Surely there's a better argument

Those who object to repealing lifetime tenure for federal judges have a concise argument, as with this comment left yesterday by an anonymous poster (edited for typos & such):

I disagree with you. First, the court in Lawrence v. Texas mentioned the case of Dudgeon v. UK because the proscribed conduct held invalid by the European Convention on Human Rights was based somewhat upon English common law. In case you are unaware, many of the laws in the US are based upon the old common law as well.

Second, it is the job of the courts to interpret and administer laws. It is also the power of the judiciary to hear ALL caes arising under the Constitution. (See Art. III). Thus, when you have a statute that deprives an individual of life, liberty, or property, without due process of law, and denies the individual the equal protection of the laws (see Amend. 14) then you have an issue that should be decided by the court... not the Texas Legislature.

Finally, lifetime tenure for article III judges serves us very well. The reason behind granting certain judges lifetime tenure is to allow them to uphold the Constitution ... rather than forcing them to try and please whoever will be voting to re-elect them. If they must "politick" in order to be re-elected, they will not care as much about preserving the Constituion, instead they will do everything in their power to be re-elected, regardless if the activity is proscribed by the Constitution. In short, you are wrong.

As you can see, the case is long on theory and short on evidence. You'd think they'd come up with a better argument. However, we've now got about 210 years' worth of practical experience against which this theory can be compared.

The theory holds that if judges are subject to election, their judging will veer away from a constitutional base and toward simple majoritarianism. Judges, the theory goes, should be insulated from political pressure.

It's just as easy to argue -- and actually much easier to document -- the ways in which lifetime tenure allows judges to depart freely from the constitution and make law from the bench. And it's much easier to show that elections impose boundaries beyond which judges wander at their peril.

There are any number of examples of Supreme Court decisions to illustrate the former condition: on legislative districts, religion, privacy, campaign finance, the death penalty, defendants' rights, the Commerce Clause, you name it. In the latter, exhibit A is former California Supreme Court Chief Justice Rose Bird. She, like many federal judges over the last 50 years, believed the death penalty to be wrong, despite what the state constitution said. So she voted to overturn every death sentence she was asked to consider.

In theory, if a federal judge behaved that way, there's an existing consitutional remedy: impeachment. But in the last century, this remedy has not been applied except in cases of corruption. Bad judging (like this, for example) is something U.S. citizens are asked to accept as the price of an independent judiciary -- a benefit of nebulous value.

California citizens, on the other hand (and those in all but three New England states) do have a remedy. Every six or eight or 10 years, they, or their elected representatives, get to do performance evaluations. In Rose Bird's case, it was a retention election. She lost, and rightly so.

Chief Justice Rehnquist, it's expected, will soon step down. About his replacement we will know nothing beyond his existing written decisions. Judicial ethics require him not to comment on cases before the court or those that might come before the court. It's a crapshoot, and we're as likely to be disappointed over the long term with the judge's performance as we are to be satisfied. Eisenhower said he made two mistakes in office, and they were both on the Supreme Court. Reagan put Scalia on the court, but he's also responsible for second-stringer Anthony Kennedy. GHW Bush named Thomas but also the unfortunate David Souter -- about whom, by the way, so little was known that even at the time of his nomination he was regarded as something of a mystery.

I'm not going fisk the post above, but I'll leave it at this: Either the Lawrence court amended the Constitution from the bench, repealing the states' authority to make their own laws, or the Bowers court, overturned by Lawrence a scant 15 years later, violated the defendants' constitutional rights. One set of judges or the other, in any other line of work, would be subject to sanctions of some sort.

The Nixon legacy

Dropping back a few presidents, let's talk Nixon. Actually, let's start with Johnson. According to this handy chart from the Alliance for Justice -- a lefty outfit, as you can tell from the name -- the oldest living judge is Patricia Minaldi, confirmed by the Senate on Jan. 1, 1900. She was appointed by George W. B... Oh, sorry, looks like Nan Aron has a Y2K issue.

Johnson, right. Here are the longest-serving active judges. I'm sure in some cases "active" must be loosely defined. Format: Judge, appointing president, confirmation date, court.

