Who is Deb Fischer — whose "stunning come-from-behind performance" got her the GOP Senate nomination in Nebraska?

Politico reports:

Fischer, a rancher and little-known state lawmaker, maintained a positive, above-the-fray tone while Bruning and state Treasurer Don Stenberg consistently traded blistering barbs. But she also benefited from a flurry of outside spending against Bruning, the front-running establishment favorite for more than a year who watched his polling lead evaporate during the final week of the campaign.

The victory sends Fischer to the general election as a favorite over former Sen. Bob Kerrey, who easily disposed of four lesser-known opponents for a shot at the open seat being left vacant by retiring Sen. Ben Nelson. Nebraska is a must-win for Republicans if they are to acquire the four pickups necessary to flip control of the Senate this fall.

Must win and will win, pretty obviously.

Who is she? I'm up to page 2 of the article where I see that she was "poorly funded," but she released an internal poll that showed her "surging," at which point, she was endorsed by Sarah Palin and Todd Palin. Is she Tea Party?

Fischer’s victory comes just a week after another unlikely insurgent — Indiana state Treasurer Richard Mourdock — ended the 36-year Senate career of Dick Lugar.

While her victory can’t be claimed by outside groups, it will stoke further anti-establishment fear among front-runners sitting on seemingly comfortable polling leads.

Politico won't say Tea Party, but Mourdock was Tea Party. Let's check the Washington Post:

While Fischer’s win wasn’t necessarily a tea party win, it was reminiscent of the insurgent GOP candidacies of 2010, in which a candidate’s character and politics often meant more than money and infrastructure....

What counts as Tea Party? There's this not-necessarily-Tea-Party type of candidate. An interesting category. Let's define it/talk about it.

"Tony Scalia's Retirement Has Started Early."

Says Charles P. Pierce on the Esquire website.

Calling a man of Italian ancestry "Tony" when that isn't his nickname? Isn't that on the level of calling a Latino "Jose" or a black man "Leroy" (or some such stereotypical name)?

Of course, quite aside from that, the blog post is bilge:

I think Justice Antonin Scalia isn't even really trying any more. It's been clear for some time now that he's short-timing his job on the Supreme Court. The job bores him....  he's now bringing Not Giving A Fuck to an almost operatic level.

Opera... see? That's like talking about a black person and throwing in watermelon.

His "originalism" was always a shuck, even if it was consistent, which it rarely was, and even if it was principled, which it never was.... But at least, for a while, he actually tried to act like a judge in a democratic republic, and not the lost Medici pope. 

Pope? More anti-Italian (and anti-Catholic) stereotyping crap, which Pierce probably thinks is just fine, indeed hilarious, because it's against a conservative.

It is plain now that Scalia simply doesn't like the Affordable Care Act on its face.... He doesn't think that the people who would benefit from the law deserve to have a law that benefits them. On Tuesday, he pursued the absurd "broccoli" analogy... And today, apparently, he ran through every twist and turn in the act's baroque political history in an attempt to discredit the law politically, rather than as a challenge to its constitutionality. (What in hell does the "Cornhusker Kickback" — yet another term of art that the Justice borrowed from the AM radio dial — have to do with the severability argument? Is Scalia seriously making the case that a banal political compromise within the negotiations from which bill eventually is produced can affect its ultimate constitutionality? Good luck ever getting anything passed if that's the standard.)

Pierce just doesn't understand what the Cornhusker Kickback has to do with the severability argument. He smears Scalia, but he doesn't do the basic work of fathoming the argument. He denounces without earning the right to denounce, and instead of saying anything of any value about law he flips out over into the ethnic insults.

Here's the portion of the severability argument — transcript PDF — where Scalia talks about the Cornhusker Kickback:

JUSTICE SCALIA: All right. The consequence of your proposition, would Congress have enacted it without this provision....

That is, Paul Clement's argument — attacking the statute — is that the test of what is severable — what will fall along with the unconstitutional provision — is whatever Congress would pass if it were asked to vote on the bill with the unconstitutional provision extracted.

That would mean that if we struck down nothing in this legislation but the -- what's it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay? (Laughter.)

He's stating a hypothetical: What if the only thing removed were that one provision, the Cornhusker kickback? For the purposes of the hypothetical, he made up a fictional constitutional ground that it is held to violate — a constitutional rule against a purely venal law. ("Venality is a vice associated with being bribeable or of selling one's services or power, especially when one should act justly instead.")  We know that the Cornhusker kickback — AKA the Nebraska Compromise — was a deal made by Harry Reid to get the vote of Senator Ben Nelson, the last hold-out among the Democrats. The state of Nebraska got 100% funding for Medicaid, unlike all the other states, so that extra funding to Nebraska approaches vote-buying.

