BeldarBlog

Beldar handicaps Perry vs. Hutchison vs. White

Beldar — 2010-02-05T21:02:08-06:00

Regarding Glenn Reynolds’ item, linking a Los Angeles Times blog post, about a new Rasmussen Reports Poll suggesting that in the 2010 Texas gubernatorial race, either incumbent Rick Perry, retiring U.S. Senator Kay Bailey Hutchinson, or self-identified Tea Party supporter Debra Medina would defeat the likely Democratic challenger, Bill White:

It’s way, way too early to handicap the final Texas gubernatorial race with any confidence. But for now, as I see it, the two big questions are:

Will the Hutchison/Perry mud-slinging during the GOP primary seriously damage either of them in a way that affects the general election?

— and —

Will Bill White’s success as Houston’s mayor permit him to dodge his eventual GOP opponent’s efforts to tar him as just another tax-and-spend liberal Democrat who would be a close ally to President Obama and the national Democratic Party leadership?

(I mean no offense whatsoever to Ms. Medina, and I am, in general, very sympathetic to the concerns raised in the various Tea Party protests around the country. But both Hutchison and Perry will work very hard, during the primary and, for the winner, after, to lure those voters. Perry in particular is already emphasizing his non-Washington status. I expect either of them will adequately co-opt those voters, such that a newcomer like Ms. Medina is not likely to have much more than a symbolic and incidental effect on the Texas GOP primary or the general election in November.)

Although he's unconventional in many respects, Bill White is the most viable and attractive candidate the Dems have run for any state-wide Texas office in quite some time. I know Bill reasonably well: He was the editor in chief of the Texas Law Review in 1978-1979, one year ahead of the editorial board on which I served. A few years later when I was at Baker Botts, I was heavily recruited by him and his then-law partners at Susman Godfrey. I like him and I respect him. Bill is industrious and just wicked smart — as smart as anyone I’ve ever met, period.

Had he not been term-limited, and had he wanted another term, there is no doubt at all that Bill could have been re-elected as Houston’s mayor again by another overwhelming margin. I’m not one of the local politics mavens who bird-dog every City Council meeting, and Bill’s performance as mayor generated serious critics whose opinions I also respect. But I’ve never known him to be, nor seen any credible accusation that he is, anything less than basically ethical. I think he’s used carrots more than sticks as mayor, but with no more larceny in the carrot-distribution than what's probably the necessary minimum. Compared to, say, Chicago, Houston’s local politics are still amazingly nonpartisan and usually even non-controversial; there’s a positive passion for “business as usual” here in a city of amazing opportunity, and a mayor who can preside as a reasonably good steward over that process, without screwing up too obviously, will end up looking pretty good in hindsight. Bill certainly at least met that low hurdle. But in particular, Bill ended up looking both competent and compassionate in the recent Gulf Coast hurricanes — both as the leader of an involved civic neighbor during Katrina and, even more dramatically in contrast to New Orleans’ awful leaders, as the guy on the hot seat during Ike.

White is not a natural politician by any means — he’s utterly lacking in the slick charisma that Bill Clinton sweats and breathes, and his wonky professorial streak isn’t mixed with the same arrogance that Obama exudes. He still has a boyish directness that’s quite disarming — and it’s helped him translate his lack of political slickness into a net-positive feature for his successful mayoral campaigns.

Thus, I’m one of many conservative and Republican Houstonians who happily voted for Bill for mayor twice. I wish him well in life. I’m grateful for the good he’s done. Yet I will not vote for him for any state-wide or national office — precisely because he is indeed a devoted member of the Democratic Party.

White was a cabinet undersecretary (Energy) in the Clinton Administration, and he’s now running for a place on the political ticket (Dems) that hasn’t won a contested race in a Texas state-wide election since the early 1990s. I believe he’d govern as a progressive Democrat at either a state or national level, in a way that Houston’s local politics simply wouldn’t have permitted him, or anyone, to do as mayor. And I just have no confidence that he would — or would even want to — stand up against the leaders of the national Democratic Party; I just can’t see him defying the national party line on anything important.

Perry and Hutchison both have had extremely broad support — translating to easy victories — in their past races, but I don’t think either of them has a fraction of the depth of support that Dubya had when he was in the Texas Governor’s Mansion (or the White House, for that matter). And both Perry and Hutchison have done a good job at identifying the other’s most likely Achilles heel — Hutchison claiming that Perry’s too close to lobbyists and particular business interests, Perry claiming that Hutchison has become too much a Washingtonian and one of those GOP incumbents who were fiscally irresponsible to the point of recklessness. Both positions are caricatures, but the point of caricatures is that they rely on (and simply exaggerate) definitive, if superficial, features. The problem for Hutchison is that right now, most Texans probably hate the idea of federal spending more than just about anything, and certainly more than they hate mere lobbyists.

The Perry/Hutchison brawl, while enthusiastic and probably sincere from both sides, strikes me as something akin to a brouhaha over whether the S.M.U. Pony Band unduly insulted the Fightin’ Texas Aggies or their mascot during a college football halftime performance. If you're not heavily invested in either camp, the fight's entertainment value begins to fall off pretty sharply pretty soon. If conservatives are looking for targets to demonize, there are lots better ones around than either of these two — both of whom can legitimately claim to have reliably served most of their constituents quite satisfactorily in most respects, as reflected by the fact that they've both had easy re-elections. I suspect that most Texas Republicans wish they’d both shut up and just flip a coin tomorrow to decide which one will pull out of the primary. At least, that’s pretty much the way I feel. But some of the mud will probably stick, certainly enough to cost the eventual GOP nominee a few points in the general election — and that’s damned unfortunate, but I doubt it will be determinative.

Texas wasn’t totally immune to The One’s hopey-changitudinosity in 2008 — Obama didn’t do badly at all in Harris and Dallas Counties, for example, and had enough coat-tails to help Dems win a surprising number of local offices in both. But the bloom and its fragrance, real or imagined, is decidedly off that flower now. I don’t think even Karl Rove — whom Dubya reportedly nicknamed “Turd Blossum” for his ability to make political miracles from a stinky, messy situation — could turn an Obama connection into a political plus in Texas today.

I don’t mistake White’s lack of conventional political charisma as being political naïveté, and indeed, I suspect he can be adequately ruthless. But I doubt that ultimately he will be able to overcome the label of his party and the implied associations with Obama, Pelosi, Reid, Dean, Dodd, Frank, etc. — not in a big-money campaign against either Perry or Hutchison. Even with a positive record as Houston’s mayor to capitalize on, I just don’t see him generating the image of independence and strength that he’d need to run convincingly away from Obama. And on substance, even if he runs as what Dems would consider a “Blue Dog,” with a “conservative-light” platform that pretends allegiance to fiscal discipline and entrepreneurial values, there will still be plenty of issues on which he’s compelled to keep to the Left — among them social issues like abortion and gay marriage — that are still hot-buttons for some Texas conservatives and even some independents. (And yes, there are at least some of the latter; they're the ones who put Ann Richards into the Governor's Mansion after her ill-starred GOP opponent, Clayton Williams, fed her the ammo to paint him as a sexist good-ole-boy in 1990.)

So if forced to guess today — that’s what Professor Reynolds did with his post, he’s practically forced me to blog again with this early February guess about a November election! — my best guess is that the general election will come down to a somewhat weakened Perry, who will still overcome a White who can’t quite disassociate himself adequately from Obama and the national Dems.

