The End of the War on Drugs, or the End of Federalism?
On Monday, the case Ashcroft v. Raich will be heard by the Supreme Court. Nominally, the case involves the usage of medical marijuana, but it is a bit more complicated than that. You see, California passed an intiative a while back called Prop 215, legalizing the use of medical marijuana. The Clinton administration did not like that, so it began harassing doctors who prescribed it (threatening them with loss of their license) and bringing criminal suit against the cooperatives that sold it as a violation of Federal Law. As you might expect, a law passed within an enumerated power (or two/three) of congress trumps the law of the state. Case closed.

Or is the case closed? You see, the defendants didn't buy their pot. It was given to them or self-grown. And it was grow from seeds that came from California. Why is this important? Well, the enumerated power that Congress used to pass the Controlled Substance Act of 1970 (which is the statutory basis for the war on drugs) was that drugs affected interstate commerce. Under Article I, Section 8, Clause 3 of the Constitution the United States Congress has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Suddenly it begins to get a bit fuzzy seeing how these seeds have anything to do with interstate congress (one of the government's arguments that might have trouble passing the laugh test is that by using self grown marijuana, ms. raich and ms. monson do not use prescription drugs which infintesamally affects the price of a drug making it part of interstate commerce under the old case of Wickard v. Filborne).

Now anything "affects" interstate commerce, but under the "federalism revolution" that is not supposed to be good enough. To be a valid exercise of this power, congress can only pass a law regulating:

(1) the channels of commerce,
(2) the instrumentalities of commerce, and
(3) action that substantially affects interstate commerce

So what is this federalism revolution? If you click on the link above, you'll get the details. Alternatively, leftist ACSBlog (let's just say that organizationally, or at least at Stanford, they are not the biggest fans of it) summary of it has been included below.

Almost a decade ago, a conservative 5-4 majority in U.S. v. Lopez sparked a revolution in federalism jurisprudence by overturning the Gun Free School Zones Act of 1990. Speaking for the Court, Chief Justice Rehnquist held that guns in schools do not have a substantial enough impact on interstate commerce to fall within the Congress’ Commerce Power. Five years later, a similar reasoning was applied to invalidate the Violence Against Women Act in U.S. v. Morison. Both decisions were hailed by conservative groups, with some even arguing they did not go far enough. According to University of Tennessee law professor Glenn Reynolds (AKA Instapundit):

The Supreme Court can go further. It can and should underscore that the "affecting commerce" test was not intended to allow Congress to find some incidental contact with interstate commerce (for example, that a gun or automobile was manufactured out of state), claim authority, and then extend federal power to everything in sight. When Congress outlaws possession of guns that have at some time been in interstate commerce, as in Scarborough, everyone knows that Congress is not trying to regulate commerce--it is trying to regulate the possession and use of guns.

Here Congress wasn't trying to regulate commerce - it was trying to regulate pot. And everybody knows it. So will the Court follow its federalism precedent now that it would help a cause that liberals as opposed to conservatives care about? Let's just say that if they are hypocritical and do not, the left is ready to pounce.

One can agree or disagree with Reynolds’ pre-New Deal understanding of the Commerce Clause, and the wisdom, or lack thereof, of the New Federalism is a topic for a different article, but the legal similarities among Lopez, Morrison and Raich are unavoidable. According to Randy Barnett, the Boston University law professor and senior fellow at the Cato Institute who litigated Raich, "it is supremely ironic, therefore, that the San Francisco-based Ninth Circuit, much maligned by conservatives, is the court of appeals that is taking the Supreme Court's new Commerce Clause jurisprudence the most seriously." As Barnett acknowledges, however, Raich is distinguishable from Lopez and Morrison in that an issue liberals tend to care about, medical marijuana usage, is now at stake.

If Raich loses, federalism is for all intensive purposes dead for the present, because it will be shown to be a doctrine that only will be enacted to save conservative causes. If Raich wins however, it begins to be easy to see a way to end the war on drugs. Make your drugs yourself or buy them from an instate dealer in a state where they will have been decriminalized.

What Was He Thinking?
Saddam that is. This piece explores it. Good read.

I Think I'll Disagree
Amazingly there was no controversey after these remarks (click link and scroll down).
Imam Siraj Wahhaj of Masjid Al-Taqwa mosque in Brooklyn, N.Y., told about 400 students, faculty and staff at the college [Western Michigan University in Kalamazoo] that women should never sacrifice their primary role as caregivers and mothers for a secondary one in a career. He also said women in administrative roles makes sense but "would you want to work with or depend on being saved by a woman firefighter?"

Republican Arrogance
In the Delay Case.

Helter Skelter
Video of the Pistons-Pacers-Fan Brawl is available here.

