Sexual misconduct by public officials: “If I understand the history correctly…”

The New Neo Posted on by

…says Orin Kerr, law professor at George Washington Law School and expert in criminal procedure and computer crime law:

If I understand the history correctly, in the late 1990s, the President was impeached for lying about a sexual affair by a House of Representatives led by a man who was also then hiding a sexual affair, who was supposed to be replaced by another Congressman who stepped down when forced to reveal that he too was having a sexual affair, which led to the election of a new Speaker of the House who now has been indicted for lying about payments covering up his sexual contact with a boy.

History? Only if you’re a time traveler. As a law professor, Kerr should know better, because we actually don’t yet know that Hastert’s payments were about “sexual contact with a boy.” That’s the rumor and the unsourced report, but it’s a rumor only at this point.

The substance of the rumor is consistent with the idea that there was some sort of sexual conduct with an underage student (most likely male) while Hastert was a teacher and coach (which had to have been prior to 1981, when he quit that line of work), and that the allegations only began in 2010. We don’t know any of this, plus we don’t even know why the allegations weren’t made until 2010, or whether the allegations are true or were just a threat to rake Hastert over the coals with allegations that, in the current climate, would be believed to be true whether they were actually true or not.

There is another flaw with Kerr’s restatement of history, most particularly this phrase: “the President was impeached for lying about a sexual affair.” Actually, it’s not difficult to know what Clinton was impeached for; it’s a matter of history. All you have to do is look at the articles of impeachment:

Article I… On August 17, 1998, William Jefferson Clinton swore to tell the truth, the whole truth and nothing but the truth before a Federal grand jury of the United States. Contrary to that oath, William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury concerning one or more of the following: (1) the nature and details of his relationship with a subordinate Government employee; (2) prior perjurious, false and misleading testimony he gave in a Federal civil rights action brought against him; (3) prior false and misleading statements he allowed his attorney to make to a Federal judge in that civil rights action; and (4) his corrupt efforts to influence the testimony of witnesses and to impede the discovery of evidence in that civil rights action.

In doing this, William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the Presidency, has betrayed his trust as President and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States…

Article II:…engaged personally, and through his subordinates and agents, in a course of conduct or scheme designed to delay, impede, cover up and conceal the existence of evidence and testimony related to a Federal civil rights action brought against him in a duly instituted judicial proceeding.

The means used to implement this course of conduct or scheme included one or more of the following acts:

(1) On or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading.

(2) On or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to give perjurious, false and misleading testimony if and when called to testify personally in that proceeding.

(3) On or about December 28, 1997, William Jefferson Clinton corruptly engaged in, encouraged or supported a scheme to conceal evidence that had been subpoenaed in a Federal civil rights action brought against him…

It goes on and on, but you get the drift. The summary version is that Clinton was impeached not for mere “lying about a sexual affair” but for lying under oath and for trying to get others to do so, too, and for doing all of this while president of the United States. This differentiates him from the others that Kerr mentions, and it’s an important distinction rather than a minor one.

And I say this as a person who does not believe Clinton should have been impeached, nor do I believe he committed perjury in the technical legal sense, although I do believe he lied under oath (if you’re interested, you can see some of my reasoning here, which includes links to several other discussions I had on the subject).

I just spent some time trying to figure out what Kerr’s politics are by reading previous writings of his, and it’s been surprisingly difficult. But from articles such as this one I’ve decided that Kerr is conservative, so his little history lesson doesn’t seem to have been based on a desire to whitewash Clinton’s history. Perhaps he’s just expressing disgust or bemusement that so many public officials have had such unadmirable private lives, and that what goes around seems to come around.

But there’s a huge disparity among the men’s offenses. Gingrich and Livingston were simply cheating on their wives (if such a thing be simple), and for Livingston the infidelity was in the past; he resigned when threatened by a magazine with exposure. Gingrich was already known to have cheated years earlier on his first wife with the woman who became his second, and he was repeating the pattern later when he cheated on the second to marry the third, to whom he is still married. Although not especially laudable, to say the least, these were private acts by public figures that involved neither crimes (such as child abuse) nor lying under oath.

