I conclude that Pub. L.109-3 ("the Act") is unconstitutional
THERESA MARIE SCHINDLER SCHIAVO versus MICHAEL SCHIAVO
...the Emergency Petition for Rehearing En Banc is DENIED.

BIRCH, Circuit Judge, specially concurring:

In resolving the Schiavo controversy it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance of a free people — our Constitution. Since I have sworn, as have they, to uphold and defend that Covenant, I must respectfully concur in the denial of the request for rehearing en banc. I conclude that Pub. L.109-3 (“the Act”) is unconstitutional and, therefore, this court and the district court are without jurisdiction in this case under that special Act and should refuse to exercise any jurisdiction that we may otherwise have in this case. [...]

...when the fervor of political passions moves the Executive and the Legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene. If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow.
(emphasis in original)

Tom DeLay on Terri Schiavo's death:

This loss happened because our legal system did not protect the people who need protection most, and that will change. The time will come for the men responsible for this to answer for their behavior, but not today.

Edward Kennedy on Tom DeLay:

Mr. DeLay's comments today were irresponsible and reprehensible. I'm not sure what Mr. DeLay meant when he said 'the time will come for the men responsible for this to answer for their behavior.' But at a time when emotions are running high, Mr. DeLay needs to make clear that he is not advocating violence against anyone ...

=====
NOTES: Birch opinion via Politology, DeLay quote via Lindsay Beyerstein, Kennedy quote via Shakespeare's Sister.
UPDATE, 4/4: Brett Marston on Tom DeLay: "If only. 2006, baby." Heh. posted by Thomas Nephew at 9:29:00 PM -- |    

 
US, Uganda flunking their ABCs?
Human Rights Watch has issued a scathing report about the Bush administration undermining a historic, successful program in Uganda to stop the spread of HIV. That effort, known as "ABC" -- "abstain, be faithful, use condoms" -- is a three-tiered approach waged for some 20 years now to encourage responsible sexual behavior. The country has reduced adult HIV prevalence to under 10% -- a huge improvement from the catastrophic levels of the 80s and 90s.

In The Less They Know, the Better: Abstinence-Only HIV/AIDS Programs in Uganda, HRW authors describe how Ugandan President Musaweni, his wife, and others appear to be dropping the "C" component of that strategy, with Bush administration dollars and advice luring them onward. From the HRW summary:

Widely hailed as a leader in the prevention of human immunodeficiency virus/acquired immune deficiency syndrome (HIV/AIDS), Uganda is redirecting its HIV prevention strategy for young people away from scientifically proven and effective strategies toward ideologically driven programs that focus primarily on promoting sexual abstinence until marriage. [...]

...In November 2004, the Uganda AIDS Commission (UAC) released a draft "Abstinence and Being Faithful (AB)" policy to guide the implementation of abstinence-until-marriage programs throughout the country. Intended as a companion to the country’s existing strategy on the promotion of condoms, the policy in fact undermines condoms as an HIV prevention measure and suggests that promoting condoms alongside abstinence messages would be "confusing" to youth. [...]

As the largest single donor to HIV/AIDS programs in Uganda, the United States is using its unparalleled influence to export abstinence-only programs that have proven to be an abject failure in its own country. No less than twelve U.S. government-funded evaluations at the state level have shown that U.S.-based abstinence-only programs have little influence on participants’ sexual behavior and may cause harm by discouraging the use of contraception.

The report singles out the Ugandan "Presidential Initiative on AIDS Strategy for Communication to Youth" (PIASCY) as one of the principal programs peddling abstinence-only dogma to Ugandans -- with strong support if not to say direct guidance from the principal U.S. development agency, USAID:

At the same time that religious organizations were voicing their concerns about the content of the PIASCY materials, an employee of the USAID-funded AIDS/HIV Integrated Model District Program (AIM) contacted the Ministry of Education and cautioned that it would be necessary to re-work the books so that they would be acceptable to everyone.⁸⁵ The AIM employee relayed that AIM had considerable experience with schools in many parts of the world and that parents rejected books that were too graphic or explicit. Following this intervention, AIM sponsored and paid for the stakeholders’ meetings that included religious groups not involved in the initial consultative process. AIM later facilitated the publication of the two primary teachers PIASCY volumes. In 2003, USAID also placed a technical advisor at the Ministry of Education to coordinate the PIASCY materials and oversee the content of the materials.

