Cindy McCain

is an incredibly compassionate, courageous, and intelligent woman who is giving an absolutely awful speech to the convention right now.

A Little More on Palin

In my analysis of her selection it occurs to me I didn’t actually answer Tom’s query about my thoughts the impact of Bristol Palin’s out-of-wedlock pregnancy.  Indeed, on Monday and Tuesday I had thought that the news would diminish the enthusiasm of some social conservatives for the pick, but it appears that over the past couple of days the attacks from media on the issue have only caused conservatives of all stripes to rally around Palin further. 

As for the “merits” of the matter, even if her daughter’s pregnancy says anything about her fitness as a parent (which, in my view, is hardly clear) it says nothing about her fitness to be vice-president.

A Supertanker Full of Whoopass

Palin just opened one on Obama.  Perhaps as good of a convention speech from a non-nominee that I’ve ever seen.

On Palin

Over the past three weeks or so I’ve been preoccupied with several circumstances (including a benign but decidedly unpleasant illness), and I appreciate your indulgence, dear reader, of my lack of posts over that time. As I get back in the game, I may as well start by briefly offering some thoughts on John McCain’s selection of Alaska Governor Sarah Palin as his running mate.  (Everybody else is, at any rate.)

As for the political wisdom of the choice, I basically agree with the early conventional wisdom: the choice is quite a risk.  The benefits and potential benefits of choosing Palin are fairly evident.  The pick of a strongly pro-life, pro-gun running mate has energized social conservatives in the GOP base in a way that McCain alone had not done and perhaps could not have done before November. Her family’s blue collar roots and lifestyle are potentially appealing to lots of voters, and the prospect that she could become the female first vice president lends some more excitement to the ticket and can only help in the effort to attract Hillary Democrats. In her brief time as Alaska Governor she has developed something of a reputation as a hardnosed anti-graft reformer.  Her relative youth and, yes, attractiveness don’t hurt the ticket either.

But the downsides and potential downsides of the pick are evident as well.  There’s just no getting around the fact that it’s a negative that her most relevant experience resume point is that she has been governor of one of the least populous states in the Union for less than two years.  We may find out that her credentials as a reformer are somewhat less impressive than first thought; we’ve already been reminded that she was for the Bridge to Nowhere before she was against it and  that as recently as July she publicly expressed support for long-time embarrassment-to-the-American-system-of-government (and now indicted) Sen. Ted Stevens. Palin also faces challenges not of her own making and that have nothing to do with her merit, but are still very real. After her selection was announced,  Palin immediately begin facing the special hatred that many on the left and their allies in the media have for figures who, by their existence, challenge the charge that the GOP is only a party of, by, and for white men. Many of these hate-filled attacks will backfire, but some may stick in popular estimation.   (Remember how the left has relentlessly slandered Clarence Thomas from the moment George W.H. Bush nominated him to the Supreme Court? What Palin will face over the next two months and, if McCain wins, the subsequent four years will easily top that.) 

The import of all this?  Her political upside is big, but Palin has very little margin for error as she introduces herself to the country.  Her first big speech in Dayton was very good, and I expect an even better effort at the convention in a few minutes --she isn’t nicknamed “Sarah Barracuda” for nothing—but a few minor flubs could allow the Dems to be successful in painting her as a new Dan Quayle.

Is the risk worth it? It’s not one that a more cautious candidate would have taken, and some good safer choices (like Pawlenty and Romney) were available. But John McCain is anything but risk averse, and we’ll see how things play out?

Before closing, I suppose I should say something about the non-political angles of the pick.  It will be very brief, because there’s really not much to say. Let’s apply the William Henry Harrison test. If, whatever deity that may be forbid, John McCain were to win in November and then catch a fatal illness on inauguration day, how comfortable would you be at the prospect of Sarah Palin becoming President right off the bat?

To channel Justice Scalia, to ask is to answer.

So let’s hope that Palin performs exceptionally well over the next two months, as she is capable is doing, and contributes to a McCain win in a significant way.  And let’s hope John McCain stays healthy for years to come.

 

Update:  Fixed a few grammar errors.

Ill

Substantive posts to resume when the room stops spinning.

