- The Washington Times - Thursday, November 27, 2003

Law of the jungle

“What is going on here?” Robert H. Bork asks in National Review magazine.

“Justice Sandra Day O’Connor in a recent speech said that decisions of other countries’ courts could be persuasive authority in American courts. At a time when 30 percent of the U.S. gross national product is internationally derived, she said, ‘no institution of government can afford to ignore the rest of the world.’

“She is by no means alone on the Supreme Court. Six of that court’s nine members have either written or joined in opinions citing foreign authorities. The most astonishing, or risible, so far was Justice Stephen Breyer’s opinion arguing that he found ‘useful’ in interpreting our Constitution decisions by the Privy Council of Jamaica, and the supreme courts of India and Zimbabwe. Jamaica and India are far-fetched enough. But Zimbabwe — the country devastated by the blood-stained dictator Robert Mugabe! We might as well learn our constitutional law from Saddam Hussein’s Iraq or Fidel Castro’s Cuba,” said Mr. Bork, a former federal judge and nominee to the U.S. Supreme Court.

“Since the 1950s we have been in a third great period of constitution-making. Unlike the first two (1787 to 1791 and 1865 to 1870), this one is the work of judges, which achieves efficiency by cutting out the middlemen, the American people acting through their state conventions and legislatures. The efficiency gain is clear, but those hung up on technicalities complain of a lack of legitimacy. Justice Scalia commented on one of the Supreme Court’s more imaginative improvements on the Founders’ work: ‘Day by day, case by case, [the court] is busy designing a Constitution for a country I do not recognize.’

“Yet even Scalia at his gloomiest probably did not foresee that the new country might be designed bit by bit from European, Asian, and African models.”

Targeting faith

The American Civil Liberties Union, in a new fund-raising letter, focuses its wrath on the left wing’s all-purpose boogeyman, Attorney General John Ashcroft. But the letter also lashes out at President Bush’s faith-based initiative.

“By drawing attention to the fact that the president’s scheme would exempt religious groups from federal laws that prohibit discrimination and would use taxpayer dollars to finance religious proselytizing, the ACLU helped block congressional passage of the president’s plan,” the group said.

“But now the president has arrogantly sidestepped Congress and signed a new executive order implementing most of his program for government-funded religion. The president has started doling out government funds from a White House ‘Compassion Capital Fund.’ The grant recipients, including Pat Robertson’s Operation Blessing International, are now free to undermine nearly 60 years of federal civil rights protections.”

Magical formula

“While voters in Iowa and New Hampshire still fetishize personal contact over televised appeals, the nationwide crush of primaries scheduled for February lends unprecedented importance to TV ads this year, making the 30-second spot an ideal way to understand the state of the presidential race nine weeks before the voting begins,” Ryan Lizza writes in the New Republic.

“The most telling new ad is Howard Dean’s attack on Dick Gephardt in Iowa. It opens with footage of the congressman standing alongside Trent Lott and George W. Bush at a Rose Garden signing ceremony. The announcer intones, ‘October 2002. Dick Gephardt agrees to co-author the Iraq war resolution, giving George Bush the authority to go to war.’ An ad like this clarifies a couple of things. First, Dean sees Gephardt as his biggest obstacle to winning the nomination. Dean’s strategy in Iowa is to spend Gephardt into oblivion. Dean is running a national campaign with a large war chest and, because he is rejecting federal matching funds, no state spending caps. Gephardt is basically running a single-state campaign with few resources and within the limits of the state spending caps. Even if Gephardt wins Iowa, Dean is trying to ensure that he is virtually penniless on his way to New Hampshire.

“The second thing Dean’s ad clarifies is that, his frequent protestations notwithstanding, he still sees his opposition to the Iraq war as his most powerful weapon in the primaries. At various points in the campaign, Dean has argued that his message is about more than being antiwar and anti-Bush. In an interview back in March, Dean told me he was leaving behind the war as an issue to refocus his campaign on health insurance. It never happened. Every time Dean is challenged, he returns to his magical formula of attacking the war and the Democrats who authorized Bush to wage it.”

Too many debates

“The general consensus this fall is that there are too many [Democratic presidential] candidates and too many debates, and that they sound about as spontaneous as a George Foreman infomercial,” Matt Bai writes in the New York Times Magazine.

” ‘They’re not debates,’ Paul Begala, one of the party’s leading debate strategists, said. ‘You have a collection of people with their canned lines, some of them good and some of them not good, and they just recite them in random order. In fact, maybe we should just do that. “Senator Kerry, could you please give us your line on Medicare?” ‘

“Begala said the best way to fix this mess would be to somehow winnow the field, giving a smaller number of candidates more time to answer each question. When I repeated this suggestion to [presidential candidate Al] Sharpton, who has clearly been the most agile debater thus far, he scoffed. ‘What are we really talking about?’ he asked. ‘A minute or two? It’s not like some of them were on the verge of brilliance and then somebody cut them off!’

“I asked Sharpton to rate the debating skills of his rivals. [Dick] Gephardt and [Dennis] Kucinich show the most passion, Sharpton said, while [Joe] Lieberman is the most sure of his convictions. ‘He don’t care if they heckle or boo, that’s who he is. I respect it.’ [Howard] Dean, he said, ‘can come off as arrogant or even mean-spirited.’ Sharpton likened [John] Kerry to a prizefighter who scores well in every round but never lands the knockout punch.

“I asked him about [John] Edwards. ‘He suffers from his handlers maybe building something up that he couldn’t live up to,’ Sharpton said, sympathetically. ‘I don’t blame him for that. I think sometimes you can be overpromoted, and it can hurt you in the end.’ ”

McConnell backs Kerr

Kentucky Sen. Mitch McConnell says he’s now backing state Sen. Alice Forgy Kerr’s bid to replace Gov.-elect Ernie Fletcher in the U.S. Congress.

Mr. McConnell, the U.S. Senate’s No. 2 Republican, initially said he would not get involved in the GOP’s selection of a candidate for the special election in Kentucky’s 6th Congressional District. Billy Piper, currently McConnell’s chief of staff, has signed on to manage the campaign and the Bluegrass Committee, a PAC Mr. McConnell sponsors, has made a sizable contribution.

Republican officials in the 6th District are scheduled to meet Dec. 13 to pick their candidate. The date for the special election will be set by Mr. Fletcher after he becomes governor. It is expected to be sometime in early January 2004.

Greg Pierce can be reached at 202/636-3285 or [email protected]

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