June 29, 2010

Conservative Candidate For Congress Garners Attention, Boners
— Ace

Better than Dale Peterson?

Maybe so, maybe so.

Update: Not an official ad, it has been pointed out, but created by some of her supporters.

Whew. It did seem a bit too to me.

Thanks to ExUrbanKevin for that.

Posted by: Ace at 12:03 PM | Comments (240)
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The Talented Elena Kagan, Lawyer By Day, Obstetrician By Night
— Ace

You could very well call her the mother of partial-birth abortions.

Because she herself crafted the statement -- supposedly from a medical association -- later relied upon by courts in knocking down partial-birth abortion bans.

There is no better example of this distortion of science than the language the United States Supreme Court cited in striking down Nebraska’s ban on partial-birth abortion in 2000. This language purported to come from a “select panel” of the American College of Obstetricians and Gynecologists (ACOG), a supposedly nonpartisan physicians’ group. ACOG declared that the partial-birth-abortion procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” The Court relied on the ACOG statement as a key example of medical opinion supporting the abortion method.

Years later, when President Bush signed a federal partial-birth-abortion ban (something President Clinton had vetoed), the ACOG official policy statement was front and center in the attack on the legislation. U.S. District Court Judge Richard Kopf, one of the three federal judges that issued orders enjoining the federal ban (later overturned by the Supreme Court), devoted more than 15 pages of his lengthy opinion to ACOG’s policy statement and the integrity of the process that led to it.

Like the Supreme Court majority in the prior dispute over the Nebraska ban, Judge Kopf asserted that the ACOG policy statement was entitled to judicial deference because it was the result of an inscrutable collaborative process among expert medical professionals. “Before and during the task force meeting,” he concluded, “neither ACOG nor the task force members conversed with other individuals or organizations, including congressmen and doctors who provided congressional testimony, concerning the topics addressed” in the ACOG statement.

In other words, what medical science has pronounced, let no court dare question. The problem is that the critical language of the ACOG statement was not drafted by scientists and doctors. Rather, it was inserted into ACOG’s policy statement at the suggestion of then–Clinton White House policy adviser Elena Kagan.

In fact, the original ACOG report said that it "could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.” Writing that such a statement would be "politically disastrous," Kagan suggested that ACOG change its statement to the 100% opposite -- that a partial-birth abortion "may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”

That's how we do science, Kagan-style.

Yuval Levin:

What’s described in these memos is easily the most serious and flagrant violation of the boundary between scientific expertise and politics I have ever encountered. A White House official formulating a substantive policy position for a supposedly impartial physicians’ group, and a position at odds with what that group’s own policy committee had actually concluded? You have to wonder where all the defenders of science—those intrepid guardians of the freedom of inquiry who throughout the Bush years wailed about the supposed politicization of scientific research and expertise—are now. If the Bush White House (in which I served as a domestic policy staffer) had ever done anything even close to this it would have been declared a monumental scandal, and rightly so.

Oh come on, get with the times. The DNC handles our "science" for us now, the same as the politically-supreme orang-utans in Planet of the Apes.

Remember Dr. Zaius blowing up the cave to suppress the human baby doll? Same thing.

Posted by: Ace at 11:53 AM | Comments (85)
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Riehl's War on the GOP Establishment
— Ace

War? Okay, not war; but "Riehl's Complaint" isn't a very good headline.

Riehl is annoyed that the GOP is very much Stuck in the Seventies regarding new media:

I continue to insist that the DNC gets new media in ways the GOP still refuses to embrace. It's intent on controlling the narrative, while the DNC is more interested in fueling constituent and blog-based activism from the Left.

Democrat-aligned parties have also funded the mechanisms to accomplish it. You can go to even deeply Red districts and find an activist infrastructure on the Left, often blog-based. Meanwhile, GOP campaigns pay consultants to send out annoying spam emails to every blogger under the sun.

The instant cause of this dispute is a GOP new media guy who posted a "yawn" response to the DNC's "Macaca Moment" project (getting activists to follow Republicans around with flip-cams and catch them saying something awful).

Riehl's beef is that this eternal yawn of the GOP to new tactics and the new media environment is hurting the cause.

Admittedly a bit frustrated by Schaper's apparent lack of appreciation for grassroots activism and the conservative movement as a whole, I had to look him up, as I had no idea who the hell he was, or what he did. That struck me as bizarre given his title. He had never before commented on the listserv, so far as I recall. Here is my response.

"Nick Schaper - Director of New Media at House Republican Leader John Boehner"

Me: As I said, our new media people don't even understand the game the Left is playing out here. The grassroots is the one yawning because you guys put us to sleep.

