July 2, 2005



Originally uploaded by John Cohen.
John blogs a cup of coffee. In Paris.

UPDATE: What am I saying? John Flickr's a cup of coffee, which I then proceed to blog. I've got the whole "coffee blogging" meme on the brain, because the local Madison bloggers keep talking about coffee blogging. It's the thing around here. Not in Paris.

ANOTHER UPDATE: See the comments. Tonya wants recognition for her early, seminal critique of coffee-blogging.

Let's not stay here.

This is, apparently, a hotel. In Paris.

Underwhelming hotels (1 of 6)

Drawing a face.

We had dinner at Macaroni Grill again, and both of us picked up the crayons and drew furiously on the butcher paper as we waited for the food. Despite the lack of blue or purple (or black) crayons, I tried a quick portrait of Chris. Then, the first food came and the soup had a face drawn on it:


Dig in, Chris:


In the ancient hills.

Today, I drove up to Natural Bridge State Park, up in the ancient, ancient Baraboo Hills:

Natural Bridge State Park

If you need a mental picture of Wisconsin. That is the picture.

I walked up to see the thing that made them make this a state park:

Natural Bridge State Park

Years ago, they excavated this area at the base of the bridge and found evidence that human beings found shelter here 12,000 years ago:

Natural Bridge State Park

People carved off a slice of mastodon to gnaw, right here, once, long ago.

Slide show.

Still wondering about the Piano Man?

You know: the man who found wearing a soaking wet suit in Sheerness, Kent, in April, and who soon thereafter drew a picture of a piano and, when brought to a piano, sat down and played a 4-hour virtuoso performance. Here's a new update. They are investigating 200 names they think might be his, and he seems to be "more responsive" when spoken to in Norwegian. Ah, poor Piano Man! Our heart goes out to you.

Crushing "liberal dreams" of "some heightened feminine compassion."

Dahlia Lithwick has this piece delving into the "mystery" of Justice O'Connor. People expected a female to bring extra "heart," "compassion," and "empathy" -- Litwick uses all three words -- to the Court:
Suffice it to say, Justice O'Connor is a huge mystery to most women of my generation. How could someone who blew open doors for generations of women after her show so little empathy to female victims of violence in the 2000 case of United States v. Morrison, for instance, where she joined with the court's conservatives to invalidate the Violence Against Women Act, or to teenagers facing the death penalty in Roper v. Simmons last fall?
On that last question, let me offer this passage from O'Connor's dissenting opinion:
Christopher Simmons’ murder of Shirley Crook was premeditated, wanton, and cruel in the extreme. Well before he committed this crime, Simmons declared that he wanted to kill someone. On several occasions, he discussed with two friends (ages 15 and 16) his plan to burglarize a house and to murder the victim by tying the victim up and pushing him from a bridge. Simmons said they could "'get away with it'" because they were minors. In accord with this plan, Simmons and his 15-year-old accomplice broke into Mrs. Crook’s home in the middle of the night, forced her from her bed, bound her, and drove her to a state park. There, they walked her to a railroad trestle spanning a river, “hog-tied” her with electrical cable, bound her face completely with duct tape, and pushed her, still alive, from the trestle. She drowned in the water below. One can scarcely imagine the terror that this woman must have suffered throughout the ordeal leading to her death.
I read plenty of empathy there. Simmons was 17 when he did these things, and the jury that condemned him to death was allowed to take his youth into account as one of the factors. It just wasn't enough in his case. [ADDED: And shouldn't this count as "empathy to female victims of violence," even though it's not in the official "Violence Against Women" case?]

But why are we demanding extra empathy from women in the first place? Is this supposed to be a feminist critique of O'Connor? I have a feminist critique for anyone who wants to see a special women's version of the law. Lithwick grudgingly and mushily offers some good words for O'Connor in the end -- even as she identifies Ruth Bader Ginsburg as the better woman. But Lithwick's overall message is clear:

Women are supposed to be liberals.


The man who penned the ultimate tabloid headline, William J. Brink, has ... well ... dropped dead.
Set in huge bold letters, the headline screamed across Page 1 of the paper on Oct. 30, 1975. In six taut syllables, it brought home its message with the power of a knockout punch: At the height of New York's fiscal crisis, President Gerald R. Ford had declined to bail the city out.

Those six syllables, as Mr. Ford later acknowledged, almost certainly lost him New York State in his 1976 race against Jimmy Carter, and with it, the presidency.
Powerful. The pen is mighty.

The NYT, which had to resist saying Brink "dropped dead," does poke fun at itself:
The corresponding headline in The New York Times that day, FORD, CASTIGATING CITY, ASSERTS HE'D VETO FUND GUARANTEE; OFFERS BANKRUPTCY BILL, remains unsung.

Speaking of picking a new Supreme Court Justice...

Why not switch to a system of electing them? There's a new book proposing exactly that, and I have a review of it in -- of all places -- The New York Times.

Thanks and goodbye, Justice O'Connor.

I feel a little guilty about jumping into all the speculation about who's going to replace Sandra Day O'Connor on the Supreme Court without going through a stage of respectful celebration of the grand judge.

Was that wrong? Is it like reacting to news of your husband's death by talking about your dating prospects? Or is it a healthy focus on the future? Or is it just exactly the response the Justices themselves have earned by holding their seats so long and not giving us the new-Justice experience often enough?

But do I feel like celebrating judges? I have spent my entire professional career trying to understand the writings of Justice O'Connor, who became a Supreme Court Justice in 1981, the year I graduated from law school. I remember having a conversation with my father about President Reagan's promise to appoint the first woman to the Supreme Court. Even though I hadn't been a Reagan supporter, I believed the promise. My father, who seemed to think it was his job to teach me to be cynical, assured me Reagan was going to appoint William Bradford Reynolds. I was glad to have a woman Justice at last -- and simultaneously, to beat my father (and his cynicism) in an argument.

When I started teaching law school, the first case I spent a lot of time thinking about, as I developed an interest in federalism, was the 1983 case of Michigan v. Long, for which O'Connor wrote the majority opinion. (Long is a case that presages Bush v. Gore: despite the dissenting Justice's pleas for federalism-based deference to state courts, the Court finds reason to review and reverse.) I have spent many, many hours poring over O'Connor opinions: she was the key voice in the Court's writing about federalism in the early 90s, before federalism became a more central concern for the Court.

Three cases that were important in the development of the Supreme Court's federalism and written by O'Connor were in New York v. United States (1992), Gregory v. Ashcroft (1991), and Coleman v. Thompson (1991). Coleman begins with the line: "This is a case about federalism." (It should be noted that Gregory, the oldest of this trio of cases, cites and relies on the ideas in Michael McConnell's brilliant article Federalism: Evaluating the Founders' Design, 54 U. Chi. L. Rev. 1484 (1987), just one of the many reasons McConnell belongs in the seat O'Connor is vacating.)

But I've spent too much of my life puzzling over O'Connor opinions to go into celebration mode. I like all the Supreme Court Justices well enough. I have defended each one of them in turn when I've heard them scoffed at or criticized too sharply. They have a hard job, and they do it diligently for the most part. But they must love their work, for whatever reasons, to keep at it as long as they do. They are human beings, and we need to rely on human beings to do the work of government. The Justices, like all human beings, have their weaknesses, and I assume one reason they hold their jobs as long as they do is that they enjoy the power and the prestige. Instinctively, I resist heroizing people who have that much power. We need to watch the powerful closely to see if they abuse their power. It's just not in me to love and admire these people. My thoughts about a retiring Justice are about the work that he or she did. I've been reading and writing and talking about this person's writings for years, and now the final case has been written. The oeuvre of Sandra Day O'Connor is complete.

I was struck by this article in Reason, interviewing various people about who their "favorite Justice" is. (Those who clerked for a Supreme Court Justice and picked "their" Justice -- well, isn't that like having your favorite song be the song that was playing the first time you had sex? It's just not information for me about whether it was a good song. But how nice for you.) Reading the Reason article, I realized that it doesn't come naturally to me at all to think in terms of a "favorite Justice." I'd be hard pressed to tell you who appeals to me the most in the current group or in the larger historical group. There isn't enough direct expression of an individual in a Supreme Court opinion to reach out to me and win favor for the person. And there really shouldn't be. The opinions represent groups and are written to interpret and accord with texts. One can discern a certain style of reasoning in each of the Justices, certain sympathies and weaknesses, and these things are helpful in understanding the cases, but in the end Supreme Court Justices are pretty gray characters.

