Un-Reserved

Swan song for the death penalty? Benjamin Wittes hopes SCOTUS will defeat the public will on the long march rather than causing another backlash with a judicial fiat. But will someone yell “Freebird!” if SCOTUS takes the “In-A-Gadda-Da-Vida” approach? And will Roberts play along or change the tune?

In large measure the shift emanates from a change of heart in what were the Court’s two swing justices: Anthony Kennedy and the soon-to-retire Sandra Day O’Connor. Once solidly part of the bloc that deferred to state convictions and procedures, both evidently had second thoughts. Back in 1991, for example, O’Connor wrote the Court opinion refusing to even consider the case of Roger Keith Coleman . . . [openning], “This is a case about federalism.” A decade later, however, she was singing a different tune. “Serious questions are being raised about whether the death penalty is being fairly administered in this country,” she said in a 2001 speech in Minnesota. “Minnesota doesn’t have it, and you must breathe a big sigh of relief every day.”

Kennedy’s shift has been just as dramatic. In 1989, for example, Kennedy signed Justice Antonin Scalia’s opinion upholding the death penalty for people who committed their offenses as juveniles. This year he wrote the opinion striking down the juvenile death penalty, and in doing so he explicitly repudiated several of the methodological premises of the Scalia opinion he had signed.

It has been noted elsewhere that the courts act where there is already some support in public or governing elite opinion. So the following passage provides context for the two jurists shift:

As DNA exonerated growing numbers of prisoners through the 1990s, the public grew more skeptical toward capital punishment in general, realizing that even when juries are sure of a person’s guilt, they are sometimes dead wrong. Although polls still show majority support for the death penalty, that support is shrinking. Juries are handing down fewer death sentences. Executions countrywide, after reaching a modern-day high of ninety-eight in 1999, declined to fifty-nine last year. Judges are not immune from the anxieties that have led to these trends.

A death penalty opponent, Benjamin Wittes is actually against the court completely abolishing the death penalty right now.

In their ill-fated 1972 decision in Furman v. Georgia—which came down at a time when capital punishment was on the decline anyway—they effectively struck down the death-penalty statutes of every state in the country that had them. The intense public reaction against the decision provoked many states to rewrite their capital-punishment laws to comply with the Court’s new standards—much as the current backlash against judicially mandated recognition for gay marriage is prompting state constitutional amendments that limit marriage to heterosexual couples. [ . . . ] By denying the public the option of a penalty that, although disfavored by elites, was supported—then as now—by much of the polity at large, the courts intensified public commitment to it. With capital punishment once again on the wane, justices uncomfortable with it would be deeply foolish to repeat that mistake.

So the left wing is raising bureaucratic obstacles instead of openly standing against the will of the people.

Despite O’Connor’s retirement, the Court’s new approach seems likely to impose significant constraints on capital punishment, but ones that will be largely invisible to the public. The Court will probably not be striking down many laws, but the justices will tighten the screws by scrutinizing individual cases enough to further isolate the death penalty regionally and to raise its political and financial costs.

It seems to me that the answer is in the blogosphere: lawyers calling out the trends and individual cases, perhaps with allied social scientists and medical/ forensic experts, by justice and groups of justices over time. Every lauditory column from the organ formerly known as the Paper of Record should be answered or even led by a swarm of reasoned, documented approbrium.

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Also of note in The Atlantic: Robert Kaplan’s latest Imperial Grunts

The essence of military “transformation”—the Washington buzzword of recent years—is not new tactics or even weapons systems but bureaucratic reorganization. In fact, such reorganization was achieved in the weeks following 9/11 by the 5th Special Forces Group, based in Fort Campbell, Kentucky, whose handful of A teams (with help from the CIA, Air Force Special Ops embeds, and others) conquered Afghanistan.

The relationship between 5th Group and the highest levels of Pentagon officialdom had, in those precious, historic weeks of the fall of 2001, evinced the organizational structure that distinguished al-Qaeda and also the most innovative global corporations. It was an arrangement with which the finest business schools and management consultants would have been impressed. The captains and team sergeants of the various 5th Group A teams did not communicate with the top brass through an extended, vertical chain of command. They weren’t even given specific instructions. They were just told to link up with the indigs—the Northern Alliance and also friendly Pashtoons—and help them defeat the Taliban. And to figure out the details as they went along.

The result was the empowerment of master sergeants to call in B-52 strikes. Fifth Group was no longer a small part of an enormous defense bureaucracy. It became a veritable corporate spinoff, commissioned to do a specific job its very own way, in the manner of a top consultant.

After the Secretary of Defense applauded this, his organization throttled it.

