"The claims that Alito is a 'far-right activist' are laughable, except to far-left activists."

Stuart Taylor weighs in on the treatment of Samuel Alito. (Via How Appealing.)

He richly deserves the praise that he has received from colleagues and friends across the political spectrum for his powerful mind, intellectual honesty, and fairness.

The American people will figure this out. Any effort to filibuster Alito seems very likely to fail, and likely to backfire against Democrats.

That's what I've been saying too.

Alito will try as hard as anyone -- and far harder than O'Connor -- to be intellectually honest and analytically rigorous, and to keep his political preferences out of his legal rulings. He will therefore disappoint the most passionate political conservatives and horrify many liberals.

The notion of an apolitical justice may seem preposterous to academics and journalists who see judges as politicians in black robes, and view their opinions and citations as camouflage for preconceived ideological agendas. But Alito's opinions show that he takes the ideal of judicial restraint very seriously. Both conservative and liberal colleagues confirm this.

I devoutly hope so.

Does the title law professor inspire confidence that you're going to hear an accurate presentation of the case law?

Law professors have been so eager to tell us that judges aren't really judges. Have they ended up convincing you that law professors aren't really law professors?

"We're going to destroy everything."

Blogging the riots in France.

"Guys, stop destroying everything, it's pointless, I don't think Bouna and Zyed would be proud of you, avenging them by burning everything, by attacking innocent people."

Alito and the Family and Medical Leave Act -- Part 5.

Harvard lawprof Laurence Tribe on the FMLA case:

YOU CAN'T help doing a double-take when you read Judge Samuel Alito's opinion holding Congress powerless to compel states to provide family medical leave to their employees. It was a position the Supreme Court rejected in a nearly identical case when it held three years later that the 14th Amendment confers such power by authorizing Congress to enforce each state's duty to accord ''equal protection of the laws."

The evidence and legal arguments hadn't changed when Chief Justice William Rehnquist, writing for the 6-3 majority, saw what Congress had seen: that women and men are unequally protected in a world still shaped by the ''pervasive sex-role stereotype that caring for family members is women's work." The court accordingly held Congress empowered to ''dismantle persisting gender-based barriers to . . . women in the workplace." Why, then, did the deliberately deferential Alito, after reading the same text, history, precedents, and factual data, see no gender discrimination for Congress to dismantle?

Talk about doing a double take! Is this really by Larry Tribe?

The "nearly identical" Chittister case didn't involve caring for a family member. It involved self-care. Tell me, Professor Tribe, when men are sick, don't they stay home? I'm really having a hard time seeing what gender discrimination Congress is dismantling there.

The Supreme Court's case (Hibbs) was about caring for a family member, but even there, as I've written here too many times already, the Court was changing the way it applied its own test, a test that Alito was bound by when he decided his case. The Fourteenth Amendment law in question requires that Congress be providing a "congruent and proportional" remedy for the states' violation of Fourteenth Amendment rights. It was actually extremely hard to portray the states as violating Equal Protection in a way that went with the leave benefit, as Justice Kennedy -- no conservative firebrand -- explained in his dissent.

Anyway, I'll give Tribe credit for not saying that Alito found the Family and Medical Leave Act unconstitutional, though he's hiding the ball by not admitting that the commerce power supports it, and that Alito's case was only about whether an individual could sue the state for retrospective relief. Under Alito's opinion, states are still bound by the FMLA and their employees can sue to get their jobs back if the states don't follow these requirements.

Tribe's eagerness to slam Judge Alito shows.

UPDATE: There are two post-Hibbs court of appeals cases that say the self-care provision doesn't fit the Fourteenth Amendment -- that is, the result in Chittister is still correct.

MARY TOUVELL v. OHIO DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, 422 F.3d 392 (6th Cir. 2005):

[W]hile Hibbs found that Congress had adduced sufficient concrete evidence of discrimination by the states regarding the availability and consequences of family-care leave, there is no equivalent evidence that the self-care provision of the FMLA was intended to, or did, target similar discrimination. On the contrary, the self-care provision appears to have been social legislation designed to protect the seriously ill and their families regardless of gender. While this may be an admirable goal, it is not one that permits Congress to abrogate the Eleventh Amendment immunity of the states from private suit for damages.

KATHLEEN BROCKMAN v. WYOMING DEPARTMENT OF FAMILY SERVICES, 342 F.3d 1159 (10th Cir. 2003):

Because the Supreme Court's analysis in Hibbs turned on the gender-based aspects of the FMLA's § 2612(a)(1)(C), the self-care provision in subsection (D) is not implicated by that decision. The legislative history accompanying the passage of the FMLA reveals two motivations for the inclusion of the self-care provision. First, Congress was attempting to alleviate the economic burdens to both the employee and to his or her family of illness-related job-loss. See S. Rep. No. 103-3, at 11 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 13-14; H.R. Rep. No. 101-28(I), at 23 (1990). Second, Congress was attempting to prevent those with serious health problems from being discriminated against by their employers. See S. Rep. No. 103-3, at 12; H.R. Rep. 101-28(I), at 23. The legislative history does not, however, identify as the basis for subsection (D) a link between these two motivations and any pattern of discriminatory stereotyping on the part of the states as employers.

"Court Choice Is Conservative by Nature, Not Ideology."

That's the title of a quite long, front page piece in the NYT by Janny Scott that I think marks a turning point in opinion about Samuel Alito. The NYT has already editorialized against Alito and has seemed to be eager to paint him as an ideologue who deserves a good Borking. Scott's article portrays Alito as a man of ideal judicial demeanor, the furthest thing from an ideologue:

Mr. Alito, the analytical, circumspect son of an analytical, circumspect father, who rose to become a federal appeals court judge and is now President Bush's nominee to become the next justice of the Supreme Court, is remembered from those days in the Office of Legal Counsel for his superior research powers, his probing brain, his wrestling with the questions and his disinclination to see any issue as a slam dunk.

It remains to be seen what kind of justice Judge Alito might turn out to be, if he gets the chance: whether, for instance, he is the upper-case conservative that the right may hope for and many on the left fear. An examination of several chapters in his life suggests he is conservative by temperament, upbringing and experience - conditions that appear to have shaped his approach to life and his work more than any narrow ideological niche....

Throughout his life - at Yale Law School, as a government lawyer, as a judge on the United States Court of Appeals - Judge Alito has earned respect, even friendship, across the political spectrum. Some who describe themselves as liberals say they admire what they call Judge Alito's meticulousness and fair-mindedness - traits he appears to have come by early in life.

There's much, much more in that vein. The photos are awfully sympathetic too:



Perhaps the NYT has gotten the message that mainstream liberals are going to look bad opposing this man.

"So many of the brightest stars in the conservative legal firmament are Catholics."

WaPo's Alan Cooperman explains why, in recent years, so many Catholics have been chosen for the Supreme Court. (Samuel Alito will be the fifth Catholic on the Court.)

[USC Political Science professor Howard] Gillman believes that beginning in the 1960s, many conservative Catholics went into the legal profession "because they felt the constitutional jurisprudence of the country was not reflecting their values," particularly on abortion, funding for parochial schools and restrictions on religion in public places. "I think you're seeing the fruits of those efforts now," he said.

Bernard Dobranski, dean of Ave Maria School of Law, a Catholic institution founded in 2000 in Ann Arbor, Mich., said the number of highly qualified conservative Catholic lawyers is also a tribute to the strength of Catholic schools, the determination of immigrants to educate their children and a rich tradition of legal scholarship in the Catholic Church.

A hallmark of that tradition is the belief in "natural law," a basic set of moral principles that the church says is written in the hearts of all people and true for all societies. Though long out of favor in secular law schools, the natural law approach is resurgent among conservatives, Dobranski said.

Another reason for the prominence of Catholics in conservative legal circles is that many have graduated from Ivy League colleges and law schools. Attending those schools has practically been a prerequisite for the clerkships that launch high-flying legal careers.

Evangelical Protestants are also becoming more visible on Ivy League campuses and at top law schools. But, said Notre Dame's Bradley, "I do think that there is an important truth in saying that Catholics are the intellectual pillars of social conservatism. Compared to their political allies in that movement, Catholics are heirs to a richer intellectual tradition and . . . are more inclined to believe that reason supplies good grounds for the moral and political positions characteristic of social conservatism. Call it the 'natural law' thing."

Interesting. The article also notes that Justice William Brennan, the Court's last passionate liberal, was also Catholic. Liberals are missing something if they lose the sense that rights are real and substantial. As I listen to the attacks on Judge Alito, I hear, relentlessly expressed, the idea that law is political and judges are all ideologues who, given power, will work their will on us. Where are the passionate, Brennanesque liberals of yore, who really believed we have rights? Is that belief becoming solely a conservative notion ?