Cheers,

Brian

More Thoughts on Kennedy v. Louisiana

Last month I offered some analysis of Kennedy v. Louisiana, the case from June in which the Supreme Court ruled that executing child-rapists constitutes Cruel and Unusual Punishment.  I discussed my views on how the five Justices in the majority had further loosened the standard for finding a national moral consensus that a punishment is grossly disproportionate and then fully rendered that standard  nonsensical (assuming it wasn’t already) by announcing that community standards could only evolve in one constitutionally-cognizable direction: toward more restrictive use of the death penalty.  In this portion I'll discuss a third major point of constitutional doctrine to come from the case and the overarching practical lesson from the majority opinion about the future of the death penalty in America.

 

3.  Despite all of the Court’s discussion about evolving standards of decency and its further lowering of the bar for proving a national moral consensus, Kennedy probably confirms that the "independent judgment" of the justices taken alone is enough to declare a death sentence disproportionate. 

As in previous cases like Atkins and Roper, the Court’s analysis in Kennedy consists of two parts.  The first, discussing how standards of decency have supposedly evolved, I’ve already addressed.  The second is the majority Justices’ announcement of their “independent judgment” about whether the death penalty is a proportionate sentence for child rapists.  As you either know or have guessed from my setup, Justices Kennedy, Stevens, Souter, Ginsburg, and Breyer declared that in their moral/policy judgment the imposition of the death penalty for child rape is unjustified.

Now, I have a ton of problems with the notion that the Eight Amendment somehow gives Justices free reign to decide whether a punishment is grossly disproportionate for a given crime based on their own moral and policy attitudes. But, for purposes of this post (and because those problems have been covered extensively elsewhere), let me stick to the doctrinal change to independent judgment analysis that appears to have come to full fruition in Kennedy.  Or, put more exactly, the change in the relationship of the Justices’ exercise of their independent judgment to the evolving moral standards of society about proportionality and the death penalty.

As recently as Atkins in 2002, a majority of the Court strongly implied that the independent judgment of the Justices only comes into play after the Court has concluded that a societal consensus exists that a punishment is disproportionate.  For instance, to quote Justice Stevens’s majority opinion in that case: “Thus, in cases involving a consensus, our own judgment is brought to bear, by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.” (Citation and quote marks omitted, emphasis added.)  Furthermore, in announcing the Atkins majority’s independent judgment, Justice Stevens explained that the majority had “no reason to disagree” with the supposed consensus against executing mentally retarded defendants.

But this language suggesting that independent judgement should only be used to essentially double check a finding of moral consensus was not repeated by Justice Kennedy in his 2005 majority opinion in Roper.  Instead, Justice Kennedy stated that national consensus inquiry merely provides the Court with “essential instruction”; at the end of matter the Justices’ independent judgement is decisive.  In the Kennedy case. the majority stuck with and entrenched this subtle but important change.  Indeed, the Court made it abundantly clear which consideration was the superior:

As we have said in other Eighth Amendment cases, objective evidence of contemporary values as it relates to punishment for child rape is entitled to great weight, but it does not end our inquiry. The Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment. We turn, then, to the resolution of the question before us, which is informed by our precedents and our own understanding of the Constitution and the rights it secures. (Citations and quotation punctuation omitted.)

And that, as they say, is that.

It’s true that the Court (at least to my knowledge) has never found a death sentence in line with national moral values but declared it grossly disproportionate anyway in an exercise of the Justices’ independent judgment.  It’s also true that because of the Court’s recent removal of whatever stringency national consensus analysis  may have once had that scenario will probably never come to pass.  Still, Kennedy (following on the heals of Roper) suggests that even if the Court were to conclude that a death sentence didn’t contradict a national moral consensus it could still --in an almost unvarnished use of what can only be called natural law judging-- strike it down.

The Overall Lesson of the Case

In the wake of Kennedy it is evident that a majority of the current Justices, led by Justice Kennedy (no reference to the case name intended), have launched a multi-part attack on the national moral consensus standard, with the result that at this point it’s nearly moot.  National moral views can only evolve in one constitutionally cognizable direction: towards greater limitations on the types of crimes and defendants that can be punished by death.  Proving that the a new “consensus” has taken hold is easy, even where a majority of states that allow the death penalty authorize it for the type crime or defendant in question.  And if a supposed consensus is the result not of the collective moral and policy judgments of  legislators but of mere obedience by legislators and judges to the Court’s past dicta?  Doesn’t matter. And should a future Court be honest enough to admit that a consensus doesn’t exist (or actually exists in favor of the constitutionality of imposing death for a certain crime)? A majority of Justices can openly follow what they feel is right and wise in their independent judgement anyway. 

