The President was will within his rights to do this, and as Justice Alito was well within his rights to respond, so was the Chief Justice.

When I first read that President Obama had appointed Utah law professor Scott Matheson to a position on the 10th Circuit court of appeal, I was as suspicious of the timing as most Republicans, given that Matheson's brother (Jim Matheson) is one of the Democratic Congressmen who has previously voted "no" on the healthcare reform bill pushed by the President and Speaker Pelosi. Coming in the midst of a major arm-twisting movement by the House leadership to pass the Senate version of the healthcare bill, it certainly had a certain aroma of pay-off to it, particularly when considered in conjunction with Admiral Sestak's apparent admission that the Obama Administration offered him a high-level job in return for withdrawing from a primary election challenge, allegations surrounding former Gov. Blagojevich, and similar incipient scandals.

But having read Prof. (former Judge) Paul Cassell's Volkh Conspiracy post on Scott Matheson's appointment, I am convinced that there's nothing to see here. Cassell confirms, from personal knowledge, that the vetting process for Matheson has been underway for several months now. Since he is a colleague of Matheson's, Cassell was contacted by the ABA as part of their evaluation process in mid-January. As Cassell notes: "Given that the ABA was evaluating Scott in roughly January, one would expect an announcement roughly six weeks later – exactly as happened here." Cassell also notes that he considers Matheson exceedingly qualified and as moderate of a judicial temperament as one could ever expect to be nominated by a Democratic president.

Cassell is not the only person in the world who would be familiar with the normal delay between ABA evaluation (which happens after the FBI background check) and public announcement of the appointment. The mere fact that the vetting process had begun so long ago is a solid indication that the nomination is no attempt at bribing Rep. Matheson.

Moreover, failing to make the public announcement would look even worse. Imagine that the healthcare vote were to happen in 2 weeks, and THEN Matheson's brother was formally nominated. If Matheson had switched his vote to "yes" just days BEFORE his brother's appointment, then the cries of payoff would be outrageously loud. Somebody, probably the GOP staffers for the Senate committee on judicial appointments, would be aware that the nomination was held up longer than the normal process, and that would be used as evidence that the President was keeping it in his back pocket to ensure compliance by Rep. Matheson.

So, having started the vetting process in January, or perhaps before, Pres. Obama was then in a damned-if-you-do, damned-if-you-don't situation. If he waited to release the nomination until after the healthcare vote, that would have looked like a pay-off (if Rep. Matheson switched his vote to yes), and if he released it now, it would still have looked like a pay-off (the only difference in the two cases being which party to the bribe bears the risk of the other party not fulfilling his end).

Prof. Cassell's insight and analysis has convinced me there's nothing to see here, and those opposed to Obamacare passing should keep their powder dry for other, more important issues.

So reported ABC's Jonathan Karl, from Washington. Bunning could have said, in the third person, that the elevator in question was the only elevator of which he could avail himself. But I think it is more likely that he told Karl that "this is a Senators-only elevator."

What is lamer than the professional writer who cannot write?

It's not a very pastoral response, but in view of the brazen hypocrisy at issue, I have to agree with Patrick Madrid. He makes (more bluntly) a point I raised (more obliquely) in my previous comments on this subject: it is difficult to take complaints that the patient development and rollout of the revised translation is moving too fast when those complaints are made by people who fully supported actual haste in rolling out a revolutionary new missal at point-blank range in 1969.

"It would be the cleanest and least-deadly war in the history of warfare. Even some of Israel’s harshest critics should understand that."

Michael Totten, on the successful op against Hamas official Mahmoud al-Mabhouh:

Hamas and Hezbollah use civilians as human shields. Hezbollah uses an entire country as a vast human shield. Some critics, for various reasons, are more interested in lambasting Israel than the terrorist organizations it’s fighting. That’s easy when you live in New York or Brussels. People in the Middle East have to live with (or die because of) what happens. How Middle Easterners fight wars isn’t political or academic to me. I’ve never been inside Gaza, but I once lived in Lebanon, I travel there regularly, and there’s a real chance I’ll be there when the next war pops off. I’d rather not be used as a human shield if that’s OK with those who give Hamas and Hezbollah a pass. And I’d much rather read about Hezbollah leaders getting whacked by mysterious assassins with forged passports than dive into a Beirut bomb shelter during Israeli air raids.

