OK, so I noticed the Jeffrey Rosen article arguing that it would be best for the nation, and for the Democrats, to overturn Roe. Like others before him, Rosen argues that the overturning of Roe would be disastrous for Republicans, a prospect he doesn't appear to disfavor. And he quotes at least two unnamed "Republicans" in support of this view:

If Roe were overturned, the relative political weakness of the extreme pro-life position would be exposed, and the Republican Party would be torn apart at the seams because many Republicans oppose early-term bans and would desert the party in droves. "The last thing in the world the White House would want is that Roe v. Wade is overturned," says a prominent Republican congressional aide. "The reason being is that it would energize the nation's pro-choice constituency, ... and it would cause a huge fissure in the Republican Party, which has been generally harmonious over the issue because of the belief that the pro-life position will never truly be tested."

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And, even in the unlikely event that O'Connor and Stevens were to retire, Bush is unlikely to replace both of them with committed opponents of Roe, because his advisers know that the decision's reversal would be a disaster for the party. Indeed, when Karl Rove was asked at a press coffee last month whether Roe should be overturned, he dodged the question. "Rove understands the political calculation, and he's never been a zealous pro-lifer," says a GOP pollster who asked not to be identified. "Hard-core conservatives want someone who passes the Souter test and will overturn Roe, but, for the Republican political establishment, that's the nightmare scenario."

I've already responded to this argument (as made by Jack Balkin) here and here. (For even more, see Balkin's response here and my further response here.)

Two further thoughts occur to me, though: First, if overturning Roe would be such a disaster for Republicans, and correspondingly such a boon to Democrats, how come no Democratic politicians have explicitly come out in favor of anti-Roe judicial nominees? Are they all too dense to grasp the wondrous possibilities that overturning Roe would supposedly create for themselves? Or are they all so controlled by their side's special interest groups that none of them have the courage to call in the PFAW and NOW people and say, "Look, you're not going to like this, but we're going to help Bush appoint anti-Roe Supreme Court nominees. It will be the best for our party in the long run. Plus, your groups will be able to raise more money anyway, so don't complain." Why is it that instead, we see Democrats filibustering and obstructing Miguel Estrada merely because they think 1) he might end up being a Supreme Court nominee someday and 2) he might be prolife? Are all the Democrats utterly daft?

Second, the social conservative wing of the Republican party -- a group of people who make up about a third of the country, don't forget -- would never stand for another Souter. Out of the last 5 Republican appointments -- O'Connor, Scalia, Kennedy, Souter, and Thomas -- only two turned out to be against Roe. For the past 22 years, the message to conservatives has always been, "Oops, another pro-Roe Justice slipped through. Well, just keep voting Republican and maybe you'll have better luck next time."

But there is no way that the Republican base is going to stand for another appointment that turns out to be pro-Roe. Recall, if you will, the 1998 incident in which James Dobson threatened to arrange a mass desertion of the Republican party if the Republicans didn't get serious about conservative issues. (Here's how Slate and CNN reported on it at the time.) Well, imagine that sort of revolt actually occurring if Bush appointed another Souter. Not that conservatives would suddenly start voting Democratic, but they might just stay home on election day. I can't imagine that Republican strategists like Rove aren't superlatively aware of this factor, no matter what Jeffrey Rosen might say.

On the other hand, perhaps Rove et al. are more clever and devious than I am giving them credit for. Perhaps it is they who have planted this meme in the media, this idea that "My goodness, we Republicans are really, really, frightened of seeing Roe overturned. Oooh, wouldn't that be awful for us." And meanwhile, behind the scenes, the real plan is to throw everyone off the scent -- to make everyone think that if Bush nominates a cipher, that nominee will end up being a pro-Roe Souter rather than an anti-Roe Thomas.

But wait, maybe that really isn't the plan at all. Maybe the plan really is to appoint a pro-Roe Justice, but to make conservatives think that the real scheme is to appoint an anti-Roe Justice under the cover of telling liberals that the Republican establishment really wants a pro-Roe -- oh, never mind.

