Alito v Judiciary Committee – Final Round

Today was the last day of Q&A between Judge Samuel Alito and the Senate Judiciary Committee in Alito’s confirmation hearings for his nomination to the Supreme Court. Before I analyze it, besides the disclaimer I made in my first post on this topic applying again, I should additionally make the following legal disclaimer: I am not an attorney—in fact, I’ve never even played one on TV. However, I am a pretty smart guy and I have studied quite a bit of law. Most importantly when it comes to the law, I understand the principles of logic & critical thinking and many would say that I apply them excessively. Subsequently, my analysis here is devoid of emotion but critically analytical and, therefore, relatively unbiased.

The best part of today’s hearing is that the Democrats finally gave up on the CAP and the Vanguard issues. Democrats repeatedly slashed at Alito with these issues for two days but made no fatal cut…because they are very blunt instruments. Although the issues looked like they could inflict some damage when they were first drawn, the more they were wielded, the less of an edge they held. Granted, they might have said something about Alito personally, but CAP & Vanguard were just red herrings in the context of Alito’s qualifications for the Supreme Court.

Of course, as you would expect with the straw men knocked down, Alito looked much better than he did in Round One. Nonetheless, he was still nowhere near as adept as Roberts at addressing—or deflecting, as the case may be—the committee’s questioning. Subsequently, Alito was much more forthcoming and provided more insights into what he would look like on the bench. In a nutshell, a conservative, thoughtful, analytical, and (like me) unemotional justice.

In effect, whether I agree with his personal ideologies or not, because he appears to think much like I do, I have to appreciate his approach. And when it comes to a Supreme Court justice, the approach is crucial. A justice cannot allow his or her decisions to be driven by emotion. They must have the law drive their decisions, even if that decision ends up to be contrary to the justice’s personal beliefs.

The Democrats on the committee made it clear that they do not agree with Alito’s personal values. However, that’s outside of the scope of the Senate’s purview on this matter. They’re supposed to provide advice and consent, but not selection. Therefore, if they find no substantial grounds to deny the qualifications of the president’s selection for the bench, then the Senate is obligated to confirm the president’s nomination. Regardless of the fact that Alito had nowhere near the superstar performance Roberts did, no one could rightfully say that his performance was grounds for disqualification (at least if you let logic drive that claim rather than emotion).

If Alito gets confirmed and sworn in to the Supreme Court, Americans cannot blame the Judiciary Committee. The Senate cannot blame the president. If you think that Alito should not be on the bench, then you have to lay the blame at the feet of the American electorate. That’s right: the Constitution gives the president the responsibility of nominating Federal judges. The electorate made their bed, now they’ll have to sleep in it—for the next few decades.

Alito v Democrats – Round One

Today was the first day of Q&A between Judge Samuel Alito and the Senate Judiciary Committee in Alito’s confirmation hearings for his nomination to the Supreme Court. Before I analyze it, I should make the following legal disclaimer: I did not watch the hearing from end-to-end. That said, I did watch a good chunk of it.

How did Alito do today? In whole, he delivered very mixed results. Compared to Chief Justice Roberts‘ performance a few months ago, Alito could not hold a candle. However, compared to mere humans, Alito held up okay.

As a staunch supporter of many traditional conservative principles, I was comforted by much of the responses Alito had to today’s questioning. For the most part, he responded as a traditional conservative would.

Sidebar: Why do I keep using the term "traditional" conservative? Because many contemporary conservatives, and in particular neo-conservatives, have abandoned the traditional principles of conservatism. Instead, the most noted people called conservatives nowadays—especially the president—are actually radicals. Ironically, the definitions of "conservative" and "radical" are almost antonyms. Therefore, when I refer to traditional conservatism, I have to be clear that I do not include neo-conservatives.

There was one response in particular Alito made that I was pleased to hear: “The Bill of Rights applies at all times,” he said. “And it’s particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis, because that’s when there’s the greatest temptation to depart from them.” Then he dotted the ‘i’ by adding, “No person in this country is above the law, and that includes the president and it includes the Supreme Court.”

