"Cry Havoc, And Let Slip The Dogs Of War!"

And war it is, as the citizens of New Orleans attempts to recover from the devastation of Hurricane Katrina. Below are official reports posted by the Times-Picayune over the last few hours. We’re both shocked at the destruction wrought by this storm. We, like the weather-casters, expected this storm to hit Florida with full force, not bounce off Florida and slam into New Orleans. I have few words that will be intermixed in the following reports. Words don’t begin to cover this. In my opinion, this is worse than 11 September in terms of dollars-to-damage estimates. The loss of life I doubt will reach over the 2800, or so, deaths from 11 September, but the repercussions of it will be felt for sure.

http://www.nola.com/newslogs/breakingtp/index.ssf?/mtlogs/nola_Times-Picayune/archives/2005_08.html#075234

Late Blanco statement
By Robert Travis Scott
BATON ROUGE -- Gov. Kathleen Blanco called for an evacuation of the 20,000 storm refugees from theSuperdome after she visited the hurricane-damaged stadium Tuesday evening for the second time of the day.

‘Bout damn time. Can anyone say "cholera petri dish?

"She set no timetable for the withdrawal but insisted that the facility was damaged, degrading and no longerable to support the local citizens who had sought refuge in the Dome from Hurricane Katrina.

"It’s a very, very desperate situation," Blanco said late Tuesday after returning to the capital from her visit, when she comforted the exhausted throngs of people, many of whom checked in over the weekend.

"It’s imperative that we get them out. The situation is degenerating rapidly."Blanco also said the people in the New Orleans hospitals were being moved out.

The Dome has no electricity, holes in the roof have let in water and the sanitary conditions are growing worse, Blanco said. "It’s a little rough in there," Blanco said.

Blanco also visited a facility near the Dome where rescue helicopters have deposited people picked up from rooftops after becoming trapped at their homes by floodwaters. Those people are frightened about their situation and concerned about loved ones still left back in their neighborhoods, she said.

No s**t, Sherlock...Wouldn’t you be?

State officials are establishing evacuation sites, which will be outside of Orleans Parish, where power is expected to be off for many days if not weeks. Blanco said the commodes are not working in the Dome. Details of how and when the evacuation will take place are now being determined.

The neighboring New Orleans Arena is not an option, because it has water in it, she said.Blanco said part of the population in the Dome are people "who do not have any regard for others." But "many good people" also are living in the Dome, she said, including mothers with babies.

Meanwhile, Blanco said officials are working rapidly to fill the hole in the 17th Street Canal, where a 500-foot breach is allowing water to pour into the city. Areas of the city that were dry or had low water early Tuesday were slowly filling up with the water by Tuesday evening. The water is pouring in faster than the city’s pumps can push it out.

Madam Governor, it is time to move as many people left in the city to higher ground, and let the Army Corps of Engineers in there. They can repair the levee. Let them do it, but let’s not turn this into a Holly-Weird production where you wait until the last minute. You’re working against the clock, and it’s time is affected solely by how quickly the water comes into the city.

Major Gen. Don Riley with the Army Corps of Engineers said giant sandbags are being dropped into the Canal and large barriers are being lowered into the gap to close it off. It is a massive undertaking, hampered by nightfall.

Working in the city’s favor is the fact that the level of Lake Pontchartrain is falling, which puts less pressure on the canal stream. Once the flow is stemmed, the city’s pumps can clear out the water.Until then, the leak will "continue to flow down into the center of town," Riley said.

The Inner Harbor Canal also breached and poured water into St. Bernard Parish, but the level of the canal is now so low that water is flowing back into the canal, Riley said.


State Police send troopers to region
Tuesday, 10:30 p.m.
More than 40 State Police troopers are being sent to New Orleans to help local law enforcement combat what Col. Henry Whitehorn called "pretty severe" looting in the city.

Two mobile force units of 16 officers each will be deployed, as well as about a dozen tactical officers and one armored personnel carrier, which should be able drive through the deep flood waters, said Whitehorn at a 9 p.m. briefing at the state Office of Emergency Preparedness.

The State Police, which already has more than 250 officers in the area affected by the storm, will be supplemented by an additional 30 officers from various sheriff and city police office around the state. Whitehorn would not say exactly when the additional police will be deployed, saying they could go Tuesday night or on Wednesday. Whitehorn said they have had reports of all kinds of looting, as well as people shooting into vacant buildings. "It is a lot of chaos," he said. "If we see it, we will arrest it."

Martial law clarified
Tuesday, 9:02 p.m.
The state Attorney General's office on Tuesday sought to clarify reports in some media that "martial law' has been declared in parts of storm-ravaged southeast Louisiana, saying no such term exists in Louisiana law. But even though no martial law exists, Gov. Kathleen Blanco's declaration of a state of emergency gives authorities widespread latitude to suspend civil liberties as they try to restore order and bring victims to safety. Under the Louisiana Homeland Security and Emergency Assistance and Disaster Act of 1993, the governor and, in some cases, chief parish officials, have the right to commandeer or utilize any private property if necessary to cope with the emergency.

Authorities may also suspend any statute related to the conduct of official business, or any rule issued by a state agency, if complying would "prevent, hinder or delay necessary action'' to mitigate the emergency. It also gives authority the right to compel evacuations, suspend alcohol and weapons sales and make provisions for the availability and use of temporary emergency housing. The law gives mayors similar authority, except they do not have the right to commandeer private property or make provisions for emergency housing, according to a background brief prepared by the state Attorney General's office.


At least we now have a definition of what the local municipalities believe "martial law" to be. Too bad it isn’t in the proper legal context. The governor is the only person with the authority to formally declare martial law, as that decree is followed by—usually—orders to the National Guard, which the governor can command in the even of an emergency. This is a power they possess, along with the president, alone. The mayor or parish officials cannot declare martial law as they have no authority over National Guard troops.

Theses are just a couple of the most recent updates on the situation in New Orleans. Thursday, bloggers are being asked to blog for disaster relief, and either include links to relief agencies, or provide links to other blogs that have a comprehensive list for the relief effort. Hugh Hewitt and Glenn Reynolds—of InstaPundit fame—will be leading the charge. The link above will provide our readers with the most up-to-date information regarding this tragedy. Below is a link to Michelle Malkin’s site, which is also keeping up with updates as they occur.
http://michellemalkin.com/

Please, read their updates and keep informed. For those who can, please contribute to the relief effort. Even if it’s a lousy dollar, donate it. This isn’t some third-world nation. This is OUR nation. "Now is the time for all good men to come to the aid of their party." ‘NUFF SAID!


Publius II

The Institutionalized Media, And Their Bias Against The New Kid On The Block
On Monday, the esteemed Hugh Hewitt had an interview with Tim Rutten, of the LA Times. I doubt I need not assure anyone that Hugh handed Tim his head—politely, of course. However, what was particularly interesting is that despite Mr. Rutten’s admission that he reads the big guns on the blogosphere, there is still an apparent distaste towards bloggers in general.

For prisoners incarcerated for so long and then are released into society, the term is "institutionalized;" virtually, living in a bubble so long they are unable to adapt to the changing world. Mr. Rutten displays this easily in several exchanges with Hugh. (Transcript excerpts courtesy of Hugh’s faithful and dependable servant, Generalissimo Duane.)
http://www.radioblogger.com/#000930

HH: No, they're not. And they're kind of snarling and vulgar and profane. It's more like a newsroom than a radio show.
TR: Well, you know, there's a lot of name-calling on the right, though.
HH: Where?
TR: I think...there's a not of...not on yours, actually.
HH: Or Powerline's.
TR: The word...you know, the word liar gets thrown around. There's a lot of conspiratorial thinking.

Conspiratorial thinking? I am wondering what "conspiracy" theories Mr. Rutten is referring to. Would it be the forged memos of CBS, or the killing of the John Kerry boast he was in Cambodia? Or is it the lingering doubt that Eason Jordan did not really accuse our troops of shooting and torturing journalists? Come on, Mr. Rutten. The bloggers nailed each of these stories fair and square whereas the MSM decided to skip over them. During Kerry’s entire presidential run, not a single member of the elites in the MSM handed this man a tough question, or they let him get away with the line, "Go to my website and see my plan." When serious bloggers toss around a dirty four-letter word like "liar," we usually have proof to back the claim up.

HH: I'm serious. I think we go about it one mind at a time, and the reason Air America cannot grow an audience is because they're not interested in persuading anyone. They're interested in pummeling perceived enemies, and you know...
TR: Well, I think this circles back to our topic, because I mean, I don't have...I don't know enough about Air America to have an opinion about it, and I have not followed this current scandal that some people see in their finances. I haven't looked at it.
HH: Why hasn't the Times looked at it, Tim?
TR: I don't know. I don't speak for the Times.

I will let him pass on his admission that he has not listened to Air America. I try each day to listen to what the other side is saying, but it would be much like trying to have a debate with a fiver year-old, so it is difficult. However, the finance question caught my attention when Mr. Rutten admitted to not knowing much about the burgeoning scandal. He states later in the exchange over this topic that he does read Michelle Malkin’s site. For those following this scandal, Brian Maloney and Michelle Malkin have formed the vanguard on this subject. If Mr. Rutten does not know about it then it is because he has chosen not to read up on it. Ms. Malkin and Mr. Maloney have but nothing if not thorough on the subject; so thorough that were I a DA investigating this, I would want them in my office with everything they have accumulated thus far.