Anyway, I'm now done with the Texas bar exam -- hopefully for good. Tomorrow, it's off to Stanford, where I'm speaking on a panel at Larry Lessig's conference on spectrum regulation. It should be a great time. Lots of interesting speakers lined up (here's a complete list with bios), including FCC chairman Michael Powell, Larry, economist Harold Demsetz, 9th Circuit judge Alex Kozinski, and quite a few of the nation's top telecom scholars. If I find a way to get access to a computer while I'm there, I just might blog a bit about it. And if not, I won't.

Denis Dutton (of Arts and Letters Daily fame) and Wolfgang Kasper argue that the Kyoto Protocol is more about European protectionism than about actually protecting the environment:

Kyoto activism is in reality not about saving the world. It is about exploiting Green sympathies and justified environmental concerns to convince the world that it should accept a new form of European protectionism.

I agree, which should come as no surprise, since the same argument appeared in an article that economist Bruce Yandle and I co-authored in the Harvard Environmental Law Review last year.

Judge Posner blisters Justice Douglas
Anyone who follows the Supreme Court should check out Judge Posner's strongly worded review of the recent biography of Justice Douglas. The review is in the New Republic from last week (it can be found online here). Posner's conclusion is that Douglas was a pathological liar, a drunk, a womanizer, and a selfish cad.

He also concludes that Douglas was a rotten judge.

-- this was taken from an email from my friend Nate Oman

Hmmm. My site just got a hit from someone at the Washington Post who had done a Google search for ["Miguel Estrada" and "in bed" and bipartisan]. (Here's a link to the Google search, which turns up only two sources on the entire Internet). Now I wonder what that person could have possibly expected to find . . .

UPDATE: Now I see I got a hit from someone at the Philadelphia News, having searched Google for [Westlaw "Miguel Estrada"]. Not quite as opaque as "in bed," but still slightly mysterious -- as if the person expected to find that Estrada had written something about Westlaw, or vice versa, which doesn't really make much sense.

An AP headline: Bad Economy Helps Reduce Greenhouse Gases.

Well, that's one way to look for a silver lining.

Amidst all the civil libertarian furor over the Patriot Act I and II, no one has yet commented on the "citizen reporting" provision. By this provision, every adult in America will be required to file a yearly report on themselves, and send it to a new government office that is charged with tracking every person's whereabouts, living circumstances, etc. The yearly report required from each adult must contain:

• Name
• current address
• name of spouse (if any)
• names of children (if any)
• Social Security numbers for all the above
• title of job
• address of employer
• amount of income
• any significant expenditures during the year
• information about bank accounts or any investments
• information about loans, mortgages, and other obligations
• information about what charities the adult supports with his or her money
• information about medical bills
• Potentially much more.

As should be obvious, these reporting requirements are onerous, intrusive, and only serve to allow a massive federal bureaucracy to monitor Americans' lives. I'm surprised that there hasn't been more publicity and protest over these proposed violations of the constitutional right to privacy that we all should enjoy.











By the way, I'm just kidding about the Patriot Act(s). What I described is actually the current requirement re: reporting to the IRS every April 15. I just feel like venting on that subject this time of year.

This story prompted me to remember an idea that's been buzzing in the back of my head for a while:

The Washington Post is moving its data center to Tysons Corner in Virginia.

U.S. News has plans to send reporters and editors to hotels in Frederick, Maryland.

The BBC would evacuate its staff to waiting boats on the Potomac River to avoid land-based escape routes that are likely to be jammed.

The New York Times bureau has geared up with a Geiger counter, dust masks, flashlights, food, water, and other survival equipment.

As the threat of a terrorist attack on Washington occupies the front pages and airwaves, news organizations are trying to figure out how to keep going in a capital city where the air or water might be toxic.

The idea is this: Why don't we decentralize the physical location of various offices and branches of the federal government? In an age of terrorism -- where we fear terrorists with biological agents or dirty nukes -- it doesn't make sense to have the White House, Congress, the Supreme Court, DOJ, the Dept of Homeland Security, and everything else, all sitting together within a few blocks' radius in one small city. DC might as well have a gigantic bulls-eye painted over it. And if terrorists do strike with a weapon of mass destruction, they could take out most of the federal government all at once. We'd be left with the odd Cabinet secretary attempting to run the country and rebuild the entire federal government practically all by himself.

