Double Negatives Gone Awry

Dre Bly, of the Detroit Lions, in apologizing for his comments made about his team's quarterback:

"I'm not no negative guy."

I think by using the double negative in that situations, he expressly shows that he is, indeed, a "negative guy."

Ah, the beautiful of people who should be very grateful they have world class athletic talent.

Litmus Test and Activities

From the NYTimes -

"This is the type of nominee I've been asking for," Senator Brownback said, adding that he was convinced that Judge Alito was "open to a review of cases," even though they did not explicitly discuss Roe v. Wade, the 1973 Supreme Court decision establishing a constitutional right to abortion.

Brownback's got a litmus test, that much we knew. But is a activist judge one who just continues to uphold precedent or one who changes the law. Is an activist one who is conservative (little C) or one who is dynamic with regards to the law.

I leave that up to you. I just don't like the word "activist." Abortion has been explicitly a constitutional right for 33 years. At some point, and I believe that it has happened, it is the status quo. Only an activist judge would overturn Roe completely.

And yes, I know there are plenty of things I have to write about, including the Tampa controversy.

Cornell on the ID Fight

From the Cornell Daily Sun:

Drawing from sources ranging from Cornell’s founders to Voyager space missions, Interim President Hunter R. Rawlings III condemned the push to teach intelligent design in public schools Friday. The attack came during the president’s State of the University Address before a joint session of the Board of Trustees and University Council.

Calling intelligent design “a religious belief masquerading as a secular idea,” Rawlings made the unusual move of addressing a larger public policy issue rather than giving an assessment of the University’s recent performance and upcoming initiatives.
...
“We should not suspend, or rather annul, the rules of science in order to allow any idea into American education. Intelligent design is a subjective concept. It is, at its core, a religious belief,” he said.
...

The current widespread belief in intelligent design, Rawlings argued, made it a good subject for social scientists and humanists, but its lack of scientific basis left it outside the bounds of biology and evolutionary study.

“This is above all a cultural issue, not a scientific one,” he said.

Alas, Cornell has it's idiots too:

Hannah Maxson ’07, president of the Intelligent Design Evolution Awareness Club, state in a press release that Rawlings’ speech had a “blatant disregard for the facts concerning Intelligent Design.” The statement defended the belief: “It follows the principles of the scientific method, scorns the bias of either religion or naturalism, and attempts to follow all the available evidence to a valid conclusion.”

The statement added that “ID is testable and falsifiable, and so far it’s [sic] predictions have repeatedly been shown to be accurate.”

“We’re disappointed that [Rawlings] seemed so closed minded to all this,” Maxson told The Sun.

It's weird that in an Ivy League University there are people who can argue that ID is testable. By its very nature, it is not. ID propounds that some "force" (i.e. God) controls evolution. Religion cannot be tested; hence, the notion of faith.

But, go Hunter!!

JFK v. Dobson

JFK while he was campaigning for the Presidency, Sep. 12, 1960:

"I believe in an America where the separation of church and state is absolute--where no Catholic prelate would tell the President (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote--where no church or church school is granted any public funds or political preference--and where no man is denied public office merely because his religion differs from the President who might appoint him or the people who might elect him."

James Dobson, of Focus on Family, in explaining why he supports Harriet Miers' nomination:

"Harriet Miers is an Evangelical Christian, that she is from a very conservative church, which is almost universally pro-life, that she had taken on the American Bar Association on the issue of abortion and fought for a policy that would not be supportive of abortion..."

It's a tragedy when we've moved from a country in 1960 where JFK had to assure people that his religion would not dictate his decisions to where in 2005, a Supreme Court nominee's religion reassures people about her decision.

I've never heard before of the judicial philosophy of "Christian" or "Evangelical." I wonder if that's open to anyone, because it surely seems to cut against drawing a judiciary of Americans, regardless of their religion or lack thereof.

