Tuesday, May 25, 2010

Frogmen, Dammit! Send In The Frogmen.

The Obama administration and British Petroleum have been stumbling around in the dark, clueless as to what to do with the Gulf leak. And the amazing thing was the solution was right at hand. Last Thursday on Hardball, Chris Matthews explained that the solution was simple. Send in the frogmen.

MATTHEWS: Well, that‘s what I‘m asking about. Is the problem getting a submarine to get—can we use our fleet of submarines to go down there and get men, frogmen, down there with torches and begin to close up that—that hole in that pipe? What is the problem, getting there? Is it the transportation to the bottom of the sea, a mile down, or is it the technology of closing that hole?

You see. It's so simple. Just get our Navy boys down there a mile below the surface with some wrenches, and blow torches and maybe some chewing gum and bungee cords and stop that damn leak.

On the Friday edition of Hardball Matthews went a bit further saying that if Captain Nemo could do it why can't we.

MATTHEWS: He says—he stands by and hectors them, but they‘re the ones responsible for fixing—I don‘t know why all the submarines in our fleet aren‘t down there. It would seem to me that Captain Nemo back in the 19th century in fiction would have been able to get down there and fix it with soldering irons and blow torches and filling up that pipe, or with cement or gravel or whatever it takes to put on top of that, just start dumping it there with our big tankers. I don‘t know why we‘re not doing it. We‘re counting on one company, a British company, to solve a problem that‘s been created in our back yard, and I don‘t quite get it.

Matthews statements demonstrate clearly the idiocy of conflating fantasy with reality and having strongly held opinions in a fact free mind. Furthermore they are evidence of the very arrogance that got us into this mess in the first place.

There are no easy fixes to an oil leak one mile beneath the surface of the ocean. If there were, it would have been implemented. But the sad truth is that the oil companies deluded themselves into thinking they could drill safely at those depths, with a faith in their technological prowess that has now been demonstrated to be a crumbling edifice of self deceit and hubris. Not to be outdone, the federal government, suffering through decades of a deregulatory environment, bought in to the concept that drilling was safe and well within our technological abilities.

But what would be comical if it were not so pathetic is the incessant blabbing we hear from pundits in the media screaming at the tops of their lungs "why isn't Obama doing more." Top among these was David Gergen who regurgitated a five-point plan this morning as if it was passed to him on some stone tablets. Well the simple fact is that all five points involve steps that the Obama administration has already taken ,as pointed out by citizen K.. There is no magic potion, there is no silver bullet.

The United States government, including its military, is not in the oil drilling business. It does not have the capacity using its own machinery and personnel to fix this leak. We can debate whether it should have had that capacity and whether funds should be spent to develop that capacity in the future, but as of today it simply doesn't exist. The government has equipment that can be helpful in dealing with this type of catastrophe but that is all. For now, we must rely on the oil companies to stop the leaks. And as far as the cleanup and mitigation of the spill, no effort should be spared but we should have no illusions. Only a small fraction of that oil will ever be contained or removed. The damage will be profound and will only be lessened by Mother Nature and the passing of time.

But go ahead Chris, keep dreaming of Captain Nemo and frogmen. But I have one suggestion. It might be best to keep those thoughts to yourself. in the words of Abraham Lincoln,

Better to remain silent and be thought a fool than to speak out and remove all doubt.

Monday, May 17, 2010

Clarence Thomas Smacked Down Like Never Before

While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old . . ., the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

Today, the Supreme Court held, for the first time, that the Constitution prohibited sentencing a juvenile to life imprisonment without the possibility of parole for a non-homicide case. In Graham v Florida, the Court established this new rule which, for the first time, extends the special treatment of juveniles to non-capital cases. The majority opinion was written by Kennedy, with Stevens, Ginsburg, Breyer, and Sotomayor concurring. Justice Roberts, agreed that it was unconstitutional to impose that sentence on the juvenile defendant in the case, but would not have created a rule that would apply to all other juveniles in all other cases.

There are many noteworthy aspects to this decision that will have a large effect on Eight Amendment cases moving forward. But no less striking is the concurring opinion of Justices Stevens, Ginsburg and Sotomayor that contains the quotation above. It is one of the most biting and sarcastic smackdowns of a Justice one will ever read in a Supreme Court opinion. The concurring opinion is very short and is set forth in full below.


In his dissenting opinion, JUSTICE THOMAS argues that today’s holding is not entirely consistent with the controlling opinions in (citations omitted). Given that “evolving standards of decency” have played a central role in our Eighth Amendment jurisprudence for at least a century, (Citation omitted), this argument suggests the dissenting opinions in those cases more accurately describe the law today than does JUSTICE THOMAS’ rigid interpretation of the Amendment. Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commit- ment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete, post, at 8–9, and n. 2.

