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May 15, 2005

Comments

I wouldn't call it "entirely correct," since it depends on how you define "Saudi Arabia."

Praktike, I understand what you're implying, but I don't think it's a terribly useful distinction.

Consider the Cold War, when it would correct to say that our primary enemy "in the world" (not merely some "region" thereof) was the USSR. Wouldn't it be equally fine at that point to say, well, it depends on how you define the "USSR." Because we're not necessarily in conflict with each of her citizens -- we were not, for instance, particularly adverse to Alexander Solzhenitsyn. Nor were we necessarily in conflict in every Soviet policy; for instance, there was significant cooperation on certain scientific achievements, including space exploration. But pointing all these (very true) things out would merely have obscured the central issue, would it not?

Hmm; I must be in good mood this morning, with all this handing out of praise left and right. Don't worry; it'll pass.

A vaccination on both your houses?

Unless he has changed his name, it wasn't Tacitus who gave that Saudi Arabia quote, but someone named Travino.

Same guy.

Kevin Drum explicated his epigram with a very specific example. Tacitus is so vague and cryptic as to be meaningless. Why futile? Is there nothing, absolutely nothing we can do to thwart our primary enemy? Does he mean futile in the sense praktike does, which I guess means the SA gov't, or the parts that are friendly to us, cannot inhibit their extremists? Does he mean futile in the sense that no one in the Bush administration cares...I doubt that since he mentions Iran.

If we are in some sort of MAD situation with Saudi Arabia, we might look to some cold war analogous strategies like containment. I can, unlike Tacitus, think of several plausible strategies.

And in general, disagree with the three of you, in that a doctrine of proportionate response is more efficacious. See I can be vague and sagacious too.

Well, wait just a minute there. The Soviet Union was an adversary, as a matter of formal policy. That individual Russians, or Latvians, etc, were not adversaries didn't mean that there wasn't a superpower, armed to the teeth, playing a high-stakes offensive and defensive game with us.

With SA, though, it isn't the regime at all. We're not worried, not one bit, that a Saudi Air Force plane is going to bomb our troops in Kuwait. We're not worried that a Saudi Air Force jet is going to bomb some ally or surrogate of ours. While we may not think that Saudi Arabia's government is doing all that it can to help us in our Fools Errand of a War, this can be said of most countries. Turkey. Ireland, for God's sake.

There are individual Saudis who have developed individual foreign policies, as a result of religious indoctrination. The Saudi government allowed it to happen, but only in the same way our government allowed Tim McVeigh to happen. Maybe a better parallel is Hemingway and the Spanish Civil War.

To me, it appears that the biggest enemy is our own unwillingness to consider just how complicated things really are, and that simplistic solutions -- let's push for regime change in Saudi Arabia or Cairo -- are going to have unintended consequences.

One of the great gifts of Conservatism has been the conviction that attempts to solve problems through government action are beset with Murphy's Law, and that as often as not, unintended bad consequences will overwhelm the benefits of even the best intentioned government program. The answer to this observation is not total inaction, but a narrow tailoring of actions to acheivable objectives. I'm not saying that the constant harping on liberal hubris was attractive, but there was a point. Now, we're embarked on a struggle with who knows what for who knows how long, where we can't tell if we're gaining ground or losing, and will never know if we've made the right choices. Faith is all the proponents have, but like good fundamentalists, everything in creation validates that faith. More attcks means we're winning, fewer attacks means we're winning, more saudis in Iraq means we're winning, fewer Saudis in Iraq means we're winning. Indeed, nothing at all would be evidence that we are not winning.

Enemy no. 1 is not Saudi Arabia. It is Hubris.

So, where's the huge and movement to get rid of "under god"? I think it was one guy here in CA. Add to that some judges in the ninth circuit. Hardly a bunch of equal and opposite wing nuts. The *reaction* to this guy was *huge*.

And then there's the whole anti 10 commandments movement that seems to be entirely composed of - wait for it - a bunch of judges (equally composed of the conservative and liberal bent). As I remember things - and perhaps Drum and Von has better memory than I - the only people being radical were the Moore supporters on this issue.

On the abortion front, I don't see an "equal and opposite" wing nuttery there either. There are people on the right who are blowing people up, assassinating various people involved in child planning. And they seem to be out there with the signs yelling and screaming. Pray tell, where are the left's wing nuts in this fight?