Blame where due

Beldar — 2009-10-02T12:14:30-05:00

Of course, it's entirely George W. Bush's fault that Chicago didn't get the 2016 Olympic Games.

*******

UPDATE (Fri Oct 2 @ 12:32 p.m.): I wrote the one-sentence post above as a joke, based just on reading a news headline on my Blackberry over lunch. But when I turned to the New York Times' report on the International Olympic Committee's decision — which reportedly left the U.S. bidders "stunned" and refusing comment, Chicago having been considered "a favorite" and certainly unlikely to be eliminated in the first round of voting — I found that our chattering classes are already hard at work laying the groundwork for the finger-pointing that I thought would be only parody (italics mine):

The 10-person Chicago bid team, led by the president and Mrs. Obama, put on a presentation heavy on emotion and visual images without getting too deep into he details of the bid.

“To host athletes and visitors from every corner of the globe is a high honor and a great responsibility,” Mr. Obama whose Chicago home is a short walk from the prospective Olympic Stadium. “And America is ready and eager to assume that sacred trust.”

In the official question-and-answer session following the Chicago presentation, Syed Shahid Ali, an I.O.C. member from Pakistan, asked the toughest question. He wondered how smooth it would be for foreigners to enter the United States for the Games because doing so can sometimes, he said, be “a rather harrowing experience.”

Mrs. Obama tapped the bid leader Patrick G. Ryan, so Mr. Obama could field that question.

“One of the legacies I want to see is a reminder that America at its best is open to the world,” he said, before adding that the White House and State Department would make sure that all visitors would feel welcome.

And from the Chicago Tribune's telling of the same tale (italics again mine):

The city's presentation ended at 2:52 a.m., with President Obama answering a final question from the floor.

The question: Sometimes foreigners entering the United states can go through a rather harrowing experience. With the influx of so many thousands of people during the Games period, how do you intend to deal with this?

Obama responded: "One of the legacies I want to see is a reminder that America at its best is open to the world."

He pledged the "full force of the White House and the State Department to make sure not only that these are successful Games but that visitors all around the world will feel welcome and will come away with a sense of the incredible diversity of the American people."

Perhaps with the Bush administration in mind, he added: "One of the legacies, I think, of this Olympic games in Chicago would be a restoration of that understanding of what the United States is all about and the United States' recognition of how we are linked to the world."

Yes, in the Gospel According to Barack, all in America before The One was darkness and evil, but now all is hopey-changitudinous goodness. Even direct intervention by The One Himself wasn't enough to overcome the lingering poison of Boooooosh!

From the first NYT article quoted above, however, we can find an entirely sufficient factual rebuttal to this particular "Blame Dubya" argument: "New York’s bid was eliminated in the second round of voting for the 2012 Olympics." Even in 2005, then — post 9/11, with Dubya still at the helm nationally, and with both Hillary Clinton and Michael Bloomberg leading the presentation — the U.S. fared better in the I.O.C.'s deliberations, at least making it to the second round of voting.

UPDATE (Sat Oct 3 @ 7:45 a.m.): One of Rich Lowry's email correspondents complied a fabulous "Top Ten" list of reasons why Chicago didn't get the Olympics, and guess what's Number One? Elsewhere, InstaPundit links Dana Loesch, who links CMR.com quoting disgraced U.S. Senator Roland Buris as saying "that the image of the U. S. has been so tarnished in the last 8 years that, even Barack Obama making an unprecedented pitch for the games could not overcome the hatred the world has for us as a result of George Bush." Examiner.com also attributed the same statements to Burris, but someone on Burris' staff had the good sense to scrub the Bush-blaming from his official press release congratulating Rio de Janeiro for winning the competition. (Jokingly or not, the WaPo's Dana Milbank in turn blames ... Burris!)

NY appellate court throws Gunga Dan vs. CBS lawsuit out of court in its entirety

Beldar — 2009-09-29T20:20:45-05:00

Just before last Christmas, in my most recent post about Dan Rather's much-publicized lawsuit against CBS, I explained that CBS' lead lawyer — my former law partner Jim Quinn — was operating under an unfortunate set of circumstances, as a result of which it was virtually certain that the case wouldn't shed any further or more definitive light on the Ra^thergate saga:

The problem ... — as I noted at length when Rather first filed his case, here ["The complaint that Sonnenschein's New York office has filed on Dan Rather's behalf ... is a nicely buffed and polished piece of garbage"] and here ["individual decision-makers within CBS may have overwhelming vested interests in ensuring that the facts are not thoroughly probed in court"] — is that Quinn's hands are effectively tied by the fact that his client was spectacularly gutless in its dealings with the psychotic prima donna who for so long occupied its anchor chair. Quinn's defense for CBS News won't be that Rather and Mapes and their entire team were incompetent, biased frauds who committed the worst kind of journalistic malpractice to change the outcome of a presidential election and then, when caught, tried to cover it up. CBS had ample, compelling, even glorious "good cause" to fire Rather no matter what time term remained on his contract or what other terms it contained to guarantee his preeminence at the network.

But CBS didn't do that. Instead, it convened the Thornburgh-Boccardi Panel, whose ultimate report was far from a bare-knuckled or clear-eyed assessment of the culpability of Rather and CBS News' top brass. CBS News eased Rather out, rather than immediately throwing his sorry butt on the street.

And now, instead of defending itself against Rather by using the awesome mechanisms of the law to prove, once and for all, the essential truths of Ra^thergate — including the indisputable fact that the Killian memos were pathetically obvious forgeries — CBS News' defense is not that Rather is a crazed scoundrel and a national disgrace, but that CBS fully performed its contractual obligations to Rather.

When I wrote that, Quinn had already persuaded the trial judge in New York state court to throw out major portions of Rather's claims without letting them go to a jury trial. New York procedural law permitted Rather to appeal that partial victory by CBS, and for CBS to cross-appeal the trial judge's refusal to throw out the rest of the case. Today, the intermediate New York appellate court, known as the Appellate Division (First Department), turned the trial judge's knockdown into an outright knockout — agreeing with Quinn (and Weil Gotshal & Manges partner Mindy J. Spector and associate Yehudah L. Buchweitz) that all of Rather's claims must be thrown out without a trial.

The 19-page opinion is dry and dull, which I'm sure is exactly what CBS and its lawyers preferred. After its introductory paragraphs, it contains essentially nothing about Bush, the Killian Memos, or the Ra^thergate controversy. Instead, the appellate court systematically demolished each of Rather's contract and tort claims, one after another, on what appear to be solid if unexciting grounds compelled by prior New York state-law precedents. At bottom, the appellate court concluded that it is indisputable that CBS lived up to its contractual obligations, and likewise indisputable that Rather couldn't show any damages of a sort recognized by New York law.

(Prof. Reynolds again justified his net moniker when he linked Volokh conspirator Jim Lindgren's post on the ruling with the summary "Loser Loses Again." Yes, that's it, in exactly three words.)

Rather's lawyers will doubtless seek rehearing in the Appellate Division, and when that is refused, they'll seek further review by the top appellate court in the New York state-court system, the New York Court of Appeals. I haven't read all of the briefing that led up to today's decision, and the briefs attacking and defending it haven't been drafted yet, but my educated guess at this point is that today's ruling will almost certainly hold up.