The unpajama'd Jarvis.

Jeff Jarvis is talking about Pajamas Media here and here. He's especially stirred up about their choice of Judith Miller as the keynote speaker at their new-name-unveiling event. But he also doesn't get their business model. And, like me, after blogging negatively about PM, he got a phone call from Roger L. Simon. Now, Joe Gandelman is picking up the Jarvis-Pajamas story. Joe, is that your phone ringing?

A few things about "heteronormative."

Here's a Harvard Crimson opinion piece by a student named Travis Kavulla that compares the older term “homophobia,” which makes an accusation of bigotry, and the newer "heteronormative," which protests the presumption that everyone is heterosexual. "Homophobia" is a stronger term, but, as such, it asks for less: stop being hateful toward gay people. "Heteronormative" is less of an insult, but it asks for more:

[O]n college campuses, the quest to end heteronormativity is having some real consequences. Responding to complaints that dorms that house those of the same sex together are heteropresumptive, a handful of liberal arts colleges have taken down those bothersome gender barriers entirely.

And for some years now, BGLTSA has been tilting at windmills to transform Harvard’s “gendered” bathrooms into “gender-neutral spaces.” The argument for the change is that those—and here’s another term to add to our overpopulated lexicon—“identifying” as transgendered feel alienated from gender-specific bathrooms, that they cannot be classified by those silhouetted stick figures, and so require a totalizing change to make them feel comfortable....

Caving willingly to pressure, Wesleyan College’s imprimatur has been accorded to a group that wants to educate professors and incoming freshmen on the use of the transgendered pronoun “ze” and its possessive “hir.”

Perhaps what’s most disconcerting about all of this, however, is not the impact these new terms are having on everyday life or mainstream academia—for most people, overtly or quietly, recognize the gay rights movement’s latter-day silliness.

Rather, it’s the prospect that a community whose goal has so long been “acceptance” is isolating itself and alienating others by creating a separate body of knowledge that only they appear to care about or know. Of those transgender terms, BGLTSA’s Noa Grayevsky ’07 is quoted in last week’s Fifteen Minutes, “People that are either queer or educated on this topic use [‘ze’ and ‘hir’] pretty widely.” And, of course, no one else does.

And the creation of new genders has become a hobby for those on the fringe. Consider Kit Yan, a “gender queer” Hawaiian poet who will be performing tonight at BGLTSA’s invitation. In one poem, after rolling through several dozen “genders”—including appellations like “polyamorous,” “heteroflexible,” and “boydyke”—Yan solemnly declares, “and that’s just the beginning...There may be as many as a million genders / Just floating around, searching for the right person / To snatch them up.”

The ivory tower is the only place where such nonsense can find a home and even as we on campus witness the germination of a new, ever stranger vocabulary, few can imagine taking any of it seriously.

In the world at large, social acceptance and gay marriage seem to be accomplishable (and sometimes, accomplished) goals of the gay rights movement. What fruits can those who are using these new, awkward, polluting words possibly hope to reap?

Kavulla bundles an awful lot of things together, including my longtime concern about gender-neutral bathrooms. (Note: I'm not referring to single-user bathrooms.)

The switch to gender-neutral bathroom changes the conditions of real life for everyone and is unacceptably burdensome to women and, especially, girls. People need to keep their wits about them on this subject, which stands apart from the realm of speech and ideas. By the same token, colleges shouldn't be bullied into abolishing every single-sex dorm.

Speech and ideas are different. It is fine to criticize people who assume everyone is heterosexual. If a man says he has a date and someone refers to the date as female, the assumer can be zinged as "heteronormative." But those who are relentless, grim, and heavy-handed about this deserve some back talk. Everyone doesn't need to think about your issues all the time.

Trying to get people to say "ze" and "hir" is probably only silly. It's not going to happen. Feminists tried something like that long ago and ultimately settled for "Ms." and a lot of "he or she"-ing. But if the "ze" and "hir" crowd start making any actual progress, the rest of us will need to rouse ourselves from complacency and say no.

As for Kit Yan -- poets can say whatever they want. They can play with language, make up words, invite us to think all sorts of things -- true, false, and fantastical. Unless they are stirring up hatred, I'd lay off the poets. Most poets are quite bad and are utterly ignored. If Kit Yan has found an audience, give the poor ... poet a break.

UPDATE: Here are links to old posts of mine about gender-neutral bathrooms:

"Common fear" and "severe misunderstandings."
"De-gendering" restrooms."
The single-sex bathroom issue again.
Is this sex discrimination?
"They encircled me in a very menacing and hostile stance."
In search of the right bathroom.

Audible Althouse, #18.

Here's the new podcast. It's a good one! Just under 55 minutes.

UPDATE: You know, you don't need an iPod or other special device to listen to the podcasts. They'll play on the computer too, you know. Just go to the link and click! Or just click this. It starts with cool music by John Althouse Cohen and Brit Rice.

Taking specific requests from Jonah Goldberg.

See? And I'm tempted to also put up my favorite line from one of the commenters, one "Icepick": "Your worst nightmare: an artist with a law degree!"

UPDATE: Should I keep the new quote? (The old one was "Althouse is cool.") I'm getting cold feet for two reasons: 1. Even though I didn't personally proclaim myself a genius, the act of putting the quote in the title box is mine and is a bit much, and 2. It gives ongoing, weird prominence to Margaret Cho (which she might even object to). As to #1, you might have the same objection to "divine," but that seems more playful, and there's something about the two words in combination that might cross the line from playful to delusional.

What's with the phrase "gay men and lesbians"?

Why not just say "gay people" or "gays"? I've wanted to see some solid opinion on this subject for a long time. William Safire has a go at answering the question:

"Historically, gay represented both homosexual men and women and technically still does," says Chris Crain, editor of the gay weeklies The Washington Blade and The New York Blade, "but a number of gay women felt that gay was too male-associated and pressed to have lesbians separately identified so they weren't lost in the gay-male image." That led to such names as the Gay and Lesbian Alliance Against Defamation. (The Washington Blade began in 1969 as The Gay Blade, a play on an old expression about a gallant.)

Diane Anderson-Minshall, executive editor of Curve, a lesbian magazine in San Francisco, agrees that the one-word adjective was expanded to set homosexual women apart: "When, in the queer world, you say 'the gay community,' the majority of the time that conjures up San Francisco's largely male Castro District, or West Hollywood or 'Queer Eye for the Straight Guy,' so interjecting the word lesbian into the mix is a necessary reminder that we — gay women — are not simply a subset of that larger male world but rather our own distinct community of individuals."

Safire thus explains the usage. He doesn't opine about whether the wordy phrase should be the norm. I tend to think simpler is better, but it's helpful to have a good grasp of the origin of the longer phrase and the feelings it expresses.

A whole separate question -- which I'm just going to guess Safire has already written about -- is: when should people with a particular characteristic be called a "community"?

The 86-year old poet encounters the Italian police and gets creative.

Lawrence Ferlinghetti searched out the house his immigrant father was born in, in a small town near Milan:

I rang the bell and tried to see into the lobby. People came to the door and were very hostile. They called the police. A car zooms up, and two poliziotti jumped out and asked for my papers and kept me standing there for three-quarters of an hour.

It's not quite Bush's fault.

They mistook you for a burglar?

There's a climate of fear and paranoia since 9/11, and in this country it was generated by Bush.

But you can't possibly blame President Bush for fear and paranoia in northern Italy.

It's the same with Silvio Berlusconi in Italy. Is it true that Bush believes that anyone caught reading books should be banned from government?

That's such a flaky, California thing to say.

I made it up.

Ah, poetry! You can say what you want!

About killing that mockingbird.

Jeremy Freese is taking a poll about whether Truman Capote wrote "To Kill a Mockingbird."

And I promise you I wrote that sentence without the slightest thought of adding to today's blog theme! Man, I have got to be careful if I venture out of the house today. I think the animals are...

I start thinking about the song "Animals" again:

I know the animals...Are laughing at us
They don't even know...What a joke is
I won't follow...Animal's advice
I don't care...If they're laughing at us.

They're never there when you need them
They never come when you call them
They're never there when you need them
They never come when you call them down down down down.

They say they don't need money
They're living on nuts and berries
They say animals don't worry
You know animals are hairy?
They think they know what's best
They're making a fool of us
They ought to be more careful
They're setting a bad example
They have untroubled lives
They think everything's nice
They like to laugh at people
They're setting a bad example
(Go ahead) Laugh at me.

