The O'Connor biopic.

Yesterday, we were discussing the new biography of Sandra Day O'Connor. In the comments, readers started to cast the movie made from the book:

P. Froward said...

I want to see an O'Connor biopic! Like a "Behind the Music" kind of thing, you know, personal torments and redemption and all that. Loretta Lynn, Ray Charles, Johnny Cash... Justice O'Connor....

Simon said...

Also starring Nick Cage as Stephen Breyer, Catheryn Zeta-Jones as Ruth Ginsburg, Chris Barrie as Dave Souter, and Charles Bronson as Antonin Scalia.

Featuring a cameo appearance from Sir Sean Connery as Robert Bork, who turns out to have been the arch-villain all along!

Please contribute to this casting fantasy!

For the record: I hate the biopics that come out this time of year. Which singer will die next and have his dumb musician's problems reenacted by a hammy actor who wants an Oscar really bad? Oh, this is a two question post now. Name the singer who will die and the actor who will play him/her.

What I'm dreading today.

I've got another appointment with the oral surgeon. This time I'm taking the IV-sedation -- as opposed to the novocaine/nitrous combo I had for that tooth extraction two months ago. Today, some sort of metal screw will be screwed into my jaw, while I'll be in some strange mental state the like of which I've never experienced. I have never let a doctor manipulate my consciousness and don't like the idea at all. But that extraction was harrowing, and the doctor told me that IV-sedation is what he'd advise a family member to have. You know, doctors have to give you all the information and let you decide, but the main thing you want to know is what they would decide. Anyway, for now, I can't eat or drink anything. I need to teach my class at 11, and I've never had to deal with a public speaking situation where I had to be utterly thirsty throughout. Maybe my students are reading my blog and will make a special effort to do most of the talking today.

What has become of Article III Groupie?

After succumbing to the temptation of the super-hot embrace of Jeffrey Toobin at The New Yorker, Underneath Their Robes has fallen out of the blogosphere! What has happened?

"They are making me crazy. They have ruined my life."

It's those terrible not-ladybugs. Remember when you were all ooh! cute! ladybugs!? We know so much better now:

Unlike domestic ladybugs, the multicolored Asian variety likes to keep its polka dots indoors in the winter. In older rural neighborhoods, where houses are not knit tight, only insecticide can hope to keep them out. They swarm by the tens of thousands. Unlike the domestic ladybug, the Asian variety leaves a yellow stain. It can bite. Worst of all, it stinks.

As Michael F. Potter, an entomologist at the University of Kentucky in Lexington, explained: "When the beetles are handled or disturbed in any way, they emit this yellow substance from their leg. It's lady-bird blood. It has a noxious odor."

Or, as Lorene Bowling of Olive Hill, Ky., put it, "They stink something terrible."...

Ruth Hopkins, who lives in Mount Vernon, about 40 miles from Lexington, said she got up several times every night last winter to get her hand-held vacuum and sweep the bugs off the sheets and off her ailing 89-year-old husband.

"I would just take that sweeper and sweep all night," said Mrs. Hopkins, whose home is near the Daniel Boone National Forest. "All winter long, we got no rest. They would drop off the ceiling everywhere."

We have them in Wisconsin, but not anywhere near that bad. They seem to be energized by a warm day after it's been cold, on certain days in the fall and spring. I guess in the south, there are days like that all winter. I suppose with the onset of global warming, we'll be seeing more of these horrible bugs. Is there any solution other than insecticide?

In Asia, the bugs do not winter in dwellings, but land on tall, light-colored rocks and find their way into warm, damp recesses in the stone. When the beetles got to the United States, the white vinyl siding on small buildings and granite or light stone walls on larger ones may have beckoned the same way their native rocks had.

So, usually on warm, sunny autumn afternoons after a hard frost, beetles light on the western and southwestern sides of buildings, favoring light-colored buildings over dark ones, and showing a particular affinity for surfaces with contrasting dark vertical lines - like vinyl siding. When they crawl around in search of warm recesses, they end up inside, in light fixtures or attics for the winter.

I'm going to take that into account the next time I have my house painted. I want to know how dark I need to go to make my house not remind them of a rock in China. The poor darlings are just homesick.

UPDATE: Wouldn't mosquito netting work better than a DustBuster? I'm really disturbed by the idea of repeatedly vaccuuming a sick, old man.

TimesSelect + New Coke.

Google count: 64. Ha ha. But not everyone observes the official absence of space between the esses. So add 37. Aw, too bad. Can they please stop it now? They've got to know they will have to stop sooner or later. What good does it do dragging out the death of a mistake?

"I thought I was replacing The Donald."

"It was even discussed that I would be firing The Donald on the first show." That's how it sounds to be Martha Stewart explaining why your TV show just ... didn't ... succeed.