In the words of Justice O'Connor, whose retirement has prompted this, there is a violation of the Establishment Clause where government actions turn on the religion of the citizen. She wrote:

"The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition...[by] endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.

The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion."

I would hope that Pres. W would take the Justice's words to heart. Karl Rove hasn't. The above-Dobson quote is Dobson recounting his conversation with Rove that led him to approve of the Miers nomination. Rove is staking approval on religion. A true shame.

Conservative Litmus Tests, Take 2

Not regarding nominee Meirs, but as a general statement, Sen. Sam Brownback (R-KS) "had said repeatedly that he wanted the next nominee to have a record demonstrating a willingness to reconsider Roe v. Wade, the landmark decision favoring abortion rights."

But alas, they don't have a litmus test.

If the President has no litmus test for his nominees, what should we make of his response to criticisms that Miers is not conservative enough? "Trust me" means what? That Miers will support Roe as a continuing precedent or that she has will surely vote to overturn it. Hm...

"Tell me more, tell me more, did you get very far."

This is based on a video available here.

When asked nominee Harriet Miers' view of abortion, Pres. Bush responds that he doesn't know. To reassure criticizing conservatives, however, Pres. Bush says that they should trust his judgment.

This argument reminds me of two guys discussing a girl.

- "Was she good in bed?"
- "I don't know, but trust me, she was fantastic."

Tomorrow, I will address litmus tests and Sen. Brownback.

Saving pets at the cost of people...

This is just ridiculous. Three Congressmen, Reps. Lantos, Shays and Frank, "are sponsoring a bill that would require that state and local disaster preparedness plans required for Federal Emergency Management Agency funding include provisions for household pets and service animals." These representatives are three of my favorites, so I hate to write this. But my golly, who are the most important players in a tragedy? The people. Any penny spent on saving a pet is a penny that should have been spent saving a person. Even Pat Robertson deserves to be saved over someone's dog any day of the week.

The article quotes Rep. Lantos as saying, "''I cannot help but wonder how many more people could have been saved had they been able to take their pets." Additionally, the article cites that the sponsors were "disturbed that some Hurricane Katrina victims refused to leave home because they couldn't take their animals with them." I am disturbed about that too. But there are more cost effective ways of rescuing people than by providing money to save their pets.

In a grand evacuation or rescue effort, precious dollars, space and time should be dedicated to people, not animals. I'm sorry but that who should be more important.

For an ironic result of what this law would potentially bring, I cite to this picture of unknown origins. It may or may not be accurately telling the tale that it purports to tell.

Prayer as Protection

Sitting on my couch watching coverage of Hurricane Katrina a few weeks back, I came across Pat Robertson on the 700 Club profiling a woman who lived on a Caribbean Island (I forget which one). The story focused on how this Christian woman, in order to escape the horrors of a massive Category 5 hurricane pounding on this island, prayed instead of evacuating. As debris went flying around her and building were torn apart, her little restaurant survived thanks to her prayers.

Several religious leaders have said that Hurricane Katrina struck New Orleans as a punishment for the city's infamous lifestyle. One Israeli rabbi said the hurricane was retribution for the US's support of the Gaza withdrawal. Pat Robertson, I believe, said it was punishment for New Orleans' annual Mardi Gras bonanza. These statements by religious leaders seek to place the blame for the destruction of a city on the actions of its inhabitants and to directly, in an ancient Biblical way, link crime and punishment. Whether or not God directly punishes people is immaterial. Judeo-Christian leaders should recall the story of Sodom and Gomorrah. As debaucherous as those cities were, Abraham bargained with God to save the city if 10 righteous people were found. For TEN people, God would save the cities. Additionally, after the Flood, God promised Noah not to destroy humanity again. God does not provide for wholesale destruction as any sort of wakeup call or punishment. Ten righteous people can save a city. I'm sure there were ten righteous people in New Orleans. This wasn't the hand of God as punishment for anything.