Me too. Read the rest. I get the certain people are vexed that the Israelis didn't follow some sort of protocol, and used forged passports when they decided to successfully take out, without any collateral damage at all, a man whose organization of unrepentant war criminals who deliberately target civilians, among other things, but I fail to see what rules were really broken here, except the rule that seems to be increasingly the norm, in certain circles, per the Goldstone Report, that it is a war crime for sovereign nations to defend their territory, but not a war crime to attack said territory.

I mean, maybe I'm missing something here, but I don't think so...

ADDED: I understand that Australians are not pleased that forged Aussie passports were used, but my argument still stands.

AND: Alan Dershowitz wrestles with the question, and comes to pretty much the same place as Totten does.

You're mad because… uh… Why? Because it's harder to get away with running red lights? Is that it?

One way in which SF distinguishes itself, I think, is that more than most blogs, we try to articulate and apply general principles in writing about the subject of the day, and to then apply those principles consistently to later situations that implicate them. One of the most consistently-stated principles from my corner has been my view that when an elected official wishes to switch parties, he must resign and seek reelection under that party's banner. I applied it most recently to Rep. Griffin.

When Sen. Specter defected, I applied it to him—and added a corollary, joining those who called for him to refund campaign contributions, an idea that was new to me:

Specter owes a refund to the people who gave him money for the last and forthcoming election unless they specifically decline it. (He "had raised nearly $1.3 million since January and has $6.7 million in the bank for the 2010 race." Those who were simply buying influence or genuinely donating to Specter rather than Specter qua the GOP candidate, can re-donate.)

In the comments, I added that since there is no way to distinguish between money donated to Specter qua Specter and money donated to than Specter qua the GOP nominee,

he should return it all and let those who really did mean the money to go to him personally redonate as they see fit. It isn't just the individual donors who should get refunds: entities like NRSC without any doubt gave money to Specter because he was the GOP candidate, not because they liked him personally, and that money must be given back too.

With these principles in mind, I read this afternoon that Gov. Crist may pull a Lieberman, and run as an independent should he fail to obtain the GOP nomination for the Florida Senate seat. Crist has raised serious money for his primary and in anticipation of his Senate run—north of seven million dollars, the St. Petersburg Times reports.

While Crist's situation differs somewhat from Specter's in detail, there is no significant distinction available. The timing in the election sequence is somewhat different, but not materially so, and unlike Specter, Crist need not resign since he is not proposing to switch parties in office.

A stronger argument is that whereas Specter was an incumbent who was almost certain to be reelected, Crist is in a primary fight whose outcome is uncertain, so there should be a stronger presumption that money given to Crist is intended as a contribution to Crist qua Crist, rather than qua the GOP candidate. Nevertheless, three points seem cut against it.

First, it rests on a faulty assumption: that Specter was differently-situated. It was by no means apparent that Specter would not face a primary fight, nor that he would win it should it happen. Specter's last reelection came only after a squeaker of a primary against Pat Toomey, see Kevin McMahon, Winning the White House, 2004 116 (2005); Toomey had already indicated that he would run against Specter again, and this time around, Specter would lack the Bush coattails which dragged him over the top in 2004. See McMahon, at 116.

Second, albeit more tenuously, it should be noted that the St. Petersburg Times story linked above says that "not all of th[e] money [that Crist has raised] can be used in the primary." I don't know Florida election law, but this phrasing tells me that some contributions—somehow delineated—are ringfenced for the general election. It seems to me that only money raised for the primary alone must be attributed to Crist qua Crist; money raised for the general fund could be either.

Finally, the bolognaise problem. Once made, you have a bognaise sauce; you can't disassemble it back into its ingredients. The meat, the tomato, and the herbs are inextricably blended together. Likewise, it seems impossible—or at very least hopelessly impractical—for us to determine which donations were given to Crist qua Crist and Crist qua potential GOP nominee.

That last point was conclusive in Specter's case, and without any meaningful way to distinguish this case from that one, I find it conclusive. Accordingly, I adhere to the principle stated above: Should Crist run as an independent, he must honor all requests for refunds, and should offer all donors a refund of his own volition.

