Balkinization  

Friday, December 20, 2013

Judge Shelby and Justice Scalia

Jason Mazzone

Whatever the merits of Judge Robert J. Shelby's ruling today that Utah's same-sex marriage ban violates the Fourteenth Amendment, his opinion would have appeared considerably more judicial had he resisted the urge to give Justice Scalia the finger. Some sample statements from today's decision:
  • Justice Scalia . . . recommended how this court should interpret the Windsor decision when presented with the question that is now before it: "I do not mean to suggest . . . disagreement that lower federal courts and state courts can distinguish today's case when the issue before them is state denial of marital status to same-sex couples." [Windsor, 133 S. Ct. at] 2709 (Scalia, J., dissenting).
  • The court agrees with Justice Scalia's interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.
  • The court . . . agrees with the portion of Justice Scalia's dissenting opinion in Lawrence in which Justice Scalia stated that the Court's reasoning logically extends to protect an individual's right to marry a person of the same sex.
  • [T]radition alone cannot form a rational basis for a law. . . . [A]s Justice Scalia has noted in dissent, "'preserving the tradition institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." Lawrence, 539 U.S. at 601 (Scalia, J., dissenting).
Inasmuch as Justice Scalia has never "recommended" that lower federal courts strike down state marriage laws, Judge Shelby's "agreement" with Scalia is nothing of the kind. Call me old fashioned, but it seems to me that if you can't fairly represent the opinions of Supreme Court justices, you have little business being on a district court.     



Comments:

Judge Shelby does not write that Scalia "recommended" that lower federal courts strike down state marriage laws. He writes that Scalia recommended how to interpret the majority's opinion in Windsor, which is exactly what Scalia did in dissent. In this way, Shelby and Scalia are in "agreement" on the logical conclusion of the Shelby majority, even though Scalia does not think Shelby was rightly decided.
 

I'd argue it's much more disqualifying for Justice Scalia (among many other members of the judiciary) to not be able to understand that discrimination on the basis of sex in the granting of marriage licenses is a type of discrimination on the basis of sex before reaching the question of whether it has a disparate impact on a different class. You could say that it means he has no business on any Federal bench, let alone as someone who purports to care about text over legislative intent.
 

I don't understand. When Scalia said in his Lawrence dissent 'this is what the court is saying and this is what it would apply to' should people not take him at his word? Shelby agrees with Scalia that is where the majority's reason in Lawrence leads. If Scalia was just being 'too cute by half' then we can hardly blame others for taking his dissent seriously.
 

Personally, I'm fine with it being recognized that marriage laws discriminate on the basis of sex, so long as it's also recognized that the ERA wasn't ratified.
 

I'm fine with the lack of an ERA while there's a clause in the Constitution which guarantees everyone equal protection of the laws, and which has been interpreted to require an "exceedingly persuasive justification" for discrimination on the basis of sex, with the discrimination being substantially related to the justification. I've yet to see any justification for prohibiting a marriage strictly based on the sex of the participants that can muster "persuasive," let alone "exceedingly persuasive."
 

Giving "justice Scalia the finger" will linger long in my mind. Perhaps if Scalia takes the point that Judge Shelby gave him the finger, Scalia may tone down in future dissents his views of the direction that the Court's decision may take in the future which seemed to guide Judge Shelby. This seems to be an unusual use of dissents by a lower courts. Have there been other instances of using dissents in this manner?
 

Well, of course you're fine with the ERA not being ratified, as long as the 14th amendment is interpreted as having the same effect as the ERA would have had. What I'm pointing out is that the very reason the ERA was proposed, written, passed out of Congress, and sent to the states, is that the 14th amendment was NOT so interpreted until very recently.

Indeed, rendering the non-ratification of the ERA moot was the point of interpreting the 14th amendment in this way. It's essentially judicial ratification of a failed amendment.

Not really any different than if an amendment prohibiting progressive taxation were attempted by conservatives, rejected by the states, and then the judiciary were subsequently induced to declare progressive taxation a violation of the guarantee of equal protection of the law.

I'm in favor of an interpretive norm for the courts: That the failure of an amendment to be ratified precludes changing the interpretation of an existing part of the Constitution to give the same effect. It's just too blatant that the ERA gets rejected, and shortly after the 14th amendment is "discovered" to mean the same thing.
 

Brett, for how long should the failure of an amendment to be ratified preclude changing the interpretation of an existing part of the Constitution to give the same effect? Presumably not forever, and your complaint is that it was "shortly" after failure of ratification that the 14th amendment was "discovered" to mean the same thing.

And, as for the scare quotes around "discovered," perhaps finding sex discrimination to violate equal protection was a natural reading that would and should have occurred even if no ERA had been introduced. So natural, in fact, that the burden should be on advocates of sex discrimination to introduce an anti-ERA.
 

Here's the headline at TPM:

"In Striking Down Utah's Gay Marriage Ban Judge Gives Scalia Big Bear Hug"

I wonder if Justice Scalia is getting his "shotgun" ready to fire back (in words, of course). Query: Is the "Big Bear Hug" preferable to the "finger"? Scalia's pre-emptive "slippery slopes" with Lawrence and Windsor dissents are in a landslide. And is Same Sex Polygamy next?
 