Still, Sandra Day O'Connor was one of the most colorful. I loved reading the very colorful story of her life growing up on a cattle ranch. I'm sure she's a fine person and I appreciate the work she's done for us. So thanks and goodbye, Justice O'Connor.

"What the hell was going on in the 3rd century?"

Do you ever go to a bar alone... and read? And if you do, do you read books that you'd feel weird about showing to a stranger who asks what you're reading? And if you do and a stranger does, do you end up having a long conversation about the Gnostic gospels?

July 1, 2005

Things are going Schwimmeringly for Tonya in London.

And she gets a nice closeup photo of his fleshy face, part obscured by a camouflage hat. (What is that gray and black camouflage for? A polar shoreline?)

UPDATE: Bad link fixed.

At the TV studio.

I like seeing the inside of a TV studio. Spacious, colorful, full of cables and equipment, with an exuberant, well-lit set at one end:

At the WISC-TV studio.

At the WISC-TV studio.

Take a wild guess what we were talking about.

"Find your own 'Let there be'!"

RLC pictures a school for gods -- "divinity school" -- with the gods-in-training working on the intelligent life assignment.
“They’re flexible, see? They don’t do anything all that well, they’re not committed to any one thing, so they can do anything. It suddenly occurred to me -- don’t think about where they come from, think about where they’re going. Give them less to start with, and they’ll have to hurry up and do more. And don’t make them all that intelligent, either -- that costs too much. Just smart enough to survive and spread. I think I can save quite a lot on the budget with this one, Sir, and plow it back into things like -- oh, I don’t know. Hubris."
Maybe this could be a TV show to replace "Joan of Arcadia."

Defining "midlife crisis."

We're having a little debate here about the meaning of "midlife crisis." Here's the Wikipedia definition to get you started:
A mid-life crisis is an emotional state of doubt and anxiety in which a person becomes uncomfortable with the realization that life is halfway over. It commonly involves reflection on what the individual has done with his life up to that point, often with feelings that not enough was accomplished. The individual may feel boredom with their lives, jobs, or their partners, and may feel a strong desire to make changes in these areas. The condition is also called the beginning individuation, a process of self-actualization that continues on to death. The condition is most common in people in their 30s and 40s, and affects men more often than women.

Clearly, that definition needs some tweaking, but what do you think? Is this a useful term to an individual reflecting on his or her own life? Do you feel better or worse or different about your situation if someone characterizes it as a "midlife crisis"?

Here's something I wrote in the course of this little local debate I'm referring to:
I think the MLC is when you are married and living complacently and then you start taking risks violating conventions because you don't want to be that kind of person anymore. Once you're out of the marriage, the crisis is over. You're just adapting to new conditions in a normal way. Having problems and bad feelings is normal life, not a crisis.
What do you think?

UPDATE: Terry Teachout takes "midlife crisis" to have a broader and more serious meaning than I do, which will please at least one participant in the local debate I've alluded to. I take the feeling he describes seriously, but I still don't like the term "mid-life crisis" for it. The term has an unserious tone to my ear, like the old "identity crisis." Teachout's concern is confronting the reality of death, however, and the person I have been debating with locally is chafing at the inadequacies and boredom of ordinary life. My local interlocutor wants to break out and change all sorts of things (but is not doing anything very unsual), and Teachout is talking about coming to terms with a reality that he has zero potential to change. The similarity is a feeling of wanting to live -- in some fuller way than seems currently available.

Where O'Connor was the fifth vote.

Marty Lederman is compiling a list of important cases. Key issues in play: affirmative action, regulations limiting abortion (not the abortion right itself), Establishment Clause.

A little TV.

If you're in Madison: I'm going to be on "Live at 5" today, talking about the O'Connor retirement.

If Bush picks a very strong conservative to replace O'Connor, I predict...

... that Justice Kennedy will become a reliable liberal vote. This prediction is based on my belief that there is small group dynamic at work on the Court that tends to produce moderation.

This prediction was inspired by Orin Kerr's observation:
O'Connor's retirement may shift the Court a lot less than people think. In the big ideological cases of the last Term, Justice Kennedy was the swing vote as often as (or maybe even more often than) Justice O'Connor. Let's assume for now that O'Connor is replaced by a consistently more conservative Justice; even if that's true, the left-of-center Justices presumably still have 4 very reliable votes and a good shot at picking up a 5th vote with Kennedy. Plus, new Justices are hard to predict, and it's often hard to tell whether a new Justice will vote consistently one way or another.

What does the O'Connor retirement suggest about a possible Rehnquist retirement?

Orin Kerr has a bunch of questions on the occasion of the O'Connor announcement. Here are the related questions #3 and #4:
3. The big question now is whether the Chief will announce soon as well. I'm not sure whether SOC's retirement makes the Chief's more or less likely — any thoughts?

4. Interesting that after years of SOC retirement rumors, she retires after a Term in which most people were looking to another Justice to retire.

I think we should still expect the Chief Justice to retire and see the retirement of O'Connor as a sign that the retirement is more likely. I know in the past Justices have waited a year to let the attention be given to another retiring Justice -- at least that was the case when Justice Blackmun retired one year after Justice White. But that was back at a time when there were a lot of retirements in succession. I think that now, with all these long years without a vacancy, processing two nominees together would help the transition.

The political arena is going to go absolutely wild even over one new Justice, and it seems to me that having two to confirm at once would be a way to control and manage the emergent hysteria. There would be more leeway in political negotiations with two vacancies, and less attention to the very specific interest in replacing the first woman with another woman. And we could have one crazy summer instead of two. Whether easing the political battle is a factor the Chief would or should take into account is another matter.

From William Rehnquist's personal perspective -- not that it's for me to say -- it would seem that he's lived with and accommodated himself to a familiar group for so long, that it would be difficult, especially for an older, ailing person, to deal with a newcomer. Perhaps not. Perhaps it would be energizing to welcome a new colleague, a fresh, young ally. Frankly, if I were old and ailing, I might want to stay in the thick of stimulating, new experiences.

"So this is almost as if God has spoken. It's an elementary discussion now. They have made the decision."

So said Nancy Pelosi about the Supreme Court's decision in Kelo, and everyone's been exclaiming over her statement ever since. Yes, of course, it was an incredibly dumb way to express respect for the Supreme Court's role in saying what the Constitution means.

But, for one thing, Congress can change the outcome in a case that limits constitutional rights by creating statutory rights (assuming it has an enumerated power to rely on and doesn't violate any affirmative constitutional restrictions).

And, for another thing, God doesn't submit a resignation letter.

So now the author of the principal dissent in Kelo has resigned. But the chances are slim that the new appointee will vote on the other side. I expect to hear Kelo mentioned a lot in the debate over the new nominee.

O'Connor resigns!

Thrilling excitement is unleashed!

Here's the text of the resignation:
"This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor. It has been a great privilege indeed to have served as a member of the court for 24 terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure."
This is so much more significant than Chief Justice Rehnquist retiring, because replacing her vote will dramatically change the power balance on the Court.

I am all atremble!

If you're legally required to do half of the housework, who defines what the whole is?

There's a new Spanish law requiring men to do half of the housework. (Via Memeorandum.) And yes, it's ridiculously intrusive, weirdly unenforceable, and unfairly blind to whether the man works more outside the house, but what really bugs me is that requiring half assumes you know what the whole is.
While Spain's women daily perform at least six hours of housework, men clock up only 44 minutes - plus 51 minutes of childcare to their spouses' daily average of six hours.

What?! Do American couples spend 88 minutes a day on nonchildcare housework? Spanish men are supposed to do half with the whole determined by the bizarre six hours that the women spend? I say the women should just cut back to 44 minutes, leave the men alone, and reach equality by a far, far happier method.

More than 12,000 Bangladeshi children are needlessly blind.

Here are some nice pictures of ones who have had their sight restored.

A more profound manifestation of the Parisian.

Originally uploaded by John Cohen.
I like the way John captured multiple crosses in this image.

(Click to enlarge.)

Ne pas toucher!

Originally uploaded by John Cohen.
I love this picture from Paris, where my son John is participating in the Cornell Law School summer program.

What passage in Revelation did Marlon Brando circle?