Here's how it sounds to be The Donald: "I think there was confusion between Martha's `Apprentice' and mine, and mine continues to do well and ... the other has struggled very severely. I think it probably hurt mine and I sort of predicted that it would."

So what's your theory about why Martha's show was never nearly as good as Donald's? Mine is that she always cared too much about her image (and the image of her company, Omnimedia). If you're going to be a bitch, be a bitch. You can't be a please-like-me female at the same time. That's icky. Trump lets himself be a truly weird buffoon (even as he makes a lot of sense a lot of the time). Stewart can't bear to play into her own bizarreness.

Second theory: Trump has Carolyn Kepcher. Everyone loves Carolyn. And Martha had that guy that wasn't quite George. She needed better sidekicks!

Third theory: Trump's show has fabulously dramatic photography, editing, and music. It's just mesmerizing! By comparison, Martha's show felt flat and bland. Did they just not give her as much money, or were the aesthetic choices like her interior decorating choices? Beige, beige, beige.

A restaurant experience.

Ever go to a restaurant where you're the only customers, and the restaurant is really good and the people are so nice that you feel for them so much that you kind of wish you'd gone somewhere else? What if no one else is there because on other occasions people have had that experience so they don't go back because they don't want to feel sorry for the nice family that runs the place? I'd name the restaurant, but I'm afraid it wouldn't help them!

"Rodan."

That owl has been disturbing me all day. It brought back a childhood memory. When I was 5 years old, the movie "Rodan" came out. I saw ads for it on TV and could not understand if the fact that it was in a movie meant that it wasn't real. I asked some people, and no one would give me a straight answer, for some reason. Back then it was much more common to tease young children. Or maybe it was just a Delaware thing. Anyway, I was terrified of Rodan for a long time.

"Remember Ruth Buzzi on Saturday Night Live? Ginsburg was the spitting image of Ruth Buzzi.”

Oscar reports that's what Orrin Hatch said at the ABA Tort, Trial and Insurance Practice section meeting this past weekend:

In boasting about his bipartisanship, he tells a story about his willingness to confirm Ruth Bader Ginsburg to her first judicial appointment as appeals court judge on the D.C. Circuit. Ginsburg’s advance person, when scheduling the nominee’s sit-down with Hatch, said that Ginsburg (an extremely well-credentialed feminist lawyer and law professor) “is really scared of you.” Hatch says, “I didn’t understand why anyone would be scared of me” – aw, shucks! – “but Ginsburg did come across as really timid. Remember Ruth Buzzi on Saturday Night Live? Ginsburg was the spitting image of Ruth Buzzi.”

Ruth Buzzi was on "Laugh In," of course, not SNL, but nice try at a fresh pop culture reference! More Supreme Court stuff from Hatch:

Clinton called me and ran down his list of about ten names for Supreme Court justice. His first choice was Bruce Babbitt. I said, “he’ll probably get confirmed, but there will be blood everywhere.” I suggested, “how about Steve Breyer.” Well, he picked Ginsburg for that slot, but he picked Breyer next.

AND

I attended a meeting at the U.S. Supreme Court at which some of the justices said to me, “you have to get rid of diversity jurisdiction.” I stared the Chief Justice down, and said, “we’re not going to do that.”

Nice to see he's having fun wielding power.

More about Hatch at the link, including his use of the term "shit list."

A Veteran’s Day parade in Madison.

Thought you'd like to know:

University of Wisconsin students and community members celebrated American veterans by holding the first Veteran’s Day parade in Madison in over 20 years Friday.

Coordinated by the Associated Students of Madison’s Support the Troops Campaign, nearly 70 Wisconsin and UW veterans, family members and supporters participated in the parade.

Accompanied by the UW Alumni band, participants marched down Gilman Street and State Street to Library Mall, concluding the parade with a commemorative silence in front of the Wisconsin Historical Society headquarters.

If you haven't voted yet...

Remember that you can vote for me to be in that deck of cards until Tuesday at 8 a.m. PST: here (in the sidebar).

Obscure Comment of the Day.

I know whenever anyone posts a comment on this blog, because Blogger sends me an email. You probably don't go back and look for new comments on old posts. There are thousands of old posts on this blog. You can't be looking back through all of them all the time to see if anyone has added something new. But there are, occasionally, comments on old posts that I see, so let me just point this one out today ("Ann... you have personality, I have personality, my son and daughter have personality, my wife...").

The old post of mine that collects the most belated attention is over on an alternative blog I wrote for a while when I had a temporary copy of iBlog software. There are no comments over there, but people keep finding this post and emailing me to defend the Order of the Eastern Star.