Thus (probably) ends the only lawsuit that could, under different circumstances (i.e., if CBS hadn't been so gutless), have given Dan Rather the thorough-going and definitive public crucifixion that he so richly deserved. I'm certainly not displeased to see my former colleagues so decisively win this case even before it went to trial, and I'm happier still that Rather undoubtedly spent a decent-sized fortune on paying his own lawyers. But as with the near-contemporaneous SwiftVets controversy from 2004, I'll always wish there had been an opportunity for the underlying facts to have been thoroughly and methodically probed through the civil justice system — by well-resourced and highly motivated parties, well-represented by superb counsel, each armed with the power to compel the production of documents and testimony, all under oath and in the harsh disinfecting glare of open court proceedings. John Kerry never made good on his or his surrogates' threats of litigation, and the target of Rather's malice, President Bush, would never have sued Rather, Mapes, or CBS even if their conspiracy had succeeded in tipping the election.

Sound arguments can be made that — my appetite for courtroom combat notwithstanding, and my belief that the civil justice system could have produced numerous significant "Perry Mason moments" in both — it's for the best that these two national controversies largely remained political, rather than spilling over into the courts. In any event, as the current publicity over Roman Polanski's re-arrest and possible extradition proves to all who have any moral compass whatsoever, there's a portion of the American public, mainly on the American left, who will essentially ignore even a sworn in-court confession by a monster who drugged and then raped (vaginally and anally) a child. Similarly, not even Rather or Kerry 'fessing up under oath could have persuaded some, or perhaps most, of the Bush-haters, because they long since had stopped being amenable to any evidence or any rational argument.

In the Obama Administration, closing "Guantanamo was everyone's part-time job"

Beldar — 2009-09-25T01:22:14-05:00

If you need another reason to question the Obama Administration's basic ability to provide the single most important function of the federal government — keeping America safe from foreign enemies — read this WaPo story.

The Spin

True to form, the WaPo's writers and editors carefully withhold the screamingly obvious judgment that drips from the facts they report, and indeed, they try hard to spin things in a pro-Obama way. Thus, the article starts with a gentle bit of chin-rubbing:

With four months left to meet its self-imposed deadline for closing the U.S. military prison at Guantanamo Bay, Cuba, the Obama administration is working to recover from missteps that have put officials behind schedule and left them struggling to win the cooperation of Congress.

Mere "missteps" — does that kind of imply something mild, like an uneven sidewalks problem? Well, back in WW2, the good soldiers of the American military came up with an acronym for the kinds of "missteps" described in the WaPo article: "Let's recover from this situation," our soldiers would say very politely, "because at present, the situation is FUBAR'd." In this exact same sense, the Battle of the Bulge was a "misstep."

The facts reported by the WaPo go on to show that when the White House senior officials acknowledge that they're "behind schedule" on closing down Gitmo, that's actually a nice euphemism for "everything's totally screwed up and there is no actual 'schedule,' just a ridiculous, arbitrary deadline that's going to be missed and that may never be met at all, ever."

And as for the "struggle for cooperation" with Congress — wouldn't "struggle" imply something whose outcome was at least close? Readers have to dig down to paragraph 24 to be reminded that "in May, the Senate decided, by an overwhelming vote of 90 to 6, to block funding for shutting Guantanamo Bay — Obama's first major legislative setback as president."

The Fall Guy Goes Under the Great Bus of State

The WaPo gamely repeats — without comment or the Bronx cheers it actually deserves — White House counsel Gregory B. Craig's insistence that

some of his early assumptions were based on miscalculations, in part because Bush administration officials and senior Republicans in Congress had spoken publicly about closing the facility. "I thought there was, in fact, and I may have been wrong, a broad consensus about the importance to our national security objectives to close Guantanamo and how keeping Guantanamo open actually did damage to our national security objectives," he said.

Got that? Dubya is responsible both for creating all problems and for misleading the poor Obamites into thinking that they'd be easy to solve. But nothing — nothing — is ever the fault of The One and his minions, at least not to hear them tell it.

But despite the fact that this and all other evils are obviously all Dubya's fault, lest someone else — like, uh, everyone else in America who's not part of the First Family or the White House staff — become interested in assigning responsibility for events subsequent to January 20, 2009, the good angels of the Obama Administration have demonstrated, once again, that they do know very well how to throw one of their own under the wheels of the bus:

Craig oversaw the drafting of the executive order that set Jan. 22, 2010, as the date by which the prison must be closed.

"It seemed like a bold move at the time, to lay out a time frame that to us seemed sufficient to meet the goal," one senior official said. "In retrospect, it invited a fight with the Hill and left us constantly looking at the clock."

"The entire civil service counseled him not to set a deadline" to close Guantanamo, according to one senior government lawyer.

Thus Craig is clearly being set up — with or without his consent, and it's quite possible that he's been importuned to fall on his sword and is doing so willingly — as the fall guy. And where will he land?

Three administration officials said they expect Craig to leave his current post in the near future, and one said he is on the short list for a seat on the bench or a diplomatic position. Craig has long made clear his desire to be involved in foreign policy, but he declined to comment on his plans.

How likely is it that Roger Craig will be the next Ambassador to, say, China, the United Kingdom, or Bermuda? I'd say only slightly better than the odds that the Obama Administration will meet President Obama's own the outgoing White House counsel's own self-imposed deadline for closing Gitmo:

After the congressional setbacks, Craig orchestrated the release of four of the Uighurs, flying with them and a State Department official from Guantanamo Bay to Bermuda, a self-governing British territory whose international relations are administered by Britain.

The transfer produced a diplomatic rift. British and U.S. officials said the Obama administration gave Britain two hours' notice that the Uighurs were being sent to Bermuda. "They essentially snuck them in, and we were furious," said a senior British official.

The move also caused friction between Britain and China, which seeks the Uighurs for waging an insurgency against the Chinese government.

Still Holding Your Breath for Gitmo to Be Closed?

And so how close, then, did the Obama Administration come to meeting its goal before Mr. Craig became tire fodder for the Great Bus of State?

In coming weeks, officials say, they expect to complete the initial review of all the files of those held at Guantanamo Bay.

(Italics mine.)

The scariest part of all this is that these are facts revealed by the Washington Post. If the pro-Obama WaPo can't put any better face on what's going on inside the Obama Administration's prosecution of the Global War on Terror (whatever they've renamed it to this week), how much chaos must there really be behind the scenes?

My absolute favorite quote could be expanded beyond the Guantanamo Bay closure difficulties to describe the entire Obama Presidency to date:

"Guantanamo was everyone's part-time job," said a senior official, one of several interviewed for this article who spoke on the condition of anonymity to discuss internal deliberations.

Amateurs. Incompetents. Ideologues. Full-time politicians turned half-wit government officials. Brilliant leftists who, confronted with the real world, are exposed as clueless idiots and children.

It's going to be a long time until January 2013. Will the millions of American voters who should have known better, but who were taken in by Obama's sham, have stopped thinking 'Wow!' by at least November 2012?

End legislative malpractice by amending the Constitution

Beldar — 2009-09-23T21:47:42-05:00

From University of Tennessee constitutional law professor Glenn Reynolds, aka InstaPundit, an item with which I fiercely agree (ellipsis his):

DAVID POST: Should Lawmakers, Um, Read the Laws They’re Voting On?

