Begging The Question

I got an email from Stephen Dillard (a/k/a Feddie) last week. (Sorry; I’ve been out of town for a bit.) It had a link to a story about his post-Southern Appeal plans. I’ll admit that I was pretty sure he was giving up the blog to run “Georgians for Brownback,” so sure in fact that I didn’t mention it publicly for fear he’d think I was an infiltrator or something.

Basically, Feddie and some like-minded individuals have decided to organize “Catholics Against Rudy,” which is just what it sounds like. The Fedster’s position is that it would be especially bad to elect a president who proclaims himself Catholic but doesn’t meet their standards for co-religionists. This group is part of a larger effort among conservatives to derail Rudolph Giuliani’s chances of getting the GOP nomination. For example, Focus on the Family’s James Dobson says he won’t vote in November 2008 if Rudy is the GOP nominee (or at least he won’t vote Republican).

Feddie is perfectly free to sail on whatever swift boats he wants. But as I’ve said to him before when his principles came into conflict with whatever some apostate politician was doing, I’ll believe it when I see it. Maybe Steve will write in “Joseph Ratzinger,” but when it comes right down to it, I’m still highly dubious that far-righters will cut off their noses to spite their faces, especially if the end result is President Clinton.

I guess I’m Doubting Milbarge in this scenario, but I think the evidence is on my side. For one thing, no matter how many times I heard the phrase “dead to me” with regard to something President Bush has done, he still gets plenty of support from the far right. For another, according to the polls, it looks like social conservatives are willing to accept Giuliani, at least so far. Maybe that support is tenuous, pending Fred Thompson perhaps. But it’s there, and it’s giving Giluiani the cover to run with an eye toward the general election instead of the primaries.

Is Steve really prepared to accept Hillary Clinton nominating a few Justices to the Supreme Court? I would imagine the thought wakes him up in a cold sweat. I know that we have to keep in mind that “the lesser evil” is still evil, but given our two-party system, I just can’t believe social conservatives won’t see a qualitative difference between the candidates, even if one of them is Giuliani. So, like I said, maybe enough of these folks will abandon Rudy to swing the nomination or election, but I won’t believe it until it actually happens.

Then again, maybe they’ll vote against the guy on principle for once wearing such a bad combover. (This lovely picture lifted from The Politico.)

Milbarge asked me to write down some initial thoughts of the 2008 Republican candidates. My response was basically that as much as I love politics, I’ve been trying not to pay too much attention because I don’t want to get burned out on it before the main event rolls around. He thought that was even better, as we could revisit this post as the election gets closer, and see how my impressions have changed. So here goes.

Impressions, 19 months from election:

Rudy Giuliani
I have problems with Rudy. I think he’s a smart guy, and I don’t doubt his ability to get things done, but there’s something about him I don’t like. Maybe as the election gets closer and I start watching more coverage, I’ll be able to figure out what it is. Policy wise, I have one huge problem with Giuliani, and that is his pro gun control attitude. In an election where Republicans were assured of Congressional control, this wouldn’t be a deal breaker. But when there is every reason to believe that Democrats will retain their majority, a gun control president is something I can’t endorse. I never thought of myself as someone who had a litmus test issue, but apparently I do.

Would I want to have a beer with him?
No.

Mitt Romney
A bit too pretty. The Mormon thing doesn’t bother me terribly. I’m not a fan of the religion in general, but he doesn’t strike me as the kind of guy that would let it affect his policy. Don’t know tons about the guy otherwise. Seems like he’s got Clinton-like charisma, and if he doesn’t get the nomination this time around, I don’t think we’ve heard the last of him.

Would I want to have a beer with him?
Sure, but might cancel if something better came up.

John McCain
I have a world of respect for McCain, and I would have no problem at all with him as president. I know a lot of conservatives lament his maverick-ness, but a lot of that is politics (in the bad sense of the word). Not a fan of the campaign finance reform he worked on, but I think despite the crappiness of the bill, his intentions were good.

Would I want to have a beer with him?
Hell yes, and it would be an honor.

Sam Brownback
Don’t know a thing about this guy.

Mike Huckabee
See Brownback, Sam.