Manuel Real, Johnson, 11/3/1966, California district
Charles L. Brieant, Nixon, 7/29/1971, New York district
William Rehnquist, Nixon, 12/10/1971, Supreme Court
Joseph L. Tauro, Nixon, 10/17/1972, Massachusetts district
Emory H. Widener Jr., Nixon, 10/17/1972, Fourth Circuit
Allen Sharp, Nixon, 10/4/1973, Indiana district

So Richard Nixon, hounded from office in 1974, still has quite a legacy. Environmental Protection Agency, Clean Water Act, Endangered Species Act, Food Stamps... What, you didn't know that?

And then he's got judges. Five still left on the bench. Nominated by a president who resigned 31 years ago and died 11 years ago.

Jimmy Carter, kicked out of office 25 years ago, still has 30 judges on the bench.

Personally, I don't have anything against judicial doddering. I just think they should be accountable to voters occasionally. But there are several proposals floating around (here for example) that would limit terms to 15 or 18 years, with no renewal.

One issue lifetime-tenure advocates have with retention elections is that judges might drift rightward as their rendezvous with referendum nears. The issue I have with no-renewal term limits is that judges might want to go out in a blaze of egalitarian glory. ("Gay marriage? Aw, what the hell...")

All things considered, I'd prefer the rightward drift.

But put that aside for now. Three presidents noted here left office prematurely due to misfeasance, malfeasance or rank incompetence. We still have to deal with the judges they left behind.

That just strikes me as wrong.

Ronald Reagan & me

I don't have a "Ronald Reagan & Me" story. Sorry.

Speaking of Reagan...

Reading Jay Nordlinger's column today, here's another thing I didn't know, or had forgotten: "Duarte actually kissed the American flag, at the White House, which gave liberal Dems the vapors." That being Jose Napoleon Duarte, president of El Salvador. That must have been a moving moment.

Nordlinger writes about John Negroponte's nomination to be intelligence czar, if you hadn't guessed. Sens. Chris Dodd and John Kerry, most vociferously, can be counted on to oppose Negroponte, who was U.S. Ambassador to Honduras during "the troubles," as the Jamaicans called it when I was there on my honeymoon in 1983. It was a nasty period in Central America and the Caribbean, with Soviet mischief everywhere and deadly overreaction to it by the extreme right. Dodd and Kerry were on the wrong side of history at the time, agitating against U.S. involvement, particularly in Nicaragua and El Salvador. To them, Reagan appointee and true-believer Negroponte symbolized all they opposed.

When the Berlin Wall came down, Reagan received much of the credit for the liberation of Eastern Europe. But never much for the democratization of Central America. Perhaps if the region had actually gone totally communist and then been freed, things would be different. But Reagan's policies prevented that.

I hope he's remembered fondly in places like Honduras and Guatemala and Nicaragua, and as fondly as Duarte in El Salvador. He should be.

httpope://

Reading Peggy Noonan's bloggy column today, I found out something I did not know. Pope John Paul II has an e-mail address: john_paul_II@vatican.va. I wonder if I'm the first to send him this message:

"Dear Your Holiness Sir:

"I am of the understanding that you are enjoying great respect as a leader in your community. This is why I am being write to you. Allow me to introduce you to myself. I am the 18th son of the fourth wife of the late Mobutu Sese Seko ... "

Kidding aside, the pope unfortunately was again rushed to the hospital this morning with a relapse of the flu that nearly killed him a couple of weeks ago. It's time, I'm afraid.

Devout Catholics who are also a little old-fashioned will acclaim him a hero of the Church, and maybe its salvation. Others the world over will remember him as serving as one of an earthly trinity who, with Ronald Reagan and Margaret Thatcher, brought down an atheist empire.

Reagan's devoted followers will spend the next couple of generations working to get his 1980 face chiseled onto Mount Rushmore. More fitting, I think, would be a Rushmore-like monument to these three. Perhaps at the Vatican. Or in Gdansk.

Impeach this judge!

What to do about bad federal judges? Unlike the vast majority of state court judges, they've got lifetime tenure. Unlike the vast majority of state court judges, there are no effective checks on their power. Congress has used its impeachment power in the last century only to punish corruption. Unless the Constitution is amended to allow for some other solution, Congress should make more extensive use impeachment powers where judges have grossly abused their power. Second in a series.

The case: United States v. Williams
The judge: Vanessa Gilmore, southern district of Texas
The problem: Failure to follow instructions, among other things

Truck driver Tyrone Williams is on trial for his life in a federal district court in Houston. He's accused of mass murder: walking away from a locked trailer full of illegal immigrants he was transporting, leaving them to bake in south Texas. Nineteen people died.