I heard a squirrel skittering around up there -- what was it? -- on the roof? Or was it the attic? Or the extra bedroom? You know all the leaves fell from the oak trees in one day yesterday, and now it looks all desolate out there... I've got to be more careful. Are there squirrel holes in the house that I'm not seeing? Is that a cracked nut? Is that a rabid dog loping down the street?

Is it time to record podcast #18?

Hey, did you know I wrote a little law review article about "To Kill a Mockingbird"? Here, you can read it. I'm responding to Steven Lubet, who wrote a feminist attack on Atticus Finch for the way he cross-examined the woman who accused Tom Robinson of rape. An excerpt from my piece:

Atticus deeply believes in the law and as he performs his duty, he patiently waits for the day when the others who work in the system will also perform their duty. Law is not a lofty institution, but a "working reality" that necessarily depends on the routine performance of duty by good people like Atticus and the lawyers he inspires.

Atticus accepts the Robinson case just as earlier in the book he accepts the job Sheriff Tate asks him to do: shoot a rabid dog. Indeed, his handling of the trial parallels the shooting of the rabid dog. Atticus possesses extraordinary skills - as a lawyer and as a marksman - but he does not seek occasions to display them or profit by them. The sheriff calls on Atticus when a dog must be taken down in one shot, and the judge comes to him when an inflammatory case needs a lawyer. A neighbor tries to explain the restraint of this man who had avoided using his shooting skills for thirty years:

"[H]e's civilized in his heart ... I think maybe he put his gun down when he realized that God had given him an unfair advantage over most living things. I guess he decided he wouldn't shoot till he had to, and he had to today."

Is today's blogging taking on a theme?

Maybe some performance artist should actually take a machine gun and shoot fish in a barrel.

"I like to get rid of the fear of pain by staging the pain in front of the audience...."

Here's a big article in the Arts section of the Sunday NYT about Marina Abramovic, an aging performance artist who is currently into reenacting classic performance art pieces of yore:

"We are afraid of dying, and we are afraid of pain, so much," she said. "I like to get rid of the fear of pain by staging the pain in front of the audience, going through this pain and showing them that it's possible. It turns into something else. Then you have this energy to do it."

Partly to prove that she is as committed to these ideas as she was in her 20's, Ms. Abramovic had wanted to include not only Mr. Burden's crucifixion piece but also a re-creation of what she considers her most radical work, called "Rhythm 0." Performed only once in Naples in 1974, its premise was terrifyingly simple: She agreed to stand in a gallery for six hours while anyone who came in could choose any of 72 objects around her - including knives, scissors, a needle, a loaded gun - and do anything they wanted to her with the objects. It was her only work in which she essentially ceded control over her body, and over the pain to be inflicted, to her audience.

The participants became involved slowly at first, but after a while Ms. Abramovic's clothes were cut off, and her body marked, burned and cut. Finally, a man took the gun and made her put it up to her head, trying to force her to squeeze the trigger. She didn't resist, but a fight ensued as other spectators intervened. "This was the only performance where I was really ready to die," she said. Trying to explain why, she repeated a well-known quotation from the artist Bruce Nauman, one of whose performance pieces will also be recreated in her show: "Art is a matter of life and death. This may be melodramatic, but it is also true."

Back in 1973, Chris Burden had his outstretched hands nailed to a Volkswagen.

Mr. Burden - who long ago retired from performance but in his prime was almost drowned and once shot in the arm for the sake of art - was not so agreeable. "I don't even know the reasons why - he didn't answer," said Ms. Abramovic, who planned to replace the Volkswagen with a Chaika, a kind of Russian-made limousine she remembered from her youth in Yugoslavia.

"He only had a secretary answer in a letter saying, 'Mr. Burden is not talking publicly these days, and he doesn't give permission to repeat this piece or any other pieces.' I can't tell you how disappointed I was."

By the way, a dead rabbit appears in this story too. Abramovic will be reenacting Joseph Beuys's 1965 work, "How to Explain Pictures to a Dead Hare."

[S]he will cover her head in honey and gold leaf, cradling a dead rabbit and whispering to it about pictures on the wall (a meditation on rationality and language - and a kind of in-joke about art scholarship).

Sounds too serioso to me. I'd rather listen to a comedian.

Which reminds me: Did you see George Carlin's new HBO special last night? I loved the part where he mocked people who commit suicide.

It's whimsical -- and you become the fly on the corpse.

I like this art:

Gelatin - also known as Ali Janka, Florian Reither, Tobias Urban and Wolfgang Gantner, 30-something friends who met at summer camp in 1978 - have created a 200-foot-long, 20-foot-tall bunny knitted from wool and stuffed with hay. Since late September, it has lain prostrate at the summit of the Colletto Fava, a nearly mile-high peak above the rustic village of Artesina. It looks cute, all soft and cotton-candy-hued - until one notices that it's meant to be quite dead. The rabbit's (stuffed, colorful) entrails stream out on the scrubby ground; its mouth is open in a wide and surprised "O."

"It's rotting away and the intestines are running out of its side, but it's really sweet," Mr. Janka said. "It has a warmth and a gravity. It's nice to lie on it." It's especially nice if you're interested in the way things rot: grass has sprouted through the rabbit's knitted skin, it's beginning to ooze a brown liquid, and animals have foraged inside. Decay, it seems, is the whole point. "You climb upon the rabbit and feel like a maggot in its flesh," Mr. Janka said. "And then you are so happily transforming into a fly, and floating away."

Then there's Gelatin's other work:

[A] massive icicle made of urine for this year's Moscow Biennale of Contemporary Art; a nude "human birthday cake" - with candles held in a way that defies description in a family newspaper - for the 2003 Frieze Art Fair in London. And in the summer of 2000 they secretly removed a window on the 91st floor of the World Trade Center, then inched out onto a homemade balcony where they were photographed. On Nov. 16, the group is to take up residence at the Leo Koenig Gallery in Chelsea - and live there, in a box, for seven straight days, making free facsimiles of any object or document visitors give them.

So far it's been like shooting fish in a barrel... with a machine gun.

Eugene Volokh blasts the Brady Campaign for misrepresenting what Samuel Alito wrote about the federal law banning machine guns.

Those who are springing into action to try to take down Alito by making him look like a right-wing ideologue seemed to have blinded themselves to the way they look. The Brady Campaign put out a press release calling Alito "'Machine Gun Sammy,' a Perfect Halloween Pick." Do they think only their hardcore supporters read their press releases? They seem so deeply embedded in partisan politics that they they don't even notice the danger that people will see them as:

1. Unfair to a worthy man with a long career of public service

2. Incapable of reading a judge's opinions and understanding legal reasoning

3. Willing to distort and deceive to advance their own political interest

4. Unconcerned about the longterm degradation of respect for the institution of law

5. Woefully ignorant of the fact that lawprofs and lawyers are reading their statements and blogging about them.

So far it's been like shooting fish in a barrel... with a machine gun.

Could you Alito enemies try to be a little subtle and crafty pursuing your agenda? I mean, we'll keep critiquing your efforts -- we aren't going to start feeling sorry for you -- but I'm getting bored with how easy the work is.

Only one way to be "pre-eminent"?

I kept at my post in Room 3226 all day yesterday, serving as reporter for the curriculum discussion at the law school retreat. Gordon Smith was a discussion leader on the subject of how to be a "pre-eminent" law school. Here's his post, stating his view about what a law school needs to do to win the good opinion of outsiders: We need to publish a lot of articles in top law journals. Period!

No law school that I know of has become pre-eminent on the strength of teaching, clinics, community service, curricular innovation, specialty programs, etc. Each of these aspects of the law school product is important, to one degree or another, but they have very little impact on the wider reputation of a law school among law professors, judges, and practicing lawyers.

What about "non-traditional" scholarship, which may appear in obscure peer-reviewed journals or specialized monographs. This may be very valuable work to people who work in the specialized field, but the key issue when considering its effect on reputation is whether people outside the field notice. Does it connect with a broad range of legal scholars? If not, I suspect that it will have a negligable effect on the law school's reputation, at least as far as prospective students and many prospective faculty are concerned.

I wasn't in the "pre-eminent law school" room, so I lack information on how the Wisconsin Law School faculty actually responded, but, until I hear otherwise, I'm going to guess that Gordon's opinion was damned controversial.

Ours is a law school that prides itself on "non-traditional" scholarship. Hey! Does that include blogging?

A conservative judge is not a political ideologue.

Here's that writing I said I was working on last Friday -- an op-ed about Alito in the Milwaukee Journal Sentinel.

"Recognize that it's not a choice. It's not a lifestyle. It's an orientation."

