Law & the Courts

How to Discipline the Yale Law School Shout-Down

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Students walk on the campus of Yale University in New Haven, Conn., November 12, 2015. (Shannon Stapleton/Reuters)

This time, it could be different. Typically, university administrators desperate to avoid disciplining students who silence visiting speakers downplay or deny the realities of shout-downs, deflecting public outrage until the heat dies down. Anything is better than meting out punishment to students who portray themselves as champions of disadvantaged minorities, or so most administrators think.

This is what is happening right now at Yale Law School in the aftermath of the March 10 shout-down of a Federalist Society panel that included a representative from Alliance Defending Freedom (ADF), a Christian legal organization devoted to the protection of freedom of speech and religious liberty. ADF’s faithful Christianity offended the about 100 law-student supporters of “transgender rights” who disrupted the event. Since that shout-down, Yale has issued misleading statements about the nature of its rules and the severity of what happened, all in the hope that discipline could be avoided. The need to dissemble is particularly great in this case, because Yale has perhaps the clearest, firmest, and most venerable requirements in the nation for sanctioning those who shout down speakers.

This time, however, it could be different. Although it has yet to be noted, Yale Law School’s “Rules of Discipline” allow any “member of the Law School” (which includes all Yale Law School faculty members and all Yale Law School students) to trigger an investigation and hearing regarding any alleged violation of Yale’s Law School Code. First and foremost in that code comes the obligation to protect “intellectual freedom.” According to Yale, intellectual freedom is necessary to preserve the “climate of calm” and “mutual respect” essential to the Law School’s life as a “house of reason.” All of this was clearly infringed by this month’s shout-down.

In particular, Yale’s rules of discipline prohibit any “threat” of the “use of physical force or violence to harass, abuse, intimidate, coerce, or injure any member of or visitor to the Law School or University.” Yale’s rules of discipline likewise prohibit “intentionally and substantially interfering with the conduct of classes, the administration of the Law School, or other University activities or functions, or with the freedom of movement, freedom of peaceable assembly, freedom to learn, or other rights of any member of or visitor to the law school or university.” There is substantial evidence that all of these rules of discipline were violated at the March 10 Federalist Society event.

The important point here is not that the rules of Yale Law School were violated by the shout-down. That’s obvious. No, the point is that in this case we needn’t depend on sniveling administrators to act. Any Yale Law School student or faculty member has the power to file a complaint, or rather a series of complaints, against those who participated in the shout-down. And according to Yale Law School’s Rules of Discipline, those complaints must be investigated and acted upon. So, for example, the members of Yale Law School’s Federalist Society who were present at the event, and whose freedom to learn was interfered with, can file complaints and initiate hearings.

This is easier said than done, of course. Whoever dares file such complaints risks being ostracized by the majority of Yale Law School students, whose sympathies are clearly with those who disrupted the event. Anyone who moves forward with a complaint also burdens himself with a great deal of time and trouble.

But the benefits of a complaint to society at large would be substantial. The campus free-speech crisis that moved into high gear around 2016 has now spread well beyond the academy. An open challenge to the impunity of campus shout-downs at a prestigious university could thus have a powerful demonstration effect on society as a whole. The most effective antidote to cancel culture would be delivered at the site of the original infection: university campuses.

It is true that Yale’s regulations, in combination with the bias of its administration and faculty, offer myriad ways to dilute, block, or effectively nullify a complaint. Nonetheless, given the facts of this case, and given Yale’s historic reputation as a die-hard opponent of campus shout-downs, it will be difficult to neuter this complaint without exposing the university’s betrayal of its own first principles.

In short, Yale Law School’s rules of discipline offer an unusual opportunity for students of principle and pluck to turn the tide against cancel culture. File a series of complaints against the perpetrators of the Yale Law School-ADF shout-down, and Yale’s administration will be forced to act. In acting, it will either uphold the university’s tradition of free speech or expose itself as having abandoned that vaunted tradition. Whatever happens will rivet America’s attention.

It’s important to note that Yale Law School’s disciplinary process could potentially be overridden by a “University-Wide Tribunal.” The University Tribunal is a special procedure, controlled by the university president, and designed to deal with cases that have “institutional significance for the integrity and values of the University as a whole.” While any disciplinary issue could potentially have such implications, Yale’s regulations specifically mention cases involving “disruption of free expression” as appropriate subject matter for a University Tribunal.

In better days, a University Tribunal would have been the ideal first resort in case of a shout-down. Given that Peter Salovey is Yale’s president, however, a presidentially controlled University Tribunal would be more likely to suppress the truth. Hearings based on complaints by Yale Law School students present at the Federalist Society event offer a more promising avenue. Salovey was president during the Yale Halloween costume controversy of 2015. Under his watch, Nicholas and Erika Christakis were driven from the university. And as revealed by a National Association of Scholars report on “Neo-Segregation at Yale,” Salovey’s Yale actually awarded prizes to some of the students who mobbed the Christakises.

It is possible, then, that if Yale Law students were to file complaints, Salovey might short-circuit the process by convening a University Tribunal. Again, however, given the facts of this shout-down, it will be exceedingly difficult for Salovey to cover up the truth once a University Tribunal has been initiated. Whatever Salovey wins in the court he controls can be lost in the court of public opinion.

Yale Law School’s public statements on the shout-down have been misleading, at best. According to Yale, the students who shouted down the Federalist Society panel ought not to be punished because they never violated the school’s “three-warnings protocol.” In this version of events, the students were read the first in a series of three warnings against disruption, then promptly left the room. After that, “the event went forward until its conclusion.”

That account is misleading in several respects. First, and above all, there is abundant evidence to show that the disruption continued well after the protesters decamped to the hallway. The noise just outside the panel was enough to seriously compromise the audience’s ability to hear. We know this from a series of recordings. The account of ADF attorney Kristen Waggoner — the main target of the shout-down — also directly contradicts the university’s version of events.

Second, while the full text of all three warnings in the “three-warnings protocol” was never read, this is irrelevant. The three-warnings protocol is in the nature of a suggestion about how to handle disruptions. It does not and cannot be used to nullify Yale’s overall policy, which is that students ought to be punished for disruptions, and that the university should attempt to warn them against such disruptions when possible.

Third, the student protesters on March 10 did in fact receive multiple warnings against disrupting the proceedings. They were read the text of the first warning in the “three-warning protocol.” It’s true that after the first warning the students moved to the hallway just outside the event. Yet those students were told as they moved: “You are welcome to be outside as long as you don’t disrupt the event.” In effect, that was a second warning, modified as appropriate from the formal text to suit the specific circumstance. Moreover, Yale Law School’s own public statement indicates that, “When students made noise in the hallways, administrators and staff instructed students to stop.”

The so-called “three-warnings protocol” is actually only a two-warnings protocol, since the third warning merely informs disruptors that police will now be clearing the protest. In this case, however, video evidence, as well as the university’s own statement, indicates that the disruptors actually received more than two warnings, all of which were blatantly disregarded. And while police were never called in to clear the disruptors, the police were called in to protect the speakers as they left the event.

In short, substantial evidence indicates that this was a genuine shout-down, that Yale’s rules were violated, and that the students involved merit discipline.

Yale’s reputation as a defender of campus free speech and a scourge of speaker shout-downs rests on its Woodward Report of 1974. The report chair, C. Vann Woodward, was famous for having advised Thurgood Marshall’s team as it argued for school desegregation in the 1954 Brown versus Board of Education decision. Martin Luther King, Jr. himself called Woodward’s book, The Strange Case of Jim Crow, “the historical bible of the civil rights movement.” It was striking that Woodward, a hero of the civil-rights movement, defended the right of even segregationists like Alabama Governor George C. Wallace to speak at Yale. In those days, liberals were actually liberal.

The Woodward Report recounted a decade’s worth of speaker disinvitations and cancellations at Yale on the way to making its recommendations. The culminating incident, called by the report the “worst” in a decade of free speech failures, was a shout-down. The event disrupted was to have been a debate in which the views of Stanford University physicist William Shockley — who believed that race is linked to intelligence — would be challenged by William Rusher, the conservative publisher of National Review. Despite several warnings from administrators, the Shockley-Rusher debate was shouted down and effectively canceled.

While twelve students from a much larger number of disruptors of the Shockley-Rusher debate were identified, found guilty, and suspended for the following term, they were allowed to effectively avoid the suspension with a simple promise of good conduct. It was this failure to seriously discipline a shout-down that evoked calls of protest from Yale faculty and students alike. Those calls led directly to the creation of the committee that published the famous Woodward Report.

The Woodward Report decried the fact that a significant number of students, and even some faculty, saw speaker disruptions as permissible and even desirable. The report said that shout-downs were encouraged by the belief among students “that there is a small chance of being caught, particularly among the mass of offenders; that if caught there is a relatively good chance of not being found guilty; and that if found guilty no serious punishment is to be expected.” The report bemoaned the fact that failure to discipline disruptors of the Shockley-Rusher debate lent credence to these assumptions.

Taking all of this into account, the Woodward Report reached the following conclusion: “It is plain . . . that if sanctions [for shout-downs] are to work as a deterrent to subsequent disruption, they must be imposed whenever disruption occurs. They must be imposed and not suspended. They must stick.” In 1974, the Woodward Report’s conclusions were lauded in the mainstream press and across the political spectrum.

Yale’s official policy for dealing with shout-downs derives directly from the Woodward Report. Although it’s obvious that Yale has repudiated this most famous defense of campus free expression in practice, if not in theory, Yale Law School’s Rules of Discipline provide a unique opportunity to force this once-great university to confront its obligations to intellectual freedom, and therefore to test its values. A few courageous Yale Law students now have an opportunity to change the national conversation on free speech. Let us see whether they take advantage of it.

Law & the Courts

Schrödinger’s Woman

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Judge Ketanji Brown Jackson is sworn in to testify at her U.S. Senate Judiciary Committee confirmation hearing on her nomination to the U.S. Supreme Court on Capitol Hill in Washington, D.C., March 21, 2022. (Evelyn Hockstein/Reuters)

I’m struggling to see why, when asked to define a woman, Ketanji Brown Jackson didn’t just say, “well, I am one.” I understand that Jackson knows that the party that nominated her has gone utterly insane in this area. But, as she must know, that party is also happily lionizing her for her sex. It is true that Jackson is not a “biologist,” but neither is Joe Biden, and yet, having announced that he wanted a female Supreme Court nominee, he seemed to be able to identify one without too much trouble.

Once again, the Democrats are having it both ways on this silliest of all obsessions. One can only suspect that the party will suddenly remember what a woman is if, in a few months, the Court overturns Roe.

Law & the Courts

Ketanji Jackson: SCOTUS Decision Overturning Roe Would Be ‘Worthy of Respect’

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Judge Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on her nomination to the Supreme Court, on Capitol Hill in Washington, D.C., March 22, 2022. (Michael A. McCoy/Reuters)

Late Wednesday night, Tennessee GOP senator Marsha Blackburn asked Supreme Court nominee Ketanji Brown Jackson about the Dobbs case challenging the Roe and Casey precedents that declared a constitutional right to abortion.

“Do you commit to respecting the Court’s decision if it rules that Roe was wrongly decided and that the issue of abortion should be sent back to the states?” Blackburn asked.

“Whatever the Supreme Court decides in Dobbs will be the precedent of the Supreme Court. It will be worthy of respect in the sense that it is the precedent. I commit to treating it as I would any other precedent,” Jackson replied.

Jackson’s response doesn’t tell us much—every decision is precedent worthy of respect until the Court has the case and the votes to overturn it. But “worthy of respect” is not a message that’s helpful to advocates of a constitutional right to abortion a couple months before the Court issues its ruling in Dobbs.

International

Venezuelan Bond Prices Are Jumping as Biden Administration Increases Engagement

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Venezuela’s President Nicolas Maduro speaks beside Russian Deputy Prime Minister Yury Borisov (not pictured) at the Miraflores Palace in Caracas, Venezuela, February 16, 2022. (Leonardo Fernandez Viloria/Reuters)

On Friday, Bloomberg reported a rise in Venezuela’s bond prices after news of a meeting on March 5 between the Biden administration and the Maduro government became public:

 . . . Venezuela’s bonds due in 2027 rose to about 9.4 cents on the dollar from 6 cents while PDVSA’s 2022 notes now trade around 7 cents from 4 cents before the meeting, according to data compiled by Bloomberg. Interest and activity have picked up since the trip, according to traders and brokers familiar with the transactions who aren’t authorized to speak publicly.

While U.S. investors are prohibited from buying Venezuelan bonds per 2019 sanctions on the Maduro regime, European investors have started betting on an impending oil deal between Washington and Caracas.

Petroleos de Venezuela bonds jump on signs of U.S. engagement

 

Daniel DiMartino, a Venezuelan freedom activist and economics Ph.D. candidate, told National Review that the rise in bond prices is “a clear signal that investors expect the Biden administration to lift some sanctions.” Even that expectation is “allowing the Venezuelan socialist regime to profit by reducing the costs of borrowing in international markets.” As oil prices rise due to the conflict in Ukraine, the Biden administration was reportedly discussing sanction waivers for Venezuelan oil production.

The Biden administration will provide sanctions relief if the Venezuelan government follows “concrete steps,” according to national-security adviser Jake Sullivan. The first of those steps seems to be the release of two American hostages, which occurred a few days after the meeting in Caracas.

The White House has drawn sharp criticism for its discussions with Venezuelan leaders. Under Biden, Washington has shown little support for the U.S.-recognized opposition led by Juan Guaidó. The U.S. does not recognize the authoritarian Maduro regime and has remained largely quiet on Maduro’s rogue behavior. Indeed, it has largely overlooked illegal, U.S.-sanctioned oil trade between Iran and Venezuela and has sat back while Russia and the Maduro regime have grown closer. In August, for instance, the Biden administration passed up the opportunity to negotiate on the side of the opposition while Russia represented Maduro. Elliott Abrams wrote:

The Biden administration actually gave what used to be called the “Arab no.” It never gave a flat rejection, but hemmed and hawed to get the opposition to look elsewhere.

As a result, Russia will be sitting with the regime, and the Netherlands will be sitting with the opposition.

Another major criticism is the Biden administration’s willingness to court adversaries for oil after discouraging domestic-energy production:

 

Even so, as oil prices remain high and the Biden administration fails at securing more oil from the Saudis and Emirates, the White House is still willing to court Maduro (again, instead of encouraging domestic drilling).