Williams worked for a smuggling ring. The ringleader pleaded guilty, and a dozen others have been charged. Williams, however, is the only defendant for whom the government seeks the death penalty.

Williams is African-American. Judge Vanessa Gilmore also is African-American. As you can see from this report of a speech she gave at her alma mater, the University of Houston, she takes her African-Americanism seriously. And she wants to know why Williams alone has been charged with a capital crime.

Toward that end, she has (according to the 5th Circuit Court of Appeals here and here) threatened prosecutors with inappropriate discovery demands, proposed inappropriate jury schemes and inappropriate jury instructions, delayed the trial needlessly, refused to follow the appeals court's instructions, and in general been a jerk of a judge.

The appeals court has been downright abusive toward Judge Gilmore. For example: "Judge Gilmore's jury instruction appears simultaneously to be preventing the Government from enforcing the death penalty against Williams, while prohibiting any ordinary appellate review of the court's determination. This combination of legislating from the bench and acting as a quasi-defense attorney vis-a-vis the jury is unprecedented and ultra vires."

They also do Gilmore no favors in quoting her:

-- Speaking to prosecutors and referring to a report from the defendant's attorneys: "[T]he information that he got from this other guy is exactly the kind of stuff y'all should have been giving. That's better information than what y'all gave."

-- And "Y'all are just kind of piddling around, piddling around trying to make up your mind if you can just kind of get away with not giving it."

-- Last, but not least, "But presumably, you are going to just go back and get a letter from the Attorney General telling me to kiss their butt basically."

I could go on. And the 5th Circuit judges actually do. The opinions are fairly brief. Go read them. Very entertaining!

Article III, Section 1 of the Constitution says that "judges ... shall hold their offices during good behavior." Again, read the 5th Circuit's opinions. If her judging -- on top of her intemperate remarks -- aren't a departure from good behavior, then the words have no meaning.

Stuck with judges like this, lawyers are prone to explain away such behavior by saying stupid and condescending things, as in this Houston Chronicle article. "She's one of a kind." "She's very dynamic." "Good attitude and high self-esteem." "Reminds me of Oprah Winfrey."

Sounds like the entries from a high school yearbook. Fer Chrissakes, couldn't anyone come up with "She's fair and she follows the law"? Well, no, for obvious reasons.

Gilmore was appointed by Bill Clinton in 1994. Graduated from the University of Houston law school. She's apparently the first UH law grad to win a federal judgeship.

If federal judges were subject to retention elections, a pattern of judging like Gilmore's would be a tempting target for a "no" campaign.

But the only remedy the Constitution provides for such a judge is impeachment by the House and removal by the Senate. If Congress would make more frequent use of its impeachment powers, we'd have less of this kind of behavior. So, dear congresspeople, what are you waiting for? Set an example. Impeach this judge!

For more info see:
Houston's Clear Thinkers
The Conglomerate

Term limit debate

Randy Barnett and Jim Lindgren are debating term limits for judges over at the Volokh conspiracy. If you've found your way to Vote for Judges, you'll find my proposals in the links at right under "What's the point?"

Kyoto count-up

This is pretty cool. Disturbing, though.

Via Jonah.

Rehnquist: Exhibit A

The AP reports that Chief Justice Rehnquist won't be on the bench when the Supreme Court reconvenes next week. He's still battling thyroid cancer, but he's not at death's door -- he did show up to swear in President Bush a few weeks ago.

You might not think this proposal would affect Rehnquist's situation. Depends on the timing.

Rehnquist was sworn in as an associate justice in 1972. Had 10-year terms been in place, he'd have been due for his third retention election in 2002. He'd have been 77 years old then -- although I presume he didn't know he'd have cancer within two years.

Would a 77-year-old Republican-appointed justice have resigned in 2002, with another Republican in the White House, and with the Senate almost certain to swing back to the GOP that November -- instead of going through another retention campaign? Maybe, maybe not. Didn't seem to bother Strom Thurmond. And Robert Byrd seems to be preparing for another run. But I'll bet he would've given it some thought.

Retention elections would rarely result in a displaced justice. But they would also give older justices justification to leave the court before incapacitation sets in -- as it increasingly does, now that medical science keeps us alive long enough to get really, really sick.

Via Steven Taylor at poliblogger.com.

