At Mr. Ice's Café...

... you can pour yourself a cold one on this very cold, long night. So keep the conversation flowing.

"The sheer ineptitude of this show, inspired by the Spider-Man comic books, loses its shock value early."

"After 15 or 20 minutes, the central question you keep asking yourself is likely to change from 'How can $65 million look so cheap?' to 'How long before I’m out of here?'"

From the ex-governor and his federal judge wife, who are separating after 40 years of marriage: "Please do not hesitate to include both of us in social occasions as we will not find it awkward or uncomfortable."

Ed and Majorie Rendell are breaking up, but please don't think you have to exclude one or the other as you plan your parties and other networking opportunities.

Are they Democrats or Republicans? Here's a clue: neither the word Democrat or Republican appears in the linked article. So?

"Good fighters and good boxers, they keep pounding away at the cut. We knew they would come after us."

"It was like a heavyweight fight."

"Will.i.am said his attempt to tweet during the performance was thwarted after he discovered his cell phone had no service."

"His Twitter handle was silent until after the game, when he sent out a series of tweets beginning with: 'Att crashed ... ahhhh!!!! The worse.'"

Blame AT&T. AT&T is to blame for everything. Why not blame AT&T for how bad the Black Eyed Peas were?

The choice of the Black Eyed Peas was intended to bring some youthful vigor back to the halftime show after the NFL — feeling burned by the infamous "wardrobe malfunction" of Janet Jackson with the aid of Justin Timberlake in 2004 — chose a string of safe, near-geriatric icons for the halftime for the next six years, ending on a low note with a much-maligned concert by The Who last year.

You did "Sweet Child O' Mine" and near-geriatric icon Slash appeared. Then you did "(I've Had) The Time of My Life." Did near-geriatric icon Jennifer Grey back out at the last moment?

Why is the New York Times just noticing this?

Liberals (including President Obama) think the Supreme Court was wrong in Citizens United to say that corporations have free speech rights, but newspaper and book publishers are corporations. For some reason, the NYT is acting like it took a year to notice this hitch (which has been perfectly evident since the Citizens United litgation began in the lower courts). I guess the excuse for pretending not to see what was obvious is that it has been hoping to rely on the notion that some corporations have more rights than others. This new piece — a column by Adam Liptak — begins to concede that is an unworkable argument.

“There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not,” Justice Kennedy wrote in Citizens United....

Eugene Volokh, a law professor at the University of California, Los Angeles, has reviewed the historical evidence. The bottom line, he said, is this: “If ordinary business corporations lack First Amendment rights, so do those business corporations that we call media corporations.”

But Liptak's column peters out with a quote from a lawrpof who calls it a "difficult question" and...

There good arguments both ways about whether corporations ought to be covered by the First Amendment. But it is harder to say that some corporations have First Amendment rights and others do not.

Yes, yes, it's obvious what the answer needs to be, and yet the debate must go on and on because it's so important to restrict the speech of people who organize themselves into corporations. Some of them. The bad guys. Not the good guys, like the ones who take a year to getting around to half-conceding the crushingly obvious.

"Where are the liberal civil rights leaders in response to the openly racist comments and calls for violence against America's black Supreme Court Justice?"

"These same men -- all men, I believe, as per usual with the black civil rights groups -- got all in a multi-week, if not many month, tizzy with their allegation that what obviously was a 'say it don't spray it' situation at a Tea Party rally was a spit attack on a black Member of Congress, but they evidently do not care when persons at an event affiliated with one of the nation's most established liberal groups, Common Cause, publicly say they want Clarence Thomas physically attacked and put into slavery."

Says Amy Ridenour, via Instapundit, who uses the word "hypocrisy." It's something beyond hypocrisy, though, I think.

Obama: "Over the first two years of my presidency, we had a complete disaster. Right?"

Right.

Remember when it was fun to mock Arianna and her little HuffPo project?

Begun with $1 million, it's now being sold to AOL for $315 million, with Arianna reigning as as president and editor in chief.

By handing so much control over to Ms. Huffington and making her a public face of the company, AOL, which has been seen as apolitical, risks losing its nonpartisan image. Ms. Huffington said her politics would have no bearing on how she ran the new business.

What difference does it make? AOL as a brand meant something to me in the 1990s, but not now. Who cares whether AOL retains a semblance of political neutrality? In any case, mainstream media always feels pretty liberal, so why would anyone really notice. Now, that quote is from the NYT, so... think about it. The NYT would like to be the big news site that looks neutral (but satisfies liberals). HuffPo is the raging competition, which needs to be put in its place.

Mitch Daniels in the WSJ: "Unless you're in favor of a fully nationalized health-care system, the president's health-care reform law is a massive mistake.."

The Indiana Governor (and potential GOP presidential candidate) ponders what the states can do if the law is not repealed or judicially voided. The states cannot be commandeered to run the program, so there is leverage to bargain. These are the conditions that 21 governors have proposed to the Secretary of Health and Services:

• We are given the flexibility to decide which insurers are permitted to offer their products.

• All the law's expensive benefit mandates are waived, so that our citizens aren't forced to buy benefits they don't need and have a range of choice that includes more affordable plans.

• The law's provisions discriminating against consumer-driven plans, such as health savings accounts, are waived.

• We are given the freedom to move Medicaid beneficiaries into the exchange, or to utilize new approaches to the traditional program, instead of herding hundreds of thousands more people into today's broken Medicaid system.

• Our state is reimbursed the true, full cost of the administrative burden to be imposed upon us, based on the estimate of an auditor independent of HHS.

• A trustworthy projection is commissioned, by a research organization independent of the department, of how many people are likely to wind up in the exchange, given the large incentives for employers to save money by off-loading their workers.