Marine Shooting
Phil Carter has a piece in Slate on whether it was unlawful.
Professor Volokh has some ruminations on the subject in a series of posts, one of which is here.

Lack of Health Insurance is a Problem?
So says Jesse Taylor at Pandagon in attacking an argument made by my friend Jon Henke.

I'm sorry, but the overexageration of the health insurance problem is really starting to grate on me. Those who want to engage in progressive action on this "pressing social issue" should first read this piece put out by Cato, lest they overestimate the problem and mislead their audience. Here is the key part for those of you too lazy to click on the link that debunks the 45 million uninsured meme put out in elections past:

As far back as the Clinton administration, some critics have tried to create a sense of urgency behind expanding government health programs by citing a government statistic that said something like 40 million Americans lack health insurance.

Originally, "40-something-million-uninsured" meant the persistently uninsured, i.e., those who lacked health insurance for the entire year. The Congressional Budget Office shot holes in that statistic last May when it reported the correct figure is between 21 million and 31 million. Difficult as it may be to believe, an official government statistic was off the mark by maybe 110 percent.

The CBO's figures may still be too high because they count millions of Americans who are Medicaid-eligible, and therefore have coverage whenever they need it. One-third of all "uninsured" children (2.9 million) fall into this category (the CBO gives no estimate for adults). Moreover, the persistently uninsured are mostly young (39 percent are under age 25, and another 22 percent are under age 35) or healthy (86 percent report their health to be "good," "very good," or "excellent").

Rather than admit they have been overstating the number of uninsured by a factor of two and make an embarrassing retraction, which might tend to deflate the campaign, Cover the Uninsured Week continues to claim there are 44 million uninsured. The only possible way to explain this is that they take refuge in the CBO's finding that the original, faulty government statistic does happen to be roughly equivalent to the number of Americans who lack insurance at any specific point in time, rather than for the entire year.

But this broader measure just adds to the count even more not-so-hard cases. In addition to those eligible for Medicaid, for instance, it includes people who lose their health insurance for only a brief period, such as when they graduate from college or change jobs. Over 3 million such people will regain coverage within four months, and another 6 million will regain coverage within 12 months. Various studies suggest that one-fourth (10 million) of this group decline coverage that is offered by their employers, and one-fifth (8 million) live in households making more than $50,000 per year.

Do people lack health insurance? Sure they do. Just not as many as you would think if you only paid attention to the liberal echo chamber cocoon.

Charges Kofi Annan Needs To Answer
We aren't talking one billion missing. Nor 10 billion anymore. We are talking about potentially $20 billion from the food for oil program. With alleged graft of this level, the secratary general needs to stop stonewalling and come up with some explanations.

Mike Zummer Sends Word From Iraq
Long-time readers of this blog and Stanford students know of Mike Zummer, one of my good friends from the class below me at Stanford Law School, who took a leave of abscence to serve his country in Iraq. About a week and a half ago he sent me and a few other friends an email detailing his experience and growing disillusionment with the bureaucracy that is in his opinion hindering our war effort. I didn't have his permission to post it until yesterday, but now that I have it, here it is.

Just thought I'd try to give everyone an idea of how the war is going for me. One of our little jokes is that war is hell, unless you're at Al Asad. A Master Sergeant around here came up with that one.

The problem is what happens outside the wire, or at the gate 300m away from where I am right now, in the case of the suicide car bomb on the 23rd.

You can see what's happening on the news and the lastest if you check the internet are police stations in Haqlaniyah and Hadithah that are my responsibility. Unfortunately, there's little I can do, except read the reports. I've come up with a plan to try to recover everything, but it will take time and may not even be approved. The worst part is that a week ago, I told people that these stations would be next. Nothing I could do to stop it. I had the same thing about the station before these. I'm not trying to say I'm a genius, it's just that I know what's going to happen and I have no resources or authority to do anything about it.

You can read the news and see where the focus is. Our enemy may be murderers, but they're not stupid. While we mass near Fallujah, they're going to roll back any successes we've had with the Iraqi Security Forces, especially the police.

I don't know what's happening elsewhere. I don't know how things are in the south. Apparently, the British learned how things are up here compared to down South. I hear the Army plays baseball in the North.

So, I wouldn't say that we need a whole bunch more troops, but we do need more where I am. I can't say I blame this on the administration as a lot of what I've seen has been a psychosis from the military planners. They just don't seem to understand what it takes to make the Iraqis operational. There's a completely unrealistic view of what we're going to need to do. I used to get mad when I read some of the stupidity emanating from our military in Baghdad or people below that. Now I just laugh.

Anyway, so while my stations get attacked, I continue to plan and hope that I'll get the resources that I need to implement a plan that I hope will work. It's not what I would like to do. It's not everything that I think we need. It's just the best I can do with what I have to work with.