On the other hand, Clinton not only lied under oath to cover up his sexual misconduct, but that misconduct was with a White House intern who was only 22, not just a random woman. And if and only if the Hastert allegations are true, his conduct constituted lying under oath about the intent of the bank withdrawals as well as the crime of sexual contact (either consensual or non; we don’t know which) with a minor student.

I don’t see any way to equate the offenses of Clinton and the supposed ones of Hastert with those of Gingrich and Livingston, and I think it’s misleading to imply there is any sort of equivalence. It makes a cute and seemingly clever sound bite, but no, I don’t think Kerr seems to understand the history of it. Nor does he appear to understand—or at least to acknowledge, because I think he certainly understands—the law of it.

[ADDENDUM: A little clarification here—

I understand, as I already stated, that Kerr’s pretty much a conservative (on the libertarian side). And I understand that it’s a joke he was making—after all, I wrote “It makes a cute and seemingly clever sound bite.”

I just think it’s a joke that fails. Obviously, I may be in a minority, but I don’t find it funny. Maybe I just got up on the wrong side of the bed today, but I think the differences are very large between what was done in each case, and I think the human cost of what’s going on with Hastert isn’t funny either.]

The solution to racial disparities in minor arrests

The New Neo Posted on by

This article on Minneapolis indicates how powerfully the idea of disparate impact has taken over debate about possible racism in policing.

Flawed science is used to prove racism, according to John Hinderaker at Powerline:

But one thing may already have jumped out at you: while the ACLU report goes on and on about “people of color” being victimized by the police, not all people of color are, apparently, created equal. Note that the disparity between population and arrests is greater for Asians than for African-Americans and Indians, only in the opposite direction. Asians account for 6% of the population of Minneapolis, but only 1% of the low-level arrests.

Why might that be? Astonishingly, neither the ACLU report nor the Star Tribune story on it ever mentions the Asian “disparity,” even though the ACLU casually assumes that “[t]he numbers show a startling disparity in the way police enforce low-level offenses.” Would the ACLU have us believe that the Minneapolis police are conspiring to cover up low-level crimes by Asians? Presumably not: it is obvious that Asians are “under-represented” among such arrests because they rarely commit such crimes.

But if that is true, the whole racism hypothesis falls apart…

Well, not necessarily, because there can be selective racism: negative for blacks, positive for Asians. You can do a lot to rationalize the statistics you have to fit your theory, if you so desire.

Hinderaker goes on to explain how the best example the study offers to show that the differences in minor traffic arrests between African American and others is actually due to racism is somewhat suspect. It’s based on a chart that indicates a large disparity between arrests of blacks and others for the months of June, July, and August in Minneapolis. The ACLU says the chart shows a much greater disparity during daylight hours, when the race of the driver can be more easily ascertained, and that this fact points strongly to racism as being the reason.

It’s a very interesting chart:

racialdrivingchart

You can clearly see a big difference during the mid-afternoon to 6 PM between the races in terms of these arrests. By why do the numbers fall back down in the early hours of evening, starting at 6 PM? It’s just as easy to distinguish black drivers from white during those later hours (in summertime) as it is in midday, and there’s usually a lot of traffic at that time. The same for the hours of 6-8 AM, when the falloff is even greater. So what’s going on?

As Hinderaker points out, it’s hard to see racism as the cause here. Does racism increase enormously in the afternoon as opposed to morning or early evening, with the same visibility conditions?

Perhaps there’s something about white drivers that changes in the afternoons. Perhaps the afternoons are when most of the young white men are otherwise occupied, and the driving field for whites is left to the suburban housewife, who tends to drive a lot more cautiously? Or perhaps it’s something about where police tend to patrol in the mid-afternoon as opposed to rush hours?

The ACLU’s suggestion for the remedy for all of this racism is the one that has worked so well in Baltimore: less policing.

Reminds me of Obama’s plan to reduce the racial disparity of students disciplined in the public school system.

[NOTE: I haven’t had a chance to read the actual ACLU report, but I skimmed the data there on the times of traffic stops and racial disparities and found no extra details that would give me an idea of what’s really going on with these numbers. I will try to take more time later to look at it.]

What law did Hastert violate?

The New Neo Posted on by

When I first heard about the charges against Dennis Hastert, I was puzzled. There’s a law against withdrawing your own money from the bank in cash and not reporting the transaction? How many people have ever heard of such a thing? Not me.

