Touché

Eric Raymond on the mainstream media:

They’d rather cover fictional riots in New Orleans than factual ones in Orleans, if only because they can more easily blame George Bush for the former.

A Timely Reminder

Just about when some of us were wondering just what the hell was the point of Republican control of Congress, if they kept behaving like Democrats, and even asking whether there was any longer a difference between the two, and whether it wasn't perhaps time for a change, comes this reminder:

Congressional negotiators for the House and Senate agreed on a $142 billion Labor-HHS-Education spending bill with no earmarks. [...] Anyway, things looked great until the House brought the conference report on the bill with no pork barrel earmarks to the floor for a vote. There were 209 votes for the conference report, every one of them cast by a Republican. But there were 224 votes against the conference report, including 201 Democrats, 22 moderate GOPers and Bernie Sanders, the Vermont socialist who votes with the Democrats.

Yes, this is bad news. A Republican-controlled House voted down the first serious attack on pork. But notice that 209 Republicans voted for the report, while only 22 voted against it; meanwhile, every single Democrat voted against. The lesson is clear - however bad things are now, a Democrat majority is sure to make them worse. What we need to do is not abandon the GOP, but increase its majority, while clearing out the RINOs.

Biden Lies Again

I just heard a sound clip from Biden:

• They said Iraq had reconstituted its nuclear weapons; at that same time I said it had not
• They said and implied the threat was imminent; I never said that
• There was no "real or even serious link" (sic) between Saddam and al Qaeda

Oy vey. "Reconstituted weapons" - this comes from an interview in which Cheney kept talking about Saddam having reconstituted his nuclear weapons development program; at one point, he left out the words "development program". Impeach him!

Imminent threat? Please. The President explicitly said that the threat was not imminent, but that we couldn't wait for it to become imminent.

And yes, Senator, there was a confirmed relationship between them, even if no piece of paper was found with Saddam's and Osama's signatures on it. Even the now-discredited Commission agreed with that; all they said was that there was no evidence they'd worked together on that specific attack. And there isn't — even if Atta did go to Prague to meet an Iraqi intelligence officer, they might have been talking about some other attack that never happened; at the time, Czech intelligence thought they were planning an attack in Prague, and for all we know that may still be the case.

Bush Tones Down Attack?

According to the AP,

After fiercely defending his Iraq policy across Asia, President Bush abruptly toned down his attack on war critics Sunday and said there was nothing unpatriotic about opposing his strategy. "People should feel comfortable about expressing their opinions about Iraq," Bush said, three days after agreeing with Vice President Dick Cheney that the critics were "reprehensible." The president also praised Rep. John Murtha, D-Pa., as "a fine man" and a strong supporter of the military despite the congressman's call for troop withdrawal as soon as possible.

Sorry, but I just don't see any toning down here. Of course people should feel comfortable about expressing their opinions — nobody I've seen on the right has suggested otherwise. But they should not feel comfortable expressing falsehoods in order to bolster their opinions, not when those falsehoods give aid and comfort to the enemy. And I'm sure Murtha is indeed a fine man, with a history of supporting the military in general, but he's wrong on this war, and he's been wrong on it since the beginning.

Last week, TigerHawk wrote a thoughtful piece on the tension between dissent and patriotism. See also Instapundit's take.

This has always been a contentious issue, going back to Burke's support for the American rebels, and Thoreau's condemnation of the USAn invasion of Mexico. Could they be described as unpatriotic, or even as traitors? FTR, I think Burke is best seen as having taken sides in a civil war, so the question of patriotism didn't arise. And Thoreau explicitly rejected patriotism, or any duty of loyalty to a country, so he wouldn't object to being so described.

Tearing the Transparent Tissue

Murray at Silent Running reproduces the list of charges against the terrorist suspects recently arrested in Sydney. Tom Paine, however, is far too canny to be fooled by this "transparent tissue of a farrago of odious lies and half-truths designed to divert attention from the Great Iraqi Oil Grab". Read the whole thing. Really.

Thought For Two Days Ago

Catching up on Silent Running, I see that back on Tuesday Murray had a thought. Good one, Murray. Let us know when you have another.

<subliminal>PS: Buy a gnome home.</subliminal>

Terminology Stupidity again

Three months ago I posted this piece about the tendency to turn euphemisms into the thing they represent, and them use them inappropriately. Here's a fresh example. (HT: Patterico, whose heading is "And in Financial News, the Stock Market Had Its Worst Day Since African-American Monday".)

