Law

Bruce Chang posts a transcript of a recent talk by John Yoo. It should be of interest to anyone concerned about the legalities of the current war.

Here’s an excellent round-table discussion about, mainly, the trial of Saddam Hussein in the context of international power politics. Well worth reading in full.

Themes that I wish participants had had time to discuss in more depth were 1) implications for China’s leaders of our treatment of mideastern dictators (Glenn Reynolds touched on this point) and 2) the suitability of exile as an inducement to dictators to avoid war.

The forum participants who weighed in on the exile question were unanimous that it could be a good tactic. I am skeptical, however, as I think that the implicit availability of exile creates perverse incentives for dictators to cause as much trouble as possible short of war. Saddam Hussein could have safely continued his massacres and WMD development up until the last possible moment, knowing that the USA would not attack without warning and that if his bluff were called he could always accept a comfortable exile.

Much better, I think, would be a policy of targeted assassination to increase the personal risk faced by dictators and their henchmen who refuse to behave. Such a policy appears to have worked well for Israel in its dealings with the Palestinian terrorist leadership. The risk continuum should be such that perpetrators of increasingly bad acts face increasing personal risk — instead of our killing the small fry while offering an implicit “get out of jail free” card to the people at the top.

The European Court of Human Rights. The noble syllables just roll off the tongue, and visions of brave people standing against genocide and oppression spring to mind. The title alone infuses the body with gravitas and dignity.

Dignity will be in short supply for a little while, though. It seems that a Russian lawyer is suing to his country’s TV networks over The Simpsons, an animated comedy show from the United States. He claims that the show caused “moral harm” to his family. He hopes that the court will force the networks to only air the program during time slots where children are less likely to see it, and he wants some money for damages. (The damage may be done, but it looks like some cash will help heal his family’s morals.)

Every court occasionally has to hear idiotic cases, and my position is not that this is an illustration of the futility of ECHR. Instead I think that this news is a very heartening sign. Some people have claimed that it is only a matter of time before Communism is reinstated in the former USSR, but this is proof that at least one Russian lawyer gets the Capitalistic concept that it’s okay to be seen as a fool as long as there’s some money it for you.

I haven’t written anything about the Harriet Miers nomination because I really don’t have an opinion. The reason why I don’t have an opinion is due to the fact that I don’t know anything about Miers or the issues at hand to form one.

A glance at the blogosphere would seem to indicate that this is extremely rare, a pundit who refuses to bloviate simply because he knows enough to realize that he doesn’t know enough. But that’s what sets the Chicago Boyz apart, and I’m not about to buck that trend.

Christopher Hitchens, it would appear, has been paying closer attention. He wonders why we can’t just stop pretending that there’s no “religious test” for the Supreme Court.

What in God’s name—you should forgive the expression—is all this about there being “no religious test” for appointments to high public office? Most particularly in the case of the U.S. Supreme Court, there is the most blatant religious test imaginable. You may not even be considered for the bench unless you have a religion of some kind. Surely no adherent of any version of “originalism” can possibly argue that the Framers of the Constitution intended a spoils system to be awarded among competing clerical sects.

Read the whole thing.

Beldar blog has an excellent post about the appointment of Harriet Miers to the Supreme Court. I was thinking of writing something similar, and he beat me too it, and did it better. Bottom line: The lady is very qualified for the job, and the fact that she is not from the academic world and not already a judge is a plus. We already have a lot of that type of knowledge and background. It is all to the good that we will now have someone on the Court who has had to work real lawyer’s hours, for paying clients, and make arguments to real courts and be accountable for the results, as well as running a major law firm and getting the bills paid. The kinds of considerations she will bring to the Court, as Beldar notes, will be a source of “diversity” far more valuable than the happenstance of her gender.

Also, a multi-level piece of hearsay has reached me from a person who knows a person, etc. who has worked with this lady. I offer this with all possible disclaimers. But the word is she is very, very smart and very conservative, judicially and otherwise. In other words, not another Souter. I sure hope so. And I hope she gets in.

I’ll note that this is tactically a very clever move by Team Bush. The Democrats have done years of opposition research on every possible “likely” Bush appointee and they would have been ready to launch a massive attack from the get-go. This way they are scrambling to find things to use to attack the nominee, and that means they will be less able to destroy her nomination and damage the President, since they will have less time to prepare. This appointment process is a zero-sum political struggle, and both sides are out to deal each other a major, damaging defeat. That is what this is about, despite the increasingly flimsy pretense that this about selecting someone who is “objectively” qualified. The Supreme Court has become a super-legislature, every one knows that, and the stakes are extremely high. Bush is playing to win, and he doesn’t mind winning ugly.

Update: Jim Miller weighs in with more detail about Miers, which makes me think even more that the pick is a good one. Like him, I think it is a plus that the selection of Miers “annoys law professors”. Like him, I like “boring judges who write boring opinions”. I do not want an “interesting” judge who is going to “find” European-style positive welfare rights in the Constitution, to pick just one bad idea which is afloat these days. Like him, I think this is a politically-motivated selection, and that is OK because the Supreme Court makes decisions which have huge political consequences, and the idea of some apolitical competence is a mirage.

Also, see Dave Kopel on some good, strong words from Miers on the right to keep and bear arms. Yeah, baby. (Via Instapundit.)

Update II: Patrick Ruffini has even more good things to say about soon-to-be-Justice Miers.