Obviously, this is a very different system than the one the legislation intends....

That's a GOP proposal on how to tweak health care reform, which is what Obama and others have said they need. With the prospect of 21 states dropping out of the enforcement regime, there should be real pressure to work with them and try to draw them back in.

On the other hand, you really are in favor of a fully nationalized health-care system, then you might celebrate the states failure to go along with the attempt to include them. And if what happens is, as Daniels predicts, "first-rate operational catastrophe," then that sets up the collapse into the only workable fix a fully nationalized health-care system.

"I know that Ronnie would be thrilled and is thrilled to have all of you share in his 100th birthday."

"Does it seem possible?"

Watch the Super Bowl with us!

Come, hang out at Meadhouse.

UPDATE: Packers win the Super Bowl!!!!!!

UPDATE2: It's 28° outside, but guys are opening their doors to yell to each other what everybody already knows: Packers win the Super Bowl!

UPDATE3: I must say I enjoyed seeing George W. Bush there. George and Laura and Condi.

Sunday on skis.

This was our second stop...



The first was Governor Nelson, but I didn't take a picture. We stopped at Steve's Liquor Store on the way home, not because we needed anything, but because we knew they were having a pre-Super Bowl tailgate party, which is to say, free brats. So we bought some beer and Nueske's bacon and grabbed a free brat to share as we drove home.

"What's on besides the Super Bowl?"

"'Sex and the City' marathon... 'Toddlers and Tiaras' marathon... 'Bewitched' marathon... 'Worst Cooks in America' marathon... 'Jerseylicious' marathon..."

"Is it harder for women to be sports fans?"



(Bonus question: Is it harder for women to speak without sounding like everything is a question?)

Hey, everybody mistakes 4-star generals for waiters.

"In fact, when military personnel wear their dress uniforms of short jacket and striped trousers to black-tie parties, they themselves often make jokes to each other about waiting tables. [ Four-star Army Gen. Peter Chiarelli -- the No. 2 general in the U.S. Army] wears a chestful of medals, which [Valerie] Jarrett apparently did not see."

"A young Wisconsin trio could shape the direction of the GOP."

WaPo:

They all grew up in southern Wisconsin. They are close in age, ranging from late 30s to early 40s, and have known and worked with one another for many years. [Paul] Ryan and [Scott] Walker met when they were in their 20s. Ryan's chief of staff roomed with [Reince] Priebus in college.

They are not only friends but political soul mates. They share a worldview, a set of conservative values and a determination to show the country that conservative governance can solve many of the nation's problems. And in Wisconsin, they found a way to unify the party establishment with the tea party movement, avoiding many of the conflicts that occurred in other states.

It's all about Wisconsin....

"With a classic showman’s swagger, Bill O’Reilly has declared that more people will see his live pre-game interview with President Barack Obama..."

"... on Sunday than 'any other interview that’s ever been done in the history of mankind.'"

Blech. Why are those 2 non-football characters trying to horn in on the Super Bowl? Can you just leave us alone for one day?

Movie watched last night: "Citizen Kane."

What was the motivation to pull the old reputedly-greatest-movie-ever-made down off the shelf? Some conversation about putting together a story by interviewing various people who knew a specific individual one had never met and wanted to try to understand. I said that's the famous, highly praised narrative structure of "Citizen Kane," you realize, but you didn't realize that because you'd never seen "Citizen Kane." How do you get through life without seeing "Citizen Kane"? People are always pushing "Citizen Kane," which you rightly pointed out is a reason to resist it. So thanks for not resisting it when I pushed it, which I did not because I'm shocked that you'd failed to take in the greatest movie blah blah blah — in fact, I admire resistance to that sort of pressure — but because it had to do with an idea we were already talking about that had nothing to do with the irritating pseudo-accomplishment of seeing all the things you're supposed to see.

"Citizen Kane" questions for discussion:

1. Why did you see "Citizen Kane," or how have you managed to avoid it? Have you been bullied into seeing it, or are you one of the bullies? Do you feel like there are movies you're supposed to see, and do you see them or avoid them?

2. If you've seen it, do you like it? What don't you like about it? Do you like that kind of extreme visual composition where one actor is right up against the edge of the frame and the other actor walks away into the set and looks about one tenth the size of the other guy? Do you like that stagey acting? Do those special achievements in makeup from 1941 drive you crazy or do you find them heart-rendingly touching evidence of striving after Art?

3. With all this snow we've been having, we could make a list of movies with important snow, and "Citizen Kane" belongs on that list. What else? "The Shining"...

"Do you think it's gonna be a Packers blowout? Do you see where that could happen?"

Rush Limbaugh asked Ken Hutcherson on Friday's show:

THE HUTCH:  Well, I do.  That's why I was gonna make you promise me that you won't turn the TV off at halftime.

RUSH:  I would never turn the Super Bowl off at halftime no matter what's happening....

THE HUTCH:  ... But if you will notice, why do most advertisers want to advertise on the first half?

RUSH:  Well, Hutch, it's because the women stop watching at halftime.

THE HUTCH: (laughing) No.  Because they know, man, that the Super Bowl has a tendency to be one-sided. We've had some great Super Bowls in the last....

RUSH:  Yeah, but it hasn't been the case in the last five or six years.  This game has gone down to the last play...

THE HUTCH:  But there is a possibility that someone could be put to shame this week. I'm not gonna push, but I believe my Green Bay Packers are gonna come through....

So, Packers win in a blowout, right? Anyway, you see the subject of women came up. It comes up again at the end of the discussion:

"Any person who vitiates the atmosphere in any place so as to make it noxious..."

There's a dispute in Malawi over whether that language, in a criminal statute, outlaws farting.