This one:
"The merchandise of gold, and silver, and precious stones, and of pearls, and fine linen, and purple, and silk, and scarlet, and all thyine wood, and all manner vessels of ivory, and all manner vessels of most precious wood, and of brass, and iron, and marble . . ."
That's Revelation 18:12. We know this because his personal effects were put up for auction, including his Bible. Here's the report in the WaPo, written by Robyn Givhan, who scoffs that "pop psychologists, street-corner ministers, literary deconstructionists" can now "have at" the marked-up Bible.

In case you want to interpret the mind of Brando, based on that circled passage, here it is in context, which is that all the riches in the city of Babylon are burning:
15 The merchants of these things, which were made rich by her, shall stand afar off for the fear of her torment, weeping and wailing, 16 And saying, Alas, alas, that great city, that was clothed in fine linen, and purple, and scarlet, and decked with gold, and precious stones, and pearls! 17 For in one hour so great riches is come to nought. And every shipmaster, and all the company in ships, and sailors, and as many as trade by sea, stood afar off, 18 And cried when they saw the smoke of her burning, saying, What city is like unto this great city!

Forget the mind of Brando for a moment, what about the mind of the person who, setting up this exhibit, decided to display the Bible opened to that page? I'm thinking that person meant to criticize the people who had become merchants of these things -- and the people who came to gawk at them.

"It's the most un-American thing that can be done."

That's from Representative Maxine Waters -- about eminent domain. She's speaking on the subject as Congress considers ways to put a clamp on local government power -- recognized by the Supreme Court -- to take private property to use for economic development. The linked article, in the Washington Times, repeatedly calls this a "new" power and states the holding of the case laughably badly:
Last week's Supreme Court decision in Kelo v. City of New London created new eminent domain powers to allow local governments to take private property from its lawful owner and give it to a private developer who promises to generate greater tax revenue with the land.

The new powers of eminent domain -- long reserved for taking property only for public use such as highways -- could be used to build developments such as privately owned strip malls or motels.

I guess we have the actual case and the myth of the case. Congressional rhetoric predictably uses the mythic version. Tom DeLay spouts:
"The Supreme Court voted last week to undo private property rights and to empower governments to kick people out of their homes and give them to someone else because they feel like it," said House Majority Leader Tom DeLay, Texas Republican. "No court that denies property rights will long respect and recognize other basic human rights.

Could people try to remember what the Court actually did in the Kelo case? It rejected a bright-line rule that would have said economic development never counts as part of the public use for which property can be taken. Horrible exercises of eminent domain of the sort DeLay refers to here were left to be decided in particular cases when they actually arise. Justice Stevens wrote:
It is ... argued that without a bright-line rule nothing would stop a city from transferring citizen A’s property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, the hypothetical cases posited by petitioners can be confronted if and when they arise. They do not warrant the crafting of an artificial restriction on the concept of public use
If Congress is so outraged about the abuse of power, why isn't it outraged by its own behavior when it wields the great legislative power of the federal government without bothering even to try to accurately describe the problem it means to address?

UPDATE: Here's the WaPo report on the bill the House passed:
The House measure, which passed 231 to 189, would deny federal funds to any city or state project that used eminent domain to force people to sell their property to make way for a profit-making project such as a hotel or mall....

The measure, an amendment to an appropriations bill, would apply to funds administered by the departments of Transportation, Treasury, and Housing and Urban Development. House Majority Leader Tom DeLay (R-Tex.) and Majority Whip Roy Blunt (R-Mo.) said they will push for a more inclusive measure that would apply to all federal funds.

A fact sheet said under the bill the locality or state would "lose any federal funds that would contribute in any way to the project the property would be taken for."
No, no hypocrisy here is there? Did they pause anywhere in all of this and ask whether they had the power to do this? How is this not a flagrant violation of Congress's spending power? Why not condition all federal spending on state concession of whatever autonomy the states happen to have left?!

"We only talked about it because we were offered this gig where we were on after the guy who fights the shark."

The time the Beatles considered getting back together.

June 30, 2005

"It's mercy, compassion and forgiveness I lack... not rationality."

What movie are we watching?

Product niche.

I think if more women were involved in deciding what products to design, what I've been looking for would already exist. I want a very small bag on wheels -- not something that looks like carry-on luggage, but a small, sleek case with a compartment for a laptop and room for one book and a few personal items. There are lots of larger cases, but they don't make them small enough, because -- I think -- men find it easy to carry a small bag (and would be embarrassed to wheel one). But, believe me, women want wheels for a simple laptop case.

And don't make it out of that coarse "technical nylon" with thick velcro-y flaps on the outside. Don't make it multicolored or shape it like a dorky backpack with those ugly padded backpack straps. Make it simple, black nylon and put two zippers on the top. Make the handle slim and the wheels small. There! It's such an obvious product! Somebody needs to start making this. Please. You'll get rich.

Not so big anymore.

For the first time since before the Civil War, Milwaukee is not one of the twenty largest cities in the U.S. They seem pretty upset about it.

And Detroit's awfully sad about falling out of the top 10. Its place was taken by San Jose.

Only one midwestern state left in the top 10: Chicago.

CORRECTION: I mean to say that only one midwestern state is represented in the top ten. I realize Chicago's a city...

"With every passing hour, it becomes clearer and clearer that nothing is going to happen."

The news of no news.

A door with attitude.

This is the door of a shop here in Madison:

Shopkeeper attitude.


"#Through the nose, #High voice, #Nose broken early in youth to account for difficulty."

Brando's notes on the "Godfather" script -- along with other personal effects up for auction -- pictured here.

And here's "the only item relating to his film career that he displayed in his Mulholland Drive home." (Some nudity.)

Here's his typed letter to Marilyn Monroe advising her to experience her depression as an opportunity for personal growth:
Be glad for it and don't be afraid of being afraid. It can only help. Relax and enjoy it.

Maybe if she'd just eaten a lot more ice cream. Marilyn and Brando were very similar at that time. Highly sexualized movie icons running into mental problems. What if Marilyn had just put on weight, like Marlon, and lived a long time? Picture incredibly obese, old Marilyn, turned into a figure of fun over the years. Kind of sweet!

REVISED UPDATE: Links are good now!

"Get Out, You Damned One."

That's the title of Saddam's novel, banned, then bootlegged in Jordan, where "a lot of people still like him, and he still commands popularity."
The novel, which Mr. Hussein is said to have completed on the eve of the American invasion in 2003, is seen as a prescient picture of the occupation of Iraq.

It opens with a narrator who appears to be modeled on the story of Abraham warning his grandsons of Satan's hold over Babylon.

The story tells of Ezekiel, a greedy schemer who plots to overthrow the sheik of a tribe with the help of a powerful enemy aiming to conquer and annihilate all Arabs but is ultimately defeated by the sheik's daughter with the help of an Arab warrior. This is viewed as a metaphor for a Zionist-Christian plot against Arabs and Muslims.

"Only those who refuse his nation and are faithful to God can be victorious," the narrator warns of Satan, the superpower.
The book is obviously dumb trash. Banning it makes it seem valuable.

Mexico? Exactly how...

... do you make a mistake like this?
"Memín Pinguín is a character like Speedy González, created in the 1940's," the spokesman, Rafael Laveaga, said in a statement. "Just as Speedy González has never been interpreted in a racial manner by the people in Mexico, because he is a cartoon character, I am certain that this commemorative postage stamp is not intended to be interpreted on a racial basis in Mexico or anywhere else."

June 29, 2005

"A monument to a society that has turned its back on any notion of cultural openness."

Criticism of the new World Trade Center Freedom Tower.
The most radical design change is the creation of the base, which will house the building's lobby and some mechanical systems. Designed to withstand a major bomb blast, the base will be virtually windowless. In an effort to animate its exterior, the architects say they intend to decorate it in a grid of shimmering metal panels. A few narrow slots will be cut into the concrete to allow slivers of natural light into the lobby.

The effort fails on almost every level. As an urban object, the tower's static form and square base finally brush aside the last remnants of Mr. Libeskind's master plan, whose only real strength was the potential tension it created among the site's structures. In the tower's earlier incarnation, for example, its eastern wall formed part of a pedestrian alley that became a significant entry to the memorial site, leading directly between the proposed International Freedom Center and the memorial's north pool. The alley, flanked on its other side by a performing arts center to be designed by Frank Gehry, was fraught with tension; it is now a formless park littered with trees.