HH: Now I know that you're busy...what does a senior writer do?
TR: Basically, I hold the hands of distraught colleagues.
HH: Well, there are a lot of them, given the layoffs at the Times.
TR: I'm here for younger writers to come and talk to about the stories they're doing, you know, and...
HH: So, you're the eminence in the back. The gray eminence.
TR: Yeah, or the kibitzer. I mean, I'm like...at this point, I'm like what Murray Kempton said about editorial writers. You know, he said they're the people who come down from the hill after the battle and shoot the wounded?

This was amusing, and I had to laugh at it. I picture people on the editorial staff doing that, yet Mr. Rutten disavows any connection to the editorial board. He writes an occasional book review, and a regular Saturday column called "Regarding Media," which has next-to-nothing to do with the media, in general. Yet, he portrays himself as someone outside the editorial staff doing the jobs of editors. Curious that? Is that not a bit of contradiction?

HH: So why...is it just the worst run newspaper in America of a major?
TR: No. No. I think there are two things...two or three things that are very specific, and then there's something more general, that...about the newspaper industry as a whole. The very specific things have to do with the fact that since this newspaper was acquired by the Tribune Corporation, more than a hundred million dollars a year has come off the business side. And the departments that suffered, particularly hard, were circulation and promotion. Now because of the fluidity of the population here, because you know, people move a lot, people die, people, you know, change their minds about what they want to do. And so, you have to, here, in this market, you have to get a very large number of new subscribers all the time, to even stay even, let alone grow. And the cuts in the circulation and promotional departments hurt our abilities to do that a great deal. Now steps have been taken now to remedy that, and I think you'll see some growth.
HH: But Tim, is it delusional not to look at the fact that the center-right in California hates your newspaper? Considers it, I think objectively, to be over the left edge of bias on a day in and day out basis? That Kinsley runs a hard left editorial page? That John Carroll...
TR: Or did. I mean, isn't he leaving?
HH: Yeah, but the damage is done, and that John Carroll went after Arnold with a machete, and didn't do anything to Gray Davis, and that the Jews on the west side hate the anti-Israel bias that is almost daily on the front page. Don't these things build up barriers to subscription that, you know, you just can't knock down anymore, so that when you go hunting for those new subscribers, people won't even answer the phone if they can see that it's the Times person calling? Or if you get lucky and you get someone, and you get to make a pitch at them, they're more likely to scream at you than anything else.
TR: Well, if I agreed that all those things were true, then I would say yes. Those are all factors. But I...
HH: Are any of those things true?
TR: But I don't think all those things are true.
HH: Are any of them?
TR: I think...I think that...that...the lack of attention in recent years to local news, and in that I would include state and local politics.

This is a clear-cut dodge, and Hugh calls him on it. He calls him on it clearly and concisely by pointing out the discrepancies and bias in the reporting at the Times. But in typical Hugh fashion, he is not willing to let Mr. Rutten spin away from it.

HH: Now wait. But that's not one of the things I mentioned. I mentioned being anti-Israel, being anti-Arnold, being anti-right wing...
TR: No. I don't agree...first of all, I don't agree that the Times is anti-Israel, and I say that as somebody...and I can say this, because I'm a columnist. I happen to be somebody who is, uh, you know, a fervent and committed supporter of the state of Israel, and the notion of political zionism.
HH: All right. Is it anti-Arnold?
TR: And I don't agree that this paper is anti-Israel.
HH: Okay. Is it anti-Arnold?
TR: Um, no. I don't think it's anti-Arnold.
HH: Is it anti-center right political theory?
TR: ...in the news column.
HH: Is it anti-Republican?
TR: Anti-Republican? I would say on its editorial pages, it is...on the editorial pages, it probably is, uh, hostile to a great, uh, a great bit of Republican ideology.

FINALLY! We have our answer. He admits that the editorial writers are biased against the GOP. (BTW, that is not a surprise. What IS a surprise is he got Mr. Rutten to admit it.) And as a columnist and a self-appointed "conscious" one at that, his stance on Israel is commendable. Too bad more in the media do not share similar sentiments. Many papers across the nation—the LA Times, as well—have been virulently opposed to Israel, its moves to protect itself, and, at times, it’s existence.

HH: Tell me. Are there any pro-life people in there?
TR: Sure.
HH: How many?
TR: I don't know. I don't ask people things like that.
HH: It just doesn't ever come up?
TR: But look. I work at the L.A. Times, and I'm pro-life.
HH: But I'm just asking just as a percentage. By the way, being pro-life, does that mean you favor a reversal of Roe V. Wade?
TR: Do I favor a reversal of Roe V. Wade? No.
HH: Well, then you're not really pro-life. I mean, as the term is understood. It's kind of Orwellian.
TR: Now, wait a minute. Wait a minute. As you understand the term? Or as I understand the term?
HH: No, as the world understands. If we asked like a thousand people...
TR: No, I don't know that it translates into being against Roe V. Wade. And, you know, I think you can make an argument that Roe V. Wade was wrongly decided as a matter of law. I think as a matter of...I am opposed to abortion, but I think in a pluralistic society...

Pro-life, in my opinion, means that I stand against the idea of Roe’s existence. And that is a truth in my life. I do despise it. I hate it. Not just from a religious conviction, but from a legal standpoint, as well. We, at the Asylum, do feel the case was wrongly decided, and further that the government had no right usurping the right of the States to decide things themselves. Granted, the judiciary is a "separate, but equal" branch of the government, but abortion is not just confined to them. Congress has stepped in on the issue with a few pieces of legislation. Mr. Rutten is trying to spin his answer, and does an adequate job, but in the long run, it just does not pass the smell test.

TR: So, we should gear our coverage to people who have money?
HH: No. Your coverage should be fair.
TR: And it should be geared to make sure we keep readers?
HH: No. Your coverage should be fair, not go out of the way to offend the center right...
TR: Oh, okay.
HH: ...should not be condescending towards the conservative side of the aisle. It should at least have one...

This exchange was interesting as Mr. Rutten became quite defensive as Hugh was using that brilliant blogger brain, and using facts he had in connecting a series of dots. And he used it to make a point, not only to the Times, but to the MSM in general. It is time to return to the reporting of old where the media presented the FACTS to the populace, and let them decide. It is not to determine what is and is not a relevant fact, and present a slanted story.

This was no more evident than in Rathergate when Dan Rather—esteemed journalist of note for CBS—made the allegation that Pres. Bush ditched his National Guard service, and he presented a series of memos detailing it. Except that the memos were fakes. He refused to back down from the story, chalked it up to bad editors and fact-vetters, and to this day still sticks by his story that the story was based on facts rather than forgeries.

The inherent bias that Dan Rather has towards Republicans goes back to the Nixon days, and was carried up to the point where the elder Bush was president and slammed the door on him. Now, that animosity towards the GOP has focused to be against the Bush family. As Hugh calls it, this is "intuiting," and based on the facts, it is pretty solid.

I am positive I am boring our readers substantially with this post, but I wanted to take this on. Hugh issued a challenge to analyze this. The remainder of the article involves the issue of talk radio, and its supposed falling ratings. To that, if he wishes, I leave the rest to my esteemed colleague, Thomas, as he knows the radio industry far more than I do.

However, the point of this post is that here is a media guy in Mr. Rutten, and he is forced to admit that there is a level of bias at his paper, but refuses to admit how far the bias goes. This man is deluding himself if he thinks that the media in general—his paper, specifically—is not losing its audience due to the bias that is as obvious as the nose on Pinocchio’s face. Mr. Rutten has been institutionalized as a member of the media for far too long. It is time to take the blinders off, and make way for the new kid in town. We are quicker, more accurate, and more dangerous as our readership and participation grows.

The Bunny ;)

Roberts Day At The Asylum

Well, hell, my better half just put up a thoroughly scathing evisceration of the argument as to whether or not Roberts violated the law, and seeing as how I have my own story on Roberts to disseminate, we’ve decided to deem today "Roberts Day" here at the Asylum. The WaPo (Washington Post for those non-bloggers out there unfamiliar with the lingo) put up an interesting column today. It was written by Cass Sunstein, who is anything but a conservative. (He wrote a book called "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong For America." ‘Nuff Said!)

But I’m not going to beat up on Mr. Sunstein, and his obviously ignorant opinion of where the Courts are on the ideological spectrum. (Though it does remind me of the nay-sayers that contend there is no liberal media bias.) No, not today. And no, I’m not sick. No, Mr. Sunstein wrote an article talking about Roberts, and in it Mr. Sunstein includes some questions that he would have for Roberts were he on the judiciary committee.

For example, Roberts is perfectly entitled to decline to say whether he would vote to overrule Roe v. Wade. But does he believe that the Constitution protects a general right of privacy? Judge Robert Bork, along with many others, has insisted that the Constitution protects no such right. This position would require the court to overrule cases recognizing the right to use contraceptives, to keep medical records private and to live with members of one's family. Does Roberts accept the privacy right?

And I agree he has a right to dcline such questions regarding Roe. Marcie and I have repeatedly stated that such questions should not even be addressed by an appointee as the high court may decide to revisit the issue, as a whole, which in my opinion it should be. But the question on the right to privacy would be a valid question. Granted, the answer to that question may tip his hat when it comes to the question of Roe, as that was a primary provision in the decision in that case, but it is valid. What are his thoughts on the idea, set down by precedent, that the Fourth Amendment grants citizens an all-encompassing right to privacy rather than what is enumerated in the amendment, which are protections against illegal searches and seizures.