Back in December, there was a Washington Post story that quoted a "participant in efforts against al Qaeda whose office is adjacent to Pennsylvania Avenue" as saying this: "They are going to kill the White House," the official said. "I have really begun to ask myself whether I want to continue to get up every day and come to work on this block."

Chilling words. So we have to ask the question, why give them the chance to kill the White House and everything else in DC all at once? Why not move the federal government to different locations? Put the Supreme Court in, heck I don't know, Chicago. The White House in Albuquerque. Congress in Seattle. DOJ in Tulsa. Homeland Security in Providence. Spread the federal government around the country.

Of course, this would take a good bit of time, and it would cost a lot to construct new buildings, move personnel, etc. And it would raise the transaction costs of governing the country (although some of us might view that outcome as a feature, not a bug). But if the risk of terrorists destroying DC is more than infinitesimal -- and the official quoted above viewed the risk as nearer to 100% than to zero -- the costs of decentralizing the federal government are likely less than the cost of seeing the entire federal government decapitated in one fell swoop 5 or 10 years from now.

Bruce Bartlett argues in favor of a consumption tax (instead of income taxes) in this op-ed. I don't necessarily agree with all his arguments, but I'm interested in how he handles the point of regressivity:

Liberals also make the mistake of assuming that a consumption-based tax system is regressive -- taking more out of the pockets of the poor than the rich. In fact, over one's lifetime, consumption is roughly proportional to income, because over a lifetime we eventually consume all our income. Thus, a tax on consumption will also be roughly proportional -- taking the same percentage from all taxpayers.

That may be true, although if one considers the diminishing marginal utility of money, taking the same percentage of money from all taxpayers may not really be treating them equally. (I.e., treating people the same is not necessarily treating them equally. Taking 10% of the minimum wage earner's income probably has more effect on that person's life than taking 30% of the $1m-per-year earner's income.)

In any event, the point I'm interested in is the assumption that a consumption tax is necessarily a flat tax. Why couldn't the percentage tax leveled on consumption rise with the dollar amount being spent? In other words, if you buy a $6000 Kia auto, you pay 5% tax, while if you buy a $150,000 Ferrari, you pay a 15% tax. Same for all other consumer goods -- let the percentage sales tax be scaled to the relative dollar amount for the good in question. And since rich people tend to buy more expensive goods and services, they would be taxed at a higher rate, just as under the current system. (On the other hand, if a rich person lives like a pauper and sticks all his money under a mattress, he won't be taxed. To which I say, so what?)

I haven't thought through all the implications of this idea, but it's one I haven't seen anyone else even consider. It would effectively answer, I think, the argument that a consumption tax is necessarily regressive. (For examples of the regressivity argument, see Angry Bear, and a more hysterical version of the argument by David Neiwert).

Much of the debate over Estrada has followed the same repetitive script on both sides. The Republicans make, time after time, every single point that is made in the White House's letter that Howard Bashman kindly posts here. (I.e., Estrada's qualifications are outstanding, he's waited far too long already, the Democrats are way out of line to be asking for work product from the Solicitor General's office, etc.). And the Democrats make, time after time, all the points that appear in a letter from the People for the American Way.

But occasionally, for whatever reason, a Senator attempts to say something original, and goes off the pre-scripted lines carefully prepared by his staffers. And because extemporaneous speaking is so difficult, that's when things really get interesting. Check out this "argument" from Senator Harry Reid's statement:

Mr. REID. Mr. President, my father-in-law, may he rest in peace, was a chiropractor, but he knew a lot about people's illnesses and how people handled sickness. One thing he always said--he died as a young man--one thing he always said was, when somebody says they are sick, you believe they are sick. We have all said ``they are not really sick.'' When someone says they are sick, they are sick.

This debate here reminds me of my father-in-law's statement. My friend, no matter how many times the distinguished chairman of the committee says there is not a problem with Estrada, there is a problem with Estrada. You can say there is not. You can have pictures of him. You can do all kinds of things, say all kinds of things that there is not a problem. There is a problem.

First of all, aren't there any chiropractic hypochondriacs?