UPDATE: The Anchoress is very hard on the Times's architecture critic. Myself, I admire the people who are able to find words to write about music, painting, and architecture. It is not easy. And the change to the tower really is a shame. I'd say the writer, Nicolai Ouroussoff, has expressed in words the disappointment many of us feel on seeing the pictures of the new design. And before reviling the New York Times, let's remember the good work the newspaper has put in over the past few years keeping up the pressure to make the new architecture at the World Trade Center site beautiful. Remember the originally proposed designs? The Times has done a lot here, and its method has been to stir the public's emotions about architecture, the city, politics, and physical security. There are some statements in this article that can rub you the wrong way -- the Times pictures its readers as liberals -- but overall, I think, this piece reads as a cry for strength and beauty in the city.

And then there's the "adrenosexual" man.

Replacing the metrosexual.

The Leo Burnett Man Study.

The Leo Burnett ad agency recently released a study, based on interviews with over 2,000 men in 13 countries, about attitudes about masculinity.
Overall, findings from the Leo Burnett Man Study highlight the disruption of men’s sense of identity due to profound social and structural changes taking place across the globe. The study confirmed that men in most parts of the world are unsure of what’s expected of them in society, with half of those surveyed saying they felt their role in society was unclear. Additionally, a stunning 74 per cent said they believe the images of men in advertising are out of touch with reality.

"As the world is drifting toward a more feminine perspective, many of the social constructs men have taken for granted are undergoing significant shifts or being outright dismantled. It’s a confusing time, not just for men, but for marketers as well as they try to target and depict men meaningfully," said Bernardin.

The study revealed the existence of a "New Male Spectrum," characterised on one end by enlightened, evolved, modern men - or what have been popularly dubbed "metrosexuals," and on the other end, entrenched, more traditionally masculine "retrosexuals" who cling steadfastly to stereotypical male behavior. Both groups are engaged by the gender debate and see themselves in terms relative to women: either they’re more like women (Metros) or they’re aggressively asserting their difference from women, (Retros).

The agency cautioned marketers against becoming fixated on these men who are adapting - or not - to women’s new power and influence in society. According to the Man Study, fewer than 40 per cent of men define themselves this way: the majority of men surveyed (60 per cent) aren’t caught up in this gender debate and live by a more traditional set of standards for assessing their masculinity.

"What do actresses see in their scruffy men?"

The International Herald Tribune inquires:
The once glamorous Hollywood of Cary Grant and Steve McQueen has been taken over by greasy-haired, scruffy-bearded, baggy-pants-wearing men who could be mistaken for vagrants if their $30,000 watch didn't give them away.

The obvious example of this frog mentality is Mr. Britney Spears, Kevin Federline, whose arrival in the city of angels set the stage for this latest Hollywood trend. Granted, Spears was never a leading lady in film or fashion. But even classic beauties with fashion know-how like Gwyneth Paltrow, Jennifer Garner, and Kate Hudson are all being squired about town by men (Chris Martin, Ben Affleck, and Chris Robinson respectively) who wouldn't make the dress code if they showed up alone.
Here's my theory. Only someone genuinely young and good-looking can get away with with the look. So it's very daring and exciting to be one of the few people who can do it. Let ordinary men attempt to get in on the super-elite trend and they will humiliate themselves.

Theme of the day detected.

Quite by accident, today's posts seem thematically linked. Something about expressing masculinity.

"We really slobbered over the old witch."

That was Richard Nixon's statement after meeting Indira Gandhi in 1971 -- according to recently released documents. And the charming Henry Kissinger chimed in: "The Indians are bastards anyway."

"Egyptians ate lettuce to boost sex drive."

That's what it says here. Something to do with the god Min, who is "invariably depicted with a large, erect" -- and probably lettuce-y -- penis.

Remember the men's movement?

With the drumming circles and everything? The Boston Globe seeks out the present-day remnants (via A&L Daily):
So what happened to [Robert "Iron John"] Bly's mythopoetic movement? The negative media coverage, such as Esquire's ''Wild Men and Wimps" spoof issue in 1992, didn't exactly help. But there were other factors, too. For one thing, even many of the men not inclined to dismiss Bly-style gatherings as silly found themselves mystified by the rarefied Jungian concepts tossed around the campfires like so many marshmallows. ''Many of the men I saw worked really hard at trying to figure out the mythology, but they just weren't getting it in the belly," says Byers, echoing the title of Sam Keen's bestselling book.... Part of the problem ... was the mythopoetic movement's complex relationship to feminism. On the one hand, some feminists construed Bly's attack on feminized males as reactionary. ''I'd hoped by now that men were strong enough to accept their vulnerability and to be authentic without aping Neanderthal cavemen," Betty Friedan told The Washington Post back in 1991. (Bly denied that there was anything anti-woman about his ideas.) What's more, the movement itself could never get beyond the fact that unlike the feminist movement - which itself had lost steam by the 1990s, as women achieved more economic and financial power - Bly and his followers never had any clear political agenda to drive them forward.
According to the article, these days, men actually want to be more involved in family life. And the men's groups of today tend to be centered on traditional religion, not Bly's "mythopoetic" antics.

Yelling in a quiet neighborhood.

I live in a very quiet neighborhood. It's summertime and there are lots of windows open. Every once in a while I hear a guy yell. Just: "arrrggghhhh!" I don't know where he is. Maybe he's one of those grunting weightlifter types. It's only just mildly disturbing. Or should I worry that somebody has a problem? But I don't quite know where. It just floats over the whole neighborhood.

"I can get pretty worked up being a Lisa Simpson in the Bart Simpson world of the SEC."

Says Christine Hurt -- picking up the gauntlet thrown down by Prawfsblawg.

Stagger Lee shot Billy Lyons over a brand new Stetson Hat.

And now Bono is suing Lola Cashman over an old Stetson hat.

(Stagger Lee link.)

On sending your sons.

Here's a great Christopher Hitchens piece saying something that needs to be said: parents don't send their sons to war. Those who serve are of age and making their own choices. Some of those who don't support the war are not above slamming a person who does for not "sending" their sons, and if you think this is good rhetoric, read Hitchen's piece, and, among other things, take into account that you don't know whether the sons of the person you're scolding are heterosexual and not disabled.

June 28, 2005

"I have been looking for some nice triangles."


Do you ever get nostalgic for the early days of your blog?

Remember how it felt back then? So obscure... and illicit!

"She wears her lakes like a diamond tiara/Her necklace is known as the mighty Yahara/Around her the Beltline is draped like a garland..."

"...And brings in commuters from way past McFarland."

Should "Wonderful Madison" be the official Madison song?
Sweet mother Madison full of compassion
A liberal community after a fashion
You don't have to worry if you do annoy her
'Cause for every person there's more than one lawyer.

Oh, jeez, I don't know. Doug Moe says yes. But they're taking a vote.

"The Comeback."

Are you watching "The Comeback" -- the HBO comedy series that stars Lisa Kudrow? I just discovered it on HBO On Demand yesterday and proceeded to watch all four available episodes. It's excellent. Kudrow's a terrific comic actress -- you really sympathize with her as she's being humiliated, even when most of her problems are in her head or a result of her own doing. When she names her puppy "Lucy," you don't need her to say she loves Lucille Ball. You could already see that.

Anyway, she plays an actress from a once-popular sitcom who's being relegated to a secondary, older-woman role on a new sitcom and who's simultaneously making a reality show about her comeback. We see a lot of the "raw footage" for the reality show and the behind-the-scenes work on the sitcom, so there is a lot of mockery of two types of TV shows.

Note: I've only watched one episode of "Friends."

MORE: Here's an interview with Kudrow about the show.

Hollywood comes to Madison.

I hear:
"The Last Kiss" starring Scrubs actor Zach Braff is scheduled to begin filming in Madison tomorrow....

"The Last Kiss" is about a group of 30-year-olds struggling with adulthood.

Zach Braff? Never heard of him. What the hell? I can't even remember what "Scrubs" is. Anyway... big excitement and road blockage. But Madison's a good choice for a place to be 30 and struggling with adulthood, isn't it?

UPDATE: More here:
Late Tuesday morning there's a whole lot of pacing on a Bascom Hill. Every time someone shouts "background!" people start moving in well- orchestrated lines around a couple that includes a blond woman in a long ivory jacket.