It's not that I think your breasts are too small, honey. I swear! They're perfect, really. I would hate to see them change. I just think you should get implants for your own safety. You know, in case you ever get shot. I recommend a D-cup. For safety, that's all.

Google's obsession with SSO ("single sign-on") was presumably one of the drivers pushing its disastrous "Buzz" product rollout over the cliff (Pat wrote about it here, among other places). SSO is kind of like playing monopoly with a new rule that whenever you land on another player's property, they get to charge you the rent for all their properties. The concept of SSO is aggregation: Instead of having a username and password pair for your email, another pair for your social networking platform (indeed, perhaps several), a pair for your Youtube account, a pair for your Picassa account, a pair for "Google Checkout" (a credit card information-retaining platform that you have probably used without even realizing it), and so on, you would log on to all these services using a single Google account. And any others that Google later buys.

Among the many, many follies of this approach (aggregation, for instance, is a risk that I mentioned here; cf. this from 2008), the foolishness of applying a skeleton key model to disparate services on the open ocean of the web—i.e. outside of the safe inlets of campus networks—is aptly illustrated by the latest phishing attack. "It's bad enough if hackers gain control of your Twitter account, but if you also use that same password on other websites (and our research shows that 33% of people do that all of the time) then they could access your Gmail, Hotmail, Facebook, eBay, Paypal, and so forth," warns Sophos AV's Graham Cluley.

Right he is. It is true that if you break someone's username/password pair for one account or service, it isn't a bad bet that you may be able to gain access to other services for which they may have used the same credentials. If you obtain my ebay credentials, for instance, maybe I used the same credentials for my Amazon account. Maybe. But you can see where this is going. With multiple sign-on, user credential apathy may lead to a wider security breach. With SSO, however, if hackers gain control of your Google account, and you have chosen to opt in to (or been dragged unawares into) Google's interlinking of its various services, that is, in and of itself, a comprehensive security breach. An attacker has unfettered access to everything you do within Google's ever-growing ambit.

I sure hope no one signs on to their Gmail account from a public library. Be very careful about logging out, not merely closing a browser window.

The West Wing Report tells us that President Obama remarked that the federal government "can't afford to extend Bush tax cuts on investment income." The President says that the de facto tax increase entailed is "not meant to be punitive - we just can't afford it."

This argument makes no sense unless the tax cuts at issue are net revenue drains. As Pat noted four years ago, however, and as the Washington Times reminded us less than a month ago, the Bush tax cuts increased tax revenues. So to the extent Obama meant to analyze what has gone before, his statement parses out to an improbable claim that we can't afford more revenue.

To the extent that the President meant to put misread fiscal history behind him, and oriented his remarks toward future policy, he is making the classic and pervasive blunder of assuming that you can change one aspect of fiscal policy with all else held equal. But it doesn't work that way. You can't just change the tax rate on a given activity and expect that activity to continue unaffected. To the extent there's elasticity in the market and actors' options, when it's cheaper to do it because it's taxed less, people will do more of it, and if it's more expensive because it's taxed more, they'll do less of it. And the more/less a taxed activity happens, the higher/lower the resulting tax revenues. I realize that this sounds obvious to the point of platitude, but if we credit him with honesty, our President doesn't seem to understand this.

When a politician tells you that the government should accept lower tax revenues to increase the taxes on a given activity, you'd better believe that it's ideologically-driven and punitive rather than about economics or sound public policy.

This is just too good to be true. After all the howls about the last administration's supposed transgressions, the possibility that someone in the Obama administration actually broke the law—specifically 18 U.S.C. § 211—by trying to bribe Admiral Sestak is so delicious that it has to be fattening. I'd like to see some authority, however, for the threshold proposition that withdrawal from a primary election is a "thing of value" for purposes of section 211. Perhaps United States v. Croft, 750 F.2d 1354 (7th Cir. 1984), and United States v. Sheker, 618 F.2d 607 (9th Cir. 1980), which construed similar language in 18 U.S.C. sections 641 and 912 respectively to include intangibles, will do?

It's my birthday, so I take more license than usual in picking the music. :)

I entirely agree with Patterico. Terrorism is violence done in furtherance of a cause; what Stack did was violent ex visceribus rei, and in furtherence of a cause in light of his "testament." That it was more akin to Oklahoma City than 9/11 is irrelevant. That it is difficult to place Stack on the political spectrum—parts of the letter sound like tea party boilerplate, while others sound like they was lifted from a Daily Kos diarist—is irrelevant.