Jonathan Rauch’s 2003 article “How to Care for Your Introvert” was the most-read article at The Atlantic’s website this past week (according to the email they just sent me). It’s interesting to see that this older article is still so popular. It should be! It’s memorable – I’ve always remembered it since originally reading it. It starts like this:

Do you know someone who needs hours alone every day? Who loves quiet conversations about feelings or ideas, and can give a dynamite presentation to a big audience, but seems awkward in groups and maladroit at small talk? Who has to be dragged to parties and then needs the rest of the day to recuperate? Who growls or scowls or grunts or winces when accosted with pleasantries by people who are just trying to be nice?

If so, do you tell this person he is "too serious," or ask if he is okay? Regard him as aloof, arrogant, rude? Redouble your efforts to draw him out?

If you answered yes to these questions, chances are that you have an introvert on your hands—and that you aren't caring for him properly.

Are you taking care of your introvert? Are you an introvert that is not getting proper care?

[E]xtroverts have no idea of the torment they put us through. Sometimes, as we gasp for air amid the fog of their 98-percent-content-free talk, we wonder if extroverts even bother to listen to themselves. Still, we endure stoically, because the etiquette books—written, no doubt, by extroverts—regard declining to banter as rude and gaps in conversation as awkward. We can only dream that someday, when our condition is more widely understood, when perhaps an Introverts' Rights movement has blossomed and borne fruit, it will not be impolite to say "I'm an introvert. You are a wonderful person and I like you. But now please shush."

UPDATE: Thanks to Kevin Drum for linking. Althouse readers -- who generally seem to think Kevin's is the best of the "rational, intelligent liberal blogs -- should check out the comments over there.

In retreat.

I’m spending the day at the law school retreat, serving as the reporter for the curriculum discussions. There are four discussion topics going on simultaneously, and four hour-long sessions over the course of the day. That means I’m hearing four different sets of persons -- all law faculty -- discussing the same topic. It’s interesting to observe the different groups, how they take the same subject and move in different directions and take on different group personalities. People do different things to maintain their concentration over the course of the day. I'm taking my notes and editing them as the day progresses. Some people use knitting:

Blogger's back.

Blogger was down for a couple hours today. Nice to be back! It was a planned outage for an upgrade, not some sort of collapse, so don't be hating on Blogger.

The first Sundance Cinemas theater -- it will be in Madison!

Ah, joy!

The new theater complex will be operated by the Sundance Group, a development company owned by actor and director Robert Redford. With six screens, the 27,250-square-foot complex will anchor the [Hilldale] mall's south end and will offer food and drinks as well as Sundance merchandise.

The Hilldale Theatre will continue operations until shortly before Sundance Cinemas opens next fall. The current theater is slated for demolition as part of the $70 million renovation project currently under way at the mall.

Good riddance! Madison has been plagued with the problem of the best films being shown in the worst theaters. We have lots of beautiful theaters but they typically only show the standard commercial films. Nearly every time there's a new film I've cared about seeing it's been at Hilldale or, worse, Westgate. It drives me crazy. Usually, I go into wait-for-the-DVD mode.

Thanks for picking us, Bob! Apparently, Madison has a big reputation for loving great films.

Is your luxury cruise ship equipped to fight off pirates?

It might need to be!

"Baseball's the perfect sport for nerds."

That's why Washington types keep talking about it:

First there was John G. Roberts Jr., talking his way to confirmation as chief justice of the United States with the insight that "judges are like umpires."

Then there was Patrick J. Fitzgerald, the special prosecutor in the C.I.A. leak case, explaining last week's indictment of the vice president's chief of staff by asserting that the aide, I. Lewis Libby Jr., had, in baseball terms, thrown sand in the umpire's eyes.

And finally, on Monday, there was the nomination of Judge Samuel A. Alito Jr., a Philadelphia Phillies fan (short for "fanatic") who told the world that his ambition as a young man had been to become baseball commissioner.

Why are so many Washington figures, including a long list of Supreme Court justices, so devoted to the game? Easy, said Carter G. Phillips, a Washington lawyer and an old softball teammate of Judge Alito: "Baseball's the perfect sport for nerds."

Aw, then I guess I shouldn't be so mean about sports metaphors as long as it's a baseball metaphor. Here's my (probably nerdy) idea for an SNL skit about a Supreme Court nomination hearing: the nominee, looking all John Robertsy, offers up his theory of the role of the judge, but instead of a baseball metaphor goes with the wrong sport -- sumo wrestling, perhaps.

Alito is "deeply skeptical of claims against large corporations."

In the NYT, Steven Labaton detects in bias in favor of big business in Judge Alito's cases. (Why just big business?) Most of Labaton's article is not an analysis of cases, but a report on what various players in the nomination game already think: "Major business groups" are for him. "Corporate lawyers" reportedly liked seeing him on their panel while other kinds of lawyers didn't.

How about all those cases from 15 years on the bench? There's this:

[B]y articulating a narrow view of the Commerce Clause of the Constitution, he is viewed as a judge who would be skeptical of the involvement of federal regulators in matters he views to be strictly within the province of state officials.

(Could you use the word "view" a few more times?)

Does this refer to anything other than the one case in which, following the recent Supreme Court precedent in the Gun-Free School Zones case (Lopez), he concluded that a federal law prohibiting the possession of machine guns did not fit the commerce power? In that case, Rybar, Alito wrote:

The activity that the Lopez Court found was not "economic" or "connected with a commercial transaction" was a type of intrastate firearm possession, i.e., the possession of a firearm (including a machine gun) within a school zone. At issue here is another type of purely intrastate firearm possession, i.e., the purely intrastate possession of a machine gun. If the former must be regarded as non-economic and non-commercial, why isn't the same true of the latter? Is possession of a machine gun inherently more "economic" or more "commercial" than possession of other firearms. Is the possession of a firearm within a school zone somehow less "economic " and "commercial" than possession elsewhere -- say, on one's own property? If there are distinctions of constitutional dimension here, they are too subtle for me to grasp. It seems to me that the most natural reading of Lopez is that the simple possession of a firearm, without more, is not "economic" or "commercial" activity....

Note the struggle with Lopez's commercial/noncommercial distinction. Now, explain how the limit on the commerce power Alito perceived shows that he would undercut federal law relating to businesses (and specifically large corporations as opposed to smaller operations).

Labaton concedes that there are cases where Alito decided against business interests:

In 1991, a year after he got to the bench, for instance, he issued a dissent in which he ruled that foreign seamen on American-flag ships should be covered by the minimum wage provision of the Fair Labor Standards Act. And in a dissent from a 2000 decision, he interpreted the statute-of-limitations provision of a race discrimination law to the benefit of the plaintiff in an employment case. In a third case, he voted with two other judges to dismiss an industry challenge to tougher environmental law standards in coal mining.

But those three cases, Cruz v. Chesapeake Shipping, Zubi v. AT&T, and Pennsylvania Coal Association v. Bruce Babbitt, are considered by both supporters and critics to be exceptions.

Because why deal with the first hand evidence? We'll report on some outcomes (and ignore the reasoning and the case law that bound him), but let's get to what really matters: what the "supporters and critics" think is true.

This is an article about Alito's bias?

"Donald Trump has some kind of neurological event."

Jacob at Television Without Pity gives last night's episode "The Apprentice" an A+. It was rather good. (Spoiler alert.) Is Markus out of his mind? Who talks like that? Who thinks he's got something to say, even thinks he's articulate, and then meaninglessly jumps from one empty phrase to the next? It was so satisfying to see him so severely shredited. And the cab ride where he kept trying to explain himself until, it seemed, he too had gotten tired of hearing himself speak -- hilarious!

Jacob:

You'd think that Markus getting fired would be the best part. It isn't. The best part is in the Boardroom leading up to Markus's firing, where Donald Trump has some kind of neurological event and goes completely apeshit. And I mean to say that you have never seen this kind of behavior in your life. He first abruptly asks Clay if he's gay, acts stunned that Clay is gay, ascertains that Clay is therefore not attracted to women, clarifies that this Venn diagram excludes even women such as Alla, and then explains to us that this is why restaurants have menus: while Trump likes steak, other people like spaghetti.

Later, without even stopping to breathe almost, he: asks Adam straight up if he's a virgin (he is, but won't admit it), counsels him not to be afraid of sex because it is "not a big deal," posits that Adam will ten years from now be more "comfortable with sex," shares that sex has gotten him into "a lot of trouble" and cost him "a lot of money," discusses at length whether Adam is "soft" or "hard," and wraps up by telling Adam that there's "nothing like" sex, and that he should look forward to having it one day, in the creepiest, ickiest, most pervuncular way imaginable.