Maybe there should be a constitutional rule like the one Scalia hypothesizes. That is a quick attack on the political process that produced the bill, but it's actually not irrelevant to the question of severability, because there's a question about deferring to democratic decisionmaking, and that deference is less justified when the process itself is dysfunctional democracy. But the function of the Cornhusker kickback in the hypothetical is mainly, simply, that one provision of a big statute has been stricken down.

JUSTICE SCALIA: When we strike that down, it's clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can't be right.

So Justice Scalia has landed a brutal attack on Clement's theory of severability at that point. The hypothetical was knife-sharp and brilliant. But Pierce can't even understand it — or lies about his incapacity. 

MR. CLEMENT: Well, Justice Scalia, I think it can be, which is the basic proposition, that it's congressional intent that governs. Now everybody on this Court has a slightly different way of divining legislative intent. And I would suggest the one common ground among every member of this Court, as I understand it, is you start with the text. Everybody can agree with that.

So Clement readjusts and begins to articulate a text-based approach to severability, which he knows is more what Scalia wants, but he craftily preserves the other theory, which he knows some of the other Justices might prefer.

Too much -pie: 3 Occupies in 6 days.

Occupy Lincoln, Occupy Denver, and Occupy Austin... experienced in less than a week.

The last couple seconds — which are not part of the protest — show something Meade and I call "an army of Jeremys."

At the Rotunda Café...

... you can talk about anything you want.

How Ben Nelson lost Nebraska.

"Get him the hell out of here!"

Which party will take the Senate in 2012?

Control of the Senate is crucial, perhaps more important than the Presidency. The NYT has assembled the information about the different races very clearly on this page, though I suspect the estimates are skewed in favor of the Democrats. There are 30 Democratic seats and 37  Republican seats that are not up for reelection, so there's no skewing there. But the NYT counts 11 Democratic seats and only 7 Republican seats as "solid," which puts the teams at 41 and 44, and then it has 5 seats as "leaning" Democratic and only 2 "leaning" Republican, which — lo and behold — puts them even at 46-46. Hmm.

Anyway, I love the clarity of the graph and the map and the concise presentation of the "Analysis of the 15 states in play." We should bone up on these details. We spend so much time staring at the presidential candidates. I want to pay much more attention to these Senate races, including the race in my own state, which is one of the 8 "tossups":

The retirement of Senator Herb Kohl, a four-term Democrat, creates a wide-open race in a state that is already awash in political crosscurrents. An effort to recall Gov. Scott Walker, a Republican, will draw interest groups and money from both sides into the state. A former longtime governor, Tommy Thompson, is among the Republicans who are trying to win the primary to face Representative Tammy Baldwin, a Democrat from Madison in her first statewide race.

There's so much more than that happening here, of course, but I lack even that level of information about the other 14 tossups.

The NYT also has an article, written by Jennifer Steinhauer, called "Feuding Hurts G.O.P.’s Hopes to Win Senate."

In a number of states where Republicans have been hopeful of picking up a seat, they are being hampered by some of the same dynamics that vexed their party in 2008, including trouble recruiting strong and experienced candidates, intra-party fighting, weak fund-raising and the very same anti-incumbent sentiment that also threatens Democrats.

Winning the Senate is tantalizingly within reach for Republicans, who have just 10 seats up for re-election, compared with the 23 that Democrats will defend next year, many of them in states where Democrats barely won in strong years for their party. Powerful national political trends continue to favor Republicans, especially in a weak economy.

But on a state by state basis, there are factors that give the Democrats hope and the Republicans pause....

Is the NYT bolstering the spirits of its readers, or are the Republicans really dragging each other down? Example of a problem cited in the article:

[I]n Ohio... Josh Mandel, the state treasurer, a Marine Corps veteran and fund-raising powerhouse, is somewhat disadvantaged in his race against the incumbent Democrat, Senator Sherrod Brown, by the fact the he looks too young to shave, several party officials acknowledged.

Okay. He's a Marine Corps veteran, but he looks too young to shave. Noted. Let's scan further...

... Republicans have some concerns even in states that heavily favor them, including North Dakota, and Democrats are investing heavily in places like Nebraska, even though Senator Ben Nelson’s voting record often has the Democratic majority leader, Harry Reid of Nevada, pulling at his gray tufts of hair.