There have been times in my life when for various reasons I’ve wanted a lot of cash on hand. Now granted, it was never anything like $10,000, the minimum sum of money that had to be reported. But I could imagine plenty of innocuous reasons a person might do that, and would most people have a clue it needed to be reported? I don’t think so, unless the bank told them, and from what I’ve read of this case it’s not clear whether banks routinely inform people attempting to make such transactions of the reporting law.

In addition, I’d never heard of someone getting into trouble for being the victim of a blackmailer and trying to pay the blackmailer off. Apparently, Hastert didn’t follow the proper victim-of-a-blackmailer rules:

Hastert was confronted by someone in 2010 and allegedly agreed to pay money to keep something quiet…Hastert allegedly began making $50,000 cash payments to Individual A…Hastert’s first problem is that federal law mandates cash transactions exceeding $10,000 be reported using a Currency Transaction Report. The reason for this is pretty obvious: It is meant to allow criminal activity to be traced. It is also illegal to break up large transactions into smaller ones to avoid the reporting requirement. That’s known as “structuring.”

From June 2010 to April 2012, Hastert withdrew $50,000 sums from several banks at which he had accounts and gave the money to Individual A every few weeks. Those transactions weren’t reported.

When a bank asked about the transactions, he allegedly reduced the withdrawal amounts to under $10,000 to avoid reporting rules. After a bank asked about the large sums he was withdrawing, Hastert started pulling out money in smaller increments ”” in other words, allegedly structuring the payments.

The FBI started investigating Hastert’s transactions. It’s not clear what prompted the investigation, but the implication is that the bureau was given a heads-up by one of Hastert’s banks.

That’s when Hastert lied to the FBI, saying he was withdrawing cash because he didn’t trust the banks when in fact it is alleged he was doing it to coverup the payments.

As one of the commenters at the WaPo article points out, the law was passed to prevent large drug dealers from laundering money. Has it ever before been used to punish the victim of a blackmailing? And is lying to the FBI about a failure to report your own otherwise-legal financial transaction (the bank withdrawals) a crime, as well, or do you have to be lying about a crime itself?

Rumors are that the blackmail may have been about alleged sexual abuse of a male victim (student?) many years ago during Hastert’s high school wrestling coach days. That’s interesting, as well, if true, because it could involve a mere threat of accusation and fear of ensuing investigation and scandal, or it could involve a truthful accusation of molesting. We don’t know, and the payoff of the money doesn’t tell us, either, although it certainly indicates fear.

Ironic that one of the things that brought about Hastert’s downfall as Speaker was his inadequate and belated response to the revelations that Rep. Mark Foley had been sexually inappropriate with a male congressional page.

Last question: would this all be happening now if Hastert had been a Democrat and Obama supporter?

[ADDENDUM: Much more here.]

Democrats: hey, let’s give illegal immigrants the vote

The New Neo Posted on by

A majority are in favor of doing just that:

The latest Rasmussen Reports national telephone survey finds that one-out-of-three Likely U.S. Voters (35%) now believes that illegal immigrants should be allowed to vote if they can prove they live in this country and pay taxes. Sixty percent (60%) disagree, while five percent (5%) are undecided. (To see survey question wording, click here.)

Fifty-three percent (53%) of Democrats think tax-paying illegal immigrants should have the right to vote.

This represents both a fundamental misunderstanding of the basis for voting and/or a fundamental desire to jettison those principles in favor of either compassion for illegal immigrants, desire to swell the ranks of Democratic voters, or both.

None of that is any mystery, really. The mystery is here:

Twenty-one percent (21%) of Republicans and 30% of voters not affiliated with either major political party agree.

That’s one in five Republicans. Who are these people, and what could they possibly be thinking? Or are they thinking at all?

Additional information on the poll is available only to Platinum members at Rasmussen. If any of you have access to those numbers, please let me know something about who those Republicans are if you can find out: gender, race, religion, age, any other characteristics that can help explain it? Are they those compassionate conservatives we kept hearing so much about a while back?

Baltimore: too much, too little

The New Neo Posted on by

What else did the rioting people of Baltimore expect?

