Republican self-parody

You can't make up anything more embarrassing than what these people actually say:

West Virginia U.S. Senate candidate John Raese (R) compared no smoking laws to one of Adolf Hitler's most notorious policies.

Said Raese: "I don't want government telling me what I can do and what I can't do because I'm an American. But in Monongalia County you can't smoke a cigarette, you can't smoke a cigar, you can't do anything... I have to put a huge sticker on my buildings to say this is a smoke free environment. This is brought to you by the government of Monongalia County. OK? Remember Hitler used to put Star of David on everybody's lapel, remember that? Same thing."

One might weigh the policy of requiring Raese to wear a badge identifying himself as a jackass, but it seems his mouth is doing just fine on that.

Also exfoliates your teeth!

So I picked up a container of "Salt Sense" in the office kitchen:


Real salt, but 33% less sodium—how do they do that?

Ingredients:


Silicon dioxide being, of course, better known by a more common name:


Why, yes: if you sprinkle sand on your food rather than salt, you will ingest less sodium.

In which Barney Frank rebukes the RIght for insufficient attention to Hayek

You were talking about the Republicans and not being able to work with them. But isn’t your ultimate beef with the voters, since it’s the voters who reward that behavior?
I’m glad you said that, you’re very smart. These days, in developed countries, everybody says you need a private sector to create wealth, you need a public sector to create rules by which wealth is created. Sensible people understand that. The tension between left and right has been where you draw that line, but it’s been a contest between people who see maybe a 20 percent overlap. Let me read this to you. [Picks up copy of Friedrich von Hayek’s The Road to Serfdom.] “In no system that could be rationally defended would the state just do nothing.” ­[Closes book.]

Do you read Hayek a lot?
For these purposes. For the first time in American history, we have people in power now who reject that idea. If they knew it was Hayek, they might think, Well, maybe.But they reject the public sector. That’s why we can’t work together.

—Barney Frank, interviewed by Jason Zengerle

... I liked this part at the end:

some people in the media act like Washington is some autonomous entity that’s operating with no connection to the public. I had a woman stop me the other day, she said, “I’m very angry about Congress. What are you guys doing?” I said, “Who’s your congressman?” “Oh, I don’t know,” she said. “Well, see, I vote for me,” I said. “I’m happy with me. Why are you blaming me for the people you vote for?”

That always drives me crazy: numbskulls who complain about being tyrannized by Congress as if "Congress" were some Martian overlord who descended in a giant Neoclassical marble spaceship.

... Context:

To create conditions in which competition will be as effective as possible, to supplement it where it cannot be made effective, to provide the services which, in the words of Adam Smith, "though they may be in the highest degree advantageous to a great society, are, however, of such a nature, that the profit could never repay the expense to any individual or small number of individuals"—these tasks provide, indeed, a wide and unquestioned field for state activity. In no system that could be rationally defended would the state just do nothing. An effective competitive system needs an intelligently designed and continuously adjusted legal framework as much as any other. Even the most essential prerequisite of its proper functioning, the prevention of fraud and deception (including exploitation of ignorance), provides a great and by no means yet fully accomplished object of legislative activity.

I hadn't ever thought that LBJ's "Great Society" got its name from Smith. Richard Goodwin gets the credit, but I daresay he'd read Smith (or Hayek)—the context of Smith's sentence is too relevant for coincidence.

... Btw that last parenthetical sets Hayek apart from contemporary libertarians, who argue that the ignorant are pretty much there to be exploited.

Geneva Conventions "quaint" to Obama?

Via NMC, an article on the use of drones to kill ... well, somebody, and we hope they're terrorists, but HEY we have a country to defend here!