Sounds like something you’d ask in a third-grade civics class. But an odd editorial in today’s Washington Post takes to task “a group of well-meaning professional activists — and, so far, over nearly 60,000 online petitioners” who have demanded that members of Congress sign a pledge “never to vote on any bill unless they have read every word of it.” While the activists “have a point,” the Post concedes, their “proposal would bring government to a standstill.”

That’s not a bug, it’s a feature ....

Every time I deal with a federal statute in the context of giving legal advice to a client — which is an utterly basic function of being a lawyer — I have to actually read and then understand the statute. My failure to do so would be malpractice per se — something absolutely indefensible, something never excusable under any circumstances. As soon as I admitted or it was otherwise proven that I didn’t read and understand the statute, the only question in a malpractice case would be the size of the damage award against me.

But if that’s an utterly basic function of being a lawyer who merely advises private clients on how the law may or may not apply, shouldn’t it be an even more basic function of a law-maker, a legislator, who creates the laws that apply to an entire country?

By no means am I saying that all legislators therefore must be lawyers. (They certainly already have staff lawyers to help them if they need or want such help.) But if an educated layman, with careful and close study, still can’t parse through the language of a bill and figure out what it does, and how it does what it does, then that says something awful and disqualifying about the legislator, the bill, or both.

A simple pledge, though, would be about as credible and enforceable as Obama’s promises that health care reform won’t add a single dime to the budget — which is to say, a cruel and illusory farce capable of taking in only the most simpleminded and naïve.

Accordingly: I would genuinely support a Constitutional amendment which required every Congressman and Senator, upon casting every vote, to swear under penalty of perjury — with existing perjury criminal penalties, PLUS instant disqualification from office — that he or she had read every word of everything he or she voted upon. Not just a summary (although they could read summaries too, if they chose) or a recommendation (again, fine as a supplement, but not as a replacement). Enforcement to be by a mechanism where 10% of either chamber’s members could indict and prosecute any member of either chamber for an alleged violation, trial to be held within 30 days on national TV, finder of fact to be a jury of 51 randomly selected voters (one from each state plus the District of Columbia), conviction and expulsion (without appeal) to be based on a simple majority vote.

For a bullet-proof practical defense — and indeed, perhaps even a prophylactic "safe harbor" provision written into the amendment or its enabling legislation to guard against unfair and untrue accusations — every legislator only needs a video camera to record him or her with an over-the-shoulder view of the text he or she is reading and the pages he or she is turning, perhaps with a side-shot of the notes he or she is taking too. The videos can be posted on C-SPAN or YouTube along with congress.gov.

Note well: This is, and should be, a completely non-partisan "good government" issue. But I'm relatively sure which party's politicians would bitch and moan the loudest and fight the hardest.

Mike Leach's misplaced pique

Beldar — 2009-09-20T04:33:59-05:00

Texas Tech head football coach Mike Leach threw a middle-sized fit Saturday night during Tech's 34-24 loss to the Texas Longhorns, insisting that the officials had improperly frustrated an attempted trick play by the Red Raiders. According to the Dallas Morning News:

Texas Tech coach Mike Leach was upset with the officials at halftime.

On the final play of the first half, Tech quarterback Taylor Potts pretended to take a knee before dropping back for a pass. Replays showed Potts' knee never touched the turf, but the officials blew the play dead.

"We never took the knee, and they whistled it down," Leach told ABC as he left the field.

Coach Leach could also be seen berating the officials immediately after the call, although the exact wording of his shouts wasn't audible on ABC Sports' broadcast sound feed, and I don't know if there was profanity to go along with his arm-waving. And Leach's fussing, combined with the replay, apparently convinced at least some observers that the refs had treated the Raiders unfairly. The Houston Chronicle's David Barron wrote, for example, that the "Red Raiders were waylaid by a potential borderline call by the officials that short-circuited an attempted trick play in the final seconds of the first half." Don Williams of the Lubbock Avalanche-Journal's RedRaiders.com website likewise noted that the "Red Raiders were irritated with the way the first half ended," and at least implicitly blamed the refs by pointing out that "a television replay showed Potts’ knee never touched the ground." Tech trailed Texas 10 to 3 at the half, so if the trick play had gone for a touchdown, that presumably would have resulted in a half-time tie and an even closer second half than that which actually ensued (the 'Horns didn't put the game away until the final 90 seconds).

But while Coach Leach was right that Potts' knee never quite touched the turf, he was dead wrong to fault the officials for blowing the play dead. There can be no doubt whether this was a deliberately called trick play — Tech telegraphed that by taking a timeout with one second left in the half before they tried it, and Leach could be seen giving detailed instructions to Potts that were clearly too complicated to be "Take a knee and let's go to the locker room, son." And as it was in fact executed, there likewise was no doubt whatsoever that Potts was deliberately trying to make it look to the 'Horn defenders like he was merely taking a knee to run out the clock, and the rest of Potts' teammates were cooperating in that farce. Based on the simulated kneel-down, the refs made exactly the right call:

From the NCAA Football 2009-10 Rules and Interpretations manual, Rule 4, Article 3, entitled "Ball Declared Dead," provides in pertinent part as follows (at pages FR-79 to -80, corresponding to pages 82-83 of the .pdf version):

A live ball becomes dead and an official shall sound his whistle or declare it dead:

....

o. When a ball carrier simulates placing his knee on the ground.

During the third quarter of the Tech vs. Texas game, the ABC announcers said they'd been informed by a representative of the officiating crew that the ruling was based on a Big 12 Conference rule, but so far I've been unable to find anything online to support that; I suspect they meant to reference the NCAA rule, which would be binding upon the Big 12 Conference anyway. The NFL also has a similar rule for simulated kneel-downs during the last two minutes of each half according to the most recent version of the Official NFL Rulebook that I could find online (from 2006). See Rule 7, Section 4, Article 1(b) (at page 45, corresponding to page 53 of the .pdf file).

It's not hard to understand why both the NCAA and NFL rules forbid the kind of trick Coach Leach was trying to pull. Certain types of deception are fundamental to football — the man in motion, the shifting formations; the disguised blitz; the pump-fake before a handoff to a running back, or the play-action pass preceded by a fake hand-off; the double-reverse, the halfback pass, and the flea flicker; the onside kick and the fake punt. All of these deceptive moves prior to or during plays, and many more, have their place. Indeed, we saw many of them at one point or another during this very game.

But when defenders reasonably believe the QB is taking a knee, they also reasonably expect to be penalized if they even touch him. It's fundamentally unfair to let the QB claim immunity from a normal hit while leaving him free to throw a touchdown; and if QBs who genuinely are taking a knee aren't protected while doing so, they will be much more likely to be injured. Moreover, defensive players all over the field relax and let down their guards when they have good cause to believe a play is over and that the ball is dead; players are, in general, far more vulnerable to injury when taken by surprise; and the same downfield block that might have merely knocked a prepared player off his feet becomes a career-ending spinal cord injury on the wholly unprepared player who's walking back to the defensive huddle (or to the locker room). We penalize the team whose punt returner tries to advance a punt after signaling "fair catch" for similar reasons — not because the rules are trying to crush all excitement and deception from the game, but because certain types of exciting deception are both unfair and unreasonably dangerous.