Hey, that remind me of an old story about George Bush:

What the President thinks of the use of weird words. Having just expounded on the use of strange words, I especially enjoyed this extract--in Slate's always appreciated we-read-this-so-you-don't-have-to series--from Bob Woodward's book "Plan of Attack":

Page 186: Bush aide Nick Calio declares his intention to vitiate a congressional filibuster. Bush says, "Nicky, what the f**k are you talking about, vitiate?"

More on the inadvisability of using the word "vitiate" here. As for farting in public, I've only written about it before in connection with Saul Alinsky and Chris Matthews. And here's that wonderful George Carlin routine.

Ruth Bader Ginsburg says "I am certainly not going to retire before I get my Albers back."

(Via CNS.)

At the Winter Sunset Café...

... tell us all your subtly dark thoughts and secrets.

"You know... some people get shocked about sex. I was shocked that everyone was so shocked."

What a fuss everyone made about "I Am Curious (Yellow)," back in the 1960s. The star, Lena Nyman, has died at the age of 66.

Just 2 days ago, we were talking about the death of Maria Schneider, another woman we knew through a movie that shocked us with sex long ago.

Where are all the other women, who shocked us with mere sexuality back then, when naked actors simulating sex got everyone's attention? They are all old now, almost 60 years or more. We notice their obituaries and we remember the olden days, when it was possible to shock people with nothing more than nudity and sexual intercourse.

The U.S. Supreme Court had to deal with the fuss over "I Am Curious (Yellow)."  There's an opinion by Justice Douglas where — it's hard now to understand why — he saw fit to quote Aleksandr Solzhenitsyn:

It is time to remember that the first thing we belong to is humanity. And humanity is separated from the animal world by thought and speech, and they should naturally be free. If they are fettered, we go back to being animals. Publicity and openness, honest and complete - that is the prime condition for the health of every society, and ours too.

Justice Douglas said: "If 'obscenity' can be carved out of the First Amendment, what other like exceptions can be created?"

There seemed be be a lot at stake back then. It seems so creakily irrelevant today, as the once-naked, once-beautiful bodies are buried in the earth, but free speech is on the line today too. Do you notice? Do you care?

Humanity is separated from the animal world by thought and speech, and they should naturally be free.

"So when a white person holds objectionable views — racism, for example — we rightly condemn them."

"But when equally unacceptable views or practices have come from someone who isn’t white, we’ve been too cautious, frankly even fearful, to stand up to them."

Prime Minister David Cameron, daring to say that his country has values.

Publish Post

"You were my heart throb"/"What am I now, chopped liver?... It must have been 'Barbarella', right?"/And he typed out "yes."

When Jane Fonda met Stephen Hawking.

Hosni Mubarak has resigned?

"Reuters is reporting, via Egyptian state television, that President Hosni Mubarak resigned as head of Egypt's ruling party on Saturday. Al Jazeera is reporting the same."

ADDED: Question mark added to the post title.

AND: From the NYT live-blog linked above:

While we are awaiting clarity on whether President Hosni Mubarak remains the head of the ruling National Democratic Party in Egypt-- he is definitely still president, in any case-- here is some news on one of Egypt's leading opposition bloggers.

"2 Detained Reporters Saw Secret Police’s Methods Firsthand."

Could you please read this NYT article very carefully and explain to me how we know it was the Egyptian government's secret police as opposed to an exercise by opponents of the government, done to induce reporters to write stories antagonistic to the government?

The reporters were kept in "a plain room," where they were not beaten but they could hear what sounded like beating. What did they actually see?

We saw a journalist with his head bandaged and others brought in with jackets thrown over their heads as they were led by armed men....

A plainclothes officer who said his name was Marwan gestured to us. “Come to the door,” he said, “and look out.”

We saw more than 20 people, Westerners and Egyptians, blindfolded and handcuffed. The room had been empty when we arrived the evening before.

“We could be treating you a lot worse,” he said in a flat tone, the facts speaking for themselves. Marwan said Egyptians were being held in the thousands. During the night we heard them being beaten, screaming after every blow.

Isn't that odd? Lots of blindfolded people, and then alarming sounds coming from elsewhere? They were kept for a day and then released.

They put us in our car with orders to put our heads down. “Look down, and don’t talk. If you look up you will see something you don’t ever want to see.”

They left us that way for 10 minutes. The only sounds were of guns being loaded and checked and duct-tape ripping.

Again, the hearing without seeing. Isn't this a strange article? Seriously, I am not trying to make trouble. I just read this article and felt like the reporters could have been duped by people manufacturing disinformation.

"The US secretly agreed to give the Russians sensitive information on Britain’s nuclear deterrent to persuade them to sign a key treaty."

Says the UK Telegraph, relying on Wikileaks:

A series of classified messages sent to Washington by US negotiators show how information on Britain’s nuclear capability was crucial to securing Russia’s support for the “New START” deal.

Oh, but don't be upset! The START treaty was Obama's chosen post-elections showdown with GOP last fall:

Just two weeks after an election that left him struggling to find his way forward, President Obama has decided to confront Senate Republicans in a make-or-break battle over arms control that could be an early test of his mettle heading into the final two years of his term.

Obama proved his mettle! What's more important? Our relationship with the UK or proof of Obama's mettle after the crushing 2010 elections?

"The question for many Republicans is whether Ms. Palin is rewriting the rules of what it takes to run for president in an age of Facebook and Twitter..."

"... a world where, perhaps, there are no early visits to Iowa and New Hampshire, no need for policy speeches or press interviews – or whether this is simply part of an effort to keep herself in the public eye and to influence the Republican primary."