If you want to generate outré comments for your blog, take my advice: write lightheartedly about something some people take seriously.

Article III Groupie's a guy!

The New Yorker reveals the name of "Article III Groupie," author of the terrific blog Underneath Their Robes (via How Appealing):

In real life, A3G is a thirty-year-old Newark-based assistant U.S. attorney named David Lat. “The blog really reflects two aspects of my personality,” he said over lunch recently. “I am very interested in serious legal issues as well as in fun and frivolous and gossipy issues. I can go from the Harvard Law Review to Us Weekly very quickly.” Lat, who has a boyish face, lives in Manhattan and commutes to New Jersey, and he writes his blog entries in his spare time. Like A3G, he graduated from Harvard College and Yale Law School, and he worked briefly at a big New York law firm. Although his current job as a prosecutor has required him to pare back his life style, he says, “I still hoard toiletries from luxury hotels all over the world.” Lat interviewed for a Supreme Court clerkship, with Justice Antonin Scalia, but he didn’t get it.

“Yale treats certain judges like celebrities,” he said. “And I’ve always had a certain status anxiety about not having clerked on the Supreme Court.” (A3G often refers to Supreme Court clerks as “the Elect.”) “My interest in celebrity has kind of metastasized from the judges to the clerks,” he added.

Lat is proud that some of his catchphrases have slipped into wider circulation—“litigatrix,” “judicial diva,” and “bench-slap” (for disputes among judges). Although he intended to remain anonymous, the success of the blog made coming clean irresistible. “I felt frustrated that I was putting a lot of time into this and was unable to get any credit for it,” Lat said. “But eventually these things have a way of coming out anyway. I only hope that the judges I appear in front of don’t read it.”

Ooh! Exciting! Can't say more now. I'm off to teach a class and then run over to Café Monmartre to do an American Constitution Society panel discussion on Judge Alito. More later!

Owl with a 6-foot wingspan.

It was headed toward extinction but it's back (in England) -- the eagle owl:



Will you still love it when it snacks on your cat or dog?

How Brennan and, later, Breyer affected O'Connor.

From Cliff Sloan's piece in Slate about Joan Biskupic's new biography of Justice O'Connor:

[S]ome of [what is in the book] is new—an apparent rivalry between liberal lion William Brennan and O'Connor for influence on the court, and Brennan's clumsiness in his maneuvers; the effectiveness of Justice Stephen Breyer in reaching out to her. With Potter Stewart's departure in 1981 and O'Connor's replacement of him, Brennan seemed to have lost an important occasional ally. He viewed his new colleague with suspicion, and—though he is often thought of as the consummate court politician—he made the same mistake that Scalia would make several years later: He caustically attacked her, and if anything seems to have driven her away. Brennan's approach to cases became particularly arch and unyielding in his later years, and even when he had O'Connor's vote he could not get her to join his opinions. Breyer's style would prove far more hospitable to O'Connor than Brennan's broadsides; like her, he was attuned to the particularities of each case and searched for common ground.

The subject of the relationships among the justices and the effect on the decisions is highly interesting -- and exceedingly hard to study.

Alito: "The Constitution does not protect a right to an abortion."

The Washington Times reports on a 1985 document the nominee wrote in an application for a job as deputy assistant under Attorney General Edwin I. Meese III.

In direct, unambiguous language, the young career lawyer who served as assistant to Solicitor General Rex E. Lee, demonstrated his conservative bona fides as he sought to become a political appointee in the Reagan administration.

"I am and always have been a conservative," he wrote in an attachment to the noncareer appointment form that he sent to the Presidential Personnel Office. "I am a lifelong registered Republican."...

"It has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly," he wrote.

"I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."...

Although Judge Alito's conservatism has not been particularly evident in his legal rulings, it was abundantly clear in his job application 20 years ago.

"I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values," he wrote.

"In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate," he added.

The document also provides the clearest picture to date of Mr. Alito's intellectual development as a conservative.

"When I first became interested in government and politics during the 1960s, the greatest influences on my views were the writings of William F. Buckley Jr., the National Review, and Barry Goldwater's 1964 campaign," he said. "In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment."

Let the battle begin.

Up until now, the attacks on Alito have been based on nothing of substance. Critics cherry-picked his cases, found the ones where he ruled against sympathetic parties, and treated the outcomes in cases as if there is no legal reasoning involved in reaching outcomes. Or they simply assumed that Alito must be a big right-winger because he (unlike Miers) was not being attacked from the right and conservatives all looked rather happy about having him as the nominee.

With this letter, we enter a new phase of the nomination process, in which the opponents have something very substantial to talk about. And, indeed, they must fight, based on this. I see two aspects to the coming fight.