While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old . . ., the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

The disrespect that Justices Stevens, Ginsburg and Sotomayor showed for Thomas is completely warranted by the absurdity of his opinion. His mind is so lacking in ability that it is unable to comprehend that acceptable standards of conduct and behavior can evolve over time. One would have to read his whole dissent to get the full flavor of Thomas' crimped thought processes but here is an example

The Court ignores entirely the threshold inquiry of whether subjecting juvenile offenders to adult penalties was one of the “modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.” Ford v. Wainwright, 477 U. S. 399, 405 (1986). As the Court has noted in the past, however, the evidence is clear that, at the time of the Founding, “the common law set a rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted [even] capital punishment to be imposed on a person as young as age 7.” Stanford v. Kentucky, 492 U. S. 361, 368 (1989) (citing 4 W. Blackstone, Commentaries *23–*24; 1 M. Hale, Pleas of the Crown 24–29 (1800)). It thus seems exceedingly unlikely that the imposition of a life-without-parole sentence on a person of Graham’s age would run afoul of those standards.

So if the founders thought it was OK, it's fine by Thomas. That would of course include whipping people, putting them in stocks, and, Thomas' favorite,

capital punishment for offenses ranging from “ ‘run[ning] away with . . . goods or merchandise to the value of fifty dollars, . .

One last note. Scalia and Alito signed on to Thomas's dissenting opinion but even Alito could not agree with that portion of Thomas' opinion. Hope springs eternal.

Monday, May 10, 2010

The original Constitution was flawed, and not just because of the slavery provisions.

Republican National Committee Chairman Michael Steele and some of his fellow travelers are trying to suggest that Supreme Court nominee Elana Kagan is not qualified to serve on the high court because in a 1993 law review article she wrote that the Constitution as originally enacted was defective.

Steele's criticism has been widely ridiculed because anyone with the least understanding of the issue knows that Kagan was pointing out that the original Constitution not only endorsed slavery but also provided for slaves to be counted as three-fifths of a white person for purposes of Congressional apportionment. Additionally, Kagan's article was written in honor of the then recently deceased Justice Thurgood Marshall who had made the same point in a speech in 1987 at a commemoration of the 200th anniversary of the Constitution. For this reason alone, Kagan's criticism of the original Constitution is unassailable.

But that criticism of the Constitution is manifestly valid for another reason — the original Constitution did not include the Bill of Rights, those first ten amendments that guarantee our liberties.

It is hard to imagine anyone thinking that a Constitution without the following provisions was not defective:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

And yet that appears to be the position of that noted Constitutional scholar Michael Steele. Or maybe his education stopped before his first American history class. For whatever reason he doesn't know that the Constitution as originally adopted by the Constitutional Convention on September 17, 1787 and as ratified on June 21, 1788 was considered flawed by many of the framers because it did not include a bill of rights. That flaw almost kept the Constitution from being ratified.

During the drafting of the constitution there had been considerable debate as to whether or not to include specific provisions guaranteeing the rights of citizens. A proposal was made to include such provisions but it was defeated by the Constitutional convention. The issue was not whether individual rights should be guaranteed, but whether including such provisions in the Constitution was appropriate. Many framers thought that the existing bills of rights in each state had would be sufficient to protect the citizenry. There was also concern that if the Constitution enumerated certain specific protected rights that would suggest that other rights not mentioned would not be protected. The debate surrounding this issue was one of the dividing lines between the Federalists who favored adoption of the Constitution and the anti-Federalists who opposed its adoption.

After the first five states ratified the constitution, the absence of a Bill of Rights became a real stumbling block in Massachusetts. Some members of the Massachusetts Legislature opposed ratification on this ground alone and others said that the state's ratification should be contingent upon adoption of a Bill of Rights. A compromise was reached whereby Massachusetts ratified the Constitution but with strong recommendations for the adoption of a Bill of Rights. That same posture was taken by four more states. As a result, when the first Congress met on March 4, 1789 James Madison proceeded to draft a list of 10 amendments patterned on the Virginia's Declaration of Rights. These amendments which came to be known as the Bill of Rights were ratified by three fourths of the states on December 15, 1791.

To recap for the benefit of Mr. Steele, the first ten amendments to the Constitution were not enacted until three years after the Constitution was ratified and four years after it was adopted by the Constitutional Convention.

There is a special irony in Mr. Steele and his Republican cohorts ignoring this obvious deficiency in the original Constitution - the original Constitution did not contain their two favorite provisions.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Imagine that. According to Mr Steele a Constitution without the right to bear arms would be a perfect document. And that document would not be in the least defective if it was silent on the rights reserved to the states and the people. Oh yes. The document would also be perfect if people could own slaves and if slaves counted as three-fifths of a white man for purposes of Congressional representation.