Ha, ha. I love the way the TWoP recaps bring all the memories of the show flooding back -- and even funnier. Ah, yes, Trump was exceedingly Trumpy last night. He should talk about sex more often!

"Schmidt began by saying the process is off to a great start and again highlighted Judge Alito's impressive resume."

I was too busy writing to get in on the blogger conference call, but Ankle Biting Pundits has a big description. So did I miss anything? I think not.

"Standing alone, Mrs. Bush looked lovely."

"But next to Camilla, whose Robinson Valentino blazer and skirt made her look like a large rectangle, the first lady reminded one of a radiant bride shining brightly next to a dutifully bland bridesmaid." That's the description from WaPo's Robin Givhan, who also takes note of the President: "The president looked handsome in his tuxedo. For once he didn't have the body language of a kid with a bad sunburn forced to wear a wool suit."

What about all that blogging?

What about all that blogging I seemed as though I was about to launch into when I got that writing project done at 2:54 p.m.? Why, I was even threatening to do some 11th Amendment fisking, a threat that actually seemed to alarm Armando. Lucky for Armando, I do have something of a life in the real-word dimension in my outpost in Madison, Wisconsin. Do you picture snow drifts keeping me inside, gazing into the glow of the iBook? No, it was warm and sunny -- in the 60s. Here's what a gingko tree looked like today:

The new Madonna video.

"Hung Up. " (Quick Time -- or find Windows Media at Madonna.com.) Do you like it? Chez Althouse, we love it! Kind of a little "Saturday Night Fever," and then there's that Valerie Cherish hairstyle, which became so old, it's new again.

Hibbs loses.

With all the talk today of the Family and Medical Leave Act and the relationship between Judge Alito's decision in Chittister and the Supreme Court's decision in Hibbs, it's interesting to see that Mr. Hibbs himself lost his case today:

The 9th U.S. Circuit Court of Appeals has rejected an appeal from a former Nevada state worker fired from his job after taking several months off to help his wife who had been injured in a car accident.

The appeals court ruled Wednesday against William Hibbs, who won a U.S. Supreme Court ruling in 2003 that preserved protections for workers under the federal Family and Medical Leave Act - only to see his own case later dismissed by U.S. District Court Judge Howard McKibben of Reno.

In upholding McKibben, a three-judge panel of the circuit court said Hibbs got more than five months of leave from his job as a state welfare worker, far more than the 12-week FMLA period, and still didn't return to work when told that his leave had expired.

"When Hibbs was eventually fired two months after being informed that his leave had expired, he had long since departed the protections of the FMLA," the court added in its decision favoring the Nevada Department of Human Resources.

The court also agreed that Hibbs failed to provide evidence to support his claim that he was fired in 1997 in retaliation for taking FMLA-authorized leave.

Name the rational, intelligent liberal blogs.

Go ahead. It's a subject that came up in the comments today on another post. I'm not looking for attacks on liberal blogs or facile comments that there is no such thing. Help me compile a list of well-written, insightful liberal blogs, especially to help conservative readers who want exposure to a nice mix of opinion. Maybe we can refine it into a top 10 list.

1200 words in 2 hours and 15 minutes.

That's what I've got to write right now. I want to write blog posts and read comments, but I must go generate some MSM words. Look for an update by 3 saying I've done it. The visualization of that update here helps me somehow!

UPDATE at 2:54 p.m.: Done! Now, for some blogging! And maybe even a little "Eleventh Amendment fisking" -- my personal specialty!

"No matter what, they must talk about it and they must fight for justice."

Muktar Mai speaks "to the women of the world and all the women who have been raped or any of the kind of violation." Who is Muktar Mai?

[S]he was gang-raped on the order of [Pakistani] village tribal council elders. The rape was meant to restore her family's honor after her younger brother was accused of being with a girl from a rival tribe.

In a country where, Human Rights Watch says, the vast majority of rapes and other violent crimes against women goes unpunished, Mai broke her silence. She not only pressed charges, she fought her case all the way to the nation's highest court.

In a case that sent shock waves through Pakistan, her attackers were found guilty. She used her government compensation money to build schools in her village. Since then, Mai has become a kind of Rosa Parks of Pakistan.

"First there was just my home. Now I have to deal with the whole world," she said in an interview.

Kinsley frames the debate we should be having about Alito.

Michael Kinsley frames the Alito debate superbly. There's only one serious argument, he concludes: "Alito is simply too conservative."

The Republican counterargument will be fourfold: A) He is not very conservative; B) no one knows how conservative he is, and no one is going to find out, because discussing his views in any detail would involve "prejudging" future issues before the court; C) it doesn't matter whether he is conservative—even raising the question "politicizes" what ought to be a nonpartisan search for judicial excellence; and D) sure he's conservative. Very conservative. Who won the election?

It's quite admirable of Kinsley to state those arguments clearly and fairly. He even talks about something I was just saying people need to address: the fact that there are different kinds of conservatives. He identifies three kinds:

First, conservatism can mean a deep respect for precedent and a reluctance to reverse established doctrines....

Second, a conservative can mean someone who reads the Constitution narrowly and is reluctant to overrule the elected branches of government....

The third meaning of conservative as applied to judges is a conservative judicial activist: someone who uses the power of the courts to impose conservative policies, with or without the benefit of a guiding philosophy.

He concludes:

Judicial power is like government spending: People hate it in the abstract but love it in the particular. That makes an honest debate hard to have, and harder to win. Nevertheless, it would be nice to have one.

Well said.

Alito and the Family and Medical Leave Act -- Part 4.

Look at how a commenter who tries to explain law is treated over in the DailyKos comments. This is how Armando speaks to a reader who patiently tries to explain how he's misstated the law:

STFU (none / 0)

You were dead wrong. Yiu said ALito did NOT say that Congress acted unconstitutionally. You were WRONG. Whose clients should be in fear. You were dead wrong jerk. And abused the hell outr of mcjoan when you were wrong asshole.

See, mcjoan said exactly that, that Alito said that Congress invaldfily abrogated SI. And you kust flat out lied about what the diary said and were abusive and were wrong.

Stupid ass jerk.

The SCOTUS is Extraordinary.

by Armando on Fri Nov 04, 2005 at 05:25:18 AM PDT
[ Parent ]

Correct the piles of shit you laid all over (none / 0)

Alito ruled that Congress acted unconstitutiopnally wen it expressly abrogated the Sovereign Immunity of the States.

Go learn some fucking law.

The SCOTUS is Extraordinary.

by Armando on Thu Nov 03, 2005 at 08:21:00 PM PDT
[ Parent ]

Just to be clear: Armando is one of the main writers over on DailyKos, not just some commenter. And DailyKos is the most widely read blog in the world, with traffic nearly as high as the NYT online.

Liberals, does it bother you that this is what your loudest voice on the web sounds like?

[My earlier Alito and the FMLA posts: 1, 2, 3.]

UPDATE: Here's the McJoan post that goes with those comments:

In 2000, Judge Samuel Alito authored an opinion in which he concluded that Congress did not have the power to require state employers to comply with the Family Medical Leave Act.

False. The commerce power supports the FMLA even as applied to the states, and nothing in Alito's opinion is to the contrary.

This ruling was overturned by the Supreme Court in 2003, with a 6-3 margin. Voting in dissent? That's right, everyone's favorite activist justice, Antonin Scalia.

Don't bother mentioning that the main dissent was written by the moderate Anthony Kennedy, who was distressed at the misapplication of a whole line of cases -- cases Alito, as a lower court judge, had to follow. Just throw out the name of Antonin Scalia! It's so inherently alarming.

In his ruling in Chittister v. Department of Community and Economic Development, Alito argued that the FMLA was an instance of unconstitutional congressional overreach. He also argued that the FMLA was unconstitutional because "there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave. Furthermore, he argued, the requirement that everyone be guaranteed 12 weeks of unpaid family leave was a disproportionately strong remedy":

Notably absent [from the FMLA] is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.

...Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional.

McJoan is quite wrong to say Alito found the FMLA unconstitutional. The quoted material is the reason why, following a line of recent cases, the FMLA didn't fit the Fourteenth Amendment power, which is needed to abrogate sovereign immunity (and allow an individual employee to sue the state for retrospective relief). The FMLA remains supported by the commerce power and the state is still bound by it in this analysis.

Alito's idea that women are not disadvantaged when they can not take maternity leave seems absurd, both intellectually and factually. Even William Rehnquist, who wrote the Supreme Court's 6-3 opinion in 2003 overturning Alito's ruling, found Alito's argument deeply flawed.