More hair problems! I think that means Nelson's technically a Democrat, so he helps the Democrats maintain majority status, but he's not much of a Democrat, presumably because Nebraskans want someone voting more like a Republican. According to the first-linked page, Nelson might not run:

If he does, the race will become a key test for whether a moderate Democrat can win re-election in a conservative state when Republican turnout is expected to be high in a presidential year. He often votes with Republicans, but his 11th-hour support for the health care law still haunts him politically. Even so, Republicans have struggled to find a well-established candidate.

Back to the Steinhauer article:

The biggest fear among Republicans is of divisive primaries in which Tea Party-backed candidates prevail in states where they cannot win the general election, as happened in 2010 in Delaware, Colorado and Nevada, or that weaken the preferred candidate in the process.

I guess that's the "feuding" referenced in the headline. Is it feuding or hybrid vigor? I think it's fine for a party to have internal debating between moderate and more extreme contingencies. It's vital, and not bland. But then I'm a moderate. I know the staunch conservatives think moderates are bland.

Fears of ideologically divisive primaries often keep the best candidates from running, some Republican officials said.

“We are having trouble recruiting,” said Martha Breene, the chairwoman of the Venango County Republican party in Pennsylvania. “You often are not getting what you hope you could be getting, and then there is the Tea Party factor. A lot of them have good intent but it is sort of like they are the police men of all things and they aren’t going to let other Republicans matter.”

Thank you, Martha Breene, the chairwoman of the Venango County Republican Party, for dishing up the quote needed for this article. If you want to know what "Republican officials" are saying, be sure to check in on Venango County. It's the pulse of Pennsylvania.

Anticipating the big game.

The fans are fortifying themselves with brats and beer:



The merchants are purveying special T-shirts:



This one made us laugh a lot:



And in the background, under the reflection, there's "Shuck You." I heard a guy saying he didn't understand it: "Shuck you?" Dumb! But then I thought, actually, you have to know at least 3 things: 1. that the Nebraska team is called the "Cornhuskers," 2. that "shuck" is another word for "husk," and 3. that "fuck you" is a standard expression. Then you have to get the hang of the way human beings combine things for humorous effect. If you think about it, the dumbest things are really quite sophisticated.

"This is a clash of two historically hemp producing states... Both Nebraska and Wisconsin had thriving hemp industries."

When Football Saturday meets the Great Midwest Marijuana Harvest Festival.

Sign at a rest stop somewhere along I-80 in Nebraska.

I laughed the most I have ever laughed in Nebraska. And now Nebraska is on my Top 20 list of States Where I have Laughed the Most.

Do you think we can drive straight through from Denver to Madison?

If you don't start until 1 p.m.... which is 2 p.m. in Madison?

It's about 1000 miles. Oh, how can we stop at some motel in Nebraska or Iowa when we've got 2 drivers and we can take turns snoozing in the passenger seat? Even with the vision-blurring lightning storm between Des Moines and Dubuque, we're going to keep going. Crossing the Mississippi, we're almost home. It's familiar territory. Familiar names — Mineral Point, Mount Horeb, Verona — make the final hour serene. Add to that the dawn...



... and we rolled into town at 6 a.m. — a good time for a long nap, in our own bed, in our own house, for the first time as husband and wife.

Nebraska backtracks from its "safe haven" law that had parent abandoning not just babies, but older kids.

You'll have to drop off the kid in its first 3 days. The government is happy to accept your cute little adoptable babies, but you're going to need to take responsibility for those babies you've gone and transformed into brats that you can't stand to keep around anymore.

Since it became law in Nebraska, at least 18 children aged between 22 months and 17 years have been abandoned, including two cases where parents drove from Iowa and Michigan just to drop their children off.

The changes are due to come into effect from next January.

Not until January, eh? Well, then, it's not too late to pile into the van. You know how to get to I-80?

"An uncanny ability to complicate the obvious and sanctify the banal... Bob was charismatic; he was a beacon, a lighthouse. He was also a black hole."

Uh-oh! Suze Rotolo — the girl on the cover of "Blowin’ in the Wind" — is writing her autobiography.

CORRECTION: I mean "The Freewheelin' Bob Dylan." "Blowin' in the Wind" is the first song on the album, which I've played thousands of times and allowed to warp my mind in my most formative years:

I'm gonna grow my hair down to my feet so strange
So I look like a walking mountain range
And I'm gonna ride into Omaha on a horse
Out to the country club and the golf course.
Carry the New York Times, shoot a few holes, blow their minds.