Earlier today, the Wall Street Journal reported that the Biden administration “is listening closely to Chevron” as it calls on the Washington to ease restrictions on Venezuelan oil. This comes after months of Biden administration officials waving off Chevron lobbyists.

President Biden seems to have no problem lining the pockets of a socialist dictator as long as he can lower the price at the pump.

Monetary Policy

Inflation: Summers Rains on the Fed’s Parade

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Lawrence Summers attends the annual meeting of the World Economic Forum (WEF) in Davos, Switzerland, January 18, 2017. (Ruben Sprich/Reuters)

Maybe it’s just me, but I don’t think that Larry Summers is entirely confident that the Fed has got this whole inflation thing under control.

He writes:

The stock market responded positively Wednesday to the Federal Reserve’s move to raise interest rates and plan for six more increases by year’s end. I wish I could share that enthusiasm. Instead, I fear, the economic projections of the Federal Open Market Committee (FOMC) represent a continuation of its wishful and delusional thinking of the recent past.

“Wishful thinking.” “Delusional.” These are not kind words.

Start with the labor market. It is now tighter than at any point in history: The vacancy-to-unemployment ratio is in unprecedented territory, quits are at near-record levels and wage growth is still rising at 6 percent, having accelerated rapidly in the past few months. The FOMC expects further tightening, to a 3.5 percent unemployment rate, which it expects will be maintained through 2024.

Three years at 3.5 percent unemployment, something the country has not seen in about 60 years, is highly implausible. Indeed, the historical experience is that when unemployment is below 4 percent, there is a 70 percent chance of joblessness rising rapidly in the next two years as the economy goes into recession.

Summers’s statistics on past employment are damning, although past is not, of course, always precedent. Nevertheless, my best guess continues to be that the labor shortage is largely a temporary phenomenon created by the combination of dislocations resulting from a combination of emergence from the pandemic and the soothing effects of savings accumulated under the pandemic-relief regime. Those savings will erode, a process that will be accelerated by inflation. Moreover, the prospect of transitory, uh . . . prolonged inflation may also lure some of those newly retired boomers back into the workforce. The value of their retirement savings may look a lot more vulnerable than they did.

Additionally, even before we consider the longer-term impact of employment and underemployment brought about by automation (a process accelerated by the pandemic), the demand-suppression created by inflation and, quite possibly, the hit to the economy brought about by blowback from the Russian sanctions may also start eating away at employment rates. I’d be surprised if today’s tight labor market endures.

All that said, the Fed is working, as Summers notes, on the assumption that unemployment will remain at these ultra-low levels. Reconciling that with the central bank’s inflation expectations is, uh, not straightforward.

But there’s more. Summers continues (my emphasis added):

A look at the Fed’s forecast revisions since December reveals its confused thinking. The central principle of anti-inflationary monetary policy is that to reduce inflation it is necessary to raise real rates. Equivalently, it is necessary to raise interest rates by more than the inflation being counteracted and above a neutral level that neither speeds nor slows growth. I had thought this was universally accepted following the work of former George W. Bush administration official John Taylor and former Obama administration Council of Economic Advisers chair Christina Romer and her husband, David Romer.

Yet because of upward revisions in the inflation forecast, the Fed’s predicted real rates have actually declined in recent months.In other words, the FOMC’s plans do not even call for keeping up with the rising inflationary gap. It is hard to see how interest rates that even three years from now will be about 2 percentage points less than current rates of inflation can reasonably be regarded as providing sufficient restraint.

Does any of this matter as long as the Fed is raising rates? Some will reject my concerns as technical quibbling. But under what reasonable economic model does rapidly declining inflation occur alongside negative real interest rates and record-low unemployment?

Quite.

Perhaps the Fed still believes that inflation is in fact transitory and that it will evaporate as supply chains are restored. This has never seemed plausible, given accelerating residential and wage inflation and room for acceleration in the costs of health care, airfare and lodging. It seems even less plausible today, with war in Ukraine and covid lockdowns in Asia.

Or perhaps the FOMC members are wary of pessimistic forecasting. But why shouldn’t they forecast realistically? It is an odd and damaging view of democratic accountability that demands disingenuous forecasts from revered institutions. In a world where financial crises are always possible, the credibility of the Federal Reserve is a precious asset. It should not be lightly sacrificed.

And now consider what is going to happen to the credibility of the Fed if, Raskin or no Raskin, it moves ever closer to joining in the climate wars and embracing other aspects of a highly politicized progressive agenda.

Science & Tech

Your President’s So Old . . .

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Meet the ten-armed, 325-million-year-old octopus fossil named after President Joe Biden,” reads the headline.

I’m pretty sure the fossil named after Joe Biden is Joe Biden.

Naming a fossil after Joe Biden is like having a guppie named “fish.”

World

Twenty Things That Caught My Eye Today: Ukraine, Humor, Parenting in These Times & More

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Refugees fleeing Russia’s invasion of Ukraine wait in the station hall on their way to Leipzig, at the central station in Goerlitz, Germany, March 22, 2022. (Matthias Rietschel/Reuters)

1.

2.

3. Meet the Dominican seminarian who’s hosted 108 Ukrainian refugees in Krakow

​​“We are deeply moved by the stories of our guests,” says Mońka. “One guy arrived with a broken leg, Mońka shares. “He had to escape – he was chained up – so they had to break his hip.” When he arrived, he required immediate and substantial medical attention.

“We hosted a Muslim family too,” Mońka says. “They prayed inside the priory, even using a carpet as is their custom. For us, it was an exotic experience,” admits the young Dominican.

4. Crux: Ukrainian president says Pope called him, saying ‘military defends civilians’

. . . As he addressed the Italian senate, he reportedly quoted Pope Francis’s “very important words,” claiming the Catholic leader said: “I understand that you want peace, I understand that you want to defend yourselves, I understand that the military defend civilians, and that civilians defend their own homeland.”

Zelenskyy said his response to the pontiff’s words were: “Our people have become the army, when they have seen the evil that the enemy brings with him, how much devastation he leaves behind him, and how much blood he wants to see spilled.”

5. Tish Harrison Warren interviews Charlie Camosy: How the ‘Whole Life’ Movement Challenges the Politics of Left vs. Right

6. Aaron Sibarium: The Takeover of America’s Legal System

“The idea that guilty people shouldn’t get lawyers attacks the legal system at its root,” Andrew Koppelman, a prominent liberal scholar of constitutional law at Northwestern University, said. “People will ask: ‘How can you represent someone who’s guilty?’ The answer is that a society where accused people don’t get a defense as a matter of course is a society you don’t want to live in. It’s a totalitarian nightmare.”

. . .

Now, the politicization and tribalism of campus life have crowded out old-fashioned expectations about justice and neutrality. The imperatives of race, gender and identity are more important to more and more law students than due process, the presumption of innocence, and all the norms and values at the foundation of what we think of as the rule of law.

7.

8. WHO guidelines on abortion imply conscience objections are ‘indefensible’

9. Naomi Schaefer Riley: Philanthropy Helped Reduce Institutional Placements for Foster Kids. Now Many Have Nowhere to Go.

While funding operating expenses is often low on the list of philanthropic priorities, it is vital to running strong congregate-care programs. That includes maintaining physical facilities. Even the best-run residential-care campuses struggle with upkeep in the face of minimal government or philanthropic funding. But philanthropists should consider how living in rundown facilities affects residents. Supporting capital improvements is one concrete step grant makers can take to help these kids feel valued.

As Richter notes, “In all the years that we’ve been talking about eliminating residential care, kids have been living in residential care.” Starving facilities of the money they need to operate while children still need to live in them is clearly not the answer.

10.  Ana Samuel: Rebel Parenting in an Age of LGBTQ Overreach

Today is not 2009, and we all know things have worsened exponentially: raunchy sex-ed classes; revisionist history lessons featuring men in drag or in same-sex relationships with minors as political pioneers; transgender athletes running circles around our daughters. It’s all reaching new levels of crazy.

Righteous anger is often good and necessary. But not all parents are comfortable with confrontation, and even fewer enjoy the option of placing their children in saner institutions or schooling at home. However, after listening to thousands of parents around the country—participants in our CanaVox reading groups—and through my own trial and error, I’m convinced that parents can be very effective in less noisy, more behind-the-scenes ways.

11. Orthodox Bishops Invited to Pray ‘Akathist’ as Pope and Catholic Bishops Consecrate Russia and Ukraine

12. Pope Francis meets with Lebanese President Aoun

13. 

14.

15. Msgr. Richard Antall: An Atheist discovers the devil’s endgame

Stevenson’s morality tale ends beautifully and dramatically, with the killer confronting the servant girl: “You had better go to the police. I have killed your master.”

It’s an ending that makes me want to believe that Stevenson the “unbeliever” went to heaven with his friends the monks.

16. 

17.  Russell Shaw: Becoming part of the Jesus story this Lent

This is the difference between learning about someone and becoming that person’s friend. The information is interesting and may even be useful, but it isn’t friendship.

Suppose, then, that Jesus really wants to be friends with you. (As a matter of fact, he does.) How can you reciprocate? How can you be friends with him?

One way — a very important, indeed indispensable way — is by meditation and prayer. So is receiving the sacraments, especially the Eucharist, which is the Real Presence (“body and blood, soul and divinity” an old formula says) of Jesus himself. But there also is a third way, not to be neglected by anyone who truly wants to know Jesus. It’s reading the Gospels.

18.

19. 

20. I’m grateful for life today — and hoping you’ll consider giving to my birthday campaign raising money for the Sisters of Life

ALSO: Join me in conversation with Ross Douthat tomorrow night (Wednesday, March 23). Tickets here.

Politics & Policy

Words Mean Things, Senator Klobuchar

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I know that it’s just a dumb convention for politicians to talk this way, but Senator Amy Klobuchar’s invocation of “unprecedented attacks” on journalists and freedom of the press (during the Ketanji Brown Jackson hearings today) in the United States is irritating.

The senator could bother to learn about, among other things, the hideous history of the political party to which she belongs.

Woodrow Wilson not only engaged in stern repression of critics in the press, he publicly described his own favored policy as one of “stern repression.” Thousands of dissidents and antiwar campaigners were indicted under the Espionage Act. Wilson went as far as to ask Congress for formal powers of censorship; Congress, happily, declined.

Franklin Roosevelt abused federal law-enforcement powers to try to destroy the Chicago Tribune. He also used economic regulation, using wartime quotas to deprive the Tribune of newsprint while ensuring that its competitors were well-supplied.

And this isn’t all ancient history, either — Democratic activists have been campaigning for years to get the FCC to drive Fox News out of business.

So, no, not “unprecedented.” Far from it.

Indiana Republicans Blast GOP Governor’s Veto of Women’s-Sports Bill: ‘Just Doesn’t Make Sense’

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Indiana Gov. Eric Holcomb addresses the media in East Chicago, Ind., April 17, 2017. (Scott Olson/Getty Images)

Yesterday, Indiana governor Eric Holcomb, a Republican, vetoed a bill that would have barred biological males from competing in women’s sports at the K-12 level. The move was a surprising reversal from the position that Holcomb carved out just a few weeks ago, when he signaled support for the legislation: While the governor “told reporters that he was waiting to see the final versions of [the legislation],” according to the AP, he maintained that “I agree, adamantly, that boys should be playing boys sports and girls should be playing girls sports, and mixed sports should be just that.”

But on Monday,

Law & the Courts

Judge Jackson’s ‘Methodology’ vs. Interpretive Philosophy

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Judge Ketanji Brown Jackson testifies during the Senate Judiciary Committee’s confirmation hearing on her nomination to the Supreme Court, on Capitol Hill in Washington, D.C., March 22, 2022. (Michael A McCoy/Reuters)

Characteristically, Dan hits the nail on the head in describing how Judge Ketanji Brown Jackson and Judiciary Committee Democrats (particularly Chairman Dick Durbin) tried to deflect the central question of what her judicial philosophy is — assuming that she has one, which I daresay most of us believe she does.

I also agree that it is a great triumph of the originalist interpretive school (championed by Justice Scalia, Judge Bork, Ed Meese, and other luminaries) that even progressive judges now nod to the precept that, because judges are supposed to apply existing law rather than legislate new law, the judge must factor in the law’s original understanding — although I note that, despite this nod, progressive judges tend to describe the original understanding as just one factor and reserve the discretion to consider others. I am not convinced that they’ve been converted. Judge Jackson is no exception.

It seems to me that Judge Jackson has spent a lot of time preparing for this judicial-philosophy line of questioning. Her go-to counter is to pivot to her “methodology” when the question of interpretive philosophy comes up.

She’s done this a few times already. Essentially, she describes judging as a “mechanical” exercise (as Adam Liptak put it in the New York Times). She said she has “not really a philosophy, more of a methodology,” in which she accounts for “three inputs,” which are ”the arguments of the parties, the facts in the case, and the law that applies in every case.” This, she maintains, screens out “my personal views.”

All well and good. Still, it should be obvious that a method of deciding issues is something saliently different from construing “the law that applies” in the case. What Republicans must press her on is how she determines that. After all, she says it is part of her method “in every case,” in order to ensure that she is applying objective law rather than interjecting her own preferences.

The methodology riff is nice, but it doesn’t answer the central question.

Law & the Courts

Judge Jackson and Senator Graham Grapple with the Big Question: ‘Are We at War?’

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Judge Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on her nomination to the Supreme Court, on Capitol Hill in Washington, D.C., March 22, 2022. (Michael A. McCoy/Reuters)

I’m very surprised that Judge Ketanji Brown Jackson answered Senator Lindsey Graham’s question about whether we are still at war — yes, she said — and that she elaborated that the post-9/11 AUMF (Congress’s 2001 Authorization of the Use of Military Force) is still in effect. It is entirely conceivable that this issue will come up before the Supreme Court.

This is question of whether we are at war undergirded the exchanges between Senator Graham and Judge Jackson regarding the detainees still held at Guantanamo Bay. Some of the context of this was a variety of pro-detainee positions Jackson took as a litigator representing the enemy combatants. The main issue, though, was the basis for detaining the combatants. The judge and the senator were talking past each other a bit: Jackson was making the point that positions she took as a litigator were not necessarily her personal positions and would not guide her decision-making if the underlying questions came before her as a judge; Graham was making the point that he wants the detainees held at Gitmo until they die. The assumption of the exchanges, however, was that these matters arise because a war is going on.

