effort to quantify) the last administration’s signing statements were purely rhetorical, the last administration may simply have been more garrulous), and we could think of more, I have no doubt.

Discussing signing statements in vague generalities when a collection of specific examples is publicly available to be mined ill-serves your case. It implies that the answer to my previous question – how many have you read and evaluated for yourself – is “none, and I don’t intend to start now.” Remember Senator Moynihan’s warning, Kevin: you’re entitled to your own opinion, but not your own facts.

I’ll defer to the ABA and Fein who seem to know the law and come to the opposite conclusion to yours. Their reasoning seemed sound to me. Of course, they are wrong, they disagree with you.

I don’t have any chums as you might put it. I have concerns about the ethics of the previous administration. I guess we are all wrong.

Simon or Mark or someone, can you straighten me out?What can some of the lawyers out there tell us about signing statements as to Kevin’s claim that the President is modifying the law by making them?

As I said above, it’s telling that most of the criticism is framed at a very abstract level – it’s never tethered to particular signing statements, still less an argument for why that example is typical. Could a signing statement purport to modify the law? Sure, you could write one that purported to do so, but that’s not the issue; the issue is whether a signing statement, in abstracto, by its very nature, do that? Of course not.
Most signing statements are purely rhetorical, having no substantive effect at all (President Bush’s signing statements accompanying Pub. L. 107-155, BCRA (basically “I have concerns about the constitutionality of this, but I’m signing it anyway” and Pub. L. 110-81, the Honest Leadership and Open Government Act of 2007 (basically “I like this”) are typical of such). The President is also a player in the legislative process, and it has been argued that these rhetorical signing statements are a species of legislative history, and argued that judges who use legislative history should use signing statements with no more alacrity than they use committee reports. See Steven Calabresi & Daniel Lev, The Legal Significance of Presidential Signing Statements, 4 The Forum No. 2.

Another category could be thought of as the short-cut signing statement; Bush’s signing statement accompanying Pub .L. 108-21, the PROTECT Act, is roughly typical. The President, of course, has the authority to direct his executive branch subordinates, see Myers v. United States, 272 U.S. 52, 135 (1926); if a statute directs a particular executive agency to make a particular decision or undertake a certain action, the President certainly has the authority to direct that actor’s response, typically using an executive order. Why not cut to the chase, if the President’s instruction is simple enough, by stating this directive at the same time as signing the bill? Indeed, one would think that open government fans would appreciate such a practice, as placing the President’s position on public display instead of burying it in the Federal Register, a publication so dry that not even someone as boring and nerdy as me routinely reads it.

Still another category of signing statements are similar to the familiar canon of avoidance. Where a statute is ambiguous, and one interpretation would raise a constitutional question, courts will ordinarily prefer the interpretation that does not. See Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). Likewise, while the President should veto a statute that is plainly unconstitutional, it is not clear to me that a President must veto a statute that could but need not be construed as to raise a Constitutional problem. A signing statement announcing the perceived problem and how the President will direct the executive branch to construe the ambiguity to avoid constitutional problems is sometimes issues.

Where it gets controversial is a signing statement such as that accompanying Pub. L. 107-229, a 2003 continuing resolution. Although he signed the bill, the President observed that one section of it “would require executive branch agencies to procure printing from the Government Printing Office, a legislative branch entity.” President Clinton’s Justice Department had concluded ten years prior that such provisions violated the separation of powers, and Bush adhered to that conclusion, insinuated that his administration would not consider itself bound by that section of the continuing resolution. This kind of signing statement does not assert that the administration can act outside the law, as Kevin and his chums might put it; quite the contrary: it asserts that Congress has acted outside of the law. To call this kind of statement a refusal to abide by the law would be, in effect, to claim that the Constitution is not law, but that idea – the proposition that Congress gets to decide the limits of its own power bit – the dust in Marbury v. Madison. See Marbury, 5 U.S. at 176-9; Frank Easterbrook, Foreign Sources & the American Constitution, 30 Harv. J. of L. & P.P. 223, 226-7 (2006).