Here's a broader question. Justices Antonin Scalia and Clarence Thomas believe in "originalism" -- the view that provisions of the Constitution should be interpreted to mean what they meant at the time they were ratified. When President Bush speaks of "strict construction," many people think that he means to endorse originalism. Is Roberts an originalist? Or does he think that the meaning of the Constitution evolves over time?

To be fair, we are both of the mind that Justices Scalia and Thomas properly interpret the Constitution. The "originalism," or "textualism," that they adhere to involves a great deal of research in determining what the amendments state, and what they mean. It involves going back into the past, digging through records, digging through dictionaries, etc., to determine what the Framers meant when they wrote the Constitution and the Bill of Rights. And I’d like to point out that there is a significant difference between a "strict constructionist" and an "originalist."

An originalist, or textualist, believes that laws, especially the US Constitution, say what they mean, and mean what they say. If the proper meaning of the text is clear, jurists should then determine whether it provides support for the claimed right or the authority of the government. If so, then the claim is valid. If it’s not, then the claim is rejected, and the analysis is complete. Strict constructionists believe that all words within the law should be interpreted narrowly.

"For example, where a strict constructionist might see the First Amendment as protecting ‘speech’ and ‘press’ and only activities that fit into one of those categories, Scalia says the First Amendment communication more generally. Thus, while a handwritten letter might not fall under ‘speech’ or ‘press’ for strict constructionists, he thinks such a letter is undoubtedly protected by the First Amendment." –Scalia Dissents by Kevin A. Ring

An originalist does not believe in a "living, breathing" Constitution. In one of his most amusing rebuttals, Scalia proclaims—and I agree with him wholeheartedly—that he prefers his Constitution "dead." There is an enumerated process to amend the Constitution, and it should only be done in that manner.

Many people object to judicial "activism." But there is intense disagreement about what this phrase means. Some people think that a court is playing an activist role when it strikes down acts of Congress -- as the Rehnquist Court has done on more than 30 occasions. What does Roberts understand by the idea of "activism"?

Activism, in the overall sense, does not merely refer to the striking down of acts of legislation. Activism refers to the use of judicial fiat to overule duly enacted laws that a minority of society disagrees with. Griswold, Roe, Lawrence, Stenberg, Casey, and Kelo are examples of judicial activism that not only usurps power enumerated, such as those to states (through the Tenth Amendment), or to the people directly (as the Fifth Amendment does, and Kelo overruled.)

The Constitution does not explicitly forbid the national government from discriminating on the basis of race or sex. Nonetheless, the Supreme Court has read the Constitution to ban both forms of discrimination. Some conservatives disagree; they think that the Supreme Court has no legitimate basis for prohibiting either racial segregation or racial profiling at the national level. What does Roberts think about the question of whether the national government can engage in discrimination on the basis of race and sex?

In the technical sense, this is true. The direct "you-can’t-discriminate" amendments in the Constitution are not broad. They are specific. Below are those amendments that deal with the prohibition of discrimination.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. –14th Amendment, Section 1

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. –15th Amendment, Section 1

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. –19th Amendment, Section 1

The Fourteenth Amendment is all encompassing to forbid the discrimination of citizens. It prevents the privileges and immunities from being revoked from the citizens. The Fifteenth and Nineteenth Amendments are the only two amendment which cite race or sex, and they have been expanded to encompass all privileges, immunities, and rights, though the amendments only stipulate the right to vote. Now, legal precedent that has been set, such as in Brown, struck down the idea of racial segregation in schools. Will Roberts vote to overrule that decision should it ever be appealed? I highly doubt it.

On the issue of racial profiling, however, he may side with those that believe racial profiling is correct. The problem with the Left in regard to racial profiling is if you have a suspect description, it ceases to be profiling, and you are seeking a man/woman that matches the physical description, whether they be white, black, Hispanic, Asian, or Middle-Eastern, and there is nothing wrong with that. The police do it everyday. If a call comes through that a white man has robbed a convenience store, the police aren’t going to harass an Asian for it.

But as for Mr. Sunstein’s observations regarding the questioning, he is quite correct. Specific cases are a no-no. But where he stands on his jurisprudential beliefs are fine. I could answer those questions without a hitch, provided they’re phrased the right way, in the right fashion, and in such a way where I would not tip my hat on a specific case.

Publius II

Salvo 61 Against Roberts: Assertions He Broke The Law

I know the pointy ears of the Left just perked up with that title. It has been alleged that Judge John G. Roberts broke the law; the law in question being US Code 28, Section 455, sub-section a which states:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

For those that are lost, the accusation refers to his participation in the Hamdan case that came before the DC Court of Appeals. The case revolved around the question as to whether or not enemy combatants could challenge their incarceration, treatment, and military tribunal status in US federal court. In a blow to the fifth-column Left in the nation, the DC Court ruled against Hamdan, and in favor of the detainees and illegal combatants going through a military tribunal.

The tribunals are one hundred percent legal under the US Constitution. Congress has the power, under Article I, Section 8, Clause 9, "to constitute Tribunals inferior to the Supreme Court." In addition, Article III, Section 1 specifically states "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." So, such tribunals to deal with enemy combatants are legal, and the rights of the accused are protected.

But the question regarding Roberts surrounds a timeline of events that opponents of his nomination are pointing to. Let me elaborate on this. I will list the timeline below, and continue after it with the argument.

12/1/2004: The DC Court agrees to hear the Hamdan appeal. Roberts will be one of the three judges.

12/11/2004: The National Journal names Roberts among the ten short-list nominees the White House is looking at to replace any retiring justice on the Supreme Court.

3/8/2005: The originally scheduled date for oral arguments in Hamdan.

4/1/2005: Roberts meets with Attorney General Gonzales.

4/7/2005: Arguments in Hamdan. Under usual DC Circuit practice, each of the judges would cast their initial vote in conference that day. This follows the oral arguments, and any judge can change his mind up to the point where the opinion is agreed upon and drafted.

5/3/2005: Roberts meets with the Vice President and other White House officials.

5/23/2005: Roberts meets with the White House counsel, and her deputy.

7/1/2005: Associate Justice Sandra Day O’Connor announces her retirement.

7/8/2005: Roberts speaks with—via telephone from England—with the deputy White House counsel.

7/15/2005: The DC court releases its opinion in Hamdan.

7/15/2005: Roberts meets with President Bush.

7/19/2005: President Bush names Roberts as his nominee to replace departing Justice O’Connor.

Now, the argument being presented by the Left is that: A) Roberts spoke with Attorney General Gonzales prior to the arguments in Hamdan, which may show a level of impropriety (which is incredibly minute, as such interference in a pending legal case could put both in hot water), and B) That he participated in a case where the US was a party. Allow the pleasure of disseminating both arguments.

To the question of impropriety, first. Roberts met with Gonzales because he was a possible candidate for the Supreme Court. This is a standard procedure by the White House to let subordinates vet the candidate. My guess, as I was not privy to what occurred? That is what this meeting was about, and to back that up, Gonzales admitted that their meeting was about precisely that. This was a "shake-down" meeting where Gonzales got his initial perceptions of Roberts from.

Second, the idea that he could not participate in a case where the US was a party is preposterous. Did they expect him to sit on his hands after the National Journal article? Since when does the National Journal dictate "short-lists" for the president? This is an asinine argument, and for the rebuttal to it, I refer to Associate Justice Ginsburg.

The legacy of Justice Ginsburg could be a focal point in this confirmation process. Canon Five, or Ginsburg’s Rule, could be employed during the confirmation hearings. Canon 5 of the Model Code, among others, forbids judges or judicial candidates from indicating how they will rule on issues likely to come before the courts or making any statement that would create the appearance of partiality. This rule is critical to an independent judiciary. Justices must remain open-minded when an actual case comes before them. They must not even hint how they would rule. Roberts could invoke Canon Five in an effort to retain his impartiality, and block the committee from forcing him to reveal his beliefs.

The individual beliefs of a judge should never figure into a decision. The judge’s sole job is to render a decision that is based in the law. Justice Ginsburg invoked Cannon Five almost thirty times during her confirmation hearings, and no one uttered a peep about it. It was questioned by a member of the committee at the time, and it was explained to them what she was doing. The matter was dropped, and she was permitted to invoke the Canon as she saw fit.

But, when President Clinton was considering who to replace outgoing Justice Byron White, he opted for then-Judge Ginsburg over Judge Breyer. Roberts’ opponents claim that because Hamdan was sub judice (or under consideration for those unfamiliar with legal lingo) Roberts should have recused himself. This is another foolish argument as many cases sit as sub judice for months prior to being heard. A prime example of it is the docket for the Supreme Court. Their docket is revealed when a new session begins. Kelo sat as sub judice for a majority of the high court’s last session. This is just another excuse the Left is using, and it is not washing.

Prior to Justice Ginsburg’s confirmation hearings, she participated in over fifty civil cases that involved the US as a party, and over twenty-five criminal cases where the US was a party. In all of those records, never once did Justice Ginsburg recuse herself. And she was, like Roberts, on a president’s "short-list." Likewise, Justice Breyer went through almost a year of interviews with the Clinton White House and Justice Department. Throughout that year, he did not recuse himself once. Breyer was nominated in 1994, the year after Ginsburg was nominated, and approved by the Senate overwhelmingly.

In addition, the "short-list" had ten names on it. Did any of these potential nominees sua sponte (Of their own volition) recuse themselves? Of course not. Recusal from a particular case comes when a jurist has maintained that they will abide by their personal preferences rather than the rule of law. Many people carp about this when it comes to conservative justices, and their argument fails right there. So-called conservative jurists—like Scalia and Thomas—do not rule one way or another based on their personal beliefs. They render decisions based on the law. I suppose that for the Left that is a "radical" or "extreme" point-of-view.