But his bigger complaint is that the GOP's model -- to the extent they have some kind of coherent theory about new media, and it's quite questionable they even have that -- is that the GOP shall be tasked with all intellectual work of creating and shaping a message, and then they will send out mass press releases to bloggers, who will do nothing but cut and paste those well-crafted messages and hit "publish."

Again, I don't know if they even really intend that, because this seems so impossible to imagine one strains to believe someone could believe it would really happen.

And, in fact, no bloggers publish these endless press releases from politicians or the GOP; that's not news. The very fact it's in a mas press release sort of indicates it's not news.

No one does that. No one would do that. I don't even read press releases. My email is cluttered with fifteen thousand unopened press releases.

I don't know why the GOP is so fearful or disdainful of bloggers and activists. I know they're plugged in, a bit, with more conventional, mainstreamish outlets (like the Weekly Standard). And I understand why such respectable outlets should be more important than lowly bloggers.

Still, this idea that the GOP just won't do virtually anything to help a blogger out is counterproductive, and, if you're one of the bloggers so disdained, it's actually sort of personally insulting, too.

Riehl asked to be removed from the listserv in question (which, incidentally, I hadn't even heard of) because based on his exchange he felt grassroots/new media tips and suggestions were simply unappreciated, so it was pointless to belong to the listserv in the first place.

Sometimes a reader will tell us at AoS that we're "more influential than [we] know."

I have to tell you, I don't think so. If we were influential at all, someone would start trying to influence us.

Even with something minor like the soft corruption of cheap flattery (i.e., attempts at personal email exchanges as opposed to barraging people with press releases). I spoke to some of McCain's guys during the election, and while they gave me nothing but the party line, it was compromising, in a way favorable to them, to have that kind of access, even if it was a of a limited, let's-pretend-I'm-giving-you-something-besides-the-party-line sort of thing.

They were able to at least calm my frantic frustration at McCain's missteps. Anything bad I said about McCain was 10% less bad because their emails got me to take some of the edge off it.

But apart from that... I don't know. This is one of the top ten biggest conservative blogs; I guess I just would think someone would want to spin me or something.

Here's the dirty little secret of conservative blogging, at least as it appears to me: I'm sure the left is convinced we're all plugged in to the GOP and getting our Two Minute Hate of the Day from GOP central, and so on, and etc.

The actual truth is more scandalous. By and large (I can only speak for myself) the GOP itself and GOP candidates don't even bother trying to spin us or feed us something interesting to push.

I don't know the reason. Who knows, maybe other blogs are contacted on occasion and people just stay at arm's length away from AoSHQ because of the language and the perception we're not team players.

Maybe blogs are seen as too risky, too loose-cannon, too foul-mouthed. Maybe there is a well-founded fear that any association with a blog could wind up doing a lot of damage down the road.

I don't know. Personally I just think the GOP tilts way too much to comfortable old style stuff, who knows, maybe owing to the overall skew in the party to being a big older.

But, I mean, come on. The internet and blogs are not new. It's not like 60 year olds are befuddled at this new technology. 80 year olds, sure, but 60 year olds have been using it for ten years.

I really don't know.

By the Way: There are some guys in the GOP who are much more forward-leaning on this stuff but it appears that the party just ignores them, in the main.

Posted by: Ace at 10:57 AM | Comments (180)
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S&P 500 just broke though 1,040 barrier
— Monty

Check here. At the time of writing, the index is at 1,039.01. Here's an explanation of why this is bad news if it closes at this level. Basically, the problem is that the next support is all the way down at 800 or so.

Posted by: Monty at 10:29 AM | Comments (93)
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Andrew Breitbart: I'm Offering $100,000 To Anyone Who Delivers Unto Me the JournoList Archives
— Ace

Agent provocateur.

I’ve had $100,000 burning in my pocket for the last three months and I’d really like to spend it on a worthy cause. So how about this: in the interests of journalistic transparency, and to offer the American public a unique insight in the workings of the Democrat-Media Complex, I’m offering $100,000 for the full “JournoList” archive, source fully protected. Now there’s an offer somebody can’t refuse.

His reason is partly because he thinks it's unfair that Dave Weigel was outed (by, he seems to think, a lefty who didn't like his occasional pushback against liberal journalistic excess).

So he wants everyone's secrets.

The man is good.

Posted by: Ace at 09:40 AM | Comments (208)
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Wow: Daily Kos Admits Highly Publicized Research 2000 Polling Was "Likely Bunk"
— Ace

To say he "admits" it isn't quite right; this isn't a grudging admission, but a statement that he feels he was defrauded. So, he publicized bunk polls, but at least he's copping to it.

I have just published a report by three statistics wizards showing, quite convincingly, that the weekly Research 2000 State of the Nation poll we ran the past year and a half was likely bunk.