Riot against police, attack them as they go about making arrests, demand that authorities indict six of them for actions and/or oversights that in any other climate would probably be considered either merely doing their duty or mild oversights that unfortunately led to the death of a man in custody, and what do you get?

Police doing the absolute minimum, reluctant to take much action at all in your neighborhood lest they be arrested, too.

Then it’s time to complain, because the human costs are high:

Now West Baltimore residents worry they’ve been abandoned by the officers they once accused of harassing them. In recent weeks, some neighborhoods have become like the Wild West without a lawman around, residents said.

“Before it was over-policing. Now there’s no police,” said Donnail “Dreads” Lee, 34, who lives in the Gilmor Homes, the public housing complex where Gray, 25, was arrested.

“I haven’t seen the police since the riots,” Lee said. “People feel as though they can do things and get away with it. I see people walking with guns almost every single day, because they know the police aren’t pulling them up like they used to.”

Police Commissioner Anthony Batts said last week his officers “are not holding back” from policing tough neighborhoods, but they are encountering dangerous hostility in the Western District.

“Our officers tell me that when officers pull up, they have 30 to 50 people surrounding them at any time,” Batts said.

At a City Council meeting Wednesday, Batts said officers have expressed concern they could be arrested for making mistakes.

“What is happening, there is a lot of levels of confusion in the police organization. There are people who have pain, there are people who are hurt, there are people who are frustrated, there are people who are angry,” Batts said. “There are people, and they’ve said this to me, ‘If I get out of my car and make a stop for a reasonable suspicion that leads to probable cause but I make a mistake on it, will I be arrested?’ They pull up to a scene and another officer has done something that they don’t know, it may be illegal, will they be arrested for it? Those are things they are asking.”

The Baltimore situation has been mishandled from start to finish by the authorities, especially the mayor. Anarchy was allowed to take hold. The indictments were at the behest of the mob (always a mistake), and although they calmed things down somewhat in terms of rioting, they certainly didn’t calm things down in terms of crime. Long-term goals were sacrificed for an illusory short-term gain.

Police are not martyrs, and there is no requirement that they be martyrs. If you prick them, do they not bleed? The people in the inner city of Baltimore no doubt have had some bona fide beefs against the police; it would be odd if that were not so, because police are human and they are doing an extraordinarily difficult job requiring the utmost in courage, patience, and fairness.

But the people of Baltimore are finding that the cure is almost certainly far worse than the disease. If this entire episode has any redeeming value, it may be that more and more people will realize that the great majority of the problems in Baltimore’s inner city are generated by the criminals in the community rather than the police who are trying to control them.

Getting credit for getting naked: a trip back in time

The New Neo Posted on by

There’s been quite a bit of brouhaha about this course:

Visual arts students at the University of California, San Diego, must exhibit themselves in the buff before a naked class of 20 and a nude professor or fail an upper-level course, a disgusted mom told KGTV-TV.

But faculty members and former students defend the elective course and maintain that “performing the self” class participants may also employ figurative nudity to pass the final.

The issue is over a syllabus entry that refers to an “erotic self” assignment, requiring students to “create a gesture that traces the outlines or speaks about your ”˜erotic self(s).’”…

“We had a choice between being nude or doing something emotionally ”˜naked’ and every student but one chose to do the nude performance,” one commenter said. “It was uncomfortable for some of us but we were adults and knew what we were getting ourselves into from day one of the class.”

Count me unsurprised, because this sort of thing is hardly new. How do I know that? I encountered something similar in a graduate program in counseling in which I was briefly enrolled during the late 70s. I was a few years out of school but still quite young, which was typical of the students there.

The program had regular courses, but it also featured shorter workshops that a graduate student could take for less credit. I was a full-time student there, enrolled in a two-day workshop that was supposed to be about something like “Reading Body Language.” As an ex-dancer, I figured this would be right up my alley, but unlike some of the students I hadn’t heard the advance buzz about the course, which was that it involved getting naked.

The students were to sit in a semicircle on the floor towards the front of the room as the professor, a woman, explained what was about to happen. There were probably about twenty of us. We were instructed to go up to the front of the room two by two (our choice of a partner), face the audience, and disrobe. Then, standing next to each other, we were to rotate slowly around with quarter-turns, and then have the class members evaluate our posture and body language and what it meant about our psyches.