I supose the VC's Kenneth Anderson (no relation, trust me) will post some Yoo-esque rationalization of how this isn't a war crime:

the CIA's more common use of drones – known as "signature strikes" – involves attacks on groups of alleged militants who are behaving in ways that seem suspicious. Such strikes are reportedly the brainchild of the CIA veteran who has run the agency's drone program for the past six years, a chain-smoking convert to Islam who goes by the code name "Roger." In a recent profile, The Washington Post called Roger "the principal architect of the CIA's drone campaign." When it comes to signature strikes, say insiders, the decision to launch a drone assault is essentially an odds game: If the agency thinks it's likely that the group of individuals are insurgents, it will take the shot. "The CIA is doing a lot more targeting on a percentage basis," says the former official with knowledge of the agency's drone program.

Civilians bearing arms against military targets, and the article implies that, by contrast with the "personality strikes" against named targets, or the Pentagon's use of drones pursuant to legal counsel, these "signature strikes" aren't carried out with any guidance as to international law.

Back when Bush violated the Geneva Conventions, there was at least kinda sorta a political party opposed to that. Now that Obama violates them, neither side cares.

Annals of finding the glass half-full

Democrats are taking cheer in the fact that Mitt Romney is a pretty unpopular guy:

A new ABC News-Washington Post poll finds Mitt Romney has emerged from the Republican primary season with the weakest favorability rating on record for a presumptive presidential nominee since 1984, trailing President Obama in personal popularity by 21 percentage points.

Romney is the first likely nominee to be underwater - seen more unfavorably than favorably - in eight presidential primary seasons across the past 28 years.

An unpopular guy, that is, who's edging Obama in the polls (or at least is statistically tied).

If Obama is neck-and-neck with the least popular candidate since Walter Mondale, that does not bode well.

Pet peeve: "M.I. Self, Esquire"

At some point in law school, students should be informed that, should they ever practice law, "Esquire" is not something one calls oneself. Cue Bryan Garner:

"Esq. is ... not used on oneself, e.g. neither on a card (which bears Mr. [sic]) nor on a stamped-and-addressed envelope enclosed for a reply * * *" Alan S.C. Ross, "U and Non-U: An Essay in Sociological Linguistics," in Noblesse Oblige (Nancy Mitford ed., 1956). But somehow, the idea has gotten out that Esq. is something you put after your own name ....

—Garner, A Dictionary of Modern Legal Usage (2d ed.). Don't do this, folks. Not every reader will infer that you are ignorant, naive, or self-important, but in a profession where image counts, it's a silly mistake to make.

... Nancy Mitford? Yes, Nancy Mitford.

Norway killer claims self-defense

OSLO, Norway (AP) — With a defiant closed-fist salute, a right-wing fanatic admitted Monday to a bomb-and-shooting massacre that killed 77 people in Norway but pleaded not guilty to criminal charges, saying he was acting in self-defense.

Fortunately, Norway's statutes do not mirror those of Florida, or else the courts would probably be forced to acquit. [Rimshot.]

Is the judicial counterrevolution underway?

It's difficult to believe that Jerry Smith of the 5th Circuit would've been so bold as to call out the President of the United States over a press conference Q&A had the ACA oral arguments at the Supreme Court not put the scent of blood into the water.

Now some other judges are happily anticipating the judicial counterrevolution:

In a concurring opinion today in Hettinga v. United States, Judge Janice Rogers Brown (joined by Judge Sentelle) contends that the Supreme Court should overturn its rational basis caselaw in the economic area and return to a Lochner-era regime of judicial scrutiny for economic regulations.

Orin Kerr confines himself to tsking that such an op-ed piece was placed in a judicial opinion, but the merits of the position are catnip to the conservatives who have thought for 80 years that the country went wrong in the New Deal and have longed to return America to the Gilded Age.

The ACA opinion(s) will be meaningful for a lot more than whether or not the individual mandate or Obamacare get overturned. The rationale will be the real story. Will the Court contrive some Bush-v.-Gore one-shot rationalization for a nakedly political act? Or will the Court actually establish its decision on case law by overturning, or "distinguishing" so as to effectively overturn, the modern understanding of the Commerce Clause? Are the Randy Barnetts and Janice Rogers Browns the wave of the future?

Evidence of incompetence

Judge Primeaux relays the news that Ole Miss Law [EDIT: like MC Law as well] no longer requires its students to take the Evidence course.