But is it? I’ve pointed out recently that President Biden speaks as if the war is over. He has explicitly taken credit for ending the war in Afghanistan, in connection with which many of the detainees were apprehended. It is a critical point because, as Graham and Jackson agreed (but did not dwell on), the authority for detaining enemy combatants is dependent on there being an ongoing war. Graham took Jackson to task for what he portrayed as her argument, as a litigator representing detainees, that they should be tried or released. But it is a fact that, if there is no war ongoing, the laws of war would call for the detainees to be tried or released.

Jackson may have been wrong to argue that detainees should be tried or released regardless of whether there is a war. But Graham is wrong to suggest that the dispositive issue is whether, if released, the jihadists would endanger Americans — as have other released jihadists who, as the senator pointed out, have gone back to the jihad. The dispositive issue is whether we are at war. If we are not at war, then there is no legal authority to continue holding combatant detainees without trial.

This is why many of us have argued for many years that the AUMF has to be revisited and clarified. It is Congress’s obligation to do that. If lawmakers continue to punt, it is inevitably going to fall to the courts to weigh in. Eventually, someone in a position of authority is going to have to decide whether our nation is at war, to define the confines of whatever war there is, and to identify the enemy.

Trade

CP Work Stoppage Over as Arbitration Begins

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Burlington Northern Santa Fe trains at a rail yard in Cicero, Ill., in 2009. (John Gress/Reuters)

Yesterday, I wrote about the work stoppage at Canadian Pacific (CP) and how it could affect the U.S. About 3,000 CP employees represented by the Teamsters Canada Rail Conference (TCRC) stopped working on Sunday and rail operations were shut down through Monday.

This morning, CP and the TCRC reached an agreement to move to binding arbitration. That means both sides will argue their case before an independent third-party arbitrator, and the arbitrator’s decision will be final. While that process plays out, work resumes today at noon Mountain Time (CP is headquartered in Calgary). According to the Wall Street Journal, the details of the agreement are not public. The story says:

Binding arbitration typically allows an employer and union representatives to present their contract demands to an independent arbitrator, who then can decide on such terms as wage increases and benefits. In some cases, certain contract terms can be subject to a vote by union members.

In other words, we don’t know who is coming out on top in this dispute, and we probably won’t know for a while. Both sides blamed each other for starting the shutdown, so it’s not as though one side is clearly backing down by allowing work to resume.

The TCRC’s statement said that “arbitration is not the preferred method” but that the union was “able to negotiate terms and conditions that were in the best interest of our members.” It said that the union will not be speaking to the media until arbitration is complete. CP’s statement was more uniformly positive, saying that it was happy work would be resuming.

Senator Kevin Cramer (R., N.D.), one of the four senators who signed a letter last week urging the Canadian government to prevent the shutdown, said today in a statement to National Review:

This issue should have been dealt with proactively, but thankfully the Canadian Pacific railway strike has come to an end. I urge all sides to stay at the table to come to a final resolution. This railroad plays a major role in our nation’s agriculture and energy industries while producers, businesses, and all Americans are facing record inflation and a broader supply chain crisis from the Biden Administration.

Yesterday, I said the shutdown didn’t look like it would be over quickly because the sides were still very far apart. I was wrong about the first part of that — and happy to be so, for the reasons Cramer says — but the second part remains true. Contract negotiations have been ongoing for six months, and there are still basic disagreements about wages, benefits, and working conditions. Going to arbitration resolves the work stoppage for now, but the underlying questions remain unsettled.

The reason this matters is as a possible prelude to contract negotiations between the International Longshore and Warehouse Union (ILWU) and the Pacific Maritime Association (PMA) at U.S. West Coast ports. The current labor agreement expires on July 1, and the sides have not even begun negotiations yet. If those negotiations were to take six months, like the CP negotiations have, they would have needed to start in January.

It’s also useful to see the union’s attitude in the constrained supply-chain environment we are currently experiencing. The TCRC was willing to stop work and actually did so, even if only for a few days. The consequences of a prolonged CP shutdown would have been severe, especially for crude oil and fertilizer, two of the commodities already roiling global markets because of Russia’s invasion of Ukraine. Neither side was afraid enough of the consequences to back down.

The ILWU has never been afraid of consequences from work stoppages in the past and has been willing to use hardball tactics to get what it wants. With a pro-union Biden administration in power that has demonstrated a lack of willingness to stand up to the ILWU at any point during the supply-chain crisis, the union has to be feeling pretty confident that it can do whatever it takes to see its demands are met. That will be especially true if the TCRC winds up getting what it wants from CP. The ILWU is watching closely.

Religion

March 22 for Life

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Sr. Magdalene Terese, Sr. Mary Margaret Hope, and Sr. Beata Victoria of the Sisters of Life outside St. Patrick’s Cathedral, January 15, 2020.

Today is my birthday, and my hope is that you will help me raise $30,000 for the Sisters of Life, our pro-life credibility. I make my pitch and provide the appropriate link to track the birthday campaign here.

The title from my piece in the End Roe issue came from the Sisters.

Thank you!

The Jackson Hearings So Far Are a Rout for Progressive Pieties

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Judge Ketanji Brown Jackson delivers an opening statement at the U.S. Senate Judiciary Committee confirmation hearing on her nomination to the U.S. Supreme Court on Capitol Hill in Washington, D.C., March 21, 2022. (Evelyn Hockstein/Reuters)

I have no illusions about the fact that Democratic-appointed judges are almost invariably likely to all vote the same way, at least on big cases. So, my hopes for Ketanji Brown Jackson departing from the party line on the bench are slim. Even with that in mind, however, this hearing so far has been a thoroughgoing rout for progressive theories of law and politics. Jackson has repeatedly embraced interpreting the Constitution according to its original public meaning. More:

  • She affirmed that “the Supreme Court has established that the right to keep and bear arms is a fundamental right” (although that

World

Will Vladimir Putin Be Able to Say He Won the War?

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Russian President Vladimir Putin smiles during a holiday in Siberia, Russia, March 21, 2021. (Sputnik/Alexei Druzhinin/Kremlin via Reuters)

As mentioned on a just-taped edition of The Editors podcast, I worry that Vladimir Putin is going to come away from the invasion of Ukraine with just enough Ukrainian concessions to claim he won – a result that will give other autocrats ideas about launching other wars of territorial conquest.

Sure, by most standards, the invasion has been a colossal disaster for Russia. That report of 9,861 Russian soldiers killed and another 16,153 wounded so far, in a Kremlin-friendly tabloid, is jaw-dropping. That would mean that in about three weeks, the Russians suffered two-thirds as many soldiers killed in action as they did in the nearly-decade-long invasion of Afghanistan.

The Russian economy is collapsing into a shambles with a devalued ruble, closed stores, and product shortages; there are some early signs that Russian oil exports have suddenly and severely dropped. Goldman Sachs predicts the Russian economy will shrink by ten percent this year.

The once-fearsome reputation of the Russian military is destroyed like all of those tanks and supply vehicles. Russia’s once-close relationship with certain European countries like Germany is similarly destroyed, unlikely to be restored for many years. In much of the world, Russia is a pariah state, and Putin is perceived as a reckless, brutal, bloodthirsty madman.

So how can Russia be winning?

The human suffering that is being inflicted upon Ukraine is so horrific that it is likely that certain voices in the West will want Volodymyr Zelensky to take whatever ceasefire proposal is on the table, and make concessions to end the war.

If Putin comes away with Luhansk and Donetsk recognized as pro-Russian “independent republics” – de facto client states — and some other territorial acquisitions including a land bridge to Crimea, along with a guarantee that Ukraine will never join NATO – and establishing the precedent that Russia can veto Ukraine’s alliances and relationships with other countries — and however they choose to define “de-Nazification”  … and large swaths of what’s left of unconquered Ukraine have been bombed to rubble, and will take many years to rebuild… then Putin got a decent amount of what he wanted.

If that scenario comes to pass, Russia will end the war with more territory than when it started. Putin will have imposed his will on a neighboring democracy through sheer brute force, while NATO just watched from across the border. Russia’s nuclear arsenal – and perhaps Russia’s sizable supply of tactical nukes — will have proven an effective deterrent of U.S. and NATO actions.

Sure, Zelensky will be well along the road to becoming a legendary figure in Ukrainian history, and Ukrainian nationalism is likely to be stronger than ever. Whatever Russian-Ukrainian border emerges from this conflict is unlikely to be truly peaceful for a long, long time. But the Ukrainians are paying a price for their resistance that is hard for us to comprehend — with a trauma that is comparable to the shock and horror of 9/11 all over an entire country. As much as some Ukrainians may want to fight Russia forever, other Ukrainians are likely to want to avoid another conflict with Russia. Future Ukrainians will face a difficult choice: would they rather live as a docile client state like Belarus, or have their cities reduced to rubble again?

As for Russia’s economy, Moscow will seek to maximize new opportunities with oil exports to India, a new natural gas pipeline to China. Other moves, like the possibility of Saudi Arabia pricing some of its oil sales to China in yuan, suggest the formation of powerful economic bloc of Russia, China, and various players like Iran, Saudi Arabia, or India, forming an alternative to the systems of the U.S. and its European and Asian allies. And if and when the shooting stops, who knows how long European fury at Russia will last. The Biden administration is still willing to have Russia be a major player in negotiations with Iran.

None of this is certain to come to pass. The U.S. and its allies can’t control much about this war, but they can control how much they supply the Ukrainians, and whether they pressure Zelensky to take whatever deal Russia is willing to offer, or whether they encourage Zelensky and the Ukrainians to continue to resist.

World

‘We Will Fight Till the End’

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Ukrainian servicemen attend a prayer service in Kyiv before going into battle, March 13, 2022. (Thomas Peter / Reuters)

There is a man in Mykolaiv, Ukraine, who goes to his balcony every day and plays the national anthem on his saxophone. See it here. Love of country in the midst of hell.

• The vice foreign minister of China, Le Yucheng, has delivered himself of the opinion that NATO should have been “consigned to history alongside the Warsaw Pact.” As it happens, Communist rule in China is exactly the same age as NATO. I hope that NATO outlives it.

• Sometimes, a single phrase encapsulates a horror — mass murder — visited upon a place. A morgue director in Kharkiv said, “There are no coffins left in the city.”

• The Belarusian journalist Hanna Liubakova writes,

Russian troops shot at buses trying to evacuate from Donetsk region of #Ukraine. Four children have been injured. Why do you even shoot at children and their parents fleeing and trying to rescue their lives? What kind of army is this?

I regard that as a very good question.

• A Ukrainian journalist, Anastasiia Lapatina, reports that there was “a message in the group chat of my village, on the outskirts of Kyiv.” That message was: “My mother was killed and she is laying on the stairs of our house. I need to get her body somehow. I understand that it can be problematic . . . but what should I do?”

• You may have heard about Borys Romanchenko. I will quote the foreign minister of Ukraine, Dmytro Kuleba:

Borys Romanchenko, 96, survived four Nazi concentration camps: Buchenwald, Peenemünde, Mittelbau-Dora, Bergen-Belsen. He lived his quiet life in Kharkiv until recently. Last Friday a Russian bomb hit his house and killed him. Unspeakable crime. Survived Hitler, murdered by Putin.

• Russia claims to be “denazifying” Ukraine. Discussing Borys Romanchenko’s death, Volodymyr Zelensky, the Ukrainian president, said, “Each passing day makes clear what this ‘denazification’ is.” Yes. (Zelensky is Jewish, by the way. So is Ukraine’s defense minister, Oleksii Reznikov. So are other important officials in government.)

• Candace Owens wrote,

President Zelensky is a very bad character who is working with globalists against the interests of his own people. I will not move one inch away from that assessment — ever — no matter how flowery the media depictions of him are.

There’s that word again: “globalists.” People offering alliance with Ukraine? Assistance to Ukraine? People who think some things are connected to other things?

Ms. Owens is a darling of the American Right, with 3 million Twitter followers. She is far more influential than most of us will ever be. I am hesitant to discuss Ukraine (and other matters) with my fellow Americans, many of them: because I don’t know what media they are consuming. And this makes all the difference. We live on different planets.

• Vladimir Putin stands in an old, mephitic tradition. Listen to him, in a televised speech: “Any people, and particularly the Russian people, will always be able to tell apart the patriots from the scum and traitors and spit them out like a fly that accidentally flew into their mouths.” Putin continued, “I am convinced that this natural and necessary self-cleansing of society will only strengthen our country, our solidarity, cohesion, and readiness to meet any challenge.”

As Radek Sikorski said in a podcast with me, Putin is half czar, half Mussolini.

• “What I saw, I hope no one will ever see.” Those are the words of a Greek diplomat, Manolis Androulakis, who was the last EU diplomat evacuated from Mariupol. He said, “Mariupol will be on the list of cities in the world that have been completely destroyed by war.” These include Grozny and Aleppo — two more works of Putin.

• Think of Soviet depredations in Budapest, in 1956, or the same in Prague, in 1968. Do they not pale in comparison with Russia’s current actions in Ukraine?

• On Twitter, Paula Chertok, of the Euromaidan Press, wrote a moving note, saying,

I don’t know what to do. So I will share some beautiful photos of my mom’s beloved #Mariupol, before the fascist from Germany invaded. This is my mom’s middle school. She loved to sing. Even won a song contest on the local radio. This is her music club.

See the photo here.

• Have you read about Mstyslav Chernov and Evgeniy Maloletka? Oh, my gosh.

If it were not for two Associated Press journalists in the besieged city of Mariupol, the world might not have learned what has been happening there as immediately as we have — nor in such irrefutable, horrifying detail.

(For that article, from the Washington Post, go here.)

• A note from the U.S. embassy in Kyiv:

According to the Ukrainian Foreign Ministry, Russian forces have illegally removed 2,389 Ukrainian children from Donetsk and Luhansk oblasts to Russia. This is not assistance. It is kidnapping.

Yes.

Here are George W. Bush and Bill Clinton, visiting a Ukrainian church in Chicago. Everyone has a different idea of how ex-presidents should behave. This is mine.

• Arnold Schwarzenegger gave a perfect — perfect — speech to the Russian people. Full of admiration for him, for doing it.