"AT AMAZON, a Valentine’s Day sale on cookware," says Instapundit... but wait!

Cookware as a Valentine's Day gift? Isn't cookware a famously bad Valentine's Day gift? I say that out loud. And Meade says: "Don't you know? Everything has flipped. It's for women to give to their men — the proud men who do all the cooking now — the proud men of true Mandom, like me and Glenn. Men, who see cookware as their tools."

***

Whatever you buy, if you don't buy it through Instapundit, please start here:

"I bet that you, like me, reasonably assumed the the 'G' on the Green Bay Packers' helmets..."

"... stood for 'Green Bay.'"

"Imagine, if you can, the delight of the woman who steps into her 'ready made' house and finds the kitchen already equipped with..."

"... electric refrigerator, dishwasher, sink, electric or gas stove, built-in clock, abundant cupboard space--and even a two-day supply of groceries on the shelves. And she never will be bothered by cooking odors because an electric exhaust quickly removes smoke, dust and fumes from the kitchen. In addition to the windows, indirect lighting gives plenty of illumination for her work in the compactly designed room."

You had me at built-in clock.

"The Most Feminist Place in the World."

You know it's got to be Iceland.

[A]ctivists from Stigamot, the rape crisis center in Reykjavik, gave Knut Storberget, Norwegian justice minister, black boxer-briefs with the words I Am Responsible written down the crotch....

Feminism, or at least the notion of gender equality, has so infused politics that, a couple of years ago, women members of Parliament performed The Vagina Monologues....

There are also new feminine spaces in the economy. As the economy went into overdrive, Kristín Pétursdóttir and Halla Tomasdóttir, who had been warning of disaster from her position at the Chamber of Commerce, founded Auður Capital, a “financial service company emphasizing feminine values and social responsibility.”...

"The Fish Filet™ Commercial KFC Doesn’t Want You To See (Anymore)."

"'It is no longer airing and will not be re-aired,' said a flack for Yum! Brands, the perpetually thrilled conglomerate that owns KFC."

ADDED: That's an interesting YouTube portal into Chinese commercials. Check out this very weird Panda cheese thing, and this one made me feel like I needed to have a seizure.

New horoscopes by Anna...

... hmmm. It seems I'm Bag.

"[I]f the Democrats, who called this hearing, hoped to blunt the momentum of the legal challenges by showing that the lawsuits had no merit, they failed in their objective."

Randy Barnett has some thoughts about the Senate Judiciary Committee on the constitutionality of the health care law. (Which we've already talked about here, here, and here.)

Randy says:

If anything, press coverage generally reflected the view that both sides made strong arguments, and that only the Supreme Court could settle the matter. Indeed, my impression is that the hearings served to advance the credibility of the challenges. 

Clearly, we've advanced beyond "Are you serious? Are you serious?"

Randy "was particularly struck by the cordiality and collegiality shown to all the witnesses by Senator Durbin."

Not only did he genially greet each one of us beforehand and thank us individually afterwards, he paid close attention to everything each of us said, and what each fellow Senator said, for more than two hours of the hearing. 

He listened, he really, really listened!

Now, that's nice, but, really, the hearing, from Durbin's perspective, was probably the Theater of Listening. If the courts are going to uphold the law, it will be because they decide that the appropriate judicial role is deference to Congress's decision that it has power under the Constitution to pass the law. Looking terribly interested in the details of the legal arguments creates the impression that you deserve deference.  

Look! I'm living up to my independent role of determining that the law I'm drafting and voting for is constitutional.

Of course, having the hearing after the law is passed (and after the threat from the courts has materialized) doesn't really inspire the confidence that is needed to justify judicial deference to Congress.

But that's all the more reason to do good theater.

"So I love this commercial because it captures the shared experience of Generation X."

"We like being home to make our kids peanut butter and jelly. You could not sell Baby Boomers with this. They think it’s lame to sit in a kitchen waiting for your kid to be hungry. We like having a male breadwinner and we’re not afraid to say it. And we are surrounded by little boys in love with Star Wars...."

"This is a very strange jobs report from the Labor Department."

"The economy gained a paltry 36,000 jobs in January according to the report, which is far below expectations and a real disaster for the economy. Nevertheless, the topline unemployment rate fell 0.4% to 9.0%."

Why the Pope can't be an organ donor.

For one thing: "his body belongs to the entire Church and must be buried intact." But:

Furthermore, if papal organs were donated, they would become relics in other bodies if he were eventually made a saint.

I don't know enough Catholic theology to understand what's wrong with a saint's relic functioning in someone else's body. Saints are supposed to help us out only in ways that that are unachievable by ordinary dead people?

From Psychology to Physics...

... the gender divide.

"Dan Snyder, Owner of a Team Named After an Ethnic Slur, Sues Over Perceived Anti-Semitism."

"That’s anti-Semitic? That looks to me like a public figure with devil horns drawn on his head. I mean, I’m a guy who has gotten into bar fights over how The Smurfs are anti-Semitic (I mean Gargamel. Really?), but I can hardly fathom how drawing devil horns on a photo conveys any ethnic malice."

Writes Elie Mystal, making a point but also displaying some surprising ignorance about iconography.

Glenn Beck reacts to what they're saying about him.

Watch him watch Michelle Goldberg:



Michelle Goldberg is a lefty columnist I've done Bloggingheads diavlogs with.

Glenn Beck... I don't know what to make of him. I can't listen to him long enough to follow his theories. Seriously, those banks of creepily lit brown blackboards covered in orange chalkings... it's nightmarish. It flips my too-crazy-to-watch switch, which keeps me from ingesting the substance. But I don't turn around and call him crazy. I'd monitor him for you, but I don't have the attention. I'm suddenly like a schoolboy the teacher thinks needs Ritalin, and I just say no.