"I'm in favor of an interpretive norm for the courts: That the failure of an amendment to be ratified precludes changing the interpretation of an existing part of the Constitution to give the same effect."

I wonder what you think the failure of the Corwin Amendment means then, for, say, much of the 'New Federalism' interpretations handed down since the Rehnquist Court?
 

I'd argue it's much more disqualifying for Justice Scalia (among many other members of the judiciary) to not be able to understand that discrimination on the basis of sex in the granting of marriage licenses is a type of discrimination on the basis of sex

I think your criticism covers just about everyone on the bench. The argument that there is sex discrimination in either Lawrence or any of the DOMAs has been a failure. I find it hard to believe that virtually all judges fail to see the obvious, so perhaps there are good arguments that it isn't obvious?
 

The Corwin Amendment said, "No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State."

That translates to, "if you wish to enact such an amendment, you have to first repeal this one."
 

"Call me old fashioned, but it seems to me that if you can't fairly represent the opinions of Supreme Court justices, you have little business being on a district court. "

IIRC, in the same week, Scalia issued a dissent to the DOMA case, castigating SCOTUS for daring to overturn a law.

And then gutted a large chunk of the 14th Amendment on voting.


Scalia has long since fallen below the standard for intellectual honesty which should be demanded of a judge at any level.
 

Personally, I'm fine with it being recognized that marriage laws discriminate on the basis of sex, so long as it's also recognized that the ERA wasn't ratified.

The opinion held that there is a fundamental right to marry and that it was here being denied to same sex couples, particularly those of a certain sexual orientation. Likewise, it held that it violated EP even on rational basis.

The first prong is not a "sex equality" argument (in fact, state courts that recognized a right to SSM have consistently not relied on that), the second is not only based not on "sex" by on "same sex couples" but uses a lower level of review than the ERA. See also, New Mexico Supreme Court's recent ruling -- NM has a state ERA. It was not relied on. Instead, it was seen as sexual orientation discrimination warranting intermediate scrutiny.


The ERA would in effect require strict scrutiny for sex discrimination. It would have done this c. 1980. It took years for the Supreme Court, which could change its mind w/o a clearer constitutional command, to apply the more general language of the Equal Protection Clause in respect to sex to an "exceedingly persuasive justification."

The ERA allowed such years of development to develop. And, STILL the level of scrutiny is lower than the ERA. Even if the Equal Protection Clause was applied to hold that sex should be held to strict scrutiny, the time allowed for development of the law alone would mean something. A clear command also has special emotional force, which is one reason some wanted ERA to be ratified.

The ERA was proposed before a lot of stuff happened that helped balance the playing field. Some even opposed it as unnecessary since we already have an Equal Protection Clause. I personally think that myself. If we are going to guess the motivation of the few states that didn't ratify, why not use that as a reason?

 

The concern troll nature of the OP is tiresome. THIS is what we are going to focus on? I also agree with those who provide a different framing even if we are going to worry about that. Sheesh.
 

"Shelby's ruling today that Utah's same-sex marriage ban violates the Fourteenth Amendment, his opinion would have appeared considerably more judicial had he resisted the urge to give Justice Scalia the finger."

That is an opinion, not a statement of fact. Judge Shelby read Scalia's statements on the subject and agreed with them. Far from giving the finger; it's a use of another judge's statements to buttress a judicial ruling.
 

Justice Scalia has been running his "parade of horribles" for a long time and deserves to have his rants thrown back at him every once and a while.
 

This comment has been removed by the author.
 

While Brett and his AWM faction of the GOP have difficulties accepting the changing demographics of color, they seem to resent the already existing gender change demographics. Brett and his AWM faction of the GOP can continue to reminisce in the Constitution of yore that favored white male property owners, although Brett and his ilk directly did not enjoy those good old bubba days. Brett with his comments demonstrates the anger of the AWM faction of the GOP, this time with women-can't live with 'em, can't live without 'em.
 

Shag, I have little doubt that, should you live long enough, you, too, will regret the abandonment of the rule of law that I lament today. After it's too late for your regret to matter, of course...
 

What does Brett "lament today?" Does he lament the Civil War Amendments? What else as a member of the AWM faction of the GOP does he lament that he thinks I might lament if I should live so long? In my lifetime (much longer than his to date). I have seen progress, perhaps too slowly. But Brett seems to lament what he never directly had the opportunity to enjoy; that must anger him.
 

Scalia has been running a con for years, pretending that his opinions follow "original intent" whatever that bit of blather means. Because of that his opinions are an opinion shopper's dream, something for everyone in every direction. Good for Shelby for pointing this out in a way which will be painful for Scalia
 

Judge Shelby's favorable citation to Scalia's evisceration of the metaphysical Kennedy opinion is less giving the finger to Scalia than a very poor political decision to stick a finger into the eye of Kennedy.
 

Our TYRANNYSAURUS REX once again displays his blind reasoning.
 

Way to focus on the big picture.
 