Lest We Forget

BUMP AND REPOST:

O it's Tommy this, an' Tommy that, an' "Tommy, go away";
But it's "Thank you, Mister Atkins", when the band begins to play,
The band begins to play, my boys, the band begins to play,
O it's "Thank you, Mister Atkins", when the band begins to play

Read The Rest

Gee, what a nice man.

Walter Murphy, Samuel Alito's jurisprudence professor back at Princeton, had this to say:

"Sam is his own man," Murphy said. "He'll never be 'Scalito.' And then it's a gross insult to say in the mold of [other conservative and constructionist justice] Clarence Thomas. Their IQs are so radically different ... We're not talking about someone in Sam's intellectual league."

Jerk, or racist jerk? You decide.

(Hat tip: Orin Kerr)

Land For Peace

Perhaps it's time to emerge from the dark ages and finally embrace this concept.

Bray v Marriott

The WaPo talks about this employment discrimination case, in which an employee at a Marriott hotel "alleged that she was denied a promotion because she was black". The article claims that "Alito's dissent prompted a rebuke from his normally congenial colleagues. The law that bans employment discrimination, the other two judges wrote, 'would be eviscerated' if courts followed Alito's logic".

In another forum, someone citing this article went further, and wrote: "The other judges were so incensed that they addressed him directly saying that if his ideas prevailed, there would be discrimination allowed in all companies".

Here is my reply:
I don't know where you get the idea that they were "incensed". That word doesn't appear in the WaPo article; it does describe the majority opinion as having "rebuked" Alito, in a manner not to be expected from "normally congenial" judges, but I don't think their language in the case itself supports even that.

The case is here. For Marriott to prevail, it didn't have to prove that Ms Riehle (the person it hired) was better than Ms Bray (the plaintiff). Rather, in order to prevail, the burden was on Bray to prove not only that she was better than Riehle, but that Marriott could not possibly have believed Riehle was better, and that its claims to have so believed were lies. The judge in the lower court decided that given Marriott's evidence about Riehle's qualifications, it would be impossible for Bray to prove this, and dismissed the case. In the appellate court, Alito agreed with the lower court judge, while his two colleagues disagreed.

It's perfectly standard for a dissent to explain why it disagrees with the majority opinion, and it's equally standard for the majority opinion to address the dissent's reasons, and explain why those points didn't convince the majority to change their mind. There's nothing uncongenial about this, and no reason to see it as a rebuke. In this case, the majority said that if Alito's standard were consistently applied, then a defendant who sincerely believed that white workers were better than black ones would have a perfect defense, and would always prevail in such cases, and thus the antidiscrimination law would be "eviscerated". Therefore, the majority decided that the standard set by the law and by previous decisions should be loosened.

I don't see anything in Alito's opinion to justify the majority's conclusion, but leaving that aside I don't see how its words can be characterised as a "rebuke", let alone as a sign of being "incensed". The three judges simply disagreed about what standard to apply to such cases. Disagreement between judges happens all the time; that's why panels have odd numbers, so a majority decision can be reached.

Incidentally, I'm amused by all the reports calling Alito a "lone" dissenter on three-judge panels, or otherwise making a big deal about the fact that he was the only one with his opinion, and none of the other judges agreed with him. A dissenter on a 3-judge panel is by definition "lone"; if even one of his colleagues agrees with him, then they become the majority, and the remaining judge becomes the dissenter. And it's not as if Alito didn't have his share of decisions in which he was in the majority, against another "lone" dissenter.

365 Dagen Geleden...

...vermoord Theo van Gogh. Weet u het nog? — 365 days ago, Theo van Gogh was assassinated. Do you remember? Courtesy of http://www.slikkenalsik.com, we've been remembering, and counting the days on our sidebar. And now the counter is up to 365 and it's time to take them down to the bank and change them into a year.

He's remembered at Peaktalk (H/T Instapundit)

Originalism and the "Good Faith Exception" to the 4th Amendment

Over at Patterico's place, they've been discussing Alito's dissent in Doe v. Groody. Commenter biwah posed a challenge to "all the textualists/originalists":

Question for all the textualists/originalists, where is the Good-Faith (aka “oops”) exception in the Fourth Amendment? Is it “built in” to the reasonableness requirement? That seems to be the only hint of potential legitimacy of the Oops exception. But then, where else is accident an excuse for an acknowledged violation of the Bill of Rights? Is there any textual/original support for such a perverse proposition? I don’t think so.

My response is here

Oh, oh (this is getting to be a theme)

Orin Kerr cites an article in the Legal Times:

"He's not an originalist; that's the most important thing. I don't see him saying, 'As the Framers said in 1789,' the way Scalia writes his opinions," adds Demleitner, who says she's a liberal Democrat.

I really hope this is a mischaracterisation.