That’s not to say that Alito’s performance was without flaw. He was subjected to withering questioning by the Democrats on the Senate Judiciary Committee. Considering that the Supreme Court is a lifetime appointment, it’s only fair that the scrutiny of all nominees is rigorous, comprehensive, in-depth, and without boundaries. After all, a man of Alito’s age could sit on the bench effecting Americans for well over a generation, so they deserve an eminently qualified justice. However, the Democrats’ questioning of Alito went beyond what’s required to confirm him and extended to the lengths of becoming simply the pursuit of a partisan agenda.

However, his responses to partisan questioning were not the ones that were problematic. Instead, he had a couple of major stumbles in personal matters. First of all, he was asked about his statement that he would recuse himself in any case related to Vanguard mutual funds and his subsequent failure to do so. His response sounded disingenuous, simply saying “I just didn’t focus on the issue of recusal.” Considering numerous references to “Vanguard” in his finding in the Third Circuit Court of Appeals, he couldn’t credibly claim to have forgotten his commitment.

His second major stumble was around questioning on his proud reference to membership in Concerned Alumni of Princeton (CAP) that he included in his CV. Under questioning from Democrats, he tried to dismiss his involvement. At one point he claimed to not have been active in the organization, even though he used his membership to help get him a higher-level job in the Reagan administration. His claims to having joined CAP only for its relationship with ROTC rang hollow—at least on the left side of the Hart hearing room. Personally, I doubt that Alito was involved in CAP so much for its exclusionary position towards women and minorities as much as he was to distance himself from his modest roots and cast himself as an elitist, but that’s a weak endorsement.

All in all, Alito was much more forthcoming in this first round of questioning than Chief Justice Roberts was when he faced the committee. This was good because it gives Americans a better picture of what kind of a justice Alito would make than we had of Roberts. However, it also exposed some of his flaws. But in terms of the fundamentals of Alito’s commitment to uphold stare decisis, his penchant for the Constitution & Bill of Rights, and his unequivocal statement that no one is above the law, he fared very well. Stay tuned for round two.

The turning radius of an aircraft carrier

What’s the turning radius of an aircraft carrier? Conventional wisdom says it’s pretty large, but occasionally conventional wisdom gets turned on its ear.

One such case was a decade ago when Netscape was dominating the browser wars while the World Wide Web was still in its infancy. Microsoft was busy developing Windows 95, so it was focused on the desktop. With so much resources working on making users productive on their own PC, Microsoft wasn’t paying much attention to the potential of the Internet. Meanwhile, Netscape capitalized on their first-mover advantage to capture the lion’s share of the browser market.

However, after releasing Windows 95, Bill Gates had a chance to begin serious consideration of the potential of the Web. So he hosted an Internet Strategy Day and announced Microsoft’s commitment to adding Internet capabilities to all its products in what has come to be known as the Internet Tidal Wave memo.

Typically, giant enterprises like Microsoft are not nimble, so they do not respond well—or at least quickly—to new opportunities in their business environment. Like an aircraft carrier, it takes time for them to begin turning their massive inertia in a new direction. Subsequently, no one expected Microsoft to be able to catch up to Netscape with it’s huge lead in browser market share.

But it proved everyone wrong. By 1996, Microsoft had already released version 3.0 of Internet Explorer. It was so superior to the Netscape browser of the time that it quickly began to gobble up market share from Netscape. As history now shows, Microsoft reacted to the browser wars with the agility of a small company, eventually capturing more than 95% of the browser users in the 21st century.

The question is, can Microsoft turn itself on a dime again? It has recently been flanked by another, once small, competitor: Google. Google has been applying emerging technologies like web services and Ajax to quickly release innovative products like Google Earth. It has also been acquiring companies like Blogger to offer exciting new Web-based services the market has been demanding. Of course, Google’s search engine has become so dominant that the term has become synonymous with searching, allowing Google to build up billions of dollars in market capitalization from its advertising revenues. It has rapidly proved to be a serious threat to Microsoft.