OFF TOPIC: Over at Juan Cole's Informed Comment blog there is a video link to a C-Span interview of Prof. Andrew Bacevich on his recently published "Breach of Trust: How Americans Failed Their Soldiers and Their Country" that runs a fast 59+ minutes.

Those who choose to watch this interesting interview should keep in mind the objections of the founders/framers to a standing military after the American Revolution. The issues of public service and a citizens military might be anathema to all stripes of libertarians. But such may lead to a better citizenry.
 

Fortunately for us, the founders were not libertarians.
 

D. Ghirlandaio: Fortunately for us, the founders were not libertarians.

Congress did not impose a military draft until the Civil War.
 

This comment has been removed by the author.
 

The link to the Juan Cole book review to which Shag referred is here:

http://www.juancole.com/2013/12/bacevich-americans-soldiers.html

The review starts:

Andrew Bacevich’s “Breach of Trust: How Americans failed their Soldiers and their Country” is a post-mortem on the professional standing army that the US has sent to fight in Iraq and Afghanistan. Bacevich argues that the citizens’ standing army created by the draft in WW II and after had been highly successful militarily in Europe and Korea and had been a profound expression of individual buy-in and shared national sacrifice.

Three errors right off the bat.

1) The WWII draft was imposed to create an temporary army to fight a world war, not a standing army.

2) By definition, a compelled military draft upon pain of execution or imprisonment is the diametric opposite of "a profound expression of individual buy-in."

3) There was no shared-sacrifice. The WWII draft was riddled with exceptions for those the government wanted to keep as civilians for various reasons.

Cole concludes:

In fact, like hidden cancer, a whole host of potential pathologies lurked in the standing professional army…

Americans were actively discouraged from shared sacrifice and told by the president to go shopping and to go on vacation at Disney World.


Actually, recruiting was substantially beefed up because Bush expanded the size of the military.

What Cole is referring to was Bush's refusal to accept the Democrat proposals to use the war as an excuse to impose another tax increase on the wealthy, which is hardly shared sacrifice.

At the same time, the grunts did the heavy lifting, sentenced to multiple long deployments in a set of guerrilla wars that politicians maintained they won in the face of a gritty litany of disasters that left the countries where they fought long-term basket cases.

Cole's ignorance of military history is staggering.

When you were drafted during WWII, you were in for the entire war. You had two ways out - getting killed or getting maimed to the extent that you were no longer combat effective

Today, we have year long tours in a war zone followed by equal or longer breaks back home. You are not sentenced to anything. You initially volunteer to serve for three years, which could have one, maybe two, combat tours; then you have to reenlist for further stints.

I depart from pure libertarians in that I understand a government will usually need to impose a military draft in a major war to prevail against an existential enemy. Beyond that extreme situation, there is no justification in a free country for government imposed involuntary servitude.

Glorifying compelled military service in a war is heaping an obscenity on a necessary evil.




 

Note that our TYRANNYSAURUS REX is not focusing on Prof. Bacevich's interview but on Juan Cole's commentary. I realize that 59+ minutes is a long time for our TR to concentrate on the interview but it better expresses author Bacevich's views than does Juan Cole.

And Bacevich is not glorifying compelled military service. Rather, he thinks a military draft/public service requirement gives the citizenry skin in the game with respect to decisions to go to war, i.e. not being mere spectators cheering on wars in which 1% are involved, e.g. as was the case in the Bush/Cheney Administration, such that very few Americans had loved ones involved ir Iraq and Afghanistan.
 

Shag:

Sorry. Cole has a singular talent for offering ignorant statements which set me off.

Bacevich is a true classical American conservative of the type who historically was always suspicious of foreign entanglements and led our isolationist movements.

One of the great political inversions of the Twentieth Century was conservatives becoming internationalist under FDR and then progressives becoming isolationist after Vietnam. Bacevich is a historical anomaly.

Bacevich and I differ on how muscular foreign policy should be and our world views are colored by our military service - his by losing the Vietnam War and mine by easy victories in Grenada, the Cold War and the Persian Gulf War. Because Bacevich's POV is formed by his service rather than Cole's know nothing ideology, I can respect it.

Bacevich and I both share a deep unease over the divide growing between the military, it is civilian masters and the citizenry.

It IS easier for a ruling class which does not serve to order the military into battle to pursue its political objectives and then betray the military in the field and surrender when those objectives change.

It IS easier for a citizenry without "skin in the fight" to support or at least acquiesce to these decisions of the ruling class.

And it thus becomes easier for the military to question the competence and commitment of its civilian masters and the citizenry.

Bacevich worries that this divide leads to the abuse of the military. I worry that this divide will eventually lead to a coup d'tat by a military caste that - with more than a little justification - believes itself better equipped than civilian politicians to rule.
 

Holy crap, Blankshot, you really are fuckin nuts.
 

Prof. Bacevich makes the point in this interview, and in the book I presume, a point he has made in earlier books and articles, that American is good at starting wars but bad at winning them. Calling Grenada a war is a bit much and what did it win? The Cold War is not a traditional war. And while Gulf I for its magnitude was a war, the extent to which it was a win is questionable as it failed to resolve important issues.

