Alberto Gonzales for SCOTUS

Just a quick note here: I want Alberto Gonzales to be the next supreme court nominee. Why? Because he is the author or advocate of so many significant decisions that will come before the Court. Consequently, he will have to recuse himself. Since many of those decisions/positions are being rejected by the lower courts, it is likely that his recusal will result in 4-4 splits that necessarily result in affirmation of the lower court's ruling.

Specifically, I want the Court to uphold Oregon's Death with Dignity Act. Right now, Oregon probably wins that case at least 5-4 (and maybe 6-3), with O'Conner on the winning side. Many seem to think that if she is replaced and the result is then 4-4, the new justice will make it 5-4 for overturning the law. However, Gonzales, as AG whose office argued against the law before the Court, would have to recuse himself, leaving the vote, at worst, at 4-4, and thus affirming the Ninth Circuit's decision to uphold the law.

GO AL!!

Early entry into pro sports

First my disclaimer: I hate professional sports. All of them.

I haven't always. It's a recent thing. I used to hate college sports. Thought they were stupid, low-talent, etc. Now I realize that college sports (in any flavor) are better than professional sports.

Why? One reason - heart.

College kids just play harder. Most of them play for the fun of the game. A few play for the shot at being drafted and becoming millionaires. In either case, they have more incentive.

I realized this many years ago (but didn't make the connection) when I attended Portland Winter Hawks games. If you don't know, the Winter Hawks are Portland's minor league (AAA equivalent) hockey team. Those guys play (and fight) hard because they have to prove their worth to get to the NHL (back when the NHL existed).

Pro athletes have the contracts, endorsements, etc. before they ever put on a uniform. Before they've ever done a damn thing. Why should they play hard then? They're gonna get paid whether they ball or not. Worst that can happen is that they get traded or benched - but they still get paid.

One of my greatest peeves with pro sports though (and the real reason I hate them) is the decreasing quality of the pro game (namely basketball and, to a lesser extent, football). Allowing kids to come in with minimal or no college time is assinine. These kids were superstars in high school, which means they were rewarded for basically taking over a game - i.e. playing selfish.

College ball is full of kids who were also high school superstars (or stars), so you can't really just run over people like you used to in high school. Thus, players have to learn to adjust their game to the team concept while enhancing fundamentals that must change to the evolved skill level of the competition (i.e., your high school jump shot won't cut it in the face of an NBA defender).

I have never understood why the pro leagues don't simply require college degrees. Yeah, so some dumb-asses won't make it. So what? Isn't that consistent after all with the hypocritical "stay-in-school" v. skip college messages sent by the pro leagues?

I guess the NFL's new rule comes closest so far - requiring a draftee's high school class to have finished college. In other words, you can sit out four years, or play college football for four years (three plus a redshirt I guess). I imagine most would play, and the rule lets them leave after their junior season (if they redshirted). Basketball could do this too.

In the meantime, we'll continue to have dressed-up high school basketball presented as the professional game, and we'll have NFL draftees who take 4 years to learn the game, and it'll all just continue to suck.

I hate pro sports.

I'm going to die.

For those regular readers (all two of you) I want you to know that it has been a pleasure entertaining you. However, it turns that I will be dying on Saturday, March 30, 2041. I know this may come as a shock to many of you, but so it goes. One does not argue with the Death Clock.

Apparently, I could extend my time here until Thursday, April 29, 2060 if I became an optimist.

Screw that.

I only wonder if I'll finally get to meet the Flying Spaghetti Monster, face-to-noodly-face. Guess I'll have to ask my Magic 8 Ball.

Ann Coulter Partially Sane!

Click here for an article that notes how even Ann Coulter had a lucid moment (two in fact!) when she came out critical of Meiers' nomination.

Meirs linked to corporate scandal?

Hmmm. Seems that while Supreme Court nominee Harriet Meiers was managing partner at the Texas law firm of Locke Purnell Rain Harrell, they got hit with $30 million in fines for vouching for the reputations of some Ponzi scheme crooks, which vouching induced some fools to soonly part with their money. (Click on the title of this post to view the complete article).