• And did you hear Bruce Pearl, the coach of the Auburn University basketball team? Magnificent.

Listen to Hanna Liubakova, the Belarusian journalist, once more:

#Belarus Lecturer Natalia Dulina was arrested for anti-war rallies. She says that for 3 days before the trial, she wasn’t given food. There were 25 women in the cell for 6 people. One woman asked for a painkiller. The guard took her to another room & hit her head against the wall.

Something else, from Ms. Liubakova:

The head of the Ukrainian Railways Alexander Kamyshin confirmed that there is no railway connection between #Ukraine and #Belarus “thanks to Belarusian railway workers”. They’ve indeed launched what they called “a railway war” with many acts of sabotage to stop Russian equipment.

Marvelous. Hats off.

• Russia’s ministry of foreign affairs tweeted a hashtag: “#StopRussophobia.” Ivana Stradner, of the American Enterprise Institute, commented,

Russophobia has long been a powerful weapon for manipulation by the Russian KGB/FSB. They use American sensitivity to racism to peddle their message. Don’t fall for it.

Yes, don’t.

I’ll tell you something personal. In Cold War days, I was called a “Russophobe” by one crowd; in recent years, I have been called a “Russophobe” by another crowd. (A Russophile is what I actually am — as my music and book collections can attest.) Rulers in the Kremlin are not the only Russians. Think of their political prisoners, for one thing. Are they not Russian? And in many cases, the best?

• Here is a moving report, from Sophie Pinkham:

Boris Nikolsky, a classics professor, spoke to me from the Armenian capital Yerevan, where he had fled with his family. “The plane from Moscow to Yerevan was packed with people I knew,” he recalled. “Lots of young people — the future of Russia is leaving.”

(For the article in question, go here.)

• I wish to recommend an article by Daniel Hannan: “Identity politics is eroding the values which set the West apart from Putin.” That is the heading of the article. Its subheading is, “Our belief in liberty and individual responsibility is all that stands between us and tribal barbarism.”

“The oldest ethic was ‘my tribe good, your tribe bad,’” writes Hannan. He asks, “Could we be returning to that older ethic?”

In the course of his article, he says, “Putin’s aggression against a country that offered him no threat has jolted even the far-Right Continental parties out of their grotesque admiration for him.” I think these parties have merely paused, and that their grotesque admiration will resume.

In any event, Hannan says, “Liberty does not come naturally. Unless we acculturate each new generation, we will revert to the tribal instincts encoded deep in our DNA.”

I think this is exactly right. Reagan used to say, “Freedom is only one generation away from extinction.” More and more, I see the truth of it.

• I am amazed — amazed — at the sheer courage and hardy spirit of Ukrainians. A soldier named Arthur told Jane Ferguson of PBS NewsHour, ““We will fight till the end. It’s our land, it’s our villages, it’s our people. We can’t leave it just to the enemy.”

May justice prevail, for Ukrainians and Russians, and all of us.

Law & the Courts

Not Everybody Is Entitled to a Lawyer

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A Navy guard patrols Camp Delta’s detainee recreation yard at Guantanamo Bay naval base in Cuba, July 7, 2010. (U.S. Air Force Tech. Sgt. Michael R. Holzworth/US Army/Handout via Reuters )

In his opening round of questioning at the Senate Judiciary Committee’s confirmation for Judge Ketanji Brown Jackson, Chairman Dick Durbin (D., Ill.) endeavored to help the judge refute criticisms of her representation of terrorists at Guantanamo Bay. They suggested that this was of a piece with the longstanding American tradition, engraved in our Constitution, that everyone is entitled to a lawyer. Judge Jackson summed it up this way: “That is the role of a criminal defense lawyer.”

The problem with this revisionist history is that the detainees at Gitmo were not criminal defendants. They were unlawful enemy combatants captured during their war of aggression against the United States. They were not entitled to counsel. Never in the history of the United States had it been the case that foreign fighters detained in wartime were entitled to legal representation — they are not detained in the legal system, but under the laws of war.

Jackson noted that the law eventually changed, allowing combatants to challenge their detention. What she and Durbin neglected to mention is that such challenges were not criminal proceedings. They were habeas corpus petitions.

It’s a salient difference. The Constitution does not entitle habeas corpus petitioners to counsel. Only those charged with crimes are guaranteed legal representation. It is thus a commonplace in the American criminal-justice system that imprisoned convicts who file habeas corpus petitions challenging their detention must represent themselves. They are not entitled to counsel, and if they can’t afford lawyers, there is no expectation that the taxpayers will subsidize legal representation.

The lawyers who volunteered their services to represent America’s enemies have for years analogized their work as no different from John Adams’s defense of British soldiers after the Boston Massacre in 1770. Durbin invoked this episode today. But the British soldiers were criminal defendants accused of murder in a court of law. It would be five years before hostilities erupted at Lexington and Concord. The British troops in question were not enemy combatants, and they were not detained as prisoners of war.

The Left has won the narrative battle regarding detention and interrogation issues in the war on terror, so the Left is writing the history. As Senator Durbin contentedly observed this morning, his Republican colleague, Senator Lindsey Graham, an accomplished military lawyer, agreed with Durbin in yesterday’s opening session that everyone is entitled to a lawyer, including foreign terrorists captured in wartime.

That doesn’t make it so. The lawyers who worked for anti-American jihadists at Gitmo were volunteers; their “clients” were not entitled to their services.

Moreover, the lawyer-Left position on this issue would be easier to abide if it were consistently applied. Progressive Democrats have taken the position that former president Trump and those who worked with him to challenge the results of the 2020 election are not entitled to legal representation. They have put enormous pressure on lawyers and firms to drop these people as clients. There is now an ongoing project to have lawyers disciplined and disbarred if they played any role in enabling Trump to file legal challenges to the election. One needn’t be persuaded by these legal challenges — I think most of them were frivolous — in order to acknowledge that Trump had the right to file them and to retain counsel for that purpose.

Democrats can’t have it both ways. They can’t volunteer their services to terrorist detainees and say they were performing an honorable role and should not be tainted by their clients’ atrocious actions yet at the same time maintain that any lawyer who provided legal services to Donald Trump should be ostracized as a threat to our Constitution.

Economy & Business

Today in Capital Matters: Inflation Forecasts

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Jon Hartley of the Foundation for Research on Equal Opportunity writes about the Fed’s over-reliance on inflation forecasts:

When originally Powell came into the Fed in 2017, he described his approach to monetary policy as “risk management.” While that may sound nice, there’s something deeper to it. It assumes you actually know the risks and their probabilities. Who would have guessed we would be hit with a 100-year pandemic? Who would have guessed that inflation wouldn’t appear until May 2021, quite some time after a year of tame inflation amid significant amounts of fiscal and monetary stimulus? No one can be faulted for not predicting either of these events. What we can do is think about how we want to respond once these things have happened with the acknowledgment that the future will still be difficult to predict.

One insight we do have, however — with lots of empirical evidence — is that inflation does fall conditional on monetary policy tightening. Policy-makers can rely on today’s data and use them in their monetary-policy reaction function to appropriately weigh the risks of inducing unemployment from monetary-policy tightening and the risks of inflation rising further if we don’t tighten. Had it simply been following today’s data as the best forecast of data in the next period, the Fed might not be so behind the curve on inflation right now.

Read the whole thing here.

Law & the Courts

Ketanji Brown Jackson Claims She Will Follow ‘Original Meaning’

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Judge Ketanji Brown Jackson is sworn in to testify at her U.S. Senate Judiciary Committee confirmation hearing on her nomination to the U.S. Supreme Court on Capitol Hill in Washington, D.C., March 21, 2022. (Evelyn Hockstein/Reuters)

The most central debate in constitutional law today is whether to read the Constitution as a written document with a fixed meaning — the originalist position — or whether it can be changed over time without the further input of the people by judges, including the creation of rights and powers never written or contemplated by the people.

Dick Durbin tried to deflect the question of Ketanji Brown Jackson’s interpretive philosophy this morning by noting that she has a record of written opinions, but of course, that won’t end the inquiry. It might if Jackson had decided a lot of constitutional cases as an appeals judge; she hasn’t decided one. Less than a year ago, Jackson told Ted Cruz that while “the Supreme Court has said, a fixed mean­ing, that we’re to look to the original words,” she personally had “not had any cases that have re­quired me to develop a view on con­stitutional interpretation of text in the way that the Supreme Court has to do.”

This morning, prompted by Durbin, Jackson gave an answer that pays tribute to the originalist position: “I’m looking at original documents. I am focusing on the original public meaning because I am constrained to interpret the text. Sometimes that’s enough to resolve the issue. . . .” That is not the end of the inquiry, of course; Republicans on the committee can and should probe further into how Jackson thinks through these issues and how her record shows her bending the law, at times, to reach favored outcomes. But it is another measure of the intellectual and political victory of originalism’s argument about the legitimacy of constitutional and statutory text that, rather than stand up for the progressive critique of originalist methodology, a Democratic nominee facing a Democratic senate professes to embrace “original public meaning.”

International

Climate, War, and the U.N.’s Priorities

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Russian President Vladimir Putin and Chinese President Xi Jinping attend the Tsinghua University’s ceremony at Friendship Palace in Beijing, China, April 26, 2019. (Kenzaburo Fukuhara/Pool via Reuters)

There are times when the U.N. makes the League of Nations look good.

This was one of these times.

The BBC:

The UN Secretary General says the rush to use fossil fuels because of the war in Ukraine is “madness” and threatens global climate targets.

The invasion of Ukraine has seen rapid rises in the prices of coal, oil and gas as countries scramble to replace Russian sources.

But Antonio Guterres warns that these short-term measures might “close the window” on the Paris climate goals.

He also calls on countries, including China, to fully phase out coal by 2040.

Guterres can “call” on countries as much as he likes, but China’s Xi  doesn’t seem to be paying too much notice.

Bloomberg:

China plans a massive increase in coal mining, a move that will dramatically reduce its reliance on imports and deal a blow to its near-term climate actions.

The National Development and Reform Commission, the nation’s top economic planner, told officials from major mining regions at a meeting late last week that it wants to boost domestic production capacity by about 300 million tons, according to people familiar with the matter. It also plans to build a 620 million-ton stockpile of the fuel split between government, miners and users.

Such an increase in output would cut the country’s already scant dependence on foreign imports after global prices hit record levels in the wake of Russia’s invasion of Ukraine. The measures also highlight concerns that China’s reliance on fossil fuels remains as entrenched as ever, as it seeks to enhance energy security to limit disruptions to economic growth, regardless of the impact on its climate goals.

The war in Ukraine and the sanctions that have followed it have only underlined the importance for a country either to be self-sufficient in certain areas (of which energy is one) or to have sources of supply on which it can rely.

However repellent he may be, Xi  is not a fool. When it comes to energy resources, China is rich in coal, but not much else, which is why, for example, Beijing is making more arrangements to secure oil and gas (at doubtless attractive prices) from a Russia that is rapidly becoming its junior partner.

How much attention will Xi pay to Guterres?

None.

BBC:

“The problem was not solved in Glasgow,” Mr Guterres says, in a speech delivered at the Economist Sustainability Summit.

“In fact, the problem is getting worse.” The war in Ukraine threatens to make that situation even more problematic, he says.

Europe and the UK and other countries are looking to cut their reliance on Russian oil and gas this year. Many are turning to coal or imports of liquefied natural gas as alternative sources.

But Mr Guterres warns this short-term approach heralds great danger for the climate.

“Countries could become so consumed by the immediate fossil fuel supply gap that they neglect or knee-cap policies to cut fossil fuel use,” Mr Guterres said.

“This is madness. Addiction to fossil fuels is mutually assured destruction.”

What is madness is to continue to argue for policies that fail to take any account of current geopolitical realities. But then cheerleaders for millenarianism and for central planning at its most reckless (and current climate policies manage to combine elements of both of these appalling traditions) are not known for taking much account of reality.

For the West to follow Guterres’s advice (because no one else will) would be to ensure either its own collapse or, as an alternative, to risk setting the planet on a course far more dangerous than anything that the climate may or may not do in, say, half a century from now.

Health Care

Study: Medical Marijuana Not All That Helpful

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(Anthony Bolante/Reuters)

The medical-marijuana movement touts cannabis as almost a cure-all. It supposedly relieves pain, depression, and anxiety, improves appetites for people in chemotherapy, etc.

Well, not so fast. It turns out that there isn’t all that much science behind some of these claims. To the contrary, a just-published study in JAMA Open Network concluded that the issue has not been extensively studied, and moreover, that medical-marijuana cardholders did not experience many of the supposed benefits of cannabis — other than sleeping better — but did experience an increase in cannabis use disorder (CUD). From the conclusion:

In this RCT, ownership of a medical marijuana card led to rapid onset and increased incidence and severity of CUD in some participants, particularly those with a chief concern of anxiety or depressive symptoms. The self-reported improvement in sleep quality warrants further study into the benefits of medical marijuana card ownership for insomnia and the risk of CUD. There were no observed benefits of obtaining a medical marijuana card for pain, anxiety, or depressive symptoms.

Please note that the issue of appetite improvement was not discussed, and indeed, cancer patients were excluded from participation. That’s too bad, because this use clearly seems beneficial.

Part of the problem with getting the scientific facts about medical cannabis has been the difficulty in conducting studies due to the ludicrous Controlled Substances Act’s listing marijuana as a Schedule 1 drug, meaning that as a matter of federal law, marijuana has “a high potential for abuse” and “no currently accepted medical use in the US” — which I have opposed. Indeed, the law makes itself ridiculous by making that assertion.

Does this study’s generally negative conclusion matter in the larger scheme of things? Perhaps not all that much. I have always believed that the medical-marijuana movement’s primary purpose was to soften the country for legalization of recreational marijuana. Indeed, the “letter from a doctor” to obtain MM was often treated as more of a joke than a real limitation on access.

Now with the full legalization mission fundamentally accomplished — which I also oppose, for whatever that is worth — perhaps proper scientific studies on cannabis as a medicine can be conducted. I hope so. Because the sooner we fully discern the maladies for which cannabis actually helps — and those for which it offers little benefit — the better off sick people will be.