Recognizing this, its Chief Technology Officer, Ray Ozzie, wrote to Microsoft executive management that it needed to respond to Google. He said the future of Microsoft was at risk if they did not do so rapidly. Recognizing the seriousness of this, Chairman Bill Gates wrote an email to Microsoft’s top employees akin to his Internet Tidal Wave memo a decade prior. He said, “This coming ‘services wave’ will be very disruptive,” and went on to add that, “We must respond quickly and decisively.”

Will Microsoft be able to? Only time will tell. However, with Bill Gates still at the helm, it’s likely that the Microsoft aircraft carrier will be able to turn at least with the radius of the Octopus—the yacht recently purchased by Microsoft co-founder Paul Allen. Granted, the Octopus can’t turn anywhere nearly as quickly as a Zodiac but, on the other hand, Google is no longer anywhere near what anyone would consider a small company. Therefore, with it’s vast resources available to put to the task, don’t count Microsoft out from being able to mount a seriously competitive response to Google’s recent successes.

The if-Bush-were-a-CEO test

No board of directors would praise his incoherent management of Iraq war

I wrote the following article about a year after the invasion of Iraq. It was published in The Orange County Register on May 26, 2004. Although much has transpired since then—most notably, a re-election—much remains the same. Therefore, the principles this article speaks to are as applicable today as they were back when I wrote it.

No reputable organization would embark on a major project without taking some basic steps. First, there would be a clearly defined goal and the objectives that lead to accomplishing it. There would also be a project plan complete with a specific timeline. The plan would establish milestones that identify the completion of interim steps. Each milestone would have a projected date of completion, as well as a finish date for the project. The project would have objective metrics of success. Finally, the project would have unambiguous criteria defining completion and a strategy for ending the project.

What happens when an organization attempts a major project without taking these steps? The project goes way over budget and well beyond the deadline. The final product will be poor quality and will not meet the original objectives and goal for the project. Ultimately, the board of directors will likely terminate the chief executive officer for allowing an important project to go forward without a project management process.

What is the largest, most powerful, and most respected organization on the planet? The United States of America. What is the most important and risky project that organization can undertake? The hostile deposition of a head of state followed by the forced occupation of the country and the subsequent implementation of a new government—a project referred to as war. Let’s look at what happens when this organization undertakes a war project without a project management process.

Before the war, Deputy Secretary of Defense Paul Wolfowitz said Iraq could finance its own war reconstruction from funds realized by selling its oil. Nonetheless, President Bush asked for $1.7-billion to support the resolution allowing him to depose Saddam Hussein for possession of vast stockpiles of WMDs. This was to be all that was required to finance the war. After the war started, the White House changed its story, saying the cost of the war would be $50-billion, but would not require sustained aid. Nonetheless, President Bush recently requested $87-billion more. Budget director Joshua Bolton claimed he would make no further requests for funding the war in 2004. Now President Bush is requesting another $25-billion, having made no progress restoring the peace in Iraq, if not actually being further behind.

Experts are now speculating that the U.S. will be in Iraq for years to come. The commander-in-chief and chief executive officer of the U.S. has no clear plan to win the peace in Iraq other than to “stay the course.” Nor has he presented an exit strategy from this war. He has not even established objective criteria that constitute having accomplished his mission in Iraq. In other words, the project is way over budget and well beyond the deadline. Continuing on this course, this chief executive’s board of directors—the voters that put him in office—will terminate him this November.

It’s not too late to apply project management principles in the war in Iraq. Fortunately, Bush’s request for another $25-billion is a perfect opportunity to apply pressure. Congress should refuse the president’s request until he first meets a number of conditions:

  1. He provides an unambiguous plan for winning the peace in Iraq.
  2. He provides milestones and objective metrics of success with each milestone.
  3. He provides an exit strategy from the war with a projected timeline for achieving it.
  4. He provides unambiguous criteria as to what constitutes the completion of the mission in Iraq.

Any responsible CEO of any major corporation would provide no less to his board of directors for any major project. Would President Bush have to make estimates and projections to meet these conditions? Of course he would, but that’s part and parcel of planning for the future. To meet these conditions, will the president have to create an environment where his performance would be much easier to assess than it is now? Of course, but isn’t that the least we should expect from the president of the greatest nation on this planet half a year before the next board of directors meeting?