Of course, I'm a Longhorn loyalist and alum, but I'm generally a fan of Coach Leach and the Raiders when they're not playing Texas. Overall, they played a great game again this year, for which I congratulate them. Still, one might reasonably expect all NCAA Division 1 head football coaches to know what's in the rulebook. One might reasonably expect such a coach not to unfairly blame the refs on national TV for properly enforcing the rules as written. And those expectations might be especially appropriate for an NCAA Division 1 head football coach who's also a lawyer: Mike Leach earned his Juris Doctor degree from Pepperdine University School of Law in 1986.

Coach Leach owes a public apology to the referees from this game.

Obama's arrogance hits new heights, with no limit in sight

Beldar — 2009-09-20T02:23:54-05:00

The President of the United States and his senior staff have bragged to the New York Times that they have asked the sitting governor of the State of New York, David Paterson, to drop out of the 2010 New York gubernatorial race.

Speaking for attribution but not under their own names, "two senior administration officials and a New York Democratic operative with direct knowledge of the situation" have executed this attempted political assassination of their co-partisan from the East Coast's most populous blue state. And they made clear that they are not acting on some sort of frolicsome detour from their official duties, nor as power-drunk and -mad rogues acting without knowledge of their principal. Rather, their symbolic kiss of death to Paterson's campaign was, they insisted, "proposed by political advisers to Mr. Obama, but approved by the president himself."

The Times, of course, ran the story at the top of its Sunday front page in the featured right-column slot on both its NYC and national editions. The headline is "Obama Requests That Paterson Drop Campaign." As I write this, the online version is also the lead story on the main page of the Times' website.

The sub-headline reveals the lame, sad, but honest basis for Obama's decision: "Governor Lags in Polls." Yes, Paterson has committed the ultimate sin among the present day's "pragmatically progressive" Democrats, one far worse than his predecessor's well-publicized indiscretions with high-priced callgirls. Therefore commandeth The One, through his holy minions: "Now get thee under the bus, Paterson!"

I am no fan of Gov. Paterson's. I can't argue with the crass political calculations that may have prompted Barack Obama and his senior advisers to conclude that Paterson's continued presence in the 2010 race would harm the political fortunes of the Democratic Party and, most especially, the nation's Top Democrat.

But the sheer presumptuousness of this bit of overtly manipulative kabuki theater — the unmitigated arrogance, the craven Constitutional malice this ugly scheme encompasses — simply stuns me.

They are shameless, in the most literal sense of that word.

Beldar summarizes Obama's health care address to Congress

Beldar — 2009-09-09T20:37:34-05:00

Once upon a time — on a magic day when the calendars all said "Oh, nine! Oh, nine! Oh nine!" — King Canute rode on his Magic Pony down the aisle of the Wizards' Castle until he reached the pretty blue carpet at the bottom. Even though he wasn't at the seashore, when he climbed down from his pony, the waves and waves of applause made King Canute think he was. So he ordered the sea to cease its lapping at the shore, for its waves to stop rolling, and for the government operation of health care — through Medicare and through the King's "public-option plan," and through all the other ways that government has regulated and will regulate the rest of the health care industry — to be perfectly efficient and effective. Perfect! Yay! The Democrats all cheered and gave him many standing ovations to demonstrate their belief that indeed, the sea will soon go absolutely still, and our government will now and forever after do superbly that which no government before, including our own, has managed to do even adequately even for one day.

The King announced that henceforth, because he and his Magic Pony are very smart and will show us how, everyone can get more of everything, and everything will be better than it is now, but it will all cost less money than even just some of us are spending now. Brave, clever King Canute! No King will ever again have to worry about the sea moving, or about health care. Why didn't we make him the King way back when Good King Ronny was getting old? Oh yeah, now I 'member: It's 'cause King Canute was still doing cocaine back then, when he was just Prince Barry. It's good that he stopped that, and that he learned to think and speak so clearly now, especially about how to save money! Yay! Nobody is more believable than King Canute when he promises to save money and cut government spending!

King Canute said that there are "details still to be worked out" — drawing an appreciative laugh from the other politicians present, who sympathized with the King for his gigantic mistake of accidentally going off-script to tell the truth for a moment. But the TelePrompter of the United States regained control over the scene and the speech, and so there were no further accidental encounters with reality. Thank goodness for the TOTUS!

And the King's "public-option plan" will be especially clever, since it will be better and cheaper than everything the private companies offer ('cause the Magic Pony will pay all its expenses and won't take away any profits). But don't worry — the King promised that the public-option plan will only be available to those without insurance! Thus did the King solve the old problem of those who complain when others pee in the pool. Now surely only people who really feel the need to pee will decide to pee in the pool, and now surely no companies or individuals that are having trouble paying for insurance will decide to become "without insurance" so they can get into the government-subsidized public-option plan. Therefore, no one in the pool needs to worry about ever being touched by pee, nor to worry about the public-option plan turning into a government health-care monopoly with single-payer socialized medicine like they have in Merrie Olde Englande. "Whee whee whee!" shouted the happy Democrats, "Slippery slopes are fun!" ("Pee pee pee," muttered the grumpy Republicans, "We see where this is going.")

Thereupon King Canute did a happy dance to make everyone feel happy, and then he acknowledged the many cheers, and he remounted his Magic Pony and rode back up the aisle. Most of those on the right side of the aisle, and even a few of them on the left, noticed that the Magic Pony had left behind a steaming, fragrant gift on the pretty blue carpet. Most of them on the left thought the gift was dessert, so they gobbled it up while insisting that it was really, really yummy. But they saved a piece for you. Do you want it?

You know you're an SOB when ...

Beldar — 2009-08-31T17:44:11-05:00

Funniest quote I've read in the Houston Chronicle in some time:

“It doesn't matter if you have a snowsuit on — if you're touching customers, they're touching you — they're a sexually oriented business,” Geffin told the judge. “You can call yourself a restaurant, you can call yourself an ice cream truck, but if your drawing card is topless dancers, you're an SOB, and you have to comply with the rules.”

Ice cream trucks actually do good business in Houston in August even without snowsuits or topless dancers. The tips may not quite match up, though.

Of course, this injunction hearing is all just another boring day at the office for State District Judge Randy Wilson. I'm reasonably sure he hasn't asked for the litigants to arrange a "premises view" on-site during business hours: The Harris County Civil District Courts' budget contains no money for dry-cleaning judicial robes to get the glitter and make-up off.

Assistant Harris County Attorney Geffin is probably right, of course. But trying to enforce these particular laws is like trying to bail the oceans using a tea-cup. (Or, perhaps, a DD-cup.) Although I've never been there, I'm told that this particular ~~strip joint~~ entertainment venue is outside the City of Houston, well away from churches, schools, or family neighborhoods, and indeed that it's quite literally out in the middle of the woods. One has to wonder whether the Sheriff and Harris County Attorneys don't have other, more (ahem) pressing matters to investigate and prosecute with their limited resources.

Thoughts on the death of Edward M. Kennedy (1932-2009)

Beldar — 2009-08-26T17:08:14-05:00

I extend my condolences to the family and friends and partisans and allies and admirers of Sen. Edward M. ("Ted") Kennedy (D-MA) upon his passing.

Alas, my first two reactions to the news were not flattering to him, and indeed they are likely to annoy many of those to whom I've just extended my condolences.

My first thought (premised on Christian faith) was that Teddy Kennedy's four decades of dodging his proper responsibility for the death of Mary Jo Kopechne — however slight or (as I suspect) culpable that responsibility actually was — are finally over. May justice finally be done, whatever that may be, by Him to whom such final judgments are ultimately reserved.

