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Repeal the seventeenth amendment?

Repeal the seventeenth amendment?


Tuesday's post collected a lot of reasons why the Senate hasn't been distinguishing itself in the Roberts hearings.  In fact, I haven't seen anyone -- with the exception of some self-congratulation by the Senators on the Judiciary Committee -- who's impressed with the job that those Senators are doing.  They talk too much, they listen too little, and they often -- despite having had weeks to prepare, and despite, presumably, being the best legal minds in the Senate -- get the law wrong.  (Sometimes they even get wrong.)  It's enough to make you lose faith in the institution.

It's even enough to get some people calling for a of the , which required direct popular election of Senators, whose selection was previously left in the hands of state legislatures.

I don't know what I think of this idea -- you want to think that anything would be an improvement over what we've got now, but heck, that's probably what people thought when we ratified the Seventeenth Amendment -- but I have heard it proposed more than once recently.  (Some somewhat more serious criticism of the Seventeenth Amendment can be found .)  And this is surely a bad reflection on the Senate as it exists now.

My own proposal for reform would be a bit different: Make anyone who serves in the Senate ineligible to run for President.  That wouldn't be much of a loss, really -- Senators do very badly in the Presidential election business anyway.  But while legislatively selected Senators might have been smart guys, or at least politically wise men, Senators elected in statewide races are likely to be ambitious politicians who see the Senate as a stepping stone.  My proposal would steer those people elsewhere, which might improve the Senate.

It's a pipe dream, I suppose, but I suspect that we'll see more proposals to do something.  Because whether or not they confirm Judge Roberts, the Senate seems to have already confirmed some people's low opinions.


The genius of the Roberts nomination

I have to confess that John Roberts leaves me unmoved.  I neither love him nor hate him, and I still don't think I have a strong feel for the man.  If I had to guess, I'd say he'll be a technician-with-a-heart in the mold of the second Justice Harlan, but that's only a guess.

But nominating Roberts may have been a stroke of genius, for reasons that have little to do with Roberts himself.  If you assume -- as most people do -- that Bush's next nomination will be much more controversial, then it seems to me that the unnoticed value of Roberts' nomination to the Bush Administration has to do with its impact on the Senate.

There's no better way to make Senators look bad than to hand them a microphone and let them talk at length.  That's what the Roberts nomination has done, and the reviews for the second day are just as negative as the ones from the first.  Here's what writes in Slate:

That's because today's hearings are not about the candidate.  They are about the majesty and superiority of the Senate.  Sen. Ted Kennedy, D-Mass., describes these proceedings as a "job interview with the American people."  But in what solar system would a four-day job interview include a solid day in which the interviewer talks about himself?The level of self-congratulation here today leaves the room airless:  Sen. Arlen Specter, R-Penn., can't stop telling us how remarkably good his committee is about keeping to time limits.  Sen. Lindsey Graham, R-S.C., congratulates himself on the compromise agreement between the so-called Gang of 14—that "kept the Senate from blowing itself up."  He shakes his head.  "It was chaos. … We were at each other's throats. … We're doing better."  Oh, huzzah.  And Chuck Schumer, D-N.Y., credits himself thusly: "I began to argue that a nominee's judicial ideology was crucial four years ago.  Then, I was almost alone.  Today, there is a growing and gathering consensus on the left and on the right that these questions are legitimate, important, and often crucial."

Meanwhile, from the right, agrees:

Assume --correctly-- that nothing any Democratic senator can say will in any way change the dynamic that is moving towards a huge yes vote on the nomination.  The only thing that can change that dynamic is (1) an explosive revelation which is nowhere in sight nor likely to appear or (2) something that Judge Roberts himself says.Given that the only hope the left has of defeating this man who will be Chief Justice --God willing-- for 30+ years is something that he himself says, the Democrats' long winded and almost endless set-ups to their questions are in fact great favors to Roberts, allowing the judge to in effect run out the clock while not appearing to do so.  The Democrats should be asking short, simple, and open-ended questions --hundreds of them-- but they cannot bear to forfeit the television time so they chew up their only hope --the time that Judge Roberts spends talking-- and their opposition is thus perfunctory.