All of which is a very long-winded way of saying that my answer is this: be wary of assertions about what “signing statements” in vacuo are or represent. Signing statements can be many things; whether they are problematic or fine depends on the example. So always ask for examples.

Kevin says:

I was recently in Missouri on business and saw a car with a “They Murdered Terri” bumper sticker. Your base at work.

And did the bumper sticker define “they”? If “they” refers to the people who pulled the plug, that’s just an expression of the driver’s opinion on the issue, and doesn’t raise any particular problem. (I have no opinion on the underlying issues.) If “they” are the federal judges who (quite correctly) refused to intervene in a state law issue — there is no “this has turned into a real mess, get me out of here!” federal jurisdiction — that’s more problematic. Any basis for choosing between the two other than guesswork?

On lawyers I was talking about the Monica Goodling – ization of the Justice Department. —60 percent of the class of 1999 — Goodling’s class — failed the bar exam on the first attempt….

Yes, and do you know what percentage of all first-time takers fail the bar? You might want to look it up. Before reciting this talking point again. As I said above, the bar is a tough exam. (That’s why I defended Hillary a couple of years back when some on my side and some Obama fans thought that her failing the D.C. bar would be a viable cudgel against her.)

Shouldn’t everyone be concerned about that? (Not to mention the politicization of the Justice Department)

The politicization of DoJ is largely a liberal codephrase for the firing of the U.S. Attorneys, an issue that was transformed into a scandal despite it being absolutely, undeniably legal. To the extent it isn’t code, I suspect that it’s supposed to invoke hiring decisions that skirted the line in civil service hiring laws that I think ought to go. (That certainly wouldn’t excuse breaking those laws, but it does make me less willing to condemn conduct that skirted the outside edge of them.) And to the extent “politicization” is neither of those things, I agree with Dahlia Lithwick – no conservative she – who made mincemeat of this politicization idea two years ago.

I would have hoped that [signing statements were] an area for common ground. Regardless of what they are, I would think that saying you are outside of the jurisdiction of law AND more importantly a review of your justification for that position is a horribly dangerous and flawed position.

I think everyone would agree that the President can’t proclaim that he’s acting beyond the jurisdiction of law, but that has absolutely nothing to do with signing statements outside of the imaginations and massed strawmen of the Daily Kos crowd. It is also quite telling that you admit that your position on signing statements is antecedent to determining what they are.

I’d like to see every single one reviewed for him and anyone else who ever takes office.

I’d like to see critics frame their criticisms in terms of any single one, or better yet a few, as I mentioned above. How many signing statements have you personally read and evaluated in light of the statute and the underlying law?

I would think that anyone who comes from a party that prides itself on protecting America from the evils of government would want all government employees to be under the control of the people’s representatives and the Constitution.

The Bush administration’s view of signing statements is in no tension with your concern. What you evidently fail to appreciate is that in saying this, you are assuming that “the people’s representatives” do not include the President. That is incorrect. Indeed, Chevron deference is predicated on completely the opposite view, see Chevron v. National Resource Defense Council, 467 U.S. 837, 865-6 (1984).

You should know that the views of the American Bar Association are not going to carry much weight. ABA is, fundamentally, a liberal association, and one with a personal axe to grind with the Bush administration (they were told publically that their services were no longer required in evaluating judicial nominees). One does not usually go to the ex-wife for an unbiased opinion of the former mistress.

It is almost like saying that the President always has the final say which is a lot more like a monarch than a representative form of government.

Another strawman with no resemblance to the actual practice of signing statements by the Bush administration. Unlike Adam Savage, you can’t reject our reality and substitute your own; to criticize the actual practice of signing statements is one thing, but to make up an entirely fictitious practice, call it the same thing, and then pass off criticisms of the fictitious practice as criticisms of the real practice is… Well, we know what that is.

The lie-filled rant about Palin warrants no response, except to point out once again that the lie about Palin not having been vetted is a lie, a poor cousin to the lie that she “came from nowhere,” and to repeat it conspires yourself in a lie.

The 2000 election in it’s totality was not what many in the world saw as a legitimate election. If the same criteria were shown for an election in a fictional country you would likely swear it couldn’t be true.