Don’t misunderstand me, Justices Kennedy, Souter, Stevens, Breyer, and Ginsburg aren’t likely to completely bar the death penalty in the near future.  The Atkins/Roper/Kennedy five aren’t stupid: they know that in the current political environment announcing that the death penalty is completely invalid would result in a massive public backlash against the Court and, quite possibly, a constitutional amendment negating the move.  Additionally, laws that are shared by all or almost all jurisdictions that have the death penalty (eg. provisions allowing juries to sentence cop-killers to death) are probably safe in the near term.  But there can be little doubt that unless the balance of votes on the Court shifts or Congress and the States pass a preemptive constitutional amendment the Court will continue pushing America, step by step and regardless of actual popular attitudes, along “the road to full progress.”

One of the Best Things in Life, Soon To Be Gone?

The $1 McDonalds Double Cheeseburger, that value-laden unit of greasy, cheesy, ketchupy perfection, may soon belong only to the ages. According to The Wall Street Journal, in response to rising beef and cheese prices and complaints from franchise owners about the low profit margin on the product McDonalds has been testing out price increases in a few of its stores.

Boo.

FCC Declares Comcast in Violation of Non-Law

You may have heard that the FCC today ordered Comcast to cease and desist reducing the bandwidth available to peer-to-peer applications used by subscribers of its cable internet service. Comcast had claimed that P2P applications, which are of course primarily used to illegally share copyrighted media and child pornography share large files in completely legal ways, consume a disproportionate amount of network capacity.  However, the FCC Commissioners, in a 3-2 vote, were having none of it.

Now, Comcast didn't actually violate any federal rules or statutes.  Instead, according to the commissioners in the majority the company violated FCC "principles" about internet openness.  Adopted in 2005, those principles are:

• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.

• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.

• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.13

• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers.

Comcast asserted that these principles are, essentially, little more than vague platitudes and general aspirations about the way the online world should be and are not enforceable law.  Indeed, the company pointed out that at the time the principles were adopted in 2005 current FCC chairman Kevin Martin commented that they "do not establish rules nor are they enforceable documents." Comcast also noted that the FCC said at the time that the principles were "subject to reasonable network management."

One may be tempted to agree with Comcast's legal arguments about "due process" and such, but come on, do we really need that whole "rule of law" thing in such cases?  Instead of forcing the agency to take the time to think through and pass formal and specific rules thorough a defined policymaking process, or even worse rely on Congress to pass statutes (how 18th century), can't we just let the FCC make effectively ad hoc decisions about matters within its purview?  That's what the modern FCC is best at anyway.

 

Update/Clarification:

Just for the sake of completeness, the reason I didn't link to the FCC's actual Memorandum Order and Opinion ruling against Comcast is that the agency hasn't released it yet.  Instead, the Commissioners in the majority decided to formally announce their decision by, yes, issuing a press release.  One presumes that they will release an MO&O eventually, and I'll link to it when that occurs.

Horrific

Today, a grand jury in Philadelphia indicted nine people in the death of Danieal Kelly, a 14 year old disabled child.  Among the nine was her mother, charged with murder.  The AP relates a bit about how Danieal died:

For days before Danieal Kelly died in a fetid, airless room — made stifling hot by a midsummer heat wave — the bedridden teenager begged for something to drink until she could muster only one word: water.

Unable to help herself because of her cerebral palsy, she wasted away from malnutrition and maggot-infested bedsores that ate her flesh. She died alone on a putrid mattress in her mother's home, the floor covered in feces. She was 14 but weighed just 42 pounds.

Forgive me for the reaction, but as I was reading the story I couldn't help but imagine how those who think the death penalty is unconstitutional would argue that sentencing Daniel Kelly's mother to death (assuming a murder conviction) would be a "grossly disproportionate" punishment.