First, there is the question of what is the better set of values. A lot of people will read Alito's statement and agree with it, while others will oppose it. Some may only care about a few of those issues or may agree about some things and not others. Though most of the talk will be about abortion rights, we have a valuable opportunity to talk about what the full set of conservative legal positions is, to compare them with the liberal positions, and to debate about which is better. I welcome this public debate and hope it can be done well.

Second, there is the question of how personal beliefs affect a judge's performance on the bench. Some will defend Alito by saying a good judge is a humble, faithful servant of the law who sets his personal, political beliefs aside. Related to this is one of Bush's big issues: the liberal judges are activist judges who make the law mean what they would vote for if they were legislators. In this rhetoric, the conservative judges somehow escape the temptation the liberal judges succumb to. As long as you have a conservative judge, the rhetoric goes, you don't have to worry about what his political beliefs are: He will do the proper, judicial thing and not "legislate from the bench" like those bad liberal judges. Those of us who are not political ideologues tend to think that judges try to follow the law, but that the texts and precedents are ambiguous or fluid enough to require some judgment to get to a decision. Thus, the background beliefs and political tendencies of any judge will need to flow into the decision-making, no matter how modest and dutiful the human being making the decision is.

Audible Althouse, #20.

This is a 46 minute podcast, covering an insulting letter, a misunderstood interaction with another blogger (my ex-husband), the concept of "The Althouse Man," how ugly the Three Stooges are, how blankly beautiful actors today are, that song about Saint Germain stuck in my head and the Supreme Court case that put it there, the problem of calling war opponents "unpatriotic," and the creepily under control Ave Maria Town.

Too much Dowd: like too much coffee?

Kathryn Harrison reviews Maureen Dowd's "Are Men Necessary?"

Consumed over a cup of coffee, 800 words provide Dowd the ideal length to call her readers' attention to the ephemera at hand that may reveal larger trends and developments. But smart remarks are reductive and anti-ruminative; not only do they not encourage deeper analysis, they stymie it...

When a few hundred pages' worth of these observations are published in one book, they suffer the opposite of synergy, adding up to less than the sum of their parts. Energizing in small morning doses, the author's fast-talking spins on the spin can rear-end one another until the pileup exhausts a reader's patience.

Bloggers shouldn't be writing books either then, I suppose. But there is this urge to become a permanent object -- a permanent, saleable object.

"Bargain basement Nietzsche and Foucault, admixed with earnest American do-goodism, that still passes for 'theory' in much of the academy."

That's Sean Wilentz's description of "the new political history," quoted by Gordon S. Wood in his review of Wilentz's "The Rise of American Democracy," which dares to tell the story of dead white males.

[Wilentz] writes as a good liberal, but an old-fashioned New Deal one. Like Schlesinger in 1945, he wants in 2005 to speak to the liberalism of the modern Democratic Party. By suggesting that the race, gender and cultural issues that drive much of the modern left are not central to the age of Jackson, Wilentz seems to imply that they should not be central to the future of the present-day Democratic Party.

Senator Boxer's novel.

Wait a sec, I'm distracted by that incredibly bad illustration. Okay, I've made it past that and will now read this NYT book review, written by Ana Marie Cox, about a novel by Senator Boxer (with help!), about Supreme Court appointments. This ought to be interesting....

Senator Barbara Boxer's new political-thriller-cum-romance-novel hinges on a Supreme Court nomination battle: the president's selection is a tight-lipped, right-wing ideologue; the Democrats are certain she will "help turn back the clock" on court decisions. With a Republican majority, a confirmation looks all but certain.

Boxer, a California Democrat who was elected senator in 1992 after 10 years in the House, is clearly following the dictum to "write what you know." But any novel with even a hint of autobiography is likely to carry a whiff of revenge fantasy. So it is instructive, if not surprising, that the protagonist of Boxer's fictional universe, Ellen Fischer, herself a plucky senator from California, winds up defeating the nomination. How she succeeds is a secret worth keeping - though hopeful Democrats need not rush to the bookstores for strategic advice: Fischer's tactics are too far-fetched to be of much use beyond the hectically imagined pages of "A Time to Run."

Please feel free to spoil the story in the comments! It's a thriller, so, what? Sex? Murder? I don't read thrillers so I have no idea what sort of hijinks would make an appropriate, publishable story here.

Anyway, I note that Boxer has exchanged her job-related surname for another, throwing in the letter "c" so it wouldn't be so face-slammingly obvious. Presumably, the image of fishing (for information?) appealed to her more than the head-punching evoked by her actual name. The nominee's name, by the way, is Frida Hernandez. Imagine the brainstorming that went into selecting that. Most of the book is the story of "Fischer's" life. She has two boyfriends to choose from: Josh Fischer and Greg Hunter. Hunter, eh? Hunter becomes a right-winger, wouldn't you know?