Their truth is marching on. It should be said that that some Ugandans take issue with the HRW report. A KaiserNetwork.org news item notes:

Officials and church leaders in Uganda called the HRW report "seriously flawed," saying it lacks "factual basis," according to the AP/Independent Online (AP/Independent Online, 3/29). "The president and the first lady are being misunderstood," Museveni spokesperson Onapito Ekomoloit said, adding, "They have been consistent in advocating for a multipronged approach. [Museveni] says those who are sexually active should be faithful. Others should abstain, and those who cannot abstain should use condoms" (Guardian, 3/30).

But as Guardian health editor Sarah Boseley reported:

Government-sponsored youth rallies have also cast doubt on condom use, says the report. At one rally it was said that using a condom to protect against disease was like 'using a parachute which opens only 75% of the time'.

In October the government withdrew all free condoms, saying they had failed quality control tests, and imposed new tests on all imports.

This is shaping up as a public health policy tragedy: the Bush administration is helping Uganda's misguided leaders screw up one of the single best success stories in reducing HIV transmission rates in Africa. Maybe this marks the Rovian approach to public health: turn it into a culture war, find the strongest point of your opponent, attack it, and destroy it. Trouble is, it's not just politics this time -- thousands upon thousands of lives are threatened.

Last summer, I prematurely celebrated Bush's apparent campaign trail turnabout on condoms as an element of AIDS prevention. It's time to remind him of his own words:

We can learn from the experiences of other countries when it comes to a good program to prevent the spread of AIDS, like the nation of Uganda. They've started what they call the A.B.C. approach to prevention of this deadly disease. That stands for: Abstain, be faithful in marriage, and, when appropriate, use condoms.

=====
Selected prior posts on condoms, HIV, and the Bush administration:
Condom sense (February 22, 2003)
HIV, condoms, women, drugs, Africa: a New York Times teach-in (March 2, 2003)
Bush plan off to very slow start (September 19, 2004) posted by Thomas Nephew at 12:02:00 AM -- |    

 
Good joke: Michelle Maklin
Brilliant. posted by Thomas Nephew at 5:07:00 PM -- |    

 
No joke: in memoriam Fred Korematsu

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a farm more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.

--Robert Jackson, dissenting, Korematsu v. United States

Quote, link, and emphasis via Scott Lemieux ("Lawyers, Guns, and Money").

Mr. Korematsu died today at the age of 86. For more on the World War II Japanese internments, see these two posts following the Malkin/Muller debate last year following the publication of Ms. Malkin's book "In Defense of Internment": Muller vs. Malkin; Malkin vs. Muller.

Professor Muller has posted a testimonial about Mr. Korematsu. The Times headline said he lost his lawsuit; I hope that he has won in the court of public opinion, and that Malkin has lost -- see above. posted by Thomas Nephew at 5:06:00 PM -- |    

 
Sad joke: Congress acts in health care emergency
Via The Health Care Blog:

Last week a young Florida child sank into a coma. Due to recent cutbacks, he wasn't eligible for the state CHIP program and with no health insurance and precious little money available from her job at Wal-mart, his mother had skipped on taking him to the ER until it was too late. With a sudden realization that American health care was in crisis, late last Saturday night Congress passed a bill completely changing the nation's health care system. President Bush flew in from yet another vacation to sign the new law, saying that the health care system ought to preserve the culture of life. Evangelical religious groups picketed Congress holding banners denouncing the impact of the lack of health insurance and the high cost of health care for poor and middle class Americans. [...]

Sage editorials in the major newspapers explained that the Florida tragedy had at least had the virtue of having families in the nation discuss whether or not they wanted access to health insurance. Sadly the young boy died unaware that his fate had transformed a nation.

posted by Thomas Nephew at 5:05:00 PM -- |    

 
Maryland legislators target Wal-Mart freeloading
Steven T. Dennis and Catherine Dolinski of the Montgomery County Gazette report:

The House of Delegates and Senate Finance Committee voted Friday to impose an 8 percent payroll tax on large companies that do not spend that much on health care for their employees.

On Tuesday, however, the Senate Budget and Taxation Committee voted to recommend that part-time workers be excluded from the bill.

The Fair Share Health Care plan would tax the payrolls of companies of 10,000 employees or more, and has been dubbed by many as the 'Wal-Mart tax' based on the assumption that only Wal-Mart would be affected.