As to a military coup d'etat, I can't see that happening in America as the military-industrial-congressional complex can't afford it. [Query: Wouldn't the Second Amendment yahoos come to our rescue?]

By the Bybee [expletives deleted], when asked what President Bacevich thought did a good job on military matters, he referenced Ike even though Ike had a couple of miscues.

I highly recommend watching, listening carefully to the interview. Bacevich is concise and directly asnswers questions. One can disagree with some of his views, but clearly America is bad at winning wars. And before America goes into war, the citizenry is entitled to the facts, the truth, proper assessments of costs and outcomes. Consider the messes of two long wars in the first 13 years of this new century. And more to come if neocons get back in power. Realists have been silenced too long.
 

Fortunately for us, the founders were not libertarians.
 

Speaking of libertarians, Joseph Stiglitz's "In No One We Trust" NYTimes Opinionator website column of 12/21/13, rejects self-interest and focuses on the need for trust for a society such as is America, that we need to bring back trust to make America work better. This column is an extension of Stiglitz's attacks on inequality. For me, Pres. Reagan's greatest accomplishment was "Trust, but verify." As Stiglitz points out, deregulation did not work so we have to go back to regulation to better assure trust.

And trust is part of Prof. Bacevich's concerns, trust that before going to war the citizenry will be involved in the debates, that the government will be truthful in its assessments of a decision to go to war. David Sanger of the NYTimes was recently interviewed (yesterday?) on C-Span on the recent book going paperback. Sanger and a cohort came up with a cost of over 3 trillion so far on the Afghan/Iraq wars (not including the costs of loss of life, limb, etc, on all sides or the continuing Greater Middle East issues). How well was the citizenry apprised of such costs in making decisions to go to war? As Prof. Bacevich points out, the citizenry was cheering on from the sidelines as most did not have skin in the game. But the wars went on and on. And then we had the 2007-8 Bush/Cheney Great Recession that dug such a deep hole we're still climbing out.

So perhaps Pres. Reagan's phrase should be reversed: "Verify and then trust" as least until the playing fields are somewhat leveled.

Stiglitz's column made me think about how my life has been with trust. I do trust, I have trusted and hope to continue to trust, as trust is necessary for survival. My trust is a form of self-interest but in a cooperative not a competitive way. Sometimes trust is misplaced. But that is the exception that we should learn from. (Just think of the trust we deal with on a daily basis from the time we awake until the next day.)

And then there's Pope Francis whose trust extends to the poor, a worthwhile message to the secular (such as myself) as well as the religious of various faiths. Imagine, Peace on Earth. But then there are those wars.

This is a time that families get together, with love and trust. Let's pass it on to the rest of this and next year. My tree comes down after January 6th, a religious tradition that I have continued on a secular basis. So Merry Christmas, Happy Holidays to all.
 

Shag:

I was a bit surprised at claim Bacevich's claim that the US has difficulty winning wars when it has lost only one - Bacevich's own Vietnam War - a won the others, often decisively.

Von Clausewitz was correct when he observed that war is "the continuation of state policy with other means." Most US wars are small affairs (like Genada) that advance limited policy goals (like regime change to stop the Soviet Empire from using the island to arm revolutionary groups in the region). You achieve the goals, you win the war, even if the collateral results are less than perfect.

 

You achieve the goals, you win the war, even if the collateral results are less than perfect.

# posted by Blogger Bart DePalma : 8:56 AM


That is moronic. If the collateral results are worse than the threat that you imagined (see Iraq's WMD), you lost the war.
 

Was the Korean War (Police Power) a win? What did America win?

How was Gulf I a win? What did it really accomplish based upon what came after?

And how have Afghan and Iraq been wins?

Prof. Bacevich goes back in time to the Philippines early in the 20th century in reviewing America's wars in his claim that America is bad at winning wars.

By the Bybee [expletives deleted], our TYRANNYSAURUS REX's:

"You achieve the goals, you win the war, even if the collateral results are less than perfect."

dated Von C's views on wars, do not apply today. Of course "less than perfect" is a tad absurd with respect to the Afghan/Iraq wars. As for "achieving the goals," the goalposts change along the way, which is a concern that Bacevich focuses on in the decision to go to war. Concepts of war change with time and technology. Von C is basically passe.

As to Grenada, this link:

http://america.aljazeera.com/articles/2013/10/25/invasion-grenadaronaldreagan.html

looks at Grenada after 30 years. Yes, Pres. Reagan made his C-I-C with Grenada. But what about those many Marines killed elsewhere? Where was the national interest/security in invading Grenada (which earlier I had know of from a popular song)? Was it the ability of American dental students to drill?


 

Shag: Was the Korean War (Police Power) a win? What did America win?.

Defended an ally (ROK) from conquest by one of the most brutal regimes in history (NK) and secondarily kept a strategic enemy (USSR) from using Korea to project air and sea power against a second ally (Japan).

How was Gulf I a win? What did it really accomplish based upon what came after?

Defended allies (Kuwait and Saudi) and our oil supply from conquest by another of the most brutal regimes in history (Saddam's Iraq).

You are correct that the US should have finished the job and removed Saddam from power, but that was not our objective at the time.