IN THE COMMENTS: The plot is recounted. Don't you want to know what Boxer's fantasy of defeating a Supreme Court nominee looks like?

Why aren't you reading that essay?

I was going to read this essay -- about "chick flicks" -- but it started with the most annoyingly boring way to start an essay: by quoting a damned dictionary definition.

Why aren't you going to the movies?

Man, this description of the economics of moviemaking is depressing! Read the article for the details, but this is the real effect:

In most cases, nearly half of a movie's total audience turns out in the first week of release, which means there has been very little or no word of mouth motivating most of the audience. In other words, many people go to a movie without any real information about it - without even reading a review. Or, put most cynically: Most of the time, there is no relationship between how good a film is, and how many people turn out to see it.

So what makes people go to a movie? Generally, it is awareness - or now, in Hollywood parlance, "pre-awareness." Since studios cannot spend enough on advertising to buy awareness (there is so much advertising noise in the marketplace these days), there is a tendency to make movies with familiar titles, characters and stories: "The Dukes of Hazzard," "Spider-Man," "War of the Worlds," "Charlie and the Chocolate Factory." In the past decade, most box-office revenue has come from pre-aware titles, which includes sequels ("X-Men 3," set for a May 2006 release) and remakes ( "King Kong," Dec. 14).

I guess that explains my personal pre-awareness: I'm not going to like any of these movies. And I don't want to. I used to look for movies to like. Now, I flip through the pages and pages of ads for new movies and feel nothing but resistance. Too many. Too much. They're all bad.

"More wicked than your average blogger"?

A squib about Al Franken's new book in the NYT Book Review:

"The Truth (With Jokes)," by Al Franken, [is] a gloomier, more astringent book than his "Lies (and the Lying Liars Who Tell Them)," which came out in 2003. Franken's new one has dark circles under its eyes. "The Truth (With Jokes)" went to press before Katrina and the indictment of Lewis Libby, so it already feels mildly dated; and regular readers of political blogs, which have multiplied exponentially since Franken's last book, may feel a lot of the material here (on John Kerry and his "Swift Boat" attackers, Abu Ghraib, Fox News) has already been hashed to death. But Franken is more wicked than your average blogger.

"More wicked than your average blogger"? What kind of a standard is that? Isn't the average blogger a rather amiable person, telling stories about the kids, the job, hobbies, sports, and TV? Or does "blogger," as used in the NYT, not actually refer to the tens of millions of bloggers on the planet, but to the set of American political bloggers? That might establish some standard of wickedness so that being more wicked than average would mean something, seeing as there are some real bastards at the front end of that bell curve.

But how wicked is Al Franken? The example the Times offered up as proof wasn't pithy enough for me to want to keep in the block quote. The NYT is really trying to sell us on a book that snarks on the current news in a world where most of the writers who satirize current politics react within minutes after news hits the web. Even later the same day, the story seems stale. If you've waited a day to crack your joke, you're better off finding the next thing to snark about. How can you possibly compete on the long time line of a book?

There are at least two good reason for books like this to exist, however.

1. You go to the bookstore. You see the bookcover. You feel: this expresses something. You buy it and voila: this expresses something about me.

2. Look at the damned calendar. It's a Christmas present! For that political friend or family member of yours. Oh, Josh will like this. He's a political junkie.

"Only we are left."

In Muzaffarabad:

Malik Naseem emerged from the ruins of his house with steaming bowls of "sevian" - a sweet delicacy.

"We used to celebrate Eid with our family and friends," he said, offering me a bowl. "But the earthquake took those familiar faces away and brought you media people here instead.

"So we celebrate with you. You are our family this year."

Beneath this instinctive warmth came a reminder of the raw grief of Muzaffarabad. Malik Naseem asked me if I had enjoyed my time in his city. I said I had met many good people.

"No," he replied, crouching and cradling his head in his hands, "the good people were all killed in the earthquake. Only we are left."

There are still victims who have receive no aid. Donations have been insufficient.

"These people are insane."

Said Jordan's King Abdullah.

"What is happening today in the suburbs is true anger."

More violence in France.

"How fondly we will remember and miss this tender and heart-warming 'Never mind' in the days to come."

A princess leaves the royal family.

A roar.

Sitting here, sealed up in my University Heights house, I hear a crowd noise, a roar. There is a football game out there, a few blocks away. I'll have to assume there was a touchdown.

For my readers who can't get enough of my conflicts with my ex-husband.

You want to go here. (You have to read the comments!)

ADDED: If you've arrived at this post looking for information about why I am marrying the commenter Meade (with whom I squabble in these comments), you'll find more information here.