Obama's big night: "We won North, we won South, we won in between."

Obama wins Washington, Nebraska, and Louisiana. Wide margins everywhere. And — as the quote above says — impressive geographic distribution. Those who would point to Hillary Clinton's consistent lead in the national polls need to remember that the Electoral College determines who wins in the end, and extra votes in California and New York are useless. And neither is popularity in states that will surely go Republican in any close race.

Here's an interactive Electoral College map. You'll see the swing states are beige, and you can pick a year and see who won the various states in past elections. Now, here's a map showing which states Obama and Clinton have won so far. Obama has strong appeal — or Hillary is unappealing — in the nation's midsection. Is a picture of Obama's electability emerging?

We were just talking last night about what the superdelegates can fairly do with their power. One argument is that they must vote to produce the result that would obtain if there were no superdelegates.

But isn't it fair for them to look at who can take the party to victory in the end? Isaac Chotiner argues:

Think of it like this: you are a superdelegate or party boss. You have been undecided but now must choose between two candidates with roughly equal numbers of delegates. Most of all, you want to win in November, which is now only three months away. And while one of your two choices is consistently beating the Republican nominee in polls, the other is consistently losing.

Chotiner hasn't gotten to the point where he sees that it's the Electoral College that matters, but his main idea is that superdelegates will be influenced by data about who's more likely to beat the Republican nominee.

Yesterday, I linked to Chris Bowers, who made this threat:

If the Democratic Party does not nominate the candidate for POTUS that the majority (or plurality) of its participants in primaries and caucuses want it to nominate, then I will quit the Democratic Party... [If the] "super" delegates nominate someone for POTUS other than the person who received the most support during Democratic primaries and caucuses, then I fail to see any reason to continue participating in the Democratic Party. If the Democratic Party is not a democratic institution, then to hell with the Democratic Party.

Well, he sounds angry, but what exactly is the standard?

A 1% lead or more in pledged delegates from all 50 states and every territory. If it falls in between the plus or minus 1% range, I'll cut some lack. Otherwise, none.

So, fine, he's not looking at a national poll or going on the numbers of voters/caucus-goers. This shows some sensitivity toward the electoral map. But he's not taking into account any subtleties of who has support in the states that will be hard-fought in the general election. He throws in the territories, which have no electoral votes, and he doesn't have a good way — as far as I can figure out — to deal with the botched process in the big swing states of Michigan and Florida.

It seems to me that the superdelegates are in a position to account for some complex considerations of democracy as it plays out in our peculiar electoral process. The only reason to lock the superdelegates into a formula the way Bowers wants is that you don't trust them to think in a sophisticated way about legitimate factors. You're afraid of the politics that will go on behind the scenes. I understand that fear, but so will the superdelegates. The check on behind-the-scenes deals and corruption is that they will know the people will be hypervigilant and easily outraged.

ADDED: Here's the way Barack Obama puts it:

My strong belief is that if we end up with the most states and the most pledged delegates from the most voters in the country, that it would be problematic for the political insiders to overturn the judgment of the voters. I think it is also important for superdelegates to think about who will be in the strongest position to defeat John McCain in November and who will be in the strongest position to ensure that we are broadening the base, bringing people who historically have not gotten involved in politics into the fold.

See? He's pushing a subtle, multi-factored approach that serves him well. I assume Mrs. Clinton will do the same. The linked article quotes her saying:

Superdelegates are, by design, supposed to exercise independent judgment. But, of course, if Senator Obama and his campaign continue to push this position, which is really contrary to what the definition of a superdelegate has historically been, I will look forward to receiving the support of Senator Kennedy and Senator Kerry.

Ha ha. It's an old quote. (Both Kennedy and Kerry have declared their support for Obama.) That was mean! Anyway, I look forward to seeing how she puts it to adapt to the changing circumstances.

ADDED: I misread the Clinton quote, which isn't old. It's a sound witticism.

What does Mickey Kaus have against "This American Life"?

When I was driving home from Austin two Saturdays ago, I listened to a lot of talk radio. I especially enjoyed the hours when "This American Life" played on the XM Public Radio channel. The segment on the DREAM legislation moved me to tears -- and I do try not to succumb to tears while driving. It told the story of a young woman whose parents had brought her to the United States when she was a child and who had worked very hard and achieved a lot toward her goal of becoming a doctor, but who could not go on to medical school or ever hope to be a doctor unless she were to first move back to the unfamiliar country of her birth and wait her turn to immigrate legally.