This whole argument regarding judicial ethics was started by Professor Stephen Gillers, a professor of legal ethics at New York University. He accused that because Roberts was dealing with Hamdan, and that he had met with administration officials, that he should have recused himself. He based this argument on US Code Title 28, Section 455 (cited above). In it, he points directly to a specific phrase.

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

The emphasized section above is what Professor Gillers is pointing to in regard to Roberts. Gillers went further in stating that Roberts participation in the case gave "an appearance of impropriety," and on that supposed appearance alone, Roberts should have recused himself. As he did not, Gillers believes that Roberts broke the law. But what does the statute state? "Might reasonably be questioned" is as vague as "an appearance of impropriety."

The ALI and the ABA both have turned away from such vague terms. Indeed, in 2000 the ALI (American Law Institute) released the following statement in regard to such vague notions:

"The breadth of vague, catch-all provisions creates a risk that a charge using only such language would fail to give fair warning of the nature of the charges to a lawyer respondent and that subjective and idiosyncratic considerations could influence a hearing panel or reviewing court in resolving a charge based only on it. That is particularly true of the ‘appearance of impropriety’ principle (stated generally as a Canon in the 1969 ABA Model Code of Professional Responsibility but purposefully omitted as a standard for discipline from the 1983 ABA Model Rules for Professional Conduct). Tribunals accordingly should be circumspect in avoiding overbroad readings or resorting to standards other than those fairly encompassed within an applicable lawyer code." –Restatement of the Law Governing Lawyers, Third Edition, Section Five, Comment C.

But Professor Gillers cannot seem to keep his logic straight. In a from Slate.MSN.Com from August 17, 2005, Professor Gillers states the following:

"Roberts did not have to sit out every case involving the government, no matter how routine, while he was being interviewed for the Supreme Court position. The government litigates too many cases for that to make any sense. But Hamdan was not merely suing the government. He was suing the president, who had authorized the military commissions and who had personally designated Hamdan for a commission trial, explaining that ‘there is reason to believe that [Hamdan] was … involved in terrorism.’"

But, the assertion he makes that Roberts should recuse himself contradicts this statement. And I disagree with Professor Gillers assertion that the president authorized the tribunals. Congress authorizes this. It is their job as dictated by the Constitution, as I cited above. Congress authorizes, the president approves. And as for the "reason to believe" that Hamdan was involved in terrorism, he was found on the battlefield, in the service of our enemy, by our troops. He wore no uniform. He had no identification as to what government he was fighting for. He was caught by our troops in Afghanistan in late 2001, and was later transferred to the Gitmo detention facility. As he was caught on the side of our enemy, he is an enemy combatant, and is therefore open to a tribunal, not a civil court trial.

This simpleton argument by the Left will have no wings. It cannot. It lacks any sort of reasoned logic. If we are to abide by Gillers interpretation of US Code Title 28, Section 455, then no justice who is ever under consideration for an appointment to the Supreme Court hear a case where the US, or her agencies, are a party. This goes against the traditions set by the judiciary since the founding of the nation.

In conclusion, I am left to wonder what Gillers proposes for Roberts. It is wholly obvious that he is against the confirmation of Roberts, but what does he wish further? In his opinion, Roberts broke the law, so, what punishment does "Judge" Gillers propose? Of course, there will be no answer to this. He would be satisfied to fulfill the mission of the Left now, and destroy the Roberts nomination before the hearings even begin.

Thomas and I have been following this, and we have come to the conclusion that there is nothing but straws that the Left is grasping at. There is nothing they will find. They are relying on the old Ted Kennedy trick of "Borking" Roberts if they can. The attacks in the beginning went straight to the personal level. The second level of attacks have gone after his personal beliefs. The third wave has attacked his professional behavior from his past, i.e. Solicitor General and Special Counsel to the Reagan White House. The fourth is now focused on his legal ethics and morals. We were both wrong in assuming, early on, that little ruckus would be raised over Roberts. It is now more and more apparent that the attacks will not stop, but they will stoop to levels of impropriety that would leave Professor Gillers speechless.

The Bunny ;)

INCOMING!: Salvo Number 56 Against Roberts

And we thought that the rhetoric against Roberts could not get any worse. In a follow-up to their slander-laced ad that they pulled from CNN, NARAL has launched a new ad. Jesse Holland, an AP writer, picked up on this on Friday.

WASHINGTON - An abortion rights group on Friday launched a new television ad criticizing Supreme Court nominee John Roberts, two weeks after pulling a heavily criticized commercial that linked him to violent anti-abortion activists.

The new ad "paints a really clear and unambiguous picture of John Roberts' record and it keeps the public debate focused on the threats that he poses to our freedom," said Nancy Keenan, president of NARAL Pro-Choice America.

The original ad ran locally in Maine and Rhode Island, and on CNN. Using a woman who was injured in a clinic bombing, it criticized Roberts and linked him with violent anti-abortion protesters because of the anti-abortion briefs he worked on as a government lawyer in 1991.

Conservatives and Republican senators called the ad untrue and unfair.

The new ad, featuring smiling families and an American flag in the background, emphasizes a phrase in a 1981 Roberts memos: the "so-called right to privacy," and points out that he co-wrote a government memo saying the landmark

Roe v. Wade decision legalizing abortion was wrongly decided.

"There's just too much at stake to let John Roberts become a decisive vote on the Supreme Court," the ad says.

The new ad will run on CNN and during cable programming in the Washington, D.C. area. NARAL says it is using part of its $500,000 slated for the original buy to pay for the new ad.

The ad comes as groups continue to take side in the Roberts debate.

The Human Rights Campaign, National Gay and Lesbian Task Force, National Center for Lesbian Rights, and Parents, Families, and Friends of Lesbians and Gays announced their opposition to Roberts' nomination on Thursday. That day, the Congress of Racial Equality, the National Center for Neighborhood Enterprise, Project 21 and the Center for New Black Leadership endorsed the federal judge.

Roberts also will return to Capitol Hill on Monday for his second meeting with top Judiciary Democrat Patrick Leahy of Vermont.

Now, for those that are unfamiliar with the background on Roe (hard to believe, but as is apparent even the Left has forgotten the finer details to this case), it was decided in 1973. In 1981, Roberts wrote the memos for the Reagan White House condemning the decision. And rightly so as Roe is not back up by jurisprudence, or even Constitutional law, in general. It is a gross miscarriage of the concept of Constitutional interpretation.

It is only natural for him to question the idea of an all-encompassing "right to privacy;" even liberal legal scholars were left scratching their heads over that idea. Legal scholars from both sides of the spectrum slammed the high court for its legal creativity in the decision. To date, quite a few liberal law professors believe Roe was decided incorrectly even if they do agree with the decision to allow a woman to murder her unborn child.

I expect this ad to disappear as quickly as their previous ad did from CNN. The simple fact remains that there is little, if any, evidence showing this man to be as extreme as the Left is portraying him to be. In short, they are simply sliming and slandering a very good man, a well-qualified jurist, and an outstanding family man. To say this man is extreme is as equally laughable as referring to Pres. Clinton or Larry Flynt as moralistic.

The Bunny ;)

Able Danger Meets The Red Chinese

Able Danger, the datamining group working for the DIA that is at the center of a controversy surrounding the 9/11 Commission, has now revealed another facet of their operations. The story below comes from the New York Post. It was up yesterday, and it’s pretty interesting. It’s interesting because Able Danger was shut down when they started this investigation. According to Clinton Administration officials, they were concerned over the group "spying" on US citizens.

August 27, 2005 -- WASHINGTON — Cyber-sleuths working for a Pentagon intelligence unit that reportedly identified some of the 9/11 hijackers before the attack were fired by military officials, after they mistakenly pinpointed Secretary of State Condoleezza Rice and other prominent Americans as potential security risks, The Post has learned.

The private contractors working for the counter-terrorism unit Able Danger lost their jobs in May 2000. The firings following a series of analyses that Pentagon lawyers feared were dangerously close to violating laws banning the military from spying on Americans, sources said.

The Pentagon canceled its contract with the private firm shortly after the analysts — who were working on identifying al Qaeda operatives — produced a particularly controversial chart on proliferation of sensitive technology to China, the sources said.

Lt. Col. Anthony Shaffer, the veteran Army officer who was the Defense Intelligence Agency liaison to Able Danger, told The Post China "had something to do" with the decision to restructure Able Danger.

Sources said the private contractors, using sophisticated computer software that sifts through massive amounts of raw data to establish patterns, came up with a chart of Chinese strategic and business connections in the U.S.

The program wrongly tagged Rice, who at the time was an adviser to then-candidate George W. Bush, and former Defense Secretary William Perry by linking their associations at Stanford, along with their contacts with Chinese leaders, sources said.

The program also spat out scores of names of other former government officials with legitimate ties to China, as well as prominent American businessmen. There was no suggestion that Rice or any of the others had done anything wrong.

A Pentagon official said last night that, while the canned contractors worked for Able Danger, the China project was separate from the counter-terrorism assignment.

The Able Danger work was transferred to another Department of Defense contractor — and the program quietly expired later that year when it was completed, the official said.

The China chart was put together by James Smith, who confirmed yesterday that his contract with the military was canceled and he was fired from his company because the military brass became concerned about the focus on U.S. citizens.

"It was shut down in a matter of hours. The colonel said our service was no longer needed and told me: 'You just ended my career.' "

Smith also claims his team came up with 9/11 hijacker Mohamed Atta's name and photo in 2000.