And what about the whole constitutional amendment movement to prevent gay marriage? Wasn't the last election in part won by a coordinated effort to bring out people opposed to this by placing the issue on the November ballot - ill thought out laws that turn out to be causing more damage than just preventing gay marriage. Again, where is the huge groundswell of liberals who are beating down the gates to force gay marriage and destroy heterosexual relationships? They simply doesn't exist - it's the actions of judges making decisions based on constitutional grounds of equal rights. Not the reaction to a vocal band of wing nuts.

I'm certain there are wacko lefties, but I'm really getting sick of this characterization that it is equal and opposite. I just don't see it, Von. I just don't see it at all.

the thing about KSA is that the regime is actually more liberal than its likely replacement, believe it or not.

"the thing about KSA is that the regime is actually more liberal than its likely replacement, believe it or not."

By design, most likely. If I were a ME dictator I certainly would oppress and destroy the moderate attractive-to-the-west opposition, leaving my sponsors with as frightening an alternative as possible. Yglesias(and I think Marc Gerecht) ask if those radical alternatives are actually so very frightening. I do not necessarily agree, but do think about whether compared to Mubarek's Egypt, Iran shows more actual potential for enlightenment 25 years after the Shah.

In any case, posing the alternatives as regime change or status quo falsely limits the options again. And one wonders if those Saudi suicide bombers were killing Israelis or Texan civilians would there be as much resignation. But the "hearts and minds" of the Iraqi people has never been a high priority.

If I were a ME dictator I certainly would oppress and destroy the moderate attractive-to-the-west opposition, leaving my sponsors with as frightening an alternative as possible.

Also, the oppression drives the moderate groups to espouse radical means and goals-iirc the history of the Brotherhood of Islam is a perfect example. Something to mull over when thinking about Drum's point.

I don't think Drum is correct to dismiss the slippery slope arguments on religion. There is a very powerful movement in this country that wants to go a lot further than putting a creche in the park at Christmas.

Air Force Academy, anyone?

"So, where's the huge and movement to get rid of "under god"? I think it was one guy here in CA. Add to that some judges in the ninth circuit. Hardly a bunch of equal and opposite wing nuts. The *reaction* to this guy was *huge*."

It comes back to activist judges. If it is the proper role of judges to expand the establishment clause beyond its historical norms that is going to be attached to the Democrats because it is their preferred style of judging which leads to such decisions.

Seb
Having read your comments, I know what you mean by the last sentence, but the grammar suggests that testiness is fueling your response a bit. Please note that this is not taking issue with your point, just trying to nip any potential food fight in the bud.

Actually, I don't want to get into this again, but: to me, the fact that many of the judges who rule in the way Sebastian doesn't like are conservatives appointed by Republican presidents suggests to me that what he objects to is not "Democrats' preferred style of judging", but the consensus style of judging over the last half century or so. It may be right and it may be wrong, but I think it's inaccurate to call it specifically Democratic.

"but: to me, the fact that many of the judges who rule in the way Sebastian doesn't like are conservatives appointed by Republican presidents suggests to me that what he objects to is not "Democrats' preferred style of judging", but the consensus style of judging over the last half century or so. It may be right and it may be wrong, but I think it's inaccurate to call it specifically Democratic."

I'll agree that historically that judges as a group (with a few exceptions) have acted to gather power whether or not they were nominated by conservatives or liberals. Now that dealing with that has become a major political issue, the lines (at least at the level of elected representatives) are much more like A) Democratic partisans who want to have Democratic-oriented partisan judges, B) Republicans who want Republican oriented partisan judges, and C) Republicans who want to return the amount of judicial power in politics to something a bit less drastic than it is now. There is pretty much no D) of Democratic representatives who want to dial down the power of the judiciary in propagating novel theories to overturn legislative enactments. Democratic representatives are really scared that Republicans might get Republican partisans in place instead of Democratic partisans, but they aren't for a deferential judiciary.

C) Republicans who want to return the amount of judicial power in politics to something a bit less drastic than it is now.

Not sure I buy that this represents any substantial number of Republican elected officials, at least not in the White House or the Senate. The test is whether there are Republicans in the Senate willing to oppose partisan nominees on the grounds that they are too activist.

We'll see.

If it is the proper role of judges to expand the establishment clause beyond its historical norms

What history? What norms? Up to the 1960's mandatory, generally explicitly Christian, prayer was the norm in many public schools. Are you suggesting that the establishment clause ought not be interpreted to prohibit this?

Actually I don't think it is a case of Democrats trying to preserve left-leaning activist judges and prevent right-leaning activist judges. The specific judges under contention in the Senate aren't recognizably conservative--they are activist extremists with capricious views concocted from god knows what and where. The current agrument in the Senate is more a case of Democrats trying to prevent activist extremists from getting judgeships and Republicans pushing the extremists either because they want to win a power play or they want to pander to extreme right wingers. The judges themselves can't be characterized as non-activist conservatives. Or even conservatives. I would think a conservative would be embarrassed by the association.