The worst part is knowing that the longer it takes for us to bang our heads against the bureaucracy at our own level and at higher headquarters, the longer it will take to get going in the right direction. The longer that takes, the longer we'll be here, and the more people will die.

Stanford Law Considering Move to Quarter System
I first heard this rumor a few days ago and I was immediatly against the idea. My feeling is that the quarter system has the danger of packing a semester's worth of material into a third the time and giving reduced credit to boot, leading to increasingly stressed out students. When you throw in the addition of smaller vacations and more months studying for exams, it seems on first blush to be a rather ill-conceived idea.

Or so I thought until I talked to one of my mentors, Professor Cole. I don't yield in argument all that often, but Prof. Cole put up a good case of why we should switch. First, the law school acknowledges that there is a fear of increased work for decreased credit, but it is willing to structure the professor incentives so that it will be in their best interest to award the same amount of credit as before by having them be able to teach a correspondingly lower amount of classes if those classes are for bulk credit. In other words, Tax, which is four units in a semester, would now be six units in a quarter or three units in two consecutive quarters. And the professor will want to structure it this way so that they credit for teaching the required amount and not have to teach an additional class. In the off chance that this incentive does not work, there will be a safeguard (of dubious effectiveness I believe) of checking the reading list for each class to make sure that it is the "appropriate" amount of work potentially by a faculty committee.

Second, moving to a quarter system will increase the amount of courses that will be available for law students because it will synch us with the rest of the university. Such a synchronization leads to the third benefit - we will be better able to have courses taught by professors from other departments when such teaching is merited (say for example in the corporate finance classes). This will reduce teaching loads and make recruiting faculty from other schools all the easier (because new faculty will have a drastically diminished load if they come teach at Stanford Law under this system). With more tenure track faculty, this of course leads to the real red meat for us Stanford Law Grads - a move up in the rankings.

As I said, I think this is a good case. I need to sleep on it some more to see how I feel about it. But I think Professor Cole has likely changed my mind on the issue.

Warning Signs For Your Relationship
Yes it was on MSN Women. I didn't care. It looked good. Maybe you'll like it as well.

Why Poland Likes Us
A good read.
(link via polipundit)

Debate on Gay Marriage at Stanford Law School
Tonight’s speakers are speaking to an overflow crowd. We have Tobias Wolff on the left (“in more ways than one”). He has been very active in LGBT rights litigation and was part of the rapid response of the Kerry Campaign. (abbreviation – W) of UC Davis Law School, William Duncan is of the Sutherland Institute, and has been involved in many committees (that I missed) on marriage/family law(abbreviation – D). The event will be moderated by Pam Karlan (abbreviation – K). They are speaking for the upcoming symposium put out by the Stanford Law and Policy Review on Gay Marriage.

As usual, this is a rough “transcript” in that it is not a transcript, but rather my attempt to get the salient points down. I will email the speakers tonight so that they can double check this - so in other words this may be, or is likely to be, revised.

K: Thank you for coming out tonight – but I’d like to thank both Mike Kass for putting this event together, but also you the audience.
Is it possible to separate out personal views from legal/policy philosophy on this issue?
D: Yes. Much does of course go into our thought process of why we would choose one over another. It seems to me that the legislature v. court question is crucial as to what has gone on up to this point. At initial sense that they are parallel is that they are moving in the opposite directions – courts towards same sex marriage (generally) and legislature (generally) away from it (in bits and starts). Certainly since Goodrich in 2003 the momentum has……….

K: Why the difference?

D: I have struggled with that question – on the one hand you have what Scalia suggests (see romer) that legal elites see this differently (professional norms/biases) than legislative elites. [my note – aren’t these often people of similar background???] Clearly, there is a 60% 70% opinion against same sex marriage [i.e. they have tremendous incentives that unelected judges do not].

K: Are there facts that you can learn that would change your position on the issue, or whether it is primarily a gut issue.

W: Uh..NO. Framing the question in terms of facts is important to answer the question [????] Part of what has characterized the legal status of gay people in general . . . is an extraordinary posse of descriptions that are not condemnatory of gays/lesbians. Even today, when less socially acceptable to be discriminatory towards gay people (changed much in the past thirty years) . . . when that is the nature of the state of affairs, when the policy issues are so characterized by misinformation, by lack of a realistic facts of people’s lives, common barrier to right thinking [???] voices within the gay community that have different views of the desirability of marriage rights.

K: Is your view is that nobody could know the fact and could not take some position? That the only explanation for opposition is a lack of factual understanding?

W: No, that isn’t my position, but such a deficiency causes the discussions to be much broader and blunter. Its more difficult to have sensitive discussion of gay parenting in an atmosphere when gay parents are regularly threatened with removal of parental rights.