For my part, that's a nail in the coffin. There are very few people from whom I demand the highest character - but I think it's fair that in a country of nearly 400 million, I can demand that nine of those people be, essentially, without flaw.

Is that asking too much?

George Will on Harriet Meirs (figuratively, of course)

Good ol' George Will has taken Bush to task on his selection of Harriet Meiers to the U.S. Supreme Court. In his column (click on the title of this post to read the column) he sets out three "starting points" for the Senate to keep in mind as it looks forward to the confirmation hearings:

"First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption -- perhaps rebuttable but certainly in need of rebutting -- should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due."

Better yet, he all but calls W too dumb to be permitted to make decisions that might involve the Constitution, when he says:

"The president's "argument" for her amounts to: Trust me. There is no reason to, for several reasons.

"He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections."

That's the nicest way I have ever heard anybody call anybody else "dumb."

As for Meirs herself, Will suggests that:

"If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists."

I can understand appointing someone with no judicial experience to the Supreme Court, if that person had some body of work (courtroom or academic) that reflected a solid and in-depth understanding of the Constitution and constitutional law. Meiers has no such experience and no relevant body of work upon which the Senate (or the people) can make an informed decision. She was a corporate lawyer at the Texas law firm of Locke, Liddell & Sapp (note that many "corporate" lawyers have never seen the inside of a courtroom), on some city council, president of the Texas Bar Association, and is nice. Yippee.

But I have to agree with Will here - there are at least 10,000 more-qualified candidates than this woman. There are certainly many, many more qualified conservative candidates.

Speaking of which, this strikes me as kinda funny. W has insisted that he would appoint candidates who share the judicial philosophy of Justice Antonin Scalia. Now, as far as I can tell, the only other human being who intentionally chooses to think like Scalia is William F. Buckley (Justice Clarence Thomas doesn't count - at least not until he demonstrates an ability to think for himself rather than be Scalia's lap dog). So far, nobody Bush has appointed is like Scalia - not even a little bit. Thus, this raises an obvious question that I have never heard asked: Does George Bush know who Antonin Scalia is? Has Bush ever actually read a Supreme Court opinion, much less one of Scalia's "the other judges on this Court are stupid assholes" dissents?

Refineries - about damn time.

Finally, the gov't is doing something about increasing our refinery capacity. People can bitch and moan about reducing our dependence on foreign oil 'till their blue in the face for all I care. Foreign oil is where it's at for the short and medium term (i.e. next 100 years).

It's a little known secret that the reason the cost of gas is so high at the pump is because of the bottleneck at the refineries. Increasing the number of refineries will lower the price of gas for consumers - obviously not overnight, and probably not for a good 3-5 years.

This Slate article does a good job summarizing why the real villians in the rise of gas prices are the refiners, not OPEC and not the local gas station. Why are more refineries good? Current refineries are running at 94 percent capacity, and have no domestic competition. The largest independent refiner, Valero, saw its stock rise 226 percent in the past year. Here's another good article on the need for greater refinery capacity. Capitalism requires competition in order to hold down prices and not drive the economy downward.

There are those who contend otherwise, and argue that building more refineries is sacrificing the environment to the benefit of oil companies. Maybe - but only a little bit. I'm willing to accept some environmental sacrifice from time-to-time, so long as it's reasonable and necessary. This is. Will oil companies make more money? Maybe, but I'm okay with that. I would rather see them make money on volume rather than margin, because at least I know I'm not getting screwed in the process. If they get richer - good for them. Wish I was one of 'em.

More evidence that Rumsfeld should be in prison

This is a great blog by William Arkin, military analyst for the Washington Post.

In it, he refers to a memo written by Secretary of Defense Donald Rumsfeld asking "Are we winning or losing the Global War on Terror?" The memo is dated October 16, 2003, more than two years after 9/11 and the October 7, 2001 initiation of the "War on Terror." Two years into it, and the head guy doesn't know if he's winning or losing? I'm sorry, but to me, the answer is very simple, if you are not winning, you are losing - and if you are winning, you know it. Ergo, the question is itself an acknowledgment that we are losing (because, yes, in this case, an indeterminate outcome equates to a loss).