Since the moment Mark Grebner, Michael Weissman, and Jonathan Weissman approached me, I took their concerns seriously and cooperated fully with their investigation. I also offered to run the results on Daily Kos provided that they 1) fully documented each claim in detail, 2) got that documentation peer reviewed by disinterested third parties, and 3) gave Research 2000 an opportunity to respond. By the end of last week, they had accomplished the first two items on that list. I held publication of the report until today, because I didn't want to partake in a cliche Friday Bad News Dump. This is serious business, and I wasn't going to bury it over a weekend.

We contracted with Research 2000 to conduct polling and to provide us with the results of their surveys. Based on the report of the statisticians, it's clear that we did not get what we paid for. We were defrauded by Research 2000, and while we don't know if some or all of the data was fabricated or manipulated beyond recognition, we know we can't trust it. Meanwhile, Research 2000 has refused to offer any explanation. Early in this process, I asked for and they offered to provide us with their raw data for independent analysis -- which could potentially exculpate them. That was two weeks ago, and despite repeated promises to provide us that data, Research 2000 ultimately refused to do so. At one point, they claimed they couldn't deliver them because their computers were down and they had to work out of a Kinkos office. Research 2000 was delivered a copy of the report early Monday morning, and though they quickly responded and promised a full response, once again the authors of the report heard nothing more.

While the investigation didn't look at all of Research 2000 polling conducted for us, fact is I no longer have any confidence in any of it, and neither should anyone else. I ask that all poll tracking sites remove any Research 2000 polls commissioned by us from their databases. I hereby renounce any post we've written based exclusively on Research 2000 polling.

Okay, that's a clear admission.

But note he's renouncing any post he's written.

Not any book.

I point this out because he's got a book about "The American Taliban" (that would be you all) coming out in two months, and it seems to me very likely that his various Research 2000 polls which painted conservatives in an extremist light were part of his case there.

I guess he'll probably delete references to the Research 2000 polls while keeping all the conclusions, because, let's face it, it's not as if his beliefs were based on polling and other objective indicators anyway.

Thanks to Slublog and Drew.

Falsified? The actual statistical case against the polls is not one about mere methodological failure, but of simply making stuff up.

1. A large set of number pairs which should be independent of each other in detail, yet almost always are either both even or both odd.

2. A set of polls on separate groups which track each other far too closely, given the statistical uncertainties.

3. The collection of week-to-week changes, in which one particular small change (zero) occurs far too rarely. This test is particularly valuable because the reports exhibit a property known to show up when people try to make up random sequences.

The statistical analysis suggests that these numbers were simply made up on the fly, and the reason for these odd occurrences is that people screw up when trying to make things look random.

For example, in point number 2, a smaller sub-sample should show much wilder variation than your main (big) sample, because you're polling many fewer people in that subgroup and hence the Margin of Error is of course larger. But Research 2000 consistently seems to find what you'd call "likely numbers" for these groups -- numbers that seem to make sense, that accord with your gut instinct.

But that's a mistake, because, statistically, with these small subgroups, you should be getting what looks like clearly outside-the-margin-of-error stuff very frequently. In other words, if your numbers are genuine, statistics demands that a lot of these small sub-group numbers look like complete and utter garbage.

If they all keep looking like what you'd expect them to look like, that's because they're not real, but rather someone making up numbers that accord with your gut.

Not So Random Walk?: I think for the past year people have cited these polls, after an initial skepticism, on the theory that they sort of looked like the other polls, only a little more skewed liberal.

Well, it turns out that maybe they looked like the other polls, only skewed a bit more liberal, because they just took the other polls and pushed the numbers a little more liberal.

I have joked around with a pollster I know that I can do just that for far cheaper than her company can -- hey, pay me $10,000, I'll just take a blend of polls from Real Clear Politics and push the numbers around slightly. I give you a discount because I'm just making this up based on other polls and it takes me only a few hours to fake it up; but, on the other hand, let's face it, it's almost as good as the real thing, right?

I mean, honestly, how far off will my fake numbers be from the real ones?

I don't know what's happened here and am reluctant to malign a company with an allegation this large (which, if true, would surely destroy the company entirely).

But they haven't responded to Kos about these problems for two weeks.

Will the MFM Retract? The media didn't use a lot of these polls, but they did use them on occasion. Like, Ezra Klein, lefty blogger hired by the Washington Post.


TPM isn't real media but the lefty media treats it like it is; they loved themselves some R2K polls, too.

Thanks to Slublog for that, again.

Kos: I Can't Wait For You To Read My Book Because It's Loaded With Great Research 2000 Polling Info: I noted that his book American Taliban had been partly based on R2K polling.

From NRO, here's Kos pimping that aspect of it.