K: So in your view, if there was empirical evidence that children better with straight parents, would that affect your view of what adoption laws should be.

W: No, it wouldn’t. But I emphasize that evidence does not actually exist. What we do know of course, is that parents that are poor have much worse……………

K: Let’s stipulate than that lesbian couples have few assets than hetero couples on average – why shouldn’t that be taken into account?

W: The way things are taken into account in adoption law is by conducting a case-by-case best interest of child test. There are no, to the best of my knowledge, restrictions on the parental rights based upon wealth for adoption purposes.

K: How about as a tie-breaker for adoption – would that be a risk?

K: Are there facts that would change your view?

D: I think there are, that the facts are becoming more and more, well very little empirical evidence with any of this stuff……well, it depends how we frame the underlying opinion – there wouldn’t be anything that would for me change the def. of what marriage would be…

K: What do you think the strongest arguments against civil unions would be.

D: Lawyerly answer – it depends what you mean by civil unions…

K: Take California

D: Or Vermont

K: Yeah you get the same rights……. (something about over 62)

D: The over 62 category bothers me….

W: one of the things we hear a lot about is that there is a big problem, that it will devalue the concept of marriage. That straight couples will be less committed about marriage. What is your view of that.

D: The argument is that marriage has something of cultural currency – to the degree you have something of a competing institution, it cuts against the value of it. For Estridge, that means you just change definition of marriage as opposed to a separate institution

W: If I interrupt, I don’t get that argument

K: How can you not get it!!!!???!!! If we let 14,000 more people into Stanford Law, the educational experience changes.

(laughter)

W: If you suddenly open wide the favored status (Stanford law admittance), sure there is a loss of status of being a Stanford law student. But this analogy isn’t descriptive for the question of marriage – marriage is not thought to be exclusive – its more open. Gay couples, sure get marked as outsiders – but what I don’t get is that given the catholic definition of marriage – I don’t understand the cognitive moment a straight married couple…well we have had gay marriage now for six months in MA – are there straight couples who are now questioning their marriage’s value?

K: What about Polygamists?

W: Well you can say the same thing about incest…

K: Well I see the argument against incest (laughter) harm, genetics, exclusivity of famility relationship, but about polygamy – what is your argument there

W: (1) Law that prohibt gays from getting married deny them any meaningful opportunity to get benefits from state. It is a social fact that sexual orientation is both a fixed fact of life and exclusive -

K: But how does that differ from people whose religion tells them what meaning is?

W: Polygamists can still get some satisfaction. Yes there are those who think they are religious required to be polygamous – but that is a different question. Prohibitions on gay people take a class people, who have only one . . . pool in which to fish, deny them the right to fish [not the same for polygmists]

D: Concerns about polygamy – this doesn’t strike me as a crucial argument – we can all draw lines. But the argument is slightly different than often framed. That the logic that those is used to justify same sex marriage would apply in other settings. I was at University of Utah – argument made by one side of table was that people who want to marry should be able to marry. The audience than said why not apply that LOGIC [marriage defined by choice/consent] to polygamy. It becomes difficulty to cabin logic. This brings us to question of what is Marriage. Historically, culturally, marriage is very tied up in the reality of children/child rearing.

K: I see that argument – but does that argue for a more tailored def. of marriage – where we would only allow marriage for those who can have children – and bare those who can’t. I think as a policy matter, yes we as a society have interest in children’s welfare….

D: As a practical matter how do you cabin that definition. The other thing is that things change……

K: We certainly could say that women over 50 can’t marry, or if they can’t get pregnant in five years, we “unmarry” them

D: The distinction has been on couples who have been at least “theoretically capable” of having children

W: There is a fantasy – that gay people can be made not to exist. A lot of conversations about child rearing – often seem to proceed on the assumption of whether it is a good idea to have gay parents or not. There are gay parents. Women who are bisexual have the same fundamental rights as other women – to chose to get pregnant. The question is not whether should they exist, but rather whether we are BETTER OFF AS A SOCIETY to give these families the same support structure as other families. It seems that your framing of the issue is a way of disappearing gay people from the question.

K: What if anything of these policy arguments, should be relevant to courts in making decisions, or should these arguments be left to legislatures?

D: I think some of this is of limited relevance. The relevance is that this is a core social institution – this is not a state creation. Been around before the state. What the policy arguments say is that this issue is so fundamental that courts should be EXCEEDINGLY cautious before doing anything.

