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.