But as time went on, that operating procedure came to an end. Now what had previously been approved orally within minutes took three days of paperwork, with bureaucratic layers of lieutenant colonels and senior officers delaying operations and diluting them of risk. When hits finally took place, they more than likely turned up dry holes. One of the basic laws of counterinsurgency warfare, established in the Marines’ Small Wars Manual (1940) and the British Colonel C. E. Callwell’s Small Wars: Their Principles and Practice (1896), was being ignored: Get out of the compound and out among the local people, preferably in small numbers. Yet the CJTF-180 in Bagram, by demanding forms and orders for almost every excursion outside the firebase, acted as a restraint on its Special Forces troops, whose whole purpose was to fight unconventionally in “small wars” style.

Summary:

Several years into the war on terrorism, one would think that Pashto would be commonly spoken, at least on a basic level, by American troops in these borderlands. It isn’t. Nor are Farsi and Urdu—the languages of Iran and the tribal agencies of Pakistan, where U.S. Special Operations forces are likely to be active, in one way or another, over the coming decade. Like Big Army’s aversion to beards, the lack of linguistic preparedness demonstrates that the Pentagon bureaucracy pays too little attention to the most basic tool of counterinsurgency: adaptation to the cultural terrain. It is such adaptation—more than new weapons systems or an ideological commitment to Western democracy—that will deliver us from quagmires. [emphasis added]

There is a name and a face associated with the CJTF and with responsibility for funding and conducting language training. If Kaplan is right in his assessment of the constraints on SF, there are actually specific bellybuttons to push under wartime circumstances. If someone objects to beards, someone else can send someone a short note about prio

The Weekend Journal’s Houses of Worship column “A Purpose-Driven Nation?” was spiteful this week. It started well:

Paul Kagame, Rwanda’s president, was so impressed by Rick Warren’s best-selling book, “The Purpose-Driven Life,” that he invited the founding preacher of California’s Saddleback Church to come to his country. Mr. Warren not only accepted but asked his network of believers to come to Rwanda in small groups to plant churches, care for the sick, educate the citizenry and assist the poor.

But the columnist, Alan Wolfe, is not well pleased. Indeed, he was patronizing to Rick Warren:

Mr. Warren’s message to the Aspen audience was similar to the one he offered Rwandans at Kigali’s Amahoro Stadium in July: Spiritual emptiness allows evil acts to occur. If only evil were so simple. Many religious figures in Rwanda acted heroically in the face of genocide, but not all of them did. [ . . .] Belief in Christ by itself offers insufficient protection against evil. Mr. Warren should read Joseph Conrad or, if his tastes are more contemporary, Philip Caputo. [ . . . ]

As if Mr. Warren claims that religiousity is the antithesis of spiritual emptiness. I wager my next paycheck that Rick Warren finds “whited sepulchers” in his bible faster than Mr. Wolfe can in his, or at least that Mr. Warren can locate the following string of quotes faster than Mr. Wolfe:

Many people try to use God for their own self-actualization, but that is a reversal of nature and is doomed to failure. Your were made for God, not vice versa, and life is about letting God use you for his purposes, not your using him for your own purpose.
[ . . . ]
You have a choice to make. You will be either a world-class Christian or a worldly Christian.
[Worldly Christianity’s] a “me-first” faith: How can God make my life more comfortable?
In contrast, world-class Christians know they were saved to serve and made for a mission.
[ . . .]
The opportunities for normal, everyday Christians to become involved in short-term international missions is now literally limitless. Every corner of the world is available to you — just ask the travel industry.
[ . . . ]
I urge you to save and do whatever it takes to participate in a short-term mission trip overseas as soon as possible.
[ . . . ]
The Great Commission is your commision, and doing your part is the secret of living a life of significance.

Ahh, but the material world is so complex! Mr. Wolfe appeals to his sophisticated WSJ audience:

Tackling Africa’s problems inevitably means addressing questions of economics and politics. Is there a Christian position on export diversification, energy subsidies, currency convertibility ratios, agricultural overcultivation or civil-service reform? That Rick Warren is serious about overcoming Rwanda’s poverty is unquestioned. That he and his volunteers have any expertise or interest in economics and politics is unlikely.

As if a social science academic had a better grip on real economics and real private or public sector leadership than the business and community leaders who make up the lay leadership of the churches Mr. Wolfe thinks so isolated from the bigger world:

Because of Mr. Warren’s efforts, significant numbers of American Christians will learn about the harsh realities outside their relatively comfortable lives.

That sentense throws all those posters and special missionary offering envelopes in every little church across this land through all these decades down the memory hole, efaces World Vision, denies Samaritan’s Purse.