The Economy

Cronyism: Intel Edition

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An Intel computer chip logo at the Electronic Entertainment Expo in Los Angeles, Calif., June 11, 2019. (Mike Blake/Reuters)

It isn’t difficult to see why capitalism gets a bad name when many big companies have the receipt of government subsidies as part of their business plan. See the Wall Street Journal here:

Intel Corp. INTC said it would invest $36 billion in chip production and research across Europe, including a new chip-making complex in Germany, to keep pace with surging demand for semiconductors….

Intel is among a raft of chip companies responding to unprecedented demand for digital products and a global chip shortage that has amplified the need for more manufacturing. Semiconductor industry sales globally surpassed $500 billion for the first time last year, and executives believe that total could double in less than a decade. . . .

Mr. Gelsinger suggested that the German project was contingent on government support coming through, saying in a webcast Tuesday that there was still work to be done to secure permits and “financial support needed to make the project competitive.” . . .

The precise amount of cash needed will depend on the scale of government subsidies, the company said.

This is Europe, but the same dynamic is true in the U.S., where Congress is considering throwing lots of cash to private chip production. Scott Lincicome documents the many weaknesses in the case for subsidizing domestic chip production. And yet companies keep asking for, and counting on, such subsidies. It’s no wonder then that the public supports government regulation of these companies’ affairs. You can’t have it both ways: Play the free-market card when you don’t like the government constraints and beg for handouts every opportunity you get.

World

A Story I Missed

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The good people at Remington are donating 1 million rounds of ammunition to Ukraine.

Well done.

Film & TV

It’s a Wrap

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Leo Eaton (via Facebook)

I met producer/director Leo Eaton at the end of the last millennium, thanks to Michael Pack, with whom I was making my first documentary, Rediscovering George Washington. Michael retained Leo, an old friend, to be co-executive producer, a slot that can mean anything. What it meant in this case was that we drew on his expertise with the style of historical documentary we wanted to make, which Leo called history in the present: not dramatizing it, à la Hollywood, or talking about it, even artfully, à la Ken Burns, but showing both what it was and how it persists today. Leo helped us with that show, and with its successor, Rediscovering Alexander Hamilton.

Leo had a long career with the BBC and PBS, after a long career of adventures, some cinematic, many not, in Mexico, Greece, and Texas. Two of his film students made the Texas Chainsaw Massacre; he once worked, grinding out pornography, alongside Ed Wood, famous as the worst director in the history of movies. A younger colleague he told of these accomplishments remarked, “You’re retro hip!” He was talented, efficient, and charming — traits that do not often hang out together. The last supplied his best anecdotes. When filming The Story of Ireland, Anglo Leo had to deal with an Irish cultural official who was a stern patriot. He crawled into the man’s office on hands and knees. Said the official, “That won’t be necessary; a simple apology will do.” The results of his talent and his efficiency are visible in all his many films.

Leo produced and directed my most recent documentary, John Marshall: The Man Who Made the Supreme Court, and its festival-length cut-down, Courtmaker. We are three-quarters of the way through shooting Free Exercise, a documentary on the history and present prospects of religious liberty in America. Our most recent shoot was on St. Patrick’s Day, kitty-corner from the cathedral on Fifth Avenue, to catch the parade as it went by. This all-American celebration will serve as a contrast to the riotous violence that greeted Catholics here in the 1830s. I stood on the curb, doing a piece to camera; Gary Griffin, our director of photography, shot me and all the action; Lyn Rapaport Reid, our assistant producer, kept the whole thing together (she had staked out the spot at 8 a.m.); and Leo watched it all via a smartphone from his home in Santa Fe. Three days later he was gone.

At the end of every life, as at the end of every show, it’s a wrap. God bless. You did a good job.

Law & the Courts

Ho-Hum: The Cases Senator Hawley Cites Show Judge Jackson Is an Unremarkable Sentencer in Child-Porn Cases

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Judge Ketanji Brown Jackson delivers an opening statement at the U.S. Senate Judiciary Committee confirmation hearing on her nomination to the U.S. Supreme Court on Capitol Hill in Washington, D.C., March 21, 2022. (Evelyn Hockstein/Reuters)

Senator Josh Hawley could not have been more civil and engaging in his opening statement at Judge Ketanji Brown Jackson’s confirmation hearing today. He was also very fair in alerting Judge Jackson about the specific child-pornography cases he intends to question her about — i.e., about the sentences she imposed in those cases as a federal district judge.

This is as it should be. Judge Jackson is a progressive, and progressive judges tend to be light sentencers. It is fair game for senators to probe her judicial philosophy, which includes her approach to sentencing, the most wrenching task a district judge must perform. The objection I posited in my column from last night (which got some mentions during the opening hearing session on Monday), was that Hawley’s much-discussed tweet thread was not reflective of such an inquiry. It was a mudslinging allegation that Jackson is indulgent of “sex offenders” who “prey on children.” It created an impression that there is something deeply disturbing about her record.

In reality, the portion of her record that Hawley has highlighted is pedestrian. I am not going to rehash the column. Let’s just look at the cases Hawley cites. There is so little rain here for all the big wind, it’s hard to believe this is an issue. To grasp this, it’s important to know a bit about how federal sentencing works.

Every federal crime is codified in a statute that prescribes a maximum sentence. Sometimes — usually for very serious crimes — it also prescribes a minimum sentence, but otherwise the minimum is zero (i.e., no incarceration). Often, the range is broad, say zero to 20 years. The judge must impose a sentence within the statutory range.

Historically, the broadness of statutory ranges invited the scandal of disparate treatment: similarly situated defendants given markedly different sentences for the same offense, depending on what judge was assigned to the case. To promote equal protection, Congress created the U.S. Sentencing Commission, which promulgates federal sentencing guidelines. Based on a granular assessment of offense factors and offender characteristics, the guidelines compute a much narrower range of months that would make for a fitting sentence within the broad statutory range — say a guidelines range of 46 to 57 months, even if the statute would permit anything between zero and 20 years. Importantly, the Supreme Court has held that the guidelines are advisory, not mandatory. That is, a judge has the legal authority to sentence above or below the guidelines range — although the judge must remain within the statutory range (including any mandatory minimum term of years).

In every case involving a defendant who has been convicted, the parties make a presentencing submission. In it, each side advises the court on the application of the guidelines to the case. The vast majority of criminal cases are resolved by guilty plea, and the parties thus routinely negotiate a stipulation about the application of the guidelines to the case. Such stipulations will sometimes reserve the right to disagree about particular guidelines adjustments. In that situation, the judge must resolve the dispute before imposing sentence. (We’ll see that this happened in one of the cases Hawley cites, though Hawley may not have realized it.)

For every sentencing, the U.S. Probation Department, which is an arm of the court, independently prepares a report. The Probation Department gets input from the parties, but it is expert in the guidelines (as are federal judges), and it makes a recommendation to the judge which may differ markedly from the parties’ recommendations. To repeat, though, the sentence is ultimately up to the judge. She need not follow the Probation Department or the parties; she is limited only by the statutes of conviction. While the judge need not follow the guidelines, the government may appeal the sentence if it claims the judge got the guidelines wrong. Judges thus tend to be heavily influenced by the guidelines — and we should note that Judge Jackson served on the Guidelines Commission and believes in the guidelines system.

Applied faithfully, the guidelines tend to call for more severe sentences than most judges would impose in the absence of guidelines. Consequently, it is common for judges to sentence at the low end of the guidelines range — whether they have a reputation for being hard or soft on crime (the point of the guidelines is to dilute the relevance of such predilections). Indeed, in my experience, the real intrigue in sentencing involved the computation of the range, not where within the range sentence would be imposed. That is, the real haggling is about which guidelines adjustments to apply. That negotiation yields the agreed-upon guidelines range. From there, it is usually safe to assume the judge will sentence at or near the bottom of the range.

With that as background, the seven cases Hawley wants to discuss with Jackson are standard fare — there just isn’t anything that unusual about them.

Even Hawley does not dispute that, in every case, Judge Jackson imposed a sentence that was lawful. Hawley does not claim the Justice Department appealed any of the sentences he cites. And while the senator derides the judge for sentencing below the guidelines, he neglects to mention that in several cases, both the prosecutors and the Probation Department recommended sentences below the guidelines range. That goes to a theme of my column: The sentencing guidelines and the applicable statutes in many child-pornography cases are draconian, and even the Justice Department does not always defend them.

Each of the seven cases in question has been analyzed by the Washington Post’s Glenn Kessler. To my knowledge, Senator Hawley has not disputed Kessler’s reporting on what the positions of the parties and the Probation Department were in these cases. Reviewing this information (which the senator did not include in his tweets), it is hard for me to believe that Hawley really sees this aspect of Jackson’s record as momentous. Let’s go through the cases.

(1) In the Savage case, Hawley apparently made a mistake. He claimed that the guidelines range was 46 to 57 months, and that Jackson imposed a sentence of 37 months. In fact, the parties did not agree to a 46–57 range; rather, they disagreed on whether a two-point enhancement applied. Jackson ruled in the defendant’s favor, which reduced the guidelines range to 37 to 46 months. Jackson then imposed a 37-month sentence. That was not only within the range (the bottom of it, which is typical); it was a month more than the Probation Department’s recommendation of 36 months.

(2) The Stewart case has ugly facts, as all these cases do, but there also appears to be some hype that will be familiar to practitioners. Hawley says that, besides possessing thousands of child-porn images, the defendant “hoped to travel across state lines to abuse a 9-year-old girl.” Hoped is doing a lot of work in Hawley’s rendering. Obviously, if Stewart had actually crossed state lines and abused a nine-year-old girl, this would be a much different matter. But the Justice Department didn’t even charge him with attempting to do that.

Hawley says the guidelines called for 97 to 121 months’ imprisonment. Clearly, the court’s Probation Department didn’t think so — it recommended a sentence of just 42 months. Judge Jackson imposed a sentence of 57 months. This is noteworthy for two reasons. First, it is over a year more than the Probation Department recommended. Second, for all the talk about Stewart’s “hope,” this was not a case of physically abusing a nine-year-old girl; the conviction centered on Stewart’s possession of pornographic images. If it had been anything more than that, the mandatory minimum five-year provision would have applied, requiring a sentence of at least 60 months. This probably explains why the Probation Department’s recommendation was so much lower than what Hawley says was the guidelines range. For her part, though, Judge Jackson’s sentence is very close to 60 months. That is, she treated the case with the seriousness of a mandatory-minimum case, even though it wasn’t one.

(3) In the Cooper case, if Kessler is right, it is Hawley rather than Jackson who has some explaining to do.

Cooper was a mandatory-minimum situation: A 60-month sentence was required because of the number of images (over 600) the defendant possessed, plus his posting of some of them publicly. Jackson imposed the 60 months. Hawley says he’s alarmed because the guidelines supposedly called for 151 to 188 months. But what the senator conveniently omits is that the Justice Department recommended 72 months — less than half of what Hawley says was the bottom of the guidelines range, indeed more than six years less. Clearly, even the prosecutors believed the guidelines were too draconian to enforce.

Under the circumstances, Jackson’s 60-month sentence was not much less than what the government called for; and it was also exactly what the Probation Department recommended. (The two-month sentence the defense proposed would presumably have been illegal, though it does convey the sense that the guidelines calculation substantially overstated the seriousness of the offense.)

(4) In the Chazin case, Hawley says the guidelines range was 78 to 97 months, but Jackson imposed just a 28-month sentence. The senator elides mention of the fact that the Probation Department recommended 28 months. If you’re noticing a pattern here, you should be: The court’s Probation Department often sees the guidelines as too harsh (or the government’s calculation of them as too aggressive). Judges pay a good deal of deference to the Probation Department because, like the court, it is neutral in brokering the competing claims of the prosecutors and defense lawyers.

(5) Speaking of which: In the Downs case, which triggered the five-year mandatory minimum, Hawley complains that the guidelines called for 70 to 87 months, but Jackson imposed the 60-month minimum sentence. Again, however, a 60-month sentence is what the Probation Department recommended. It is also just 10 months less than the bottom of what Hawley says was the guidelines range. That is hardly scandalous.

(6) The Hawkins case sounds a lot like some of the investigations involving very young defendants that I described in the column. Hawley makes a point of saying the defendant “was over 18,” which suggests that he wasn’t much over 18 — in fact, the defendant was 18 at the time of the offense. The senator says the guidelines “called for a sentence of 10 years.” That is, Hawkins was a young, nonviolent offender whose crime was possession of child-porn images, and the senator would have him sent to a federal penitentiary for ten years.

This is so harsh that it puts Hawley out of the mainstream. Don’t take my word for it: In Hawkins’s case, prosecutors recommended just 24 months ­— eight years less than Hawley’s preferred sentence. I haven’t heard Hawley say the Justice Department is soft on “sex offenders” who “prey on children,” so why lob that bomb at Jackson? In any event, the senator says he’s alarmed that Jackson sentenced Hawkins to just three months. But the Probation Department recommended just 18 months — and the defense proposed just one day. All indications are that we’re dealing with a nonviolent defendant who was just over 18 — the age below which the government would have declined to prosecute at all. If Hawley is right about the guidelines, then everyone involved in the case — the defense lawyer, the prosecutor, the Probation Department, and Judge Jackson — was grappling with the manifest injustice that would have resulted if the guidelines had been followed to the letter.

(7) Finally, in the Sears case, a sociopath not only distributed 102 pornographic videos but included “lewd pictures of his own 10-year-old daughter.” Jackson imposed a 71-month sentence. That was nearly a year above the mandatory minimum. Still, it was over two years less than the 97-to-121-month range that both prosecutors and the Probation Department agreed would reflect an appropriate, guidelines-adherent sentence. Senator Hawley is right that this is a sentencing worth asking Jackson about. But let’s maintain some perspective: She did impose significant incarceration. Furthermore, Hawley has provided no indication that the Justice Department appealed; presumably, prosecutors would have done that if the term Jackson imposed resulted from a wrongheaded application of the guidelines.

In conclusion, the cases Senator Hawley cites do not show that Judge Jackson is an unusually soft sentencer in child-porn cases, much less that she is indulgent of “sex offenders” who “prey on children.” She is certainly not a harsh sentencer. The terms she has meted out, though, are compliant with the law and usually equal or exceed the sentencing recommendations of the court’s probation department. Moreover, the fact that the Justice Department’s own sentencing recommendations are sometimes dramatically lower than the guidelines range underscores that the guidelines in child-pornography cases — at least as applied to low-level, nonviolent offenders whose crimes entail consumption rather than production of pornography — are extraordinarily harsh. That is why they have drawn criticism from judges and practitioners across the political spectrum.

