On John Podhoretz On Real Time With Bill Maher

4/28/18

John Podhoretz as a guest on Real Time. 

I don’t hardly ever watch Bill Maher.

But last night I did because John Podhoretz was on the panel with Ian Bremmer and Ana Marie Cox. Other guests were Ronan Farrow, one on one with Maher, and later Ross Douthat in a merger of one on one and panel inclusion too.

Any number of things struck me about the show, but to keep this short and sweet, what struck me like a slap across the face was Podhoretz’s virtual silence on whether Clinton H should have been criminally charged. 

I quite often read him on Twitter where he’s uncompromising in describing Clinton as a gonnif and an utter hypocritical moral low life. He’s been outspoken on how Comey flinched in not recommending charges against her. And on his Commentary podcasts, he’s dominatingly voluble, so much so that “podcasts” could in his instance be eponymous.

But as Maher, Bremmer and Cox virtually as one strong voice railed from their liberal perspective against the overemphasis on the emails and the private server and the taint of criminality attached to Clinton, Podhoretz was, for all his tweeting and other outspokenness, quite quiet on the issue, maybe offering some sotto voce dissent. When against that soft spoken dissent he was asked, almost rhetorically, I paraphrase, “Did you want to see her locked up,” he was tongue tied, mumbling something about, I paraphrase, “Not really but maybe....” and then he just trailed quietly off.

So what struck me was the contrast between all that former vociferous outspokenness and last night’s diffidence in the midst of some forceful liberal consensus on the issue. I’m not sure what to make of it save for my impression that he flinched.

I did once see Amy Holmes as a guest on with Maher and she was forceful and persuasive with a command of the facts in pushing back against his pronouncements and theses even as they were joined in by his other liberal guests.

On The Wrenchingly Tragic Life And Death Of Alfie Evans

4/28/18

The wrenchingly tragic story of the life and death of Alfie Evans, of which I’ve made no deep study.

So a few first instance impressions.

I’m finding it hard to understand the denial of the parents’ request to take Alfie to Italy for further treatment and care, keeping him on life support. 

I can understand a medical decision to take him off life support, although that’s obviously a tough one. 

And I understand qua their children, parents’ wishes, often religiously based, are not always paramount. This is especially so when conventional medicine offers life saving and parents out of conviction want to deny that offer. 

I can understand too an institutional decision not to prolong in incurable suffering and respecting mentally able adults’ decisions to end their lives. 

But how to measure the suffering of this child, who fought on, his little body buoyed by his physical adjacency to his mother’s body and by what unaided help his father could give him? 

How to deny his parents wanting to take him somewhere else, Italy, to see, hope against hope, what could be done for him and at least to keep him on life support?

Likely, very, very likely, what was on Italy’s medical offer meant only slim to none hope; still, how is the rejection of that life affirming offer ultimately justifiable? 

How to justify quitting what chance there was, and in the absence of success keeping Alfie alive for as long as possible? 

I can see, as I say, overriding parents’ wishes when those wishes mean certain death for their child—(say) Jehovah Witnesses denying blood transfusions for their children—but when the opposite is the case, when institutional denial means certain and quick death over life, I can’t see it even as I understand the argument from suffering. 

Note On The Upcoming June, 2018 Ontario Provincial Election

4/28/18

Note to a few friends on the upcoming Ontario election:

....(Said with self deprecating irony) Just as I knew Caroline Mulroney would sweep the PC leadership race, I offer you a contrarian thesis.

The conventional wisdom is that had Christine Elliott won it, she’d have been a shoe-in compared to Doug Ford, (who has my vote, btw.)

I beg to differ. 

Elliott’s moderate political presence would have tamped down base enthusiasm and middle voter enthusiasm for change. She’d have been seen as a right leaning establishment figure of politics as usual, not decidedly different from Kathleen Wynne, more of the same than different, different the way Frick and Frack are different. 

Ford for good and bad is markedly different, polarizing and a lightning rod to be sure, but he generates excitement in being so different. 

My call is that middle range voters, those not tied to particular parties, will be attracted to this marked difference on the grounds that:

(1) they’re just not, by and large, voting NDP, though it will siphon off left leaning votes from the Liberals; 

and (2) they can’t abide more of the same whether it leans right or left. 