The teacher was careful to explain that no one had to disrobe any more than he/she felt comfortable with, but she encouraged us to go the full monty because that would be the most valuable in terms of the learning process. I was uncomfortable not just with the idea of disrobing myself, but with the idea of sitting there at the feet of a succession of naked people, most of whom I had never met before and most of whom (actually, all of whom) I had no desire to see naked. And that’s true even though we were all pretty young at the time.

I still remember the first volunteer, although I don’t recall who he was paired with. He seemed incredibly eager to do this; practically jumped up from his perch on the floor in order to go first. I realized almost immediately, as in one fluid motion he unzipped the one-piece jumpsuit he’d worn for the occasion and revealed that he had nothing whatsoever on under it, that he had known about the exercise in advance and planned ahead by choosing his outfit carefully.

I formulated my own plan. I volunteered to be in the second pairing. As I stood before the group, I slowly and carefully removed my shoes and socks, and then gave a little speech. In it I said that I was very uncomfortable with the exercise as a whole. I did not think we were trained properly to evaluate people’s bodies. I did not think this exercise had any educational value. I thought that people were going to feel coerced and pressured to remove more than they felt okay about even though they were given the choice, because of the group pressure involved. Most people didn’t want to convey the idea that they were wimps. So I had volunteered early in order to act as an example for anyone who might be feeling uncomfortable but shy about saying it, and I invited anyone who felt that way to join me in my pairing. One person did.

Even clothed, it was disturbing to be up there, pivoting and posing. I noticed that as the day wore on—and about half the students completely disrobed, with the remainder coming very close—I retained the same sense of outrage and upset, mostly about the subtle coercion and the stupidity of the assignment in general.

In order to get credit we had to write a paper on the experience. I used mine to criticize the workshop, among other things. I still have it in my files; it’s one of the few papers I’ve saved from my time in school. The following is an excerpt from it:

One reason for my feelings [of discomfort] seemed to be a sense of violation of my human dignity, even with my clothes on, at being coolly analyzed by a group of observers, even in the name of learning. I have a very well-developed sense of privacy and prefer to choose those with whom I become intimate, and I felt this sense to be violated both as an observer and a subject. It seemed very different from a dressing-room situation in which I am comfortable with seeing the nude bodies of strangers. Everyone’s tension level seemed very high, and there was something very cold, analytic, and coercive about the situation, at least as I perceived it. The extreme and dramatic image that kept coming to my mind, making me very sad and anxious, was that of concentration camp victims. It is certainly no accident that they were asked to disrobe in public before being killed, because of the sense of humiliation it engendered…

I realize that you, as leader, made it clear that we were able to resist the group pressure to disrobe if it didn’t feel right to us. I don’t know if the people who might be hurt the most by going along with the group pressure would be able to resist it. Also, it was nearly impossible, as an observer, to resist the group pressure to be instantly intimate by watching the nudity of others. I, as an observer, did not perceive the atmosphere to be particularly supportive or mature. I really felt that it was more an exercise in group inclusion than a teaching exercise. To me, the emphasis was not on learning to study the body as a therapeutic tool (after all, few of us will see our patients in the nude), but on the students themselves as clients, patients, group members, and fellow-travelers on the road to self-awareness…I was personally troubled by a confusion as to your aims and the aims of the other students. When I say it seemed to be a group inclusion exercise, I mean this in the same sense as an initiation rite. And, as with many initiations, the group seemed to feel that the more difficult the initiation the more valuable the group therefore must be.

I realize that I am probably a minority of one in this group, but I wanted to write about it to tell you how a certain type of fairly private, reserved person might react. I am sure that some people have similar reactions, and perhaps you don’t often get feedback from them.

Later, I wrote:

…that is one big danger of [such exercises]. Acting-out, exhibitionist personalities are given the perfect stage on which to show each other how “free”‘ they are. To me, it proves nothing, except the potency of groups and the willingness of most people to follow the leader.