As I've mentioned before, I'm putting the finishing touches on my new book, American Taliban, which catalogues the ways in which modern-day conservatives share the same agenda as radical Jihadists in the Islamic world. But I found myself making certain claims about Republicans that I didn't know if they could be backed up. So I thought, "why don't we ask them directly?" And so, this massive poll, by non-partisan independent pollster Research 2000 of over 2,000 self-identified Republicans, was born.

The results are nothing short of startling.

It's a long poll, so the results are summarized below the fold. For a direct link to the poll's crosstabs, click here.

Ultimately, these results explain why it is impossible for elected Republicans to work with Democrats to improve our country. Their base are conspiracy mongers who don't believe Obama was born in the United States, that he is the second coming of Lenin, and that he is racist against white people. They already want to impeach him despite the glaringly obvious lack of high crimes or misdemeanors. If any Republican strays and decides to do the right thing and try to work in a bipartisan fashion, they suffer primaries and attacks. Even the Maine twins have quit cooperating out of fear of their homegrown teabaggers.

Given what their base demands, and this poll illustrates them perfectly, it's no wonder the GOP is the party of no.

"Given what their base demands, and this poll illustrates them perfectly, it's no wonder the GOP is the party of no."

Wow! It's almost like the poll knew exactly what you wanted it to say, dude!

Man did you get lucky!!!11!eleventy!!

Posted by: Ace at 09:10 AM | Comments (147)
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Best. Concert. Evah.
— Jack M.

Sure, bloggers often engage in a little hyperbole.

Even I, as level headed and objective as I am, have been known to engage in a little exaggeration from time to time.

Not this time tho. This time, I mean it.

This may have been the GREATEST. CONCERT. EVAH.*

I mean, don't take just my word for it, check out this review:

You get the Bruce Springsteen set, sorry."

Courtney Love muttered those words at some point during Hole's show Sunday night at the 9:30 club. It's hard to remember exactly when. Time seemed to stand still for so much of the evening. If she meant that we were in for a nearly three-hour concert, then yes, her statement was true. If she meant that we would experience a well-oiled rock-and-roll machine and everybody would leave feeling satisfied they got their money's worth ... let's come back to that one.

It's safe to say the people yelling "Bull[expletive]! This is bull[expletive]!" didn't feel like their $45 was well spent. There were more than a handful of patrons shouting and cursing at the endlessly controversial, occasionally coherent 45-year-old rock trainwreck. Many more simply headed for the exits. Three-quarters-filled at the start, the club was no more than a quarter packed by the excruciating end.

Make no mistake - this was an astonishingly awful performance that had few moments of redeeming musical value. Song titles, lyrics, guitar chords - Love remembered only some of them, and infrequently. Then again, what was really the best-case musical scenario? A competent recreation of songs more than a decade old, played by Love and her latest hired hands? Is that what people wanted to see - Courtney karaoke versions of '90s MTV buzz clips? Maybe. But probably not. Perhaps a bit more professionalism would have been nice but in 2010 you pay your $45 hoping for the Courtney Love Experience. And Sunday night was an experience like no other.

Yes. I was one of the 1/4 of patrons at the 9:30 Club who stayed through the whole, enchanting evening.

No, I was not the person referenced in the article who allegedly was "waiting to have sex with Love after the show."

But there is always next time. Oh yes. There is always next time.

Anyway, read the whole article. It really captures the trainwreck in all its derailed and dismembered glory.

*And by Greatest Concert Evah I mean an abject and total abomination. But, once you realized it was all gonna be downhill, the ride was a hell of a lot of fun.

UPDATE: Link added. Courtney Love isn't the only one who suffers from black-tar heroin inspired bouts of memory loss and...what was I saying?

Posted by: Jack M. at 08:25 AM | Comments (102)
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THAAD Interceptor Fails Again To Fail, Sadly Retaining Its 100% Success Rate
— Ace

This word you keep using, "inconceivable." I donna think it means what you think it means.

Pretty video at the link.

Obama: Hey, Let's Give Up On This While We Still Can! Let's f*** up as much sh** as we can.

The THAAD (terminal high altitude area defense) interceptor has been maligned for years as a failed, overly expensive missile defense system. That's mostly due to the missile's volatile initial testing phases during the mid-1990s, when the program was wrought with failure after failure -- not unusual for the testing cycle of any new weapon system, particularly one as sophisticated as THAAD. In early 2000, Lockheed engineers went back to the drawing board, worked out the bugs, and were back launching the hyper-accurate interceptor by 2005. There hasn't been a test failure since (just yesterday there was another successful intercept), a record sturdy enough for the Army to stand up two batteries of the critical system in the past two years. The launchers were designed explicitly to intercept SCUD type missiles, and are also capable of killing an ICBM payload when it's in the terminal phase of flight. Given the widespread proliferation of ballistic missiles, the need for such a weapon is pressing.