Radical in Rhode Island

This blog's mission, in the event you missed the required reading at the top, is to amend the Constitution to remove lifetime tenure of federal judges. Judging from the traffic generated, this is not a terribly popular idea.

At any rate, last month I put together this little table to demonstrate that the states, despite modeling just about everything else after the federal government, don't give judges lifetime tenure.

With one exception: Rhode Island.

That may change. A state senator there, Frank Ciccone, has introduced legislation limiting most judicial commissions to 16 years. He leaves the state Supreme Court judges in office for life, apparently. (Frank, if you're gonna disturb the hornets, you might as well DISTURB THE HORNETS!)

All the usual naysayers are out in force in this Providence Journal article: State Court Administrator: "We are absolutely opposed." Think-tank muckety-muck Rachel Caufield: "He's wrong."

Caufield, of the Iowa-based Hunter Center for Judicial Selection, says, "If every 16 years you're bringing new people into the system, you will end up bringing in lesser qualified people."

That is possibly the stupidest argument I've ever heard regarding judicial selection.

Are Rhode Island judges any more or less subject to political pressure than judges in other states? Do they not read the election returns? The newspapers? Do they live in splendid isolation with no next-door neighbors?

The fact is, if you've got lifetime tenure and you're married to the mob, I think that's possibly even worse than political pressure.

Class-action reform passes...

And nobody really notices? Is this not a big deal? Nothing on Instapundit? Nothing at Volokh? No mentions at Powerline? Am I missing something?

If your class-action lawsuit crosses state lines, and involves alleged damages of more than $5 million, you go to federal court now, not state court. No more coupon settlements, as in the case of the Blockbuster late-fee lawsuit, in which the plaintiffs attorneys walked off with $9.25 million and the plaintiffs themselves got a free movie rental.

This is an industry -- suing people -- that had revenues of $266 billion in 2004. That's more than the Fortune 1 company, WalMart, earned in 2003, $258 billion.

This is an industry whose practitioners -- lawyers -- contributed $123 million to Democrats during the 2004 election cycle.

The debate sounded just like it has over the last 15 or 20 years that this legislation has been kicking around. Republicans siding with big business over consumers, denying access, yedda yedda yedda.

And yet New York Sen. Charles Schumer, possibly the most partisan liberal in the Senate, voted to pass the bill. Huh? So did Democrats Bayh (IN), Bingaman (NM), Cantwell (WA)(???), Carper (DE), Conrad (ND), Dodd (CT), Feinstein (CA), Johnson (SD), Kohl (WI), Landrieu (LA), Lieberman (CT), Lincoln (AR), Nelson (NE), Obama (IL) (!!!), Reed (RI), Rockefeller (WV), and Salazar (CO).

Salazar was Colorado's attorney general. I find it especially strange that a state attorney general would vote in favor of moving class actions out of state courts.

At any rate, I guess this list shows why Democrats didn't filibuster.

I see nothing on Schumer's web site about his vote, but it looks like the site hasn't been updated since the end of the last Congress. Nothing on Obama's site either: I wonder if this vote will dim his rock-star status on the Left?

You'd expect, on the other hand, that the U.S. Chamber of Commerce web site would be flashing neon colors today, but no, it's just the lead item in the News section: "Chamber Celebrates Landmark Victory in Fight Against Lawsuit Abuse." Atypical of trade-association announcements, I'd say that actually understates the case.

What does this roll of Democratic defections -- and I call it that because of the party's stance in the past and the fact that Minority Leader Harry Reid voted "no" -- say about the other big battles coming up, particularly on judicial nominations? I have no idea, but I find the votes odd and encouraging.

P.S. Sen. Salazar, you need to do something about that web site. Obama was sworn in same day as you were, and take a look at his site.

UPDATE 2/20/05: Professor Bainbridge looks at the act's effect on corporate litigation in Delaware, where many corporations are headquartered, and suggests it won't have much effect on shareholder suits. He also points to this analysis by Thomas Lifson at the American Thinker, who's as surprised as I am by this bill's easy passage.

UPDATE II: Jared Libet dismembers Nancy Pelosi's anti-reform tirade.

Climate hockey puck

The Right Blogosphere, having devoted itself the last couple of weeks to the Eason Jordan story, today takes to task tsk-tsking from the Wall Street Journal's editorial page.

My friends, I believe you've focused on the wrong WSJ page today. Take a look at Page One. There's a fellow there who needs your help. And another whose claims cry out of the kind of in-depth investigation you'll find only in open-source journalism.