This story is interesting for a couple of reasons. First, and foremost, the allegations surrounding the Clinton Administration, and the possible exchange of nuclear technology for campaign contributions raises an eyebrow regarding the timing of the group’s break-up. I’m not furthering this allegation. It is, thus far, an unproven one. There is circumstantial evidence galore regarding this accusation, but there isn’t anything solid to move forward on.

Second, Able Danger has created a firestorm surrounding the 9/11 Commission. A majority of the nation believes that Able Danger should have been given more credence by the Commission, and instead they were virtually ignored. Granted, Able Danger’s big coup against the Commission is their allegation that they were aware of Mohammed Atta in 1999/2000—one full year, at least, prior to the attacks on 11 Sept.

The 9/11 Commission barely looked into the Clinton Administration and their failures to deal with the animals plotting against us. They allowed the nation and her interests abroad to be attack consistently, and nary raised an eyebrow about it. It was always treated as a law enforcement issue, which was an utterly incompetent way of handling terrorism. Terrorism demands the response of the military, and Pres. Clinton didn’t want to respond that way. This was typical of his administration. He’s willing to bomb Bosnia and Kosovo, but didn’t want to put boots on the ground. And whereas Clinton can brag that he didn’t lose a single US soldier, the civilian casualties from the bombing raids rival that of what has occurred in Iraq.

Likewise, they refused to touch on the fact that Clinton lied when he said that the Sudanese never offered Osama bin Laden to him. There are numerous recordings of him admitting that he had been offered to the US a couple of times. Clinton’s response? He hadn’t committed a crime against the US, they had no indictments against him, and therefore we couldn’t hold him. Never mind the fact that less than two months later a formal indictment was handed down out of New York for Osama. Whoops. Way to go, Bubba. Tell me Billy, aside from banging interns and attending lush parties, what did you do for eight years, again. Can you refresh my memory on that?

The 9/11 Commission is covering for the Clinton Administration. Able Danger, in my humble opinion, was also shut down because of this. It had nothing to do with whether US citizens would be "spied" on. It had everything to do with the age-old practice in Washington, DC of "cover your ass." That’s exactly what the Clinton Administration did when they discovered the track Able Danger was on. If there was any crime committed by Clinton, the last thing they would have wanted would be an indictment for treason to come down on their boss. (If the allegations are ever proven to be true, that is exactly what Clinton did. He committed high treason.)

Regardless, Able Danger needs to be dragged in front of the committees being urged by congressional leaders, along with the members of the 9/11 Commission. Put them under oath, and let’s get to the bottom of this. There’s too much information out there right now regarding this fiasco to simply sweep it under the carpet.

Publius II

More Collaboration From A Former Partner

Normally on a subject like this, I’d let let Marcie handle this one. But, as she’s busy, and I’m guessing she hasn’t seen it yet, I’m going to take a whack at it. The Italian Red Cross treated four terrorists in Iraq. This news was broken by CNN. Below is the report. (Hat-Tip: Cox and Forkum.)
http://www.cnn.com/2005/WORLD/europe/08/25/italy.iraq/index.html
http://www.coxandforkum.com/archives/000653.html

(CNN) -- The Italian Red Cross has said it treated four "presumed Iraqi terrorists" at its Baghdad hospital to secure the release of two kidnapped Italian aid workers, according to a media report.

Maurizio Scelli, the outgoing commissioner of the aid organization, is reported to have said the deal to free the two women -- Simona Pari and Simona Torretta -- was kept secret from U.S. officials.

"The mediators asked us to treat and save the lives of four presumed terrorists sought by the Americans, wounded in combat. We hid them and brought them to the doctors with the Red Cross, who operated on them," Scelli told La Stampa daily in an interview published Thursday.

"We also treated four of their children, sick with leukemia."

Red Cross spokesman Fabrizio Centofanti later confirmed to CNN that the organization had treated the Iraqis.

"The Red Cross is an impartial organization and it does not depend on the Italian government," Centofanti said.
"It did help presumed Iraqi terrorists, but it did so in the spirit of the Red Cross to help out everyone in need."

Italian Prime Minister Silvio Berlusconi's office, which has denied accusations it paid a ransom to win the aid workers' release, said the Red Cross was independent and did not answer to the government.

"As it is known, it (Red Cross) is not under the operative control, even less directives, of the national authorities precisely so that they can be recognized as neutral, which is indispensable for them to carry out their humanitarian mandate towards the international community," it said in a statement.

"Without entering into what has been said by its commissioner (Scelli), who is recognized for his high merits in the work carried out in favor of the injured in Iraq and other parts of the world, we underline how the government authorities never directed or conditioned his actions."

Cooperation between Italy and the United States had always been "reciprocal" in Iraq, it added.

Scelli, who was present at the handover of the two aid workers on September 28, said he helped to secure the women's release.

He told La Stampa the decision to hide details about the operation from U.S. officials was approved by Gianni Letta, Berlusconi's right-hand man.

"Keeping the Americans in the dark about our efforts to free the hostages was a non-negotiable condition to guarantee the safety of the hostages and ourselves," he said, according to Reuters.

Scelli said he held talks with Italian agent Nicola Calipari, who was shot dead in March this year by U.S. troops at a Baghdad checkpoint during a subsequent rescue operation for another Italian hostage.

OK. Don’t get me wrong here. I do believe that all chapters of the Red Cross do the best work they can in war-torn nations and warzones. However, these people are terrorists that are going to go right back into the field to go up against our troops. Yes, the treated them. I have no problem with that. What I have a problem with is the fact they hisd them from US troops. Added to this is the fact that Berlusconi’s right hand man–this is admitted in the piece above–ordered that US officials in Iraq were to be kept in the dark. And don't you just love how CNN takes the talking points of the Italian Red Cross that these four were "presumed" terrorists?

That’s twice. They didn’t want to tell us about the Sgrena operation in March. Calipari’s fault on that because had he revealed his mission there, US officials probably would have helped him secure Sgrena’s release. He died. It wasn’t our fault. He and his driver tried to run a checkpoint. What were our troops supposed to do, sit on their triggers? They had no clue what the intention of Calipari’s car was. For all they knew, with the speed it maintained approaching the checkpoint, it could have been a terrorist with a car bomb. They reacted correctly, of which the investigation into the incident proved that. I’m sorry the Italians disagreed.

Now, we see this again. I think something needs to be done with the Italians over there in Iraq. There’s nothing that says we would have killed those terrorists they treated. To even think that, someone has to be brain-dead. Earlier today, Marcie put up a piece written by Michael Yon. Yon is a retired spec-ops guy who has gone to Iraq to be an imbedded freelance journalist. The firefight that he witnessed, photographed, and wrote about included a wounded terrorist. When it was all over, and the terrorist was in custody, they transported him back to their base where he was treated for his wounds.

See, here’s the problem with the Left. They think that our troops are monsters in the field, and that they’re killing anything that moves. No, that’s not true. Our troops abide by the Geneva Convention, and the overall rules of war. We don’t kill unarmed, surrendering combatants, or a combatant that has been captured. We’re not barbarians.
But this action by the Italian Red Cross is unacceptable. They just contributed to the problem because they treated them, hid them, and allowed them to leave. I don’t care if the Italian Red Cross isn’t connected to the Italian government. Letta, Berlusconi’s right-hand man, ordered that this be kept quiet. If I were the president, I’d be gnawing on Berlusconi’s butt right now because chances are, those terrorists are going right back into the field, and they’re going to wound or kill more of our troops.

Publius II

Live From Iraq: Michael Yon’s Report On The Gates Of Fire

Michael Yon is a former Special Operations guy that is an independent correspondent in Iraq. In his dispatch "Gates of Fire," Mr. Yon posted a report of a firefight that erupted in Iraq. I had meant to post this last night, and was just too tired. When I woke up this morning, I posted on John Roberts, and while cruising through the blogosphere I was reminded on Hugh Hewitt’s site that this had happened. I will cite the meat-and-potatoes of the report below.

http://michaelyon.blogspot.com/2005/08/gates-of-fire.html

We loaded the Strykers and headed downtown.

Some Strykers were scouting for the shooters, while others were working details at Yarmook Traffic Circle. Major Craig Triscari from the 1-17th Infantry from Alaska was with Major Mike Lawrence, "Q," and other soldiers, when he noticed a car with its hood up. The 1-17th will relieve the 1-24th soon, so Triscari has been conducting operations with Deuce Four. The vehicle struck Triscari as odd: it hadn't been there a few minutes earlier.

Automatic weapons fire started coming from at least two places. Bullets were kicking up the dust, and we got a radio call that troops were in contact at Yarmook Traffic Circle. Sitting inside the Stryker with LTC Kurilla and me were two new faces. A young 2nd lieutenant who had only been in Iraq three weeks, and hadn't seen any real combat; and a young specialist, who, per chance, is one of the few Deuce Four soldiers who is not a seasoned veteran, though he has seen some combat. Also in the Stryker was "AH," the interpreter, whose courage under fire I had seen before. But the more battle weathered fighters were not there.

Chris Espindola, the Commander's radio operator, a respected and very experienced fighter, was down in Baghdad at the Iraqi Criminal Court testifying against two terrorists caught by Deuce Four months earlier. Like the card in the mailroom, the circumstances behind their capture were more germane to the events about to unfold than anyone might have guessed at the time.

Kurilla's reluctance to allow anyone outside Deuce Four ride with his soldiers--including writers--is well known. Partly because of writers, people hearing about Deuce Four in the news might think of Mosul as some kind of thrill ride where everything will end okay after a few hairpin turns. This is not true.

