Must we bury Lenin?

At our meeting with him, now–Prime Minister Putin snapped back quite aggressively when asked why Lenin is still in his mausoleum in Red Square, asking a British colleague why there is still a monument to Cromwell outside parliament in London. One of my British colleagues reacted quite huffily to this but I must say that being half Irish and remembering Cromwell’s crimes against Ireland (which today would undoubtedly be labeled genocide) I saw a good deal of truth in this--except of course that Cromwell ruled Britain 350 years ago, and not 90 years ago.

-- Anatol Lieven (via 3QD)

... Lenin continues to be difficult for Russia. It's impossible to know what would've happened had he met with a knock on the head en route to the Finland Station, but it seems likely there would've been no Bolshevik coup, and that a military regime would've taken over the reins at some point from the hopelessly fragmented, uncertain quasi-liberals. It's hard to imagine such a regime's being as bad as Stalin's, but it might have been worse than the Empire, which we tend to whitewash in retrospect. Russia was a police state under the tsars, and there is no reason to romanticize what the West knew quite well was a reactionary state.

Most Russians today probably believe, wrongly we think, that Lenin brought about the 1917 revolution. So when they think of Lenin, they think of the man who supposedy liberated them from tsarism. His death just six years after the October Revolution, and the several orders of magnitude by which Stalin incresed the terrors of Leninism, did a lot to encourage amnesia about those very real terrors.

So, given the number of things wrong with Russia today, I'm not sure I'd fault them for confusing Lenin with Washington.

Best New Yorker poem ever

Bonus points for title longer than poem:

On the Inevitable Decline into Mediocrity of the Popular Musician Who Attains a Comfortable Middle Age

O Sting, where is thy death?

-- David Musgrave, in the issue of Aug. 30, 2010, p. 52.

... I know it's a poem, because the table of contents says so!

War without end

Six weeks after 9/11, U.S. officials were discussing with the UK the theory that, while a war was on, they could detain people indefinitely without trial -- and that "the plausibility of the argument that the war was continuing" was key to making this work:

Also among the released documents is a letter to London from the British embassy in Washington, dated 24 October, which reflects a growing realisation that the US was considering detaining people captured in Afghanistan for very long periods, and an understanding that it would be difficult to defend this as lawful.

Heavily censored, the letter shows that within weeks of the 9/11 attacks, the US and UK governments saw that the longer they could claim they were still waging a form of war, the longer they might be able to detain individuals without trial. They were aware the argument would wear thin if hostilities should appear to be over.

The author of the letter – whose identity has been redacted – writes: “As long as the war against terrorism in the widest sense continued, the US/UK would have rights to continue to detain those they had been fighting against (even if the fighting in Afghanistan itself were over). [Redacted] conceded that the strength of such a case would depend on the plausibility of the argument that the war was continuing.”

Via Emptywheel, who probably knows the documentary evidence like no one else, and who doesn't recall seeing this letter.

The lede in the article is that the UK was on notice as early as January 2002 that America was using torture, but I agree with Emptywheel that the early focus on perpetual warfare is the sleeper here.

"Decent nations do not permit their governments to assassinate their own citizens."

When you put it like that, it seems properly bizarre that we even have to discuss this.

Over at National Review (h/t Drum), Kevin Williamson gets it:

I am not a lawyer, but it seems clear to me that the state of our law is such that anybody with sufficient legal training can make a reasonably strong-sounding argument for any policy he chooses, and that if his argument is wrong, it is likely to be wrong in ways that are non-obvious....

So, set aside the legal questions for a second. The Awlaki case speaks to something even more fundamental than law: Decent nations do not permit their governments to assassinate their own citizens. I am willing to give the intelligence community, the covert-operations guys, and the military proper a pretty free hand when it comes to dealing with dispersed terrorist organizations such as al-Qaeda and its affiliates. But citizenship, even when applied to a Grade-A certified rat like Awlaki, presents an important demarcation, a bright-line distinction in our politics.