A version of the foregoing, although the players were different—you had Smitherman rather than Wynne; and you had 7 years of Miller standing in for all the last many years of Liberal government—got Rob Ford, who I voted for, elected. And it will, I predict, get Doug Ford elected too.

http://www.cbc.ca/news/politics/grenier-ford-harris-1.4636845.....

A Note On Bret Baier’s April 26, 2018 Interview Of James Comey

4/27/18

 The famous case of Baier v Comey. 

I saw Bret Baier interview Comey last night on Fox Newshour. 

Comey was utterly self assured in answering a series of excellently formulated, tight, probing questions. Comey is no fool. He’s nimble and agile. And he’s slick to the point of an oiliness worthy of Clinton B. Yet Baier by and large asked him no follow up questions on specific answers by way of either testing or challenging the answers. 

I’m of two minds about that. I wish he had. Some of the answers were at a minimum testable. But maybe Baier’s rationale was to ask the good, challenging questions, let Comey’s answers get out there and then let viewers decide. 

Sometimes in cross examination when answers betray a contrived position, it’s not necessary to break down the contrivance. It will speak for itself and the finder of fact, judge or jury, will assess the contrivance, aided by final argument, which is when what breaks down the contrivance can be put to the fact finder. 

I’m undecided whether the analogy holds here. I suppose the after-interview discussion can be seen as a version of final argument and that the audience’s then determination for itself might be seen as a version of fact finding. 

But the more I think about it the more I come to think that while Baier didn’t want to get in a pissing match with Comey, didn’t even want to be seen arguing as such with him, didn’t want to get bogged down and weedy on any particular point, didn’t want to come across as impolite and *did* want to get all his questions asked in a limited amount of time, he’d have been better off with a few selected follow up questions knowing in advance what Comey’s answers on big points were going to be. 

He could have asked something like, “Well, an opposing view is such and such, how do you answer it?” A light amount of that would have filled in the gap between unhelpful disputatiousness and virtually no follow up whatsoever. 

One example that struck me like a slap across the face was on Comey formally using the phrase “no intent” in deciding not to recommend charging Clinton H criminally. The relevant statute’s standard is “gross negligence,” which is patently understood not to require intent. (Comey is his original exoneration of Clinton H of criminal charges used the phrase “extremely careless.”)

When asked about using “no intent” as a reason to recommend no charges given the statute’s explicit dispensation with intent, Comey reasoned that, I’m paraphrasing, “Intent is a state of mind, gross negligence is a “state of mind” and so what Clinton H did doesn’t rise to the necessary intent.”) (“It was extremely careless but not grossly negligent.”)

There’s a logical fallacy here—I think it’s the fallacy of division: by this, someone asserts that something is true of one or more of the parts from the fact that it is true of the whole. That intent and gross negligence—recklessness or conscious indifference to harmful consequences—are both states of mind doesn’t, it’s patent, equate gross negligence and intent for criminal law or for that matter for tortious purposes. In both legal realms there is a clear and well trodden to the point of it being a patent distinction between intending to do something and being heedless of consequences. 

I twigged to Comey’s sleight of hand here immediately, but not everybody would on the spot, especially non lawyers. But my point is that the amount of preparation that obviously went into the excellence of Baier’s questions would have been greatly augmented by a touch more. A few well formulated, polite challenges to anticipatable answers could have with a light touch exposed Comey’s oily slickness.

A Note On Kagan’s Use Of The Israel Hypothetical In Trump v Hawaii

4/26/18

Someone on FB complained for a variety of reasons about Kagan’s Israel hypothetical—what if a notorious anti Semite were president and then ordered restrictions on anyone who wanted to travel to the U.S. from Israel.

I didn’t find the hypo troubling as a legal or non legal matter.

Here’s what I wrote on that complaint’s thread:

.... Isn’t the point of Kagan’s hypo an attempt to establish that there could be conceivable circumstances when a court could review the bona fides of a travel/immigration related executive order, so to say, go behind it facially, that, say, as per the hypo, if a notorious bigot were in office and who ordered travel restrictions aligned with his bigotry, then it would be appropriate for a court to review and pass on the order from the standpoints of what the statute allows for and of what the Constitution demands? 

So the hypo wasn’t qua Israel as such. Israel in it simply served as a means to make the point of where the court’s reviewing prerogatives can arise from. 