Looking back over thirty-five years later, I am struck by a few things, but they all come under the heading of plus ça change, plus c’est la méme chose. One was how set my personality already seemed to be. Another was that, although I wrote this back when I was politically liberal—and didn’t see anything the least bit political in the situation or in my paper—it not only was deeply political but my stance revealed my conservatism without my realizing it, as well as my commitment to the rights of the individual and my awareness of follow-the-leader group coercion. It’s also clear how much the educational system had already attained its current liberal stance and attitudes.

I dropped out of the program entirely shortly after that. It was about twenty years before I went back and got my degree, in another program and another time.

Public opinion polls comparing the Republican candidates…

The New Neo Posted on by

…are pretty worthless at this point, including those that compare them to Hillary.

But here’s the latest.

The only thing I take from the polls is that this will be a long hard slog among the myriad Republican candidates. But we already knew that.

Actually, there’s one more thing I take from the polls, and that’s that Hillary Clinton is doing way better than she should be. But we already knew that, as well.

Rest assured: the Iran negotiations are in the very best of hands

The New Neo Posted on by

Or rather, mouths.

As if things were not bad enough, we now have the appointment of one of our very favorite spokespeople to the Iran negotiations team:

Acting State Department Spokesperson Marie Harf is being promoted to Senior Advisor for Strategic Communications to Secretary of State John Kerry.

Harf will focus on negotiations between the U.S. and Iran on nuclear weapons.

Perhaps this is not as bad as it seems. Perhaps she will merely be relaying messages to Kerry (although I’m not sure she can even do that with accuracy). I’m not even sure this qualifies as a promotion, because it means we’ll be seeing less of her.

Harf certainly has shown the single trait that Obama cares about in his subordinates: enough dogged loyalty to be willing to take a lot of punishment and spew out a lot of garbage for Team Obama.

[NOTE: See this for previous posts of mine that feature Harf.]

The crowded Republican field

The New Neo Posted on by

Rand Paul is on the outs, say quite a few people, including Dana Milbank, Bobby Jindal, and Chris Christie, all for somewhat different reasons.

Well, I never thought Paul had a chance. He is a better version of his dad, but like him he still voices enough idiosyncratic positions that are too far to the extreme libertarian side of things for most voters to stomach.

I also think that both Jindal and Christie are toast in terms of election 2016. Jindal doesn’t have the “it” factor, although I think highly of him. I can’t define exactly what this “it” factor is, but I know it when I see it, and although I don’t think it should be so important I am realist enough to acknowledge that it is. Christie, unlike Jindal, has almost too much personality, and his doesn’t wear well over time, although it’s a type of personality that I, being from New York City, find very familiar and almost soothing, along with the accent (yeah, go figure). Christie also is too far to the left to please the Republican base, and Bridgegate has somehow managed to successfully taint him (just as the MSM intended) even though he was actually uninvolved. Continue reading →

Obamacare, the states, and the “drafting error”

The New Neo Posted on by

About the current claims that, back when Obamacare was being drafted, that language about the necessity of state exchanges for subsidies just sort of snuck in there by accident and/or error, Megan Mcardle writes:

1. This is not new.

2. This is incomplete.

3. This is not legally relevant, for good reason.

4. If it were legally relevant, it would not be as helpful to the case as liberals think.

This is not the first time a media outlet has talked to folks who were involved in the process, and recorded them saying that they never, no way and no how, intended to deny subsidies to states–or reasoning, like Olympia Snowe in Pear’s article, that they couldn’t have set it up this way, because it would be crazy to choose a structure that threatened subsidies for people in states that didn’t set up exchanges.

These articles, however, often don’t provide important counterarguments. For example: Congress indisputably chose exactly that crazy, insane, totally inconceivable structure for the Medicaid expansion passed in the same law. In fact, it was considerably more coercive…

Or consider the “drafting error” interpretation that many politicians have offered. Here’s a puzzle about that…: At several points during the drafting process, people kept adding the phrase “established by the state” to the middle of “exchange established under Section 1311,”…This language survived the process of merging and reconciling bills, even while other sections were amended to ensure parity of requirements on federal and state exchanges…

Read the whole thing, it you’re interested in the legal niceties.