Every geographic location in the world is at the risk of some natural disaster. A city built below sea level in a tropical environment is at the risk of flooding. That is exactly what happened.

As for whether prayer can save. There is a story in the Jewish folklore about a man stranded on an island with no hope of rescue. All he can do is pray for God to rescue him. Finally one day, a boat arrives and offers to rescue the man. The man tells the crew of the boat, "Don't worry, God will save me. You can go on your way." Several days later, the man is still waiting for God to rescue him when another boat arrives. Again, the man turns down the boat crew's offer to help him. A few more days pass and another boat offers to rescue the man. Once more, the man rebukes the crew's offer. Soon thereafter the man dies. When he gets to heaven he sees God and asks God why God didn't save him. God responds, "I sent three boats to save you. What more do you want from me?" The bottom line - prayer without any self-help action won't go so far. Riding out a storm on the basis of prayer is a bad gamble. Pat Robertson's message that prayer will create an invincible forcefield is a shortcut to not surviving a hurricane.

Biden prefers Rehnquist to Scalia

Realtime Blogging. I'm listening to the confirmation hearings online and writing this as Sen. Feinstein asks witnesses questions.

Sen. Biden just concluded that if Roberts was another Rehnquist, he would probably vote to affirm him, in contrast to another Scalia. Biden may prefer to take that back, as Prof. Geoffrey Stone argues here that, in the area of 1st Amendment law and Free Speech, Scalia has been better at upholding individual rights than Rehnquist.

Stone does empirical research; I'm not. Rehnquist was a politically-oriented Justice who reached policy goals. Scalia, while being wrong incredibly often, is quite principled. He just has wrong principles. That is why Scalia voted the way he did in Kyllo, where he found thermal infrared searches without a warrant violate the 4th Amendment, and Rehnquist saw no constitutional violation.

Sen. Biden, you shouldn't support either a Rehnquist or a Scalia. They are both wrong, even if for different reasons.

Federalism and Disaster

Conservatives, including Pres. W's cronies, believe in a strong federalism divide separating state and federal. Could this philosophy be the cause for FEMA and W's failures in responding to Katrina fallout? Could W et al. have thought, "let the state and local governments handle this, as federalism, blah blah blah."? And what did we learn from this, that the federal government is better prepared and better equipped to responding to large massive disasters than local governments. Perhaps 200 years ago, a state could have sufficient resources accumulated under a theory of state independence to properly respond to a disaster of this magnitude. However, as American government and federal-state relations have evolved, it is clear now, that local and state government do not have sufficient resources to care for this.

But in the meantime, Congress has mandated that local schools teach another topic. Granted, it's the Constitution, but Congress shouldn't be controlling curricula. How come federalism is a feel-good sort of principle? It works when conservatives can make themselves look good to their overly patriotic constituents, but not when it would save lives and rescue a city.

What's Popular Is Not Always Right

Sorry no posts, but I was out of the country. Still on vacation, but saw this article and wanted to do a quick post.

Let's say, hypothetically, that 2/3 of Americans didn't agree with the heliocentric model of the solar system (Sun in center), but believed that the Earth was the center. Or that the Flat Earth Society eventually won the popular opinion battle (but not the reality). Does this mean all of a sudden, schools should teach these theories? These theories are best taught only in the context of historical thinking and error. As wrong theories propounded by the establishment. The victory of alternatives over these theories mark important moments in scientific and cultural history.

So then, why does this matter? "...A poll released yesterday found that nearly two-thirds of Americans say that creationism should be taught alongside evolution in public schools...The poll found that 42 percent of respondents held strict creationist views, agreeing that "living things have existed in their present form since the beginning of time." This is from an NYTimes article.

It doesn't matter. Just because it is popular, doesn't mean it's right. And if it's not right or if it religiously-based, it shouldn't be taught. That is that.