It's a shame then, that President Obama could inadvertently ban the THAAD system through yet another constricting treaty -- and I'm not talking about the START follow-on. Yesterday the New York Times reported that:

The Obama administration on Monday unveiled a space policy that renounces the unilateral stance of the Bush administration and instead emphasizes international cooperation, including the possibility of an arms control treaty that would limit the development of space weapons.

The author says the rubbishing of a hyperaccurate defensive missile might be an inadvertent casualty of Obama's policy -- DrewM. says he doesn't see anything inadvertent here at all.

Posted by: Ace at 07:35 AM | Comments (134)
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Confirmation Hearings
— DrewM

Two big hearings, Elana Kagan for the Supreme Court and General David Petraeus to command the International Security Assistance Force in Afghanistan.

Amazingly, neither are very exciting given that the outcomes in both cases the outcomes are more or less foregone conclusions.

At Petraeus' hearing he said that the July, 2011 'deadline' isn't the end-end.

"I believe there was value in sending a message of urgency -- July 2011... But it is important that July 2011 be seen for what it is: the date when a process begins, in which the reduction of US forces must be based on the conditions at the time, and not a date when the U.S. heads for the exits," he wrote to the committee. He stressed that multiple times that the pace of the drawdown would be "conditions based."

This of course is in contrast to Biden and Pelosi who have said that July 2011 is the end-end (as Whoppi might say).

In his questioning McCain got the general to admit that no military leader advocated for the time line announcement.

General Petraeus also addressed the issue of hearts and minds vs. restrictive rules of engagement.

"Focusing on securing the people does not, however, mean that we don't go after the enemy," he said. "In fact, protecting the population inevitably requires killing, capturing, or turning the insurgents. Our forces have been doing that, and we will continue to do that.

"I am keenly aware of concerns by some of our troopers on the ground about the application of our rules of engagement and the tactical directive," he added. "They should know that I will look very hard at this issue."

This is the 'fruit' of the Obama approach, no one knows what the hell he is thinking. Strategic ambiguity can be a good thing but not in a counter insurgency fight. One of the key tenets in fighting an insurgency is a steadfast commitment to fighting the fight. The enemy needs to know they can't wait you out and your in country allies need to know that you won't abandon them.

As always, Obama has found the worst possible option. In this case that means adding troops, scaring allies and emboldening the enemy.

Heck of a job Barack! Heck of a job!

On the Kagan front, she's getting hit on the Harvard ban on military recruiting but so far, nothing unexpected seems to have come out of it.

Posted by: DrewM at 07:07 AM | Comments (38)
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Clarence Thomas: The Privileges and Immunities Clause Shall Rise Again
— Ace

Thomas' concurrence rejects the Court's "incorporation" analysis and instead seeks to overturn 100+ year precedent, to base federal power to restrict the states on the Privileges and Immunities clause rather than the due process clause (long a bogeyman of endless mischief and sudden discovery of new "rights").

Neither Justice Alito for the plurality, nor Justices Stevens or Breyer in dissent, even attempted to impeach Justice Thomas’ analysis, which now stands uncontradicted in the Supreme Court Reports. Decades of academic research that has lead to a remarkable consensus among constitutional scholars that The Slaughter-House Cases was wrongly decided have now been vindicated. Only a remarkably tepid and barely defended assertion of stare decisis by Justice Alito now stands in the way of a complete restoration of the “lost” Privileges or Immunities Clause at the heart of Section One of the Fourteenth Amendment. Not that this will happen overnight. It took twenty-five years for Justice Powell’s lone 1978 opinion in Bakke — in which he accepted “diversity” as a rationale for affirmative action in schools — to be adopted by a majority of the Court in Grutter. But adopted it eventually was.

Thomas' analysis would not, if eventually accepted, end the principle that certain federal rights must be guaranteed by the states. But it would sharply curtail which rights could be found to be guaranteed, as his analysis is based on what was considered the privileges and immunities of free men from about the time of the Magna Carta to 1870.

The Court's opinion, and Scalia's concurrence especially, argue for an analysis that would get at pretty much the same result, but continue relying on the notion of incorporation. The Court (and Scalia) simply would substitute a fact-based historical analysis of which rights were considered fundamental at the time of the 14th Amendment's ratification in favor of Stevens' (and the other liberals') principle-free, restraint-free omniversal rights-discovery expedition.

Scalia's concurrence is a fun read. It's a very personalized F--- You to Justice Stevens, as it throws 40 years of Stevens' rights-discovery expeditions in his face, wondering where Stevens' now-asserted belief in judicial restraint came from, and where it's been all this time.

He particularly enjoys mocking the Kennedy opinion Stevens' joined in the Lawrence decision, wondering what judicial restraint was availing in sentences like this:

The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.