The question, raised by Canadian minerals consultant Stephen McIntyre: Is the hockey stick an accurate depiction of climate change? We don't know for sure, because University of Virginia climatologist Michael Mann won't release his data or the programming code he used to get the result.

In my book, McIntyre needs help making his case. And the science blogs should dunn Mann into releasing his data so that his experiments can be replicated.

Here's what we know:

-- Climate change science, thanks to the U.N. and the agenda- and grant-driven environmental NGOs, has become thoroughly politicized.

-- The hockey stick, first published in 1998, has been used as a sort of "Eureka!" moment for the anti-growth movement.

-- When McIntyre's claims were first published, in late 2003 in a British social science journal, it was a one-day news story followed by studied inattention from the MSM.

-- Now that McIntyre and Mann are on the front page of one of the (if not THE) world's leading newspapers, one of them will suffer. It will either be McIntyre being portrayed as a flat-earther, or Mann, who will be humiliated into releasing his data, eventually to be proved an environmental hero or a data diddler.

Personally, I have the sort of layman's doubts about global warming and man's role in it as I might about claims that we can eliminate terrorism by tackling Third World poverty. The sort of doubts for which an expert, looking down his nose, would admonish that "You just don't understand," or that "It's more complicated than that."

For instance:

-- The world was warmer a thousand years ago. Greenland was actually green. The warm period is nowhere seen on the hockey stick.

-- There was a "little ice age" in the middle of the last millenium. The ice age shows up nowhere on the hockey stick.

-- Global warming could trigger an ice age by diluting the salinity of the Gulf Stream. (I know that sounds wacky, but read the article.) It may be a natural process we are unable to affect.

-- Twenty-five years ago, in fact, the same sorts of people now in a state of near panic over warming were then in a state of near panic about the onset of a new ice age. It was on the cover of Time magazine! And I'm supposed to trust you now? Because... ?

-- As to what to do about global warming, it strikes me as the height of conceit to think that we can diagnose a problem like this based on, really, 50 years of good data, and to think spending a few trillion bucks (and exempting India and China!) would solve the problem even if it existed. But hey, that's just me.

Enforcement of the Kyoto treaty starts Wednesday, in countries that have ratified it. All of it based on highly politicized, if not downright questionable, science. The MSM are complicit in peddling one side of the scientific debate. If ever there was story that needed debunking, this is it.

What say you, Mr. Hewitt? Professor Reynolds? Powerliners? Michelle? Mr. Geraghty? Is Mr. McIntyre's destiny a modern-day Demonsthenes? Or will you help him cast some light on a modern-day fraud?

UPDATE: I've left trackback pings to this post at Ace, CQ, Michelle Malkin, Patrick Ruffini, Powerline, Protein Wisdom, Wizbang, Poliblogger, Volokh, Right Wing News, and Professor Bainbridge, all of whom comment on the MSM's reaction to Eason Jordan's demise. And c'mon, N.Z., time to target the next victim. Also trackbacked to Outside the Beltway.

UPDATE II: Juan Non-Volokh takes note of a little-noted Bush administration climate-control initiative.

Why the ire?

Poliblogger, a college professor, wonders in "Ire at the Academy":

Another thing I have noticed during recent discussions of tenure and academic freedom has been a great deal of ire aimed at the academy. I find this interesting and a bit odd. For one thing, I presume that a fairly large number of my readers are college educated. Did those who are upset really have that negative of an experience in school that they really think that the system is so radically broken?

My answer: Yes and no. I think the humanities departments are in the tank. The hard sciences are obviously churning out top-notch engineers, physicists, bio-whatevers, and so on.

My first experience at the University of Texas in 1973 was to undergo sensitivity training at the hands of the Black Panthers. That sorta set the stage.

But it's also the case now that I occasionally have to hire writers. It's getting harder and harder to find people who can write in complete sentences. That may not tell me everything I need to know about college life today, but it tells me an awful lot.

A new aggressiveness?

Don't know about you, but I was stunned by DefSec Donald Rumsfeld's performance on "Meet the Press" Sunday. If you didn't see it, you missed a rare display of political pique.

Rumsfeld, after Russert played the usual out-of-context excerpts from Rumsfeld's reply to the guardsman's Humvee question ("You go to war with the army you have...") went ballistic. "That is unfair," he said, and went on to take over the show, pulling a transcript of his remarks that day out of his pocket, and reciting them in full.