The election took place. Legal questions arose. And courts decide legal questions when two parties disagree on the answers. That you don’t like the result doesn’t make it illegitimate (I hate the result of last November, but that doesn’t make it illegitimate) and the bare fact that a court became involved doesn’t make it any less so. If the only opinion in the case had been Kennedy’s per curiam opinion, I might agree with you, but it was not.

the Supreme Court who took their previous “states rights today, tomorrow, forever stance” and turned it upside down.

Inflammatory, insubstantial, rhetorical nonsense.

They should have counted ALL the votes. At the end let the chips fall where they would.

Several liberal news organizations did just that after the fact, and were forced into the humiliating admission that Bush did in fact win Florida.

Florida was disenfranchised, the US was and so was the World since they had to live with the aftermath. Bush never should have been President.

That’s cute, but you had your chance to vote against him, you used it, and the country decided to go a different way. I don’t think Obama should ever have been President, but the country decided to go another way. Welcome to the United States; this is how we do it. Every four years, there’s a Presidential election, and a significant percentage of the country fee;l really unhappy about the result.

Scalia is ethically challenged and should have recused himself when his animal killing buddy came before the court.

Dick Cheney wasn’t before the court, the Vice President of the United States – an office held at that time by Cheney – was. You may not appreciate the difference, but as Scalia explained in his memo, there is a vast difference between being a de facto defendant because one holds a public office named as a defendant, on the one hand, and being a defendant oneself; that is why, for example, Rule 25 provides for the automatic substitution of defendants if an officer sued in their official capacity ceases to hold that position and is replaced. See Fed. R. Civ. P. 25(d)(1). The case follows the office not the person, and it would be absurd to pretend otherwise. To see why, one need only consider a practical example: Afzal v. Holder, decided last month by the Seventh Circuit will suffice. The titular Holder is Eric Holder, the Attorney General, but when the appeal was filed, and when the case was argued last September, the appellee was Michael Mukasey; per Rule 25, Holder was substituted as appellee when he became AG. Suppose Judges Wood and Posner are personal friends of Holder: should they immediately recuse themselves, causing the case to be reargued? Unless you’re willing to look foolish by pretending the answer would be yes, you’re stuck conceding Scalia’s point. Neither Holder nor Mukasey were the defendants in Afzal; the Attorney General was. Likewise in Cheney’s case.

28 U.S.C. § 455 (a) states, “Any justice, judge, or magistrate [magistrate judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Scalia’s response was basically, “I’m impartial, trust me, shut up.”

So it does, and so what? Scalia’s impartiality could not reasonably be questioned, for reasons given above. That word “reasonably” does have operative effect; it precludes any idiot with an opinion bringing the wheels of justice to a standstill.

And finally? Your views on Newdow are?… Or were you just upset he recused himself

My views on Newdow and other cases brought by Michael Newdow are irrelevant. What is very much relevant is that Scalia allowed himself to be duped into recusing himself from that case on the flim-flam grounds that he gave a speech in which he said nothing that he had not already said in Lee v. Weisman. Anyone who didn’t already know what Scalia said about his views in that speech had no business arguing a first amendment case before the Supreme Court, which made it a cynical tactic to nullify his vote. He should not have fallen for it.

Here’s what he said if you missed it
What does it tell us about the way that the president views the legislative process?

That he has a great disdain for it. I think that history shows that if he was serious about defending his constitutional views, he’d veto the bills and say, “You have to delete X, Y, Z, they’re unconstitutional, and then send me back the correct bill.” That’s the way it ought to be done.

My view
The veto is the principled stand, the signing statement if not actually tested is a bit like the cowardly way we no longer declare war. Why can’t we just get everyone of both parties to take a stand on the record? Shouldn’t we all expect that?

The question I’ve put forth is whether these signing statement have legal force or whether it is still up to a court to decide what the given law means, based first on its own language, and then if necessary, in consultation with related documents from ALL the crafters.