Newcomers, even soldiers, unaccustomed to this level of hostility, can only burden the men with added danger. So Kurilla makes sure they can be trusted by mentoring new officers and having them spend three weeks with him before they are allowed to lead men in this unit.

Some months back, a new lieutenant named Brian Flynn was riding with the Kurilla for his first three weeks, when Kurilla spotted three men walking adjacent to where Major Mark Bieger and his Stryker had been hit with a car bomb a week prior. The three men looked suspicious to Kurilla. who's legendary sense about people is so keen that his soldiers call it the "Deuce Sixth-Sense." His read on people and situations is so uncanny it borders the bizarre.

That day, Kurilla sensed "wrong" and told his soldiers to check the three men. As the Stryker dropped its ramp, one of the terrorists pulled a pistol from under his shirt. Mark Bieger was overwatching from another Stryker and shot the man with the first two bullets, dropping him to his knees.

LT Flynn was first out of the Stryker, and both he and the airguard CPT Westphal, saw the pistol at the same time and also shot the man. The other suspects started running. But all Kurilla saw was LT Flynn stepping off the ramp, and then there was a lot of shooting. Kurilla yelled FLYNNNNNNNNNNN!!!! and was nearly diving to stop Flynn from shooting, thinking the new lieutenant had lost his mind and was shooting a man just for running from Coalition forces. Soldiers can't just shoot anyone who runs.
Chris Espindola also shot the man. Amazingly, despite being hit by four M4's from multiple directions, the man still lived a few minutes. Soldiers out ran and tackled his two associates when they made a run.

During their interrogation on base, both admitted to being Jihadists. One was training to be a sniper, while the other was training for different combat missions. They also admitted that the terrorist who was shot down was their cell leader, who had been training them for three months. They were on a recon of American forces when Kurilla sensed their intent.

The cell leader had a blood stained "death note" in his pocket stating he was a true Mujahadeen and wanted to die fighting the Americans. He got his wish; and now, Chris Espindola, Kurilla's radio man, was down in Baghdad testifying against the two surviving co-conspirators. Despite their sworn confessions, Kurilla was left with a young radio operator with little trigger-time.

Flynn had now been a platoon leader for six months, but today Kurilla had another 2nd lieutenant who being mentored before he became a platoon leader. Our Stryker did not contain the normal fighters that I saw with LTC Kurilla, but we also had a section (two squads) of infantrymen in Strykers from Alpha Company. This section was led by SSG Konkol.

We were searching the area for the source of that automatic weapons fire when Kurilla spotted three men in a black Opel and his sixth sense kicked. When Kurilla keyed in on them, he pointed his rifle at the car and signaled them to get out. The driver tucked his head and gunned the gas. The chase was on.

Strykers are fast, but Opels are faster. We were roaring through little streets and along roads, horn blaring, cars zipping off the sides, the steady chatter of multiple radio channels colliding inside the Stryker. A Kiowa helicopter pilot radioed that he spotted the car. As the chase continued, the Kiowa pilot said, "It's going about 105 mph."

How can the pilot know it's going 105 mph? I thought.

As if in reply, the pilot radioed that the Opel was outrunning his helicopter. Captain Jeff VanAntwerp came on the radio net saying he was moving his section into position to intercept the Opel.
"Watch out for that kid!" yelled Kurilla over the intercom to our driver as we made a hard turn, managing to avoid hitting the child.

Opels may be faster than Kiowas on straight-a-ways, but when the car made turns, the helicopter quickly caught up. Kurilla ordered the Kiowa to fire a warning shot, then quickly authorized the Kiowa to disable the vehicle.

Kiowas are small, carrying just two people; they fly so low the two flying soldiers are practically infantrymen. The pilot swooped low and the "co-pilot" aimed his rifle at the Opel, firing three shots and blowing out the back window. The Kiowa swooped and banked hard in front of the car, firing three more shots through the front hood, the universal sign for "stop."

The car chase ended, but the men fled on foot up an alley. We approached in the Strykers and I heard Kurilla say on the radio, "Shots fired!" as he ducked for a moment then popped back up in the hatch. Kurilla continued, "Trail section clear the car and clear south to north! I'm going to block the back door on the north side!"

About fifteen seconds later our ramp dropped. We ran into combat.

Folks who haven't done much urban fighting might take issue with the wild chases, and they might say that people should always "stack up" and do things this or that way, but men in Delta Force, SEALs and the like, all know that when chasing wild men into the labyrinth, soldiers enter the land of confusion. If soldiers don't go fast, the bad guys simply get away. Just a few minutes ago, these three guys were going "105 miles per hour," and outrunning a helicopter.

There were shops, alleys, doorways, windows . . .

The soldiers with LTC Kurilla were searching fast, weapons at the ready, and they quickly flex-cuffed two men. But these were not the right guys. Meanwhile, SSG Konkol's men were clearing towards us, leaving the three bad-guys boxed, but free.

Shots were fired behind us but around a corner to the left.

Both the young 2nd lieutenant and the young specialist were inside a shop when a close-quarters firefight broke out, and they ran outside. Not knowing how many men they were fighting, they wanted backup. LTC Kurilla began running in the direction of the shooting. He passed by me and I chased, Kurilla leading the way.

There was a quick and heavy volume of fire. And then LTC Kurilla was shot.

Kurilla was running when he was shot, but he didn't seem to miss a stride; he did a crazy judo roll and came up shooting.

BamBamBamBam! Bullets were hitting all around Kurilla. The young 2nd lieutenant and specialist were the only two soldiers near. Neither had real combat experience. AH had no weapon. I had a camera.

Seconds count.

Kurilla, though dowm and unable to move, was fighting and firing, yelling at the two young soldiers to get in there; but they hesitated. BamBamBamBam!

Kurilla was in the open, but his judo roll had left him slightly to the side of the shop. I screamed to the young soldiers, "Throw a grenade in there!" but they were not attacking.

"Throw a grenade in there!" They did not attack.

"Give me a grenade!" They didn't have grenades.

"Erik! Do you need me to come get you!" I shouted. But he said "No." (Thank God; running in front of the shop might have proved fatal.)

"What's wrong with you!?" I yelled above the shooting.

"I'm hit three times! I'm shot three times!"

Amazingly, he was right. One bullet smashed through his femur, snapping his leg. His other leg was hit and so was an arm.

With his leg mangled, Kurilla pointed and fired his rifle into the doorway, yelling instructions to the soldiers about how to get in there. But they were not attacking. This was not the Deuce Four I know. The other Deuce Four soldiers would have killed every man in that room in about five seconds. But these two soldiers didn't have the combat experience to grasp the power of momentum.

This was happening in seconds. Several times I nearly ran over to Kurilla, but hesitated every time. Kurilla was, after all, still fighting. And I was afraid to run in front of the shop, especially so unarmed.
And then help arrived in the form of one man: CSM Prosser.

Prosser ran around the corner, passed the two young soldiers who were crouched low, then by me and right to the shop, where he started firing at men inside.

A man came forward, trying to shoot Kurilla with a pistol, apparently realizing his only escape was by fighting his way out, or dying in the process. Kurilla was aiming at the doorway waiting for him to come out. Had Prosser not come at that precise moment, who knows what the outcome might have been.

Prosser shot the man at least four times with his M4 rifle. But the American M4 rifles are weak--after Prosser landed three nearly point blank shots in the man's abdomen, splattering a testicle with a fourth, the man just staggered back, regrouped and tried to shoot Prosser.

Then Prosser's M4 went "black" (no more bullets). A shooter inside was also having problems with his pistol, but there was no time to reload. Prosser threw down his empty M4, ran into the shop and tackled the man.

Though I have the photo, I do not remember the moment that Prosser went "black" and ran into the shop. Apparently I turned my head, but kept my finger on the shutter button. When I looked back again, I saw the very bloody leg of CSM Prosser inside the shop. It was not moving. He appeared to be shot down and dead.

I looked back at the two soldiers who were with me outside, and screamed what amounted to "Attack Attack Attack!" I stood up and was yelling at them. Actually, what I shouted was an unprintable string of curses, while Kurilla was also yelling at them to get in there, his M4 trained on the entrance. But the guys were not attacking.

I saw Prosser's M4 on the ground, Where did that come from?

I picked up Prosser's M4. It was empty. I saw only Prosser's bloody leg lying still, just inside the darkened doorway, because most of his body was hidden behind a stack of sheet metal.

"Give me some ammo! Give me a magazine!" I yelled, and the young 2nd lieutenant handed over a full 30-round magazine. I jacked it in, released the bolt and hit the forward assist. I had only one magazine, so checked that the selector was on semi-automatic.

I ran back to the corner of the shop and looked at LTC Kurilla who was bleeding, and saw CSM Prosser's extremely bloody leg inside the shop, the rest of him was still obscured from view. I was going to run into the shop and shoot every man with a gun. And I was scared to death.

What I didn't realize was at that same moment four soldiers from Alpha Company 2nd Platoon were arriving on scene, just in time to see me about to go into the store. SSG Gregory Konkol, SGT Jim Lewis, and specialists Nicholas Devereaux and Christopher Muse where right there, behind me, but I didn't see them.

Reaching around the corner, I fired three shots into the shop. The third bullet pierced a propane canister, which jumped up in the air and began spinning violently. It came straight at my head but somehow missed, flying out of the shop as a high-pressure jet of propane hit me in the face. The goggles saved my eyes. I gulped in deeply.