W: Couple things I want to respond to. First, the marriage that we are talking about is a series of state laws, like any other series of state laws, that create rights/obligations and doll out benefits. We are not litigating the rest – what churches say marriage is. People often conflate these two which is a mistake. One possibility is that in definitions of who is able to be married, with bans on gay marriage, for the first time since the civil war, there will be discrimination against a CLASS of people in the constitution. Second thing is that you are using a classification to define marriage. Not only would you be using that classification, but you would also be using it give [approval] to long standing social mores in the constitution at the expense of others. The case is still being made that discrimination on sexual orientation should receive judicial scrutiny. There is a misperception that gay people are white/rich because those people are more visible – so we end up with the judiciary being cautious. Why – because idea that these are privileged non-needy people that are getting special rights.

K: Suppose you were to win a case – and Supreme Court says that all bans on gay marriage are unconstitutional – good thing or bad?

W: I’m against it – the backlash would be huge and the momentum for an amendment would be tremendous which would be far more damaging in the long-run. I think, personally, that gay-people have a constitutional right to marry, but I think there are more important things in the short run.

Questions – these will be even more rough – because they are fast paced and I want to ask things myself. But I’ll try and get a few things down.

Q (Nolan Reichl) – to Duncan – if there was incontrovertible evidence that being gay is genetic and irreversible, would it change your view. And the opposite to you for Wolf.

D: No, it wouldn’t change my view
W: Nor mine. Its not helpful conversation [genetics and choice in this context]

I’m taking a break:
I’m back

My Question: To Duncan – You said that one argument against civil unions is that some are afraid it will cheapen marriage. Which rights, in this bundle of rights that constitute civil unions, would be seen by social conservatives as cheapening marriage?

He dodges.

Follow up. What about property inheritance, visitation, for example?
D: Well those rights would are barely challenged outside marriage
W: Like hell they are not! Read some of the gay marriage bans.

I missed a bit of the rest because I had to type.

Next question: To Duncan – you said no facts would change you view. What if the divorce rate plummets in MA and couples there (heterosexual) find themselves more committed than ever before, would that change your mind.

D: Yep, you got me. That would probably cause me to rethink.

Hearings on Corruption in the United Nations
Are slated in the Senate. Stay tuned for this one...

Recount in Ohio?
Don't expect it - the chance is virtually nill that it will happen. And if there is no recount, there is no contested election.

What Conspiracy?
Debunking many election-fraud myths, here.

Drudge and Viruses
On the Drudge website, I was prompted to download a program that would give me the option to have 10,000 smiley face characters on my computer. Of course, I googled around and found that program was filled with viruses, spyware, and annoying pop-ups. Why do reputable websites like drudge allow these kind of advertisers? And can those who are harmed by them bring a tort suit? Just wondering......

More Post-Election Conspiracy Stuff
Not Nuts - here
Nuts - here

This Doesn't Feel Right
SCOTUS blog is adamant that John Roberts of the DC circuit will be Rehnquist's replacement. The logic is that (a) He leans conservative (b) He is confirmable (c) His nomination will open up a slot on the DC circuit for Estrada or somebody else.

While the logic flows - something about this doesn't feel quite right - Bush has said that he has earned political capital, and he is going to spend it. Spending it on a Mitch McConnel nomination would make sense - it could shape his legacy for decades. The worry is that the Dems will block the nomination with a fillibuster like they did for many of the circuit court nominations of the past four years. But is that worry overblown?

A Supreme Court nomination will attract much more attention then a Circuit Court nomination. Additionally, the composition of the Senate has changed - there will be 55 Repubs in the Senate, which is either four or five (sorry I forget) more than over the past two years. Don't overlook the fact that the attitude of Dems in red states will be different - the horse in the bed of the dems which was the defeat of former Minority Leader Daschle is not likely to forget. Finally, if Bush wanted a moderate, he could have put Alberto Gonzalez on the court. Yes Gonzalez isn't on the D.C. circuit, but he is hispanic, and Repubs. love to play the racial preference game that they decry so much at the grassroots level. Bush's choice of this frequently rumored Supreme Court candidate to replace John Ashcroft as Attorney General in all likliehood forcloses this possibility and could be viewed as an early positioning to avoid the charge of governing from the far right.

The real question is if Bush, assuming that he will go for a judge on the verbotten list, will pick a one who is very verbotten (say Edith Jones of the 5th circuit) to soften up the opposition and then compromise on a less verbotten candidate (McConnel), or will take the less verbotten candidate from the get-go to minimize the controversey. My bet is on the former course.

It is Impossible to Consistently Beat the Market
Unless you are a U.S. Senator that is.

Price is Right - Bob Barker Donates $1 Million for Animal Rights
Why is this newsworthy? The donation wasn't to PETA - it was to UCLA's Law School!
[Barker] said he hoped the endowment would encourage more law students to get involved in protecting animals.
"Animal exploitation happens throughout this country and elsewhere," Barker said. "Animals need all the protection we can give them."
The Bob Barker Endowment Fund for the Study of Animal Rights Law will pay for teaching, research, seminars and lectures. The effort will be led by UCLA professor Taimie Bryant, who teaches a course in animal law.