If Awlaki were to be killed on a battlefield, I’d shed no tears. But ordering the premeditated, extrajudicial killing of an American citizen in Yemen or Pakistan is no different from ordering the premeditated, extrajudicial killing of an American citizen in New York or Washington or Topeka — American citizens are American citizens, wherever they go. I’m an old-fashioned limited-government guy, and I am not willing to grant Washington the power to assassinate U.S. citizens, even rotten ones.

As he goes on to observe, it's extra-bonus bizarre that "conservatives" want to give this power to Barack Obama.

World War One draws to a close

This seemed like a fit for "can't possibly be true," but apparently it is:

Germany will make its last reparations payment for World War I on Oct. 3, settling its outstanding debt from the 1919 Versailles Treaty and quietly closing the final chapter of the conflict that shaped the 20th century.

Oct. 3, the 20th anniversary of German unification, will also mark the completion of the final chapter of World War I with the end of reparations payments 92 years after the country's defeat.

The German government will pay the last instalment of interest on foreign bonds it issued in 1924 and 1930 to raise cash to fulfil the enormous reparations demands the victorious Allies made after World War I.

What took so long?

The sum was initially set at 269 billion gold marks, around 96,000 tons of gold, before being reduced to 112 billion gold marks by 1929, payable over a period of 59 years.

Germany suspended annual payments in 1931 during the global financial crisis and Adolf Hitler unsurprisingly declined to resume them when he came to power in 1933.

Those fiscally irresponsible Nazis. Was there no crime too great for them?

But in 1953, West Germany agreed at an international conference in London to service its international bond obligations from before World War II. In the years that followed it repaid the principal on the bonds, which had been issued to private and institutional investors in countries including the United States.

Under the terms of the London accord, Germany was allowed to wait until it unified before paying some €125 million in outstanding interest that had accrued on its foreign debt in the years 1945 to 1952. After the Berlin Wall fell and West and East Germany united in 1990, the country dutifully paid that interest off in annual instalments, the last of which comes due on Oct. 3.

So now they should be in the black and ready to conquer Europe again! (H/t Silbey.)

"Conservatism and Counterrevolution"

Via Leiter, here's a link to Prof. Corey Robin's interesting essay on the nature of conservatism. A taste:

As the forty-year dominion of the right begins to fade, however fitfully, writers like Sam Tanenhaus, Andrew Sullivan, Jeffrey Hart, Sidney Blumenthal, and John Dean have claimed that conservatism went into decline when Palin, or Bush, or Reagan, or Goldwater, or Buckley, or someone took it off the rails. Originally, the argument goes, conservatism was a responsible discipline of the governing classes, but somewhere between Joseph de Maistre and Joe the Plumber, it got carried away with itself. It became adventurous, fanatical, populist, ideological. What this story of decline--and you see it on the Right as well as the Left--overlooks is that all of these supposed vices of contemporary conservatism were present at the beginning, in the writings of Burke and Maistre, only they weren’t viewed as vices. They were seen as virtues. Conservatism has always been a wilder and more extravagant movement than many realize--and it is precisely this wildness and extravagance that has been one of the sources of its continuing appeal.

Good stuff.

... Kevin Drum's little article on the Tea Party as just what always happens when Democrats win the White House is along similar lines as Robin's essay.

Anonymity

See, if I posted under my own name, this would probably land me on some TSA no-fly list. To say nothing of dodging PETA trolls.

Ancestral voices prophesying justice

Section 3, Article 24 of the Mississippi Constitution (1890) is the sort of ringing declaration one usually sees cited in dissenting opinions:

All courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay.

I'd never noticed that its language has a venerable ancestor:

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

-- Magna Carta (1297 version), section 29.

Ogden & Kidd

NOTE: Correlation is not (necessarily) causation.