Top 5

My brother listed five of his eccentricities in his blog, then encouraged others to share theirs. I thought, just five? That’s way too easy for me! So just for fun, I’ll whittle it down to my Top 5:

  1. I have not walked in almost eighteen years.
  2. My IQ is well into the genius range.
  3. Other than Mother’s Day, Thanksgiving, Independence Day, and Memorial Day, I observe no days (even birthdays and religious holidays) as special.
  4. I’m a pantheist.
  5. I use big words in everyday speaking.

I’m just getting warmed up, but I’ll leave it at that. I invite any of my friends to post more of my eccentricities as a Comment.

A man without a party

I’ve been registered to vote for years, but I registered again today even though I haven’t moved in a decade. So why would I register again? Because I didn’t like my party affiliation.

I’m in agreement with most of the traditional principles of the GOP. However, I also agree with much of the Democrat platform. So it’s tough to decide how to register in the first place.

Of course, in the 2004 election I was registered Democrat so I could vote for a presidential candidate in the Primary Election. I realized how important it was to field a strong candidate to oppose Bush in the General Election. Sadly, it didn’t turn out that way.

Unfortunately, I’ve been completely disenchanted with almost every Democrat in the legislature since 9/11, when the party turned into a flock of sheep. With the exception of perhaps only one Senator, every other Democrat in both the House and the Senate have devolved into invertebrates, kowtowing to almost every major initiative the president has brought forward simply because they’re afraid they’ll be seen as unpatriotic or weak against terrorism—liberty be damned!

On the other hand, the Republican party has completely lost its way. It has goose-stepped behind the leader of the party on every massive failure and fascist move he’s made these past five years. It has bought into Bush’s claim to have never made a mistake other than the handling of the Katrina aftermath. Almost every major Republican in the legislature has adopted Bush’s affinity for corruption. The party is infiltrated with neo-conservatives, and none of the others see that neo-cons are anything but conservative. The party has abandoned all of its traditional principles—the ones that I believe in—so I don’t even recognize it anymore.

I finally got fed up with all of the political parties. I don’t want to affiliate with any of them anymore, so I registered to vote. When I got to the Political Party section, I chose “I decline to state a political party” in the registration form. Not that I was leaving either party; it was the parties that left me. So it felt great to drop the form in the mailbox because now I can proudly state that I am neither a Republican nor a Democrat.

One nation, indivisible

I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation, indivisible, with liberty and justice for all. One of the reasons I am allegiant to it is because of the Establishment Clause of the First Amendment. It says, “Congress shall make no law respecting an establishment of religion.”

Likewise, Judge Karlton in a California US District Court today found that it is unconstitutional to recite the Pledge of Allegiance in public schools with the words “under God” in it. Call me a strict constitutionalist, but I believe that it does not matter what Thomas Jefferson wrote in his letter to the Danbury Baptists regarding the wall of separation between church and state. All that matters is what it says in our Constitution. Therefore, Judge Karlton was bound to uphold the Federal appeals court’s 2002 finding that reciting the Pledge in a public school is an unconstitutional “endorsement of religion.” Agreeing with them, I too omit the religious endorsement whenever I pledge allegiance to this republic.

Furthermore, the words “under God” were not part of the Pledge for most of its history anyway. It wasn’t until 1954, when Congress made a law adding the words to the Pledge (and again in 2002 when Congress made another law ratifying it) that they became part of the pledge. The key here is that Congress had to make a law for the religious establishment to come into effect. It seems there could be no more clear-cut violation of the Establishment Clause.

Thus, it was disappointing that the Supreme Court, in effect, punted when a decision on this matter was brought before them. Rather than settling the matter last year, the Court sent it back to the lower courts on a technicality. Five justices said that the father who brought the case on behalf of his daughter could not do so simply because the mother (not the father) had custody of the girl. Could it be that the real reason they shied away from the decision was because the only one they could reasonably reach would be so wildly unpopular with their conservative counterparts?