AND: Here's the text of the email I sent to Andrew Sullivan (who wrote this):

Andrew, I don't think you've understood the time line here. And why link to the nasty Pandagon on this one? Your post is really disrespectful to me. If you'd watched the Bloggingheads you linked to, you'd know that my fiancé is someone who has interacted with me in writing on my blog for more than 4 years. We decided to meet in person after an exchange of email in December. We met in January and then, after a some additional email, decided to meet again in mid-February, and then we fell in love. We decided to get married after 2 more weekends and a 10-day spring break.

Why is this something that you choose to mock? Is there something ridiculous about a blogger coming to love someone who she first knew through writing in the comments and developed an affection for over a period of years? Or is it just that we decided to marry within 2 months of meeting each other in person? My parents met in the Army and got married 2 weeks later and loved each other until they died many decades later. I'd really like to know what part of my experience deserves "OMFG."

Where did Jesus get his Y chromosome?

Think about it. Knowing what we know now about genetics but assuming a virgin birth, shouldn't Jesus have been a woman?

"I've learned to have some sympathy for those who are staring down the barrel of the Internet."

So writes Joseph Nocera from behind the wall of TimesSelect (subscriber's link). He used to think that those who "can't adapt to disruptive technologies ... probably deserve their fate," but now, seeing what's happening at the NYT, he's not so sure. He recounts the naysaying about TimeSelect and then comes out with this:

SO it was a bit of a surprise, after all the sturm und drang, to see the early results of The Times's online subscription experiment. They're not half bad. In a news release issued Wednesday morning, the company reported that since it began in mid-September, TimesSelect has generated 270,000 subscribers, half of whom already subscribed to the newspaper (and hence get the new service free) and half of whom were plunking down cold, hard cash.

To be sure, that is a far cry from the million-plus people who spend as much as $600 a year to buy the dead-tree version of The Times, and it's not even remotely close to the 20 million-plus "unique visitors" who come to the Times Web site each month. But it's something. Martin Nisenholtz, who is in charge of digital operations for The New York Times Company, told me that the numbers were "at the high end" of expectations.

We're supposed to believe that? Why would they wall off their columnists for so little money? And what's with saying "TimesSelect has generated 270,000 subscribers"? Generated? Half of those people (including me) got it free as subscribers to the paper version.

It is far too early, of course, to predict whether TimesSelect will ultimately succeed. The roughly 135,000 online-only subscribers could represent a new willingness on the part of consumers to pay for newspaper content online - or not. But what I've wound up wondering is whether, even if it is a roaring success, TimesSelect - and other online subscription models that are bound to follow - will be enough to stop the erosion of the economics that underlie newspaper journalism. I'm not terribly sanguine.

Is it really too early? It looks like a dreadful failure to me. In any case, the real problem, Nocero writes, is that, with or without TimesSelect, on line news reading will erode the journalism business. He quotes one analyst: "For every dollar coming out of the dead-tree pocket, only 33 cents is going back into the online pocket."

By the way, the TimesSelect columnists are recording little podcasts, about 3 or 4 minutes per column. I listened to Nocero's. (Boy, did it take a long time to download! I can download one of my own 1-hour podcasts in about the time it took to get those 3+ minutes.) It's not Nocero just reading his column -- in the style of a Slate podcast. It's more like my idea for podcasting, which is to talk spontaneously about what you've been writing. Nocero confides that he's being rather audacious writing about the NYT, and perhaps they will fire him.

I tested the Maureen Dowd podcast though, just now, and it is not Mo musing about the column, it's a broadcasty voice reading Mo's most recent column. David Brooks? Same thing! Tierney? Same! Friedman? What do you think?

Only Nocero gets podcasty -- as I define podcastiness.

"A betrayal of the law school's liberal values."

Adam Liptak writes about the way Yale lawprofs treat their own -- graduates Clarence Thomas and Samuel Alito and colleague Robert Bork. But why should your opinion of a nominee be any different because he has a tie to your institution? Isn't that cronyism?

Speaking of whoring.

You could vote for me over here. (In the sidebar at the link.)

"Prostitution isolates you, with all its little ways that people not in it don't understand, much in the way some religions do, or drug addictions."

So writes Lisa Carver in an essay called "I Was a Teenaged Prostitute and It Was Kind of Great." Carver, who was nineteen when she took up prostitution, writes:

It's hard to explain certain things, and after a while it's easier to not talk to anyone outside much at all. I thought that as a prostitute, I would no longer be inside a dream; I'd be flung, newly sharp and capable, into life. Actually, I discover, the opposite is true. Prostitution is a complex, shared dream where everyone agrees to not wake up, for just a little longer....