If "41 percent of respondents wanted parents to have the primary say over how evolution is taught, compared with 28 percent who said teachers and scientists should decide and 21 percent who said school boards should," then parents should do that on their own time, not on the public dollar in the public school. We don't ask for schools to teach about Jesus's lessons, why God's creation?

Why is this such an issue?

W on ID

Speaks El Presidente -

President Bush said Monday he believes schools should discuss "intelligent design" alongside evolution when teaching students about the creation of life.

During a round-table interview with reporters from five Texas newspapers, Bush declined to go into detail on his personal views of the origin of life. But he said students should learn about both theories, Knight Ridder Newspapers reported.

"I think that part of education is to expose people to different schools of thought," Bush said. "You're asking me whether or not people ought to be exposed to different ideas, the answer is yes."

Thanks W., for your input. Education should expose people to all appropriate theories on a topic, not religious fictions made up as a sword against secular, educational reality.

Could have been....

Could have been so beautiful
Didn't need to be so right.
Could have been my justice
If only, Dub picked Posner

- Poetry by Cepspeak (adapted from Tiffany).

Quick thoughts on Roberts - He's qualified. I don't like him, would not have picked him. On some level, however, I must defer to the President's selection. If I were a Senator, I would not vote for him. Nonetheless, I would not filibuster. Roberts is on the right-wing, no doubt. But he is not on the fringe of reasonability. He's wrong, not unqualified.

Scandals

1. Presidency won in his brother's state by the Supreme Court
2. Either lying or being incredibly stupid about intelligence that lead his country into war
3. Friendships with the leaders of the countries from which the 9/11 terrorists came from.
4. Some shady dealings with those leaders after 9/11
5. Vowing to find the mastermind behind 9/11 almost 4 years ago. Instead, invaded Iraq based on lies (see #2)
6. Never finding that mastermind.
7. Having his henchmen leak false information about his rival for President in 2000 (rumors of McCain and/or his wife's drug use) and in 2004 (Kerry and the Boat people)
8. Halliburton
9. His chief advisor leaking the name and/or supplying key information about a covert CIA agent.

At some point, whether these border on illegal or not, at the very least, they show an air of impropriety. As my father told me, your reputation is all you have. W's reputation isn't worth all the WMDs in Iraq. It's all down the tubes.

(This list is all just off the top of my head. I'll add more as I remember)

"Uniter not a Divider"

Dear Pres. W,

If you are truly a "uniter, not a divider," then choose AG Gonzales to replace Justice O'Connor. While Gonzales would not be my optimal solution, you and the Republican Senate have a right to choose your own candidates. Gonzales is a conservative.

Why Gonzales and not any alternative right-wing candidates? Because you are a uniter not a divider. Therefore, you should choose a moderate candidate. I'm not saying make everyone happy, but do take into account those people who do not agree with you completely.

Gonzales is not perfect, but he is the best of all alternatives.

Love,
Cepspeak

PS - I would nominate Judges Posner or Kozinski over Gonzales, but I don't think that's going to happen. But just in case you want my opinion.

5th Amendment Takings & Your Life

From a right-wing paranoia case, concerning the Supreme Court's (wrong) decision in Kelo v. New London, in which the Supreme Court interpreted the "public use" requirement of the Fifth Amendment's Taking Clause as allowing the condemnation of private property for private development that is "in the public benefit."

Most individual parcels of land provide relatively little tax money for the government. Our Supreme Court has now ruled that a local government's quest for more money is a good reason for allowing them to remove a private person's property and hand it to another private entity, based merely on a possibility that it might make the local government richer.

Following a similar logic, sick or infirm people whose needs are "too expensive" could be required to forfeit their lives in the name of the public benefit.

While I disagree with the Kelo decision, it is not going to be because its principles will be applied to allow euthanasia. Euthanasia has its own constitutional and moral barriers that I do not believe can ever be broached in our system. And rightfully so. The Constitution grants the government the right to take property if certain conditions are met that are relatively low - government can take, so long as government can pay (In Calabresian terms, it's a liability rule - for an academic description, see here.)