The case is sure to return to the Supreme Court, but the next time without the technicality to get out of making a decision. However, it’s unclear which way the Court will find because two of the three justices who previously stated their opinions on the merits of the case will not be sitting on the bench. The confirmation hearings also going on today made it no less clear how Judge Roberts will find (and few would argue that he will not be part of that decision). This is one nation that will have to wait a while longer to find out what the Pledge of Allegiance will sound like in your child’s class next school year.

Connecting the dots

Most Americans believe that the Bush administration thought military force against Iraq was necessary. However, it’s only because of the whitewash perpetrated on America by the Bush administration and its co-opted mainstream media. To find out the truth of the misuse and shaping of the intelligence on WMDs in Iraq requires research that few have done. No one source alone illuminates the grand deception: you need to connect quite a few dots.

The best place to start is by reading the Kent Papers on Intelligence Analysis. Written by Sherman Kent, the founding father of intelligence analysis and the preeminent expert at the CIA, they establish the practices that CIA analysts have applied for decades. To truly understand the manner in which the cover-up occurred, you must be familiar with the right way to perform intelligence analysis.

Although it’s complicit in the cover-up, the next source you need to read is the Senate Select Committee on Intelligence’s Report on the U.S. Intelligence Community’s Prewar Intelligence Assessments on Iraq. Even though it’s a whitewash, it provides a lot of excellent information on the intelligence activities going on during the time in question. Considering the Senate report in juxtaposition to the Kent Papers, then applying critical thinking to the contrast, is where the enlightenment begins.

You see, the Senate report shows that the way intelligence on Iraq’s WMD programs was analyzed was in direct contradiction to all the best practices the analysts were trained on. We learn in the Senate report that the CIA is steeped in an organizational culture that is not easily abandoned. So why would analysts suddenly throw out all the safeguards they applied in all intelligence they ever analyzed other than the intelligence on the threat Iraq posed?

It’s clear that the reason the analysts did so is because of the tried-and-true “carrot and stick” approach. The Bush administration created a shadow intelligence network that would tell the story about Saddam Hussein that Bush wanted told. Additionally, it pressured analysts in the traditional intelligence agencies. Intelligence officials have said that it’s unusual for a sitting Vice President to visit the CIA, yet Dick Cheny made numerous visits there in the run-up to the invasion of Iraq. CIA officials said that the visits created an environment in which some analysts felt they were being pressured to make their assessments on Iraq fit with Bush Administration policy objectives. Subsequently, in spite of unprecedented professional failures, the analysts behind the faulty Iraq intelligence have since received numerous job performance awards.

Now your homework is almost done. The dots are leading to an inevitable conclusion: that Bush knew existing intelligence indicated Iraq was not a threat to the US. However, you need to also understand why Bush would want to invade Iraq to lay the foundation of his motive for deceiving the American people into fearing nonexistent WMDs. The final assignment is to read the policies established by the Project for the New American Century. You will find that the Project was already promulgating an invasion of Iraq long before George Bush was President.

Why is the Project relevant? Just look at who the signatories to the Project’s policies are. You will find that it includes all of the major players in Bush’s presidential administration. The policies were formed by Bush’s handlers and all of the most outspoken Neo-Cons: Cheney, Rumsfeld, Wolfowitz, Armitage, Kristol, Woolsey, Abrams…and the list goes on and on.

Finally, you need to validate your findings. To do so, you need look no further than the recently exposed “Downing Street memo.” The memo documents a top-secret meeting gathered by British prime minister Tony Blair with top members of his administration eight months before the US invaded Iraq. Their discussions in that meeting included the following:

“Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy…

It seemed clear that Bush had made up his mind to take military action, even if the timing was not yet decided. But the case was thin. Saddam was not threatening his neighbours, and his WMD capability was less than that of Libya, North Korea or Iran…”

That’s it—you’ve connected all the dots. You now know more about the truth behind Bush’s justification to the Iraq War than most Americans. That should come as no surprise; you’ve now done more research on it that they have.