Here, Mickey Kaus blasts "This American Life":

Does it always feature tedious bits of propaganda like the recent segment (#4 on this link) from a "fellow at the New America Foundation" crudely presenting one side of the argument for the DREAM Act? ("There is a very simple solution to all of this, a bill called the DREAM Act ..." concludes narrator Douglas McGray--as if he were talking to children and there were no arguments against rewarding "undocumented" immigrants by granting their children legal status, in-state tuition and citizenship.) You'd get a lot more useful information from a two-graf editorial in USA Today.

Well, you listen to that segment and tell me if it's crude or profound. It doesn't set out to examine the provisions of the act. It reaches you emotionally by bringing you inside one person's life. Admittedly, that has a propaganda effect. I was ready to promote the act, though I didn't know the details of it. But I got the message that there is a narrow legislative proposal that is being stalled by those who want to deal with the much larger immigration problem and I realized I'd have to look up the proposal on the web and see if the details checked out. I don't see what is crude about making you care about a problem rather than dissecting the legislation.

So read about the legislation at Mickey's link and tell me -- Mickey doesn't -- why we shouldn't care in a special way about young people who were brought here by their parents, educated by Americans, and then left with no way to follow through on their dreams?

And let's look a little more closely about why Kaus doesn't like "This American Life." He seems quite concerned about Ira Glass and his "clipped, geeky," "ironic nerd/hip" voice. I think it's the big testosterone discrepancy between Ira Glass and Mickey Kaus that is squicking Mickey out.

ADDED: The producer of the "American Life" segment, Douglas McGray, wrote a long piece in the L.A. Times before he did the radio version linked in Kaus's post. Here's some detail about the DREAM Act from the article:

Together with Republican Sen. Orrin Hatch of Utah, [Democrat Dick Durbin] introduced a bill called the DREAM Act. The bill recognized that kids such as Thi and Martha grew up as Americans and may not even remember another home. It offered them conditional resident status when they graduate from high school; if they graduate from college or serve in the military, that conditional status becomes a green card.

When Durbin and Hatch introduced the DREAM Act in 2001, it provoked the kind of deep disagreement that seems to follow each new immigration proposal. Eventually, though, the bill had collected a staggering 47 co-sponsors, nearly half the Senate, including immigration hawk Larry Craig, a Republican from Idaho; likely GOP presidential candidates John McCain of Arizona and Chuck Hagel of Nebraska and their Democratic counterpart, New York's Hillary Clinton; Minnesota Republican Norm Coleman; California Democrat Dianne Feinstein and Minority Leader Harry Reid of Nevada. The bill has enjoyed unusually broad support for an immigration measure for several reasons.

Only the most extreme immigration hard-liner would blame a toddler, or even an adolescent, for the choices their parents made. Some strain to make the case that offering opportunities to kids such as Thi, Martha or Esmeralda is akin to rewarding their parents, but that is just a polite way to argue that punishing children will discourage illegal immigration—not exactly a crowded bandwagon, when there are other ways to address the problem. Besides, there is something undeniably American about kids who scrap their way out of a bad situation with talent and hard work.

In 2003, the Senate's right-leaning Judiciary Committee voted 16-3 to bring the DREAM Act to the rest of the Senate. But the Senate's Republican leadership refused to schedule the DREAM Act for an up-or-down vote. The bill had Republican dissenters, and Majority Leader Bill Frist, a Tennessee Republican, appeared fearful of dividing his party and alienating right-wing activists.

Again this year, the Judiciary Committee endorsed the DREAM Act, voting to attach it to the Senate's sweeping immigration reform bill. But before Congress left for recess earlier this month, that bill bogged down, perhaps indefinitely. Even if the measure ultimately passes the Senate, it must be reconciled with a tougher House bill on immigration. Just before legislators left town, however, a bipartisan group of House members reintroduced their version of the DREAM Act. Compared with the nightmarish task of overhauling America's immigration system, and determining the future of 12 million illegal residents, offering green cards to a few all-but-American college kids hardly seems controversial.

"The proceedings seemed more like a medical school seminar than an appellate argument."

Linda Greenhouse describes yesterday's oral argument in the abortion case.