The question under the Fourteenth Amendment power wasn't whether women are disadvantaged, but whether the states were violating Fourteenth Amendment law: What violation of constitutional rights was the FMLA remedying? That was the question Alito faced and answered as the law required. To characterize him as not caring about women's interests is either a mistake or deliberate distortion. And by the way, the states were giving women maternity leaves. To find an equal protection violation, you need to point to the lack of paternity leaves and attribute it to stereotyping. And I'm not saying the FMLA isn't a good law and a nice benefit. The problem was that it wasn't a correction of the violation of constitutional rights. Rehnquist finessed his way around that problem, as Kennedy detailed in dissent, and so the ability of state employees to sue for back pay was preserved. But Alito just did what the case law required at the time.

Luckily for me, Rehnquist led the Supreme Court in overturning Alito's flawed decision. Let me reiterate that. Alito's ruling was too conservative for Rehnquist.

But it was quite proper according to Kennedy. Could it perhaps be that sometimes, some judges analyze legal issues?

Alito's and Scalia's hostility toward the FMLA could very well stem from the hostility of business interests, like the U.S. Chamber of Commerce.

But the issue in Hibbs and Chittister only had to do with the way the FMLA applied to the states, so the interests of private business were not at stake in the slightest.

Again, the commerce power supports the FMLA, and neither Hibbs nor Chittister had anything to do with that. And why not include Kennedy in your group of hostile justices? Doesn't fit the attempt to paint the justices as a bunch of ideologues.

The United States is the only industrialized nation in the world that doesn't provide paid family leave. Should another FMLA case come before a Supreme Court with both Alito and Scalia, we might even lose the unpaid leave we have now. That would leave millions of families, like my own, struggling to care for ourselves, our loved ones. In terms of family values, I don't know what could be more critical.

Yes, yes, let's talk about mommies and daddies and babies and families, all the emotional things only good liberals care about. Who wants to stop and talk about a difficult legal issue? But the fact is that nothing about what Alito said in Chittister and Kennedy and Scalia said in Hibbs threatens to take away the leave rights people now have. The commerce power supports the FMLA. When will the people who are demagoging this issue mention that the commerce power supports the FMLA? When they don't, you should know that they are not playing it straight (or they actually don't understand the law).

ANOTHER UPDATE: If you keep reading the comments over at Kos, you'll see this:

Typical Armando (none / 0)

So far, Armando's legal "analysis" is nothing more than name calling. The fact is that every other circuit that addressed the issue of sovereign immunity and the FMLA ruled the same as Alito, with many Democratic judges participating, except for the 9th Circuit. Most S. Ct. observers were surprised when Rehnquuist & O'Connor didn't follow their earlier "federalism" precedents when the FMLA issue came up in Hibbs. To argue now that it was somehow clear that states couldn't be sued by their employess under the ADEA & ADA, but could be under the FMLA, is absurd.

What kind of lawyer engages in name-calling rather than citing cases?

by Realist2004 on Thu Nov 03, 2005 at 10:26:48 PM PDT

[ Parent ]

Excuse me (none / 0)

Typical you - the asshole you defend engaged in name calling and was flat out werong about what the diary said and was abusive to mcoan for no good fucking reason.

Typical of you to IGNORE all that.

Typical of you and it is why you are a waste of time.

The SCOTUS is Extraordinary.

by Armando on Fri Nov 04, 2005 at 05:23:07 AM PDT

[ Parent ]

Later, Armando has this outburst, in response to commenters who keep trying to explain the law:

How in BLAZES do you enforce a law against the State then Genius? Soveriegn Immmunity. Look it the fuck up asshole.

Well, Armando, it's called Ex Parte Young. Look it up!

IN THE COMMENTS: Armando himself stops by. (Where's my link from Kos? I link to the people I argue with.) He tries to explain himself, but doesn't understand the law in this area. He does manage to avoid saying "f*ck" over here.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.

Alito and the Family and Medical Leave Act -- Part 3.

Nathan Newman at TPM Café wants to make the case against Alito out of Chittister, the Family and Medical Leave Act case. Newman is a lawyer, in fact he went to Yale Law School, so presumably he knows something about how legal analysis is done and the way Supreme Court cases bind lower court judges. But maybe he doesn't mind using his aura of expertise to sell a specious argument to serve a political goal. I won't assume he actually understands the cases Alito had to deal with in deciding Chittister. They are difficult, and you have to take the trouble to read them. (I have spent a lot of time with them and claim expertise based on this law review article and 20 years teaching in the relevant field of law. I explain Alito's Chittister decision here. ) But why should Newman bother to understand the cases and to treat Alito fairly, when it's so easy and exciting to demagogue and to say that Alito is hostile to this important federal statutory benefit? What more do you need to know than that the statute is good and Alito did something against it?

To build the case against Alito, we do need to document all the ways thsat Alito opposes the rights of the accused, threatens abortion rights, and endangers workers rights.

But we need at least one decision that encapsulates what's wrong with Alito's view of the law, unites the maximum voters against him, and divides the potential opposition.

And that case is Chittister v. Department of Community and Economic Development, the decision where Alito ruled that the Family and Medical Leave Act did not apply to millions of state employees across the country.

False. The FMLA would still apply to state employees. (The decision only prevented suits by individual state employees for retrospective relief -- such as backpay.) But nice to see you admit that you're all about building a case against the man and finding something you can use.

This was a decision that was overturned by the Supreme Court, in a decision written by Chief Justice Rehnquist.

Well, Rehnquist decided a different case, Hibbs, but that's just a careless error. Still, thanks for showing how little you care about accuracy as you mount your attack.

There is little question that the Family and Medical Leave Act is one of the popular laws passed in recent decades -- a lifesaver for many mothers and fathers who want to stay home with a newborn or a sick family member without fear of being fired from their job for taking that time off.

Yes, the law is popular. Nice grasp of the role of courts and the Constitution. The law is popular, so you should strain to find a way to leave it alone. After all, Rehnquist found a way. Of course, Rehnquist did not have to take so much trouble to follow Supreme Court cases. But down with Alito for respecting the case law. Because he's a bad, bad man. He went against a popular law. He wants mommies and daddies fired!

Opposition to Alito's decision is a unifier-- it unites feminists, oganized labor, public employees, and soccer Moms. And by alienating working mothers especially, who depend on FMLA leave, Chittister has the potential to deeply divide the Republican base.

Yes, fire them up. Who really cares about law and the courts? This is all about organizing the opposition. People will get really mad when they hear that Alito wants to fire mommies and daddies!

Other issues that motivate progressive activists-- Casey for abortion rights activists, Alito's deeply disturbing anti-union attacks or his disdain for criminal defendants -- will motivate key groups, but the question is how to we make the danger of Alito on the Supreme Court clear enough to swing voters that their Senators fear the backlash.

Politically, the pressures on parents in balancing work and family is overwhelming. That Alito would attack a common sense law like the Family and Medical Leave Act in the name of "states rights" will seem to most such voters as pure rightwing ideology. And it can be painted as exactly the judicial activism, the "legislating from the bench" that Bush claimed his judges would not engage in.

Yes, regular folks won't get the concept that courts apply law. What matters is what we can make seem like "pure rightwing ideology." Those dopey soccer moms will totally fall for this one.

If we want to encapsulate what the "federalism revolution" means, what the "Constitution in Exile" means for average families, it is this: ordinary laws enacted by democratic majorities will randomly be struck down in the name of rightwing ideology.

Randomly! Those rightwingers are just crazy. They might see a law and just shoot it down -- absurdly attempting to interpret legal texts -- even when the law is popular. And, no, don't bother me now about the way liberals care about some parts of the Constitution and might sometimes want a court to strike down a popular statute.

It's worth thinking about why Renhquist, the original architect of the federalism legal revolution, decided to uphold the Family and Medical Leave Act when it came before the Supreme Court. A pretty fair analysis is that, aside from the legal arguments, Rehnquist recognized that a decision against the Family Leave law would create such a backlash that it might endanger the whole legal movement in the long term.

Yes, and shame on Rehnquist then, right? Or if the case law was so terrible, it was up to the Supreme Court to change it. There was nothing Alito as a lower court judge could do to change it. The fact that Rehnquist changed it in the Supreme Court in no way showed that Alito should have or even could have changed it in the court of appeals. There is no basis for criticizing him for what was ordinary faithfulness to established law. (Sound like a concept you might want to rely on some time?)

So raising the profile of Chittister should be a key strategy, to raise that spectre of a shift of the Court not just to the right of O'Connor but to the right of Renhquist and to raise pressure on those swing Senators.

Sure, go ahead. Great idea. Teach the world that the Court is nothing more than a political game and the judges who attempt to follow the law are just dangerous, arbitrary fanatics. No chance you might care about the rule of law some day. Screw it! We can win a political battle.