Obviously, Rumsfeld expected to be asked the question. He had his response prepared. I just wonder who in the administration knew that he would respond with an uppercut to the news media's jaw?

Looking back at the administration's actions since the election, I'm tempted to say Rumsfeld's attack was part of a coordinated strategy of muscle-flexing. Think about it:

-- Bush is back at work, firing half the Cabinet, within a couple of days of the election. He nominates Alberto Gonzales to be AG and Condoleeza Rice as Secretary of State -- both bold choices the could be expected to trigger partisan fights in the Senate.

-- He re-nominates the judicial candidates Democrats had filibustered in the last Congress.

-- The Senate Majority Leader clearly telegraphs his intention to overrule the filibuster as used against nominees -- which he wouldn't have done without Bush's blessing.

-- The inaugural address was breathtakingly ambitious, according to most analysts (I always have a problem getting to what Bush's speeches actually say because he delivers them so badly).

-- The State of the Union, on the other hand, I think was an excellent speech that Bush actually delivered well. And I think the speech, as much as the moving pictures of the Iraqi election, was responsible for his bounce in the polls taken since then.

Why was the SOTU such a good speech? Becuase, in my view, it was quite agressive: toward activist judges (with a wink at Justice Breyer -- nice touch); toward Democratic obstructionism; toward the Democratic Party, whose members were reduced to hissing his Social Security proposals. I half expected him to pause for a beat and say, "Well, now we've got something to talk about in 2006." And he went for private accounts constituting 4 percent of income, not the widely anticipated 2 percent.

Even some of what I thought were the more mundane parts of the speech -- better use of DNA evidence, courses for capital-case defense attorneys, programs to keep kids out of gangs -- were party-builders. I just didn't realize it until I read this article, which implies that these initiatives intend to accelerate the erosion of African-American allegiance to the Democratic Party.

My principal interest in all of this is that Bush seems ready to play hardball on judicial nominations. We should know how that turns out within a couple of weeks.

UPDATE: In elevating Rice, was Bush intentionally pushing her into the political spotlight and a 2008 presidential candidacy? Dick Morris doesn't say that. But that's where he finds her. Patrick Ruffini thinks Morris is drinking the Kool Aid again.

UPDATE II: Hindrocket believes the Democrats have stepped into a Social Security trap.

UPDATE III: Editor & Publisher wants to know what you think of Rumsfeld's media slam-dunk. Michelle Malkin points the way.

UPDATE IV: Regarding the military and the press, Varifrank has some nice quotes.

Professor Churchill's 'rights'

I've heard it reported on more than one occasion that Ward Churchill has a "right to academic free speech."

He has no such "right," in the sense that the reporters undoubtedly mean to convey it. He has contractual rights granted by the university. He's got tenure, in other words.

Universities may want to foster an atmosphere of academic freedom -- although few do, preferring instead an atmosphere hospitable only to radical leftist ideology. But academic freedom isn't a constitutional right.

The University of Colorado's Professor of Political Pornography does have a constitutional right to free speech. Karen Finley had a right to free speech too (all right! one Google search and it comes out on top: "chocolate and 'national endowment'"). But that didn't mean American taxpayers, through the NEA, had to pay her for "speech" in which she dresses like a Butterfinger.

I'm not privy to the small print in Ward Churchill's contract. He has, however, brought dishonor on the state of Colorado and on its premier university. He has augmented his 9/11 screed by refusing to apologize and by throwing sedition into the mix: He now says "we may need more 9/11's." He's inciting attacks on the United States.

Colorado Governor Bill Owens has made his preference clear: Fire the guy. The regents are taking a month to mull it over.

I don't see the downside to firing him. He's threatened to sue if he's let go, but so what? Again, I don't know what's in his contract, but tenure generally means continued employment subject to dismissal for cause. If Churchill doesn't meet the cause threshold, I don't know what it would take.

But failing that, he's also subject to post-tenure review and to sanctions, ranging from reassignment to dismissal.

In the meantime, if the Regents think keeping Churchill on board will improve the university's reputation in anyone's eyes, save those of other left-wing academics, they're wrong. Society has no obligation to employ and pay dissenting members who argue that the society should be bombed and disbanded.

To borrow a phrase from Justice Robert Jackson, tenure shouldn't be a suicide pact.