And how have Afghan and Iraq been wins?

We won a strategic victory in Iraq - both replacing Saddam (an ongoing threat to our oil supply and allies) with a democratic ally and decimating al Qaeda.

Afghanistan is still in question. If we leave an allied or at least neutral government and the Taliban/al Qaeda remain out of power, the war was a victory. If the Taliban/al Qaeda return to power, it was lost.

Prof. Bacevich goes back in time to the Philippines early in the 20th century in reviewing America's wars in his claim that America is bad at winning wars.

Nasty guerilla war, but another strategic victory. The Philippines became a long term ally and projected power against Japan.

dated Von C's views on wars, do not apply today.

Really? What then is the purpose of war if not to achieve political objectives?

Yes, Pres. Reagan made his C-I-C with Grenada. But what about those many Marines killed elsewhere?

Grenada and Lebanon are unrelated and the latter was not a war. The Marines were in Labanon as observers.

Where was the national interest/security in invading Grenada (which earlier I had know of from a popular song)? Was it the ability of American dental students to drill?

The Soviet Empire was using Cuban engineers to build a SAC bomber base in Grenada (which we later completed and turned into the first Reagan International Airport) and was using the island as a transshipment point to funnel weapons into guerilla groups throughout the region.

I was serving in the 82d Airborne at the time and was supporting the operation from Fort Bragg. Our troops on the ground found warehouses with enough weapons to arm a couple infantry divisions.

The danger to the students was a pretext to eliminate this threat.
 

Grenada was "The Gnat That Roared," a virtual comic opera. It probably spurred on the brooding neocons (who avoided serving in Vietnam) who advised George W.

Regarding post-WW II wars (however defined) based upon:

"What then is the purpose of war if not to achieve political objectives?"

how real, how lasting are the political objectives that were achieved in looking at the international scene today, particularly in the Greater Middle East moving into Asia?

By the Bybee [expletives deleted], our TYRANNYSAURUS REX has not mentioned Panama. And then there were other military adventures in the Western Hemisphere going way back in the Caribbean and South America that some have branded as part of the establishment American Empire.
 

Bart, one of the most brutal regimes in history, as you call it, came to full fruition after a war in which US policy was the carpet bombing of cities. Massive civilian casualties were thought to weaken the hold of the regime. 2 million men women and children, give or take. Every city, again and again.
Go fuck yourself.
 

BD: "What then is the purpose of war if not to achieve political objectives?"

Shag: "how real, how lasting are the political objectives that were achieved in looking at the international scene today, particularly in the Greater Middle East moving into Asia?"


There is no such thing as a war to end all wars and all achievements are temporary. A great nation achieves what it can to create a favorable international environment, while it can, at the least cost in blood and treasure. Foreign policy is more akin to trash removal than a triumphant "end of history."

The movie Patton did an excellent job correctly portraying the general as a military historian and synthesized a number of his real life statements into this pertinent film narration:

"For over a thousand years Roman conquerors returning from the wars enjoyed the honor of triumph, a tumultuous parade. In the procession came trumpeteers, musicians and strange animals from conquered territories, together with carts laden with treasure and captured armaments. The conquerors rode in a triumphal chariot, the dazed prisoners walking in chains before him. Sometimes his children robed in white stood with him in the chariot or rode the trace horses. A slave stood behind the conqueror holding a golden crown and whispering in his ear a warning: that all glory is fleeting."
 

The Soviet Empire was using Cuban engineers to build a SAC bomber base in Grenada (which we later completed and turned into the first Reagan International Airport) and was using the island as a transshipment point to funnel weapons into guerilla groups throughout the region.

I was serving in the 82d Airborne at the time and was supporting the operation from Fort Bragg. Our troops on the ground found warehouses with enough weapons to arm a couple infantry divisions.

The danger to the students was a pretext to eliminate this threat.
# posted by Blogger Bart DePalma : 10:49 AM


LOL The "threat" was "eliminated" because that was the only place in the region where it was possible for the Soviets to land aircraft. Oh, wait...

 

D. Ghirlandaio said...Bart, one of the most brutal regimes in history, as you call it, came to full fruition after a war in which US policy was the carpet bombing of cities. Massive civilian casualties were thought to weaken the hold of the regime. 2 million men women and children, give or take. Every city, again and again.

You most certainly are not describing either the air campaigns in the Korean or the Persian Gulf Wars.

Go fuck yourself.

And a Merry Christmas and Happy New Year to you.
 

BB:

The Soviets did not possess rights in the western hemisphere to a landing strip long enough for use by their strategic bombers.

Cuba was off limits since the missile crisis.
 

A federal judge -- on page three this time -- had a "Scalia was right" comment when holding that Ohio had to recognize a same sex marriage from another state on a death certificate. Ohio recognizes out of state marriages, even those it does not authorize itself, but not SSM.

I found this a bit gratuitous, especially since it was more prominently place, but it still is not what I'd focus on.
 

http://www.nytimes.com/2010/07/22/books/22book.html

For you, Bart.
 

http://www-personal.umich.edu/~lormand/poli/soa/grenada.htm

http://www.globalpolicy.org/component/content/article/155/25966.html


 

DG:

From your review:

The most eye-opening sections of “The Korean War” detail America’s saturation bombing of Korea’s north. “What hardly any Americans know or remember,” Mr. Cumings writes, “is that we carpet-bombed the north for three years with next to no concern for civilian casualties.”