One of Rumsfeld's more interesting observations is our lack of metrics to ascertain our progress. In other words, we do not have a measuring stick. This is interesting and important because it directly addresses a point raised by Michael Scheuer in his book "Imperial Hubris: Why the West is Losing the War on Terror" By way of set up, Scheuer led the CIA's bin Laden unit until 1999, and published his book as "Anonymous" due to CIA regulations. The book itself is an "open source" text (thereby saving it from being stamped "secret" and shelved) and started out as an unclassified training manual for new counterterrorism operatives working on bin Laden and Sunni extremism. (See link here).

In any event, Scheuer notes that it is impossible to determine whether our capture and/or killing of various high-profile targets has made a dent. This is because we do not have an "order-of-battle" study in place for al Qaeda. (Imperial Hubris, p.67). He says, "[w]ithout this basic reference point it is impossible to objectively determine how badly or permanently al Qaeda has been damaged." (Id). Without going into detail, he notes that we simply have no way of knowing whether we are successful.

So back to Rumsfeld. Now, two years after asking the question, the DOD has finally decided to start the process of seeking an answer. On September 8, 2005, the DOD sent out a solicitation for bids on a contract to develop "a system of metrics to accurately assess US progress in the War on Terrorism, identify critical issues hindering progress and develop, and track action plans to resolve the issues identified."

In other words, four years into the "War on Terror," and the DOD finally decides that it should maybe develop a method of evaluating its progress. Seriously, can ANYBODY whose head is not completely up their ass believe that BushCo have the first clue about what they're doing? I mean, aside from the lack of sufficient forces on the ground, the faulty intelligence, the total failure to grasp Middle Eastern and Islamic culture, and the stubborn refusal to actually engage in a real war on terror, now this? Four years into the game, and we're just now contracting to define the rules and build the scoreboard!?

One of the problems the DOD now faces is that any system it develops for measuring success/defeat will be based on a military perspective, which is incongruent with the law-enforcement mindset that dominates this alleged "War on Terror." Our policy is not to defeat terrorists through their military destruction, it is to arrest them. Occassionally, more by dumb luck than design, we manage to kill some. Scheuer argues in his conclusion that we must stop viewing bin Laden as a terrorist, because he is not. He says, "Al Qaueda attacks are terrifying, but acts of war are like that. Bin Laden is leading and inspiring a worldwide anti-U.S. insurgency; he is waging war while we fight him with counterterrorism policies dominated by law-enforcement tactics and procedures. It has not and will not work." (Imperial Hubris, p. 246) (emphasis added).

Scheuer goes on to note that, "[a]s practiced by the United States, counterterrorism is appeasment; it lets the enemy attack and survive, keeps allies sweet by staying the hand of the U.S. military forces they hate, and ignores the true terrorist states in the Sunni Persian Gulf because they own much of the world's oil. The bloated, risk-averse, and lawyer-palsied (counterterrorism) community ensured state sponsors and their proxies survived, and now it blocks the counterinsurgency strategy needed to beat al Qaeda." (Id. at 246-47).

It will be interesting to see if the DOD assessment ultimate results in a revised methodolgy that mirrors one of the issues raised in Scheuer's book. Since the days of Grant and Lee (and the Overland Campaign), the U.S. military has trained its officers to wage war with a blood-letting mindset. Massive destruction, massive casualties, unrelenting pace. Today, war is fought for the television cameras, so we get nifty pictures of laser-guided bombs. However, as Scheuer notes, "[d]ainty U.S. military attacks convince our Muslim friends and foes that America lacks the military savagery to either portect its allies or destroy its enemies, and that, despite massive U.S. military power, the Islamists can absorb U.S. attacks and fight again." Another author cited by Scheuer said, "[w]arriors will interpret such an aversion to violence as a wekness, emboldening their cause. ... For such adversaries, our moral values - our fear of colalteral damage- reperesnt our worst vulnerabilities." (Id. at 235, and quoting Robert D. Kaplan, Warrior Politics).

