Here We Go Again . . .

Hmm, seems to have been a while since I've insulted anyone, so . . .

Sonia Sotomayor. The President's first pick to fill a vacancy on the U.S. Supreme Court. Let the posturing begin . . .

To tell you the truth, I don't know that much about her. And if we're all going to be honest, who among you does? I suspect the answer to that is not very many, but I also suspect that little fact isn't going to stop half of you from portraying her as the greatest jurist since Solomon, and the other half of you from painting her as somewhere to the left of Lucifer.

Whereas, objectively, she is probably neither.

But that still doesn't make necessarily make her a good, or even desirable, choice for the Supreme Court.

As I said, I really don't know that much about her. What I do know, however, is that some of the things she's said makes me sit up and say "Um, what?" And that, it seems, in all the hullaballoo and pundits and politicians racing to stake out positions, no one is asking the right questions. Democrats, it appears, are tripping all over themselves to support her nomination because she was put forth by the President. Republicans, it appears, are tripping all over themselves to oppose her nomination because she was, well, put forth by the President.

And both sides are missing the mark, and in so doing, committing a grave disservice both to their responsibilities and to us.

Let's focus on the three things that I do know about her.

First, her decision in the New Hampshire fire-fighters case. That was the one where, on a promotion exam, the White firefighters outscored the Black firefighters and, as a result, the municipality in question decided to promote no one. In her appellate opinion, Sotomayor in effect managed to render no opinion while upholding the lower court ruling in favour of the municipality, which was to promote no one. Talk about side-stepping the issue . . .

Look, I'm not bashing fire-fighters here; my brother was a paramedic/fire-fighter, and I know a lot of fire-fighters. But this isn't rocket science, folks, it's a fire-fighter's exam. There aren't any "fuzzy" areas on the test. To really over-simplify things in the interests of saving space, something's going to burn, or it's not. Some flammible materials require something other than water to extinguish them, or they don't.

Beyond that - and I know this may be silly of me - I thought the whole point of such exams were to get the most-qualified people into those kinds of positions. I mean, if you're dealing with a toxic chemical fire, who do you want in charge? The person who actually knows what they're doing, or the person who may be a bit shakier on the whole thing but was put in charge in the interests of diversity?

Now, if the test itself was somehow biased . . . fix the test. If the test was fine as it was . . . encourage people to study harder. Seems simple enough. The fact that in this instance the minority candidates all scored lower on the test than the White candidates may have just been a statistical anamoly specific to that group of testees, or it may not have been. But by rendering an opinion that had no opinion, Sotomayor effectively dismissed the whole issue in favour of the status quo ante.

Bad time to have your building burn in New Hampshire . . .

Second, there is her opinion that the Bill of Rights (that is, the first ten Amendments to the Constitution) should be "open" for interpretation by the States. Put into English, that means that the individual States should be free to put whatever spin they want to onto the Bill of Rights. And that, frankly, is a big steaming load.

For everyone who has by now forgotten what they were taught in their High School civics classes, the Constitution is supposed to be the supreme law of the land. Meaning, in those instances where Federal and local law conflict, Federal law wins out. Furthermore, the Constitution itself is a document that spells out specifically which powers are delegated to the Federal Government; that is why there is that little clause in there which states that those powers not enummerated to the Federal Government are reserved to the States.

The Bill of Rights are a bit trickier. They are, for all intents and purposes, absolutes, and they are written that way. Which means, if we are to still believe that the Constitution trumps all else, any "law" that a State passes which conflicts with the Bill of Rights is Unconstitutional and has no force. They can not, therefore, be "reinterpreted." The only possible exception would be the First Amendment, which states that "Congress shall pass no law" regarding the establishment of a religion, or abridging freedom of speech or the "right of the people to peacefully assemble." But none of the other nine original Amendments contain that language. Rather, those are all couched in absolute, "this shall not be done" terms.

If you are going to accept the argument that the Bill of Rights is open to interpretation by the individual States, then you are also going to have to accept the argument that each State can expand, curtail or eliminate the rights enummerated by those Amendments as they see fit. Which means that you're going to have to accept the idea that Utah could establish Mormonism as the State religion, or that Wyoming could eliminate free speech within its borders, or that Missouri could do away with the concept of due process because it's such a bothersome little detail.

Is that really a good idea?

Third, there is her statement that "Policy is made at the Appellate Court." Well, no, it's not. Granted, that's a somewhat vague statement, since as a practical matter court decisions wind up being policy through the mechanism of precedent, but it is the very vagueness of the statement that should cause us to examine it closely.

In the broader sense, courts are not there to make policy. There is already an arm of Government in place to do that: it's called the "Legislature." On the Federal level, that body is called Congress. Which is why we go through the whole process of electing Representatives and Senators, those folks who are charged by the Constitution with passing laws and making policies in our names. If you don't like the laws and policies those people are passing, then don't re-elect them, elect someone else . . . but that's a different rant entirely. It would also require us all to get off our collective butts and actually take the time to vote, but we all have our crosses to bear.