"And that was when he discovered he had a special kinda way with animals."

"They just come right up to him like he was a natural part of the wilderness."



Have you been living free in harmony and majesty like we did back in the 1970s?

***

Charles Sellier Jr., the man who created "The Life and Times of Grizzly Adams,” has died at the age of 67.

Loosely based on an actual person who escaped into the wilderness in 1853 after being accused of a murder he didn’t commit, Grizzly Adams is a bearded, barrel-chested man (played by Dan Haggerty) who counts among his friends raccoons, skunks, ferrets, deer, coyotes, porcupines, an eagle and, of course, the abandoned grizzly bear cub who matures into a powerful companion named Ben.

ADDED: Did you have the same question I had?: Is Ben the same Ben as "Gentle Ben"? The answer is no: "there is no connection between the bears."



Wow! The 60s were so different from the 70s. The 60s had a lot of 50s in them, and the 70s had a lot of 60s, but not the part of the 60s that was leftover from the 50s. If you're not old like me, maybe those distinctions sound meaningless, but if you are, I bet you know exactly what I mean.

"I hear so much of the pain from students, faculty or staff... People look at me differently because I am x, y or z."

Said Damon Williams, the University of Wisconsin Vice Provost for Diversity and Climate, at last night's Student Town Hall Meeting.

Williams presented issues progressing on campus and others that have remained the same or regressed. One of those issues progressing is the university's undergraduate enrollment of minorities, but Williams will not be happy until UW-Madison is the "national champion."

Nearly a hundred students showed up to hear that and to be put in small groups to come up with specific ideas on assigned diversity subtopics like academic success and campus climate.

Students proposed ideas including giving social action leaders college credit for their volunteer work and changing ethnic studies classes to be purely discussion.

"My Christian faith then has been a sustaining force for me over these last few years."

"All the more so when Michelle and I hear our faith questioned from time to time. We are reminded that, ultimately, what matters is not what other people say about us, but whether we're being true to our conscience and true to our God."

ADDED: "CLINGING to his religion. And perhaps even a trifle bitterly."

"I don't care what people say about me. "

"Right now I care about my country, I care about Egypt."

"I felt very sad because I was treated like a sex symbol."

"I wanted to be recognized as an actress, and the whole scandal and aftermath of the film turned me a little crazy and I had a breakdown. Now, though, I can look at the film and like my work in it.... I felt humiliated and to be honest, I felt a little raped, both by Marlon and by Bertolucci... After the scene, Marlon didn’t console me or apologize. Thankfully, there was just one take."

Maria Schneider, dead at 58.

Will the Supreme Court accept an Obamacare appeal without waiting for a Court of Appeals decision?

That's what Virginia attorney general Kenneth Cuccinelli is attempting to make happen in Virginia v. Sebelius.

Rule 11. Certiorari to a United States Court of Appeals Before Judgment
A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require im mediate determination in this Court. See 28 U.S.C. §2101(e).

It is extremely rare for the Court to grant certiorari before judgment of a court of appeals.... A quick Westlaw search (in which I certainly may have missed something) indicates that the last time the Court did so — setting aside cases in which the Court took a case and consolidated it with another one coming from the court of appeals, or simply granted cert to vacate and remand in light of a recent decision — was 23 years ago in United States v. Mistretta. There, the district court had declared the newly minted U.S. Sentencing Guidelines unconstitutional as a violation of separation of powers. And the need for quick judicial resolution was extremely pressing — it affected the sentencing of every single federal defendant in the country.

What is the argument for urgency here? So much effort and money are being wasted if it is in fact the case that the reform is void. 

At the Cheesehead Café...

(Enlarge to read.)

... bring out your inner cheesehead.

"Charlotte charred by FLOTUS roast reference."

Okay, now there's a headline. I'm choosing to blog it before even reading the article. Sounds like something terrible and First-Lady-related is going on in the southern city. But what? Let's see. It seems the city of Charlotte, North Carolina was chosen as the site for the 2012 Democratic convention. Check. Michelle Obama sent out an email listing some nice things about Charlotte: "southern charm, hospitality, diversity — 'And of course, great barbecue.'"

But it turns out the great North Carolina barbecue isn't actually in the city of Charlotte.

A local Associated Press reporter quoted a barbecue expert, retired University of North Carolina professor John Shelton Reed, who said that Charlotte for barbecue was "like Minneapolis for gumbo."

The gaffe was enough to make you wonder whether the White House had simply cut and pasted Southern clichés to create the first lady's announcement.

Well, you can un-paste the one about "southern charm."

"Otherwise known as a 'Jump-the-Shark' martini?"

Comment #4 on this NYT food blog item which rhapsodizes insanely about a "grilled cheese and tomato soup martini":

Shawn Soole, a crack bartender from Brisbane, Australia... starts with his own batch of “grilled cheese rum” — dark, viscous Mt. Gay “washed” overnight with a real-live grilled cheese sandwich, a seeping process to extract essential flavors and infuse them into the rum, before adding fresh-muddled tomato and basil, salt, Lillet Blanc and Glenfiddich Scotch whiskey. The effect is extraordinary: the grilled cheese rum leaps off the palate with flavors of cheddar, bread and butter, mingled with a dark sweetness, while the Lillet Blanc prevents the texture from veering into Bloody Mary territory. Topping the cocktail off with a drop of Glenfiddich adds a hint of off-the-grill smoke and evokes sipping, grilling and dunking.

There's a gut-wrenching/laughable recipe at the link.

ADDED: Why not just make yourself a grilled cheese sandwich, heat up some Campbell's Tomato Soup, and pour yourself a big tumbler of rum? Or if you want to be snobby, make a real martini: It's gin + vermouth. That's a martini.