In short, either wage total, unrelenting and catastrophic war on the muslim world (I didn't get into Scheuer's point that this is not a war against extremists, but against the entire Muslim world), or agree to their demands, which are, simply, get out of the Gulf. (I also did not spend time discussing his point that bin Laden, et al, do not hate us for out values, politics, or way of life - they simply want the infidels out of their holy territory). Given the two options, only the first is viable and stands any likelihood of success - like it or not.

Why did 9/11 happen?

Recent discussions elsewhere have led to pause and back WAY up.

Now, I am curious, why do people believe Al Qaeda, and specifically Osama Bin Laden, attacked the United States? And if you have an opinion, from where does it originate? Can you link to a source? (preferrably as high as a secondary source - obviously nobody here (I hope) has direct access to OBL).

I'll wait patiently.

Gonzalez v. Oregon

Big day today at the U.S. Supreme Court, where the Court will take up the Oregon Death With Dignity Act. This one is hard to predict. On the one hand, the feds argue that the Controlled Substances Act gives the Attorney General the power to interpret the CSA and promulgate rules, which authority has been delegated to the Drug Enforcement Agency. The feds note that the act prohibits any use of a Schedule I substance, and regulates the use of substances found on Schedules II, III, IV and V to "legitimate medical purposes."

However, as the feds note in their brief, neither the CSA nor the DEA's rules defined "legitimate medical purpose." Instead, the feds rely on the fact that the other 49 states and the AMA disavow the practice of physician-assisted suicide (which Oregon claims to be a misnomer because the doctor doesn't actually assist in the suicide) to conclude that Oregon's permission of it does not qualify.

I find it somewhat disingenuous to rely on the opinions of the states to argue the federal government may trump those same states' interpretation. If 49 states disapprove, and the federal government may enforce an interpretation of "legitimate medical purpose" that is derived solely from the fact that those 49 states disavow such medical practice, then what would happen if 49 states approved such a practice? Where would the support for the feds' interpretation come from then? I hope somebody on the bench asks this question today. It would seem to me that, if the federal government relies on the state's interpretation of "legitimate medical purpose," then it must concede that the definition of such is up to the states.

A lot of commentators seem to think this case is somehow analytically related to Gonzalez v. Raich, the medical marijuana case recently handed down. However, the question presented there was different. In Raich, the issue was whether the commerce clause permitted Congress to regulate the use of a drug over the objection of a state. Marijuana is a Schedule I drug. Consequently, it may not be prescribed - period, not even for a "legitimate medical purpose." Thus, it was immaterial why marijuana was prescribed - the fact remained that the drug was not subject to prescription for any purpose. Here, the question is whether a drug that is otherwise permitted to be prescribed for a "legitimate medical purpose" may be prescribed to hasten death, and consequently whether such use constitutes a "legitimate medical purpose."

Boiled down to an even duller level, this is a case of the authority of an agency to interpret its own rules. My (rather cursory) review of the briefs indicate that nobody has really brought this issue to the forefront. Frankly, if I were the AG, I would start out with this because I think it's his strongest argument. Congress delegated rulemaking to the AG. Therefore, he can make - and consequently interpret - rules. It is well-settled law that an adopting agency's interpretation of its own rules is subject to considerable deference and will usually be upheld so long as it is reasonable and does not conflict with some other rule or law. And although I disagree with the AG's interpretation, I don't see anywhere in Oregon's argument a persuaive reason why it should not be accorded deference. Considering the opinions of the other states, the AMA, and the Court in Washington v. Glucksberg, it certainly appears reasonable, and obviously doesn't conflict with any other rule or law.

When it's all said and done here, I would not be surprised to read an opinon that avoids all of the more interesting "states' rights" arguments and simply says an agency may interpret its own rules, the AG has the authority to regulate the use of scontrolled substances, and therefore it may interpret the rules regarding the use of controlled substances in a manner it deems consistent with its own rules and that gives the rules the force and effect the agency (and Congress) intended.