In any event, courts are there to interpret the law, and do so based on precedent. They are also there to make sure that nothing the legislative or executive arms of Government do is Unconstitutional - though, really, that review is something you won't find anywhere in the Constitution. Frankly, it's a good idea, and I'm glad we have it, but judicial review is a concept that Chief Justice Marshall invented out of whole cloth. Be that as it may, what the courts aren't there to do is make policy. Look at the language in the Constitution that creates the Supreme Court, which states that it will have the power "to hear cases of equity and law." That clause also empowers the Supreme Court to create lesser courts - that's where the Federal circuit courts come from, for example - but nowhere does it grant the court the power to make policy.

Thus, to argue that the Supreme Court, or any other court, for that matter - are or should be policy-making bodies betrays a serious misunderstanding of what courts are for, and of the powers delegated to the courts by the Constitution. Nor is that a Left/Right statement; it is equally unacceptable whoever is using a court as an activist stage. The framers of the Constitution were pretty explicit in their desire that policy-making powers were the preserve of those who were elected by the people. It is a dangerous thing, I think, to allow those powers to be exercised by people who are not only appointed, but appointed to their positions for life.

Those, I think, are the questions that should be asked. Not only of Sonia Sotomayor, but of anyone who is nominated to such a position. They are the questions that really matter, and which should concern all of us. I am, however, pretty confident that they are also the questions that won't be asked, precisely because they are substantive and make for really bad sound bites.

Ah, well, you get what you pay for, I guess.

Lying to the Dead

The words hung in the air, a living thing, stalking through the rooms of the apartment, searching him out. Ethereal, uttered thoughtlessly in a momentary flash of unreasoning, unaimed anger, yet seemingly capable of wielding a terrible purpose.

"Why don't you just die!"

A moaning, howling wind rattled the windows, while the Lake frothed and battered its way across the shore, spilling across the Drive, as if Nature herself raged in fury over those five damning words. A chorus to the mute tableau inside, where the words, their task done, bore witness before their creator.

Some things should never be said.

Silence, and yet the words echoed off the walls, through his mind, a deafening accusation that withered him where he stood. Just words but, once uttered, never to be recalled, unalterable in purpose, forever damning and damned. Just words, and words can't kill, except when they do.

Now there were no more words, only a void into which they could be poured but could never fill. One can not apologize to the dead, for the dead are beyond reach. The dead know nothing of sorrow, of regret, of wishing that the words could somehow be unspoken. The dead do not know that those words were a mistake, that they were not meant; they only know that they are dead.

He could only wait in silent confrontation with the deed his words had wrought. Wait for the help he had summoned, forlorn as that help was, while the words mocked him, demanding their pieces of silver.

Nothing left but nothing, nothing but a despair beyond tears, nothing to say or do to change what has been done. One can not lie to the dead, can not absolve themselves of what they have done.

One can not hide from those five, simple words.

I'll Take Nuclear Annihilation for $400, Alex

Well, the President has gone on his first official overseas trip as the nation's Chief Executive . . . and promptly demonstrated a complete lack of understanding of security affairs. Or a lack of any advisers who understand such issues, which amounts to the same thing.

Hmm, I seem to hear some collective breaths being drawn, and perhaps a voice or two of protest. What in the world am I babbling about now?

Simply this:

"U.S. President Barak Obama is appealing to other nations to join in an effort to rid the world of nuclear weapons. In Prague, the Czech capital, Mr. Obama said the United States will lead the effort, but cannot do it alone."

What a wonderfully simplistic and, to be charitable, ridiculously naieve idea. As one acquaintance of mine put it, did we elect a 4th Grader to the Presidency? Here's a better idea: let's not do this.

Erm, wait a minute, why not? I mean, do you like nuclear weapons or something? Just can't wait for someone to drop another one, can you? "The president went straight to the European public to urge support for a difficult task. He told a crowd of about 20,000 people in a city square near Prague castle that it is time for the nations of the world to join in a common cause. "Today, I state clearly and with conviction, America's commitment to seek the peace and security of a world without nuclear weapons," he said." What's so wrong with that vision?

No, I don't particularly like nuclear weapons, but they are a reality. And no, there's nothing wrong with the President's vision, I mean, other than the fact that it is completely impractical and can't ever work. Aside from that, really, it's just a grand idea.

Look, folks, whether you want to face up to it or not, this particular djinn is well and truly out of the bottle, and he's not going back in. We know hot to split the atom - and fuse it, too - and we know how to make one hellacious bang while we're doing it. This isn't something that we're going to "unlearn," no matter how much we wish the things would just go away. Just building a nuclear bomb isn't all that difficult, people. Getting the fissile material is, but if you're determined enough . . . just look at Pakistan. Or North Korea, or even Iran, for that matter.

Really, now, does anyone but the President and those who choose to be just as blithely ignorant on this subject believe that some ink on a piece of paper is going to convince India, Israel ("Bomb? What bomb?"), the UK, France, Russia, China or Pakistan to give up their nuclear weapons? Do you really think it is going to convince North Korea or Iran to give up their nuclear ambitions? If you do, I've got a nice bridge I want to sell you. It's in Brooklyn. Great view.