Life, on the other hand, carries a property rule. It can only be taken with due process and only in certain situations - death penalty for capital offenses being the only one (Pre-quickening fetuses do not have a "life" that is protectible). Government in enjoined from taking life with a high standard of due process required. Deprivation of property carries no such similar protective measures.

Conservative Litmus Tests

Sen. Lindsey Graham (R-SC) was on Fox News Sunday this morning. He said that the President shouldn't have a litmus test for a potential Supreme Court nominee. I agree. I like that.

Sen. Graham is decently conservative. He's not a Frist, but I don't think he's far from that end of the spectrum.

Then, today's NYTimes had an article about conservative opposition if Pres. W nominates AG Gonzales to replace Justice O'Connor. The opposition stems mostly from Gonzales' opinion as a Texas Supreme Court Justice where he struck down a Texas law that mandating parental notification before a minor can get an abortion. This is the root of Gonzales's moderation.

No litmus testing for Justices?? HAHA....the right-wing has litmus tests. Their issues? Abortion, prayer in school, 10 Commandments displays, and whatever makes this country into a theocracy.

Daily Show Bias

So much I should write about - the 10 Commandments cases, Justice O'Connor's retirement, conservative threatening to be upset if AG Gonzales is nodded for the Court - that I'm just going to talk about the Daily Show briefly.

I love this show. Watch it whenever I can. Usually I just watch the news and the stories; I'm not a huge fan of the interviews. But I watch it all when I can. I've noticed lately that the stories are getting much more anti-Bush, anti-Fox and anti-Republicans. But I do not think that this reflects a bias, however.

While Kerry was campaigning, Daily Show surely went after him in equal proportions as his opponent, el Presidente. Now that W has no opponent, however, he is being judged on his own merits. As a few media outlets are starting to theorize with W's declining job approval ratings, W no longer can frame himself as "better" than an opponent, now he must stand on his own merits. For that he fails.

The Daily Show has turned into a seemingly left-wing oriented show because they concentrate on the Republicans. The Republicans have no opponents right now. The Left is quiet compared to the big news of the day - whatever Frist and Santorum are cooking up, Iraq, etc. Republicans are standing on their own and must face the firing squad that has no distraction. It is about time that the Republicans were evaluated on their own policies and programs. Thank you to the Daily Show for bringing this forward.

That being said, I still think Jon Stewart is a Democrat.

PS - I support Judge Richard Posner for the Supreme Court. I may not agree with him, but he's damn smart.

Scalia and the Judeo-Christian Tradition

As Prof. Jack Balkin (Law, Yale) alludes in this post. Justice Scalia's dissent in the Ten Commandment cases that came down today, specifically in McCreary County v. ACLU, implies that Ten Commandments displays and government recognition of God descends from tradition. He interprets the Establishment Clause in light of how the early government functions (as opposed to Justice Stevens' reliance on the text itself).

Prof. Balkin states that

"Justice Scalia might respond that tradition going back to the very founding of our country secures the inclusion of Jews and Muslims, but not other religious minorities and not agnostics and atheists. If this is indeed his argument, I must beg to differ. The widespread notion of a "Judeo-Christian" heritage is very recent, a product of the twentieth century-- the idea of a Christian nation was far more common in the 19th century."

As Balkin readily points out, what was originally a Christian society has turned into, in Scalia's mind, a Judeo-Christian-Islam triad of monotheism. But there is no reason to include Jews or Christians in this mix except for the fact that George Washington penned a very famous letter to the Jewish community of Newport, Rhode Island in 1790. In the letter, Washington wrote that

"All possess alike liberty of conscience and the immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights."

Because of this, Jews are part of the Establishment Clause monotheism.

If this is indeed Scalia's thesis, he is far off, and I see nothing that prevents him from saying that non-Christians do not deserve the protections of the Establishment Clause. After all, Christians make up 76.5% of the American population. See here.