The woman in question is Blythe Danner, the Tony Award-winning stage actress also known for "Meet the Fockers." The man she's filming the scene with is Harold Ramis, of "Stripes" and "Ghostbusters" fame.

Hey, I looked out my window today and saw two weird park benches bolted onto the Bascom Hill walkway. That's got to be for the movie. I look forward to looking out my office window tomorrow and seeing Blythe Danner and Harold Ramis emoting in exactly the same spot where I looked out the same window twenty years ago and saw Rodney Dangerfield.

A nominee to satisfy business and social conservatives.

Stephen Bainbridge covers a subscribers-only article in the Wall Street Journal that I hadn't been able to get to myself. The subject is the way business and social conservatives disagree about various legal issues, and the bottom line is that Bush ought to nominate Michael McConnell for a Supreme Court vacancy.

UPDATE: A reader sends a link that will work for nonsubscribers for the next seven days.

Music question.

CHRIS: If you could go back in time either to the 50s or the 60s and you could bring a CD of songs from the 90s -- burn a CD...

ME: They don't have CD players...

CHRIS: You bring a CD player...

ME (thinking but not saying): People would be fascinated to see such a device.

CHRIS: And the goal is to to demonstrate what the 90s were about and that the 90s were a great decade musically. Because I think the 90s were one of the best decades. Better than now or the 80s or the 70s.

ME (aloud again): But you specifically want to prove this to people in the 50s and 60s.


ME: Because you think people are always acting like music from the 50s and 60s is the best? Or are you just trying to prove it to me?

CHRIS: Why do you think it's about you?

ME: Because I'm always acting like the music from the 50s and 60s is the best.

CHRIS: It's not about you, okay? Anyway, you've got to burn a CD or make a tape or whatever. You can pick 10 to 12 songs -- and they all have to be by different artists -- and the point is to prove the 90s are the best. So what would the songs be?

ME: Let me ask my readers to help us.


"Seldom has the capital been so spoiling for a fight."

Here's the NYT front-page piece on the (non)retirement of Chief Justice Rehnquist. You just know everyone had articles like this ready to go and reframed them to account for the fact that there was no news. I just did a radio show on the retirement (that wasn't).

I talked about the strange vulturishness we somehow think is okay to let show when we're talking about Supreme Court Justices (and no one else). I think this odd departure from decorum is a natural consequence of giving judges life tenure. They're holding powerful positions and don't have regular terms: that's going to affect how we talk about them.

Still, I hope the Chief is doing well and laughing off the premature talk of his demise. May the rough treatment give him new strength.

From the Times piece:
Seldom has the capital been so spoiling for a fight, and seldom has the only person with the power to ring the opening bell been so Sphinx-like. The combination has put senators and interest groups into a strange state of suspended animation.

And how are we predicting they'll behave when that bell rings? My prediction is the Democrats will fight like mad, whoever is chosen, though they know they'll lose in the end. They've got to make a show for themselves. They'll try to use the occasion to present themselves to constituents as champions of individual rights and opponents of extremism. (The phrase "out of the mainstream" will be heard ... a lot.)

Will the Democrats emerge from this fight looking good? My prediction is no. I'm guessing various Democrats on the Senate Judiciary Committee (and elsewhere) will garble their attempts at characterizing the nominee as extreme and the other side will play each misstep and make them look quite foolish.

I await the juicy bloggables.

Don't comp dessert! Comp the wine!

Nina has the scoop on last night's dinner at the Macaroni Grill, where they screwed up seating us at different tables, leaving me to draw on the butcher paper with the crayons they put out for kids.

It's really hard to do links to Nina's blog when she has photos, because she uses a system that produces a new link at each photo, but here's the beginning of the post.

Nina writes:
The hostess is most apologetic. The waiter is most apologetic. The manager is most apologetic. They offers us free dessert. What, we will then be forced to eat something for free that we wouldn’t have otherwise ordered??? My companion will have none of it. You want to comp something, comp the extra wine we’ve had to drink waiting for each other.

They do. M.Grill rules!

Here's the photo I took while waiting for Nina. I'd already ordered a whole bottle of wine -- $30 -- and was wondering how much of it I'd drink if Nina never showed.

Crayoned bottle shadows.

UPDATE: Oscar and I do an intervention and get Nina off Hello and onto Flickr, at which point she does a big post about Poland with lots of pictures.

"The media lived on borrowed time for a long time."

Adam Liptak has this piece in the NYT about the decline of the notion that mainstream journalists are entitled to special First Amendment protections:
"We're seeing outright contempt for an independent press in a free society," said Jane Kirtley, who teaches media ethics and law at the University of Minnesota. "The fact that courts have no appreciation for this is new, is troubling, and you cannot overestimate the impact it will have over time."...

Professor Kirtley said the legal turning point came in 2003 with a decision written by Richard A. Posner, an influential federal appeals court judge in Chicago. Judge Posner wrote that lower courts had often misread and failed to follow the holding of a 1972 Supreme Court decision, Branzburg v. Hayes, which rejected First Amendment protection for reporters facing grand jury subpoenas.

Professor [Rodney A.] Smolla said news organizations had for 30 years managed to convince lower courts that Branzburg, decided on a vote of 5 to 4, held the opposite of what its majority had decided. While the majority opinion had been fairly clear, lawyers for news organizations had seized on a brief and enigmatic concurrence by Justice Lewis F. Powell Jr. to convince the courts that they should recognize some level of protection.

That seemed to end yesterday in the Supreme Court, which upheld without comment lower court decisions ordering that Judith Miller of The New York Times and Matthew Cooper of Time magazine be jailed for refusing to testify about their sources in an investigation into the disclosure of a covert C.I.A. officer's identity.

"The media lived on borrowed time for a long time," Professor Smolla said, "as very able media lawyers managed to spin a loser into a winner."...

"The federal judiciary, from the Supreme Court down, has grown very skeptical of any claim that the institutional press is deserving of First Amendment protection over and above those of ordinary citizens," Professor Smolla said. "The rise of the Internet and blogger culture may have contributed to that. It makes it more difficult to draw lines between the traditional professional press and those who disseminate information from their home computers."

Early morning radio.

I'll be on Wisconsin Public Radio (the "Ideas Network") at 8, talking about the "legacy of Chief Justice Rehnquist" -- as they put it (even though the man hasn't announced his retirement).

UPDATE: Show over. Did any readers listen? Any comments?

June 27, 2005

Putting aside the "brooding and pervasive devotion to the secular."

(Also posted on the SCOTUSblog Ten Commandments discussion.)

In Van Orden, Justice Breyer quotes Justice Goldberg:
[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.

“Brooding… devotion to the secular” – that’s a phrase that has always struck me too. What do we really think we are doing with the Separation of Church and State? It should be that we are invigorating our culture, not grimly purifying it, squeezing out the heartfelt expressions of real people, scrubbing away traditions perceived as tainted.

In McCreary, Justice Scalia begins with a story about himself:
On September 11, 2001 I was attending in Rome, Italy an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.” The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless ______.’ It is of course absolutely forbidden.”

Even as the Establishment Clause is fundamental to our national identity, we have not taken it to have a thuddingly heavy meaning. We have found some air in it, some room for the expression of human beings who, despite their placement in government positions, naturally speak of God. They could learn to watch themselves and avoid such expressions, but we haven’t required it.

Installing a big permanent stone monument is scarcely the same as speaking “God bless America.” It’s the very opposite of spontaneous human expression. But it’s an old stone monument, and most people either don’t notice it, don’t mind it, or get a positive feeling from it. To take it down now is so inexplicably intrusive to ordinary people who’ve gotten used to it or who never noticed it before but would surely notice the removal. I find it easy to align myself with Justice Breyer and say surely tolerating this old monument can be part of what it means to get along in a pluralistic society and therefore part of the real meaning of the Establishment Clause.

I can accept McCreary too. The framed document inside the courthouse, put up recently, is different enough. It's odd to have two different outcomes, and part of me would prefer a crisp rule, if for no other reason than to convey to ordinary people that there really is law here. But continuing the complicated analysis of what Justice Breyer calls the "borderline" cases is not going to destroy us. We can tolerate some complexity if we must.

Maybe it's better that it's not so easy to see what's permitted and what isn't, and those who make the decisions whether to file lawsuits can exercise a little discretion about what is worth fighting for. Clearly, old things carved in stone should be left alone. (A rule that rhymes.) Recent stunts by political panderers: go after that.