"Eye-opening" because "carpet bombing" (indiscriminate mass bombing) of civilians in North Korean cities never happened.

The United States dropped more bombs in Korea (635,000 tons, as well as 32,557 tons of napalm) than in the entire Pacific theater during World War II.

This is hardly proof of "carpet bombing" civilians.

Here is a chronology of the Korean War air campaign:

http://www.airforcemag.com/MagazineArchive/Pages/2000/October%202000/1000korea.aspx

Cummings is probably referring to the strategic bombing campaign toward the end of the war targeting infrastructure, not civilians, to put pressure on the enemy to agree to a ceasefire.

http://library.uoregon.edu/ec/e-asia/reada/1528.pdf

Our logic seemed to be, he says, that “they are savages, so that gives us the right to shower napalm on innocents.

Innocents?

We used napalm to eliminate mass infantry formations. See the chronology provided above.


 

D. Ghirlandaio said.. http://www-personal.umich.edu/~lormand/poli/soa/grenada.htm

"But: The site is open to the public (no need for spy photos) since the airfield is meant to foster tourism (the island's only growth industry)."


Please.

Cuban military engineers were building an airstrip longer than needed or used by any other Caribbean Island and fought to defend it from the Rangers and some of my buddies in the 307th Engineers (82d Abn)

http://www.globalpolicy.org/component/content/article/155/25966.html

In reality, there were only three warehouses that were only one-quarter full of antiquated small arms that had been confiscated a few days earlier by the coup leaders from the popular militias.


LMAO! I saw the photos our men took.

The weapons were standard Soviet small arms up through anti-aircraft weapons

Where the hell would Grenadan "popular militias" have obtained these weapons.

Furthermore, Grenada was a most unlikely place for the Cubans to have stockpiled arms: Grenada is three times further from the Central American isthmus than is Cuba itself and only marginally closer to Cuban bases then in Angola, more than 12,000 miles away.

They were Soviet weapons. The Cubans were engineers working on the air strip.

Despite administration claims to the contrary, less than 100 of the 750 Cubans on the island were military personnel.

LMAO!

Here is some inside ball you will not read in the histories.

The 82d Airborne commander was incompetent and he plopped the division HQ in a field overlooking a town. In the back of the field, was a jungle with a company (100+) armed Cuban soldiers hiding there. No one bothered to set up perimeter security.

The Cubans could have wiped out the HQ, but were terrified by all the shock and awe and wanted to surrender. However, the Cuban commissars told them that we tortured to death POWs so they were also afraid to surrender.

The Cubans drew straws to see who would go out alone to the Americans and offer to surrender to see what would happen. This character walked up to the general's party with a white flag before anyone noticed him.

The Cubans surrendered peacefully after the "volunteer" POW told them it was OK.

Our general was relieved a few weeks after the operation was over.

This group does not count the Cubans we engaged around the airfield and elsewhere around the island.

Furthermore, despite initial press accounts that the U.S. assault was resisted almost exclusively be Cuban forces, it appears that the bulk of the resistance to the invasion was done by Grenadans.

Straw man. No one claimed otherwise.

Have you ever heard the terms "cover story" and "useful fools?"
 

Our TYRANNYSAURUS REX's:

"Foreign policy is more akin to trash removal than a triumphant 'end of history.'"

ignores that one person's trash may be another person's treasure. As to the "end of history," that might coincide with the end of the world as we know it. The concept of "the end of history" is not a perfect political world in the manner of Fukuyama after the end of the old war. Our TR seems to belong to the garbageman school of foreign policy and may be its only adherent. Consider what that "trash" consists of and how it is "removed", say, in the sense of the Civil War or pre-WW II Germany.

And consider our TR's:

"A great nation achieves what it can to create a favorable international environment, while it can, at the least cost in blood and treasure."

and apply it to the Afghan/Iraq wars.

No, our TR's history displays the stench of the neocons' approach to foreign policy. It is an example of the industrial/military/congressional complex in action, justifying great expenditures for defense but because of its costs, justifies cutting back safety nets of the lower middle class and the poor. Our TR's history, especially military, compares with his economics. To our TR, American exceptionalism results in a foreign policy akin to trash removal. That's trashy history.
 

Curtis LeMay: "we burned down every town in North Korea ... and some in South Korea too"

enough.

 

DG:

That is a willful misquotation of Lemay repeated without attribution among the usual suspects on the left.

In reality, the full excerpt from the interview discusses how the Pentagon denied LeMay's request to firebomb North Korea, as we had done with Japan during WWII, expressly to avoid civilian casualties.

The excerpt from LaMay you quoted was his complaint that the land war ended up devastating North Korea and parts of South Korea even though we did not firebomb the cities:

Kohn: Did you believe our bombing campaign against North Korea was strategic air war as you knew it?

LeMay: No, we never did hit a strategic target.

Catton: It was interdiction.