What exactly was the procedure that the law, the Partial-Birth Abortion Ban Act of 2003, sought to prohibit, the justices wanted to know. When, if ever, was the procedure necessary? What would be the impact of banning it? What alternatives were available to women seeking second-trimester abortions and to doctors performing them?...

Justice Kennedy’s questioning suggested that he had not made up his mind, despite his strongly worded dissenting opinion when the court struck down Nebraska’s version of the federal law six years ago, and despite his obvious distaste for the procedure at issue. Instead, his questions suggested that he remained open to persuasion that the law placed doctors in legal jeopardy and imposed an unconstitutional burden on their patients’ right to terminate their pregnancies.

One example was his response to the assertion by Solicitor General Paul D. Clement that it was never necessary for doctors to use the banned procedure because a more common procedure, one not covered by the statute, “has been well tested and works every single time as a way to terminate the pregnancy.”

Justice Kennedy responded: “Well, but there is a risk if the uterine wall is compromised by cancer or some forms of pre-eclampsia and it’s very thin. There’s a risk of being punctured.”

Since Justice O'Connor was the fifth vote in the previous "partial-birth" abortion case, we're especially interested in any cues that might have come from Justice Alito, but he said nothing at all. Scalia was "unusually disengaged." Chief Justice Roberts was active:

At times, he appeared to be trying to bolster the defense of the statute by the solicitor general. At other times, the chief justice appeared eager to find differences between the federal law and the Nebraska law. Differences in the way the state and federal laws defined the procedure could be the basis for a decision that upholds the federal law without disavowing a recent precedent.

That sounds as though Roberts was looking for a minimalist theory for upholding the federal law, while perhaps Kennedy was looking for a minimalist way to provide the fifth vote for striking it down.

What Kennedy does is important, and I think the Democrats acquisition of control of the Senate makes it easier for him to assume the position previously occupied by Justice O'Connor and vote against the law. There will be outcry against Kennedy, but those who are opposed to abortion rights can no longer hope for new openings on the Court to fill with solid conservatives. With the new Senate, any new Justices are going to be judges who operate much like O'Connor and Kennedy.

Argument tomorrow in the "partial-birth" abortion case.

David Savage details the case. Excerpt:

The replacement of O'Connor with Justice Samuel A. Alito Jr., a conservative and a Catholic, has convinced many legal experts that the court is prepared to uphold stricter regulation of abortion....

After [Congress enacted the Partial-Birth Abortion Ban Act], federal judges in San Francisco, New York and Omaha conducted trials on lawsuits that sought to overturn it. They heard from doctors who teach in medical schools at Cornell, Yale, Columbia, Northwestern, the University of Pittsburgh and UC San Francisco.

By the middle months of a pregnancy, doctors remove the fetus with surgical instruments, using the D&X method or the more common "dilation and evacuation," called a D&E. In that procedure, the doctor breaks apart the fetus before removing it from the uterus.

Experts told the three judges that the D&X procedure was not the only safe way to perform abortions after 20 weeks, but was safer than D&E in some cases, especially for women who have a damaged immune system or are in danger of hemorrhaging.

"Congress can 'find' that the moon is made of green cheese. That doesn't make it so," Dr. Nancy Stanwood, who teaches obstetrics at the University of Rochester, said in a recent interview. "When you're doing surgery, shorter and faster is better. If an intact extraction is possible, it's preferable."...

Dr. Jill Vibhakar, who teaches obstetrics at the University of Iowa and performs abortions at an independent clinic in Iowa City, is a plaintiff with Carhart in the suit before the court. She said the justices face the same issue Wednesday that they did when they threw out the Nebraska ban [in Stenberg v. Carhart in 2000].

"Nothing has changed recently in medical practice. The only thing that has changed is that a moderate female justice has been replaced by a conservative male justice," Vibhakar said.

The National Review has an editorial on the subject. Let's see how seriously it takes the central legal problem presented in the case, which is the comparative danger of the D&E. (Both the D&X and the D&E are gruesome and kill the fetus.)

Nobody has ever shown an instance in which a partial-birth abortion was necessary to save the life or health of a woman. The most defenders can show is that there may be instances in which individual abortionists may decide that it is the safest method of abortion.

The sophisticated case is the one made by Justices John Paul Stevens and Ruth Bader Ginsburg, and in lower courts by, among others, Judge Richard Posner. The argument is that nothing morally distinguishes partial-birth abortions from other methods of abortion in the second and third trimester. What difference could it make to a fetus, these jurists ask, whether its feet are in or out of the womb when it is killed? The bans are irrational.

