The Daily Top Five: March 2, 2007

1. Jonathan Adler, writing at the Volokh Conspiracy, points to teh case of State v. Lowe, a case involving consensual "incest" between consenting adults. Lowe based his argument, a pretty decent argument on the Supreme Court case of Lawrence v. Texas which struck down a ban on consensual homosexual sex. The comments to the post give a good argument on both sides of the issue, including reference to the "Ick Factor Test."

For me, this case seems a little odd. If the facts were a little different, say the woman Lowe was sleeping with was the wife of his son, for example. While certainly not without the Ick Factor, it wouldn't be any more incest than is occuring here. The woman is not relate to Lowe by blood, only by marriage.

On a morality level, what Lowe did is, well low, but arguably not technically incest, at least as I understand the term.

2. John Dean has an interesting article at FindLaw.com about a potential third Supreme Court nominee for President Bush. The heart of the article is this:

What if Stevens, Souter, Ginsburg or Breyer should leave the Court during the remainder of the Bush Presidency? Bush would very likely opt to select another conservative, and create a conservative majority on the Court. This prospect makes conservatives salivate, and liberals shudder.

This hypothetical scenario is anything but a reach. Justices Souter (age 67) and Breyer (68) appear to be in the best of health. However, Justices Stevens (86) and Ginsburg (73) are the oldest members of the Court.

If fate were to open one of these center-left seats on the Court, Senate Democrats should immediately advise the President that they will only consent to a nominee who is a moderate.

Indeed, they should make crystal clear that if Bush, a lame duck president, sends another rock-ribbed conservative nominee who will clearly tilt the Court, they will leave the seat vacant until the voters have spoken as to whether they want a solid conservative Court. (A vacant seat would certainly raise the already high stakes of the 2008 presidential race, and while it would put a burden on the other justices, it would only be temporary.)

Dean goes on to point out the history of attempts by lame duck presidents to influence teh court, including the famous appointment of Chief Justice John Marshall.

Dean makes some good points, but the problem is that appointing Supreme Court justices is the purview of the President. While the Senate may advise and give or withhold consent, the test should not be political outlook, but judicial qualification. Nothing more and nothing less.

3. Bob Bauer is a happy guy today. Not only did his client, Barack Obama, get a favorable ruling from the FEC, his client has also introduced legislation that will change the tenor, tone and focus of election reform efforts from those of the politicians to the voting public. Having perused the bill, I like Obama's ideas in the abstract, but I am not so sure about how vigorously it will be enforced.

4. Philip Mella discusses optimism, concluding:

As Colin Powell noted, "Eternal optimism is a force multiplier." As the year unfolds and the elections edge closer it will be instructive to learn which party provides us with a truly optimistic, positive agenda, not one that is merely against the opposition. That will tell you who has the best chances in '08.

The real test is whether the candidates can drag themselves out of the mud and gutter to discuss issues and ideas. Barack Obama seems to be doing so, at least in part. I am not so sure about the others. While it is fairly early in the process, we cannot discount the power of positive thinking--voters like it and respond to it. They may not like all the ideas of an opponent, they do embrace a debate of ideas not barbs.

5. What will the world do when George W. Bush is no longer President? So asks Gerard Baker in the London Times:

When President Bush goes into the Texas sunset, and especially if he is replaced by an enlightened, world-embracing Democrat, their one excuse, their sole explanation for all human suffering in the world will disappear too. And they may just find that the world is not as simple as they thought it was. [snip]

Some day soon, though, this escapism will run into the dead end of reality. In fact, the most compelling case for the American people to elect a Democrat as president next year is that, in the US, leadership in a time of war requires the inclusion of both political parties, and in the rest of the world, people will have to start thinking about what is really the cause of all our woes. [snip]

Even as some future Democratic president proclaims his commitment to renewing alliances, he is sure to be greeted with all kinds of explanations as to why the Europeans are just not quite ready to make that a joint ownership. When that moment comes, everyone will be urgently wishing they still had George Bush to blame.

Indeed, Europe and the American left will have to say, "We have seen then enemy and they is us." Hat Tip: Besty Newmark.