Scalia believes in a popular constitutionalism in this realm. He writes, "the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors. Our national tradition has resolved that conflict in favor of the majority." If that is the case, then the majority has no limit. The three-quarters of Americans who are Christians can decide that they do no like having non-denominational or interfaith Ten Commandments displays. Indeed, the Texas monument was the consensual product of a committee of leaders from Protestant, Catholic and Jewish groups. An idea of popular constitutionalism would allow the next group to cut out any groups that are unnecessary to their majority.

If all that includes Jews and Muslims in the "tent" is Washington's letter, there is not much protection. Scalia's arguments lead directly to a Christian nation. As he argued in the Oral Arguments for Texas case, Van Orden v. Perry, the Ten Commandments "[are] a symbol o fthe fact that government comes...from God. And that is...an appropriate symbol to be on State grounds."

To Scalia, the government can proclaim that its power comes from God and/or Jesus Christ, a statement that many Americans disagree with and find offensive. But most importantly, it is a statement that the Constitution censors the government from saying.

In a great irony, the Ten Commandments are highly important to Christian faiths. Much more so than to Jewish and Muslim groups. To the latter, the Ten Commandments are just more laws, not any more or less special. To the former, they are former foundational laws.

Hm....Secular or Religious Reasons?

"Gov. Rick Perry traveled to an evangelical school here on Sunday to put his signature on measures to restrict abortion and prohibit same-sex marriage."

This article makes me doubt that "pro-family" means anything more than "pro-Christian." He goes to an evangelical church to sign an anti-abortion and an anti-same-sex marriage laws. Why in a church? If there are secular justifications for these laws, then maybe the statehouse is the best way to honor them? If these were pro-family, why not sign the bills at a Little League game that will do more to honor families than restrict abortion or same-sex marriages ever will.

To borrow some points from the Daily Show and Sports Illustrated, Texas features one of the worst public school program in the country. Yet the responses to the problems are strict anti-education laws, promoting the largest city's school superintendent to Secretary of Education and proposing a law to curtail cheerleading. Texas needs to address its problems. Symbolism won't accomplish much.

Live by the sword, die by the sword

During the early New Deal, many progressive liberal initiatives were rejected by the Supreme Court as outside the bounds of federal power under the commerce clause. In 1937, one case (Wickard v. Filburn) substantially altered the view of what constitutes commerce clause. In doing so, it opened the door to pervasive federal regulation in all aspects of life. I personally agree mostly with the Court's view. I'm still struggling with some of the issues, but for the most part, the doctrine is sound and agreeable from a legal perspective.

In this vain, some terminally ill residents of California challenged the FDA's proscriptions against medicinal marijuana as being beyond the reach of Congress's power under the Commerce Clause. This progressive initiative is being killed by the same sword that progressives championed 70 years ago. The Supreme Court held today that medicinal marijuana and the regulation thereof falls within the power of the federal government. This wasn't a difficult issue for the Court.

Not so ironically, this case was paid for by a conservative libertarian think tank that desires to return commerce jurisprudence. Justice Thomas subscribes to many of their beliefs.

The Supreme Court majority noted that all is not lost. The terminally ill aren't bound by the Court's decision insofar as the democratic process is available to them. If marijuana has medical benefits, then the FDA should recognize them. The system works, so long as the FDA does not become (or stay) a political body. The FDA, as I may have written before, should be a medical body, not a political or moral one.

Today's decision was the correct one. Unfortunately, the Commerce issue which pervaded and dominated the case was clouded by the marijuana issue.

Prosyltizing at the Air Force Academy

From an article in the Austin American-Statesman (sorry no link):

As a number of newspapers have documented, the Air Force Academy in Colorado Springs, Colo., has essentially established evangelical Christianity as its official religion. The examples are legion. Last season, the football coach hung a banner in the locker room laying out a "Competitor's Creed," including the lines "I am a Christian first and last" and "I am a member of Team Jesus Christ...."