My second thought involves a comparison with the current occupant of the executive mansion at 1600 Pennsylvania Avenue — an address at which brother John famously lived, and to which father Joseph and brothers Joe Jr., Bobby, and Teddy all famously aspired.

Teddy's most serious run at the presidency, against Jimmy Carter in 1980, represented a deliberate and thoughtful rejection by a majority of the Democratic Party of a candidate who was all bi-coastal style and sizzle, a media favorite wrapped in romance and dynasty, but whose actual record was still then pitifully thin and whose character had already been repeatedly proven to be deeply flawed. One line from Teddy's convention speech — "For all those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die" — is still remembered over anything said by the Democrats' actual nominee from that campaign. And of course said nominee, the Dems' incumbent — who had already, in my judgment, become the worst American President of the 20th Century — went on to a well-deserved crushing defeat by Ronald Reagan.

Although it could still be prompted to go on the occasional drunken bender by that kind of vaguely poetic but ultimately content-free rhetoric from someone like him, however, as of 1980 the Democratic Party still had better sense than to entrust the country's fate to a shallow scoundrel like Teddy Kennedy, no matter how much that went against the media's romantic "Camelot restored" narrative and the fervent desires of the Hard/Angry Left. Yet by 2008 — their decency and sensibilities having been fatally compromised in the meantime by a serial liar and sexual predator who they also rallied to defend — the Dems had become utterly shameless, utterly irresponsible, and utterly besotted with another shallow but romantic scoundrel who had only a fraction of the governmental experience that even Ted Kennedy ca. 1980 could claim.

More than mourning the man who's just passed from the living, then, I mourn the passing of those times. Contrasting the Dems' rejection of Ted Kennedy in 1980 to their embrace of Barack Obama in 2008 makes me mourn the end of the time when the Democratic Party was a party of mostly grown-ups instead of mostly idolaters and haters, the time when as a party the Dems could soberly and seriously reject a glamorous media-hyped figure as its national candidate. I know not when or if we shall ever see the return of such responsible men and women to a position of power in the Democratic Party. (In the meantime, they'll be the few but perhaps vital minority of Democrats who are muttering to themselves, with entirely justified and increasing panic: "But nine trillion in deficits? Seriously?")

"Sotomayor & Associates" ... meh, who cares?

Beldar — 2009-07-07T22:01:26-05:00

Nothing has happened since May 26 to make me change my initial take on Pres. Obama's nomination of U.S. Circuit Judge Sonia Sotomayor to fill Justice Souter's seat on the Supreme Court. (That take, in short, was this: Obama would never nominate anyone of whom I approved, and Judge Sotomayor, if confirmed, will vote the same way as Souter has, but be no more effective than Souter was (and perhaps less so) at swaying the Court's swing vote, Kennedy, in close cases. Republicans should use every opportunity to demonstrate how disastrous it is for the country and the Constitution to have liberal Democrats like Obama in a position to pick politically liberal and judicially activist SCOTUS Justices. But expecting to defeat Sotomayor's nomination is unrealistic unless something big and new comes up from her past, and I'm very grateful Obama didn't nominate someone who'd be much more effective.)

Now it appears from a NYT story that between 1983 and 1986, on behalf of some friends or friends of friends, Sotomayor wrote a few wills, incorporated a few businesses, or helped skim the closing documents for a few condo sales under the exaggerated firm name of "Sotomayor & Associates" while she was really a full-time employee of the Manhattan D.A.'s office or another law firm.

I agree with my blogospheric friend and fellow lawyer Andrew McCarthy that it doesn't take a sophisticated legal analysis for anyone, lawyer or layman, to recognize that claiming to be "Sotomayor & Associates" — when you really don't have any associates — is stupid and misleading. It ought not be done. (On this topic more generally, see also Eric Turkewitz, Jim Lindgren, Glenn Reynolds, John Steele, and the Washington Times,)

I very, very seriously doubt, however, that lawyer Sotomayor's transgression in exaggerating the size of her firm ever actually misled anyone. As small potatoes go, this one is pea-sized or smaller. And as misrepresentations with disastrous public consequences go, this one is utterly microscopic in comparison with, for example, almost any one of Obama's presidential campaign promises, or his own claims to have had significant experience to prepare him for that office.

(Personal disclosure: My own solo law firm — likewise an unincorporated sole proprietorship whose name is only a d/b/a (albeit one duly registered with Harris County) — is carefully designated "Law Office of William J. Dyer" on my letterhead, pleadings, website, and elsewhere to avoid implying more than one regular place of business, more than one lawyer, or any incorporated status that would potentially limit or complicate my personal liability for debts of the law practice. It's a traditional name, but terribly stuffy and boring. I'd rather simply use "Dyer Legal" to correspond with my business internet URL, but the State Bar of Texas — for reasons that are entirely opaque and directly contrary to the square holding (at footnote 12 & accompanying text) of at least one federal district court opinion adopted by the Fifth Circuit — considers that to be an impermissible "trade name" which might mislead the public into thinking that I'm making some representation about the quality of my legal services as compared to other lawyers, which Texas lawyers are forbidden to do. I think state bars in general, including my own, have historically done pathetically bad jobs of preventing genuinely misleading information about lawyers and their services from being spread in the marketplace. I also think that they've almost completely defaulted in their obligations to instead ensure that meaningful and accurate information — information which would help promote informed consumer decisions, and which would tend to drive out misinformation — is constantly available to the public in usable forms. There ought to be no commercial market for an advertising-sponsored legal information-gathering and -distributing service like Avvo.com, for example, because state bars, individually or (better) collectively, ought to have already done all that and more, and have done it much better, via the internet. Which is to say, on this set of legal ethics/public interest issues, I'm a self-interested, grumpy curmudgeon, but not entirely a traditionalist. I do care about these issues, in other words, but I don't think they matter much in the context of the Sotomayor nomination.)

In memorium: James Dillard Dyer, Jr. (12/24/22 to 6/22/09)

Beldar — 2009-06-22T17:33:28-05:00

[As written and released for publication in the Lamesa [Texas] Press-Reporter, Lubbock Avalanche-Journal, and other west Texas publications, by his family:]

Lamesa native and life-long resident James Dillard Dyer, Jr. — a World War II veteran who became a long-time merchant and civic leader — died peacefully in his sleep during the early morning hours of Monday, June 22, 2009. He was 86 years old.

Born on Christmas Eve of 1922, J.D. Dyer, Jr. was the oldest son of prominent Lamesa school-teacher, postmaster, and merchant J.D. Dyer, Sr. and his wife Emma Lee Dyer. As a 1940 graduate of Lamesa High School, young Dyer — sometimes known to friends as “Jo-Do” due to his initials — had been president of his senior class and active in the high school band and debate. Dyer volunteered for the Naval Reserve Officer Training Corps at the University of Texas even before the attack on Pearl Harbor, and through an accelerated curriculum, he earned both his Bachelor of Business Administration degree and his commission as an Ensign in the United States Naval Reserve on the same day — February 29, 1944.