How Patrick Leahy saved Charles Fried from revealing that many law professors think judges should decide constitutional questions to produce the best policy consequences.

At yesterday's Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act, Republican Senator Charles Grassley asked what you might think is a very basic question: "And do you think that judges should decide cases based on their best understanding of the meaning of the Constitution or on whether they think their rulings would have good or bad policy consequences?"

The witnesses — Oregon Attorney General John Kroger, lawyer Michael Carvin, and law professors Randy Barnett, Walter Dellinger, and Charles Fried — all immediately agreed [ADDED: with the first option].

Grassley, who was running out of time, added, "Obviously, it's good to have that understanding, that we're a society based upon law and not upon what judges just happen to think it might be." 

It was Senator Leahy's turn at that point, and he began, spontaneously, off-script:

LEAHY: Actually, on that last question, Professor Fried, do you know anybody that disagrees with that, whether the left or the right?

FRIED: Well...

LEAHY: I mean...

FRIED: Yes, I'm afraid I do.

LEAHY: They don't admit it. But do you know anybody who should disagree with it?

FRIED: Not a soul.

LEAHY: I thought you might feel that way.

Now, Fried is a professor at Harvard Law School. Of course, he knows lots of people who think judges should decide cases based on "whether they think their rulings would have good or bad policy consequence" and not on some sort of "understanding of the meaning of the Constitution." I'll bet he knows many people whose understanding of the meaning of the Constitution already automatically is: whatever would have good policy consequences.

But when Leahy says "They don't admit it," Fried does not answer. Fried was saved from having to admit that he knows plenty of people — I'll bet he does — who would proudly admit it. I know law professors who not only admit it but trash you as naive or evil if you won't go along with them.

Leahy moves quickly to another question thus closing the uncomfortable opening: "But do you know anybody who should disagree with it?" Ah! The relief of the word "should"! If he had said "does," Fried would, in all likelihood, have had to say "yes." But Leahy said "should," and Fried could say "Not a soul." And Leahy could totter ahead onto his prepared script. Whew! That was a close one!

(I'm sorry I don't have a transcript to link to. Here is video of the event.)

"There's a misimpression out there that... federal agents arrive in black helicopters dressed in fully equipped armed ninja costumes, kick down your bedroom door and drag you off at the point of bayonets to an insurance agency."

... hyperbolized lawprof Walter Dellinger at yesterday's Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act. (Video here.)

In fact, what -- all that happens is that for those who are not otherwise exempted and -- when they're filling out their federal income tax return, if you're not maintaining minimum coverage, you have to pay an additional 2.5 percent, much less than Social Security. That's all that happened.

So in that sense, this great intrusion on liberty doesn't approach any slippery slopes or exceed any understood limits in our legal culture. 

I thought the point of worrying about approaching slippery slopes is that we would otherwise accept one incremental intrusion after another and never see fit to draw the line and, thus lulled, we would lose our liberty.

Why does the left hate free speech?

Because they don't know how to talk about the substantive merits when they are challenged. Having submerged themselves in disciplining each other by denouncing any heretics in their midst, they find themselves overwhelmed and outnumbered in America, where there is vibrant debate about all sorts of things they don't know how to begin to talk about. They resort to stomping their feet and shouting "shut up"... when they aren't prissily imploring everyone to be "civil."

UPDATE: Scott Lemieux, the blogger I linked to above, has written a new post in which he might think he's responding to my challenge and providing substance rather than crude denouncement. If you can slog through his laughably poor writing — "It’s not just liberals but Althouse herself who don’t believe in the standards of free speech she criticizes 'liberals' for not practicing" — you'll see he's come up with 3 links to posts of mine which supposedly show that I don't have principled free-speech values. Follow those links and see what I actually wrote.

My snow-walk...

... around the neighborhood today.

The Senate Judiciary Committee has a hearing on the constitutionality of the health care law.

Oh, look! They're finally paying attention to a little technical matter they ought to have taken account of a year or so ago.



Watch with me.

"Very few people are really supportive of free speech, whether they're liberals or conservatives..."

"... The First Amendment for many years played the role, when it triumphed in the courts, of protecting the speech of people who tended to be on the left—so it was minorities or the powerless in our society. The liberals on the Supreme Court today would still protect those people and their rights... What's changed is that conservatives found some causes which they have used to vindicate genuine First Amendment rights."

So said the great First Amendment lawyer Floyd Abrams — in an interview, a year ago, with James Taranto, who just emailed me, a propos of my blog post today, "When did the left turn against free speech?"

"The only people for me are the mad ones..."

"... the ones who are mad to live, mad to talk, mad to be saved, desirous of everything at the same time, the ones who never yawn or say a commonplace thing, but burn, burn, burn, like fabulous yellow roman candles exploding like spiders across the stars and in the middle you see the blue centerlight pop and everybody goes 'Awww!'"

A sentence written by Jack Kerouac, submitted in a contest to pick the best sentences, chosen as one of the 3 best sentences, by Stanley Fish, who has written a book called "How to Write a Sentence: And How to Read One," which I just bought, and you could buy too, using this link, causing Amazon to send 8% of the purchase price to me and making me go "Awww!"

Most sex is bad sex, right?

It's important to draw a line between rape and bad sex. And watch what you sext...



And maybe I should watch my own on-camera gestures...

At the Springtime Café...

... can't you see we're almost there?

"Punxsutawney Phil predicts early spring."

It's Groundhog Day.

Have you never noticed why it makes perfect sense to consider the beginning of spring on this day in the beginning of February, which seems like the middle of winter? I submit that it really is the end of winter, if you understand winter properly, in terms of the deprivation of light, as opposed to warmth. It's the darkness that hurts. The cold is bracing. Put on a fuzzy sweater!