I suppose one could debate whether to have any required courses in law school, but any sane list of requirements would have to include Evidence. I don't care what kind of law a student thinks he or she is going to practice - Evidence is too fundamental to omit.

If any of you happens to run into the new law dean, you might ask him what the heck his school thinks it's teaching. But more polite-like.

Let the (general) games begin!

As Santorum goes back to being a frothy mixture of semen, feces, and lubricant, Political Wire gives us a look at that folksy master of charm, Mitt Romney:

A mole gives Gawker video of Mitt Romney and Sean Hannity bantering before the taping of a Fox News interview in February.

"Of note: Romney professes his and his wife Ann's well-known love of horseriding, praising the qualities of the 'Austrian Warmbloods' that his wife rides -- they are 'dressage' horses, he notes -- while maintaining his own preference for the 'smoother gait' of his own 'Missouri foxtrotter.' Now there's nothing wrong with Mitt and his wife loving horseback riding. But remember this video next time Romney attacks Obama for golfing. The inherent elitism and snootiness of golf is NOTHING compared to competitive horseback riding. And I think Mitt loses points with the GOP base for his correct pronunciation of dressage. To GOP-voter ears it sounds not only gay, but even worse, French."

BuzzFeed isolates the part where Romney tries to do an impression of a gay man asking for a pink tie.

Though as Walter Kirn points out, empathy ain't Obama's strength, either:

Thanks perhaps to his peripatetic childhood and his absent father, Obama seems both hungry for crowd approval and limited in his ability to reach out to others. He's a bright, lonely boy who needs a lot from us but can't always return the favor, and he really only expresses public emotion when talking about Michelle, Malia, Sasha, or March Madness. The mythically cool and diffident figure whose blood supply goes mostly to his forebrain to oxygenate and nourish his IQ does make Romney, at moments, seem positively small-town, like a well-dressed Gomer Pyle on an especially great hair day. And Obama is also slightly better than Romney at dumbing himself down for humble occasions (he talks hoops more convincingly than Romney talks hunting and he bothers to drop his Gs when touring the heartland, a trick that is woefully willed-seeming and obvious although he appears to think he does it masterfully, the same way he thinks he does everything masterfully). But in the end he's just brittle where Romney's leaden, and twisty-quick where Romney's straight and plodding. Neither man shares your burdens; they both have the springy, tensile, perfect postures of students who like to get their hands up fast, expect to be called on, always are, and never fail to offer the right answer, or at least a convincing rationale for how their wrong answer was properly arrived at given the flawed information they had to work with.

I suppose the "rather have a beer with ______" is foreclosed by Romney's being a Mormon abstainer from such things. Of course, Dubya was supposedly on the wagon, and he still won that test.

Only two and a half pages! SANCTIONS!

DOJ has filed in the Fifth Circuit its homework assignment on judicial review. Sections 2 and 3 tweak the court just a bit.

Orin Kerr: "I assume this will satisfy the Fifth Circuit judges, although at this point nothing would surprise me."

Every year I wonder ...

Who gives their kid a basket like this for Easter:

And you thought Scalia jumped the shark last week

Dig this from Judge Jerry Smith of the Fifth Circuit:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom. * * *

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."

Whoa. Somebody needs to quit reading FoxNews.com in his chambers. (H/t.)

... Found that link at a blog thread, from which I must quote this comment:

Judge Smith pwned Obama! Ha! Judge Smith now rulez the internet! He is now the greatest internet troll in Article III history.

... More on this story:

Judge Smith's ultimatum calls for U.S. Attorney General Eric Holder to send him a three-page, single-spaced letter by noon Thursday addressing whether President Barack Obama's recent public statements that the PPACA should be upheld signal a belief that the judiciary does not have the right to overturn a federal statute on constitutional grounds.

This has an April Fool's quality - how can the court require a three-page single-spaced letter? Is Smith senile? Did the rest of the panel sign off on this?

