Bye Bye!

by hilzoy

From the AP:

"In a concession to the Senate's new Democratic majority, President Bush won't rename four controversial federal appeals court nominees whose confirmations were blocked last year, Republican officials said Tuesday.

William Haynes, William G. Myers III and Michael Wallace all asked to have their appointments withdrawn, these officials said. Judge Terrence Boyle was informed of the White House's decision, according to an ally.

Haynes is the Pentagon's top lawyer, and was an architect of the Bush's now-abandoned policy toward treatment of detainees in the war on terror. He had been tapped for the 4th U.S. Circuit Court of Appeals."

Oh deary me, I am so very very sad that I won't have to write any more posts about how unbelievable it is that anyone is even thinking of putting William Haynes on the federal bench! Great big tears of joy sorrow are streaming down my face, streaking the black silk mourning-cloak I have put on for the occasion, and moistening the shards of what was once my heart so that they glisten in the moonlight. Woe is me!

Consider what creativity and imagination our federal judiciary has lost. William Haynes, who has graduated from a law school and has therefore presumably heard of the separation of powers. But did he let a minor detail like that cramp his creativity? No. Instead, he wrote this (pdf):

"In light of the President's complete authority over the conduct of war, without a clear statement othkvise, criminal statutes are not read as infringing on the President's ultimate authority in these areas."

And this:

"In order to respect the President's inherent constitutional authority to manage a military campaign, I8 U.S.C. g2340A (the prohibition against torture) as well as any other potentially applicable statute must be construed as inapplicable to interrogations undertaken pursuant to his Comander-in-Chief authority."

Thus do great souls shake off the shackles of convention! Thus do they show their disdain for the rabble and its weakminded sklavenmoral! To think that such a great artist, willing to make the Constitution over in his own image and place his own stamp on all our laws -- a maker, not a mere interpreter -- is lost to us forever: it's enough to make a girl clutch her pearls to her bosom and reach for her smelling-salts.

But the worst blow of all is this: never again will I have occasion to cite Haynes' brief in Center for Biological Diversity v. Pirie. (This wondrous case seems to have disappeared; it is described here.) Here's how I described Haynes' arguments the last time I brought this up:

"In this amazing brief, Haynes argued that bombing a nesting site for migratory birds would benefit birdwatchers, since "bird watchers get more enjoyment spotting a rare bird than they do spotting a common one." Moreover, he added, the birds would benefit as well, since using their nests as a bombing range would minimize "human intrusion". The judge's comment on this novel line of argument: "there is absolutely no support in the law for the view that environmentalists should get enjoyment out of the destruction of natural resources because that destruction makes the remaining resources more scarce and therefore more valuable. The Court hopes that the federal government will refrain from making or adopting such frivolous arguments in the future." (pp. 27-8)"

How many people would have the imagination, the reckless joie de vivre, to argue that bombing birds benefits them by minimizing "human intrusion"? And what am i going to do for laughs when I don't have William Haynes to kick around any more?

I think I'll have to take to my bed and sink into a decline. Wake me up if Janice Rogers Brown decides to retire.

Comments

[Steve]

These are, or were, the four most controversial nominees. This is an impressive gesture, although not as big as dumping Rumsfeld was! I hope the Democrats will reciprocate and be fair about considering the remaining not-so-awful nominees.

I don't think we ever solved the mystery of Michael Wallace, and now maybe we'll never know. Although his background seems normal, he was unanimously rated "unqualified" by the ABA panel - and even though the ABA is derided as a "liberal" organization, a unanimous vote suggests members of all stripes had reason to feel strongly. But they never disclosed the reason, and without a confirmation hearing, maybe we'll never know. Unless it was publicized at some point and I missed it!

[Bernard Yomtov]

I think I'll have to take to my bed and sink into a decline.

I think the proper phrase is "take to my downy couch."

I have no other disagreements, though I would like to note that Haynes' bird-watching logic likely fails even on its own absurd premises.

[lily]

We need to be careful about the so-called property rights activist judges. It's a sleeper issue, but the potential for harm is very real. I'm glad Myers is gone, but I also sure that Bush will just try again to slip someone just as extremist in under the radar.

[Anarch]

How many people would have the imagination, the reckless joie de vivre, to argue that bombing birds benefits them by minimizing "human intrusion"?

It's much the same way that I'm grateful for the Holocaust since it makes my Jewish friends so much more valuable.

[Jesurgislac]

Steve: I hope the Democrats will reciprocate and be fair about considering the remaining not-so-awful nominees.