Campus chaplains have encouraged proselytizing among the students, and younger cadets who skipped out on prayer services have been forced by their seniors to march back to their dorms in a ritual called "heathen flight." On one occasion, every seat in the dining hall was covered with a flier advertising a showing of "The Passion of the Christ," including the tagline, "This is an officially sponsored USAFA event...."

[N]o wonder the conservative media, normally obsessed with the role of religion in public life, would have so little to say about this scandal. It undercuts its long-standing effort to portray the religious right as merely defending itself....

[T]he situation at the Air Force Academy...does not represent random excess by the religious right. It's an embodiment of the religious right's vision of America. When asked about the allegations, a spokesman for Focus on the Family replied, "If 90 percent of cadets identify themselves as Christian, it is common sense that Christianity will be in evidence on the campus."

This comment is telling, because it basically jibes with what religious conservatives have been saying for a long time. Most Americans are Christian, therefore the United States is a Christian country. Therefore, institutions of the state ought to promote the majority's religious views, and everybody else ought to shut up and take it....

[A]lthough the religious right doesn't [at present] have the capacity to impose its views on the rest of the country, it certainly has the intent to do so. Conservatives may dismiss fears of a Christian theocracy as liberal hysteria. Theocracy, though, is not an inaccurate description of life at the Air Force Academy.

This is just ugly. The gov't has to be neutral and cannot force anyone to be religious. Stupid religious-rightization of America...

Senate Compromise

I don't like nominees Owens, Rogers or Pryor. If I were a Senator, I would vote against them. They are ideologically extreme who substitute, inappropriately, political judgment for judicial philosophy. That being said, I also don't like the nuclear option. Not to say I like filibusters, but they serve an important function by creating a more centrist political process. Under the Median Voter Theorem, all decisions in a legislative (or multiple-membered) body are controlled by the median voter (or the voters adjacent to decision point). When the filibuster is available, it, like presidential veto power, moderates final decisions.

Government in not a win-lose contest. It is not a zero-sum game. The goal is for society's benefit best achieved through the deliberations of multiple opinions and viewpoints. Therefore, it bad when, about the Senate compromise, Senate Republicans talk about their victories from the compromise. Said the Times;

Dr. Frist's advisers said that he would not be blamed by conservatives for the defeat, arguing that the heat would be taken by Republicans who agreed to the deal. And they said that in the long run, Republicans would view the development as a defeat for Democrats, no matter the perception this week.

Mr. Minnery [of the Focus on Family] said that the outcome "enhances Bill Frist's stature. He took a principled stand. And the stool was kicked out from under him by the cabal of Republicans who joined with the Democrats."

The "cabal" had the goal of preserving Senatorial tradition, integrity and respect. This compromise reflecting a fear of undermining Senate procedure, not a respect for a Senatorial competition. There was no defeat. There was simply the understanding that the tradition served a purpose that should not be undermined by the nuclear option.

Congressional Steroid Testing Policies

Sorry to change the focus of this post but, (1) I reserved the right to discuss baseball and (2) I like legal topics. Today, therefore, I want to address Congress potentially legislating steroid testing plans for professional sporting leagues. There is a limit on public sector searches in the Constitution. The Fourth Amendment requires that searches be based on probable cause and have a warrant issued. Certain exceptions apply to this. Namely, in emergencies or where the warrant would undermine the search, it need not be obtained. These exceptions are narrow however. Private sector employers have no similar restrictions. The only restrictions on private employers are Congressional-created.

When Congress tells employers to conduct a search, it means the search is governed by the Fourth Amendment. That being so, Congress cannot require searches for professional athletes. There is no emergency investigations, no immediate dangers to society, no individualized suspicion and no action upon which Congress can condition participation.

While steroids may be a problem, Congress should get back to what it can govern and not act like an out of control legislature that gets involved in the issue du jour just because it's interesting.