As previously stated, my understanding is that when a President issues these signing statements, he decidely is NOT legislating or changing the actual meaning of the bill. He doesn’t have that power. It seems to me that the only power in these signing statements is whatever persuasive power exists in the words. So in the hypothetical I described, the President would be free to use everything in his signing statement as the basis of a legal defense, but the sum total of the force is, again the persuasive power of the reasoning and nothing else.

So #1 I just don’t see what the big deal is, and #2, I think the rhetoric of progressives on this practice i feels hyperbolic, overheated, and downright inaccurate to me. The President can SAY that black is white, but by declaring it he does not have the power to make it so.

That’s the bottom line to me, that these signing statements (again, apparently) are not the exercise of a power or the creation of a new power.

I’ll cheerfully grant that the increased volume of such statements under Bush bespeaks of paranoia. But given how skilled many progressives seem to be at manufacturing potentially litigatable (is that even a word?) issues, I am reminded of the dictum that just because you are paranoid doesn’t mean they aren’t out to get you.

As more and more political actions and battles become subject to partisan-crafted litigation, it seems likely to me that signing statements may become the rule and not the exception. Should that come to be so, we’ll have reaped what was sown.

might help

Kevin

Because that does not match my layman’s understanding. My understanding is that a signing statement is no more than a description of how the President understands the law. It’s an argument that describes how the President in good faith thinks it is going to be enforced.

So suppose a law about to be signed into effect said “people can’t do x.” Suppose the president signed this into law along with a memo which said “my understanding is that as President I can sometimes do x.” Suppose later on the President does x, and is prosecuted for doing x under the law he signed along with the memo of understanding.

My understanding is that at this point it’s up to the court to decide how the law applies. In other words, a signing statement by the President is actually a legal argument, not something that creates legal force by Presidential declaration.

Can someone straighten me out on this?

On lawyers I was talking about the Monica Goodling – ization of the Justice Department. —60 percent of the class of 1999 — Goodling’s class — failed the bar exam on the first attempt— and yet 150 members of Regent University found their way to jobs in the Bush administration. Are they really the best people to oversee the people’s business? Could it be that their main allegiance is to “god’s chosen president?” Shouldn’t everyone be concerned about that? (Not to mention the politicization of the Justice Department)

Signing Statements
I would have hoped that this was an area for common ground. Regardless of what they are, I would think that saying you are outside of the jurisdiction of law AND more importantly a review of your justification for that position is a horribly dangerous and flawed position. They have been exceptions in the past and Bush made them almost the rule with his zeal for “but it doesn’t apply to us”. I’d like to see every single one reviewed for him and anyone else who ever takes office. I would think that anyone who comes from a party that prides itself on protecting America from the evils of government would want all government employees to be under the control of the people’s representatives and the Constitution.

You then said
“signing statements run the gamut between problematic and perfectly unexceptionable”

I think they are always problematic. “the American Bar Association stated that the use of signing statements to modify the meaning of duly enacted laws serves to “undermine the rule of law and our constitutional system of separation of powers”. I would say that about sums up my concern. It is almost like saying that the President always has the final say which is a lot more like a monarch than a representative form of government.

On Working Together
We won’t see eye to eye on this one but talking and listening is more than Bush ever did.

On Bias
You said
That would have been a difficult argument to make with a straight face prior to August 30th last year,

I’d say you aren’t paying attention then. The Chicago Tribune is routinely lumped in with the liberal press by people in my area. Let’s see the evidence. Jim Ryan, a Republican ran for Governor and was endorsed by the Trib only a few years after his part in attempting to convict people of a murder in my hometown that they did not commit. He was so slimey that the Trib said he should never again be in a position of public trust and then a few years later they endorsed him for Governor. Obama is the first Democrat for President EVER to be endorsed by the Trib, but in the land of say it enough and everyone will buy it, the Trib is a liberal paper. PLEASE