Lawyer-blogger , who actually attended the hearings, has a number of tart comments throughout his account, including this one:

Biden is talking about "tacit postulates."  (At some point, the Gang of 14 will decide this is an improper filibuster.)

Lots more tartness from , including this bit:

Questioning Roberts about standing doctrine, Leahy misses the entire point by not recognizing that injuries to the environment are enough to give a person standing.  He blurs them into the same category as no injury at all.  Roberts sincerely sorts through basic doctrine — this really is "hornbook law" — and doesn't make it excessively obvious that Leahy doesn't understand what he's trying to talk about.  Leahy mumbles his way into another interruption talking about — what? — tennis star?  Oh, Kenneth Starr.  Oh, lord, I wish Leahy's turn was up!

Later she observes: "I'm trying to resist hitting the fast-forward button."

I think it's hard for anyone to watch these hearings and come away with a better opinion of the Senate.  Which, it seems to me, works in favor of Bush's second nominee.  Do you think they planned it that way?

UPDATE:  The more I look, the more negative references to the Senate I find.  Here's what of the Washington Post said:

Sen. Charles E. Schumer (D-N.Y.) made 49 first-person references in a 10-minute statement that was, ostensibly, not about himself.Sen. Tom Coburn (R-Okla.) showed exceptional emotional versatility, working a crossword puzzle during the hearing and then choking back a sob while making a prosaic statement about partisanship.

Meanwhile, blogger Duane Patterson points out that Sen. Biden .

If I were Karl Rove, I'd try to keep these hearings going through next month...

ANOTHER UPDATE:  Law Professor James Lindgren is invoking as he critiques the Senators' performance.  He  observes:

Watching the Roberts hearings today, it is striking how ineffective most of the senators on both sides are in their questioning. They used most of their time to make speeches and often didn't listen to Roberts' answers.Most senators seemed extensively but poorly prepared and had trouble reading their own notes. The senators were in full Foghorn Leghorn mode (a Warners cartoon character based on another fictional character, Senator Claghorn).Comparing Roberts to these stereotypes of senators, on affect alone (leaving aside ideology and background) it would be hard to prefer any of these characters to Roberts for nearly any difficult administrative or judicial post.  The only possible exception that I saw (and I missed a few senators) was Biden, who was smart and fiesty, if arguably a bit unfair....Even the senators attempting to lecture Roberts on ethics appear to believe that they have lost this one, unless Roberts makes a major gaffe (which is unlikely if the senators do most of the talking).

He's probably safe, then!

September 13, 2005 |

John Roberts and the Senate

The New York Times gave me and a few other folks the chance to play Senator, by posing a few questions for Judge John Roberts.  You can read my questions , but here's one:

The Ninth Amendment provides that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Do you believe that this language binds federal courts, or do you believe - as Robert Bork does - that it is an indecipherable "inkblot?"  If the former, how are federal courts to determine what rights are retained by the people?  On the other hand, if the Ninth Amendment does not create enforceable rights, what is it doing taking up one-tenth of the Bill of Rights?

The actual senators didn't get around to asking questions today: That was dedicated to the all-important bloviating speeches.  This got some negative reviews from bloggers, with Matt Margolis :  "To be honest ... this opening stuff is very boring... This seems to be more about the individual senators than it does about Roberts."

Indeed.  Meanwhile, law-professor blogger Ann Althouse :

My son Chris (age 22) just came home. He looks at the TV and says, "Hey, that's our Senator." He watches for about eight seconds, then bursts out laughing and says: "What is the point of them lecturing him like this?" I just say, "Yeah, I know."