I buy a ticket for France. I have to quit my job because I like it too much.

No one still "in life" will talk about it, and it seems like those who left will only talk about the bad side. But as I walk away from prostitution and drug addicts and gain back my own life and body, I know I'm losing something too. I lose nothingness.

Abandonment has always led to advanced creativity.

Via Hit and Run, which has a lot of comments, but I anticipate better comments here.

"It doesn't change the reality that he was wrongly convicted and the system has to get it right."

So said Keith Findley, co-director of the Innocence Project, here at the University of Wisconsin Law School, speaking about Steven Avery. The Innocence Project did the legal work that freed Avery, who had already served 18 years for a rape that, evidence showed, he did not commit.

Now, Avery is accused of committing a murder:

Steven Avery, the Mishicot man who served 18 years in prison for a rape he didn't commit, will be charged with the murder of a 25-year-old woman who disappeared on Halloween, Calumet County District Attorney Ken Kratz said Friday.

Avery, 43, was the last known person to see Teresa Halbach alive, and his blood was found along with hers in her sport utility vehicle, said Kratz, who expects to file charges early next week.

The police worry that they will be accused of framing Avery:

Kratz and police officials sought to swiftly dispel any notions that Avery is being wrongly accused of a heinous crime for a second time or that Manitowoc County law enforcement officials are trying to frame him. Avery has a pending $36 million lawsuit against the county for wrongful imprisonment.

Kratz said that after Halbach's SUV was found Saturday on the Avery property by a volunteer searcher, it was immediately sealed in a container and wasn't searched until it arrived at the state Crime Laboratory in Madison. No local police had access to it, he said.

And Kratz called it "absurd" that anyone would think that someone trying to frame Avery would not only be able to plant a key in Avery's bedroom but also would be carrying around a vial of his perspiration or some other item with his DNA.

Should Innocence Project be called into question because one freed man goes on to commit another crime? That hardly makes sense, but the passionate feeling for the victim, Teresa Halbach, is very strong -- quite understandably. I'm sure people who work on the Innocence Project are feeling a lot of pressure. I'm getting phone calls and email about it, even though I do not work on the project.

"And yes, he should question their patriotism. Because they're acting unpatriotically."

Glenn Reynolds has that to say about Bush's Iraq speech. That provokes quite an outcry, as I'm sure he expected. He reports "hatemail" and responds:

[T]he Democratic politicans who are pushing the "Bush Lied" meme are, I think, playing politics with the war in a way that is, in fact, unpatriotic. Having voted for the war, they now want to cozy up to the increasingly powerful MoveOn crowd, which is immensely antiwar. The "Bush Lied" meme is their way of getting cover. This move also suggests that their earlier support for the war may itself have been more opportunistic than sincere, which I suppose is another variety of unpatriotism....

[I]t's not "dissent" that's unpatriotic... It's putting one's own political positions first, even if doing so encourages our enemies, as this sort of talk is sure to do.

"Unpatriotic" is a very hot word. If you use it, you've got to know you're going to make the other side steaming mad. They get mad, in part, because it works as such a powerful criticism and hurts their cause.

Creating a fuss over the use of the word "unpatriotic" might be a good strategy for Bush opponents though. Speaking in generalities about the grand tradition of dissent might be a somewhat effective way to detract attention from the specific problems about the current dissent that President Bush raised in his great speech. And in fact, Bush treated his opponents fairly and respectfully in his speech:

Some observers look at the job ahead and adopt a self-defeating pessimism. It is not justified....

And our debate at home must also be fair-minded. One of the hallmarks of a free society and what makes our country strong is that our political leaders can discuss their differences openly, even in times of war. When I made the decision to remove Saddam Hussein from power, Congress approved it with strong bipartisan support. I also recognize that some of our fellow citizens and elected officials didn't support the liberation of Iraq. And that is their right, and I respect it. As President and Commander-in-Chief, I accept the responsibilities, and the criticisms, and the consequences that come with such a solemn decision.

While it's perfectly legitimate to criticize my decision or the conduct of the war, it is deeply irresponsible to rewrite the history of how that war began....

The stakes in the global war on terror are too high, and the national interest is too important, for politicians to throw out false charges. (Applause.) These baseless attacks send the wrong signal to our troops and to an enemy that is questioning America's will. As our troops fight a ruthless enemy determined to destroy our way of life, they deserve to know that their elected leaders who voted to send them to war continue to stand behind them. (Applause.) Our troops deserve to know that this support will remain firm when the going gets tough. (Applause.) And our troops deserve to know that whatever our differences in Washington, our will is strong, our nation is united, and we will settle for nothing less than victory. (Applause.).