Religion

If You Are in the NYC Area Tuesday Night, Join Me in Shining a Light on the Christians of Iraq

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I’ve written about the documentary, Francis in Iraq, that will be premiering here.

Get your ticket here.

International

What the Canadian Pacific Shutdown Could Mean for the U.S.

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A Canadian Pacific Railway crew works the CP Rail yards in Calgary, Alberta, in 2014. (Todd Korol/Reuters)

Over the weekend, Canadian Pacific Railway (CP) began to shut down its operations because of a labor dispute. Headquartered in Calgary, CP is one of the largest freight railroads in North America, with over 12,000 miles of track.

Around 3,000 engineers, conductors, and yard workers stopped working on Sunday, according to FreightWaves. They’re represented by the Teamsters Canada Rail Conference (TCRC), and the union said the main points of disagreement were wages, benefits, working conditions, and pensions — in other words, just about everything.

Each side is blaming the other for the shutdown. The TCRC emphasized that this shutdown is a lockout, not a strike, because it was initiated by Canadian Pacific, not by the union. CP contradicted TCRC’s claim, saying that the union was the one that walked away from negotiations.

Whoever started it, the result is the same: Canadian Pacific’s normal rail operations will not be resuming until a deal is worked out. That has consequences for the United States.

Despite its name, CP has significant U.S. operations. In addition to its denser network in western Canada, CP serves North Dakota, Minnesota, Iowa, Missouri, Wisconsin, Illinois, Indiana, Michigan, New York, and Pennsylvania.

Sensitive to those connections, Senators Kevin Cramer (R., N.D.), Steve Daines (R., Mont.), Mike Braun (R., Ind.), and John Hoeven (R., N.D.) sent a letter to Justin Trudeau last week urging the Canadian prime minister to do everything possible to prevent the strike. The senators were careful to note two particular commodities that would suffer from a work stoppage: crude oil and fertilizer.

Because of the Keystone XL pipeline cancellation, Canada and the US rely on CP to carry heavy Alberta crude oil to US refineries. Without the ability to move heavy Canadian crude, fuel supply shortages will be exacerbated and agricultural producers who rely on diesel to power their equipment will be forced to pay even higher fuel costs.

Up to fifteen percent of CP’s business is fertilizer shipping, and the US relies on Canada to help provide our producers with essential inputs like potash and nitrogen fertilizers. At a time when agricultural input costs are already skyrocketing, major agriculture producing nations are at war, and global food prices are at an all-time high, all steps necessary must be taken to ensure producers have access to the inputs they need.

Crude oil and fertilizer are also two of the products most affected by the war between Russia and Ukraine, which are the “major agriculture producing nations” the senators were referencing in the letter. Oil has been at the center of media attention, but as Andrew Stuttaford has written about before, fertilizer shortages could end up being much more damaging. Food is truly a universal input.

Given the war, U.S. and Canadian grain producers are under pressure to produce more than normal this season to at least partially compensate for the lost production in Russia and Ukraine. That means they’ll need a lot of fertilizer. Saskatoon, Saskatchewan, is home to Nutrien, the world’s largest fertilizer company, and is served by one of the densest parts of CP’s rail network. Without CP operating as normal, many farmers on both sides of the border will have a hard time getting fertilizer.

This work stoppage might only be a foreshadowing of what is to come, however. The International Longshore and Warehouse Union (ILWU), which represents West Coast dockworkers in the U.S. and Canada, has been gearing up for labor negotiations when its current contract expires on July 1.

In what is not exactly a sign of great confidence, 49 industry groups sent a letter to President Biden and Vice President Harris on March 1, asking the federal government to aid negotiations between the ILWU and the Pacific Maritime Association, which represents employers. The letter notes that previous disruptions at West Coast ports cost the U.S. over $1 billion per day. Negotiations have not even started yet.

It also notes that U.S. ports are some of the least efficient in the world. One of the primary reasons for that is the ILWU, which has opposed technological advances that would make them more efficient, but also reduce the number of union jobs. The Biden administration prides itself on its pro-union stance and is unlikely to demand any meaningful concessions on port automation that would actually improve efficiency.

That’s especially true now, when the ILWU has a lot of leverage. Given the current state of supply chains, the last thing politicians want is a work stoppage, and the left-wing governments in both the U.S. and Canada are ideologically predisposed to side with labor over management. The unions know that, so expect them to press hard for conditions that employers will not want to grant. The ILWU’s president was already telling his members back in August 2020 that “there may be a battle in 2022,” so “be prepared.”

Just as the TCRC was willing to play hardball with CP, the ILWU may be willing to do the same at our West Coast ports. The CP shutdown doesn’t look like it will be over quickly, either, with CP saying today it is still “at an impasse” with negotiators. If the TCRC ends up getting what it wants, it will only further embolden the ILWU to shut down work if its demands aren’t met.

The last thing we need right now is a dockworkers’ strike, but it could be where we’re headed, with this CP shutdown as the undercard match before the main event.

Music

Robert Fripp and the Meaning of Discipline

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Robert Fripp in In the Court of the Crimson King. (Toby Amies/Platform Media Group)

Robert Fripp does not appear to be a particularly pleasant individual to know, but, after watching the new documentary about the band he rules with a calloused hand, I begin to understand how he occupies this rarefied position in rock and why everyone in his orbit works so hard for his approval.

Kyle Smith reviewed In the Court of the Crimson King over the weekend, and I agree with Kyle that it’s one of the finest rock documentaries out there. No, you won’t learn how King Crimson came up with the patterns on “Discipline” or how many takes it took, but you will learn about discipline.

To cultivate a following as devoted as King Crimson’s, one must commit to an excellence that never stops doubting itself. Robert Fripp, an impossibly dedicated guitarist, demands it of the musicians he works with (“bandmates” would be too permanent a term) and demands it of himself.

This documentary is in general terms an exploration of legacy and purpose, unexpectedly funny in parts but full of existential reflection — much of it provided by the terminally ill and since-deceased drummer Bill Rieflin, whose clarity in approaching death is remarkable. One moment, however, stands out to me, on that topic, again, of discipline. It comes when Fripp is explaining why he maintains such a rigorous daily-practice regimen. After remarking on the general desire to get better, he relays the following:

And in the past couple of days, I’ve been re-fingering my part on “Neurotica” and fine-tuning certain specific aspects within my calisthenic practice. I’m not sure to what extent anyone in the audience would recognize the difference, but in a year’s time, they might.

He approaches the craft as would a golfer fiddling with a new grip or stance, always in pursuit of a slight improvement that might enter the memory of muscle and become fixed, a new foundation for further improvement. He also happens to speak with the same precision he applies to his playing. Never an “um” or a grammatically imperfect aberration. No, not from Robert Fripp. That would be something less than excellent and, as such, intolerable.

World

That Much-Discussed Dog That Refuses to Bark

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After a shelling in Sumy, Ukraine, March 18, 2022 (Press service of the State Emergency Service of Ukraine / Handout via Reuters)

Thursday will mark one month of the Russian invasion of Ukraine — and while the Ukrainians are putting up one hell of a fight, the Ukrainians are paying a severe cost. Today, President Volodymyr Zelenskiy has told his countrymen Ukraine “has  suffered serious losses.” Cities are slowly but steadily being reduced to rubble, more than ten million Ukrainians have fled the country, and officials in the European Union are declaring that Russia has commited war crimes. The Russians appear to be deliberately targeting hospitals and bomb shelters.

If Ukraine secretly has chemical or biological weapons, as some unconvincing voices, including Russian government and Russian state media claim… why haven’t the Ukrainians used them? What, 150,000 Russian troops coming over the border just wasn’t a big enough threat to risk using them? The danger just isn’t severe enough yet to justify using them? They’re waiting for another city to get demolished before taking them off the shelf?

(Once again, declaring that Ukraine doesn’t have a biological weapons program doesn’t mean that Ukraine doesn’t have laboratories that have samples of dangerous pathogens.)

 

World

Biden’s Iran Deal Is Alienating Key Partners in the Middle East

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A view of a damaged building in the aftermath of Islamic Revolutionary Guard Corps missile attacks in Erbil, Iraq, this month. The Biden administration reportedly has offered Tehran the removal of the IRGC’s foreign-terrorist organization designation. (Azad Lashkari/Reuters)

Earlier today, the Wall Street Journal reported that the Islamic Revolutionary Guard Corps’s status as a foreign-terrorist organization (FTO) is the final hurdle of the yearlong Iran nuclear negotiations in Vienna.

The Biden administration reportedly offered Tehran the removal of the IRGC’s FTO designation as well as terrorism sanctions in exchange for better behavior in the region. This is willful ignorance; the IRGC continued to test and use ballistic missiles after the 2015 JCPOA (just last weekend, it struck Erbil with 12 ballistic missiles). It has provided training and resources to terrorist groups across the Middle East, such as Hezbollah and Hamas. Iran is the world’s leading sponsor of terror.

If that’s not all bad enough, the U.S. stands to infuriate and alienate key regional allies and partners. Israel has called on the U.S. to reconsider concessions. The UAE and Saudi Arabia — both targets of Iranian-backed attacks — are also likely opposed to Biden’s Iran deal and are showing signs of alienation. As oil prices spike and Biden pleads with the Saudis and Emiratis to boost their production, he’s alienating them on Iran and pushing them into the arms of unsavory actors.

Israel has been vocally opposed to the Iran deal, with Prime Minister Naftali Bennett saying that the U.S. is willing to pursue a deal “at almost any cost.” Bennett says that removing the IRGC’s FTO designation is an “outrageous demand” and that he is “very concerned.”

On Friday, Bennett and Yair Lapid, the foreign minister of Israel, issued a joint statement conveying their disbelief at U.S. concessions: “We refuse to believe that the United States would remove its designation as a terrorist organization.”

Israel is a likely critic of the impending nuclear deal. It opposed Obama’s 2015 JCPOA because of its lenient terms. Biden’s current deal would be dangerously weaker in terms of nuclear regulation, and it removes sanctions on terrorism that Obama was willing to keep in place despite the JCPOA.

The UAE is also displeased with Biden’s flimsy deal. Earlier today, the Jerusalem Post reported that some in the UAE are “in great shock” at the possible IRGC concession.

The UAE has been the target of frequent attacks by the Iran-backed Houthi rebels in Yemen. At the end of January, the UAE intercepted a ballistic missile fired by Houthis. A week earlier, the Americans and Emiratis intercepted another Houthi missile heading toward Al-Dhafra Air Base in Abu Dhabi and the 2,000 American troops stationed there.

American negotiators’ willingness to engage with Tehran’s terroristic regime will likely alienate key partners and adversaries of Iran. Indeed, on Friday, Syrian President Bashar Assad visited the UAE, marking Assad’s first visit to an Arab country since 2011. This may signal the Arab world’s willingness to reintegrate Syria despite Assad’s atrocities. The purpose of the meeting was likely to discuss trade and security ties.

Ned Price, the spokesman for the State Department, said this was an “apparent attempt to legitimize” Assad and urged the UAE and other states to “weigh carefully the horrific atrocities visited by the regime on the Syrians over the last decade, as well as the regime’s continuing efforts to deny much of the country access to humanitarian aid and security.”

Last week, Price took a different tone regarding nations that support “atrocities.” He defended the Iran nuclear negotiations, saying that Iran would “fund proxies . . . fund terrorist groups” with “greater impunity” if it obtained a nuclear weapon. (The catch here is that the nuclear deal would still allow Iran to work toward a nuclear weapon because of weak uranium-enrichment limits. On top of that, the Biden administration is fully aware that Republicans will scrap the deal as soon as they have the chance, meaning Iran will be able to cash in on sanctions relief under Biden and then double-down on its nuclear program if Republicans prevail.)

Behnam Ben Taleblu, a senior fellow at the Foundation for Defense of Democracies, was on Fox this weekend discussing the alienating effect of the nuclear negotiations. He noted that American allies will try to “hedge” with different economic and military arrangements after an Iran deal to counter Tehran. “Hedging may be a way to send a message to Washington that its pro-Iran policy is going to have some consequences,” according to Taleblu.

Saudi Arabia, another frequent target of Houthi attacks, is also hedging its bets. The Wall Street Journal reported that Saudi Arabia is considering pricing its oil sales to China in yuan. Meanwhile, the Saudis have avoided taking Biden’s calls for more oil, incensed at his lack of action against the Houthis and his lenience with Iran.

Nations such as the UAE could start to look for friends elsewhere as American officials grant Iran’s every wish, weakening U.S. leadership and deterrence in the region.

Law & the Courts

Fun with Charts

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U.S. Supreme Court in Washington, D.C. (Joshua Roberts/Reuters)

I have no problem with Ketanji Brown Jackson’s résumé, which is fine, and I have no problem with her character, either. Like Andy, my objection to her nomination lies entirely with her philosophy. Still, this graph from the Washington Post did make me laugh:

This isn’t a broadly applicable chart on which Jackson just happens to excel; this is a chart that has been reverse engineered so that Jackson hits every box. The authors include “Sentencing commission” because it applies to Jackson, but they leave out “Office for Civil Rights” because that would help Justice Thomas. “Public high school” is on there because Jackson went to one, but so is “Ivy League Law School,” which, despite the frequent complaints about the incestuousness of the Court, must in this case be cast as a positive. There’s nothing at all wrong with being a public defender, but the fact that Kagan and Sotomayor had no experience in that area was obviously not held against them when they were nominated, and neither was the fact that Kagan had had no courtroom experience whatsoever. As for “Supreme Court clerking,” if it didn’t apply — as it didn’t for Sotomayor or Thomas — it would probably be deemed a selling point (“she’s an outsider, to whom the Ivy League-to-clerkship-to-SCOTUS pipeline doesn’t apply!”), but, of course, Jackson clerked for Justice Breyer, so it’s needed here as a plus. How convenient that it all works out so well!

The box that’s notably missing is the one that matters the most: “Fidelity to the Constitution as Written.” Still, a boy can dream.

Culture

‘As a Mother’

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Young mother playing with her baby at home (Trendsetter Images/Getty Images)

This part of the exchange that Maddy posted earlier, between “Kellie Jay Keen, an English women’s-rights activist” and transgender activist Dawn (formerly Don) Ennis,” stood out to me:

“I beg your pardon,” Keen said. “As a mother, I am asking you — do not use female spaces. It makes women and girls very uncomfortable.”