But her sharpest comments were reserved for Senatorial tears:

"When I ponder our country and its greatness, its weaknesses, its potential, my heart aches for less divisiveness," he says and pauses a long time, choking back tears.  "He's crying?!"  I exclaim.  We rewind the TiVo and play it again and, I'm sorry to say, laugh a lot.  After the long pause, he goes on: "...less polarization, less fingerpointing, less bitterness, less mindless partisanship."  You know, I agree!  I feel very strongly about all of those things.  But crying in a Senate hearing speech, moving yourself to tears?  I'm sorry.  I laughed a lot.

I can't help but feel that if the Senate knew how these hearings played outside the beltway, they'd make them a lot shorter, and do a lot less talking.

September 9, 2005 |

An appalling story

So we've already learned that Louisiana officials of New Orleans so as to encourage people to evacuate.  Now we learn that officials from Gretna, Louisiana to keep people in New Orleans from leaving:

Police from surrounding jurisdictions shut down several access points to one of the only ways out of New Orleans last week, effectively trapping victims of Hurricane Katrina in the flooded and devastated city.  An eyewitness account from two San Francisco paramedics posted on an Internet site for Emergency Medical Services specialists says, "Thousands of New Orleaners were prevented and prohibited from self-evacuating the city on foot.""We shut down the bridge," Arthur Lawson, chief of the City of Gretna Police Department, confirmed to United Press International, adding that his jurisdiction had been "a closed and secure location" since before the storm hit....The bridge in question -- the Crescent City Connection -- is the major artery heading west out of New Orleans across the Mississippi River.Lawson said that once the storm itself had passed Monday, police from Gretna City, Jefferson Parrish and the Louisiana State Crescent City Connection Police Department closed to foot traffic the three access points to the bridge closest to the West Bank of the river.  He added that the small town, which he called "a bedroom community" for the city of New Orleans, would have been overwhelmed by the influx. "There was no food, water or shelter" in Gretna City, Lawson said. "We did not have the wherewithal to deal with these people. "If we had opened the bridge, our city would have looked like New Orleans does now: looted, burned and pillaged." But -- in an example of the chaos that continued to beset survivors of the storm long after it had passed -- even as Lawson's men were closing the bridge, authorities in New Orleans were telling people that it was only way out of the city.

Obviously, better coordination and supervision would have done a lot of good. You can see a satellite photo of the area , and a map .


More on emergency preparedness

Katrina refugees have been arriving in Knoxville, and lots of people are turning out to help.  My wife dropped a carload of supplies at one of the shelters and reported that the place was mobbed with people doing likewise.  (Tennessee is not called the "Volunteer State" for nothing.)

Meanwhile, though, people around here are congratulating themselves for living in a place that doesn't get hit by hurricanes, and that is, in general pretty benign -- even tornadoes are usually weak around here, as the mountains tend to interfere with their formation.

But it's not as safe as people hope, and that's probably true where you live, too.  A commenter to notes that Knoxville is in the danger zone of the New Madrid Fault, and so is a lot of the central United States. (Check out of earthquakes strong enough to be felt.)  And, of course, there are other threats, natural and manmade.

That's why you should prepare now.  It's aimed at earthquakes, primarily, but here's a page on disaster preparedness from the .  And here's a from the LAFD, too, with instructions on getting water from water heaters, preparing your car, etc. Excerpt:

To those of us who live and work in the Greater Los Angeles area, earthquakes and other natural emergencies are a reality.  In order to deal with this situation, emergency preparedness must become a way of life.  In the event of a major earthquake or disaster, freeways and surface streets may be impassable and public services could be interrupted or taxed beyond their limits.  Therefore, everyone must know how to provide for their own needs for an extended period of time, whether at work, home, or on the road.

That's reality. Take note.

September 5, 2005 |

Drawing lessons from Katrina

The feds have arrived, and things are better.  The National Guard is also getting praise from military bloggers for its handling of things.  Donald Sensing :

I think that the level of professionalism the National Guard is displaying has been seen only a few times before in American history.  It's no coincidence that that other times were during war, too.As far as I can determine, no Guard troops have been federalized.  Guard units from other states have been deployed to La. and Miss. under the provisions of "emergency mutual assistance compacts that each governor has with every other governor in the country."