NO, it is Mr. Wolfe who is wilfully blind to the American Christians outside his comfortable, isolated academic life.
Or is he really so ignorant in his scholarship? I’ve read the author’s work before in The Atlantic Monthly and The Wilson Quarterly (both linked in my list of publications I subscribe to). I googled him and the first hit was his home page at Boston College. The clouds begin to part. Then clicked on his vita and scrolled down to his publications. All became clear. He is fully invested in the Left and senses, if his bias cannot let him see, the threat of mere Christians engaging in the very places and the very work which he would use to justify expansion of government and lessening of sovereignty, the purpose to which Mr. Wolfe is dedicated through a career of such works as:
“The Rise And Fall Of The `Soviet Threat.’ Washington: Institute for Policy Studies, 1979.” Note the oh-so-knowing scare quotes. Or this gem:
“A Fascist Philosopher Helps Us Understand Contemporary Politics”, in which this leftist, playing to the audience in the Chronicle of Higher Education, gets a double tap on Republicans and Leo Strauss, two bete noirs of the academic left.

To understand what is distinctive about today’s Republican Party, you first need to know about an obscure and very conservative German political philosopher. His
name, however, is not Leo Strauss, who has been widely cited as the intellectual guru of the Bush administration. It belongs, instead, to a lesser known, but in many ways more important, thinker named Carl Schmitt.

The rest of the article is an exercise in projection, asserting the sustained howler that it is Republicans who are nasty and ultimately driven be a desire to impose their will though any political means.

There is, for liberals, always something as important, if not more important, than victory, whether it be procedural integrity, historical precedent, or consequences for future generations.

That claim in a world with MoveOn.org, the Daily Kos, and the pack of “protestors” who literally screamed and spat their hate of our servicemen returning from Vietnam and now are working up to the same point with the men and women who go in harm’s way in Iraq and Afghanistan. In a world of the current Senate Democrats. In a world of Able Danger, Albright toasting Kim Jong Il and turning a blind eye to nuclear proliferation across the world of fanatics, and blue dresses. Integrity, precedent, consequences — not in your crowd, Mr. Wolfe.

A woman calling the Laura Ingraham Show today talked about her loss of a son to cancer and how people go through a stage of grief where they express unreasonable anger towards others (if only the ambulance crew was faster). This was offered as the stage that Cindy Shehan is stuck in. I jump to the Pennsylvania member of Congress whose son took his own life. The teen had severe acne, as I once had, and took Accutane — a very agressive but last best hope drug that roots out otherwise untreatable severe acne. The legislator wants to blame the drug and manufacturer, possibly deflecting self blame. All that time fund-raising, campaigning, serving constituents. Hours, days, so much sand turned to dust in an hour glass when a father had to bury his son. A congressman gets to use his elected position to salve his private grief with the appearance of higher public purpose — hearings, legislation, even fund-raising to avenge, and in avenging redeeming, sanctifying his loss. The destructive results, perhaps even suicides by other peoples’ sons and daughters condemned to disfiguring disease due to withdrawl of a powerful cure — not on the narscisist’s conscience and not on the MSM’s storyline. Some victims are more equal than others and some suffering consistently goes down the memory hole of editorial judgement — only reassembled into information by the new media.

Doug TenNapel’s excerpting of a C.H. Spurgeon sermon ends with the following which hits me twice:

There is another quote (I’m not sure if it’s Spurgeon or not) but my Nazarene pastor said it from the pulpit while I was in High School and I’ll never forget the lesson…
“A woman asked a smoking man, ‘but where will you put out your cigar in heaven?’
The man answered, “In your coffee cup.”

As someone who can quit drinking coffee anytime I want!, that’s just doubly wrong.
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I wondered why Hugh Hewitt was taking so long to populate his new blogroll catagories, then I saw a new catagory, checked source code and found his webdesigner had gone with client-side javascript instead of just using one of the server-size options offered by Blogrolling (the service he is now using to manage his blogroll off-site). A bit of a shame for those of us whose browsers’ security is set too high to allow javascript.
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Pebble Pie quote:

Yes, the Iraqi insurgents have inflicted a steady stream of casualties on US troops with improvised explosive devices and car bombs, but they are not able to hold ground or attack prepared US forces and fight them toe-to-toe, as did the North Vietnamese and mujahideen. Another piece of good news from Iraq is that the insurgents are offering a mainly nihilistic message. Most skilful revolutionaries promise benefits from their victory. Insurgents frequently work not only to terrorise local villagers but to help improve their lives in small ways. The Iraqi insurgents offer only fear.

And don’t miss her posting Adopt a Jihadi. [HT: Assumption of Command] Hmm, these M$ non-standard extentions play Hob with

AZ Dem Governer Napolitano followed NM Dem Governer Bill Richardson’s lead by echoing his declaration of emergency in border counties. The NM governer did so to allow spending in crime-ridden, service-strained areas bearing the brunt of illegal immigration costs. Gov. Richardson has not only embarrassed the Administation by characterizing the border situation as an emergency, he has outflanked President Bush and the GOP establishment by meeting with the Minutemen. People from this part of the country know that Pres. Bush accepted a Mexican reporter’s premise and called the Minutemen vigilanties. He has completely failed to correct this serious blunder and now Southwest Dem governers have set the conditions for GOP schism over the next two election cycles.