Kohn: It was interdiction with strategic bombers?

Catton: Absolutely. The strategic targets-the resource-were located north of the Yalu, yet we were not permitted to go north of the Yal~. ’General LeMay kept very close contact with those three units-the 98th, the 92d, and the 22d. He kept very close tabs on those outfits; they did the jobs they were asked to do extremely well. He also sent Rosie O’Donnell to be the FEAF Bomber Command Commander. So, while General LeMay did not relinquish possession of those outfits, they were under the operational control of the theater commander. Right?

LeMay: Right.

Kohn: No lessons to be learned from the strategic standpoint, then?

LeMay: How not to use the strategic air weapon.

Kohn: Could you expand on that a little bit, General LeMay?

LeMay: Right at the start of the war, unofficially I slipped a message in “under the carpet” in the Pentagon that we ought to turn SAC loose with incendiaries on some North Korean towns. The answer came back, under the carpet again, that there would be too many civilian casualties; we couldn’t do anything like that. So we went over there and fought the war and eventually burned down every town in North Korea anyway, some way or another, and some in South Korea, too. We even burned down Pusan-an accident, but we burned it down anyway. The Marines started a battle down there with no enemy in sight. Over a period of three years or so, we killed off-what- twenty percent of the population of Korea as direct casualties of war, or from starvation and exposure? Over a period of three years, this seemed to be acceptable to everybody, but to kill a few people at the start right away, no, we can’t seem to stomach that.


http://www.afhso.af.mil/shared/media/document/AFD-100929-052.pdf

Pages 87-88.
 

It's time for another viewing of "Dr. Strangelove" to better picture Gen. Curtis Lemay. To complete the double feature, let's add "The Mouse That Roared." to consider its many variations not only during the Cold War but since up to the present. Query: Is an alternative to our TYRANNYSAURUS REX'S garbageman school of foreign policy a Gen. Lemay recycling foreign policy?
 

"Over a period of three years or so, we killed off-what- twenty percent of the population of Korea as direct casualties of war, or from starvation and exposure? Over a period of three years, this seemed to be acceptable to everybody, but to kill a few people at the start right away, no, we can’t seem to stomach that."

 

The Soviets did not possess rights in the western hemisphere to a landing strip long enough for use by their strategic bombers.

LOL

Blankshot, how does it feel to be afraid of your own shadow?
 

As I read Roger Cohen's column today at the NYTimes website titled "When I'm Sixty-Four" about some prognostications on significant increases in longevity that some Hi-Techers are putting forth, I thought about my 83 years (so far) and wondered if this came about fairly soon, would I be looking forward to continuing to comment at this and other blogs. Would I need a health care provider well versed on computers and the Internet to keep me apprised of posts on my favorite blogs as well as the comments and who's making them so that I can dictate my own comments? Might my health care provider act somewhat to temper my comments in the interests of my health? Would Obamacare provide coverage for this if medically continuing to comment would be good for my health? To play on Gen. Douglas McArthur, "Old bloggers never die, and the commenters don't fade away."

These are my thoughts as I await the family gathering here in Brookline, as we usual suspects at this Blog maintain (hopefully) a Christmas Armistice in the manner of that WW I battleground event that I still get choked up about. " War, what is it good for? Absolutely nothing." (With credit to the Seinfeld episode.)
 

DG:

One last time, LeMay was spouting off. He was a SAC general serving in Japan and has ZERO personal knowledge of what happened on the ground with the grunts.

The war waged by North Korea and China against the South and us was bad enough as it was without adding slanders of your own country.

Just admit you were wrong and enjoy the Christmas holiday.
 

http://www.nationalmuseum.af.mil/factsheets/factsheet.asp?id=1933

"In the spring of 1952, with a stalemate on the ground and the failure of a negotiated truce, FEAF began a new policy of "selective destruction" using "air pressure" to force the communists to settle. The goal was to make the war in Korea too costly for the communists by destroying specific high-value economic targets.

The air pressure campaign started on June 24, 1952, when USAF, U.S. Navy and Marine fighter-bombers attacked North Korean hydroelectric dams, devastating the enemy's power supply. The air pressure raids continued into 1953 with strikes against key North Korean communication, transportation, manufacturing, supply, and power centers. In May 1953 Air Force F-84 Thunderjets attacked irrigation dams for the first time, causing extensive flood damage. The air pressure campaign was a means of striking at the enemy when the situation on the ground was deadlocked, and it was a significant factor in bringing the fighting in Korea to a close."

http://hnn.us/article/67717
"The first couple of times I went in on a napalm strike, I had kind of an empty feeling. I thought afterward, Well, maybe I shouldn’t have done it. Maybe those people I set afire were innocent civilians. But you get conditioned, especially after you’ve hit what looks like a civilian and the A-frame on his back lights up like a Roman candle—a sure enough sign that he’s been carrying ammunition. Normally speaking, I have no qualms about my job. Besides, we don’t generally use napalm on people we can see. We use it on hill positions, or buildings. And one thing about napalm is that when you’ve hit a village and have seen it go up in flames, you know that you’ve accomplished something. Nothing makes a pilot feel worse than to work over an area and not see that he’s accomplished anything."