Meanwhile, military blogger Jason van Steenwyk :

This could not have gone well before the Iraq war.  But one thing the Army has learned to do well is process large numbers of people quickly, screening for bad guys.  We didn't learn this at Fort Benning or Fort Polk.I would argue that despite the absence of part of the LAARNG in Iraq, the overall quality of the response, and the rapidity with which it was able to be delivered, is perhaps BETTER as a result of the war in Iraq.  And our nation benefits indirectly from the leadership and logistics lessons learned by our National Guard officers and NCOs as a result of their widespread deployment to Iraq and Afghanistan. Kudos to the LAARNG for not going in prematurely. This is one operation where you absolutely needed overwhelming force, and to go in like a bolt of lightning. Good work, brothers and sisters.

Both Sensing and van Steenwyk point to from a little-noticed DoD press conference, in which we learn lots of useful things, but most importantly that no one anticipated the disintegration of the New Orleans Police Department that occurred:

The real issue, particularly in New Orleans, is that no one anticipated the disintegration or the erosion of the civilian police force in New Orleans. Once that assessment was made, that the normal 1500 man police force in New Orleans was substantially degraded, which contributed obviously to less police presence and less police capability, then the requirement became obvious and that's when we started flowing military police into the theater. Two days ago we flowed 1400 military policemen in. Yesterday, 1400 more. Today 1400 more. Today there are 7,000 citizen soldiers -- Army National Guard, badge-carrying military policemen and other soldiers trained in support to civil law enforcement -- that are on the streets, available to the mayor, provided by the governor to the mayor to assist the New Orleans police department. . . . Q: General, you mentioned a disintegration of the New Orleans Police Department. Do you know how many officers are still on duty?GEN. BLUM: I would rather not say. I think you'd be better to refer that question to the mayor of New Orleans. I have my own estimate. I would say they are significantly degraded and they have less than one-third of their original capability.

Part of the problem is that the New Orleans Police Department has never been one of America's best.  Another problem is that they lost communications very early, because their radio system wasn't designed to be survivable.

There are some important lessons there.  And they're lessons for everywhere.  As blogger Tom Maguire :

Bloggers and civic leaders might want to take a lesson from the debacle in New Orleans and check whether their local community has anything resembling sensible plans for different disaster scenarios - a dirty bomb, a nuclear plant containment breach, earthquake, fire, flood - the usual menu, adjusted by locality (and yes, earthquakes *can* hit New York City).

They can hit anywhere.  Now would be a good time to encourage your own local authorities to think a bit harder about this subject.


I've written before -- both ( and ) and -- about disaster preparedness.  Once again, we're seeing why it matters.

At the governmental level, the jury's still out.  New Orleans waited too late to evacuate, and doesn't seem to have had a very good plan for helping people without cars escape the city.  The Superdome has been a nightmare, with insufficient supplies or facilities, though at least it's been a living nightmare.

But many commentators have looked at the images of people without food, water, or much of anything and announced that this shouldn't be happening in America -- as if we enjoy some sort of supernatural immunity to natural disaster, or some sort of superhuman ability to make things better.

It doesn't work that way.  The reason why people like FEMA and the Red Cross recommend that you stockpile enough emergency supplies to get through at least a week without food, water, or electricity is that it generally takes at least that long after a major disaster to get aid flowing.  Roads are blocked, bridges are down, power plants -- and lines -- are wrecked, and communications are interrupted.  For at least a week (and you're much better off to be prepared for two) you may be on your own.

It's too late for the people affected by Hurricane Katrina to do anything about that now.  But it's not too late for the rest of us.  Don't pretend you'll never need to be prepared for a disaster.  Prepare, and hope that you never need to use it.

Scroll down, or go , for some ways you can help.