Then Sarah Palin
Really? A woman in 2009 who believes in the powers of WITCHCRAFT – centuries after most of the planet has grown out of that nutty belief. Is there a level of batshit crazy that crosses the line or is the sky the limit if you say it’s a “religious belief”? A woman who has been vetted less than the french fry cook at McDonalds by the McCain campaign and has so embarrassed herself repeatedly that the conservative press even retreats from her. She is your proof? She got served up softballs and whiffed repeatedly. She was an embarrassingly poor pick to appeal to the hypochristian base and even McCain has backed away from her. Your party should be ashamed of putting someone so woefully inadequate so close to power. The GOP used to have statesmen like John Anderson and Edward Brooke, what has happened to it? They are now a party run by the extreme. The more thoughtful members have even admitted as such. I don’t know alot about Olympia Snow but comes across as thoughtful and intelligent person. She’d have zero chance of leadership in your power. Do you truly believe that thoughful and intelligent even in the most remote of ways are descriptive of Palin? Do you really believe that?

On the Supreme Court.
The 2000 election in it’s totality was not what many in the world saw as a legitimate election. If the same criteria were shown for an election in a fictional country you would likely swear it couldn’t be true. Certainly not in the “greatest country on earth” From the Decider being the co chair of the campaign, to 10s of thousands of systematically disenfranchised voters, to the goons sent down to disrupt the recount, to the errors of the voters, to the Supreme Court who took their previous “states rights today, tomorrow, forever stance” and turned it upside down. They should have counted ALL the votes. At the end let the chips fall where they would. The Supreme Court was in a rush to appoint their guy because they had the numbers. Florida was disenfranchised, the US was and so was the World since they had to live with the aftermath. Bush never should have been President. As to the rush, where are all the Republicans calling for ex-Senator Coleman to drop out. Shouldn’t they be sending their mobs in again? One of my favorite political lines ever was when they asked John Anderson if he felt like a spoiler in the 1980 election. His response, “What’s to spoil?” There was no rush. The majority of voters didn’t want Gore or Bush.

Scalia
Scalia is ethically challenged and should have recused himself when his animal killing buddy came before the court. (By the way, since I come from farm country originally and have gone hunting many times, no self respecting hunter would call shooting animals let loose to be killed for their amusement hunting) 28 U.S.C. § 455 (a) states, “Any justice, judge, or magistrate [magistrate judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Scalia’s response was basically, “I’m impartial, trust me, shut up.”

And finally? Your views on Newdow are?… Or were you just upset he recused himself?

Surely there must have been some things that at least troubled thoughtful Republicans, … [such as] the signing statements, partisan attacks from the judiciary, hiring lawyers from a University that could barely pass the bar in record numbers….

I thought the attacks on the bar after the Schiavo business were silly, unhelpful, and substantively erroneous – and said so at the time. As to the bar, you evidently don’t know anyone who’s recently taken the bar. I do, and it’s a tough, tough exam – that’s why such a high percentage of takers fail it first time. And as to signing statements, one thing that’s interesting about the left’s criticism of signing statements is that it’s all dogmatic assertion done in the abstract. There’s never any recognition that signing statements run the gamut between problematic and perfectly unexceptionable depending on their content; never any attempt to identify specific examples of signing statements that are problematic and explain why they’re a problem and why they’re typical of a broader class of problematic signing statements.

Obama has tried to work with the GOP and has gotten absolutely nowhere. That is a guarantee for future polarization of this country and the last administration got us to the worst spot in that regard I have seen in my lifetime.

No, he hasn’t. He’s showed up to meetings to “listen” to them (which, recall, is all he promised to do), whereafter he and his surrogates have proceeded to to whatever they intended to do anyway.

One other thing that I find interesting is that we are constantly told not to trust journalists or academia because they are in the tank for the Left. I don’t know many on the Left that don’t worry regularly that so much is not being made clear to the public. Truth be told I think that both sides think the media are in the tank for whichever side is the other one.