Tommy Thompson
Name reminds me of Jimmy James from NewsRadio. “The man so nice they named him twice.” Don’t know a thing about him as a politician.

Jim Gilmore
Who?

Tom Tancredo
I know the name, but I don’t know why. Vaguely recollect that he’s the big immigration guy.

Duncan Hunter
See Gilmore, Jim.

Ron Paul
Is he related to that guy that makes the guitars?

Fred Thompson*
I’ve read a few of his articles, and the man just exudes presence and common sense. The exact combination I want in the leader of the free world. My favorite comment about Thompson, from someone that knows him, was that he doesn’t act. In the movies/shows he’s been in, he’s just playing himself. Doesn’t hurt that he’s playing a president in his latest role. Not to mention it’s about damn time the country had a bald president again. It’s been too long.

Would I want to have a beer with him?
Yes. (With luck I could get him drunk and have him tell stories about working with Angie Harmon.)

Newt Gingrich*
Incredibly smart, undoubtedly the most innovative thinker out of all the candidates, regardless of party. Also completely unelectable. Way too much history and too many skeletons, which is a shame. He’s a lot like Hillary in that he has great name recognition, the only problem being most of it’s negative. I actually think he might be more effective back in Congress than in the White House.

Would I want to have a beer with him?
Absolutely. I think a bar conversation with Newt would teach me more than a year of college poli-sci classes.

If all of these guys were in the field, right now my vote goes to Fred.

* = Not yet declared.

1. I finally gave in to Bloglines. I had a few sites I read through there, but mainly I had been using the blogroll here and a long string of favorites in my browser. Eventually, I decided I was wasting a ton of time that way, and spent a few hours organizing my Bloglines. I have a little over a hundred subscriptions, organized in several folders, and each night when I get home, I have something like 400 new posts to browse. Obviously, I skim some less closely than others. Anyway, a few thoughts.

First, if your traffic is down, feel free to blame me for reading over there instead of clicking from here. Second, I really need to keep organizing as I get a better sense of how often some sites publish. Third, I’m worried that I’m missing stuff. Partly because I spend too much time on dumb stuff from sites I hardly ever read otherwise. Partly because I think I process information more visually and I can’t remember where I read anything if it’s all on the same Bloglines template. I might have to work on that.

2. Speaking of templates, I think it may be time to change this one. The problem there is that I have no idea what I’m doing on the tech side of things, and Fitz (who has always handled that stuff) has apparently forgotten about me. So maybe I’ll figure out what to do about that.

3. I’m thinking about a couple of things to post about, but as always, feel free to pass on any requests. I know that Sebastian is working on a couple of good posts, so I’ll publicly, and good-naturedly, chide him to get those done. Anyway, check back when you can, or whenever Bloglines tells you to.

I ran across this YouTube video today. You’re probably familiar with Maury Povich’s shows where he does paternity testing. This one must take the cake. The woman, a frequent guest of Maury, is waiting for the results from the seventeenth man to undergo testing. Seventeen! The kid in question is over three years old, and the woman has apparently spent much of that time trying to find the father, and she clearly has a lot of suspects.

At first, the video is funny, but then it becomes kind of sad. But seriously, what is the deal here? I think either (a) this woman does not understand the basic biology behind pregnancy, (b) does understand biology and actually had that many “gentleman callers” around the time of conception, or (c) is perpetrating a big scam. I don’t watch the show, and this clip is too short to provide any context, so I can’t say for sure. But none of those possibilities is very pleasant. And if she’s on the up-and-up, you have to wonder how long this can possibly go on. Surely she would eventually have to run out of candidates, right?

Anyway, you tell me: more funny or sad?

(Subject line, of course, from Clerks — link NSFW.)

A few law-related thoughts this week:

1. There’s been a lot of chatter this week over the Supreme Court’s decision in the car chase case, Scott v. Harris. Some links from my blogging betters: Marty Lederman and Lyle Denniston at SCOTUSBlog; Orin Kerr at the VC here, here, and here; a few more from Howard Bashman. You can go there for the details. Basically, the Court held that a police officer did not violate a fleeing suspect’s constitutional rights when the officer bumped the suspect’s car from behind during a chase, resulting in a wreck that left the driver paralyzed.