We're seeing an interesting figure brandished on the web today: from as far afield as George Will and TPM, and phrased in slightly different ways, we hear that only about 30% of poll respondents think Sarah Palin is qualified to be President.

These numbers may be right, but they suffer from the same defect as the numbers that I discussed here. To see the problem, consider a national poll taken about whether Brad Ellsworth—the heir apparent to Evan Bayh's Senate campaign—is qualified to be a Senator. Is the poll a valid metric for evaluating whether he's a good choice for the nomination? The answer is obviously "no." Even if 100% of non-hoosiers think he's a tool, they don't get to vote. The relevant sample group is voters in a position to affect the outcome, i.e. Indiana voters.

Similarly, voters in blue states that won't vote for any conceivable GOP ticket in 2012 cannot be contained in a valid sample group in assessing Palin. If you live in New York, your opinion of Palin doesn't matter, because your state's vote for the Democratic ticket can already be assumed and counted. The voters whose opinion about Palin matter are those who live in red or swing states, because only those perceptions are likely to have any effect on the outcome.

In assessing election strategies, numbers are only valid and interesting to the extent they do real work. These don't. Polls about Presidential elections that fail to account for geographic distribution of respondents may grab headlines, but they are not to be taken seriously.

Lastly: Interesting enough, TPM crunches the numbers and admits that "there are 13% of Americans who either do not think Palin is qualified to be president, or are undecided on the matter, and would nevertheless vote for her" in a matchup against Obama—a damning indictment of the President.

Yep: "The real source of this mess is the agenda that Democrats have tried to ram through the political system. Far from offering new ideas to reform the welfare state or compete better against rising global powers, Democrats have with rare exception tried to impose the same spending, tax and regulatory agenda that failed in the 1960s, 1970s and 1990s. Mr. Obama was a new face promising new hope, but his ideas are as old as the average Congressional Chairman."

Who would have thought we'd be here in early 2010?

Is Senator Boxer in trouble? "For a Democrat in a Democrat state that gave Barack Obama 61% of its votes in 2008 (and still likes him more than many other places) to be mired in the mid-40's is a sign of real trouble." Indeed. More precisely, California gave Barack Obama 60.94% of its votes in 2008; well, Massachusetts gave Barack Obama 61.8% of its votes in 2008, and that didn't save a Democratic Senate candidate this year. Choose your candidate with care and to win, California Republicans!

59% of likely voters say states should have the right to opt out of federal government programs they don’t agree with. Is this a proposal that I have missed? How does it work? There seem to be some pretty serious problems with such an opt-out. How and when can states opt out (or back in)? Can they change their mind? Do states get to opt out of benefits, or benefits and costs? The former would make the the opt-out window dressing, since no state in its right mind is going to refuse a service it's paid for, a fortiori since it would potentially have to double-tax the population to provide the same service. The latter makes it tough to manage the budget, since the revenue base would potentially shift wildly depending on which states were "in" for which programs, and impossible for Congress to make an ex ante determination of a bill's budget effects since it can't know in advance which states will opt in and when.

read this, right now.

Constitutional apostate Sandy Levinson seizes on this David Brooks op/ed as a prooftext for his desired shredding of our system, but it doesn't work. True enough, Brooks seems to imply that some kind of unspecified Constitutional revision is needed, and Levinson takes Brooks to have "connect[ed] the dots between our present discontents and our defective Constitution…." As Brooks points out, however, the policy raft that has foundered since Obama's inauguration "would have permanently changed government’s role in national life." Far from demonstrating that the "political system" is "broken" (Brooks), still less that the Constitution is "defective" (Levinson), the defeat of this agenda proves that the systen is working very well. Levinson can't see this, however, because he has a preexisting commitment to obliterating the Constitution and favors the agenda that the system has held back. Small wonder he's not happy.

Levinson goes on to cite Larry Sabato's book A More Perfect Constitution, which Levinson thinks is "interesting and provocative," and which I thought was duplicitous, myopic, deeply flawed, and "frontal assault on the fundamental structure of the Constitution" when I raked it over the coals here and here.