Advocates say the change by Budget and Taxation would exempt Wal-Mart and are hoping that Finance, the main committee on the bill, will reject the recommendation.
(link added)

The bill actually requires large employers to make up the difference between its health care benefits and 8% of its payroll. Any funds collected could only be used to support the Medicaid program.

According to an analysis by the Maryland Department of Legislative Services, just two other Maryland employers -- the Giant supermarket chain and Johns Hopkins University -- have over 10,000 employees. Under the Fair Share act, Wal-Mart would need to spend about $22 million either in health benefits for its 14,301 Maryland employees, or in the Medicaid-earmarked tax to the state of Maryland.

This is a great idea, and deserves your support. Wal-Mart is shifting health care costs to state after state, as studies in Arkansas, Georgia, California, Tennessee, North Carolina, and many other states show. As CE Petro points out, this effectively gives Wal-Mart another unfair swipe at its upstanding competitors who pay decent health benefits.

If you're a Marylander, it's worth a letter or e-mail to your state senator; here's a locator to get you started. If you're not lucky enough to live in our fair state, suggest it to your own state representatives.

=====
UPDATE, 4/4: The bill had already passed the House on 3/24 (blush), but will be considered by the Senate; a hearing is scheduled for this Wednesday. Hence, "delegate" was changed to "state senator" above. Note that it's particularly important that the "part-time" exemption be dropped, since Wal-Mart's strategy has always been to avoid paying benefits by mainly hiring part-time workers. posted by Thomas Nephew at 10:55:00 PM -- |    

 
All hail the Volunteer Tailgate Party
More Tennessean and ex-Tennessean blogging over at "Domestic Psychology". (And congrats on "Omega"! We called ours "Schmendrick" until the sonogram convinced us it should be "Schmendrina.")

A new addition to the wide, wide world of Tennessee blogging: Communists for Tenncare (link to "Manifesto"). I'm still working out whether it's a dirty trick site by opponents of the beleaguered health care program, an ally with a tongue-in-cheek campy communist schtick, or whether maybe it's -- gasp -- just what it says it is. So far, I lean to door number two, because they actually link to information about April 8 protest marches, the "funny" aspect trumps the "communist cooties" one, and maybe because I've just never met any communists for Tenncare before.

Appalachia Alumni Association is another interesting site (again). Liz writes about pharmacists who refuse to fill birth control and other prescriptions to which they have religious/moral objections, and describes efforts in her current home state of Texas to expand the class of medical professionals and organizations who can refuse care for such reasons. Noting that "the Supreme Court has affirmed that a woman has an inalienable constitutional right to health care options relating to reproduction up to and including abortion," she argues:

This is not a question of health care policy, but of political power. While it would be unthinkable for a cafe owner to deny service to non-Christians for conscientious reasons, somehow the matter of health care providers denying service to women for conscientious reasons is tolerable.

This is an interesting argument, even if it finesses a key difference; in one the service is denied because of who the client is, in the other because of what the service is. I also think there's a certainly a right to expect not to face criminal penalties for abortion or birth control, but I'm not sure there's a right to expect the availability of either option. I feel like I should know this or have come to a conclusion about it, but I don't and I haven't. Please feel free to sharpen your pens and enlighten me.

Even assuming there were such a right to availability, I'm uneasy demanding that a given individual pharmacist help a woman exercise it. I'd (very much) support pro-choice legislators enacting policies discouraging -- but not forbidding -- "conscience" based service denials by economically favoring pharmacies that don't do that, and encouraging pharmacies to serve the unmet reproductive health needs of women. Of course, there's no such legislature in Texas -- but if there's a legal market, wouldn't some pharmacies want to fill the void?*

A note: I wish even more of the lefty-liberalish Rocky Top Brigade folks would submit entries to these "tailgate parties." There's nothing wrong with having a look at the best of, say, Les Jones, No Quarters, or SayUncle, but I've missed Brian Arner, C.E. Petro, Democratic Veteran, Smijer & Buck, and the group over at Dark Bilious Vapors the last several times, to name a few. (Southknoxbubba too, for that matter! I assume he gets the e-mail announcements.) They've always got some good posts, so head over and give them a look, too.


