Archive

March 21st, 2016

Obama's pick could soothe a bruised Supreme Court

    In the current era, it's probably impossible to find a nonpartisan choice for the Supreme Court. But if you did a national search for one, hoping to find a judge's judge, known above all for caution and humility, there's a good chance that you'd settle on Merrick Garland. (Disclosure: I have known Garland for many years, and we are friendly acquaintances.)

    No one should doubt that in terms of the future arc of the law, replacing Antonin Scalia with Garland would greatly matter. But it's important to see exactly why. Above all, he would be a stabilizing force on the court, promoting continuity rather than large-scale change.

    An illuminating example: Texas Sen. Ted Cruz has repeatedly suggested that the individual right to bear arms "hangs in the balance" -- that with another Democratic appointee, a majority of the Supreme Court would rule that the Second Amendment confers no such right. But that's not going to happen.

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Obama makes a smart bet for the Supreme Court

    Merrick Garland is the safest possible pick for President Barack Obama. Extraordinarily well-qualified, moderate and often pro-prosecution, Garland has been considered a potential Supreme Court nominee almost since 1997, when Bill Clinton put him on the U.S. Court of Appeals for the D.C. Circuit. But if he isn't confirmed, it isn't a permanent loss for Democrats. Sri Srinivasan, his much younger near-clone, will still be waiting in the wings as a confirmable moderate Democratic back-up.

    Among court-watchers, it's long been understood that Garland needed unique circumstances to be nominated: The retiree had to be a white man, and the Senate had to be Republican. Otherwise, why would a Democratic president nominate a moderate white man?

    In recent years, the conventional wisdom regarding Garland was that his age -- he is now 63 -- would work against him. Sri Srinivasan, also on the D.C. Circuit, is just as smart as the whip-smart Garland; is only 49; and is South Asian and Hindu to boot, offering a touch of diversity. (Garland is white and Jewish; his almost too WASP-y name is the giveaway clue.)

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Mitch McConnell's stance on Merrick Garland is maddeningly brilliant. And desperate.

    Politically speaking, Senate Majority Leader Mitch McConnell (R-Ky.) can be maddeningly brilliant. That's why his dredging up the 1992 words of then-Sen. Joe Biden on a hypothetical Supreme Court vacancy is rather clever. And desperate.

    Back then, Biden was the chairman of the Senate Judiciary Committee and in a June floor speech he said President George H.W. Bush should "not name a nominee until after the November election is completed." Everything else Biden said 25 years ago was regurgitated by McConnell immediately after the death of Justice Antonin Scalia last month and immediately after President Obama nominated Merrick Garland, chief judge of the United States Court of Appeals for the District of Columbia Circuit, on Wednesday.

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In 1980, the GOP approved a lame-duck Democrat's nominee. He's now on the Supreme Court.

    At a moment of impasse over President Obama's nomination of Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, to fill the Supreme Court vacancy caused by Antonin Scalia's death, it would be useful to remember this example: A powerful U.S. senator asks the president to nominate his brilliant young staff lawyer to a high judicial position. Both are Democrats, but the president is a lame duck, Republicans are poised to take control of the Senate and the staff attorney helped draft and advance controversial legislation in a reluctant Congress. Nonetheless, the nominee is overwhelmingly confirmed, with Republican votes delivered by a die-hard conservative.

    Never in your lifetime? Maybe not, but certainly in mine. And that lawyer now sits on the Supreme Court.

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How the law makes it easier to traffic teenagers

    Can a judicial decision be both tragic and correct? Yes, as the U.S. Court of Appeals for the First Circuit showed yesterday when it upheld the dismissal of claims by underage girls who were victims of sex trafficking facilitated by the website Backpage.com.

    The court acknowledged that the young women had made "a persuasive case" that the company "tailored its website to make sex trafficking easier." Yet it applied the federal Communications Decency Act that essentially shields apps or websites from liability for third-party material published using their platforms. The court concluded that the suit against Backpage couldn't continue.

    The law indeed blocks the suit -- and therein lies the tragedy. The core of the young women's claim was that Backpage intentionally set up its website to enable illegal sex trafficking after Craigslist closed its "adult" advertising in 2010 out of concern that it might be used for exactly that purpose. In particular, the plaintiffs alleged that the website adopted specific design features so that phone numbers could be masked and photos stripped of metadata to make them harder to trace.