Apropos of the Mississippi Supreme Court's reversal of a $3 million jury verdict presided over by the Honorable Winston Kidd, in which the plaintiffs were represented by Ashley Ogden, and in which the MSSC held that Judge Kidd allowed a Jackson police officer to lie under oath:

The erroneous ruling allowed plaintiff’s expert, Tyrone Lewis, to testify with impunity and without fear of exposure, “[T]here is no documentation, no written statements or anybody to come forward to say that it did not happen [at Rebelwood].” The trial court should have known that Lewis’s statement was untrue.

-- we have compiled a list of Ashley Ogden's courtroom successes in recent times, relying heavily on Philip Thomas's excellent coverage.

English v. Rebelwood Apts. RP, LP (Kidd, J.)

Robinson v. Bailey Lumber & Supply Co. (Kidd, J.)

Baby Jane Doe v. LaQuinta Franchising, LLC (Kidd, J.)

Minor Child v. Federation Tower (Coleman, J.)

Ohazurike v. Parham Pointe South (Kidd, J.)

Durr v. MBS Construction, Inc. (Lee, J.)

[Plaintiff] v. Wackenhut Corp. (Kidd, J.)

[Plaintiffs] v. In Town Suites (Green, J.)

Marble v. Deviney Construction (Green, J.)

Knox v. Kroger Corp. (Kidd, J.)

Wright v. Gibson (Kidd, J.)

Bradfield v. Schwarz & Assocs. (Kidd, J.)

That's 8 out of 12 "Kidd, J." cases, for those of you following along on your cell phones.

Not on this list are some unsuccessful cases for Ogden:

Utz v. Running & Rolling Trucking, Inc. (Webster, J.) (jury verdict for defense)

Myatt v. Peco Foods of Miss., Inc. (Gordon, J.) (summary judgment for defendant)

Thomas v. Columbia Group, LLC (Smith, J.) (summary judgment; remanded on appeal) (This is, by the way, a rare example of Jim Smith (not the trial court) reversing a defense verdict in a tort case.)

Kennedy v. Maldonado (Green, J.) (verdict for plaintiff reversed & rendered on appeal)

Just thought this might be a handy list.

UPDATE: A friend of a friend points out the obvious: that Ogden's abortive "campaign" against Swan Yerger for Hinds Circuit Court was perhaps devised to prompt Yerger to recuse in Ogden's cases. Sometimes TBA is too innocent for the practice of law.

UPDATE (12/18/2010): The Federation Tower decision above was reversed 4-3 on appeal, with the trial court's $800K additur reversed but the $200K verdict from the jury reinstated (with however the 60% fault allocated to the child's father reversed for insufficiency of the evidence -- the jury had thus awarded only $80K).

Annals of foreshadowing

Number 13 Balaklava Road was going to be our little nest, the place into which we settled down to live happily ever after, the way they do in the fairy stories that [Gloria] was reading not so very long ago.

-- Len Deighton, Spy Hook, at 15.

... "Number 13" or "Balaklava" would either one have done just fine.

(Somehow, Charles Stross's Atrocity Archive has me reading Deighton, whom I'd never picked up before.)

"The Republican View of America ...

"... 80% Male, 20% Female; 75% Over 50, 25% Under 50; 99% White, 1% Horse."

You just really truly honesttogodly CANNOT PARODY THESE PEOPLE.

They do it themselves better than we ever could.

The GOP is, quite literally, dying out.

Grave(s) scrutiny

Justice Graves's nomination to the 5th Circuit (insert allusion to Caligula's horse) draws the attention of Eugene Volokh:

Here’s the issue: In 2004, 2008, and 2009, the Mississippi Supreme Court considered whether state judges should be disciplined for their out-of-court statements that express hostility to particular groups. The key question in each case was whether the judges’ speech was protected by the First Amendment.

In 2004, Justice Graves took the view that a judge was not constitutionally protected against being disciplined for saying (in a letter to the editor of a local newspaper, and in a radio interview) that “gays and lesbians should be put in some type of mental institute.”