=====
* I go back and forth on the general question. I think the situation is different with hospitals and their doctors, because it can be substantially harder to commute to a new hospital than to a new pharmacy. I'm also guessing it's harder for new hospitals or clinics to be added to a market than it is for a new pharmacy. So as of now I think hospitals should provide options by having doctors who will, but pharmacies shouldn't have to; I'm open to counterarguments. (EDIT, 3/31: 'commute' for 'find'.) posted by Thomas Nephew at 5:50:00 PM -- |    

 
Bankruptcy bill vote soon: make 'em sweat
Tunesmith ("Politology") reminds everyone:

This is the final week of recess before the House returns to vote on H.R. 685, the Bankruptcy Bill. This is the right time to call your congresscritters and tell them to vote No, or ask them to defend their intended Yes vote.

The House is so far gone that it's not realistic to expect that the bill will be stopped. But Congress is unprincipled on this matter. They know it is a bad bill and are only passing it because of the lack of opposition. Registering your opposition is important.

In a comment, bankruptcy attorney Karen Clark points out a key provision:

Bankruptcy attorneys like myself will be held liable, through fines, for mistakes made by our clients. It will be difficult, and in many cases impossible, to ascertain the absolute accuracy of client-provided information. Bankruptcy clients have little money and will not be able to pay for the time an attorney would have to spend researching the client’s financial status and history.

She also writes a good letter to her representative, some of which you might use as a starting point for your own. Tunesmith provides a couple of contact information lists of Congressperson especially responsible for the bill.

For more on this issue, see this earlier post of mine, or head over to Talking Points Memo: Special Bankruptcy Bill Edition. posted by Thomas Nephew at 5:20:00 PM -- |    

 
Consider my conscience shocked
The American Prospect's Tara McKelvey reports ("Ritual Abuse"):

Officially, stricter guidelines for interrogations have been issued: A December 31, 2004, Justice Department memo redefines torture and limits what interrogators can do. But it’s not clear where things are headed. Congressional leaders are considering legislation that might provide an allowance for using “coercive techniques” that could “shock the conscience” (a phrase used in a 1952 Supreme Court case) when, as Representative Jane Harman said in a speech at Georgetown University on February 7, 2005, “the president believes there is 'an urgent and extraordinary need.'"

But when won't it be "urgent and extraordinary"? John Pike, of Globalsecurity.org, thinks torture or abuse may have been used to zero in on Saddam Hussein. He doesn't seem to have a problem with that:

"Everybody says, 'Well, torture doesn’t work.' It may not work on an individual, but if you put enough people to the question, it can provide information. The people being tortured might not have known where Saddam was, but they know somebody who might know." When asked if other methods could have been used, Pike laughs. "They could have said, 'Pretty please,'"he says.

Ha. Ha. Doesn't anyone think we just might be earning ourselves deep hatred with these tactics? Recently Paperwight observed, about 'ineffective' techniques used at Guantanamo: "It's not torture for the hell of it, or even torture for deterrent effect. It's torture for the purpose of training torturers by cycling interrogators through Gitmo, allowing them to ply their new trade on the indefinitely detained." Human rights workers have the same worry. McKelvey :

Sleep deprivation, military dogs, and other aggressive methods have been used in an effort to ferret out information from detainees at Guantanamo Bay and in Afghanistan, where eight men have died in U.S. custody, according to Human Rights Watch researcher John Sifton. The methods have been criticized for their inefficiency and brutality (an FBI agent calls them “torture techniques” in a December 5, 2003, e-mail recently released by the American Civil Liberties Union). Yet public discussion of the techniques, says Sifton, has fallen into a "conceptual lacuna."

"People are leaving out whole aspects of the issue, trying to fit it into a simple narrative," he explains. "They say, 'It’s just the night shift at Abu Ghraib.'"

It’s a shame, say human-rights workers, because these techniques may be implemented in the future -- if not on Iraqis like Mohamed (that will be left to local police) then on those picked up elsewhere. In other words, say human-rights experts, this is how we do business in Iraq and, possibly, in other countries down the road.

posted by Thomas Nephew at 1:37:00 AM -- |    

 
Good enough for me but not for thee
It's been said that "hypocrisy is the homage vice pays to virtue." But it's also been said that "...hypocrisy ha[s] ample wages, but truth goes a-begging."

Exhibit A is a 1999 Pittsburgh Gazette article:

A Virginia jury last night awarded the wife of Sen. Rick Santorum $350,000 in damages after she charged in a lawsuit that a Virginia chiropracter's negligence caused her permanent back pain. [...]