Dyer was immediately activated to duty and assigned to the U.S.S. Zeilin (APA-3), an amphibious attack transport which served as a relief flagship for the Commander Amphibious Force, Pacific Fleet. Dyer caught up to the ship in March 1944, and he commanded one of its landing craft, putting troops ashore under fire, during the Battle of Guam in July 1944. “Tex” Dyer was among the junior officers on the bridge on February 13, 1945 — when the Zeilin survived a kamikaze strike that left dozens killed and wounded — and his service included both the invasion of Luzon in January and the landing of reinforcements at the Battle of Iwo Jima in March 1945. Slated to participate in the invasion of Japan, Dyer and the Zeilin were at Eniwetok in the Marshall Islands in August when the atomic bombs ended the war. After further service on the Zeilin moving troops from various Pacific bases to Okinawa and Korea, Dyer was released from active duty in February 1946 as a Lieutenant (Junior Grade). He attended several happy reunions of the crew and extended family of the “Mighty Z” during the 1980s and 1990s as America belatedly began to recognize properly what Tom Brokaw has called “The Greatest Generation.”

After brief stints with the Texas-New Mexico Pipeline Co. and the State Reserve Life Insurance Co., Dyer returned to Lamesa to take over his father’s business, then known as Dyer Hardware & Auto Supply. Over the next 30-odd years and at several locations, that business evolved to become Dyer Appliance and then Dyer Furniture & Appliance — selling iconic American brands like Zenith, Frigidaire, Maytag, and Sealy to generations of Dawson County families under the motto “We Service What We Sell.” Along with Karl Cayton and Paul Edgmon, Dyer was also a founding principal in the original Lamesa Cable T.V. Company.

Dyer married Lamesa native Helen F. Pope in 1947, and together they reared their daughter and two sons before they divorced. In 1974, Dyer married Odessa L. Williamson of Levelland. Before her death in 2003, J.D. and Odessa led an active retired life that included many international tours with the “Flying Longhorns” of the U.T. Ex-Students’ Association (of which they were both Life Members). Dyer’s hobbies in his later years included the planting and care of what became the formidable orchard surrounding his home on Skyline Drive.

Service — through city government, and through civic and charitable organizations — played a continuous and vital part of J.D. Dyer’s life. He served on the Lamesa City Council from 1955-1958 and as Mayor of Lamesa from 1958-1959. A multi-decade member of the Lamesa Chamber of Commerce, Dyer served as its President in 1969. Dyer also served in leadership roles over the years in various local and regional organizations to promote the development of U.S. Highway 87 and to secure clean, safe drinking water for Lamesa and its surrounding area. Dyer was also among the original organizers and continual supporters of the Lamesa High School Golden Tornado Jubilee Reunions, and he served as chairman of the 1975 Jubilee.

In high school, Dyer had earned the rank of Eagle Scout and was inducted into the Order of the Arrow in what was first known as “Troop 1,” then “Troop 22,” and then “Troop 722” — the Boy Scout troop founded by his father in 1921 and then led for many years thereafter by the late Joseph N. Spikes. Dyer’s lifelong support of and contributions to Scouting were recognized by the South Plains Council of the Boy Scouts of America with the Silver Beaver Award in 1964. Dyer also was a multi-decade member and leader of the Lamesa Noon Lions Club and Lions Club International. He served many terms in various offices (including President) in the local club, and as District Governor of Lions District 2-T2 in 1960-1961. With his family, he attended many state, national, and international Lions Club conventions across the U.S. and abroad, and he was an active supporter of such programs as the Texas Lions Camp at Kerrville.

Dyer was raised as a member of the First Christian Church of Lamesa, and he served among its deacons and elders while married to Helen. Later, he and Odessa were joyous and proud members of the First Presbyterian Church of Lamesa, where funeral services will be held at 11:00 a.m. on Thursday, June 25.

J.D. Dyer, Jr. was preceded in death by his parents and by his younger sister and brother, Mrs. Tennie Marie Dyer Lengel of Dallas and Dr. Royce Dyer of Lamesa. He is survived by his younger sister, Mrs. Jean Dyer Brower of Lamesa, and by three children — his daughter, Mrs. Gwen Dyer Johnson of Austin (and her husband Jimmy); his son, Dr. James R. Dyer of Argyle (and his wife Shelli); and his son, William J. Dyer of Houston. He is also survived by eight grandchildren (Jeffrey, Liana, David, Grace, Kevin, Sarah, Adam, and Molly), four great-grandchildren (Jared, Laura, Price, and Jemma), and many other cherished relatives and life-long friends. For anyone inclined toward making a charitable donation in J.D. Dyer’s memory, the family has suggested the Boy Scouts of America (www.scouting.org), the Texas Lions Camp in Kerrville (www.lionscamp.com), or the Dal Paso Museum in Lamesa.

POTUS as the Great Defender of the Faith

Beldar — 2009-06-04T22:25:36-05:00

Did you have the same reaction that I did back in 2001 when — in an official speech specifically directed to the Christian world during one of his trips to the Middle East, a speech whose official theme was "A New Beginning" — President George W. Bush firmly rejected the constitutional separation of church and state, and instead proclaimed that his official duties included the defense and promotion of one religion (emphasis mine):

So I have known Christianity on three continents before coming to the region where it was first revealed. That experience guides my conviction that partnership between America and Christianity must be based on what Christianity is, not what it isn't. And I consider it part of my responsibility as President of the United States to fight against negative stereotypes of Christianity wherever they appear. (Applause.)

Except ...

That was actually today, not 2001. It was President Obama, not President Bush. And it was Islam, not Christianity.

It's fine for an American President to try to understand, respect, and avoid giving unnecessary offense to Muslims, in or outside of America. But pandering to them is unseemly. And pretending that "fight[ing] against negative sterotypes of Islam wherever they appear" is "part of [the] responsibility [of the] President of the United States" is grotesque. Did our self-proclaimed former professor of constitutional law actually read this speech before he delivered it from his teleprompter? If he did, then that raises the question: Has he actually read his present job description, or the rest of the Constitution and its amendments?

---------------------------

UPDATE (Mon Jun 8 @ 7:40pm): As commenter K~Bob mentioned below, Houston-based talk-radio host (and AM Operations Manager for Clearchannel AM stations KTRH, KPRC, and KBME) Michael Berry, guest-hosting for Mark Levin on his syndicated national radio show last Friday, twice referenced and read approvingly from this post on the air. Mr. Berry was kind enough to phone me today and also to send me a link to a podcast of the broadcast, for all of which I'm genuinely grateful!

Beldar's initial take on the Sotomayor nomination

Beldar — 2009-05-26T19:15:45-05:00

Elections have consequences and, as he's prone to remind us, Obama won. I firmly believe that the President of the United States has the right to choose who he wants as his nominees to the Supreme Court, and that the Senate, in its advice and consent role, ought to confirm those nominees unless they're objectively unqualified. Of course that is not the rule Obama, Biden, or Clinton followed as senators; but notwithstanding their perfidy, and the fact that such perfidy is more typical of their party than of the GOP, I still think the GOP senators did the right thing when, for instance, the Senate approved President Clinton's nomination of Ruth Bader Ginsburg by a vote of 96 to 3 in 1993. And yes, of course John Roberts ought to have been confirmed as Chief Justice by at least that kind of margin, and yes the Dems who voted against him are unprincipled hyper-partisan bastards. So what else is new?