That would have been a difficult argument to make with a straight face prior to August 30th last year, and has become an impossible argument to take seriously since then, given the media’s behavior after the announcement of Sarah Palin as our veep nominee.

it’s hard to take “seriously arguments that come down to only my experts are trustworthy.” You dismiss out of hand the arguments against the 2000 election because of the “bias” of the writers thus refusing to deal with their points

I don’t say that they should be dismissed out of hand, or their points not dealt with. I say that a writer’s biases should be taken into account when evaluating their claims. In the Title VII hypothetical I mentioned above, knowing that someone is a dues-paying klan member doesn’t prove that they fired a black employee because of race – but it sure as hell changes the way that you read their brief.

and selectively forget that several of the Supreme Court Justices could/should have recused themselves and would have if they were as honorable as I’d like people of either side to be just for the obvious conflict of interest.

You’re still trying to walk conclusions through the gate as though they’re facts. There was an article (although I don’t recall if it was scholarly or journalism) written that suggested, I think it was four members of the court should have recused themselves, and by sheer coincidence, what do you know, all four happened to have voted against the litigant the author thought should have won the election. What was more, some of the theories for why Justices should have recused were preposterous – the one that I remember was that Gene Scalia was an associate in the firm representing Bush, and so Justice Scalia ought to have recused himself. Which is ridiculous, of course, but I guess that trying to force Scalia to recuse is a recurring tactic by the left (happily, one that he has usually rejected, and unhappily, one that he gave license to by mistakenly recusing in Newdow).

Enough on the 2000 election though, I doubt that there will be any future movement on that issue :-)

Actually, Senator Coleman’s appeal to the Supreme Court will invoke Bush v. Gore, and – consistent with what I said above about the left usually loving that kind of broad equal protection theory – the New York Times reported recently that several liberal public interest litigation shops are mulling using Bush v. Gore for their own ends now that its beneficiary is out of office. Justice Kennedy declared the case’s reasoning good for one use only; as Instapundit might say, “heh.”

Besides, many of your peers have posted entries here in the past – you should consider it.

I’m not opposed to the idea, in appropriate circumstances, but I would probably be more apt to send Justin something and ask him to link to it adding his take. Donklephant is a different ball game to SF.

kranky kritter Says:

FWIW, I agree that SF taken as a whole is moderately conservative in comparison to places like redstate or lgf. Among the main posters, you are the furthest right at stubborn facts, in my estimation.

That’s probably fair to say. And you kindly didn’t say this, although you could build a credible case for it, but I probably come across as the most partisan of us (although that’s not actually quite the way of it). Still, as you know, that group includes Rafique, who is — and I’m quoting his own blog’s masthead here, I don’t mean to put words in his mouth — a center-left liberal, so being on the right of that group doesn’t mean what it would if the others were pretty far right. There are crowds in which one could accurately say that Rafique would be the furthest right, something that doesn’t mean he’s particularly right wing in the slightest. Again, I don’t want to put words in anyone’s mouth, but I would have said that Pat and I are both in the overlap between moderate and mainline conservatives. Granted, I’d like to cut the federal government down to size, but compared to someone like Richard Epstein, I’m practically a cheerleader for the feds!

But as we criticize our own government’s conduct and polices, we must place our government in context with many others worldwide, many of which are just downright wretched. So I totally support the policy of saving the most hyperbolic adjectives for the sorts of places you mention.

AT the risk of starting a round of CPD in order to strike a conciliatory note with you, I do find in my personal blogging experience that liberals are more prone than conservatives to criticize american conduct without regard to comparison with the sins and faults of other places.

FWIW, I agree that SF taken as a whole is moderately conservative in comparison to places like redstate or lgf. Among the main posters, you are the furthest right at stubborn facts, in my estimation.

Obviously you like to write.

There’s not much that I like better than reading and writing.

Why don’t you find a particularly interesting subject to you, relevant to a political blog and write an entry for Donklephant. Send it to Justin, I’m sure he would post it.

For the same reason that a columnist for the New York Times wouldn’t pen a column and send it to the Washington Post. I write what I want when I want at SF, so why would I need to impose on Justin for an outlet?

It wouldn’t offfend your sensibilities to author an entry on a moderate site would it?

I author entries on a moderate – that is, moderately conservative – site routinely, unless you have a very strange perception of where SF lies on the political spectrum.