“As a mother —” Ennis said.

“How dare you. You are not a mother,” Keen said.

That “as a mother” claim is utterly astonishing — a true jump-the-shark moment. Even if one were to agree with every single biological idea that is offered up by the transgender movement, there is simply no way of looking at history that could turn Don Ellis into the “mother” of the children he fathered. That Ellis is not his children’s mother is a fact, a certitude, a cosmic verity. It is true now, it was true then, it will be true forever.

I have two children. They were carried — and then delivered — by my wife. If I were to decide tomorrow that I identify as a woman, I daresay that some people would believe (or, at least, indulge me in) my fantasy. But that toleration wouldn’t — and couldn’t — change the historical fact that I did not give birth to my kids, and that I am, in fact, their Dad. Perhaps, in such a strange circumstance, I would want to be my children’s mother. But I would not be so, and to say otherwise would be to tell a preposterous, revisionist lie — akin in nature, if not in biological delusion, to the claim that, because I am an immigrant to the United States, it is fine for me to tell people that I was born here.

There are many alarming things about the transgender movement, but by far and away the most worrying is its tendency toward the rewriting of history. “Day by day and almost minute by minute,” Orwell wrote in 1984, “the past was brought up to date”:

In this way every prediction made by the Party could be shown by documentary evidence to have been correct; nor was any item of news, or any expression of opinion, which conflicted with the needs of the moment, ever allowed to remain on record.

“As a mother.” The hell you are.

World

Perhaps Intelligence Agencies Shouldn’t Have Facebook Accounts

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Russian President Vladimir Putin chairs a meeting with members of the Security Council via a video link at the Novo-Ogaryovo state residence outside Moscow, Russia March 3, 2022. (Sputnik/Andrey Gorshkov/Kremlin via Reuters)

As much as I would like to believe that Russia’s elites are about to attempt to kill or overthrow Vladimir Putin and end the invasion of Ukraine in order to restore economic ties, as the Chief Directorate of Intelligence for the Ministry of Defense of Ukraine asserts on Facebook, I find it unlikely to occur. The Google translation of the Facebook post follows:

Poisoning, sudden illness, accident – Russia’s elite is considering removing Putin

A group of influential people in opposition to Vladimir Putin is being formed among the Russian business and political elite.

A certain part of the Russian political elite of the Russian Federation considers as the successor of Putin – the director of FSB Alexander Bortnikov. It is noteworthy that Bortnikov has recently fallen out of favor with the Russian dictator. The official reason for the disgrace of the head of the FSB – fatal miscalculations in the war against Ukraine.

It was Bortnikov and his department who were responsible for analyzing the mood of the Ukrainian population and the capacity of the Ukrainian army.

It is known that Bortnikov and some other influential members of the Russian elite are considering various options for removing Putin from power. In particular, poisoning, sudden illness, or other “accident” is not excluded.

It is possible that these processes are connected with the recent “downpour” of the location of Chechen units in the north of Kyiv.

The information came from the Russian side. Probably, this is how the FSB leadership is trying to weaken Kadyrov’s influence. It may also be an attempt to establish cooperation with the Ukrainian authorities in advance, bypassing the current leadership of the Russian Federation.

Today’s Morning Jolt is all about the oligarchs in Russia, and the short version is that these guys are loyal lackeys of Putin who have the privilege of their enormous wealth and run their various companies and industries specifically because they’re the least likely to ever turn against Putin. Oligarchs who have disagreed or disobeyed Putin in the past have ended up dead. (A lot of Putin critics have “died under mysterious circumstances.”)

But let’s assume the Chief Directorate of Intelligence for the Ministry of Defense of Ukraine has received reliable reports that an effort to depose Putin is in progress, and that indeed, a group of Russian elites really are plotting to remove Putin. For this plot to work, the plotters absolutely must have the element of surprise. Those Russian elites would need to corner Putin, cut him off from loyalists, and remove him from power (and perhaps execute him) very quickly – or they would need to get close enough to him to poison him. Putin lashes out at anyone who he suspects of any disloyalty at all.

In other words, the last thing these anti-Putin Russian plotters would need would be Ukrainian intelligence revealing the whole thing is in the works on Facebook.

This is more likely a Ukrainian effort to stir up even greater paranoia in Putin, and to make him feel he cannot trust anyone.

Law & the Courts

Judges and Natural Law

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(mj0007/Getty Images)

A longstanding criticism of originalism holds it to be morally defective because it does not ensure conformity between the law and justice, and even requires judges to act without regard to justice. Careless arguments from originalists sometimes inadvertently strengthen this criticism.

Adrian Vermeule has drawn new attention to this criticism, which has now inspired Joel Alicea to write this defense of originalism. Alicea argues that “the natural law both demands that positive law conform to the natural law and that judges respect the limits of their authority. And under the American system, that requires judges to adhere to the original meaning of the Constitution for the sake of the common good.”

A question Alicea does not take up is whether a judge’s performance of his duties may require him, on some or many occasions, to go beyond the text of the law and engage in moral reasoning. His point is that the people, in exercising their legitimate political authority, may reasonably establish a system of government that cabins the power of judges. Where a just regime has done that, as ours has, the judge in the vast majority of cases has a duty to obey the people’s sovereign command.

Alicea also does not take up Vermeule’s alternative to originalism, perhaps in part because the latter had not elaborated it when the former began his essay. I agree with Ed Whelan that Alicea’s essay has much of interest that transcends the context of a response to Vermeule. It is certainly more worth your time than anything you will hear on the first day of Judge Jackson’s confirmation hearing.

Update: While Vermeule has blocked me on Twitter, meaning I can’t read his posts, I’m told he is complaining there that this item didn’t include a link to his new book. Which is probably because I didn’t mention his book at all. But I suppose authors can’t be expected to be reasonable in the quest for publicity. Anyway, here’s the link.

Law & the Courts

There Are Legitimate Questions about Jackson’s Views on Sex Offenders

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Ketanji Brown Jackson testifies before a Senate Judiciary Committee hearing on Capitol Hill in Washington, D.C., April 28, 2021. (Kevin Lamarque/Reuters)

The Article III Project has compiled an opposition report on Ketanji Brown Jackson’s views on how the criminal-justice system handles pedophiles and child pornography. There has been a lot of mock horror on the left about this line of criticism. Not all of the punches land. Some of A3P’s citations are to things only tenuously connected to Jackson. Moreover, Andy McCarthy argues, in criticizing Josh Hawley for raising this line of attack, that there are some aspects of our current sentencing regime that should be questioned.

All of that being said, the A3P does raise one item of Judge Jackson’s written views that is genuinely controversial. Her Harvard Law Review note in 1996 chose to focus on statutes that impose registration and community-notification requirements for sex offenders. Jackson argued for “deeming the laws ‘punitive’ to the extent that they operate to deprive sex criminals of a legal right” — rather than treating those laws as protective of communities — and argued, “if . . . a community notification statute deprives the [sex] offender of his right to mobility or bodily integrity and if it makes him the ‘target of widespread community rejection, antipathy, and scorn’ in a manner that is more retributive than rehabilitative, then it should be considered ‘punishment’” and therefore apt to be found unconstitutional under the analytical frameworks of “the Eighth Amendment, Ex Post Facto Clause, Double Jeopardy Clause, and Bill of Attainder Clause.” Jackson complained that “state legislators these days have little tolerance for sex convicts.”

As A3P notes, this is not just an argument for better due process before conviction, or for the application of separation of powers or federalism in enacting such rules. It is a different question from the argument that sentences are disproportionate for certain classes of offenders. And it has been rejected by the courts. Judge Patti Saris, for whom Jackson clerked, rejected that very argument in 1996, writing that “virtually every court that has considered the issue of whether registration is punishment for purposes of the Ex Post Facto Clause has held that it is not.” In Smith v. Doe (2003), the Supreme Court rejected it as well, ruling 6–3 that Alaska’s sex-offender-registry statute serves “a legitimate nonpunitive purpose of ‘public safety, which is advanced by alerting the public to the risk of sex offenders in their community.” Justices Stephen Breyer and Ruth Bader Ginsburg were two of the dissenters in Smith, but a decade later, Ginsburg joined Breyer’s opinion in United States v. Kebodeaux (2013), which upheld federal power to pass such laws on the grounds that “Congress could reasonably conclude that registration requirements applied to federal sex offenders after their release can help protect the public from those federal sex offenders and alleviate public safety concerns.”

In short: Jackson took a particular interest in arguing that sex-offender-registry statutes were unconstitutional. Her view was roundly rejected by the courts. It may well be that she no longer believes in the position she took in 1996, but it is completely fair to ask her about it and criticize her for giving too little weight to the public interest in protecting children from sexual predators.

Media

Is It Twitter’s Policy That Users May Not Dissent (or Joke) on the Trans Issue?

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Rachel Levine appears during her confirmation hearing in Washington, D.C., February 25, 2021. (Caroline Brehman/Pool via Reuters)

Caroline notes that:

The Babylon Bee, a Christian satire site, was locked out of Twitter Sunday for a satirical post that named transgender Cabinet member Rachel Levine “Man of the Year.”

Twitter claimed that the article violated its rules against “hateful conduct” when it notified the Bee that its account had been frozen.

“You may not promote violence against, threaten, or harass other people on the basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease,” the notice read.

Twitter has reportedly promised to restore the account in 12 hours but only under the condition that the Bee deletes the tweet it has deemed problematic.

Is it Twitter’s policy that its users may not assert (or joke) that transgender individuals are not really of the sex to which they believe they belong? If it is, the company should say so clearly, so that its 200 million owners know where they stand.

Twitter is a private company, and it can make that its rule if it wishes. Hell, if Twitter sees fit, it can make its rules up as it goes along. But it shouldn’t, because doing so is a recipe for caprice and for chaos.

In theory, “You may not promote violence against, threaten, or harass other people on the basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease” sounds rather straightforward. In practice, it’s nothing of the sort. At this very moment, there are people on Twitter hoping aloud that Clarence Thomas dies. Day in, day out, those same people write that Thomas is “not black,” and even that he’s a “race traitor.” For some reason, they never seem to get suspended. Presumably, Twitter’s defense is that this is somehow “different.” If so, then Twitter should own that difference and help us all understand where its lines have been drawn.

World

‘There’s a Lot at Stake in This Fight’

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A scene in Mariupol, Ukraine, March 18, 2022 (Alexander Ermochenko / Reuters)

It was enlightening and stimulating to talk with Radek Sikorski. He is the guest on my latest Q&A podcast, here. Sikorski, as you know, is a Polish journalist, writer, politician, and statesman. He is a member of the European Parliament. He was defense minister and foreign minister of his country, and also speaker of the house (or the Polish equivalent). Once upon a time, as he points out to me, he was the chief foreign correspondent of National Review. Greatly prized by us.

The Ukrainians have put up a hell of a fight, Sikorski and I agree at the outset of our podcast. I will paraphrase what he says:

I was in Kyiv ten days before Russia invaded, and I spoke to, among other officials, the defense minister, who told me that they had a plan to disperse and not give Russia a set-piece battle, which would put Ukraine at a disadvantage. They indeed dispersed. The delivery of Western weapons — Javelins, Stingers, and so on — has helped a great deal.

The unknown piece of the equation was the will to fight of the Ukrainian army. The spirit of that army. Their morale is amazing — and the low morale of the Russian army is also amazing.

Putin has already failed in his Plan A, and he is now trying to wage a war of attrition, which is why he is targeting civilians.

If his requests to the Chinese for more matériel are not granted, then I think he might attempt one more push on Kyiv, and, if that fails, we may see serious peace negotiations.

The war crimes of Putin’s forces are shocking, are they not?

They are appalling, but not shocking. Remember how Putin came to power. Remember the apartment bombings. If you are willing to kill your own people. . . . Remember that he burned Grozny, the capital of Chechnya, to the ground, and took over the ashes. Remember what he has done in Syria. He is doing the same thing in Ukraine — but it’s in Europe, so we find it shocking.

Why now? Why did Putin choose to launch his assault in February 2022?

A number of factors, possibly. He saw the American exit from Afghanistan. He must have figured that the Americans would not rally around the Ukrainians. There was a new government in Germany, headed by a Social Democrat. The government may well have seemed soft. He thought he had an understanding with China, an “all-weather friendship.” He saw that Ukraine was beginning to succeed as a democracy: fighting corruption, integrating its economy with Europe, holding genuine elections. Meanwhile, demand for Russian gas and other things was dropping in Western Europe. Putin may well have figured: In five or ten years’ time, it will be even more difficult to conquer Ukraine, so why not now?

Sikorski adds,

This conflict is not about Ukraine only. It is about autocracy and democracy, a toleration of minorities and a kind of 19th-century unity of state and people. It could also kill globalization. If China starts arming Putin for this war of conquest, there will be dire consequences for all of us. The world could have two blocs again, with each creating economies within the bloc. This would be tremendously costly, for people everywhere.

A word about what the war has exposed, concerning the Russian military:

Putin started this war with insufficient forces. Ukraine has a numerical advantage. We always assumed that Russia would have a technical advantage, but . . .

How about the question of nukes?

Putin cannot push a button, as in the movies. There is a chain of command. Will commanders want to be responsible for genocide? Or will they think it better to get rid of Putin?

There is a theory: When the United States says, “We will defend every inch of NATO territory, but we will not fight in Ukraine,” Putin and his men hear, “Do what you like everywhere else. Do what you like in Ukraine, Moldova, Georgia . . .”

I understand why President Biden is saying this. He wants to reassure us, the NATO members on the eastern flank; and he wants to reassure the American people, that their sons will not fight in Ukraine. But we ought to be in the business of making Putin unsure of what we will do, rather than telling him exactly where our redlines are. We should be doing things that make him nervous — things that are not escalatory and that are perfectly within our rights to do. There is a NATO exercise starting in Norway. We should be starting another one in the Baltic states, and another one in Alaska, so that Putin cannot marshal all his forces and throw them at Ukraine. This would materially relieve Ukraine of some pressure.

Is Putin mad?

He is not clinical. He is rational within a different logic: within the logic of a desire to reestablish the Russian empire, within the logic of hurt feelings and not enough respect and the kind of post-imperial resentment that leaders of former empires traditionally feel. Ukraine is the last toll of the Russian empire. This is Putin’s Algeria, if you like.

