Easy Act to Follow

As President Bush thinks about replacing AGAG, he needs to find someone of unimpeachable stature, who could get 90 votes in the Senate without breathing hard and who'd run the Department in a way that would make everyone proud.

It's so obvious. But will he do it? If past performance is any indicator of future results, in the end he'll choose someone who'll just be even more controversial and who'll have us yearning for the old days of Ashcroft and Gonzales.

It's a comfort to read that, for once, Bush is at least trying to think about finding a highly qualified candidate. But we'll see if he can come up with one who'd be willing to take the job.

The Harder They Fall

D0 all conservative Republicans have secret sex lives? Or is it just the evangelical preachers and government officials?

OK, I'm not serious. But it does seem as though the more morally righteous they are on the outside, the more likely they are to end up admitting to an unnamed "very serious sin" when their phone number turns up in an escort service's records. Of course Democrats have sex scandals too. But it just seems more hypocritical when it happens to moralistic Republicans.

The latest is of course Idaho Senator Larry Craig, who says he's "not gay," as though that were the problem with being caught soliciting sex in a public restroom.

Of course, he also says he wasn't soliciting sex, that the whole thing was a misunderstanding, and maybe it was, although in his official guilty plea to a criminal charge he acknowledged that he "engaged in (physical) conduct which [he] knew or should have known tended to arouse alarm or resentment."

The Senator did get one thing right -- he says he made an error in pleading guilty without seeking the advice of counsel. What was he thinking?

Faithful readers, if you are charged with a crime, get a lawyer. I'm not trying to drum up business here. I'm just pointing out that if a U.S. Senator makes a bad decision in pleading guilty, what chance do the rest of us have?

August Surprise

At least he had the guts to announce it on a Monday. I'm surprised they didn't release the news late Friday, when the decision was, apparently, made.

Culture Controversy

Faithful readers, I know you have been disappointed by the lack of content recently, but I've been unusually busy for a professor in August, and besides, August is silly season, so the news hasn't been attracting my blogger attention. Regular blogging to resume after Labor Day, I hope.

I was, though, struck by this item in today's Times: a public charter school in Florida is attracting controversy by -- gasp! -- teaching Hebrew. Some people are claiming this to be a violation of the separation of church and state.

As always, it's tough to get a full sense of the legal issues involved by reading a newspaper account, although this article does a pretty good job of bringing out important points. But let's note some basics. First, there can't possibly be a constitutional objection to a public school's teaching Hebrew. Schools teach French, Spanish, German, Latin, and all manner of languages. Hebrew can't be forbidden just because it's associated with Judaism.

The article observes that the Hebrew classes would also discuss some aspects of Jewish culture. Again, I would have to say, this is unobjectionable. When I took French classes, the books and classes always had some discussion of French culture. That's just a standard part of language class.

Now, things could go overboard. One of the potential textbooks had students translating the phrases “Our Holy Torah is dear to us” and “Man is redeemed from his sins through repentance.” That does seem to be pushing the envelope. But it sounds from the article as though the school's officials are taking considerable care to keep the instruction secular -- for example, they decided not to post a sign saying "weclome" in Hebrew, because the literal translation is "blessed are those who come." And they don't ask those applying to attend whether they are Jewish -- some of the students are Baptists.

So I would say, let's not get too excited. If there's a demand for bilingual Hebrew / English instruction, it can't be unconstitutional per se to fill it, any more than for Spanish / English instruction. Care will be needed to see that the classes are secular. Outside scrutiny is appropriate, but just as the school shouldn't be allowed to use public money to teach religion, neither should it be punished for offering secular instruction that would appeal specially to members of a particular religious group.

Criminal Justice Working Fine

A jury convicted Jose Padilla of terrorism conspiracy charges yesterday, exposing him to a possible sentence of life in prison.

Well, isn't that nice. After three years of telling us that Padilla was so dangerous that the criminal justice system couldn't handle him, the Bush Administration sends him through the criminal justice system, which handled him just fine and produced the desired conviction.

Naturally, the Administration is touting this as an important victory, which it sort of is. But isn't it evidence against the Administration's theory that it has a vital need to keep all alleged enemy combatants in legal limbo forever?

Shrunken Giant

Picked up the New York Times this week? Not the cyberspace version, but the actual, old-fashioned newspaper? Did it feel funny? Something vaguely different? That's right, it's smaller. The New York Times is smaller. They shrank the newspaper.

I suppose it shouldn't really make any difference. What matters most is what's in the newspaper. The format will change from time to time. I quickly got used to the big change from 8-column format to 6-column years ago. It was a good when they added color. So change is good.

But it is still a little unsettling when one of one's daily icons, one of the anchors of one's life, just feels funny when you pick it up. The editorial page looks off balance. The whole thing doesn't sit right in the hands somehow.

We're all getting older. The Times is feeling the pinch. They'll apparently save $10 million annually with this format. Time marches on. The Times marches on. Soon we won't even notice. But for this week, at least, I'll remember the old format with fondness.

Big Small Story

A sleeper story in today's WaPo: retirements of judges has left the U.S. Court of Appeals for the Fourth Circuit evenly split between Democratic and Republican appointees.

Finished yawning yet? It's actually quite important. The Fourth Circuit (covering Maryland, Virginia, West Virginia, and the Carolinas) is the nation's most conservative court on many issues -- more conservative than the Supreme Court. The government takes advantage of the court in many ways, such as sneaking terror detainees into the court's jurisdiction so that this conservative court will be the one to rule on the detention's lawfulness. With the even split suggesting that the court may not be so conservative any more, the government's maneuvering room is reduced.