Roll Call, a newspaper that covers Capitol Hill, reported that Santorum testified Monday that his wife might not be able to actively campaign for his re-election next year because of her pain. "She has always been intricately involved in my campaigns," he testified.
(via Josh Marshall)

That's odd -- according to TomPaine.com,

In 1994, Santorum sponsored the Comprehensive Family Health Access and Savings Act that would have capped non-economic damages at $250,000. In a 1995 floor speech supporting damages caps, Santorum said, "We have a much too costly legal system. It is one that makes us uncompetitive and inefficient, and one that is not fair to society as a whole. While we may have people, individuals, who hit the jackpot and win the lottery in some cases, that is not exactly what our legal system should be designed to do."

According to a January 2000 "American Politics Journal" posting, only $18,800 of the $375,000 windfall were for medical expenses. The rest of the award -- later summarily reduced by the judge to $175,000 -- was for "pain, suffering, and anticipated future medical costs."


Exhibit B is an L.A. Times article from last Sunday.

DeLay has denounced Schiavo's husband, as well as judges, for committing what he calls "an act of barbarism" in removing the tube.

In 1988, however, there was no such fiery rhetoric as the congressman quietly joined the sad family consensus to let his father die.

DeLay has also called Mr. Schiavo's and Florida courts' decisions "medical terrorism," and "murder.' Since few things are exactly alike, DeLay's spokesmen now focus on the precise technology used to keep the body alive (ventilator versus feeding tube). More importantly, of course, DeLay was was minding his own business then, as opposed to what he did two Sundays ago. The L.A. Times' Walter F. Roche Jr. and Sam Howe Verhovek add:

There were also these similarities: Both stricken patients were severely brain-damaged. Both were incapable of surviving without medical assistance. Both were said to have expressed a desire to be spared from being kept alive by artificial means. And neither of them had a living will.

posted by Thomas Nephew at 12:17:00 AM -- |    

 
Words from around the internets
I'm using this post to bookmark some very interesting posts I've run across over the last several weeks, and briefly respond to them. "Very interesting" will not always mean "attaboy" or "gee, I wish I were more like her"; I may not agree with the writer 100%, or even 75%, or even think he or she has fully grokked what he/she is saying.

Rather, some of these posts stand out as surprising re-evaluations of long-held positions. Others are valuable analyses that synthesize a new or more coherent view of the world. Others still are simply those lovely, snarky jabs it is the blogosphere's constitutional role to provide. And one was highly revealing and disappointing. In no particular order, and skipping the usual "vias":

I miss Republicans (Kung Fu Monkey)

They were the grown-ups. They were the realists. Sure they were a bummer, maaaaan, but on the way to La Revolution you need somebody to remember where you parked the car.

Let's not get too misty-eyed about the old days, but I'd sure rather have a beer with George Schultz than George W. Bush, let alone Rotgut DeLay. The Star Wars missile defense stuff is also particularly good.

Dumb Media (Avedon Carol)

Dear Dana Milbank,

You say:

Imagine that! An independent press looking for the truth rather than serving as stenographers for the powerful. It's a quaint tradition Americans would be wise not to abandon."

Oddly enough, that's just what I, a liberal partisan, want from you as well.

Going from there, Carol exposes Milbank's false equivalences of "on the right and the left" for the lazy writing and thinking they are. I particularly liked this part:

We don't just read left-wing resources. We find that we have to read damn-near everything to find out what's going on. That makes it impossible to rely on our local newspapers, because we know that the facts come out in dribs and drabs in newspapers and magazines all over the nation - indeed, all over the world. Why should we have to rely on the Guardian to find out what the United States is doing? Why aren't these things on the front page of The Washington Post and The New York Times? Why are some stories - legitimate, important stories - left to Salon and The New Yorker, rather than covered by the major papers? Why is it that I can find the right-wing spin in The Washington Post but don't even find out what the liberal response is until I read The Nation?

If only the roles were reversed... i.e., Carol reporting for the Post and Milbank relegated to blogworld. This may be the most important post of this bunch. You know the rest: Read the Whole Thing.

How You Became Crazy (Avedon Carol)

See, it doesn't really matter whether more journalists are liberal or conservative if most of the self-identified partisan conservatives are acting as stooges in a Solomon Asch experiment.

The Solomon Asch experiment is a very useful paradigm indeed for information management today. Ms. Carol describes American journalists functioning as collaborators in what looks, from the outside at least, like an only marginally democratic country (given the questions remaining about the 2004 election). Prove her wrong, please, or work to make it wrong again; it's tougher than you think.