This case interests me mainly because of the discussion of qualified immunity. Justice Breyer in concurrence, and to a lesser degree Justice Ginsburg, broach the possibility of completely re-working the qualified immunity framework. Under current doctrine (what Breyer calls the “fixed order-of-battle rule”), courts first decide whether there’s a constitutional violation and only then ask whether the constitutional rule was “clearly established” at the time. Justice Breyer suggests scrapping this scheme when it’s easier to decide the clearly established issue.

I think this would be a bad idea. I talked a little about qualified immunity a few weeks ago when the Court argued the “Bong Hits 4 Jesus” case. Norm Pattis at C&F reports that Erwin Chemerinsky thinks the Court might use the “Bong Hits” case to take this step in QI doctrine. And it’s easy to see why. As I discussed in my post, and went back and forth in the comments with Steve Minor of the SWVA Law Blog, QI cases can be hard when the constitutional issue is murky but the clearly established prong is simple.

And, the QI two-step is an exception to the Court’s usual rule of avoiding constitutional issues unless it’s absolutely necessary. But that rule is merely prudential; it isn’t constitutionally-based like the Steel Co. rule against assuming jurisdiction. I’d be just fine with requiring courts in Fourth Amendment cases to make an explicit constitutional ruling before addressing the Leon good faith exception, but I’m definitely in the minority there. I could handle the Court skipping the con-law holding in QI cases if they agree to hear a lot more cases raising those issues.

The biggest benefit of the current QI approach is that it does give some guidance to lower courts. As Justice Scalia acknowledges in the majority opinion, “such a departure from practice is ‘necessary to set forth principles which will become the basis for a [future] holding that a right is clearly established.’” Or maybe the Court just wants to give up establishing rights. Let’s see how the “Bong Hits” case comes out.

2. Good post here at Abstract Appeal discussing a very interesting Florida court of appeals case involving duties owed to children before they’re conceived. A doctor screwed something up during a birth, and it put the woman’s future yet-to-be-conceived children at risk. Sure enough, her next kid is injured. The court says the doctor owes a duty of care to the unborn kid and can be sued for malpractice. (I’m boiling it down pretty crudely. It’s actually a good discussion of duty to third party concepts and the “zone of danger.”)

First, I’ll be interested to see how the group of people who are both pro-tort reform and pro-life react to this case. (I’m kind of being snarky — I figure they’ll be fine letting the kid sue but will still cap the damages.) Second, I have to wonder if this case will one day be cited somewhere along the slippery slope in an argument over the rights of, and duties owed to, fetuses. I think the court is probably right here, given that (a) the doctor should have recognized the problem with the first birth, and (b) if the doctor had met his duty of care to the mother during the second birth, i.e., gotten a complete history, then (c) he probably would have acted differently during the second birth and the kid would not have been injured. And the court does a good job in limiting the scope of the opinion. But it just strikes me as the type of case that might be spun and stretched down the road somewhere.

3. There’s a little buzz at from Prof. Volokh at his place and Will Baude at Crescat over the new Anthony Hopkins movie Fracture. They have all the spoilers if you want to check them out. (This post is only semi-spoily.) Basically, there’s a legal issue that kind of twisty. It’s probably right on Double Jeopardy law, but probably wrong on collateral estoppel law. As an aside, back in January, I discussed some similar issues in a post about trying O.J. Simpson for conspiracy to commit murder. I noted that such a case might be able to get around Double Jeopardy but would likely run into a collateral estoppel problem based on O.J’s acquittal on murder charges. Obviously, it was a complete throwaway thought experiment regarding O.J., but it’s nice to know I would have spotted the issue if I had seen Fracture.

4. Not strictly about law (yet), but I found this interesting and wanted to pass it along: A new academic study says that white referees call more fouls against black players than against white players in NBA games. The difference was up to 4.5%. (To a lesser degree, black officials call more fouls against white players.) I haven’t looked closely at this yet. But I have a feeling we’ll be hearing more about it. Kudos to the reporter who gets a quote on the matter from Don Imus.