He keeps hitting Stevens' for discovering hitherto-undreamed rights while asserting that an age-old right isn't a right at all:

JUSTICE STEVENS also argues that requiring courts toshow “respect for the democratic process” should serve as a constraint. Post, at 23. That is true, but JUSTICE STEVENS would have them show respect in an extraordinary manner. In his view, if a right “is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not beappropriate.” Ibid. In other words, a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, apparently deserves less protection, while a privilege thepolitical branches (instruments of the democratic process)have withheld entirely and continue to withhold, deserves more. That topsy-turvy approach conveniently accomplishes the objective of ensuring that the rights this Courtheld protected in Casey, Lawrence, and other such cases fit the theory—but at the cost of insulting rather than respecting the democratic process.

Scalia continues his snarky F-You-Too mode:

JUSTICE STEVENS next suggests that the Second Amendment right is not fundamental because it is “different in kind” from other rights we have recognized. Post, at 37. In one respect, of course, the right to keep and bear arms is different from some other rights we have held the Clause protects and he would recognize: It is deeply grounded in our nation’s history and tradition.


And if anything bothers Scalia, it's the "Let's look at foreign courts to determine American rights" analysis.

No determination of what rights the Constitution of the United States covers would be complete, of course, without a survey of what other countries do. Post, at 40–41. When it comes to guns, JUSTICE STEVENS explains, our Nation is already an outlier among “advanced democracies”; not even our “oldest allies” protect as robust a right as we do,and we should not widen the gap. Ibid. Never mind that he explains neither which countries qualify as “advanced democracies” nor why others are irrelevant. For there is an even clearer indication that this criterion lets judgespick which rights States must respect and those they can ignore: As the plurality shows, ante, at 34–35, and nn. 28– 29, this follow-the-foreign-crowd requirement would foreclose rights that we have held (and JUSTICE STEVENS accepts) are incorporated, but that other “advanced” nations do not recognize—from the exclusionary rule to the Establishment Clause. A judge applying JUSTICE STEVENS’ approach must either throw all of those rights overboard or, as cases JUSTICE STEVENS approves havedone in considering unenumerated rights, simply ignoreforeign law when it undermines the desired conclusion, see, e.g., Casey, 505 U. S. 833 (making no mention of foreign law).

Scalia's concurrence is probably the best read for politicos, as it is less about the instant case than liberal judicial activism generally. It doesn't break a lot of new ground but one does sense Scalia baiting Stevens with the proposition: If you had adhered to a more principled and restrained view of jurisprudence, perhaps I would have found differently and joined you in your newfound belief in judicial restraint; but since we are, apparently, free to discover whatever rights suit our fancy, here's one I fancy. How you like me now?

The Actual (Plurality) Opinion: is underwhelming. To be honest, reading it made me less convinced that there is a historical right to bear arms that the federal government can press against the states.

As a general rule, I'm skeptical of any assertion of a "right" that takes legislative power away from the people, even if I'm in basic agreement of the wisdom and policy choice behind such a "right."

And the actual ruling gave me more doubt, not less, that this is such a well-grounded right that it should be incorporated in the 14th Amendment (or the P&I clause, as Thomas would have it).

The part that I find most troubling is the Court's statement that because 22 of 37 state constitutions at the time of the 14th Amendment guaranteed the right to bear arms, that's a "clear majority" proving the right was considered "fundamental."

Now wait a minute -- if 22 of 37 guaranteed it, 15 of 37 didn't guarantee it, and that not really an overwhelming majority -- that's a bit better than half, but not by much. If 15 of 37 states didn't consider the right to be fundamental, doesn't that mean it's an open question for state legislatures?

I had expected this assertion to be followed up with something like "Even in the 15 states whose constitutions did not, specifically, guarantee the right to bear arms, state law operated to produce the same effect, see, e.g., New Jersey state code...," but no such examination of the states' codes follows their 22 of 37 is a clear majority statement.

Such an examination would, I'm guessing, probably support the 2nd Amendment's applicability to the states, but as the Court doesn't bother conducting the examination, I'm troubled.

Twice-Limited vs. Once-Limited: Actually, now that I think about it, I think the Court's approach is superior to Thomas', in terms of judicial restraint.

In Thomas' framework, a right becomes guaranteed if it passes one test:

1) Was this a privilege or immunity grounded in our nation's tradition at the time of passage of the 14th Amendment?

Whereas the Court's framework has two prongs:

1) Is this a specifically announced right in the Bill of Rights?

2) Was this right grounded in our nation's tradition at the time of the passage of the 14th Amendment?

The Court's approach strictly limits itself to rights that can be found in the Bill of Rights and which are also rooted in our nation's history. Whereas Thomas (a believer in Natural Law) can discover many rights outside the Bill of Rights, so long as he can argue they're rooted in history.