I remember arguing before the Fourth Circuit once in a pro bono case I took after I started teaching. The case was about state sovereign immunity (the doctrine that you can't sue a state government unless it consents to the suit), which is a big conservative issue. The Fourth Circuit was probably the least friendly place in the whole country to litigate the issue. But it was a close case and a lot depended on which three judges happened to be on the panel (three judges are drawn at random from the dozen or so judges on the full court). An old friend of mine who clerked on the court told me, "you'd better pray you don't get Wilkinson or Luttig." Naturally, I got both of them. It wasn't pretty.

Surprisingly, President Bush hasn't even nominated judges for the five vacant spots on the court. The administration claims to be "actively working" on finding nominees. I've always said that when the White House and the Senate are controlled by different parties, the solution is moderate, compromise candidates for judgeships. But this administration rarely seems interested in compromise. Well, if the result is no appointments until the next president, I won't shed any tears.

Guns Gone Astray

It's become a cliche that the Bush Administration is so intent on vindicating the conservative belief that government is incompetent that it almost seems to screw things up deliberately. But really, this is too much. Of the 355,000 pistols and AK-47 rifles that the U.S. has distributed to Iraqi forces, 190,000 are missing, according to a new GAO report. Pentagon officials "really have no idea where they are." Hmmm, could they be in the hands of the insurgents who are fighting us?

I'm sure it's not easy keeping track of things amid the hubbub of war. But the GAO found no problems accounting for weapons distributed to the Bosnian Federation Army during the Bosnian conflict. So it's not impossible to do these things properly. But one has to believe that a government intent on proving that government is bad is more likely to do a bad job.

And by the way, who was in charge of security training during the period when, according to GAO, "distribution was haphazard and rushed and failed to follow established procedures"? None other than Gen. David H. Petraeus, who's now in charge of the whole shooting match. Let's hope he's keeping better track of things now.

Home Town Call

Henrico County Judge Archer L. Yeatts III declared Virginia's new abusive driver fees unconstitutional, on the ground that the violate the Constitution's Equal Protection Clause because they apply only to Virginia residents, not drivers from out of state who commit the same violations.

Hmm, I can't find the decision on line, but I just don't see it. Suppose a state said, "the annual driver's license fee in this state depends on the number of points you have on your driver's license. It's $25 if you have no points, but then it's an extra $25 for each point you have."

Could there be anything wrong with that? The state's driver's license fee would apply, necessarily, only to people who sought a driver's license from that state. Out of staters wouldn't have to pay it. But so what? Could that possibly violate the Equal Protection Clause? I don't see how a state can be prevented from having a driver's license fee system that varies according to the proven tendency of each driver to violate the state's laws.

Well, I shouldn't really pass judgment without having seen the court's opinion, or even the actual underlying law. The right outcome could depend on exactly how Virginia has the fees set up, I suppose. But it certainly seems to me that Virginia could set up its fees to be perfectly constitutional, by just making them a condition of one's Virginia driver's license. Then they naturally would apply only to people in Virginia.

Fare Wars

If you think the Iraq war has dragged on a long time, you should take a look at the war over D.C. taxicab fares. Ever since I've moved to town, there have been proposals to replace D.C.'s bizarre, antiquated zone system with a meter system -- like every other city has. Every couple of years it is announced that we are switching to meters. But it never actually happens.

The latest news is that a meeting to discuss the current meter proposal had to be canceled -- because the likely attendance was too big for the room!

There's nothing like a D.C. cab ride. Not only is the fare too high, but you have no idea what it's going to be. The zone map traditionally had northeast at the top, making it extra difficult to fathom. It's finally been replaced by a map with north at the top as usual, but I haven't seen the new map in an actual cab yet. There's an extra charge per passenger (what other city has that?), cabbies are allowed to pick up another fare while you're in the cab, and cabbies also love to tack on a "fuel surcharge" or "bag charge" that they might or might not have made up.

I used to wonder why cabbies were so intent on keeping the zone fare. Finally, one of them pointed out to me that if you have a meter, it keeps track of your income. And if it keeps track of your income, you have to pay income tax on it. I'm not accusing all D.C. cabbies of not declaring their income, but that sure does sound like a reason for them to want to stick with their zones.

U.S. Attorneys Update

Ah, those U.S. Attorneys . . . it's the scandal that keeps on scandaling. The latest is that John Brownlee, U.S. Attorney in Roanoke, Virginia, received an unusual late-night call from Michael Elston, the chief of staff to the Deputy Attorney General Paul McNulty, asking him to slow down a settlement of a criminal case against the manufacturer of OxyContin. Brownlee went ahead with the guilty plea anyway, and, what do you know, eight days later he found himself on a list, prepared by Elston, of U.S. Attorneys to be removed. (In the end, he kept his job.)

As the Post article explains, it is not inherently suspicious for senior Justice Department officials to have some input on individual cases. But the suspicious thing is, as it has long been, this: according to Elston's lawyer, the list reflected recommendations Elston "had received from others in the administration, not his own views."

Look, this scandal has been going on for months now. Dick Cheney calls it "a bit of a witch hunt" and claims that "there's no charge" or allegation of wrongdoing. But if there were a legitimate explanation for why each U.S. Attorney got fired, wouldn't DOJ have been able to produce it by now? Wouldn't we at least know who made up the ultimate list? Why is the list always the product of recommendations by nameless "others"? Why is the reaons for putting names on the list always something like, "it was the consensus recommendation" or "it was the advice I got from others"?

Sorry, Mr. Vice President, but if you guys can't even tell us who made up the list and why each name got put on it, we're entitled to draw an adverse inference. If there's a legitimate reason why the U.S. Attorneys got fired, let us know. The fact that you can't, after all this time, strongly suggests that they were fired for improper reasons.