And why can't anybody donate a million dollars to endow a class on something interesting - like how to navigate the NFL Salary cap. There are legal issues there - plus those who take the course could start to have better fantasy teams. Just a thought.
(hat tip - J2db)

Tough Questions For Mohammad El-Baradei at Stanford Law School
Mohammad El-Baradei of the IAEA was at Stanford Law School on Friday to give a discussion. Due to one of my friends getting himself in an emergency situation (and me being required to get him out of it) I had to miss this event. Which is a shame, because Clint Taylor took El-Baradei to task, as his email to me to shows:

Here's what I asked Mohammed el-baradei in his Nov. 4th lecture at Stanford, which caused quite a gasp:

Mr. El-baradei, on Oct. 1st your office sent a memo to an Iraqi scientist about the HMX nuclear trigger explosives at Al-Qaqaa. His response was leaked to CBS news, who planned to run it on Oct. 31st, immediately before the election. Columnist Bill Safire and reporter Cliff May have charged your organization with trying to influence the outcome of the U.S. elections. I'd like to hear how you respond to those charges, but more importantly since I'm sure you'll agree with me that these accusations have damaged the credibility of the IAEA. I'd like to know what, if anything, is being done to find the party responsible for the leak, and what would be an appropriate reprimand.

His response follows; my laptop ran out of power just as he spoke so there is only one verbatim quote but it's pretty close:

The work of the IAEA is ongoing. It doesn't stop for the American elections and one shouldn't think that the whole world revolves around the American elections (applause.) The October 1st memo was a regularly scheduled occurrence. When I received the report from the Iraqi scientist, I also informed the US officials so together with the Iraqis they could try to redeem the explosives. I also had to inform the UN Security Council, as is my job.

It could have been the Americans who leaked this, or it could have been the UN Security Council. It wasn't our intent to influence the election but the media-some of the media, see it that way. And some journalists need to get some maturity, because life goes on outside the US elections.

(Jerry Springer-like applause).

There was certainly no indication in his response that the leak would be investigated. Nor did I hear a denial of the charges, only assertions that it could have been someone else. I talked with two of my students on the way out who also didn't hear any specific denial that his office leaked it, and a third person, a stranger, concurred. (Another person told me, "good question. Someone had to ask it.")

Message to Dems - Don't Become Socially Conservative
Today's meme on Kos, which I agree with. The path for the Dems back to majority status is to embrace fiscal conservatism/sanity while pushing for progressive change on social values (war on drugs, gay marriage, safeguarding abortion rights in the legislatures when Roe v. Wade goes down in defeat). If it does those things, here is one borderline Republican voter who would be eager to jump ship. More on that later.

Affirmative Action
Yes, I'm lazy today. So I'm just providing this link as good reading material.

Oh yeah, as a throw in, considering the author of this piece, will this be on my first ammendment exam?

Also, there was a study that was released about the time of Gratz that suggested Affirmative Action had a negative effect on the discussion of ideas. For the life of me, I can't remember where to find this study. Does anybody here know?

More Ohio Election Oddities
Somebody please try to explain this:
In Miami County, with 100% of the precincts reporting at 9am EST Wednesday, Nov. 3, Bush had 20,807 votes (65.80%) and Kerry had 10,724 (33.92%). Miami reported 31,620 voters. Inexplicably, nearly 19,000 new ballots were added after all precincts reported, boosting Bush’s vote to 33,039 (65.77%) to Kerry’s 17,039 (33.92%). CASE is investigating why the percentage of the vote stayed exactly the same to three one-hundredths of a percentage point after nearly 19,000 new ballots were added. CASE members speculate that it’s either a long-shot coincidence with the last three digits remaining the same, or that someone had pre-set a database and programmed a voting machine to cough up a pre-set percentage of votes. Miami County uses an easily hackable optical scanner with the central counter provided by the Republican-linked vendor ES&S.

A Quick Reminder
While the vast majority of the posts on this site are written by me, not all of them are. Some are by other posters such as this post by Phoebe. You can always check who is the author of the post by looking at the bottom of it. A post by yours truly will say "Posted by: Elliot Fladen" at the permalink section. Likewise, a post by Phoebe will say "Posted by: Phoebe", a post by DC Rybicki will say "Posted by: DC" and so on. There has been some humorous confusion on this point, so I hope this clears it up.

An Open Letter to the Dems
From a reluctant Bush voter on why she didn't vote for Kerry

More Bad News for Dems
Dems who are looking towards '06 need to face this point - it is likely that they will lose even more seats in the senate to republicans. Ellis Oster has the goods at GOP Strategery.