From this: http://www.amazon.com/Bombing-Civilians-A-Twentieth-Century-History/dp/1595585478

And I prefer to take the General at his word. He was speaking after the fact, and about the historical record.

"By 1952, according to a UN estimate, one out of nine men, women, and children in North Korea had been killed. In the South, 5,000,000 people had been displaced and 100,000 children were described as unaccompanied. “The countless ruined villages are the most terrible and universal mark of the war on the Korean landscape. To wipe out cover for North Korean vehicles and personnel, hundreds of thatch-roofed houses were burned by air-dropped jellied gasoline or artillery fire,” Walter Sullivan, former New York Times Korea correspondent, reported in The Nation. J. Donald Kingsley, head of the reconstruction agency, called Korea “the most devastated land and its people the most destitute in the history of modern warfare.”

And a belated happy Chanukah to you.
 

Going back on topic of this post, Joe brought to our attention another recent reference to a Justice Scalia dissent by a federal district court judge. In thinking about this, the "case or controversy" requirement of Article III comes to mind, that the Court is not in the business of providing advisory opinions. Consider the dicta in Justice Scalia's decision in Heller on the Second Amendment indicating some areas of possible government limitations. While dissents are not addressed with specificity in Article III, might they constitute an advisory opinion of sorts on some future case or controversy? Did the dissents of Justice Scalia with their slippery slope predictions fit this description? How common is this with dissents over the years? In particular, was Justice Harlan's dissent in Plessy comparable to Scalia's dissents? Might the uses by lower court judges of dissents such as Scalia's suggest that other Justices in dissents in the future may engage in slippery slope predictions? Or, are the recent references by federal judges to Scalia dissents a message from the lower courts that it is difficult for them to be guided by controversial decisions of the Court?

Let me return to the BU Law School Conference on Political Dysfunction once agains to Panel VII "What are we to do about dysfunction? Proposed cures and other constitutional connections." The Panel included Frank Michelman who suggested that perhaps there was a need for a "constitutional interpreter" to address such dysfunction. Prof. Michelman paused and then said "like the Supreme Court." Then after a second pause, he said he had expected a "gasp" in response to this suggestion but there was no audible "gasp." I did provide a silent "gasp" not only because of the divided Court but also the issue of the "case or controversy" requirement and the taboo on providing advisory opinions. I haven't read Prof. Michelman's paper and look forward to it for some elucidation on his suggestion. As I noted in an earlier comment on Panel VII, it did not result in a consensus on whether there is political dysfunction and if so on possible cures that would pass constitutional muster.

So, has constitutional law become a blood sport?
 

I have to wonder just how credible a college professor who has never been a federal judge can place himself in a position as a "nay sayer" and potty mouth of shelby. I live in Utah and was impressed with this ruling. What wrong Prof? Jealous?
 

Perhaps had Scalia refrained from "giving the finger" to the SCOTUS majority, the LGBT community, and pretty much everyone else, it would have been easier for Shelby to resist. However, even if Scalia was sneering, his analysis was probably correct so I guess he just has to live with the fruits of his dark sarcasm.
 

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Tony's bed-wetting at the prospect of what equality might lead to, does indeed offer tempting quotes.

Of course that wasn't how Tony meant it. He was, the polite version would have it, "sending an alarm about the constitutional dangers he foresaw" (h/t to Bob Egelko). It simply happens that the prospects that alarm Tony, others find right and just.

Yet I suppose Shelby should have resisted the urge.

However Black too was unable to resist.

And others may follow.

Perhaps this weakness is not uncommon.
 

Funny that Prof. Mazzone doesn't seem very concerned by how judicial (or not) Scalia appears in his dissent.
 

Scalia basically drew a road map for arguments to use in lawsuits against states prohibitions of same sex marriage. Judge Shelby merely pointed that out in his opinion. If you don't get that, and the beautiful irony of it, maybe you shouldn't be teaching constitutional law, or any law for that matter.
 

. . . but it seems to me that if you can't fairly represent the opinions of U.S. District Judge Robert J. Shelby, you have little business being a law professor.
 

I think it is fairly common for dissents to predict the future and do so at times in ways that arguably exaggerate the necessary extent of the majority opinion. Brennan, e.g., was known for more than a few angry dissents predicting the possible lengths of the in his view oh so wrong majority opinions.

Sometimes, dissents are seen in hindsight as prophetic. For a discussion with some examples, see, "I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases" by Mark Tushnet.
 

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Well Mazzone got quoted in the New York Times - that's how I got here - but to me it just makes Mazzone look like an overly earnest academic lacking basic social skills, particularly a sense of humor. Or maybe this post is meant to be ironic since Scalia is imfamous for his snarky opinions. If he can dish it out, I'm sure he can take it...
 

Oh! The snark!

Now, let's be clear: dishing it out is not the same as taking it. Unfair, perhaps, but that's how the world works.

Tony is hardly the first person to have said too much. Perhaps we should be charitable.

Oh wait I just can't be in this case.

Perhaps when my gay friends aren't being BEATEN TO DEATH well then perhaps I will have more charity for Tony.
 

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