Excuse the bleg, but could someone post a list of precisely which judges are at issue? I have an idea of most of the names, but it would be nice to see it confirmed. Thanx

Surely the reason cases about implicit state endorsement of a religion have come up more recently and have been decided differently than they might have been in the past has more to do with cultural and demographic changes than with power grabs by activist judges. It's no longer possible to pretend that every American is Christian except for a handful who can safely be ignored.

Times have changed, and I don't understand what Sebastian's answer is. What do you say to the Wiccan who wants to give the opening prayer, or the Scientologists or Moonies who want to funding for their faith-based initiatives? I don't see what the solution is other than strict separation of church and state.

LJ: are you asking about the judges S. finds objectionable?

Sebastian: I genuinely believe in not having judges just make stuff up. I also accept a different view of interpretation than you do, which leads me to think that there are various circumstances in which judges need to clarify the law when some new circumstance arises and it's unclear whether it's covered or not, or when one needs to make some term in existing law precise. (E.g., giving a precise definition of 'search' in the 4th Amendment.) This means that I regard some things that you regard as unconscionable activism as perfectly OK interpretation. This is so whether I agree with the decision or not.

I also think there's a difference between what I've just described and real judicial activism. And one of the reasons I oppose some of Bush's nominees (the ones the nuclear option is about) is because I think they are very much on the wrong side of that line. I don't follow the law in nearly enough detail to say, but my sense is that for, oh, a decade there has been more activism on your side than on mine.

Example: the idea of reinterpreting the ban on taking people's property without compensation to cover any government action that makes someone's property worth less. I think this is obviously, flatly not what "nor shall private property be taken for public use, without just compensation" means. Moreover, I think it's a huge change in the law that would have huge consequences, and it's not legislators who are pushing it through.

LJ: are you asking about the judges S. finds objectionable?

Yeah-ish. It just seems that there is a list of judges that we all seem to be talking about, so it would be good to formally set down the names and agree that these are the ones (or shouldn't be the ones if you are looking at this the other way). Even if someone else put down the list and Seb said 'no, s/he doesn't count because...' then I think the debate might be a little more useful.

"Example: the idea of reinterpreting the ban on taking people's property without compensation to cover any government action that makes someone's property worth less."

Sure, but the legal context this comes up in is cases like that involving the involving Lake Tahoe, where there has been a 'temporary' ban on land development for almost 20 years. So we really aren't talking about just any government action. We are talking about government action to make your land completely worthless for decades, with no end in sight.

"It just seems that there is a list of judges that we all seem to be talking about, so it would be good to formally set down the names and agree that these are the ones (or shouldn't be the ones if you are looking at this the other way)."

I'll take the pressure off and go historical. I think Brennan and Marshall were two highly celebrated but deeply activist judges. They were regularly willing to ignore the history and text of various acts or Constitutional clauses to get their desired results. The 9th Circuit judges who voted that there was not personal 2nd amendment rights are activist judges. The Supreme Court acted in an illegitmate and activist manner by pretending that the any of A) the history, B) the Constitutional precedent or C) the text of the Constitution forced them to rule that 16 and 17 year old murderers could not be executed. In both cases, the judges go against clear precedent, clear history and clear text to get what they want--and the left cheers them on.

I think Brennan and Marshall were two highly celebrated but deeply activist judges.

Please be sure to bring that up during their confirmation hearings. For now, it would probably be better to answer the question at hand.

I'll take the pressure off and go historical.

Take the pressure off who? ;^)

But seriously, I certainly don't have to background knowledge of law to be able to anything but marginally debate Brennan and Marshall (though I did have a string of three girlfriends who were both Catholic and lawyers, and I wonder if marrying a Japanese woman was an attempt to make sure that it would be someone outside of those two sets) This is not to say that I have a better knowledge of the ones at issue today, but arguing about Brennan and Marshall is a bit like arguing about who was the greatest pitcher of all time.

Is there any question about the greatest pitcher of all time being Roger Clemens?

hmmmmmm

Huh. My comment reads much more hostilely than it was intended. All I meant was that the thread is sure to degenerate if we get caught up in historical tangents or discussions of the evolution of jurisprudence -- because it always does -- and it might be better if you just stuck to the present topic because that way we might accomplish something. Sorry about that.