In 2008, Justice Graves also took the view that a judge was not constitutionally protected against being disciplined for saying (at a judicial seminar) that “African-Americans in Hinds County [where the judge was serving] can go to hell for all I care.”

But in 2009, Justice Graves took the view that a judge was indeed constitutionally protected against being disciplined for saying (in a speech to a political organiation) that “White folks don’t praise you unless you’re a damn fool,” and “If you have your own mind and know what you’re doing, they [white folks] don’t want you around.”

This particular mix of results strikes me as hard to defend under the First Amendment. Those results of course could be defended by some people on the grounds that the first two statements (in those people’s view) were wrong or unjustifiable, and the third statement was right or justifiable. Such a defense, though, would not be consistent with First Amendment law, under which the constitutional rules cannot turn on whether a reviewing judge agrees with the speech at issue.

But of course I might well be missing some other sensible defense, so I hope the Committee asks Justice Graves: What is the basis for the conclusions you reached, and in particular for the conclusion that speech hostile to gays is constitutionally unprotected against judicial discipline, but speech hostile to whites is constitutionally protected? (As I’ll note below, the 2008 incident involving speech hostile to blacks might be distinguished on other grounds, which is why I primarily focus on the 2004 and 2009 incidents.)

More details at Volokh's post.

... Will Bardwell takes issue with EV's post:

Judges Wilkerson and Boland, to whom Justice Graves ascribed no First Amendment protection, made their statements rather spontaneously and altogether outside the sphere of political campaigns. But Judge Osborne, to whose speech Justice Graves would have granted First Amendment protection, made his remarks before the Greenwood Voters League -- and, I believe, in an election year to boot.

"Electoral" speech by judicial candidates is protected by the First Amendment under Republican Party of Minn. v. White, so that is the relevant distinction, says Bardwell.

... And NMC joins the discussion:

I suspect Will is right that this is at least a try-out of an attack on Justice Graves’s nomination, and I agree with his rejection of the insinuating tone of Volokh’s post. But I’m not really buying that a letter to the editor about an issue of public debate is a “spontaneous” pronouncement clearly distinct from a speech at a political gathering. I don’t see how one can avoid saying they are both protected, or can say one is and one isn’t.

Bloggone

Sorry not to be dispensing the free ice cream this week -- we've had a death in the extended family, and that + a Rule 59 motion due Friday (one of the few graven-in-stone deadlines in my line of work) have been crowding out any recreational activity beyond the occasional blog comment and the not-so-occasional tumbler of Scotch.

Thanks for checking in!

Undefeated Dolphins lead AFC East

-- I may not get the chance to write that again for a while, so I figured I better do it today.

Sex discrimination constitutional, says Scalia

Happily, in a lecture, not in a majority opinion:

The U.S. Constitution does not outlaw sex discrimination or discrimination based on sexual orientation, Supreme Court Justice Antonin Scalia told a law school audience in San Francisco on Friday.

"If the current society wants to outlaw discrimination by sex, you have legislatures," Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law.

And just as logically, if the current society wants to impose discrimination by sex, you have legislatures.

The court has ruled since the early 1970s that the 14th Amendment's guarantee of equal protection of the laws applies to sex discrimination, requiring a strong justification for any law that treated the genders differently. That interpretation, Scalia declared Friday, was not intended by the authors of the amendment that was ratified in 1868 in the aftermath of the Civil War.

"Nobody thought it was directed against sex discrimination," he said. Although gender bias "shouldn't exist," he said, the idea that it is constitutionally forbidden is "a modern invention."

The notion that, at a minimum, the 19th Amendment's enlargement of the franchise to women, made them subject to the "equal protection of the laws," must not impress Scalia.

But never mind such elaborate arguments. Here's section one of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Why would any court, presented with the term "any person," resort to "original intent," legislative history, or any such extraneous source, to ascertain whether a "woman" is a "person"? Why should we care what anyone thought the amendment meant, when what it said is not open to ambiguity?