This argument has some force, but even more chutzpah. The Supreme Court, with the eager assent of all of these jurists, has declared that the child within the womb can have no protection. The mother has a right to kill it at any time it is within her. The ban on partial-birth abortion is an attempt to mark an outer boundary to this right.

If that boundary is to fall, one could, with equal force, ask what difference it makes to a child whether it is killed within the womb or entirely outside it. One could, that is, use the Court-enforced legality of late-term abortion to construct a right to infanticide. Surely some abortionist somewhere could be found who would conclude that it is safer for the mother to remove the child entirely from her womb before dealing the fatal blow.

That's shifting the subject. You have to face the fact that breaking up the fetus within the uterus creates dangerous fragments. I understand that a lot of people find both procedures monstrous. But as long as the woman has a right to an abortion, how can government deny her what is the safer of two procedures?

Reaching Utah.

I drove what seemed like all day. But it was only half as much as yesterday. Big mushroom-shaped thunderstorms loomed in the expanse of desert in front of me. The lightning looked strangely three-dimensional, not flat against the sky the way it looks back home, but in a precise place in the middle ground. Mostly, I drove in bright, hot sunlight, but a few of those blinding storms hit me. One made the temperature -- around 100 all day -- suddenly drop to 67. But I was inside the car, with the windows up and the air conditioning on. I was just reading the numbers on the dashboard.

I'm in love with the beauty of the western landscapes. But at the same time, I know that without the car, this place would be frightening and dangerous. I delighted when the ground went from green to brown as I drove west, and the land went from gentle hills to gigantic, ragged rocks. But it is only because there is so much land like Nebraska and Iowa that I'm in a position to see these desiccated landscapes as beautiful. Without all the affluence produced on that land I snub, I would have to see all this as a tragic wasteland.

But it's beautiful, isn't it?




Helping make it beautiful:

1000 miles.

I drove today, getting the boring part of the drive behind me. I'm really too fried to write a blog post, but what is this blogging enterprise if not daringly throwing yourself in front of the world in whatever condition you're in? So I'm trying to get through the comments moderation for the day. Scroll down and find the post that explains why I've had to turn on comments moderation. You know there are so many beautiful strangers who have made my blog a little coffeehouse, where people can talk about all sorts of things. And it only takes one person to spoil the ambience. Moderate though I am -- I like to say -- I don't like doing this moderation, mainly because it slows everything down.

How awful to think that with all the wonderful students I've had over twenty years, a former student should be the one screw up my place -- which is so much about enabling people to have good conversation.

Patience, everyone. I'm doing badly today getting through approving all the comments, but it's not the usual thing. Today was one of my all-time heavy driving days. I made it past Denver, and the last part, in blinding rain was really, really hard. But the motel is fine, and the internet is working, and there's a plastic cup into which I've poured X ounces of the single malt Scotch I've stashed in my bag.

So I will blog-tend and sip until I hit the wall. Tomorrow will be leisurely and scenic... with photographs, I assure you. It will be all about Colorado and Utah. I'm in love with the American West. Driving across Nebraska today, I appreciated the lush farmland. It's important. But my heart lightened when the land started looking dry, when the green verged over into brown.

Supreme Court invalidates Guantanamo military commissions.

SCOTUSblog reports:

The Supreme Court ruled on Thursday that Congress did not take away the Court's authority to rule on the military commissions' validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the "military commissions" illegal under both military justice law and the Geneva Convention. The vote was 5-3, with the Chief Justice not taking part.

I don't have the text of the opinions yet. I'll have more soon.

UPDATE: Here's the opinion. Here's a good summary in the Washington Post. I found this especially interesting:

For the first time in his 15-year tenure on the court, Thomas took the unusual step of reading part of his dissenting opinion from the bench. The court's willingness "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous," he said.

And let me just say something about the interpretation of the jurisdiction statute. I know a lot of readers are finding Justice Scalia's interpretation persuasive:

In a dissenting opinion, Scalia pointed to congressional enactment on Dec. 30, 2005, of the Detainee Treatment Act, which provides that as of that date, "no court, justice or judge" shall have jurisdiction to consider an application by a Guantanamo detainee for habeas corpus, challenging his detention.

But the majority's straining to read the DTA to preserve jurisdiction does not at all surprise me (a federal jurisdiction scholar). It is standard practice for the Court to read statutes that purport to cut back jurisdiction in a way that is defensive of the role of the judiciary. Justice Stevens's opinion discusses some of those cases. He doesn't even reach the question of whether the Constitution permits the cut back. This is an issue that he avoids -- in the style of many other cases.