Officially, winter begins on the solstice, but that is the darkest day of the year. If you care about light, half of the darkest days are already over when winter officially begins. And the phenomenon of each day getting darker is completely over. Winter understood in terms of darkness would put the solstice at its center and extend a month and a half in either direction. Thus, if the solstice is December 21, as it was this year, then true winter — light-sensitive winter — began around November 6 and ends a few days from now, around February 5th.

Kids, it's Spring! Wake up and smell the daffodils!

Photography in the delivery room — parents feel like they have a right...

... and the doctors and hospital staff don't like doing their work on camera.

Many hospitals allow and even encourage recording because modern cameras, particularly those taking video, are so unobtrusive. But that same technology has introduced a wild card into a fraught scene that could shock a jury — with the mother screaming and staff responding (or not) to what may look like an emergency — all of which can be edited to misrepresent what actually took place....

“When we had people videotaping, it got to be a bit of a media circus,” Dr. Tracy said, adding that the banning of cameras evolved through general practice rather than a written policy. “I want to be 100 percent focused on the medical care, and in this litigious atmosphere, where ads are on TV every 30 seconds about suing, it makes physicians gun shy.”...

Dr. Elliott Main, chairman of obstetrics and gynecology at California Pacific Medical Center in San Francisco, which also allows filming of births, said, “The modern approach is not to ban cameras but to do drills and practice.”

“Where you get into trouble is where people panic or don’t know what to do next and have blank looks on their faces,” he said. Videotaping simulated births, he said, can help the medical staff adjust their behavior.

Now, part of medical training is: Acting!

Look like you're doing the right thing, even when you're confused and you know you're hurting someone. That would be a good approach even without the cameras, but medical personnel — like politicians — need to adjust their demeanor and expression for the world of YouTube.

"Now that the law is 'dead,' will Wisconsin return the money or rebuff any other federal grant money?"

"Will other state governments declaring the law dead do the same? If so, how much money do they stand to lose? How will this impact their consistuents [sic]? It's a pretty worthwhile line of inquiry."

Well, yeah, it sure is. Congress larded the 2,000-page bill with so much spending that we're supposed to be so fat by now that we can't do anything more than roll over and submit to any unconstitutional excesses of power that came with the lard. How dare Wisconsin's Attorney General stand up and say no?!

***

I put "sic" up there because I assume "consistuents" is a typo, not a portmanteau, a deliberate incorporation of "sissy."

When did the left turn against free speech?

One of the commenters declares that my "assertion that 'the best test of the truth is its ability to get accepted in the marketplace of ideas' was probably the most offensive part of her argument." When questioned about whether I really said that, he comes back with:

She cited a Justice whose name I haven't retained, as in: "As Justice X says, ..." followed by the verbatim passage I quoted.

She cited a Justice whose name I haven't retained.... Oh, for the love of God, why doesn't every educated person in America know the name of the Supreme Court Justice who said that... or at the very least know that it's embarrassing not to know? As if I'd thrown out some abstruse legalistic peculiarity!

And that was part of an argument by the commenter — echoing Bob Wright — that free speech is too dangerous because it might be false and it might inspire bad people to act out in terrible ways.

Remember when lefties were all about free speech? When did that change? Why did that change? Perhaps the answer is: Free speech was only ever a means to an end. When they got their free speech, made their arguments, and failed to win over the American people, and when in fact the speech from their opponents seemed too successful, they switched to the repression of speech, because the end was never freedom.

How are you dealing with the national blizzardification?

Here's what it looked like when I opened the door this morning:



That made me laugh, even though I'd already seen the view from the window:

"The juxtaposition between the portrait of this girl against the ad featuring a portrait of Krauthammer is intolerably jarring."

Wrote Chip Ahoy in the middle of the night when this was the top post. And he didn't just complain. He did something about it. He "reconciled" the photographs in a girlKrauthammer mashup:

"Why Egypt's Revolution Is Not Islamic" — Part 2.

On Monday, I linked to and we discussed this article by Haroon Moghul. Today, he's on a new Bloggingheads. Topics:

The revolution in Egypt is not Islamic
A primer on the Muslim Brotherhood
The Brotherhood in America
Conservatives fight against Islamic organizations in the US
What Shariah is and isn’t
How Egypt could reduce American Islamophobia

I haven't listened yet, but I was impressed by the article and am interested in hearing him questioned about it.

ADDED: Moghul's interlocutor is Sarah Posner, who has written about "The Roots of the American Right’s Muslim Brotherhood Panic." Yesterday, I listened to Rush Limbaugh (which I always do) and watched Glenn Beck (which I'd never done for more than 5 minutes) and thought they were making overconfident statements about things they were only guessing about.

At the Sweet Child Café...

(Enlarge.)

... you can be as sticky sweet and maudlin as you like.

3 Madison things.

1. We're having a blizzard. Classes canceled tomorrow. Meade's watching the basketball game on TV — the Badgers are playing downtown tonight. The announcer explains the cheer from the crowd: They just saw the news that classes are canceled tomorrow.

2. Eating in Madison A to Z put up its review of the new restaurant 43 North, and Meade and I went along with JM and Nichole for that one.

There were rolls served with butter and oil in three square glass dishes. The rolls were also squarish, with a very airy crumb and a shiny, leathery crust that was especially hard on the bottom. The butter was from Wolf Ridge (if we recall correctly) and came in two forms: slightly chilled and set, or powdered with tapioca flour. The oil was also served as a powder. Ann nailed it: the lipids were the Dippin' Dots of bread toppings.