After all, at least as I heard Katyal’s argument, the heart of it, or at least a couple of ventricles of it, turned on, or, not to mix metaphors, got pumped by, Trump’s various anti Muslim campaign statements and then after he took office a few of his alleged anti Muslim tweets. 

Katyal told Roberts that if Trump explicitly took back all that he’d said about Muslims, then he could reissue the executive order free of Katyal’s legal challenge. 

Mind you, I think the argument that flows from the hypo is a really steep uphill climb on the  facts of this case for many of the reasons you point out. 

But I don’t take the hypo as invidious or insidious. It was just one of those imagined examples that come up in oral argument by which judges try to establish and flesh out the starting points or bases for then further analysis, here going to show, as I note, that there can be certain conceivable circumstances whereunder it would be appropriate for the court to review the bona fides of the executive order by both the statutory and constitutional standards....

A Few Impressions Of Oral Argument In SCOTUS In The Travel Ban Case

Trump v Hawaii

4/26/18

Travel ban case:

I see that April 2018 is on its last legs. 

Old friend I soon will say goodbye to you.

But that’s not my point.

My point is that I listened to the oral argument in SCOTUS on the travel ban. I was able to follow the argument as aligned with the transcript. (See below link)

The whole exercise was compelling. 

Noel Francisco arguing for the government was strong and didn’t allow the justices to bully him, insisting politely on being able to finish his answers. The questioning by the liberal justices was probing but I thought his arguments were forceful and that “he gave as good as he took.”

But I wasn’t prepared for Hawaii’s lawyer Neal Katyal’s appellate brilliance and utter mastery of his brief. He speaks too quickly but he so has his arguments down cold and he made a much better showing of affirming the lower courts’ reasoning in their holding against the third version of the ban than I expected. 

No one could lay a glove on him and my impression is that the liberal justices gave Francisco a tougher time than were the conservative justices able to give Katyal, owing in part to how tight his position is and how absolute is his command of the arguments for it. One sign of that is that Roberts offered him an extra five minutes of argument if he wanted it. He didn’t.

The consensus seems to be that the govt had the ultimate best of it yesterday even while acknowledging Katyal’s superb appellate advocacy.

I agree with that and I think the govt will prevail 5-4. 

My sense is that:

the statute, 8 U.S.C. § 1182(f), will be read to give Trump the power to do what he did and that Katyal’s limiting reading of it such that it contains executive discretion won’t be accepted;

The executive order will not be seen as a “Muslim ban,” Trump’s campaign statements and later tweets as President notwithstanding; 

therefore, my sense is the constitutional claims, particularly the Establishment Clause argument, will fail;

the rationale for the ban will be accepted by a majority, namely a world-wide multi-agency review prompting Homeland Security advising Trump to restrict travel from those countries not providing baseline vetting information;

I don’t think Katyal surmounted the point of new contingencies arising beyond what Congress has set out for assessing travel entry, which then clears the way for the executive exercising its discretion as it sees fit in the circumstances; 

and that leads to a principal concern for a majority, namely, the court not wanting to put itself in the position of making foreign policy and security reviews and determinations about executive decisions on what’s needed for national security from the standpoint of foreign travel to the U.S. 

I report, opine and you decide.

Swinging Both Ways On Capital Punishment

3/25/18

I’ve swung both ways on capital punishment.

I used to be dead set (“dead set,” get it?) for it on the ground that for heinous crimes it satisfies a public need for retribution, one of the policy pillars of criminal sentencing.

I’m still for it on that ground but given the possibility for error I on balance (“on balance,” get it?) swung away from it, reasoning that the cost of innocent human life is too great a price to pay.

I tried on the argument of reserving it for a super category of cases of proof positive but decided against that argument on the basis that any such category impugns the certainty of like heinous cases of guilty but not within that certain super category. 

So that left me against capital punishment on the pragmatic ground of the cost of innocent life due to error outweighing the benefit of retribution. 

But with the just-two-days-old rampage killing of 10, maiming of 15 others, some still fighting for, maybe clinging to life, with it happening in a neighborhood not far from my own and on the very street I’ve often walked and could easily have been walking, with two people I know spared death or inury by a few hair splits and now with the names and stories of the innocents trickling out, my fellow Torontonians, my rage and outrage are implacable conditions in me that need staunching. 

So I’m swinging back to capital punishment on the basis that heinousness plus certainty mitigate and thus outweigh the price of the possibility of error.

Too, this  guy deserves whippings before execution.