"If you've read much about serial killers..."

I have never seen anything more horrific on television than the 9/11 attacks. The shocking, spectacular images of fire and collapse are deeply imprinted on my brain. But in a different way, the appearance of Dennis Rader on television this morning was unbearably horrible. Here was this neatly groomed man, speaking in a rational-sounding calm voice, detailing the ten, coldly planned and executed murders he committed over his years as the "BTK" murderer. At one point he spoke of himself from a detached, third-person perspective:
"If you've read much about serial killers, they go through what they call different phases. In the trolling stage, basically, you're looking for a victim at that time. You can be trolling for months or years, but once you lock in on a certain person, you become a stalker. There might be several of them, but you really hone in on one person. They basically become the ... victim. Or, at least that's what you want it to be."
How can a person who would do such things tell all of the details without showing any sense of pain or sorrow or regret? This man is beyond evil, not even feeling sorry for his own miserable condition or showing any sign of an inner anger that pushed him over the edge. To watch him was to feel thoroughly confounded. How can that be a human being -- even the most evil human being? How can anyone be like that?

Why Justice O'Connor opposed both Ten Commandments displays.

As described in the previous post, in Van Orden (the Texas Ten Commandments monument case), Justice Breyer purported to adopt the approach to the Religion Clauses that Justice O'Connor articulated in McCreary. But in Van Orden, Breyer, unlike O'Connor, approved of the Ten Commandments display. Let's look at O'Connor in today's two cases. In the monument case, she writes only briefly and says she "essentially" agrees with Justice Souter -- even though she doesn't actually join his opinion. Here's a key passage from Souter's opinion:
[A] pedestrian happening upon the monument at issue here needs no training in religious doctrine to realize that the statement of the Commandments, quoting God himself, proclaims that the will of the divine being is the source of obligation to obey the rules, including the facially secular ones. In this case, moreover, the text is presented to give particular prominence to the Commandments’ first sectarian reference, “I am the Lord thy God.” That proclamation is centered on the stone and written in slightly larger letters than the subsequent recitation. To ensure that the religious nature of the monument is clear to even the most casual passerby, the word “Lord” appears in all capital letters (as does the word “am”), so that the most eye-catching segment of the quotation is the declaration “I AM the LORD thy God.” What follows, of course, are the rules against other gods, graven images, vain swearing, and Sabbath breaking. And the full text of the fifth Commandment puts forward filial respect as a condition of long life in the land “which the Lord they God giveth thee.” These “[w]ords … make [the] … religious meaning unmistakably clear.”

To drive the religious point home, and identify the message as religious to any viewer who failed to read the text, the engraved quotation is framed by religious symbols: two tablets with what appears to be ancient script on them, two Stars of David, and the superimposed Greek letters Chi and Rho as the familiar monogram of Christ.... It would therefore be difficult to miss the point that the government of Texas is telling everyone who sees the monument to live up to a moral code because God requires it, with both code and conception of God being rightly understood as the inheritances specifically of Jews and Christians.
And here is O'Connor's concurring opinion that determined the outcome in McCreary, the case that involved a framed copy of the text of the Ten Commandments, displayed on a courthouse wall. It's nicely short. Here's a key passage:
The First Amendment expresses our Nation’s fundamental commitment to religious liberty by means of two provisions–one protecting the free exercise of religion, the other barring establishment of religion. They were written by the descendents of people who had come to this land precisely so that they could practice their religion freely. Together with the other First Amendment guarantees–of free speech, a free press, and the rights to assemble and petition–the Religion Clauses were designed to safeguard the freedom of conscience and belief that those immigrants had sought. They embody an idea that was once considered radical: Free people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct.

Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat....

Given the history of this particular display of the Ten Commandments, the Court correctly finds an Establishment Clause violation. The purpose behind the counties’ display is relevant because it conveys an unmistakable message of endorsement to the reasonable observer.
We need to consult the main opinion in McCreary to see the particular details that led her to this conclusion, but we can see that the main concern is the purpose in setting up the display. The majority opinion -- written by Justice Souter -- basically adopted the district court's view that the state had a religious purpose when it posted the Ten Commandments in two courthouses. The additional historical documents that were put up alongside the original posting did not transform the display into a history lesson. They were simply a sham, meant to avoid the original problem posed by the posting the Ten Commandments in isolation.

So now we've looked at the two most interesting Justices in the two cases. The rest of the Justices did pretty much what we expected them to do. I'll have a little more to say about them later.

It's Breyer and not O'Connor determining the outcome in the Ten Commandments monument case.

All eyes turn to Justice Breyer, who voted with the Chief Justice and Justices Kennedy, Scalia, and Thomas, to produce a victory for the state in Van Orden, the second of the two Ten Commandments cases handed down today.

I would have thought, with each of the two cases being decided by a single vote, and the Court finding an Establishment Clause violation in one case (McCreary) and not the other (Van Orden), that the Justice who shifted sides would be O’Connor. For it is O’Connor who has determined so many of the recent Establishment Clause cases and left the law in its multifactored disarray. But, no. It’s Breyer. O’Connor stayed put, taking the stronger Establishment Clause position in both cases. So the first opinion I wanted to read, in my hope that the Court has given us some crisp clarity today, is Justice Breyer’s.

Breyer emphasizes the “basic purposes" of the two religion clauses -- Free Exercise and Establishment -- taken together. We need to think about promoting tolerance and freedom, he says, referring to the “basic principles set forth today by Justice O’Connor in her concurring opinion" in the McCreary case. In this light, Breyer rejects the idea that government must “purge from the public sphere all that in any way partakes of the religious.” Such an extreme approach would “promote the kind of social conflict the Establishment Clause seeks to avoid … [and reflect] ‘a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.’”

But if we don’t take a strict separation of church and state approach, how are we going to articulate a clear, workable rule? Breyer doesn’t solve this problem. We will “inevitably find difficult borderline cases," he says, and "no test-related substitute" is going to spare us from needing to engage in "legal judgment.” The word “legal” with "judgment" is notable. Those who like crisp rules tend to think rules are needed to have real law and think ruleless “judgment” is not law. But Breyer defends complex judgment as law:
That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the Clauses, and it must take account of context and consequences measured in light of those purposes. While the Court’s prior tests provide useful guideposts–and might well lead to the same result the Court reaches today, no exact formula can dictate a resolution to such fact-intensive cases.
Applying this judgment, the details about a particular display in a borderline case are going to matter a lot:
In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral message (about proper standards of social conduct). And in certain contexts, a display of the tablets can also convey a historical message (about a historic relation between those standards and the law) -- a fact that helps to explain the display of those tablets in dozens of courthouses throughout the Nation, including the Supreme Court of the United States.

Here the tablets have been used as part of a display that communicates not simply a religious message, but a secular message as well. The circumstances surrounding the display’s placement on the capitol grounds and its physical setting suggest that the State itself intended the latter, nonreligious aspects of the tablets’ message to predominate. And the monument’s 40-year history on the Texas state grounds indicates that that has been its effect.

The group that donated the monument, the Fraternal Order of Eagles, a private civic (and primarily secular) organization, while interested in the religious aspect of the Ten Commandments, sought to highlight the Commandments’ role in shaping civic morality as part of that organization’s efforts to combat juvenile delinquency.…

The physical setting of the monument, moreover, suggests little or nothing of the sacred. The monument sits in a large park containing 17 monuments and 21 historical markers, all designed to illustrate the “ideals” of those who settled in Texas and of those who have lived there since that time….

40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner)….

The display is not on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state. This case also differs from McCreary County, where the short (and stormy) history of the courthouse Commandments’ displays demonstrates the substantially religious objectives of those who mounted them, and the effect of this readily apparent objective upon those who view them. That history there indicates a governmental effort substantially to promote religion, not simply an effort primarily to reflect, historically, the secular impact of a religiously inspired document. And, in today’s world, in a Nation of so many different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.
This fact-specific analysis, in light of the purpose of the religion clauses, leads Breyer to conclude, tapping the terminology of the old Lemon case, that the Texas monument has a “primarily nonreligious purpose,” does not have the primary effect of “advancing religion,” and does not create “excessive government entanglement with religion.” To decide the other way would “exhibit a hostility toward religion” and “might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation.” In short, leaving this monument alone is more likely to avoid religious “divisiveness” than taking it down.