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How the Breitbart News debacle explains Donald Trump's success

    For those of you who haven't followed the meltdown of Breitbart News - which has involved multiple resignations, the leak of damning internal strategy discussions, suspensions and reinstatements, and all other manner of inside-baseball journo-gossip - you probably should. The whole thing can help us understand why Donald Trump behaves the way he does. And it suggests that angrily trying to shut him down will only make him more attractive to his followers.

    The two-paragraph version is relatively simple. Michelle Fields, a reporter for Breitbart, claimed she was grabbed by Trump's campaign manager, Corey Lewandowski, in an overly aggressive way. A reporter for The Washington Post witnessed the altercation and Fields' account was later backed up by video.

    The heads of Breitbart - a website that would fairly be described as "in the tank for" Trump - responded with a (very cautious) statement asking for nothing more than an apology. They did not call for the aide's firing or demand that the Donald himself grovel before the injured reporter.

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Hong Kong's declining port heralds a grim future

    A little more than a decade ago, Hong Kong was the world's busiest port. Giant vessels competed to get into the city's berths, waiting to load and unload containers filled with goods manufactured just over the border in China's factory towns. Back then, Hong Kong still expected that its freewheeling commercial culture could change China for the better. And trading -- accounting for almost 25 percent of the city's economy -- seemed like just the industry to lead the way.

    Now those expectations are colliding with reality. Last week, the local government reported that cargo flowing through Hong Kong dropped by 13.8 percent in 2015, capping a dismal year in which the city's port declined to the world's fifth-busiest, dropping behind one-time also-rans Shanghai and Shenzhen. It's likely to get worse: Last year, Deutsche Bank predicted that the volume of cargo moving through Hong Kong will decline by as much as 50 percent over the next decade.

    That's not just an economic blow. For a city that has long valued its independence and distinctiveness from mainland China, it also threatens something of an identity crisis.

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Escaping the Great White Snapping Turtle

    After the voting Tuesday, several folks I know are talking about leaving the country if and when the Great White Snapping Turtle is elected president and of course Canada is the favored destination - English-language predominant, handsome young progressive prime minister, socialized medicine, nonstop air connections, plus parallel geography of rockbound East, Midwestern prairies, and Western mountain ranges. Well, I'm not up for it. For one thing, I'm lazy. And also there is no South up north -- no New Orleans, no Delta blues, no high lonesome tenor singing "Blue Moon of Kentucky," and no strip-mall evangelists proclaiming that Justin Trudeau is the Antichrist and was born in the Bronx - and so Canadian culture is of limited range. A nation of bookkeepers. It is missing the apocalyptic.

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March 20th

Rubio’s Exit and the GOP’s Spoiled Buffet

    Remember the euphoria with which the race for the Republican presidential nomination began? Such a buffet of political talent! Governors and ex-governors galore!

    By Tuesday those high spirits had deflated to a mewling plea for some indication — any indication — whether the party’s aghast traditionalists would have to make up with Donald Trump, make nice with Ted Cruz or make plans for bedlam at the convention.

    “Clarity” was a wish they kept uttering, a word I kept hearing. It made them sound like fog-enveloped travelers or stuffed-up flu sufferers waiting for the Sudafed to kick in.

    But Florida, Ohio, North Carolina, Illinois and Missouri weren’t at all certain to bring relief, not even with Marco Rubio’s devastating loss to Trump in Florida and suspension of his campaign. It was a mesmerizing development, given how long many Republican leaders and pundits clung to their forecasts of his eventual transcendence, which was like Godot: right around the bend, coming at any minute, just a matter of waiting, waiting, waiting …

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Eating in the Dark

    I’m sick of writing about labeling genetically engineered foods.

    I’m sick of it because there’s really one thing to say, and I’ve said it before: Americans have a right to know how their food is produced. Period.

    The fact is that most processed food in the supermarket is genetically engineered. That means it includes ingredients that have genes from other species inserted in their DNA. Nearly every single American has eaten genetically engineered foods, but many of us don’t know it.

    Does it matter? That’s up to each individual.

    Just like it’s up to you whether you care if your food is kosher, gluten-free, low-carb, or anything else. You can decide whether it’s worth it to you to buy cage-free eggs or not, because the eggs are labeled. That doesn’t take freedom away from someone else who wishes to make a different choice than you.

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