UPDATE: Goldstein, oddly, disagrees. But then, he probably felt that Karen Finley deserved a Pulitzer.

UPDATE II: I don't think Ace would have a problem with any remedy suggested here.

UPDATE III: Deacon at Powerline says firing Churchill should be a no-brainer.

UPDATE IV: Professor Volokh just wants Churchill to change his name.

UPDATE V: Next year's football championship will be Super Bowl XL. Right?

UPDATE VI: Poliblog points to the story of a UNLV professor investigated for PC violations as a reason Ward Churchill should be immune from sanctions. I've seen this story used a couple of times to defend Churchill, but I ain't buyin' it. There are limits. This professor was wasn't even near the edge of the envelope. Ward Churchill punctured the envelope and is now in freefall.

UPDATE VII: Powerline's Deacon has more info on Churchill's background. There's more in his background that's fake besides the Indian business. Unbelievable.

In re Professor Churchill

Hmmm, this is interesting. I'm sure you're familiar with University of Colorado Professor Ward Churchill. But it seems the Indians aren't as familiar with him as he apparently says they are.

UPDATE: Captain Ed's on the case.

Impeachment test

As I note somewhere below, I'd just as soon see the death penalty outlawed. Makes no sense to me to execute someone 25 years after the fact.

But while there's a law still on the books, I think judges ought to pay it some respect.

In Connecticut, Michael Ross wants to stop appeals to delay or overturn his death sentence. I'm not thoroughly familiar with the case, but according to this story in the Bridgeport paper, he confessed to killing eight women in the 1980s, has been in prison since 1984, and on death row since 1995.

His execution was scheduled for Saturday, but has now been indefinitely delayed. A federal judge wants him tested for competency. To get there, Judge Robert Chatigny threatened Ross's lawyer with the loss of his license if he didn't accede to the tests. So an hour before the 2 a.m. execution, Ross's lawyer announced he had a "conflict of interest," and everyone went back to bed.

Now a couple of state legislators are asking for an investigation of the judge and have forwarded a complaint to the House Judiciary Committee. This might be a good test of Jared Libet's thesis that impeachment is a better activism-inhibitor than retention elections.

I'll try to keep track of the investigation's progress.

HT: Jack Fowler at the Corner.

UPDATE: Additional info on Judge Chatigny:

-- Clinton appointee, appointed in 1994, Chief Judge for Connecticut District.
-- Killed Connecticut's sex-offender registry; registry reinstated by Supreme Court.
-- Here's a trascript of the phone call in which the lawyer is threatened. (Hat tip to Benedict.)
(egad, he invokes European sensitivities...)
(Holy cow, do judges usually talk like this in chambers?)
-- Can't find much in the way of biography, but here's a story about him.

What are you against?

That's the question the Claremont Institute's William Voegeli asks liberals in this long article at opinionjournal.com. One of those post-election "whither liberalism" articles, a bookend to Peter Beinart's "A Fighting Faith." Beinart tackles the liberals' weak-on-defense dilemma; Voegeli focuses on the philosophical framework for liberalism.

Short version: he can't find it. But read the long version.

UPDATE: The piece is so mind-boggling that Big Trunk at Powerline can only point to it. No summary attempted.

State of the Union note

Did you catch Bush sending a wink to Justice Breyer after delivering his line about judges legislating from the bench? Glad-handed him after the speech too. That was kinda weird.

Tons of SOTU analysis and reaction elsewhere, of course. My two cents: This will be the most significant second term for any president in the modern era (the demarcation being the 1951 ratification of the 22nd Amendment that limited a president to two terms.) Of course, the only full two-termers we've had since then have been Eisenhower, Reagan and Clinton. Casting a wider net, Bush's may rival FDR's second term, if he can get his Social Security reforms passed.

There was lots of talk during Reagan's and Clinton's second terms about repealing the 22nd. Don't hear much about it these days. Now it's all Ahnold! (Jennifer too, for any Democrats wandering in by mistake.)

The latest on Gitmo

Dahlia Lithwick at Slate has an excellent analysis on the legal stew the courts have cooked up regarding the rights enjoyed, or not, by the terror-war detainees at Guantanamo.