It’s hard to let go of an empire. The British fought you Americans because they didn’t want to let go of you. They fought the Irish. They suppressed the Indian mutiny, and so on. The French fought in Indochina, as well as Algeria. The Portuguese fought in Mozambique, etc. It’s very difficult to grant a former colony the right to be other. And it usually takes a war.

“They speak our language,” is the Putin attitude. “They are our peasants. What’s this business of being a separate country? That’s absurd!” This is Putin’s mistake. He thinks in a completely anachronistic way, in which your language determines your state loyalty. Well, Americans speak English, but they ceased to be loyal to the British crown, right? Try telling an Irishman that he’s really English and that London has the right to rule Ireland again.

Ukraine is interesting in that identities are actually political. People define themselves as Ukrainian or Russian on the basis of their political preferences. “I am Ukrainian because I want my country to be a tolerant democracy, and a part of Europe.” “I am Russian because I like strongmen such as Putin.” That is the division.

Putin is like a husband after a bad divorce, beating up the former wife because she dared to fix up her life rather better with someone else.

Instead of ending in Ukraine’s obliteration, could this war end in Putin’s fall from power?

Let’s hope so. But, for that, Ukraine would have to win. What would winning look like? Ukraine keeps most of its territory — almost all of it — and integrates with the rest of Europe, while remaining officially neutral. Finland or Sweden, if you like.

Putin keeps crying “Nazi! Nazi!” What’s that all about?

There was an article in the Guardian about the messaging of the far Left in Britain: They can’t decide whether Ukraine is Nazi, as per Russian propaganda, or Zionist, given the number of Jews in the government, starting with the president.

Putin talks of “denazification.” If any country needs deradicalization, and to learn peace with one’s neighbors, and tolerance internally, surely it is Russia.

There’s a reason that hipster and gay Kyiv went to the front lines. There’s a reason they took up arms. They know that, in a Putinized Ukraine, there’d be no room for them. This is a war for the right to be different.

So, it’s exactly the other way around. It is Putin, not Ukraine, who represents the idea of “Ein Volk, ein Reich, ein Führer” — One People, One Realm, One Leader.

A word about the Russian state media, and the Russian apparatus more broadly:

Generations have been brought up on a crazy imperialist ideology. There is the old Russian version. There is the Soviet version. And you have the Putin version, which is an amalgam of the two. The school curricula and the media have persuaded a sizable portion of the Russian population that they have a God-given right to rule over their neighbors and to have their Lebensraum. This idea needs defanging.

Have you heard the heartrending recordings of people in Ukraine calling their parents in Russia? The people in Ukraine are under bombing, and their parents don’t believe them.

The protests of individual Russians have been incredibly brave and inspiring, haven’t they?

Yes. When the Warsaw Pact invaded Czechoslovakia, there were eight or nine people who protested in Red Square, and they were all sent to prison, of course. Today, the protests are much more widespread, even though Russia is almost cut off from outside information. The chairman of an organization of war heroes resigned his position, in a letter of protest — a protest against the war in Ukraine. Extraordinary. Thousands of protesters have been arrested.

A lot of people are impressed with the generosity of Poles, in welcoming Ukrainian refugees.

Well, you know, we popularized the word “solidarity” around the world. Poland’s nature is to mobilize in a crisis. We now have almost 2 million Ukrainian refugees and no refugee camps, because the refugees have been received into Polish homes. This will require state solutions, and European solutions, but we feel that the Ukrainians are fighting our fight, and the least we can do is take care of their women and children.

What’s underreported and equally interesting is that we had a million Ukrainians before the war, most of them men, working at our construction sites and driving our Ubers. According to reports, some 80 percent of them have gone back to Ukraine to fight.

About ten years ago, you made a statement that made news around the world. Speaking in Berlin, you said, “I will probably be the first Polish foreign minister in history to say so, but here it is: I fear German power less than I am beginning to fear German inactivity.

Yes. Germany has been very late in recognizing that Putin regards himself as our enemy and that we need to do something about it. Germany has gotten their shock, and I hope they follow through on what Chancellor Scholz has announced: assistance to the Ukrainians, the rearmament of Germany, and a change in Germany’s energy policy.

In the past, you have said that liberal-democratic values have to be argued for, in every generation. Advocates of liberal democracy cannot rest on their laurels. They cannot assume that people — especially young people — naturally grasp the superiority of liberal democracy, or freedom, over autocracy.

Oh, it’s not just that liberal values have to be defended, or argued for. They are at a disadvantage, in a contest with the atavisms. I encourage people to Google and read George Orwell’s review of Mein Kampf, by a previous chancellor of Germany. The atavisms are very, very appealing: drums, excitement, a flag, a tribe, a fight. Can liberals match that, with the rule of law, a separation of powers, a free press, religious toleration, and so forth?

The higher values are a thin veneer that needs bolstering, all the time.

A final word:

If Ukraine wins — by the definition I have already presented — I think Russia will eventually overcome Putinism and become our ally, possibly, in our competition with authoritarian China, and that will change the balance of power substantially. If Putin wins — and I don’t think he can win without Chinese help — we will have the two blocs, and that will be very ugly. So, there’s a lot at stake in this fight.

Media

Washington Post Attempts to Justify Media Suppression of Hunter Biden-Laptop Story

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Then-vice president Joe Biden and his son Hunter attend an NCAA basketball game in Washington, D.C., 2010. (Jonathan Ernst/Reuters)

One of the main reasons that the mainstream press is so utterly lost these days is that the mainstream press does not know that it is utterly lost these days. See, for a good example, this preposterous post-rationalization of the reaction to the New York Post’s Hunter Biden laptop story that has been put together by the Washington Post’s Philip Bump.

Introducing his piece — which is titled, “The forgotten — and ignored — context for the emergence of the Hunter Biden laptop story” — Bump writes:

When the New York Post reported on Oct. 14, 2020, that it was in possession of emails between a Ukrainian businessman and Hunter Biden, son of the then-Democratic presidential nominee, it would have been hard to predict what followed. This was less than three weeks before the election itself, and the content of the report was soon subsumed to the odd way in which the paper obtained the information. Mainstream outlets and social media companies balked at elevating the story’s claims, triggering frustrations on the right that remain to this day.

Before we go on, let me stop Bump right there. “Social media companies” did not “balk at elevating the story’s claims.” They worked overtime to stop anybody reading the story at all. Twitter prevented users from sharing links to the piece by showing those who tried a message that read, “We can’t complete this request because this link has been identified by Twitter or our partners as being potentially harmful,” and it went so far as to suspend the New York Post’s account completely, until the paper agreed to delete its tweets on the matter. Facebook, meanwhile, altered its algorithms so that it did not “place posts linking to the story as highly in people’s news feeds, reducing the number of users who [saw] it.”

As for Bump’s “mainstream outlets”? They were actively dismissive. NPR explained that it did “not want to waste our time on stories that are not really stories, and we don’t want to waste the listeners’ and readers’ time on stories that are just pure distractions.” This was typical. At one of the presidential debates, Joe Biden said (well, lied) that the story was “a bunch of garbage” and a “Russian plant,” and, as he knew that it would, the press followed suit with these characterizations. “Balked at elevating the story’s claims”? Give me a break.

Bump continues:

New reporting has re-elevated questions about how the story emerged and was handled. In light of that resurrection, it seems useful to articulate exactly why there was suspicion about the story’s origins — suspicion that itself has not entirely been resolved.

In a vacuum, the case that Bump goes on to make is arguable. Indeed, if the mainstream press were a habitually skeptical institution, it might even be correct. But the mainstream press is not a habitually skeptical institution. Rather, it is a gullible, ill-informed, hysterical, lazy, dumb, and duplicitous institution, and its aims are utterly transparent.

You will presumably recall that the Hunter Biden story about which Bump is writing came hot on the heels of one of the most absurd freakouts in recent American history — a freakout, I need not remind anyone, during which the press exhibited precisely none of the traits that Bump is ascribing to it now. Utterly convinced that the president was a Russian agent, Bump’s “suspicious” press spent four years repeating, sharing, “elevating” (and believing) the most preposterous things about Donald Trump — and doing so without the slightest hint of skepticism “about the story’s origins.” Buzzfeed happily published an obviously fake “dossier,” with the justification that it was out there, and that “Americans can make up their own minds about allegations about the president-elect.” In response, Twitter and Facebook did nothing. New York magazine published a ridiculous fantasy about Donald Trump having been a Russian asset since 1987. In response, Twitter and Facebook did nothing. Cable news guests speculated wildly, punctuating their ramblings with self-congratulatory “boom!”s and assurances that the “walls” were “closing in.” In response, Twitter and Facebook did nothing. But when the New York Post published a story that Hunter Biden himself declined to deny . . . well, suddenly, all hands were on deck.

“Context”? There’s your context.

Politics & Policy

Slowing Things Down Has Value, Too

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(spukkato/iStock/Getty Images)

Teddy Kupfer hosted a roundtable at City Journal on that perennial question, the future of conservatism, featuring our own Alexandra DeSanctis discussing whether social conservatives are really “junior partners” in the coalition:

I think it’s fair to call it a junior partnership. Something that I appreciate about the conservative perspective is that cultural problems are not, first and foremost, something that the government solves. Families, individuals, communities, civil society: those are the first bulwark against cultural problems. The federal government does not need to come in and solve every social issue that we might have. That’s why I would say that, if there’s a junior partnership, it exists at the federal level.

For example, a few years back, we had Republicans in control of the Senate, the House, and the presidency. They’ve been promising for something like ten years to defund Planned Parenthood. Did they defund Planned Parenthood when they were in charge? No, but they passed a tax cut. I’m perfectly happy for them to do that, but Republicans tend to run at the national level on “defund Planned Parenthood” or other social-conservative promises, and then they get in office and forget about it. I don’t think that means that the conservative movement or the Republican Party as a whole doesn’t care about social issues. It’s just at the national level that it’s a problem.

Things like education and defunding the police are social issues. All these things that have been hot-button issues — identity politics, abortion — the Republican Party’s starting to notice, “Hey, wait a minute, as the other side goes crazy like I said before, we can push back against that in a way that resonates with the average American, even if they might not be as conservative as us.” So I see that shifting quite a bit in a way where social conservatives actually have a leadership role to take.

It is, of course, fair to raise one of the recurring critiques of conservative politicians on social conservatism: that all they seem to do is slow things down and never reverse the advances of progressives, especially on a matter such as what they government funds. Saurabh Sharma, for example, notes that “if all the Right can muster in the United States is the idea that after the Left wins decades of victories, we’ll marshal the tiniest response to slow them down a little bit, that’s not a governing agenda.” This is a complaint as old as Benjamin Disraeli asking, in 1844:

What will you conserve? . . . Everything . . . that is established, as long as it is a phrase and not a fact. In the meantime . . . the rule of practice is to bend to the passion . . . of the hour. Conservatism assumes in theory that everything established should be maintained; but adopts in practice that everything that is established is indefensible. To reconcile this theory and this practice, they produce what they call “the best bargain;” some arrangement which has no principle and no purpose, except to obtain a temporary lull of agitation, until the mind of the Conservatives, without a guide and without an aim, distracted, tempted, and bewildered, is prepared for another arrangement, equally statesmanlike with the preceding one.

To those who ask this question, I offer two partial defenses. One, of course, is Alexandra’s point: conserving and restoring the culture is not principally the job of politicians and government, and asking the government to hold back changes in the culture is like asking it to hold back the tide.

But the other is this: sometimes, slowing things down has value in itself. That is not just because older people, who are often the chief constituency for social conservatism in any society in any age, dislike change and find it disorienting. Conservatives understand that civil society has a fabric developed over time, much of which consists of custom and culture and common understanding rather than prescriptive law. Shifts in demographics and culture can have concrete harms for the lives of individuals. When society and culture change — and they are always changing — it is healthier for them to change gradually, giving people, families, institutions, and their habits time to adjust. Change often has unforeseen consequences; human beings, individually and collectively, often need to work through those consequences before they are prepared for additional change. A textbook example of this is how we have pitched headlong into the increasingly surreal debate over transgenderism before we have even finished working out the ground rules for how free speech and freedom of religious exercise can survive collision with the novel, freshly minted social institution of same-sex marriage. Why do we have such a debate over “cancel culture”? In part, because the rules for what sorts of speech get you fired or pilloried keep changing so rapidly that ordinary Americans can’t keep up, and even people in their twenties get roasted by the censorious for things they said online in their teens. The time factor in social adjustment to change is valuable in itself in protecting individuals as well as institutions from more change than they can process.

World

A Weekend Shot across the Bow in the Red Sea

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Saudi Aramco’s Ras Tanura oil refinery and oil terminal in Saudi Arabia in 2018. (Ahmed Jadallah/Reuters)

Yesterday, the Iranian terrorist proxies, the Houthi, attacked a Saudi Aramco petroleum-distribution plant at Jeddah, setting a storage facility on fire. The Saudis subsequently publicly signaled they will not be responsible for decreased oil supply due to the damage. This is a clear signal to Washington that high gas prices are due to ongoing Houthi terrorist attacks in the wake of the Biden administration’s removing them from the Foreign Terrorist Organization list in its first months in office, rather than to Saudi intransigence. For their part, the Iranians may well be trying to jack up prices even higher as they are poised to bring their backlog of stored oil back onto the licit market if a new nuclear deal is reached in Vienna this week.

The location of Jeddah for this attack is significant, as the Saudi city sits at the narrow waist of the Red Sea where it would be easiest to disrupt this critical shipping lane flowing, among other things, oil from the Gulf through the Suez Canal to the Mediterranean Sea. The attack on Jeddah thus may be a shot across the bow, warning the world that Tehran has the reach to disrupt commercial shipping not only through the Strait of Hormuz off their own shores but also in the Red Sea via the Houthi. Ominously, the attack on Jeddah was the only successful Houthi operation over the weekend, as the Saudis also reported disarming an explosives-laden ship in the Red Sea, as well as drones deployed against a number of cities in southern Saudi Arabia.

If, in the wake of the new nuclear deal, Iran has access to additional resources to fund these activities in the Red Sea, the spiking energy prices and snarled supply chains we are currently experiencing may pale in comparison to what is to come.