This can be used for purposes of conservative judicial activism (which is no better than the liberal sort). I also think it can be used for liberal judicial activism, too.

Take abortion. A liberal court finds that doctor-patient confidentiality has long been recognized by the law as a fundamental right. They then say the principle underlying this right is full and total medical autonomy, and thus it is a privilege and immunity of a citizen to have any procedure he likes without state interference; they argue they're just giving the basic principle a fuller reading, not inventing anything new per se.

If that sounds made-up and fake, well, they do that thirty times a year.

In the Court's framework, this wouldn't be possible, at least accepting that the universe of federally-enforceable rights is strictly restricted to those in the Bill of Rights.

Posted by: Ace at 06:29 AM | Comments (138)
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Top Headline Comments 6-29-10
— Gabriel Malor

Posted by: Gabriel Malor at 04:02 AM | Comments (190)
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Tuesday Financial Briefing
— Monty

Equities ended mostly unchanged yesteday. The Dow closed at 10,138.52, and the S&P 500 closed 1,074.57.

My intellectual betters at the Fed think I should just shut up and leave the economic opinionating to the experts. What do I say to that? Only that my mighty two credits of night-school Economics 101 from the Lake Pakawakashchumwatty Institute of Economics, Welding, and Diesel Repair is more than a match for your Ivy League ineptitude, gentlemen! The gauntlet is thrown! I demand satisfaction! From my trailer on the outskirts of town, I stab at thee! For hate's sake, I spit my last gulp of cheap-ass rotgut whiskey at thee!


Posted by: Monty at 01:36 AM | Comments (140)
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June 28, 2010

Al Gore: Release My Second Chakra
— Ace

It's just crazy enough to possibly be true.

Gore said he was tired from travel and described in detail the massage he wanted. It included work on the adductor muscles, which are on the inside of the thighs. "I mentally noted that a request for adductor work is a bit unusual," the masseuse told police, because it can be "a precursor to inappropriate behavior by a male client."

Gore also requested work on his abdomen. When that began, "He became somewhat vocal with muffled moans, etc.," the masseuse recounted. Gore then "demand[ed] that I go lower." When she remained focused on a "safe, nonsexual" area, Gore grew "angry, becoming verbally sharp and loud."

The masseuse asked Gore what he wanted. "He grabbed my right hand, shoved it down under the sheet to his pubic hair area, my fingers brushing against his penis," she recalled, "and said to me, 'There!' in a very sharp, loud, angry-sounding tone." When she pulled back, Gore "angrily raged" and "bellowed" at her.

Then, abruptly, the former vice president changed tone. It was "as though he had very suddenly switched personalities," she recalled, "and began in a pleading tone, pleading for release of his second chakra there."

"Chakra," in Gore's new-agey jargon, refers to the body's "energy centers," which the masseuse interpreted as having a specific meaning. "This was yet another euphemism for sexual activity he was requesting," she told police, "put cleverly as though it were a spiritual request or something."

Posted by: Ace at 08:23 PM | Comments (163)
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Overnight Open Thread
— Maetenloch




Five Realistic and Tough To Watch Movie Plane Crashes

If you're afraid of flying, you may want to skip this item.

The Cast Away crash scene is pretty scary and about what I'd expect to happen if you crashed at night in the middle of the Pacific. But I find the crash scene from ALIVE to be harder to watch. Mostly because it's a true story and happened pretty much as the movie shows it. Plus you know that they've got 72 days of starvation and cannibalism ahead of them in the Andes. And as one commenter mentioned the crash at the end of United 93 is also almost unbearable to watch after everything the passengers went through.


Posted by: Maetenloch at 04:24 PM | Comments (805)
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Mike Malloy: I'll Drink Iced Champagne When Cheney Dies
— Ace

Aw, baby wants attention.

RadioEqualizer puts it cleanly:

While reaction to [Senator Byrd's] passing is examined syllable-by-syllable by the left's partisan sensitivity screeners, expect the hate emanating from the own side to once again be ignored.

McCaskill Aide: Tea Partiers Are Just Like Hitler's Brownshirts. No, really.

Posted by: Ace at 03:46 PM | Comments (106)
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Japanese Game Show Mixes Electrocution, Boob Bowling
— Ace

I think they just spin a couple of Aunty Enitity Thunderdome wheels and make a game show out of the results.

Posted by: Ace at 01:01 PM | Comments (92)
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Secretary of State Natalie Tennant: There Will Be No Special Election; Governor's Hand-Picked Seat-Warmer Can Hold Seat Until 2012
— Ace

I hope to God someone lodges a lawsuit.

They want to handle this scam by having a Special Election in 2012 for five or six weeks left in Byrd's term (Nov. 2012 to Jan. 2013) and also a general election for a term starting in January 2013.

Oh: ZeroSheep predicted just this.