In a concurring opinion, Breyer strongly disputed the dissenters' assertion that today's ruling would, as Thomas wrote, "sorely hamper the president's ability to defeat a new and deadly enemy."

"The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a 'blank check,' Breyer wrote. "Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here. Nothing prevents the president from returning to Congress to seek the authority he believes necessary."

And he'd better get crashingly clear statutory language.

IN THE COMMENTS: Simon says Thomas had read dissents from the bench before. He cites Stenberg v. Carhart, the "partial birth" abortion case. I looked up news reports of the time and found this in the Washington Post, June 29, 2000, Pg. 9A ("Abortion debate will continue to rage," by Joan Biskupic):

The sensitivity of the abortion issue was evident in the court's outpouring of opinions in the Nebraska case, Stenberg vs. Carhart. Of the nine justices, only David Souter did not write an opinion. Antonin Scalia, Anthony Kennedy and Clarence Thomas were moved to read portions of their angry dissents in the Nebraska and Colorado cases from the mahogany bench.

It's strange for the WaPo to have made that mistake today. You'd think you'd definitely check before saying something happened "[f]or the first time."

AFTERTHOUGHT: It will be interesting to see how Hamdan plays out in the political arena. The case invites more legislation, and members of both parties have got to be furiously cooking up proposals. I suspect that those who are most disappointed by the outcome of the case have the most political advantage looking toward the next few months.

"Several dozen students and faculty turned their backs and lifted signs saying 'Our commencement is not your platform.'"

John McCain gives a commencement address at the New School.

Some 1,200 students and faculty had signed petitions asking the university president, former Nebraska Sen. Bob Kerrey, to rescind his invitation for McCain to speak, saying McCain's support for the Iraq war and opposition to gay rights and abortion were not in keeping with the prevailing views on campus.

Kerrey urged students to exercise the open-mindedness he said was at the heart of the university's progressive history.

"Sen. McCain, you have much to teach us," Kerrey said toward the beginning of the ceremony, drawing a smattering of boos and hisses.

More details from Ari Berman's blog at The Nation:

The Senator spoke in a dull monotone, without his usual charisma or charm. He was noticeably deflated by the crowd's harsh reception towards him. Remarks such as "I supported the decision to go to war in Iraq," were met with loud boos.

"I stand that ground because I believed, rightly or wrongly, that my country's interests and values required it."

"Wrongly!" one student boomed from the back. Sitting directly behind us, Maureen Dowd and Adam Nagourney of the New York Times, chuckled.

As McCain droned on, students became increasingly restless. One cried, "This speech sucks!" Several students walked out early.

I just read that last block quote to my son John. So, what do you think of that -- yelling out "Wrongly!"? John: "He's just asking for it when he phrases it like that."

Yeah, McCain. Get some better speech writers. Don't lob softballs at the hecklers.

And isn't he, really, just asking for it by going about giving speeches at politically liberal colleges? He's taking advantage of an opportunity, a shot at a captive audience that's under tremendous social pressure to sit still and listen. How hard can you be on the audience that also sees fit to take advantage?

Yeah, yeah, everyone should be respectful and civil. It would be better to find what you can appreciate about a man of his stature when he deigns to appear at your institution -- his service and suffering in wartime, his long years of statesmanship. But I'm not going to get too exercised about this -- and I doubt if he is.

UPDATE: More details here:

Mr. McCain seemed uneasy, but stuck to his script and did not acknowledge the barbs. As [a student] had predicted [in one of the earlier speeches], he spoke about the importance of civil discourse, and he reiterated his defense of the war.

"I believe the benefits of success will justify the costs and risks," he said. The protests grew louder and more frequent as he spoke. Some graduates walked out. Others laughed. When Mr. McCain returned to policy after briefly quoting Yeats, someone shouted, "More poetry!"

At another point, someone yelled, "We're graduating, not voting!"

Were the students inappropriate if he was inappropriate? He ought to have shown up prepared for the occasion. At the very least, he should have prepared a graduation speech and not a political speech. A genuinely with-it politician would also have come prepared to talk directly and spontaneously to the situation unfolding in front of him. You can go on about the students' rudeness if you want, but what is more important is whether he's a politician who has what it takes to run for President. The fact is he sleepwalked through what could have been his moment. But Mr. McCain seemed uneasy... stuck to his script and did not acknowledge the barbs.