I hope the Democrats will not think they have to reciprocate because Bush has dumped the candidates he couldn't push through without Republican control of Congress. Why should they? Presumably, they can now decide on Presidential nominees on their merits, if any, rather than having to to go with the least-awful choice, if any.

[Donald Clarke]

Err, there is a little bit of logic in the nature preseve argument. IIRC the most natural and unspoiled area of Korea is the DMZ. The fences and minefields strongly discourage human activities, so the wildlife is doing fine (they probably do not weigh enough to set off the mines).

Note, I am not defending these judicial candidates and am happy to see them go. I just wanted to point out that military activities can have unexectedly beneficial side-effects, and that the fact that a person may be wrong on many issues does not mean he is wrong on every issue.

Donald Clarke

P.S. I am also not suggesting we start laying minefields in wildlife preserves, even though it might help the wildlife by keeping people out :) .

[cleek]

they probably do not weigh enough to set off the mines

or, in evo-bio terms: the environment in the DNZ is strongly selecting in favor of lightweight terrestrial animals.

if we could just leave the mines there for a few dozen millennia, maybe we could see the evolution of super-light deer, or caribou that can detect mines through scent.

there's always an upside.

[Steve]

The fences and minefields strongly discourage human activities, so the wildlife is doing fine (they probably do not weigh enough to set off the mines).

It occurs to me that bombs, of the type typically exploded in a bombing range, might alter the equation a bit.

[Cryptic Ned]

Ah, the homeopathic theory of environmentalism.

If we cut the Amazon rain forest back to 1 acre, imagine how valuable it will be and how much people will love it!

[John Thullen]

It is a well-known fact that canaries, acting in their own rational self-interest, seek refuge in coal mines, even consenting to confinement to a cage in the dark.

They know that aligning their self-interest with the self-interest of the human coal miners assures that everyone will be careful about those fatal gas leaks.

Sometimes, however, even rational canaries get fooled, especially when the mine-owners decide that canaries add to regulatory overhead costs. After all, vulture investors, the smartest shareholders of all, require that their meat be dead before consumption.

So, the mine owners and the vultures combine their self-interests and elect folks who will look after them and only them. They don't need no stinking canaries.

Then, you have a guy like Haynes who gets put in charge of the Scarce Canary Project. You ask him: where have all the canaries gone? He smiles wanly and you wonder why there is a single yellow feather floating to the ground beside him.

From inside Haynes mouth you hear the sound of a match being struck by a budgie standing on his tongue and a muffled, high-pitched voice declaiming: "I tauwght I tawe a pussy cat!"

From then on the miners and the vultures place a sign in the workers' canteen at the mine that reads: "You may think the caged bird sings for thee, but if I were you I'd put down that sandwich, hold my breath, and get back to work."

Haynes swallows and adds cheerfully: "Oh, sure, go ahead and call the NMSB and OSHA. They don't know canaries from vultures hnynh hyuh, he he, ho ho, ha ha ha. Besides, we moved the canaries to the bombing range, where they will more fully realize their intrinsic value."

[hilzoy]

John: I bow down in awe.

[Donald Clarke]

I guess it did seem like a funny idea, but I really wasn’t kidding about the DMZ.

From the National Geographic

…“On a peninsula that’s suffered incredible environmental decay, you have an area that’s gone untouched for 45 years now,” says Carroll Muffett, international counsel for Defenders of Wildlife. “One area of particular interest for us is the Asiatic black bear, which is critically endangered wherever it occurs in Asia.”

Heavily exploited in traditional medicine markets and for such products as bear paw soup, black bears have largely disappeared in South Korea, according to Muffett. “The DMZ may be one of the few areas remaining where any significant populations are left.”

Residents of the DMZ and its civilian-controlled buffer zone also include two of the world’s most endangered birds, which use the strip as wintering grounds: the white-naped and red-crowned cranes. Other endangered fliers that make their homes among the landmines seeded throughout the zone are the Chinese egret, black-faced spoonbill, swan goose, and spotted greenshank.

More than 51 species of mammals have been documented scientifically, including rare and endangered animals thought to have been wiped out elsewhere in Korea. Some scientists even believe they have found traces of leopard and a Korean subspecies of the Siberian tiger. Occasionally an animal—especially the abundant mule deer—trips a landmine and is destroyed. But in an area where humans rarely dare to go, those with paws and fur are largely left to themselves.