Required blogging topic #5,271,009 (Jim Henley)
Writing about the tug-of-war over Ms. Schiavo between her husband and parents, Henley wondered,

Legalities aside, why not make the switch of responsibility and send everyone on their way?

Henley deserves great credit for plainly stating his very humane reservations about the case -- the more so since they seem to cut against the usual libertarian grain. As I pointed out in the comments -- with self-indulgent wording, I'm afraid -- I think he had a similar difficulty with guardianship as a right and contract of its own in that other notorious Florida case, Elian Gonzales. It might have the start of a good discussion, had I begun it better.

Grump (Henley)

Like as not, the collective characterizing of a media phenomenon as a “circus” is a social defense mechanism - we set the lid back on the jar and walk away with a nervous whistle. That civil war was probably sour anyway.

Yes. The Schiavo affair is "theater" in the several meanings of that word, not "circus." I'm no happier about it for that, but it was (and still is) undeniably important.

I Should Have Kept The Receipt (Michele Catalano)
This was getting a lot of attention before the Schiavo affair heated up. Catalano ("A Small Victory") was a vociferous pro-Bush voice before and immediately after the election. But now she's not just having second thoughts, she's getting off the train:

So what is it that's causing my "buyer's remorse" as it's been called? It's a combination of things, and most of it stems from the fact that I was a one issue voter in 2004. And now, the issues I ignored in order to give my support to the war on terror are coming back to haunt me. [...]

What we all have in common is this: we feel used. We feel taken advantage of. We feel manipulated.

Self-manipulated as well, to be sure. Catalano came in for a lot of deserved criticism from folks like Roy Edroso, who could cite her own election campaign vitriol chapter and verse. (Like I say: reads the right when I don't want to.) Still: I sense a disturbance in the Force. It's not just social issues that have driven Catalano off the reservation; Iraq bothers her, too.

It behooves me to mention that the boat I'm in is not utterly different than Catalano's; after some vacillation, I swung to supporting the Iraq war in the months before it began. (See "Selected posts" if you enjoy following my political back and forths). The intelligence failure of WMD and the moral failures of Abu Ghraib etc. -- and the Bush administration's limp/defiant/insouciant responses to both -- changed that for me well before the November election. It's not clear to me that either failure really registered with Ms. Catalano.

I'm afraid I muddied the waters in the comment sections to some of these posts, but I respect writers who are willing to invite the "I can't believe you, of all people..." comments some of these writers got. It's a good example. On the other hand, unvarnished self-revelation isn't always edifying, even if delivered in the measured cadences of a university law professor. I'm referring, of course, to

Something the Iranian Government and I agree on (Eugene Volokh)
Writing about the Iranian execution of a serial killer, Volokh revealed:

I particularly like the involvement of the victims' relatives in the killing of the monster; I think that if he'd killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing — and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act — was a slow throttling, and was preceded by a flogging.

Since then Volokh was quickly, almost conveniently persuaded by Mark Kleimann's arguments to concede "error." But the original sin remains unforgotten. I'm reminded of Markos' Zuniga's unfortunate comment about the contract personnel killed and desecrated in Fallujah last year. Zuniga came in for what I thought was justifiable criticism, and the incident continues to be recalled wherever Kos-bashers congregate.

But Kos didn't dress up his verbal impulse with pseudo-ethical reasoning. Volokh is frequently mentioned as a candidate for higher judicial office. I frankly hope that's at an end now, but I rather suspect it isn't. The whole thing had the feeling of an "underneath, I'm like you" strip tease. Hardened death penalty supporters have Volokh's original position; the rest of us will be directed to the recantation.

In a different vein, at least one part-time blogger commits actual reporting, and deserves your attention:

The Pentagon's Secret Stash (Matt Welch)
Subtitle: "Why we’ll never see the second round of Abu Ghraib photos".

Welch fingers the usual suspects like Rumsfeld, plus some somewhat more surprising ones like John Warner, and a very surprising one named Carl Levin. There's no good time to reveal stuff like this, and I don't envy Levin his job. But if Welch is right, the Senator from Michigan needs to at least change his tune now.

Finally, in the "unwelcome news" category:

Thanks and farewell (at least for now) (publius, "Legal Fiction")

You'll be missed.

posted by Thomas Nephew at 10:30:00 AM -- |