I still want a lawsuit, though.

Posted by: Ace at 12:12 PM | Comments (80)
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Unemployment and Bastiat's "Broken Window" Parable
— Monty

(I don't want to steal any of Ace's daytime-posting thunder, so I'm going to keep most of this post "below the fold" for those interested.)

I meant to post this as a snarky aside in one of my "Daily Financial Briefing" posts and then move on, but given how I feel about most of Megan's stuff, I think it deserves a post of its own. If only because other people (like Insty) take Megan seriously in spite of the dearth of seriousness shown in many of her posts.

The item in question:

Megan McArdle's (Suderman's?) heart bleeds for the unemployed.

Posted by: Monty at 11:37 AM | Comments (202)
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More Byrd: Previous Case on Filling Vacancies May Support Democrats Keeping Unelected Appointee In Seat
— Ace


This as to do with ZeroSheep's point: One part of the law specifies the need for a special election. Another part of the law, though, specifies timing requirements that seem to put off a special election... until the actual regularly-scheduled election.

From cinyc:

There is settled case law on the point. In '94, Kanawha Co. Circuit Court Judge John Hey resigned in April. A local GOP party chairman sued then-Gov. Gaston Caperton (D) to try and compel a special election for the following Nov. The state Supreme Court, in Robb v. Caperton, ruled against the local party chairman and said Caperton's appointee would serve until the '96 election, when the office would have come up for election anyway.

With an election set for more than 2 years away, Manchin has the chance to pick a successor to hold Byrd's seat. It has been an open secret in the Mountineer State for years that Manchin covets a Senate seat, and his second term as the state's chief executive expires after the '12 elections -- meaning he could very likely appoint himself.

Manchin is hugely popular -- the latest survey, conducted Aug. 27-30 of last year by Mark Blankenship Enterprises, gave Manchin a 78% approval rating, 9 points higher than Byrd's -- and his candidacy would give Dems a good chance of holding a seat that, at a presidential level, has trended away from them in recent years.

Dusty posts this language, though:

(b) Except as otherwise provided in article ten of this chapter, if any vacancy occurs in a partisan office or position other than political party executive committee, which creates an unexpired term for a position which would not otherwise appear on the ballot in the general election, and the vacancy occurs after the close of candidate filing for the primary election but not later than eighty-four days before the general election, a nominee of each political party may be appointed by the executive committee and certified to the proper filing officer no later than seventy-eight days before the general election. Appointments shall be filed in the same manner as provided in subsection (a) of this section, except that the filing fee shall be paid before the appointment is complete.

He then comments:

In (b), it provides for cases where the standard procedure described in 3-10-3 does not apply. Some might point to the "Except as otherwise provided in article ten of this chapter" saying this supercedes the this provision (b) and it must go through all the standard procedures of an election, but the WV Consitution makes it pretty clear the vacancy must be filled by via the next General Election, which is 2010. This 3-5-19 provision clears the way to the very reasonable, (shortest reasonable) cutoff time of 84 days prior to the next General Election.

An elected Senator for two years is much better than one appointed for 2.5 years, and isn't that the purpose for having all these provisions to get an elected official in a vacant position?

cinyc counter-points that section ten is the one about the need for the primary, etc., and is the section relied upon to resolve the previous case about a judgeship vacancy.

I don't know. I kinda want that seat contested, obviously.

Posted by: Ace at 11:01 AM | Comments (86)
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Roger Ebert, Submoron
— Ace

Twittering sarcastically...

"At Least 29 Shot In Chicago Over The Weekend." It's the fault of our damn unconstitutional gun laws.

This is so insensible I would feel dirty having to point out what makes it so dumb.

Roger Ebert, Person of Stupid.

This is like that NYT writer who wrote twenty articles asking the same question: How can it be that crime rates are falling if our prison populations are growing?

Via GPollowitz.

BTW: Hey, dude, thanks for the three-and-a-half star recommendation for The Phantom Menace.

I f it were the first "Star Wars" movie, "The Phantom Menace" would be hailed as a visionary breakthrough. But this is the fourth movie of the famous series, and we think we know the territory; many of the early reviews have been blase, paying lip service to the visuals and wondering why the characters aren't better developed. How quickly do we grow accustomed to wonders. I am reminded of the Isaac Asimov story "Nightfall," about the planet where the stars were visible only once in a thousand years. So awesome was the sight that it drove men mad. We who can see the stars every night glance up casually at the cosmos and then quickly down again, searching for a Dairy Queen.

"Star Wars: Episode I--The Phantom Menace," to cite its full title, is an astonishing achievement in imaginative filmmaking.

So awesome it drives men mad.

I suppose it must be.

Always trust content from Roger Ebert.

Posted by: Ace at 09:09 AM | Comments (298)
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