You know, expanding on what KCinDC said about changing social and demographic context, and in re: the specific matter of "under god" in the Pledge of Allegiance, it's rather disingenuous to suggest that everything is the fault of them bad ol' Activist Judges. The fact is that the action was pretty clearly unconstitutional when it was taken; there's nothing in the language, precedent or history of the Constitution that gives Congress the authority to take a nonreligious thing, add a religious meaning to it at the specific behest of a religious group (the Knights of Columbus) for specifically religious reasons (to distinguish Good, God-Fearing Americans from Godless Communists and root out the bad ones from our culture). Had the atmosphere not been what it was then, the action might have been challenged at the time, but it wasn't.

The 9th Circuit judges who voted that there was not personal 2nd amendment rights are activist judges.

While I agreee that there is a personal 2nd Amendment right, I'm not so sure that there's a lengthy history of Supreme Court jurisprudence that suggests so. In fact, I'm pretty sure there's not, which is part of the problem.

Sorry; been away. You make good points, CharlieCarp. regarding SA. I think that it'd be best for me to think on this a bit longer.

Hal: I'm certain there are wacko lefties, but I'm really getting sick of this characterization that it is equal and opposite. I just don't see it, Von. I just don't see it at all.

Paper mache heads, ANSWER, crackpot conspiracy theories, calling for the assassination of the President of the United States, threats of secession, scrotal inflation(!?!), moveon.org, 'I hate Republicans and everything they stand for,' Daily "screw 'em" Kos ... you don't have to look far.

Might I just point out how surreal it is that a bunch of judges are considered to be the bulk of the wing nut contingent of the left wing. It's not a bunch of whacked out hippies with "bong resin dripping from their chin" (thanks for the imagery, Jonah). It's a bunch of men and women (almost entirely the former, it appears) who are well past middle age who, by almost all standards, have nothing even approaching bong resin dripping off their chin. And certainly are not by any reasonable metric classifiable as wing nuts.

Yet, this is the left wing nut brigade that Von seems so hell bent on keeping in check and that Sebastian is busy railing against.

Just got to say that the whole system of metrics has gotten completely out of whack to be at this point.

Hal
I don't think it is fair to claim that von/b> is 'hell-bent' on that particular issue. In fact, I don't believe that von has particularly weighed in on the issue of activist judges as a central issue, though I may be wrong.


My kingdom for a missing tag!

Achillea: quaint. Being against policies does not classify one as a wing nut. Scrotal inflation enthusiasts aside, I don't even think ANSWER is in the same league as - say - focus on the family or any of the zillions of right wing Christian organizations calling for the heads of judges. I'm sure you can dig up some tired old communist sympathizer who may have written something calling for GW's head on a stick, but even the FBI has concluded that left wing extremists are pretty much gone now that the Soviet Union has kicked the bucket. What's left is the increasingly violent right wing. And I guess everyone has forgotten the whole Vince Foster bit that played out in our nation's media.

But I do find it extremely funny that merely being against GW and his policies is considered radical and "wing nuttery". It's a great sleight of hand. Everyone who's against you must be a nut.

Me, I just find people who call for mass impeachment of judges, the mass interment of people by race, the heads of those who practice legal abortion and those who call people who are against policies traitors - well, those are the "wing nuts".

Quaint idiots who inflate their scrotal sacks with saline are indeed nuts, but I don't think politics has anything to do with their condition.

LJ: Well, it's a matter of deductive logic. The things that Von seems to rail against seem to be solely in the realm of what Judges are doing, or what Senators are doing (i.e. the fillibuster). So, if Von is railing against this definition of left wing nuttery, he must be railing against Judges and Senators.

Either that, or he's railing against a phantasm of the wing nut left.

Or maybe scrotal sack inflators - but that seems unlikely.

SH, you really don't want to get into the TRPA litigation. As one who has followed the twists and turns of that story very closely, i can assure you and the readers here that a vast majority of the "delay" is due entirely to the obstructionist actions of the plaintiff landowners.

the story in a [tiny] nutshell -- Lake Tahoe is extraordinarily clear. It also straddles the state line between nevada and california. In order to prevent burgeoning development from ruining the lake forever, there has been a multi-decade process of creating an interstate compact, vesting the authority created by the compact with land use powers, having the authority study how to permit development in a way that would not result in the ruination of the lake, and allowing that development to proceed. The very long and short of it is that certain landowners of very sensitive property were banned from ever building and were given transferable development rights instead. While the ban was a taking, the tdrs were adequate compensation. but every single step was ferociously litigated, sometimes resulting in multi-year stays of the process.

the activism, to the extent there was any, was to be found in Congress in creating the interstate compact.

oooh those wacky judges makes for an easy post, but frequently not an accurate one.

Francis

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