Breyer explicitly disagrees with the plurality opinion written by Chief Justice Rehnquist. He most strongly affiliates himself with Justice O’Connor’s concurring opinion that decided the outcome in McCreary. Her basic approach is correct, he thinks, even as he disagrees with how she applied it in this case.

So multifactored, contextualized judgment continues to be the rule about government displays with some religious content, and there will be borderline cases where the outcome is uncertain and reasonable judges will disagree.

Maybe the best advice is for the strict separationists to choose their battles well. And certainly, one thing is clear: leave the old monuments and courthouse friezes alone.

The first Ten Commandments decision.

CNN reports:
The 5-4 decision, first of two seeking to mediate the conflict over religion's place in public life, took a case-by-case approach to this vexing issue. In the decision, the court declined to prohibit all displays in court buildings or on government property.

The justices left themselves legal wiggle room on this issue, however, saying that some displays -- like their own courtroom frieze -- would be permissible if they're portrayed neutrally in order to honor the nation's legal history.

But framed copies in two Kentucky courthouses went too far in endorsing religion, the court held.

"The touchstone for our analysis is the principle that the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion," Justice David H. Souter wrote for the majority.

"When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment clause value of official religious neutrality," he said.

UPDATE: And the second case goes the other way. It makes sense, but I can't explain why until after class, which I've got to run to.

"Reality now is very strange."

So Iraqis are reading books.
Intellectuals and writers seem particularly disoriented in the new Iraq. Many were alive in the decades before 1968, when the Baath Party took control, which was a time of cultural renaissance in Iraq. But in 1979, when Mr. Hussein became president, he began banning books, singling out writers and intellectuals, jailing them and blocking publication of their work.

The employees of the Dar al-Bayan bookstore used a small crawl space in an attic area to hide favorite books that were banned. Some writers left the country, but many stayed, surviving by meeting secretly and circulating photocopies of banned books....

As far as reading about the ousted government itself, the period is still too raw for most. However, Mr. Khakhani said a book by Mr. Hussein's former doctor, Ala Bashir, called "In the Name of Terror," had been selling well.

Some abandon modern history and escape to ancient times. Suha Turaihi, an intellectual in Baghdad, said she was reading a book about Sabians, an ancient religion of Mesopotamia that dates to hundreds of years before Christ and still exists....

Young Iraqis are making different choices. At a bookstore in Mustansiriyah University, a large public university here, students flipped through romance novels and books on astrology.

Religious books, mostly on Shiite themes, which were banned under Mr. Hussein but have streamed into Iraq since his fall, were also in abundant supply.

Though college students remain relatively secular, said Zaid Hadithy, the shop owner, young people in the broader population "are going in a religious direction" as they search for a structure for their lives in an environment where the rules have fallen away....

[Mufeed] Jazaery [who was culture minister in the recent interim government] said he worried about the power of religion among young Iraqis. Anyone who was born after 1980 grew up during Iraq's decline into war and economic sanctions. Corruption and poverty have eroded the once-strong educational system, leaving young people vulnerable to populist leaders like Mr. Sadr.

"They can read, they can write, but they can't understand," Mr. Jazaery said. "That's good for dictatorship and dangerous for democracy. It's a spare army for all hard-line elements."

The dreaded Justice Kennedy.

Here's a front-page NYT piece on Justice Kennedy, whose nomination to the Court was sold to conservatives as "Bork without the beard" and who, 18 years laters, has conservatives fuming about impeaching him.
For more than a decade, Justice Kennedy has infuriated the right, writing decisions in cases that struck down prayer at public school graduations, upheld abortion rights, gave constitutional protections to pornography and gay sex and banned the death penalty for juveniles. With talk of a possible court resignation to follow the term that ends Monday, Justice Kennedy is looming in many conservatives' minds as just the kind of painful mistake they hope President Bush avoids. Showing few sharp edges in life or in law, the justice emerged as a consensus third choice, after President Ronald Reagan's first two selections failed. Demanding more ideological clarity in what could be the first Republican selection in 14 years, the right is now mobilized with a cry: "No more Tony Kennedys."
I thought the cry was "No more Souters." But Souter, appointed by the first President Bush, veered all the way to the liberal side of the Court. Kennedy just took up the middle position. It's not enough, I suppose, to avoid a Souter. You've got to avoid a Kennedy. I tend to think that if O'Connor retires, vacating one of the center spots, the new Justice will feel drawn to play the centrist role -- and if he does not, someone else will move toward the center. There's a certain small group dynamic going on here. But there is a more pervasive problem that has dogged conservatives over the years:
Ever since the elevation of Earl Warren, Republican presidents have picked justices who disappoint the Republican faithful: William J. Brennan Jr. (President Dwight D. Eisenhower), Harry A. Blackmun (President Richard M. Nixon), John Paul Stevens (President Gerald R. Ford), Sandra Day O'Connor (President Reagan) and David H. Souter (the first President Bush). One result is rage at what [rejected Reagan nominee Robert] Bork sees as subverted democracy. Even though Republicans keep winning elections, he said, the court "can say that the majority may not rule" in areas where permissiveness reigns, including abortion, gay rights and pornography. Calling most justices "judicial oligarchs," Mr. Bork said they reflected "the intelligentsia's attitude, which is to the cultural left of the American people." Some conservatives blame the judicial selection pool, which is largely confined to graduates of elite law schools that they describe as liberal (Justice Kennedy studied law at Harvard). Some say the Senate confirmation process weeds out strong conservatives. Many critics argue that justices drift left after reaching the court, in the hopes of pleasing "liberal elites."
Much more in the article about Kennedy. And much more carping by Bork. Myself, I like Justice Kennedy. He's a moderate who takes some strong positions on individual liberty.

If Justice O'Connor retires, must her successor be a woman?

"Sources report Rehnquist is not ready to resign and that O'Connor is readying the way for a return to Arizona with her invalid husband." So reports Robert Novak today.

No woman has ever vacated a seat on the Supreme Court. Every woman who has ever served on the Supreme Court is currently on the Supreme Court. We have yet to discover the extent of the political feeling that a woman must be replaced by a woman.

Novak writes:
While Bush would consider replacing one of the court's two women with its first Hispanic justice, neither Roberts nor Luttig for O'Connor would be politically correct.

Accordingly, White House judge-hunters are looking for a woman. They have interviewed Appellate Judge Edith Brown Clement (5th Circuit, New Orleans), a conservative who flies under the radar. She was confirmed as a Louisiana district judge in 1991, seven weeks after her nomination by the first President Bush, and was confirmed as an appellate judge in 2001, two and a half months after George W. Bush named her.

Clement would be subject to far more scrutiny as a Supreme Court nominee. So would any other conservative named by Bush, though Democrats may have exhausted scrutinizing Gonzales.
It's funny that members of minority groups should be thought to be exchangeable with women. I suppose there's an idea that it isn't right for the Court to consist almost entirely of white men, and the one thing you cannot do is move any closer to that extreme. But if we're concerned about representation, women are more than fifty percent of the population, and there are some important legal issues that have a special impact on women. For only one ninth of the Court to be female, after so many years of two ninths, should disturb us, unless we cast the notion of representation aside altogether. Equating a Hispanic man with a woman should be regarded as kooky. But it is really a smokescreen. Look, I'm doing a first! Sorry, that irks me.

Either replace a woman with a woman or don't talk about representing groups on the Court.

Fussing over symbols.

Here's the SCOTUSblog discussion group dedicated to McCreary, the Ten Commandments case that will be announced very soon. I'll be participating in the discussion over there, along with a bunch of other lawprofs. Amusingly, Marty Lederman, a SCOTUSblog regular, has gotten the discussion going with a quote from me -- the one that says I don't care which side wins. No one else has posted yet, but they've all been invited to react to my "provocative take."

He also asks:
Have liberals and progressives made a significant error -- in terms of their long-term interests -- in expending energy on such "government religious symbolism" cases over the past generation or two, even if such cases have (from their perspective) resulted in improved Establishment Clause doctrine?

Here he quotes Burt Neuborne (a lawprof who'll be participating in the discussion):
"[O]ne final staple of the progressive judicial agenda may not be worth defending at all -- the religious symbolism cases may do nothing but enrage voters who might be [our] natural economic allies."