In the tiniest fraction of a second, somehow my mind actually registered Propane . . . FIREBALL! as it bounced on the ground where it spun furiously, creating an explosive cloud of gas and dust, just waiting for someone to fire a weapon.

I scrambled back, got up and ran a few yards, afraid that Kurilla was going to burn up if there was a fire. The soldiers from Alpha Company were heading toward him when LTC Kurilla yelled out that he was okay, but that CSM Prosser was still in the shop. The Alpha Company soldiers ran through the propane and dust cloud and swarmed the shop.

When the bullet hit that canister, Prosser—who I thought might be dead because of all the blood on his leg—was actually fighting hand-to-hand on the ground. Wrapped in a ground fight, Prosser could not pull out his service pistol strapped on his right leg, or get to his knife on his left, because the terrorist—who turned out to be a serious terrorist—had grabbed Prosser's helmet and pulled it over his eyes and twisted it.

Prosser had beaten the terrorist in the head three times with his fist and was gripping his throat, choking him. But Prosser's gloves were slippery with blood so he couldn't hold on well. At the same time, the terrorist was trying to bite Prosser's wrist, but instead he bit onto the face of Prosser's watch. (Prosser wears his watch with the face turned inward.) The terrorist had a mouthful of watch but he somehow also managed to punch Prosser in the face. When I shot the propane canister, Prosser had nearly strangled the guy, but my shots made Prosser think bad guys were coming, so he released the terrorist's throat and snatched out the pistol from his holster, just as SSG Konkol, Lewis, Devereaux and Muse swarmed the shop. But the shots and the propane fiasco also had brought the terrorist back to life, so Prosser quickly reholstered his pistol and subdued him by smashing his face into the concrete.

The combat drama was ended, so I started snapping photos again.

And what awesome photos they are. Go to Mr. Yon’s site, and read the entire piece. He took a number of photos on this operation, including a series of them when LTC Kurilla is shot. These, ladies and gentlemen, are the stories that we never hear from the MSM. This is not flag-waving. It is telling the truth about what is going on with our soldiers in a combat zone, and these men are doing good work.

No, Iraq is not completely secure, but it is getting there. Our soldiers are doing their jobs, and they are doing them in the typical outstanding fashion. And when people like Cindy Sheehan and the rest of the antiwar nuts start spewing, it is good to be able to contrast their stupid, inane ramblings and rants with the good our troops are doing over there.

The Bunny ;)

Tripping Up The Twits At Turtle Bay

This was why Pres. Bush recessed John Bolton. The following news story comes from the UK Telegraph, (Hat-Tip: Hugh Hewitt.) http://hughhewitt.com/archives/2005/08/21-week/index.php#a000139

America's controversial new ambassador to the United Nations is threatening to torpedo 12 months of negotiations on the reform of the organisation.

With only three weeks to go before world leaders arrive in New York to agree the deal, ambassador John Bolton has tabled at least 500 amendments.

In a letter to fellow UN ambassadors, Mr Bolton said the 38-page document might have to be ditched altogether and replaced with a far less detailed alternative. The letter, which was leaked yesterday, asks other ambassadors to remain "open to alternative formats if they help us achieve consensus".

Mr Bolton's intervention has greatly raised the stakes in the search for a deal. America is now effectively asking the world whether it wants a new deal, or no deal.

The agreement was negotiated by all UN members states, but its predictably UN tone seems to have angered the no-nonsense Mr Bolton, a former senior state department official.

Large sections would commit Washington to policies with which it profoundly disagrees. America is being asked to promise 0.7 per cent of its national income for foreign aid; acknowledge the role of the International Criminal Court, which it has not joined; and cut extreme poverty and introduce primary education for all children within 10 years.

America wants the UN to back fundamental reform of the organisation's management structure; to agree measures to fight terrorism and to abolish its human rights machinery.

The ambassador's intervention is precisely what his supporters wanted. American conservatives believe the UN is corrupt and unaccountable. Congress is currently examining a Bill that would cut off American funds unless the UN makes major changes.

Nile Gardiner, an analyst at the conservative Heritage Foundation, said: "Bolton is sending a very clear message that the US is not going to go along with [the UN secretary general] Kofi Annan's definition of reform. Bolton is throwing down the gauntlet to the UN establishment."

And this is a gauntlet that is long overdue. The Left threw an absolute fit when the president recess appointed John Bolton, claiming he was too extreme. But based on this deal that the UN has constructed, Bolton had no choice but to oppose it. This deal does nothing to fix the problems at Turtle Bay. Rather it makes this nation bend over for them so they can screw us some more.

It’s bad enough we were screwed out of billions in the Oil-For-Food scandal, but now they want more. They want a mandatory tax from us, and they want us to recognize the ICC. These are not negotiable, and should be removed from the table. The UN isn’t happy we refused to pay our dues to the organization, however their work hasn’t improved.

I’m of the mind that the UN has long outlived it’s usefulness in the world. It no longer stands for peace in the world; that idea died long ago. Instead, this organization has turned to subjugating and occupying other nations. Look at the Congo. In contrast, look at how the UN turned it’s back on Rwanda and is doing so in Sudan and Zimbabwe. When it is something serious in the world, the UN decides that it shouldn’t be involved.

Bolton wants this deal nixed because you can’t deal with a cancer by throwing a band-aid on it. Bolton and Bush was serious reforms in this organization. If Kofi and his gang of thugs don’t want to agree to those, then there will be no deal. Step one on the list from the US should be Kofi Annan’s immediate resignation. Second should be a reform of the US Security Council. Third should be to relegate the UN to a humanitarian organization, and tight control over the money given to the organization for such measures.

The UN isn’t a government institution, and shouldn’t be treated as such. For eight years, the Clinton Administration gave this organization more credence than what it should have been given. It’s time for a change. And Bolton is doing it, much to the chagrin of the Left. I am sure it will not be long—a day or two, at the most—before the Left start whining that Bolton is being a meany-head at the UN. They’ll cry that he isn’t getting along with the other kids. He’s not there to play the go-along, get-along game. He’s there to represent the United States.

The age of criminality and cover-ups at the UN is over. We want everything laid bare for all to see so the people of the world can see just how irrelevant the UN is. The world needs to see how the UN has been doing business around the world with thugs and tyrants that they give legitimacy to. It’s time for the adults to step up, and lead. If those in the UN decide to stand in the way of true progress and reform, then they need to be run over.

And how telling is it that the Democrats continued to dawddle over Bolton? How long has our government known that the UN was putting this deal together? I’ll bet that they have known for quite awhile, and the Democrats didn’t want Bolton going to the UN to undermine this deal; a deal that they would approve of because it would force us to bow down to the UN even more than what we already do. We do not prostrate ourselves before this organization. As a matter of fact, were it not for us, the UN would have ceased to exist before it even got off the ground. Further, because of the Democrats and their obstruction of Bolton they should never be allowed to helm this nation again. It only goes to prove that they do not understand, nor do they care about the safety and national security of the country.

Publius II

Do They Really Think We Care?

The rhetoric in the Roberts fight continues to boil. The LA Times has a piece today regarding gay and lesbian groups coming out against him. This is a surprise, as just little over a couple weeks ago, it was revealed that Roberts worked on a case—Romer v. Evans—that had Christian conservatives up in arms. It was pro bono case he helped on while in private practice.

WASHINGTON — Despite John G. Roberts Jr.'s legal help in a landmark Supreme Court victory for gay rights, four leading gay rights organizations said Thursday that they had decided to oppose his nomination to the high court.

The four groups — the Human Rights Campaign, the National Gay and Lesbian Task Force, the National Center for Lesbian Rights, and Parents, Families and Friends of Lesbians and Gays — argued that the bulk of Roberts' record suggested he would be unsympathetic to gay rights cases.

"His writings as a lawyer, his rulings as a judge and his statements as a policymaker all lead us to the unfortunate conclusion that Judge Roberts would not vote to protect our civil rights from those who are, at this moment, fighting so hard to take them away," the groups said in a joint statement.

That last paragraph is telling. It is telling me these people have next to no clue what they are talking about. Roberts was not a policymaker. He never served in any legislative body, therefore he did not make policy. As a lawyer, the man argued on behalf of the White House, and the president residing within it. Second, what civil rights are they referring to? To my knowledge gays and lesbians do not have civil rights that protect them. And honestly, they do not need them. We cannot discriminate based on race, color, creed, religion, or age. Sexual identity does not figure in.

It cannot. Most of the sexual identity questions revolve around a choice. Granted, the same argument can be made for religion, except that our religious freedom is already guaranteed under the First Amendment. We have the freedom to choose to do a number of things in this nation, and many of them are protected. Many are not. I can protest, but during that protest I cannot assault someone. One action is protected. The other is not.

In their joint statement, the gay rights groups opposing Roberts' nomination said his record indicated he "would vote to roll back the constitutional protections upon which our community — and all Americans — rely.

"The groups said that the released files covering Roberts' prior government service suggested he was skeptical of the legal rationales that underlie most court rulings cherished by the gay community: the right to privacy and equal protection under the law.

"Ultimately, this is about an individual's right to privacy," Solmonese said. "From women's rights to religious freedom to civil rights, there is powerful evidence that Judge Roberts would rule against equality."

Roberts would rule against equality? Somehow I do not see that. This past weekend, Thomas and I participated in a symposium put on by Hugh Hewitt. Bloggers vetted the information released to the judiciary committee. We took up the most of the boxes regarding his stance on recess appointments. But just because we did that does not mean that we did not pay attention to the other eighty-seven bloggers that participated.