(An aside, apropos of very little: When I was puttering around my father's house during a visit to my hometown in January, I happened upon an unbound issue of the Texas Law Review — specifically, Volume 57, No. 6, dated August 1979. It was on my non-lawyer father's bookshelf — and it's certainly the only legal periodical to be found anywhere in the house — because it contains my one and only published law review article (or, more technically, my "student note" that I wrote as a second-year law student and new member of the Review). I hadn't looked at that issue, though, since some time in the early 1980s, and I had quite forgotten that one of the lead articles in that issue was entitled "Ratification of the Equal Rights Amendment: A Question of Time." The author? Ruth Bader Ginsburg, then a professor at Columbia Law School.)

In any event, there's never been any chance that President Obama would nominate a replacement for Associate Justice David Souter of whom I would thoroughly approve, or mostly approve, or even much like. Nor has there ever been a realistic chance that someone with the minimal objective qualifications could be effectively filibustered, much less defeated in an up-or-down confirmation vote, given the current composition of the Senate. As a practical matter, the most that conservative GOP senators could realistically hope for is to nudge whoever Obama nominated out onto some long and slender limbs during her confirmation hearings — possibly generating some pithy sound-bites that can legitimately become grist for the public mill when the GOP asks the American public again in 2010 and 2012, "Do you really want the Democrats to have such a free hand in putting this kind of person onto the federal bench?" And that's still a goal that's definitely worth pursuing, especially if the GOP members of the Judiciary Committee can treat their own rampant and chronic cases of "senatoritis" (that is, making speeches rather than actually asking pithy and comprehensible questions which will genuinely probe the nominee's beliefs and judicial temperament).

Based upon what I know of her so far, in U.S. Circuit Judge Sonya Sotomayor, Obama seems to have passed the "minimum objective qualifications" bar. This is no surprise, no more than the fact that this is a blatantly racist and sexist selection made to appease the Democratic Party's loathsome identity politics. However, Karl Rove made a good point on one of the Sunday talking head shows this weekend when he pointed out that the Obama Administration can't possibly have vetted her (or any of the other finalists) nearly as thoroughly as the Bush-43 Administration had vetted Roberts and Alito, so I reserve the right to change my opinion if some significant disqualifying facts pop out now that she's under everyone's microscope.

Beyond that, my main reaction to the Sotomayor nomination is actually a sigh of relief. This is guesswork on my part, mind you. But from what I know of them, my strong gut hunch is that either of the other two purported "finalists" whose names had been floated in the press — newly confirmed U.S. Solicitor General Elena Kagan or U.S. Circuit Judge Diane Wood of the Seventh Circuit — had significantly greater potential to become extremely effective in influencing Mr. Justice Anthony "Sweet Mystery of Life" Kennedy. (Indeed, the potential nominee I feared the most, and for that very reason, was Obama buddy Cass Sunstein, who I think would have absolutely owned Anthony Kennedy within his first six months on the Court.) Had Obama chosen someone likely to become particularly influential with Justice Kennedy, that could have made a significant, and oftentimes outcome-determinative, difference on some substantial portion of the very close decisions on the Court over the next several years, even if we assume that the new junior-most Justice will mostly vote as we expect Justice Souter would have done. I don't think Justice Souter has been especially effective in influencing Justice Kennedy, however, and I don't have any reason to believe that Judge Sotomayor, if confirmed to the SCOTUS, will be either.

Supermax prisons' no-escape record doesn't answer concerns about moving Gitmo terrorists onto U.S. soil

Beldar — 2009-05-20T18:40:13-05:00

I'm already very tired of hearing the stupidest new talking point of the mainstream media: "Why worry about bringing terrorists from Gitmo to the mainland U.S., when we've never had a single escape from a federal 'Supermax' prison?" Duh. This is the sort of 9/10/01 thinking, the sort of "treat global terrorism like a domestic law enforcement problem," that is going to get people killed.

The risk isn't just, or even primarily, that the terrorists will escape, or that they'll misbehave while in custody, although those are indeed considerable risks that ought not be dismissed out of hand. Nor is the risk just, or even primarily, that being on U.S. soil will strengthen the prisoners' potential legal claims and defenses — although that's a considerable risk, too.

Rather, the most serious risk is that the same type of terrorist organization that mounted a simultaneous four-plane multi-state flying bomb assault on the Twin Towers and the Pentagon on 9/11/01 would welcome the opportunity to assault any holding facility on American soil, or whatever community was closest thereto, in an attempt to force the captured terrorists' release. Simply put, friends and neighbors: Any holding facility for radical Islamic terrorists on American soil would be a target and a potential "rescue mission" for which al Qaeda or its like would delightedly create dozens or hundreds of new "martyrs" from among their own ranks.

Right now — as has been continuously true since the first prisoners were shipped there after we began operating against the Taliban in Afghanistan — these terrorists' would-be "rescuers" can't assault Gitmo without first getting to Cuba and then defeating the U.S. Navy and Marine Corps at sea, on land, and in the air. That's not the kind of fight they want; those aren't the kind of logistical hurdles they can ever overcome. Keeping all the captured terrorists at Gitmo, in other words, has played directly to our strongest suit as a nation — our superb, unparalleled, and highly professional military strength as continuously projected in a place of our choosing without risk of collateral casualties among American civilians.

But once the scene shifts to American soil, we lose virtually all of that combination of power and flexibility, and surrender back to the terrorists all the advantages upon which they regularly depend. Getting into the U.S., or using "sleepers" already here? In a fight against some local sheriffs or prison guards armed mostly with revolvers and tasers (perhaps supplemented with shotguns or even a few assault rifles, but no heavy weaponry at all)? With the fighting to take place in or even near any American population center? Can the Obama Administration possibly be so stupid as to forfeit all of our own advantages, and give all of the terrorists' advantages back to them? Can they do that for no better reason than to placate the idiots on the Hard Left who still have failed to heed the warnings on those Viagra/Levitra commercials? (Their hard-ons for George W. Bush have lasted now for substantially more than four hours — indeed, for more than eight years! — but they're still not seeking immediate medical, which is to say, psychiatric, attention.) I'm very afraid that the Obama Administration's answer to these questions may remain: "Yes we can!" (Followed by, "Shut up! We won.")

If instead you distribute the current Gitmo prisoners among many American locations, you still forfeit all of the advantages of Gitmo, while simply multiplying the number of potential targets that we have to protect, and without significantly diminishing the potential propaganda rewards to their would-be terrorist rescuers from even a single assault. Their international publicity coup would be about the same — humiliating the "Great Satan" again on its own soil — whether they sprang two prisoners or two hundred. And for that matter, their PR purposes don't require them to actually succeed in the rescue attempt, just to get a lot of non-terrorists killed too.

As for why domestic history with merely criminal organizations isn't instructive: The Mafia, or the Colombian drug-lords, or whatever other allies there may be of those who've been successfully held in Supermax and other American civilian prisons, generally aren't willing to engage in mass suicides to free their incarcerated compadres. Nor are they inclined to try to kill thousands of American civilians in the process of effecting a rescue. "Terrorism" is a sideshow for them, a temporary and small-scale means to generate financial profit. And while they have money and access to at least paramilitary weapons, they don't have the kind of rogue state support (think Iran and potentially North Korea) that may be available to our enemies in the ~~Global War on Terrorism~~ — ummm, errr, Global War on Man-Caused Disaster-Creators.

Security for the terrorists now being held at Gitmo, in short, isn't just a question of "keeping them in." It's necessarily a question of keeping them where they can't get to others and others can't get to them — or anywhere remotely close to them.