Elsewhere in the South, by contrast, rapid economic and urban development has led to extensive environmental degradation, with accompanying air and water pollution. Many plant and animal species have been exterminated or are in collapse. On both sides of the border, hillsides have been stripped of vegetation, causing erosion and floods.

DMZ Forum, an advocacy group headed by Kim, estimates that more than 20 percent of South Korea’s terrestrial vertebrates—including 48 percent of reptiles and 60 percent of amphibians—have been destroyed or are under severe threat. The group predicts that with the human population continuing to soar, further development will intensify environmental damage.

http://news.nationalgeographic.com/news/2000/06/0623_korea.html

http://edition.cnn.com/2003/WORLD/asiapcf/east/08/22/korea.bio.dmz/

Bombing ranges are definitely more problematic, but properly managed even they could be useful. A bombing range is not entire area of ground that is regularly plowed up with explosives. There is an impact area, and there is a buffer area around it to keep people away. Bombs cost too much for the military to drop them every day in practice. Whether the risks of being bombed outweigh the problems of human encroachment depend on the situation, but it isn’t quite the open and shut case that it might seem at first glance. In some cases, they could even be beneficial. See the case of the pronghorn antelope on Goldwater range.

Hervert noted the pronghorns disproportionately favor the Air Force's north and south tactical ranges, where bombs tear up creosote, a plant that hinders the pronghorns' ability to see predators. The bombs, other munitions and flares also gouge out craters that hold rainwater and foster growth of plants the animals favor.
"In doing their job, they've created habitat that is attractive to the animals," Morgart said.

http://www.globalsecurity.org/org/news/2003/031019-goldwater-range.htm

Again, I am not defending Haynes or any of the others, and am happy to see them go away from even a potential appearance on the federal judiciary. I am just pointing out that, odd as it may seem, military activities are not always harmful to wildlife, especially when they serve top minimize any other human interference.

Donald Clarke

[Andrew]

Speaking from personal experience, ranges are always packed with wildlife. Blackwell Range at Fort Hood, an M1A1 range, has some endangered or threatened bird living downrange. It was quite a nuisance a few years back when we started a fire and had to rush downrange to protect the sanctuary.

[Slartibartfast]

If you want to see what a range looks like, go into Google Earth and type in "34.856N 117.757W"

That whole area is a bombing target; the targets are the circular areas. You could also go visit White Sands Missile Range, which is huge and full of wildlife. Maybe rather less full of wildlife than pristine desert, but rather more full than pristine desert that was wide open to hunting.

Usually, bombing ranges have specific targets that you're supposed to get reasonably close to. Dropping ordinance in random places is pretty useless for training purposes.

[John Thullen]

Donald (especially) and Andrew and Slart, this is all very cool stuff. I love it when life turns out to confound all preconceived notions in its relativistic maneuverings.

I counterintuited that the legislative strategies of environmental activists have been wrong all along. Instead of requesting additional wilderness be set aside, they should have just used a little savvy and gone before Richard Pombo and company and requested more space be set aside for bombing ranges and missile testing.

What's weird about this is that picnickers see a sign that says "Bombing Range" and they run the other way. But they continue to picnic and rebuild in Beirut and Bosnia and Northern Ireland.

I wonder if 9/11 caused a spike in the coyote population in the streets of lower Manhatten? Maybe Bin Laden was just providing wildlife habitat.

It is odd, too, that we are told not to pollute the oceans because we are losing sea life and the reefs, and then they sink an entire aircraft carrier in the ocean, which attracts and coddles the very life that we otherwise destroy.

This would explain why, after I buried those land mines in the backyard, I have a surfiet of squirrels, badgers, skunks and voles living there, but the neighbors, coincidentally, won't let their kids over to play.

If peace ever comes to the people of Korea and we can make the DMV useful for human habitation again and strip malls, we should appoint Kim Il Jung as curator of the National Zoo. And call a vivesectionist! Ann Coulter will have two things to crow about.

Wait until Ted Nugent finds out about the environmental positives of bombing ranges and missile testing sites. I'm going to tune into his cable show for the fireworks.

I suspect the polar bears are packing their seal jerky as we speak and setting out for the nearest navigable bombing range.

Sorry, my brain's convolutions coil around the world's convolutions in a twisted way.

Maybe Bush should go before the American people tonight and win them over with the slogan: "The War in Iraq -- The Key to Wildlife Protection."

[John Thullen]

"DMV useful for human habitation..."

Could we cut the waiting in line times, too, please?

[KCinDC]

Another person to whom we must wave a sorrowful goodbye.