The topics were wide-ranging, and on the subject of equal protection, Roberts comes down firmly on the side of protecting those rights. But those rights must be enumerated, whether in the Constitution or in enacted law. If they are not, a judge cannot rule on them. Similarly, a judge cannot simply create it out of thin air. I know they do, and it is a travesty every time it occurs.

And they do have equal protecting under the laws. As I stated above, they cannot be discriminated against under the laws now, except with their sexual identity. However, citing the case Roberts worked on—Romer v. Evans—he did more for their cause than anyone else. The Supreme Court, by a vote of six to three, struck down the Colorado initiative that would have allowed employers and landlords to forbid gays and lesbians jobs and housing.

I fail to see the logic in their arguments. In the typical fashion of the Left, they have drawn their argument from the rhetoric of emotion, rather than common-sense. They poo-poo his record, and take up the talking points of Ralph Neas. Neas and his cohorts are wrong, and so are these gay and lesbian groups. No, Judge Roberts will not bend over backwards and give them new "rights," but he protect those on the books right now.

The Bunny ;)

The Not-So-Smart-Guy

Every week, Hugh Hewitt—one of our favorite talk show hosts, and a blogger we frequent several times a day—has "The Smart Guys" on. That would be John Eastman, from Chapman University School of Law, and Erwin Chemerinsky, of Duke University Law School, on his show. Now, I like John. He is a good man, and an excellent legal mind. And whereas Erwin is far more educated than myself, I still have to question his Lefty logic. (Yes, I am aware that the concept of "Lefty logic" is an oxymoron, but just bear with me.)

Yesterday drove me up the wall. I was wanting to reach through the radio and just slap Erwin yesterday. This was among the exchange that occurred, as Hugh started his piece with them by playing Ralph Neas insane rant, which is available below.

http://www.radioblogger.com/images/08-24neas.mp3
(If this does not load or play properly, simply click the link at the end to the Radio Blogger site, and Duane has it up.)

HH: John Eastman, I guess we're part of the radical movement conservatives.

JE: Well yeah. You know, I think Mr. Neas needs to go back and revisit his Constitutional Law class. Look, the radicals here are those that actually want to faithfully apply the Constitution. And you know, I remain pretty convinced that when the American people look at the policies Mr. Neas wants to support, and look at what the Constitution actually says, that those that adhere to the Constitution are going to get the overwhelming support of the majority of the population.

HH: Erwin Chemerinsky, we played a lot of the Ralph comments today, because he's lacking on specifics, except Roe V. Wade. And that's because he doesn't have any. The stuff he calls radical is really kind of mainstream stuff. You know, busing doesn't go over well in the United States.

EC: First, I want to take exception to John's characterization. Everybody on both sides claims to be faithful to the Constitution. I believe that my interpretation, William Brennan's interpretation, is just as faithful as John's interpretation, and Antonin Scalia's. We disagree over the meaning of the Constitution, but I take strong exception to the idea that there's one true meaning to a document that's written in such broad terms as the Constitution. Second, I want to largely agree with Ralph Neas. I think that the Reagan administration and the Bush administration were trying to radically change law, but I'll be specific. I think trying to overturn Constitutional protection of privacy, including abortion rights, overturning decades of law, is radical. I think trying to eliminate the wall that separates Church and state, saying that the establishment clause doesn't apply to the states, is a radical change. I think dramatically trying to curtail Congress' powers under the commerce clause as a spending power, is a radical change in the law. You can argue it's correct, and I'll argue that it's incorrect. But I stand with Ralph Neas, that I think this would be a very radical change in the law, and John Roberts was at the epicenter of arguing for it.

Erwin can take exception to John’s comments, but he is right, and Erwin is wrong. One only need to look at the track record of the current Supreme Court to see that the majority of justices are either moderate or liberal in their interpretation to the Constitution. Thomas did a fantastic dissertation of this phenomenon amongst the members of the federal judiciary, especially the high court. Erwin’s interpretation of the Constitution is nowhere near Justice Scalia’s interpretation. Erwin, to my knowledge, still believes that Roe was an appropriate decision.

He also cites that Ralph Neas is correct, in his opinion, is assuming that the Bush Administration is attempting to change the laws. How exactly. They obviously are not doing it through legislation, and to date the two cases the Court has taken up that I disagree with because of the legislative fiat that occurred at the hands of the Court were Hamdi and Kelo. That was not a move made by the "radical right." Those decisions were rendered, in majority, by the more liberal minded justices. And naturally, Erwin jumps right into the talking points Ralph Neas used regarding rights of privacy and abortion rights. Both of which are nowhere in the Constitution, and therefore should not be recognized. But they are, all through precedent.

And what Erwin misses on those particular subjects is that the Supreme Court’s duty is to render a decision on the Constitutionality of the arguments presented to them. They are to use the Constitution to decide that, and any other laws, cases, or documents to render their decision. One such idea that justices like Thomas and Scalia use is whether or not something was considered a "tradition" in the nation. That is a concept cited frequently by them. Subjects like privacy and abortion have less than no tradition in this nation, especially a legally protected decision. It was not as though we are overturning a law that had lasted for hundreds of years. Griswold established the "right to privacy" in 1956, if memory serves me correctly. Roe was established in 1972. The traditions that Erwin may wish to address is the mandate made by the Court up to present times. But neither were inherent at the time of the founding of America.

Further, Erwin comes from the camp—and I have heard him state that he believes this—that the Constitution is a living document, which it is not. It is an evolving document; evolution coming at the behest of the people to formally amend it. But it’s evolution does not come in judicial fiat. Yet, now, during this interview, Erwin seems to have rediscovered his "constitutionalist" hat. Bravo, but it does not excuse the foolishness of the past.

HH: And Erwin, do you think John Roberts is actually going to comment on Morrison and the reach of the interstate clause? He can't. That's prejudging decisions.

EC: Well, I don't believe that announcing one's views on issues is prejudging. We know Antonin Scalia's views say on Roe V. Wade. We know John Paul Stephens. They get to sit in on the case. I think that we need to know John Roberts' views. And I think that there will be Senators, and I know this almost to a fact, that will say that if the White House is going to say that they won't turn over the Solicitor General memos, and if they're going to say that the briefs John Roberts signed onto don't reflect his views, and if John Roberts won't give his views, they will vote against John Roberts. I'm not telling you it's going to be enough to launch a filibuster, but I will say that there will be Democrats who will be outraged by saying that John Roberts won't do anything to indicate his views.
It is pre-judging, and Ginsburg stood against such a move. So did Scalia, and Stephens. There were questions they refused to answer in their hearings. Roberts should be granted the same leeway, especially if there is even the slimmest chance that the case may be revisited by the Court when he is on it. He cannot make a determination one way or another without the case being presented in oral arguments, or through an examination of the Court’s records. It is also wrong because should he make a pre-judged determination, there is nothing to stop a lawyer from requesting that Roberts recuse himself over his case because Roberts would have spoken about it earlier.

No judge coming up for confirmation should ever be forced to give their views on certain issues. Those views are not supposed to figure into the decision. It is only through the era of judicial activism did politicos start demanding such things. Judicial activism is the primary problem with the judiciary as it stands, and it stems from the jurists decision to utilize their personal beliefs rather than adhering to the Constitution, and the letter of the law.

HH: Or on unenumerated rights, either. He's very suspicious of such things.

EC: Right. Justice Scalia believes that judges should be following the original meaning of the Constitution, and he believes he knows the original meaning of the Constitution. I should say, because you refer to the phrase judges legislating from the bench, I have an op-ed piece in today's USA Today that I co-authored, that says it's silly to use the phrase that judges should apply the law, not make the law. Judges make the law all the time. It's silly to say judges shouldn't legislate from the bench, because the reality is judges have discretion, and that form of exercising discretion in inherently setting rules for behavior. And so I think that whether we like John Roberts or dislike John Roberts, a lot of the rhetoric surrounding the nomination we all know is misleading.

This is a money quote, in my opinion, and I am about to make change out of Mr. Chemerinsky’s head. Justice Scalia interprets the Constitution using a method that is proven to be the closest to proper interpretations than I have ever seen from any other justice. He does not simply read the Constitution, he disseminates it, going as far to dig up dictionaries from the time to understand the words used, and what they meant at the time. Evolution of the law comes through the legislative bodies of this nation, not from the bench. Jurists are "making law" from the bench, and it is not proper. They do not have the power.

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." —Federalist #78, Alexander Hamilton.

That is what is proper for the courts, not, as Thomas put it today, a legislative mandate. Erwin can spin this as judges having such power all he wants, but it is not true. The system the Framers established was that the judiciary would be the weakest and least intrusive to the people, thereby guaranteeing their rights without ever truly threatening them. Marbury v. Madison changed that in establishing judicial review as a precedent, and the judiciary has simply gobbled up power since then.
But let me be clear here: Roberts cannot change anything on his own, and he cannot change anything with a minority. The idea the Left has that the moment he sits down on the court, all their hard-work activism is going straight down the johnny-flusher does not wash. Forgive the pun, but it does not. Overturning precedent for the correct interpretation, and remanding it back to it’s last place of origin does not make a thin illegal. It may in that state, but there is nothing saying that California, New York, or even Arizona could not sit back and say, "no. We WANT abortion legal." Fine. So be it. It is the right of the people to decide that, not be treated as second-class citizens with no voice, and have decisions made for them, which is the side Erwin is consistently on.

The Bunny ;)

(Full transript of this interview is here: http://www.radioblogger.com/#000921 )