It isn't even funny that you really have virtually no chance of defeating the nominee. Your abject disrespect for law is thoroughly disgusting. But thanks for posting your embarrassing strategy on a blog and for not noticing that there are other bloggers out there who know the legal details that you are counting on the soccer moms not understand or care about at all.

UPDATE: Welcome Instapundit readers. For other parts to my ongoing effort to stop the Chittister demagogery: Part 1, 2, and (dealing with Kos) Part 4.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.

The beloved donor who abolishes tuition.

That's a nice way to get deep appreciation for your $100 million gift.

"We've been idling many years with the court being noncommittal."

AP's Gina Holland quotes me in this analysis of how Alito's replacing O'Connor might change the Court:

The Supreme Court's middle ground is disappearing. If Samuel Alito is confirmed, he could almost immediately begin to erase the court's balanced rulings on contentious social issues like abortion, religion and capital punishment.

With pragmatic Justice Sandra Day O'Connor as its pendulum, the court has staked out moderate positions, often in line with public opinion but not necessarily clear-cut.

"We've been idling many years with the court being noncommittal," said Ann Althouse, a law professor at the University of Wisconsin.

That is likely to end with Alito, who is expected to bring a more reliably conservative approach to areas that O'Connor has influenced: abortion restrictions, the death penalty, campaign finance, affirmative action and states' rights.

The shift could be abrupt....

O'Connor sometimes votes with Scalia and other court conservatives, and other times provides the fifth vote to the court's more liberal wing....

Another room for change is the area of states' rights. Alito, like Scalia, is expected to side with states more often in power struggles with Congress.

While O'Connor has generally been a strong states' rights advocate, her vote is not guaranteed. Last year she was the swing vote in a 5-4 ruling that said disabled people can sue if states ignore a civil rights law on access to courthouses....

In her 24 years on the bench, O'Connor has been known for pragmatic votes, like her tie-breaking 2003 vote to allow limited affirmative action in college admissions.

"Because of her style of interpretation, you could never tell whether she was gauging the political preferences of society ... reaching outcomes that were good in a policy or political way," said Althouse, at the University of Wisconsin. "People would criticize her as being mushy."

With Alito, there will be less flexibility, which would please lawyers but may disturb some people, said Althouse.

Let me expand a little. I don't know what sorts of outcomes Alito would reach, and I think that it is difficult to extrapolate Supreme Court behavior from lower court decisions, but I think O'Connor has been very much the sort of judge who looks at the totality of the circumstances and weighs all the factors. Though her vote has been decisive on frequent, momentous occasions, it hasn't said that much about what would happen in the next case, in a new context. This has left a lot of doctrine in a "mushy" or "noncommittal" state. If her replacement is willing to resolve cases in a crisper, more rule-based manner, doctrine could firm up quickly. (Which would only please some lawyers, I hasten to say!)

But will there be a majority to nail down doctrine in a lot of the areas that have been left flexible during the O'Connor era? Even assuming he becomes a reliable conservative vote, he will need more than Justices Scalia and Thomas to make a majority. What will Chief Justice Roberts and Justice Kennedy do? Justice Kennedy has already shown a tendency to stay in the middle, and I think Roberts is something of a pragmatist.

"So do you wish you were still married to her now that she's a star?"

Richard answers a question (about me) from "a member of [his] household."

"Ever since 3rd period today, I now know that I have sex appeal. It rox!"

Teens and their blogs.

The BOB nominations -- and Chinese repression.

I've been lighthearted and happy about Audible Althouse getting nominated for a Best of the Blogs award.




But -- despite my fretting in the the previous post -- it's easy to be a free speaker here. Look at this:

Chinese authorities have blocked a pro-democracy Web log after it was nominated for a freedom of expression award by a German radio station, a press freedom group said Thursday.

The blog, titled Wang Yi's Microphone, dealt with ''sensitive subjects'' and was maintained by a teacher from Sichuan province, Paris-based Reporters Without Borders said in a statement.

China's communist government encourages Internet use for education and business, but blocks material deemed subversive or pornographic.

Dissidents have been arrested under vaguely worded national security laws for posting items critical of the government.

Reporters Without Borders said Wang's blog was ordered closed by the authorities in Hainan province, where the site's host company, Tianya, is located.

The site was nominated for a ''Best of the Blogs'' award in the freedom of expression category by the German public radio station Deutsche Welle.

On its Web site, the radio station described Wang as an ''anti-government Chinese intellectual'' who used the blog to fight for justice. It did not give details.

Terrible. Reminds me of Australia.

"I fear that bloggers one day could be fined for improperly linking to a campaign Web site..."

I'm worried about free speech up here too.

Sedition = to "urge disaffection" toward the government or to promote "ill will or hostility" among groups.

According to the proposed anti-terrorism bill in Australia, where free speech doesn't seem to be much of a treasured value:

Public debate has been limited because the government did not publish the bill. The chief executive of the Australian Capitol Territory, Jon Stanhope, published it on his Web site three weeks ago, saying he thought broader public discussion was needed. Mr. Howard, leader of the center-right Liberal Party, reacted by refusing to provide Mr. Stanhope, of the Labor Party, any further drafts. Based on that draft, the proposed law would permit the police to use preventive detention for up to 14 days, during which time the detained person would be allowed to let only one family member know of the detention. It would be a crime for the family member to tell anyone else - even for a father to tell the detainee's mother, for instance. The definition of sedition would be expanded to include statements that "urge disaffection" toward the government, or that promote "ill will or hostility" among groups. Mr. Howard is expected to introduce the bill on Thursday. Approval is expected within days. Mr. Howard's party controls both houses of the Parliament, and the leader of the Labor Party, Kim Beazley, has said he supports such a law.

Well, I would urge disaffection toward the... Or, no, I guess you'd better be careful down there.

"This egg is fine. Gays can get married."

Did you watch the new "South Park"?

A conservatism of judicial restraint.

In today's NYT, Adam Liptak and Jonathan D. Glater take up the question of Alito's dissents. They uncritically cite Cass Sunstein's take on 41 opinions (viewed critically here yesterday) and repeat Sunstein's meme: "his dissenting opinions are almost always more conservative than the majority's." But they also provide some other statistical information that complicates that conclusion. There is this:

Academic studies of dissenting opinions generally predict that judges appointed by Republican presidents will dissent more often in cases in which both of the other judges on three-judge panels were appointed by Democratic presidents.

But Judge Alito does not follow that pattern: he dissented in 4 cases in which both of the other judges were appointed by Democrats and in 26 in which they were both appointed by Republicans.

And this:

The Supreme Court rejected the position set out by Judge Alito in a dissent in an abortion case. But in at least three other cases, it adopted the position advanced in his dissent.

Frank B. Cross, a law professor at the University of Texas who has compiled a database tracking how the Supreme Court reviews appellate decisions, said: "This is the highest of anyone in the database. It shows that when his court took an important and controversial case and got it wrong, from the perspective of the Supreme Court, he identified that and dissented. Indeed, his dissent may have been part of what got the Supreme Court's attention."

Liptak and Glater don't manage to pull out any inflammatory dissents, and they seem most drawn to the conclusion that his brand of conservatism is not the pursuit of politically conservative outcomes but simply judicial restraint:

One theme that runs through Judge Alito's dissents is deference to the views of the people and the agencies closest to the facts and thus, in his view, best situated to make decisions.

There are, we need to recognize, varieties of judicial conservatism. If you want to characterize a judge as a conservative, please tell me what kind of conservative you mean.

Getting comfortable about Alito.

The Washington Times reports on the increasing "comfort level" Democratic senators have about Alito. Senator Durbin talks about his feelings:

In terms of his own comfort level with the nominee, Mr. Durbin said Judge Alito fell somewhere between Harriet Miers -- whose nomination was withdrawn last week -- and John G. Roberts Jr. -- who is now chief justice of the Supreme Court.

Justice Roberts was the "Elvis of Supreme Court nominees," Mr. Durbin said, and Miss Miers was so uncomfortable that it made him feel uncomfortable.

"I never got the feeling that she wanted to be in that chair," he said. "I think she was following the request of a president she admires very much to pursue this and she was very concerned she would say the wrong thing."

The "comfort" question is supposed to have to do with whether Democrats are feeling alarmed about the nominee's ideological slant, but this makes it seem more like an inquiry into the nominee's social graces.

Interesting, isn't it, how much Durbin seems to think he could read Harriet Miers's mind? He was uncomfortable. She was uncomfortable. Was he uncomfortable because she was uncomfortable? Or was she uncomfortable because he was uncomfortable? Or did he think she was uncomfortable because he was uncomfortable?