Second of all, don't the indices of reliability go way down when it's not the patient himself claiming to be sick, but his mortal enemies claiming that he is sick in order to explain why they think he should be euthanized?

And this: "You can have pictures of him." Huh???

Eugene Volokh often criticizes the Slate "Bushism of the Day" feature, as it takes Bush quotes out of context and exaggerates minor slips of the tongue that everyone is guilty of. Perhaps, if Slate is interested in being bipartisan, they could start highlighting similar errors by Democrats. They could start with this statement from Senator Chris Dodd, speaking in yesterday's session on Miguel Estrada:

This goes beyond Miguel Estrada. I regret he has been caught in this. He has, for whatever reason, decided to be used in this way. That is terribly unfortunate for him but far more unfortunate for this institution and the future of judicial nominations if, in fact, this becomes the platelet on how you get confirmed for a lifetime appointment: Don't answer any questions; don't respond to issues about constitutionality of various provisions.

"Nurse, nurse, two units of blood quick. This patient's templates are way too low."

The Work Research Foundation, a Canadian think tank that focuses on economics and work, has put out its Winter edition of their magazine, Comment. The mission of the magazine is to promote:

"a worldview reformation of economics [that is] not just of academic importance but is necessary for the cultivation of an economy that cherishes the dignity of the working person, that protects and restrains economic life within its appropriate sphere, and that weaves strong bonds of cooperation among investors, managers, and workers in the context of social partnership among companies, labour unions, and government."

Not sure exactly what all that means. Anyway, this latest issue features a debate/discussion between me and two other men, Caleb Stegall and Dan Knauss. The subject: Globalization. Check it out if you're interested.

The 101st Airborne got deployment orders today. When these guys go in, you know that war is starting very, very soon. (They weren't deployed to Afghanistan until about a month into the air war.)

FORT CAMPBELL, Ky. (AP) — The Army's 101st Airborne Division received orders today to deploy overseas for an unspecified mission.

The division — along with its 270 helicopters — will ''support possible future operations in the global war on terrorism,'' according to a statement released by the public affairs office at Fort Campbell, where the division is based.

The division will deploy to the U.S. Central Command area of operations, the statement said.

The exact location and number of soldiers deploying was not disclosed. The 101st has about 20,000 soldiers.

''The president of the United States has made no decision about any future military operations,'' said Maj. Carl Purvis, reading from a prepared statement. ''These deployments are prudent steps to increase military capabilities and enhance flexibility.''

The 101st is a famed division that parachuted at Normandy, fought on ''Hamburger Hill'' in Vietnam, and hunted suspected Taliban and al-Qaida fighters in the mountains of Afghanistan.

It is the Army's only air assault division, trained to rapidly deploy anywhere in the world within 36 hours.

Don't expect much blogging from me the rest of this month. In addition to my job, I have to take the Texas bar exam on Feb. 25-27. And two days after that, I'm speaking on a panel at a conference at Stanford Law School --- Spectrum Policy: Property or Commons?, which was put together by my former professor Larry Lessig. (The conference website is here, and the schedule is here.)

So it's shaping up to be a busy month.

Well, this looks to be an interesting story from the San Francisco Chronicle:

A San Francisco amateur astronomer who photographs the space shuttles whenever their orbits carry them over the Bay Area has captured five strange and provocative images of the shuttle Columbia just as it was re-entering the Earth's atmosphere before dawn Saturday.

The pictures, taken with a Nikon 8 camera on a tripod, reveal what appear to be bright electrical phenomena flashing around the track of the shuttle's passage, but the photographer, who asked not to be identified, will not make them public immediately.

"They clearly record an electrical discharge like a lightning bolt flashing past, and I was snapping the pictures almost exactly . . . when the Columbia may have begun breaking up during re-entry," he said.

The photographer invited The Chronicle to view the photos on his computer screen Saturday night, and they are indeed puzzling.

They show a bright scraggly flash of orange light, tinged with pale purple, and shaped somewhat like a deformed L. The flash appears to cross the Columbia's dim contrail, and at that precise point, the contrail abruptly brightens and appears thicker and somewhat twisted as if it were wobbling.
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