I link to this because I feel that the cases involved support this blog's point that judges sometimes require adult oversight. But I frankly am not certain who's at fault here. Consider:

-- In Hamdi v. Rumsfeld, a district court ruled that Hamdi, an American citizen who fought with the Taliban, was entitled to due process. The Fourth Circuit overturned the district judge, ruling that an act of Congress authorized Hamdi's detention and that anyway, the Constitution's war powers are allotted to Congress and the President, not to the courts, and Hamdi was a combatant. The Supreme Court reversed the Fourth Circuit, saying that a citizen was entitled to contest the facts justifying his detention. But this case was an outlier because Hamdi was a citizen.

-- Then came Rasul v. Bush, wherein a district court cited precedent in ruling that U.S. courts have no jurisdiction to grant writs of habeas corpus to persons imprisoned outside the United States. The appeals court affirmed that decision, but the Supreme Court reversed: "Congress has granted federal district courts, 'within their respective jurisdictions,' the authority to hear applications for habeas corpus by any person who claims to be held 'in custody in violation of the Constitution or laws or treaties of the United States,'" wrote Justice John Paul Stevens.

-- Two weeks ago, armed with Rasul, District Judge Richard Leon dismissed the claims of seven Gitmo detainees. And last week, Judge Joyce Hens, also armed with Rasul, ruled that Gitmo detainees have enforceable constitutional rights, and beyond that, military tribunals are unconstitutional, some of the prisoners are protected by the Geneva conventions, and for good measure delegated some of the president's war powers unto herself.

At first I'd assumed that Judge Hens had simply flown the coop, but after reading the cert opinion in Rasul there's no question that Justice Stevens left the hatch open.

Lithwick adds some political and turf-battle context to the latest conflicting opinions.

You'd think that after 225 years, there'd be a pretty firm set of guidelines for U.S. courts in dealing with combat detainees. A state of emergency isn't the time to start making it up as we go along. At a time like this, give the detainees what the letter of the Constitution requires. But certainly no more.

1st Amendment: No big deal?

According to a Knight Foundation survey of high school students, the kids don't have much regard for the First Amendment. Few of them actually had prior knowledge of it, and when read the text, still didn't have much use for it.

Hodding Carter III, president of the foundation (and State Department spokesman during the Jimmy Carter administration), calls the results "disturbing" and "dangerous." A journalist quoted in the AP writeup says that "Schools don’t do enough to teach the First Amendment. Students often don’t know the rights it protects."

That's probably true. On the one hand, since so little American history is taught these days, I doubt there's a First Amendment curriculum in many lesson plans. On the other hand, schools sometimes demonstrate behavior that conflicts with the First Amendment. Students also have real-world examples from Congress and the courts that must leave them a little conflicted about the phrase "Congress shall make no law."

Sometimes anti-First Amendment behavior is justified. Schools exist to teach. If a student's freedom of speech interferes with classroom order, I'll cast my vote for order every time. Some of that tension can be found almost daily in James Taranto's "Zero-Tolerance Watch" sub-feature in Best of the Web Today at opinionjournal.com. One recent example: a child being sent home for a T-shirt that said, "I went to HOOVER DAM and all I got was this 'DAM' shirt."

Sometimes it's not justified. Speech codes at universities, I think, go overboard. If it can be construed as hate speech, you can't say it. And just about anything can be construed as hate speech. Including inviting a conservative to speak on campus.

Freedom of the press? That's all fine and good, as long as you don't publish a conservative newspaper. The same article notes a freedom-of-religion issue at UNC-Chapel Hill.

Freedom to assemble? The state controls it: permits and free-speech zones. Why I remember [Abe Simpson voice] back during the Republican Convention in '72, there were protesters all over the place, tear gas, convention center ringed with school buses with the axles removed... They don't make protests like that anymore!" [/abe]

And getting back to freedom of speech. The series of campaign finance laws enacted by Congress starting post-Watergate and culminating with last year's McCain-Feingold law are blatant transgressions of the First Amendment. Only John McCain could argue otherwise with a straight face, and that's probably because they broke his jaw at the Hanoi Hilton. And do the courts stand up for the people's freedom to speak ill of politicians? No. But if you wanna burn a flag, they'll flick the Bic.

So what would even a smart, curious high-schooler think about the First Amendment? You can burn a national symbol but can't go on TV and say Senator Smith raised my taxes? What kind of freedom is that?

Via Todd Zywicki at Volokh.

UPDATE: Here's a fresh example from the Captain's Quarters. I'll probably run across a dozen of these today.

UPDATE II: The excerpt you might have tracked to from Captain Ed or Volokh may have been deleted. The post was edited to be less rant-y.