And will we ever come back to the question whether some of the opposition to her really was sexism? Well, her qualifications were so poor that she deserved to be opposed, and any sexism in the mix was overkill. That may keep us from ever delving into the gender politics of this nomination. But inside this "comfort" metaphor may be echoes of longing for that oh-so-comfortable old boys' club.

"Disdaining any label and keeping an almost allergic distance from discussions of ideology or politics."

That's how the L.A. Times describes Samuel Alito. What if a judge wasn't just trying or pretending to push politics to the side but was actually not political?

Former colleagues praise Alito's legal acumen and quiet affability, but describe him as essentially apolitical. He is registered as a Republican in West Caldwell, N.J., but Federal Election Commission records dating to 1983-84 show no campaign contributions in his or his wife's name. Even longtime neighbors said he was so reticent that some on the block didn't know he was a judge.

"Summertime, in the backyard, we would have barbecues and would never, ever talk about anything involving his work or politics," said Alex Panzano, who lives across the street from the Alitos in the Newark suburb.

Even in high school:

Alito was a talented debater and enjoyed the intellectual sparring involved. But even then, he recoiled from anything resembling inflexible ideology. His scrawled yearbook message to [fellow debater Victor McDonald] ribbed the classmate about his politics: "Who will replace you next year as [Steinert High School's] biggest reactionary? I doubt anybody can be as FAR RIGHT as you."

In college, there's something quite interesting:

While at Princeton, Alito staked out a rare, provocative position while chairing a student conference on the "boundaries of privacy in American society." He wrote a report that recommended the repeal of laws that made sex between gays a crime and urged new antidiscrimination laws for gays in the workplace.

Audible Althouse, #17.

Here it is, a 55 minute podcast, with a lot about the new Supreme Court nominee Samuel Alito and the various swirling political doings surrounding him, including my own media activities, taking metaphors literally and the connection to Mad Magazine, the free exercise of religion (keeping bears, hallucinogenic tea, wearing headscarves), and a peace rally in Madison and the way Althouse commenters talk about it.

UPDATE: One problem with podcasting is that you can't do corrections. Listening to this podcast, I see that I garble a legal point about Alito's Blackhawk case. I should have been clear that it was a matter of the federal Free Exercise clause: when does a state's policy stop being considered "neutral and general applicable," so that strict scrutiny applies?

ANOTHER UPDATE: My host libsyn.com seems to be having troubles Thursday morning. If the link isn't working, try iTunes.

Anti-war rally.

Today, in Madison.

"A remarkable pattern" of "almost uniformly conservative" dissents?

On Monday night, I was on a radio show with lawprof Cass Sunstein, talking about the nomination of Samuel Alito, which Bush had announced just that morning. Sunstein stressed a study of 41 Alito dissents, which he had -- amazingly -- completed that day. I see that he published an opinion piece about his study in the Washington Post yesterday:

As an appeals court judge, Samuel Alito has compiled a massive record that includes more than 240 opinions. Of these, the most illuminating may well be his 41 dissents -- opinions that he has written by himself, rejecting the views of his colleagues.

When they touch on issues that split people along political lines, Alito's dissents show a remarkable pattern: They are almost uniformly conservative. In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues. In his dissents, at least, he has been a conservative's conservative -- not always in his reasoning, which tends to be modest, but in his ultimate conclusions.

"Almost uniformly" -- what does that mean? There were 41 cases. In how many of the dissenting opinion did he take a position that Sunstein could code as "more conservative" than that taken by the rest of the panel (that is, the other two other judges from what, Sunstein concedes, is the "relatively liberal" Third Circuit)?

The WaPo piece doesn't give the number, but on the radio show -- which you can listen to here -- Sunstein says twice that "two dozen" of the dissents go in the conservative direction. 24 as compared to 17 is a "remarkable pattern"? 58% of the time is "almost uniformly"? I don't get it!

Or is it that there is some subcategory of the 41 cases that Sunstein viewed as containing "issues that split people along political lines"? So how many dissents in fifteen years are we talking about? Perhaps it's 27, because he did also mention that there were 3 cases in which he coded Alito's dissent as more liberal than the rest of the panel.

Can someone replicate the coding and counting of the Alito dissents? Apparently, it's a one-day job.

Also, when a judge dissents is he "rejecting the views of his colleagues"? Judges' conclusions upon analyzing legal issues aren't "views," and a disagreement among a panel of three judges isn't properly characterized as a "rejection" aimed at colleagues. They simply reached different conclusions and are saying as much.

UPDATE: Cass Sunstein emails:

In terms of counting: I looked over 41 dissents (not including the 14 or so concurring and dissenting opinions). Some of them are easy to code in ideological terms; some of them aren't. Somewhere between 13 and 20 are best treated as "neutral," that is, no ideological valence at all. Of those with an ideological valence, somewhere between 100% and 85% are to the majority's right. My best estimate is on the high end of that range. -- Reasonable people can differ, of course, about the precise calculation, but by any objective count, I think, the overwhelming majority (of those with an ideological valence) are to the right -- and more important, in a distinctive and interesting way, that is, they ask for deference to powerful institutions (and hence show little or no discernible libertarian streak). -- I confess that I wasn't looking (or hoping) for this pattern. It really surprised me. I really want to be in favor of Alito and haven't made up my mind -- this is a just a source of concern.

So, spread out over 15 years on the bench, we're talking about maybe one case a year. I'm not so ready to feel concerned about this. I'd like to see the actual cases. It could be that Alito is just turning out workmanlike analysis where the other two judges were stretching for a liberal result. Are the dissents on panels with especially liberal judges or in cases where it was tempting to the majority to overreach in a liberal direction? Are the dissents clustered in his early or later years or evenly spread over the years? Somehow these statistics don't speak to me other than to say: examine this more closely.

"Don't Forget To Riot."

This stencil can be seen around Madison, Wisconsin:





Presumably, it's nothing more than an encouragement to party on Halloween.

"They might say things or look at me in a certain way, and that would undermine my confidence."

Said by a young Muslim woman in France, where acceptance of the ban on headscarves in schools is reportedly widespread.

The clearest sign that the 2004 law is now accepted is that no Muslim group is fighting for its repeal - not even the Organisation of Islamic Organisations of France (UOIF), which is closest to grass-roots opinion in the country's poorer suburbs.

"The law is unfair to Muslims, but we've put it behind us," said Rachid Hamoudi, the UOIF director of a big mosque in Lille, northern France....

But the wide acceptance of the ban does not mean the scarf issue has been settled once and for all....

To get an idea of the lingering tensions, it is worth looking at what happens to these young Muslims beyond secondary school.

At university level, the law on religious signs does not apply.

Nevertheless Teycir ben Naser, a second-year student at Creteil University near Paris, has opted for a discreet bandana.

The 19-year-old feels the headscarf she wears off campus could become a liability during oral exams.

Not that it would influence examiners, she says, but "they might say things or look at me in a certain way, and that would undermine my confidence".

The main challenge, however, will come after university.

"We are studying to be able to work later," Ms ben Naser says. "And we all we know that if you wear a veil all the doors will close."

Meanwhile, there are riots in Paris:

The street fighting less than an hour's subway ride from the heart of Paris has underscored France's failed efforts to stem the growing unrest within a largely Muslim immigrant population that feels disenfranchised and is beset by high unemployment and crime. An estimated 6 million Muslims live in France, many of them in dismal high-rise enclaves like this one.derrahmane, 54, who heads the local Muslim Cultural Association, said Tuesday morning, visibly exhausted after an all-night effort to quell the continuing violence in this town.

Many residents were outraged Sunday night when a police tear gas canister was thrown into a local mosque during prayers for Ramadan, the Muslim holy month. An estimated 700 coughing and panicked worshipers ran for the doors.

Another sip of the hallucinogenic tea.

With an important freedom of relgion case involving hallucinogenic tea pending in the Supreme Court, I'm surprised that my blog comes up second in a Google search for "hallucinogenic tea." But, good lord, look what comes in first!

At oral argument yesterday, the government argued that it had a compelling interest in banning the religious use of the drug out of concern that the drug, if permitted to the religious users, would make its way out to recreational users. But with that story coming up first in Google, the recreational use of the drug may seem none too enticing.

UPDATE: The hallucinogenic tea in the Supreme Court case is made from an Amazonian plant called hoasca. The unfortunate man who lopped off his penis drank tea made from Angel's Trumpet. In any case, hoasca causes intense vomiting, which is (according to the linked article) useful to Amazonian people who suffer from dangerous worms. And, no, I'm not trying to set up a penis joke. Make your own penis/dangerous worm joke.