... All PACER has is a clerk letter:

Dear Ms. Kaersvang:
As directed today, the panel has requested a letter referencing oral argument questions. The letter is to be no less than three pages, single spaced, and is due by noon on Thursday, April 5, 2012.

Wow.

... Orin Kerr calls this report, if true, "extraordinarily embarrassing to the federal judiciary." Word.

... Commenters at his post note that the court neglected to specify a maximum font size, so the three pages should consist entirely of "YES," one letter per page.

... Balkinization: "In response to the President's comments about the Affordable Care Act yesterday, Judge Smith of the Fifth Circuit decided to beat up a lawyer for the Government." Yep.

... Audio here (haven't listened; am told it's around 18:00 mark). Partial transcript:

SMITH, J.: Let me ask you something a little bit more basic. Does the DOJ recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities.

A: Yes your honor, of course, there will have to be a severability analysis.

Q: I am referring to the statements by the President from the past few days, to the effect .. . I'm sure you've heard about it, that it's somehow inappropriate for what he termed "unelected judges" to strike acts of Congress that have enjoyed . . . what he termed broad consensus and majorities in both houses of Congress. That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority, or to the appropriatness of the concept of judicial review. And that's not a small matter. I want to make sure that you are telling us, and that the DOJ do recognize the authority of the federal courts through unelected judges to strike acts of congress or portions thereof in appropirate cases.

A: Marbury v. Madison is the law . . .

Q: Okay, well I would like to have from you by noon on Thursday, about 48 hours from now, a letter stating what is the position of the AG and the DOJ in regard to the recent statement by the President, stating specifically and in detail, in refenreces to those statements, what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages, single spaced, no less, and it needs to be specific. It needs to make specific reference to the President's statement and the position of the AG and the DOJ.

[very long pause]

A: Okay, and that's our position regarding judicial review?

Q: Judicial review as it relates to the specific statements of the president in regard to Obamacare and the authority of the courts to review that legislation.

A: Yes, your honor.

"Very long pause" as in "oh my god, is this really happening or am I about to wake up?"

Right to jury trial vs. The Totality of the Circumstances

The Fifth Circuit tossed Tyler Edmonds' § 1983 claim last week, in which he and his mother had sued on the theory that the state coerced his confession when it separated him from his mother. (Edmonds was the 13-year-old whose adult sister convinced to share the rap when she murdered her husband—the infamous "two fingers on the trigger" case.)

Note to potential plaintiffs: don't go on the Dr. Phil show first. The opinion quotes from Edmonds' TV appearance:

A. I was coerced by my sister.
Q. By your sister, but not by the police.
A. Uh, no, not by the police.

I am mildly surprised Jim Waide took the case on those facts.

The court's holding that "[i]mproper police tactics did not implant that desire [to confess]: In all likelihood, Fulgham’s manipulation did" is a bit odd to me, given that (1) the police dragged the boy's mother away and then put him in a room with the murderer where she could and did (as the police hoped) manipulate him, and (2) that sure sounds like a jury question to my untutored brain. But, we are told, the question of coercion is ascertained "by examining the totality of the circumstances." Oh all right then.

How trying to be bipartisan bit the Democrats in the ass

Ezra Klein provides some of the backstory behind how the individual mandate came to be:

Chuck Grassley, the ranking Republican on the Senate Finance Committee, was saying things like “I believe that there is a bipartisan consensus to have individual mandates,” and “individual mandates are more apt to be accepted by a majority of the people in Congress than an employer mandate.”

And it wasn’t just Grassley. A New York Times columnist by the name of Ross Douthat praised Utah Sen. Bob Bennett for “his willingness to co-sponsor a centrist (in a good way!) health care reform bill with the Oregon Democrat Ron Wyden.” That health-care reform bill was the Healthy Americans Act which included, yes, an individual mandate. * * *

The Healthy Americans Act, meanwhile, had been cosponsored by a bevy of heavy-hitting Senate Republicans, including Lamar Alexander, Mike Crapo, Bob Corker, Judd Gregg, Norm Coleman and Trent Lott. And it’s not like they were off the reservation in some significant way: In 2007, both Sen. Jim DeMint and the National Review endorsed Mitt Romney, who had passed an individual mandate into law in Massachusetts. In their endorsements, both icons of conservatism specifically mentioned his health-care plan as a reason for their endorsement. DeMint, for instance, praised Romney’s health-care plan as “something that I think we should do for the whole country.”