Surprised? You shouldn't be. Dems win a select few states that are rich in electoral votes. Repubs win a high number of low electoral vote states. Since more states are republican, the senate should with time, drift to be more heavily republican body if the current red-blue political alignment holds. How heavily? Well, as a rough measure, there are 31 red states, and 19 blue states which implies a natural equilibrium at around 60 senators for the repubs and 40 for the dems.

Does This Story Have Legs?
Only if the problem of extra votes to Bush in Ohio was replicated in other precints.

Update: Looks like no legs. From the Guardian:
Deducting the erroneous Bush votes from his total could not change the election's outcome, and there were no signs of other errors in Ohio's electronic machines, said Carlo LoParo, spokesman for Ohio Secretary of State Kenneth Blackwell.

Franklin is the only Ohio county to use Danaher Controls Inc.'s ELECTronic 1242, an older-style touchscreen voting system. Danaher did not immediately return a message for comment.

A New Blogger to Take a Look At.
Ellis Oster, President of Cornell federalists, and insider to the National GOP (where he worked for several years) has joined the blogsphere. Let me put it this way - when I want to know what the scoop is - I call Ellis. You should bookmark his webpage for the future - I'm sure many others will as well.

Here We Go Again!
RE:Dems think Repubs are stupid MEME

Why Did Bush Voters Choose Bush?
Mike Kass asked this question to the Bush-supporting-stanford-law community. Sean Hayes answered the call with this well-written explanation.

Ok, let me make sure i go through this properly:

Why did you vote for Bush?

I'll avoid a boring point-by-point of his programs that i like. Instead, I like to fashion myself a 9/11 Republican--i voted for Bush in 2000 (in CT, of all places), and wasn't really a big backer of the man. Just liked him a little more than Gore, who always (like Kerry), just struck me as a beltway insider. Bush is obviously one by lineage as well, but he hides it well.

9/11 really made me a gun-ho bush supporter. HBO had that "9 Innings From Ground Zero" special on a month ago, and one of the commentators summed it up perfectly, when talking about bush throwing out the first pitch: "He was my guy, my representative, and i've never felt like that before." This from a guy who didn't vote for him.

I felt the exact same way, the greatest thing i have ever seen on television was Bush's impromptu bullhorn speech at ground zero. You couldn't help but feel the president of the US was fighting for you specifically. Obviously, this doesn't translate to a lot of people from the west coast, but 9/11 affected my undergrad in a big way.

Is it moral issues? If so, which ones, specifically?

I generally stay away from the pro-choice debate, because i don't have ovaries. The marriage thing, however, i do have an opinion on, but its not even that, because we mostly knew that state initiatives, and not a federal amendment, were going to decide that.

But "moral issues," to me just doesn't mean where life starts or what marriage is. Bush obviously has had his moments of truth stretching, but i don't think he ever deliberately lied to us. Kerry, on the other hand, consistently reeked of political opportunism. His constant Monday morning quarterbacking was becoming embarrassing. His answers on abortion were a joke--"I can't legislate from my belief"--but kerry would always say his faith affected everything else, just not that.

But the Swift Boat guys guaranteed that Kerry would never get my vote. I don't care if those guys gave money to Bush. I don't care if a lot of their funding came from a Bush supporter (who would it come from? Soros?). What bothered me more than anything was that here were 260 dudes with an opinion on Kerry, contrary to the opinion of Kerry's 12 supporters--and they can't speak without Tad Devine calling one of them "a bigot"? The press, Soros, the 527s went after Bush with all they had for 4 years, and a bunch of verterans aren't allowed to say, "hey, this guy isn't worthy of being president"???? Viewpoint discrimination at its finest.

Do you believe he'll fight the terrorists more effectively and why?

Yes, predominantly because Bush is going to let the fight be fought regardless of polls. We're going to destroy Fallujah in order to save it. Would Kerry have done that? Not if one country said no. I have faith that Iraq is going to turn around now.

Furthermore, as much as Kerry tried to turn Afghanistan into a failure, that is a remarkable success. Sure, we lost Osama and opium production is up, but we also installed a democracy in 3 years. Not bad.

Libya's disarmed, and regardless of kerry saying "we could've always had that," Bush still got it.

Do you believe Bush is better for the economy? Why?

I don't think Presidents create jobs. They sure do like to take credit for them. Apparently Bill Clinton created the internet boom. They create situations where job growth is encouraged, and Kerry's 11th hour admission that he would tax corporations more sure wasn't going to do that. Most of you know I don't particularly care what economists think, so the fact that Jack Welch was practically stumping for Bush on the talk shows is enough for me.

Do you simply want to have lower taxes in the short term?

Who doesn't!

Finally, is there anything more Kerry could have done, while remaining at least a moderate Democrat and retaining his personality and personal history, that would have swayed your vote?