As to abominable. Definitions help. I would agree that the Bush/Cheney regime were not on a level of Hitler or Mugabe. I don’t think that we need to head there to find things unacceptable, less we get to the stage of defending ourselves with “but I’m no Hitler”. Standards might put him at the extreme end of the curve I would hope.

I do think that questioning the patriotism of your citizens and treating those who disagree with you here and abroad with contempt thus alienating most of the world’s population and pursuing torture is much worse than bad and should not be something we accept, less it happen again.

I do apologize for my offending some folks. I will attempt to more concisely address the issues later.

Republicans as Americans for instance. I realize that I have made some comments that can easily be seen as overblown. I do see it differently or I wouldn’t have said it. I think the proof is in the pudding and I don’t see much let’s work together. Those who do, generally get attacked for not being acceptable to people like Rush. The attitude has been my way or the highway for years. The constant caving of the Left to this has left many frustrated to the point of not wanting to work with the Right on anything because it always seems like I give and I give and you take and you take but it never seems to average out leaving us farther from what we want even when we are in power. Two sides have to want to find common ground and there seems to my eyes to be none of that from the GOP. So it seems that unless you take the position that that approach is always a good one… I remember a time when there were such statesman, I worked for one in a Presidential race. He was the third ranking Republican and voted for Nixon’s impeachment. I just don’t see any consistency on the right. It’s a viewpoint that says the rules matter but only for you. Surely there must have been some things that at least troubled thoughtful Republicans, torture, the signing statements, partisan attacks from the judiciary, hiring lawyers from a University that could barely pass the bar in record numbers, accusing your opponents of helping terrorists and on and on. I don’t remember a single instance of anyone on the right saying enough, this is not good for the country. I don’t see Ann Coulter being disinvited from Party events. There seems to be my team or no team approach. Obama has tried to work with the GOP and has gotten absolutely nowhere. That is a guarantee for future polarization of this country and the last administration got us to the worst spot in that regard I have seen in my lifetime.

One other thing that I find interesting is that we are constantly told not to trust journalists or academia because they are in the tank for the Left. I don’t know many on the Left that don’t worry regularly that so much is not being made clear to the public. Truth be told I think that both sides think the media are in the tank for whichever side is the other one. Assuming it were true, should it not at least make you question that the people with the most information and exposure to it take a side different than your own? Should it make you worry that the groups who so strongly support you are willfully ignorant. (Fox News viewers still think Iraq attacked us on September 11.) I would be questioning my standing if believers in witchcraft and creation were my base.

So in conclusion, I’m willing to be educated on where my facts are incorrect or reasons why my conclusions are wrong. That said it’s hard to take “seriously arguments that come down to only my experts are trustworthy.” You dismiss out of hand the arguments against the 2000 election because of the “bias” of the writers thus refusing to deal with their points and selectively forget that several of the Supreme Court Justices could/should have recused themselves and would have if they were as honorable as I’d like people of either side to be just for the obvious conflict of interest. Enough on the 2000 election though, I doubt that there will be any future movement on that issue :-)

For my part in not bringing the level up, I’ll try to do better.

Since you are against ad hominem attacks I thought I’d point out that the word is vicious.

Ah! That’s a typo, but well spotted, and thanks.

What would be an abominable government? Has there been one in your lifetime?

Not in the United States, no, there has not been. To describe any American government in recent times as “abominable” – even the bad ones, even the ones led by Presidents I really dislike and which have persued policies I regard as mistaken, detrimental, or even ruinous – is to engage in a kind of silly hyperbole that misuses and thus devalues the word in a way that is detrimental to precise expression. Beyond these shores, one can certainly think of examples of governments that merit that description. Mugabe’s Zimbabwe, Stalin’s Soviet bloc, Hitler’s Germany, North Korea under Kims Snr and Jr, Hussein’s Iraq — I don’t think that many would dispute that these were abominable regimes, and one could probably mine their common characteristics and extract hallmarks of a government that is truly evil. Nevertheless, I don’t think that it’s wise for me to try to express an all-encompassing definition of an “abominable” government off the cuff, and it certainly isn’t necessary to do so in order to conclude that neither this administration nor the last one meet that definition.