Avik Roy points out that many liberals — including candidate Barack Obama — were historically skeptical of the individual mandate. And that’s true! There was a robust debate inside the party as to whether Democrats should move from proposing a government-centric health-care model to one Republicans had developed in order to preserve the centrality of “personal responsibility” and private health insurers. Many liberals opposed such a shift. But they lost to the factions in the party that wanted health-care reform to be a bipartisan endeavor.

Roy tries to use this to draw some equivalence between the two parties. Both Democrats and Republicans changed their mind on the individual mandate, he argues. But there’s a key difference: The Democrats changed their mind in order to secure a bipartisan compromise on health-care reform. Republicans changed their mind in order to prevent one.

Klein thinks that the lesson, if the mandate's stricken, will be zero compromise on healthcare reform in future:

If Obamacare is overturned, and Obama is defeated, who will win the Democratic Party’s next fight over health care? Probably not the folks counseling compromise. Too many Democrats have seen how that goes. How much easier to propose a bill that expands Medicaid eligibility to 300 percent of the poverty line, covers every child through the Children’s Health Insurance Program, and makes Medicare availability to every American over age 50. Add in some high-risk pools, pay for the bill by slapping a surtax on rich Americans — indisputably constitutional, as even Randy Barnett will tell you — and you’ve covered most of the country’s uninsured. Oh, and you can pass the whole thing through the budget reconciliation process.

He may exaggerate Charlie Brown's learning curve about letting Lucy hold the football, but it's a thought.

We'll take your word for it, Ann

Asked about criticism that Romney is "too stiff," Ann Romney laughed and replied, "I guess we'd better unzip him, and let the real Mitt Romney out because he is not."

—Ann Romney, on perceptions that Mitt Romney is "stiff," personality-wise.

... Are Mormons just sheltered in general, or is Ann unusually so? Or is the answer, as so often, TBA's gutter instincts?

UPDATE: Alec MacGillis caught that one, too.

... In other news, towards a quantum-mechanical theory of Romney:

The basic concepts behind this model are:

Complementarity. In much the same way that light is both a particle and a wave, Mitt Romney is both a moderate and a conservative, depending on the situation (Fig. 1).


Fig. 1: The famous “Schrödinger’s candidate” scenario. For as long as Mitt Romney remains in this box, he is both a moderate and a conservative.

It is not that he is one or the other; it is not that he is one and then the other. He is both at the same time.

Probability. Mitt Romney’s political viewpoints can be expressed only in terms of likelihood, not certainty. While some views are obviously far less likely than others, no view can be thought of as absolutely impossible. Thus, for instance, there is at any given moment a nonzero chance that Mitt Romney supports child slavery.

Uncertainty. Frustrating as it may be, the rules of quantum campaigning dictate that no human being can ever simultaneously know both what Mitt Romney’s current position is and where that position will be at some future date. This is known as the “principle uncertainty principle.”

Entanglement. It doesn’t matter whether it’s a proton, neutron or Mormon: the act of observing cannot be separated from the outcome of the observation. By asking Mitt Romney how he feels about an issue, you unavoidably affect how he feels about it. More precisely, Mitt Romney will feel every possible way about an issue until the moment he is asked about it, at which point the many feelings decohere into the single answer most likely to please the asker.

Noncausality. The Romney campaign often violates, and even reverses, the law of cause and effect. For example, ordinarily the cause of getting the most votes leads to the effect of being considered the most electable candidate. But in the case of Mitt Romney, the cause of being considered the most electable candidate actually produces the effect of getting the most votes.

Possibly worth one of your ten monthly clicks to read the whole thing.