There's the catch 22! Voted against every gun rights bill ever? Go shoot some geese! 100% pro choice rank? Talk about not legislating from faith! Against every conceivable American defense initiative and policy? Whore out your military service!

The problem is that the "more" Kerry could have done would have been seen as "more" of the same--John Kerry pandering for votes.

However, Emily makes a good point--if Kerry's "health care plan" had been more specific and understandable (it was synonymous with a tax hike, for heaven's sake), that might have given him a lot of credit.

Waiting on Ohio's Votes
130,566 votes seperate Bush from Kerry in Ohio, but the Kerry campaign wants to wait until the provisional votes are counted. With only a few counties remaining to be included in the total, there are only 135,149 provisional votes. However, Summit county (which includes Akron) and several other small counties have not submitted their provisional totals. Don't expect them to significantly push the number higher. Cuyahoga County, which is much larger, only had 24,788 provisionals. So maybe there is 160,000-140,000 provisionals - but even then many of them will be thrown out, and those that remain will be split by some indeterminate proportion between the two, but Kerry would have to win close to 100% of those votes to close the gap (assuming enough provisionals don't get thrown out to make the gap impossible to close). So for Kerry to win the following must happen

1) Get a lot of provisional votes from the few remaining counties
2) Hope that an extremely large percentage (maybe 90% - depends on how many more provisionals are found) of these votes don't get thrown out
3) Hope that the provisionals break almost 10 to 1 (or higher if not a lot remain after being eliminating the invalid counties) for Kerry
4) Hope that this pulls the race close enough for a recount, which could possibly make up the difference
5) Hope that in the event of such a recount, rumors of massive fraud in key democrat cities designed to raise Kerry's vote total don't turn out to be true, or at least demonstratable.

Is all this possible? Of course! But technically speaking, it is all always possible that if you take a 1000 monkeys, give them typewriters and several years, one of them will compose by random hitting of the keys the complete works of shakespear.

But being an ohioan who has suffered from the drive, the fumble, jose mesa's game 7 implosion, a myriad of michael jordan last minute shots, I don't like this possible thing, no matter how long the odds are. With that in mind, I have to keep reminding myself - patience, patience.

The Risk Is Called Bush
From today's "Der Standard:"
(By the way, Der Standard is not the only newspaper I have been checking on, it is simply a coincidence that I mostly chose articles from that paper.)

"American politics are a phenomenon: After four years during which the USA survived the bloodiest terrorist attack in its history, two wars and one radical change of direction in its budget policy, during which approvement ratings ranged from 40 to 90 percent, public opinion is exactly the same as it was in November 2000. (...)

There is much suspense on its way after the elections - especially if Bush is the winner. Usually, the current president is a well-known person and the challenger unfamiliar. This time, it is the other way around. We more or less know what Kerry's presidency will look like. With intellectuality, pragmatism and occasional dilatoriness, Kerry's Democrats will make their way through the minefield that is Iraq and the Republican Congress without major accidents. Whether or not Kerry increases the military presence in Iraq or initiates a troup cut-back, whether or not he will raise taxes at home or lessen the misery that is public health care is ultimately dependent upon factors that are out of his control. The world can follow Kerry's thinking and roughly knows how he is wired.

Nobody can say what Bush II will bring the safety-hungry Americans. Last time, the Texan threw all expectations overboard. Once in office, the compassionate conservative, who had criticized Bill Clinton for his actions overseas, became a radical revolutionary. However, the second terms of American presidents have often proved to be a time of moderation. (...)

Such a change could also occur after Bush's reelection: His leeway for new military adventures has been considerably reduced by the Iraq fiasco, the aggressive unilateralism has lately made room for some more friendly signals towards allies; and, given the gigantic budget deficit, lowering taxes has become almost impossible. Maybe Bush will let Donald Rumsfeld go and discover his new love for climate protection.

However, a lot indicates that he will regard winning the elections as God's stamp of approval on his politics and an instruction to continue. Less in foreign policy - when it comes to Iran, even hardliners avoid unilateral military action - more at home. There are still some remains of a welfare state that can be dismantled, the retirement system maybe; (...); abortion is still legal and the separation of church and state is still intact. For the extreme right, the USA is still a land dominated by godless liberals and left redistributers that needs to be liberated.

Revolutionaries are unpredictable. Even more so when they believe that a higher power speaks through them."

Black. All in Black.
Yes it is early. Yes the midday exit poll gap between Bush and Kerry was skewed against the Republicans. Yes this will not be decided for quite some time and is still too close to call. I don't care. I'm pessimistic, and putting on all black for the rest of the day. If Bush pulls ahead, then I'll look at my outfit, remember the feeling of dejection I had mid-day, and feel all the better.

I Hope I am Wrong
My gut says that 36 hours from now I will be waking up to President-Elect Kerry.