Sorry, but whether they sign on to this idea or not, someone's going to keep their bombs. Why? Because they're useful, particularly if you're the only one who has them. Sort of like the quote attributed to Al Capone: "I've often found that I can get farther with a kind word and a gun than I can with just a kind word." And, please, don't even bring up the idea of missile defence. It's a good idea, but remember this: missiles aren't the only way to deliver the weapons, there are still ways to launch a missile that will defeat the defence system (FOBS, for example, or Fractional Orbit Bombardment System), and, in the end, all a potential aggressor has to do is have one missile more than the defensive system can engage.

Even if such a treaty were signed by everyone who has, or who wants, nuclear weapons, you couldn't actually ever verify that everyone was complying with it. As an example, anyone else remember that treaty Nixon signed with Brezhnev in, oh, 1972 I believe it was? The one that "outlawed" biological weapons?

I mean, good idea, that. Biological weapons should be outlawed. And, in compliance with the treaty, the United States halted all research and production of biological weapons, destroying the ones we did have. And, year after year, we verified that the Soviet Union had done the same. That is, until the Soviet Union collapsed and we found out to our horror that the Russians had just chugged right along all those years with a bio-weapons programme.

Oops.

So . . . someone remind me again just how successful the Kelogg-Briand Pact was? Never heard of that one? Oh. That was the one that outlawed war. And then the Second World War happened.

Oops again.

Deterrent theory is, in essence, a very simple idea. You deter someone from attacking you by maintaining a force sufficient to inflict unacceptable damage on him if he does attack you. Here's another surprising idea: the United States and the Soviet Union, throughout the course of the Cold War, never went after each other precisely because both of them had nuclear weapons. In other words, the price of conflict was just too high for either one to pay. We came close, in '62 with Cuba, then again in '73 over the Mid-East Follies, and then again in '83 when a dying and paranoid Andropov was convinced that we were about to sucker-punch Russia. Look up Operation RYAN if you want a nice, sleepless night. Or the exercise Able Archer, which started the whole thing.

But the point is, everybody backed down each time, because the price of trading nukes was unacceptable. The moral of the story being that you cannot deter someone if you have nothing to deter them with. Which is an idea that seems to be lost on our oblivious President.

Ah, but the whole of this tale has not been told. The President, it seems, believes that we, as Americans, have a moral obligation to rid the world of nuclear weapons, for we all bear a "blood guilt" that we must expiate. As in:

"He said all states with nuclear weapons should be involved. But he said it is clearly fitting that the United States takes the initiative. "As the only nuclear power to have used a nuclear weapon, the United States has a moral responsibility to act. We cannot succeed in this endeavor alone, but we can lead it, we can start it," he said."

So, not only does the President seem to be ignorant of deterrent theory, he also wants to rewrite history in terms of the Pacific War. One would like to ask him if he knows why we dropped atomic bombs on Hiroshima and Nagasaki. As I recall, it had something to do with forcing Japan to surrender and end the war . . .

Here are some brutal facts, folks. The Japanese did not surrender in large numbers until after the bombings. They did not surrender on Guadalcanal. They did not surrender at Tarawa, Peleliu, Saipan, Guam, Iwo Jima, Okinawa, or in any of the other places they were fought. What they did do was pretty much fight to the last man and try to take as many of the Allies with them as possible.

The Japanese knew full well that an invasion of the Home Islands was coming, and they had elaborate plans to fight it. These were a people who fought to the death on distant coral atolls in the Pacific; do you really believe they would have done any less for their home soil? Folks, the Department of Defence is still handing out Purple Heart medals from the stockpile that was acquired for the invasion of Japan.

Look, more people died in the fire-bombing of Tokyo than died at either Hiroshima or Nagasaki. And I really don't think that slaughtering our way across the Home Islands, which would have cost far more lives than the atomic bombings, was the answer. Do the math. Roughly 160,000 casualties between the two bombings versus the millions an invasion would have cost. You know what? If I were Truman, I make the same decision, and I'm not going to lose any sleep or shed any tears over it.

But I am tired of this idea that we should somehow be ashamed, scream "Mea culpa! Mea maxima culpa!" and run around and do the whole sackcloth-and-ashes routine over how we victimized the poor Japanese. Look up the Rape of Nanking, or the Bataan Death March, or any other example of how the Japanese behaved in the territories they conquered. I'm sorry, folks, but they let loose that particular storm, and now they want to cry about it.

But back to the original point - and yes, I had one - this is just a foolish idea. And it only serves to highlight the complete inexperience this President has. Which, despite all the self-delusion we have to the contrary, does indeed matter, and ideas like this just make the President look like a buffoon. Even good old Joe Biden, way back during the campaign, recognized that Obama's lack of experience was going to be a problem.

If you remember, Biden said that it was likely that the President was going to be "severely tested" by an international crisis provoked because of his inexperience. Because, folks, there are some nasty people out there in the world, and they're going to want to see how far this President can be pushed. And you know what? Floating ideas like this one is only going to make those people want to push harder.

Welcome to change we can believe in.