That's certainly true. There's a corresponding mistake conservatives make, pushing for symbolic things that some of them care about (like the anti-flag-burning amendment), that are off-putting to people who'd otherwise be attracted to the conservative side. Politics would make more sense if both parties stuck to the economics and security issues that actually matter. But ordinary people might tune politics out, so they just can't resist prodding and stimulating us with those symbolic things. Somehow people get so fired up about symbols.

June 26, 2005

"Some believe the lost souls try to drag living beings into their spiritual limbo land."

Fear of the haunted beach, after the tsunami.

"I started my band for all the right reasons, and we did what we did for all the right reasons, and somewhere along the way it got sort of taken away."

So says Billy Corgan, as he announces Smashing Pumpkins is regrouping. Interestingly, he's selected the release date for his solo album to make the announcement.

"Teaching math in a neutral manner is not possible."

Because we teachers are compelled to patronize you students.


Today, I sent my older son off to Paris. He's studying law, and Cornell Law School runs a five-week program there. I've been to Paris twice, and I haven't been to every city in the world, but, with my limited experience, I think Paris is the most beautiful city. What is more wonderful than to travel to a great city and just walk around and see? I wait for John's photographs and messages. I'm thinking about Paris today.

Chief Justice Luttig?

The Chicago Tribune's Jan Crawford Greenburg thinks so, and seems to have good access to inside source.
As a judge, Luttig is widely considered an ardent conservative, but his record reveals his independence, as do recent analyses of his opinions by several political scientists. He has stressed, to his law clerks and in a recent speech, intellectual honesty and adherence to precedent. He tells law clerks they will be fired if they fail to show him contradicting authority on a particular issue or tell him exactly how they view the case, even if they do not share his views. His clerks praise him as a teacher--and 40 of 42 have gone on to clerk at the Supreme Court, an unparalleled placement record.

Luttig has been highly critical of judicial activism on both sides of the ideological spectrum, in which he believes judges have decided cases based on a desired outcome instead of adhering to established law and taking that where it leads.

"At the end of the day, other than conscience, it is only analytical rigor, and the accountability that such renders possible, that can restrain a judiciary that serves for life and is at the pleasure of no one," Luttig wrote in a 2001 case.

As a result of that approach, Luttig sometimes reaches decisions that cannot be called conservative. In one recent case, for example, he departed from conservative colleagues to find that some people convicted of serious crimes had a constitutional right to get DNA evidence if it could prove their innocence.

His opinion writing is crisp and clear, and he is willing to confront colleagues--usually conservative ones--head on. He has parted ways with Wilkinson quite vehemently in several cases, prompting criticism that Luttig can be too sharp in disagreement.
Can't filibuster that, can they? I mean, the filibuster compromisers can't legitimately say "extraordinary circumstances" here, can they?

I found the Tribune article via The Supreme Court Nomination Blog, one of the SCOTUSblog sub-blogs, which should heat up like mad tomorrow, along with the entire blogosphere, if Chief Justice Rehnquist retires. And if O'Connor retires too -- well, the excitement will be unbearable. Perhaps, Justice Stevens will bow down too. No, no, that would just kill us.

Anyway, keep an eye on the SCOTUSblog Discussion sub-blog, where they've been discussing Kelo all week, and where, tomorrow, they'll be discussing the Grokster case and the Ten Commandments case. Or I should say we, because I'll be joining in the Ten Commandments discussion.

UPDATE: You know what my favorite word was in the description of Judge Luttig's style? I use it in my "What I hope the Supreme Court will do in the Ten Commandments case" post.

"A female interrogator took an unusual approach to wear down a detainee, reading a Harry Potter book aloud for hours."

Such are the conditions at Gitmo. The detainee, it must be noted, had to endure significant stress to his upper extremities as he needed to hold his hands over his ears to avoid hearing the story.

"There's something very refreshing about her cynical sexual frankness."

The Washingtonienne's novel/memoir is out. Here's the NYT review -- kind of a good review:
What is surprising about the Washingtonienne is what tolerable company she turns out to be. With much of the ubiquitous chick-lit genre still primly obsessed with the marriage plot, there's something very refreshing about her cynical sexual frankness, her shrugging irreverence toward the buffoons with whom she is intimate, her Scarlett O'Hara tenacity. Sure, she's unrepentantly, appallingly shallow -- callous toward the homeless (''so rude!''), uninterested in reading a newspaper (not even the Sunday Styles section of the newspaper you're holding) -- but there are hints that Cutler, at least, has matured enough to regard her alter ego with a wry knowingness. ''It was worse than Twilo closing,'' Jackie whines, referring to the New York nightclub, when she discovers that her parents are divorcing (the novel's one excuse for a subplot). ''I felt myself getting old, my youth and beauty fading,'' she sighs in Chapter 2. ''I was 25 years old.''

Okay, then. No reason to hate the sex-having, book-contract-snaring Washingtonienne, but no reason to read the book either, unless you're already a chick lit fan but you're tired of "the marriage plot." There's nothing much about politics in the book, apparently, other than that people in politics have illicit sex. Scarcely news.

Is foie gras evil?

Ever since I saw the movie "Mondo Cane," back in the 1960s, I've believed the methods used to make foie gras were truly evil. In the nutty old documentary -- which displays all sorts of human follies -- we see a close-up of a goose's eye as it's being force-fed. I don't know what the goose really felt, but as a human being, looking at that eye, I had to read: terror.

But consider this, written by Lawrence Downes in the NYT:
To animal welfare groups, the obscenity of force-feeding, known by the French word gavage, is self-evident. But Mr. Ginor and his partner Izzy Yanay, who runs [the country's leading foie gras producing] farm, accuse their critics of anthropomorphism and ignorance of duck anatomy and behavior. They say the practice is as benign as it is ancient, since waterfowl lack a gag reflex and have sturdy throats that easily tolerate grains, grit, stones and inflexible gavage tubes. To understand gavage, they say, is to accept it - as they insist poultry researchers have, after examining birds for signs of undue stress and suffering during gavage and finding none.

I visited Hudson Valley Foie Gras last week, seeing gavage for the first time. I saw no pain or panic in Mr. Yanay's ducks, no quacking or frenzied flapping in the cool, dimly lighted open pens where a young woman with a gavage funnel did her work. The birds submitted matter-of-factly to a 15-inch tube inserted down the throat for about three seconds, delivering about a cup of corn pellets.

The practice, done three times a day for a month, followed by slaughter, seemed neither particularly gentle nor particularly rough. It was unnerving to see the tube going down, and late-stage ducks waddling bulkily in their pens, but no more so than watching the epic gorging at the all-you-can-eat buffet at Shoney's, where morbid obesity is achieved voluntarily, with knife and fork.
Downes compares the ducks' interests to the interests of the farm workers: "175 people, mostly Latino immigrants [many of whom] live in trailers on the grounds and worship in a tiny chapel of crepe-paper streamers and candles in a corner of a warehouse." He also notes that their are far more brutal things going on in the production of the ordinary beef, pork, and chicken that most of us eat. We focus on the bizarre and not the ordinary, however, and deliberately producing an enlarged liver seems pretty bizarre. And most of us don't eat foie gras, so opposing it is a sacrifice-free virtue. I don't know if Downes is a shill for the foie gras industry, but it's obviously important to get all the facts and think straight about these issues.

A very conservative, pro-Kelo voice.

John Derbyshire on Kelo:
As conservatives we are of course all watchful for, and suspicious of, overweening state power. Governments do sometimes need to be able to act, though. The Tory in me appreciates what a British Prime Minister (though not a Tory) once called "the smack of firm government," when it's appropriate.

There are quite large areas of public life where the problem is not the govt doing too much, but govt frustrated in doing anything at all. The state of public works in New York City illustrates the point. It's little short of miraculous when govt here gets ANYTHING done, let alone a major public works project. (Look at the decades-long struggle to set up public toilets for the use of New Yorkers.) Yes, yes, I know, the Connecticut decision involved private development, not public works, but the eminent domain principle apparently comes in to both cases. Consider the paralysis over the World Trade Center site. If use of urban land were not such a tar pit of regulation & litigation, surely a vigorous govt, exercising eminent domain, might have done something with the site by now.

Yay for private property rights and down with govt usurpations. No argument about that as a general principle. When govt needs to act, though, it ought to be able to do so without unnecessary impediments & infinite delays, & private citizens, properly compensated, should yield their rights.
Well put.