3. Larry Kaufmann lambastes that play we were talking about the other day:
The dialogue between the lefty grad students and these conservative adversaries is also about as subtle as a flying mallet. These conversations are the heart of the play and lead to the murder of four of the five grotesque conservative thugs; only a seventeen-year old girl promoting abstinence is deemed too young to kill (kind of like not imposing the death penalty on minors, I suppose)....

I demonstrate ladylikeness with a Badger hat and Green Bay Packers cheese.

I take on Bob Wright in the "Underhanded Humiliation Edition" of Bloggingheads.

Topics include: snow, Egypt, the Constitution (as political argument and as possibly not violated by Obamacare), gun rights, sex and violence (and Jack Nicholson), comparative quarterbacks (with a bonus display of my Aaron Rodgers cheese), and a gigantic blow-up over Glenn Beck and freedom of speech.

"Black History Month: What I've Learned."

"From Al Sharpton to Al Green, seventeen headliners reflect on the journey, the experience, and the future of being a black man in America."

Rachel Maddow thinks she's so sharp and funny that...

... she fails to see that other people are sharp and funny too and mocks a satire as if it were serious. Embarrassing. At least she humbly acknowledges the mistake... unlike some people:

Maddow's humility sparkles in comparison to The Huffington Post's, which upon being duped by ChristWire last August, simply erased parts of the article that showed they weren't in on the joke. In that instance, ChristWire had published an advice guide for women on how to tell if their husbands are gay.

"I closed the comment thread, as it featured the same commenters making the same comments that they have each made several dozen times before."

Orin Kerr kicks comment ass.

(And also explains the Necessary and Proper Clause in connection with the new health care law case.)

"On Twitter, folks have started using the Slate-created hashtag #sadbook to tweet about how Facebook makes them sad."

And what am I supposed to tweet if that makes me sad?

All I need is a big bottle of syrup...

... can sit down to Madison's biggest sno-cone.

I'll have caramel!

"You know, I have to admit that I look at the 46″ TV in my basement — which seemed huge a couple of years ago..."

"... and now I think 'Hmm, maybe a 60″ would be nice.' Is that wrong?"

It's not wrong, but have you ever noticed you can make the TV you already have bigger by just scooting your chair closer? Only get a bigger TV if you watch with enough other people to make it impossible or inappropriate to move your chair forward. But if you do want to buy a new TV, get a nice one. Go all out if you can and get something extravagant that just became available today. If you're watching alone or with one other person, and you want bigger, but you're thinking of getting a relatively ordinary but larger TV, may I suggest these?

Judge Vinson's utterly mundane opinion striking down the health-care law.

Here's the text of Judge Vinson's opinion in Florida v. United States Department of Health and Human Services. It's 78 pages long but quite clearly written, and much of it summarizes the Supreme Court case law. If you don't know the cases, I think you'll find that part readable. If you do know the cases, I think you'll find that part easily skimmable. The meat of the opinion begins at the bottom of page 37, and it follows arguments that should be familiar if you've been reading about the litigation.

Applying the case law to the facts, Vinson focuses on the problem that the individual mandate to buy health insurance reaches individuals who are not engaged in any economic activity. The Supreme Court case law doesn't answer the question whether Congress can require action of those whose inactivity can be characterized — when you take all the inactive people in the aggregate — as having a substantial effect on interstate commerce. I think when the case reaches the Supreme Court (assuming it does), there will and should be more creative arguments about fine-tuning the doctrine, but the district judge has no option other than to apply the case law to the new situation: "I am required to interpret this law as the Supreme Court presently defines it."

Vinson decides that Congress cannot reach inactivity, basically making the simple and straightforward point that we have a system of enumerated powers, and if Congress could reach inactivity because of its economic effect, then it would seem that Congress could regulate everything. There has to be some limit, so the line should be here. I don't think the line does need to be there, since one could stress the extreme degree of the effect on interstate commerce and the great value of designing a coherent system of paying for health care by taking account of the entire, interrelated system of health care services, including the potential future demands on it that everyone represents, even if they happen to be nonconsumers right now. Why not say that is within Congress's power, yet other things remain beyond its power? That too would preserve the structure of enumerated powers. I don't think, in the end, the Supreme Court will be at a loss to articulate a line that includes regulation of the entire enterprise of paying for health care, including health care for people who resist buying it, hoping for continued good health, enough savings to cover future expenses, or free care financed by the rest of us. Distinguish other kinds of inactivity, and it would preserve the idea that something must be outside of Congress's power.

Vinson does engage with this idea, but he's limited by the need to abide by the Supreme Court's case law. Under that constraint, he talks about whether the "uniqueness" of the health care market somehow transforms inactivity into activity. (This discussion begins at page 45.) He refutes uniqueness by coming up with additional examples of markets the individual can't choose to opt out of — housing and food. But housing and food aren't much like health care. They do depend on our all having bodies, but we always need housing and food. Health care is the one thing that you're tempted to think you can get by without, but you might get hit with a huge expense that you can't possibly cover. If you don't buy insurance, you're gaming the system, and some of the people who game the system will take advantage of the rest of us who participated. It really is different from housing and food. You've got constant pressure on you to provide for those things.

Finally, there's the Necessary and Proper Clause, which was key to Justice Scalia's joining the liberal members of the Court in approving of Congress's power to ban possession of marijuana (even in the home-grown, state-approved-medical-use situation). And there's the issue of severability. I'm going to save those topics for separate posts.

My point here is that Judge Vinson has produced a workmanlike application of the Supreme Court case law devoid of flights of creativity, as befits a district court judge.  Politicos who froth about what an extreme activist he is are trying to cow the judiciary into approving of the law because it's a big fucking deal.