Betsy Newmark expands on some of the many reasons why “we didn’t really mean it” just doesn’t cut it in explaining why Obamacare was drafted the way it was vis a vis the states setting up their own exchanges:

The government has not made this “drafting error” argument in either its brief or oral argument; instead the defendants argue that “exchange established by the state” is a term of art that includes exchanges not established by the state. There’s good reason for this. The “drafting error” argument requires admitting that at some point “established by the state” was deliberately written into law to mean, well, exchanges established by individual states, something that the government has no interest in saying, because contrary to apparently popular belief, “drafting error” is not a magic word that forces the Supreme Court to give you a mulligan. As Adler points out, Elena Kagan recently wrote in another case that, “This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that (in [the IRS’s] words) Congress ‘must have intended’ something broader.”

However, even if this were accurate, and even if the court were inclined to broadly rewrite statutes to what the legislators wanted them to be, none of Pear’s interviews would carry any weight toward that end. The Supreme Court isn’t much interested in post-hoc statements of legislative intent….

Actually, this is not crazy, but very wise. Memory is incredibly fallible, especially about stuff you’re highly motivated to believe.

We now have two cases of wonks who were closely connected to the drafting process, who said at one point that the King interpretation of the statute is insane to anyone who followed the construction of the law … and can be found on tape at an earlier point (in one case, during the legislative process) advancing exactly the theory that they subsequently declared completely and obviously insane. Do I think that their later argument was a strategic lie? No, despite conservative shouts that I am being naive. Scout’s honor, cross my heart and hope to die, I think that they simply forgot what they’d earlier believed.

I’m not sure why that word “simply” is in there, because Newmark doesn’t appear to think that this “forgetting” is a simple act. After all, the forgetting isn’t random; it only goes in one direction, that which furthers what the party needs it to be at any given time. IMHO it is more akin to the “forgetting” that leads, as Winston Smith’s interlocutor O’Brien says in Nineteen Eighty-Four, to the conviction that 2 + 2 = 5 if the party needs it to.

I have explored this phenomenon before, and I think the following quote from Whittaker Chambers’ Witness describes it better than anything I’ve ever read:

When I first knew him, Harry Freeman [who later become the assistant US chief of Tass, the Soviet news service] was just out of Cornell University, where he had brilliantly majored in history”¦the best mind that I was to meet among the American Communist intellectuals. It was an entirely new type of mind to me. No matter how favorable his opinion had been to an individual or his political role, if that person fell from grace in the Communist Party, Harry Freeman changed his opinion about him instantly. That was not strange, that was a commonplace of Communist behavior. What was strange was that Harry seemed to change without any effort or embarrassment. There seemed to vanish from his mind any recollection that he had ever held any opinion other than the approved one. If you taxed him with his former views, he would show surprise, and that surprise would be authentic. He would then demonstrate to you, in a series of mental acrobatics so flexible that the shifts were all but untraceable, that he had never thought anything else.

In that same post, I go on to write:

Of course, rationalization and denial of facts that don’t fit a person’s previously held beliefs is not just a province of the Left. It’s a general human trait, and that is why a mind is a difficult thing to change. But the Left carefully nurtures, fosters, advocates, and even requires this sort of denial, whereas it is my observation that the Right (and this was something that was formative in my own change experience), while hardly immune, is much less demanding that its adherents dismiss and deny logic and inconvenient facts.

The courts…

The New Neo Posted on by

…get it right on blocking elements of Obama’s amnesty.

For now, anyway:

The decision means that a lower court ruling blocking millions of illegal immigrants from obtaining work permits and otherwise avoiding deportation will be allowed to stand, delaying the implementation until the court case is resolved.

Twenty-six states have joined the suit against the administration’s policy.

Now what?:

The Obama administration can now turn to the U.S. Supreme Court for a green light to proceed with the program, or Justice Department officials could wait until the 5th Circuit rules on the merits of U.S. District Court Judge Andrew Hanen’s legal rationale for the injunction he entered in February. A different panel of the appeals court is expected to hear arguments on those issues in early July.

The three 5th Circuit judges deciding the case were randomly selected. Two of the three judges selected were appointed by Republican presidents, while the other was appointed by Obama.

The vote today was 2-1. The breakdown of who voted for what was exactly as you would expect. That’s one of the reasons that electing Republicans is important—they get to appoint judges, and although it doesn’t always work out perfectly (i.e. Roberts and some others) it usually does make a difference in holding the line.