UPDATE: You know, back in the days of the Vietnam War, protesters and other anti-war folk didn't give a damn if you called them unpatriotic! In fact, "patriotic" was used as a slur. They called themselves unpatriotic. That's how I remember it -- from where I was at the time (the University of Michigan, 1969-1973).

"A panda, a carp, a Tibetan antelope, a swallow and the Olympic flame."

See, you would have thought they'd just have one mascot for the 2008 Beijing Olympics and it would be -- obvious! -- the panda. But China's having five mascots, including a carp! But it's not so bad. All but the panda seem to look like cute kids:



And remember the kooky Athens Olympics mascots?



What were they thinking?

Anyway, here's what the Chinese were thinking:

The mascots were presented as Bei Bei, Jing Jing, Huan Huan, Ying Ying and Ni Ni - which, put together reads in Chinese "Beijing welcomes you!"

"They reflect the cultural diversity of China as a multiethnic country," said Liu Qi, President of Beijing Organising Committee.

"They represent the enthusiasm and aspirations of our people, Liu Qi added.

Coloured in the five hues of the Olympic rings, the mascots also represent the sea, forests, fire, earth and air.

See, it makes plenty of sense.

IN THE COMMENTS: Starless:

"A panda, a carp, a Tibetan antelope, a swallow and the Olympic flame...What are the contents of Ed's freezer?"

"Hi-Oh!"

"Tracy should never have had children. Tracy didn't like children. She didn't like no one. Tracy wasn't affectionate with nobody."

The words of a member of Tracina Vaughn's family.

[P]rosecutors say... that Ms. Vaughn put her two boys in the bath on Sunday night and wandered off to another room to play CD's. Her current companion, Gary Young, poked his head in after 15 or 20 minutes and, though he did not see Dahquay, assumed the boy had tucked himself behind the shower curtain and then went out for diapers and some beer.

Twenty minutes later, give or take a few, Ms. Vaughn checked on the boys herself.

The boys were 3 years old and 16 months old. The younger child, Dahquay, drowned.

I SHOULD ADD: The linked article, which is quite long, is an effort to portray the mother in a sympathetic light.

"These baseless attacks send the wrong signal to our troops and to an enemy that is questioning America's will."

I'm glad to see Bush is forcefully defending the Iraq war. He needs to do that more.

Frontrunners.

WaPo's Chris Cillizza picks the likely frontrunners for the 2008 presidential race. My reaction to lists like this is what it has always been: these are all we've got? I never like any of them. These folks are out in front? Why is there no one better in front of them? At some point, we'll have to get serious and find someone we'll be able to tolerate. But ... oh, how I dislike every single one of these people! I mean I like Russ Feingold, but I can't see him as President. I can never see anyone as President.

What do you think I'm not talking about?

Yesterday, in the comments to my post on "The Apprentice," one of my regular commenters raised -- in three long comments -- a subject he thought I should be addressing. That brought these sensible remarks from another reader:

[P]erhaps you're not familiar with the concept, but there's this thing called "etiquette". The way it works is, this is Ann's blog, and she writes about what she wants to write about. So that there is some organization, she might choose to - say - talk about a silly TV show in one thread, and talk about Supreme Court nominations and the law in another. This makes it easy for the rest of us to be able to read the things we like to read, while skipping the rest.

If you have a discussion topic you'd like to propose to Ann, there's this other thing called "e-mail" that you can use. It's handy - it lets you have a private conversation without the rest of the world listening in. For example, you could suggest that she write about something that you'd like her to write about.

I suppose it is possible that you are acquainted with both of these concepts, and are simply ignoring them because you have something which you feel is so important that it must reach the Internet at once. In that case, there is an admirably simple solution: you can get yourself what is called a "blog", and write about whatever topics you wish, and people who share your interests or who find your writing interesting may join you there.

It's really a very lovely set of concepts.

He's right! But it occurs to me that some readers don't want to reveal their email addresses to me, and I don't mind taking requests, though you can't expect me to address every topic. I can't explain every point of law you want explained, and there are some topics where I don't see myself adding any value. That doesn't mean I don't think they're important. It's an attitude I'm most likely to take about things that are especially important.

Anyway, I thought it might be a good idea to put up a post where it is on-topic to raise new topics. What do you wish I would blog about or blog more about -- or podcast about?

IN THE COMMENTS: My favorite suggestion so far is from SaysMeow:

I'm hoping for a compendium post on "The Althouse Man"--you keep tantalizing us with tidbits but don't give us the full-scale doodle. So far we've learned that:

He joyfully dons his Andy Warhol wig--
Yet he does not look like a Stooge (strange, I thought Moe's haircut was quite a lot like Andy's)--
His facial hair, if any, does NOT resemble the Creepy Guy from "Joy of Sex"--
He doesn't cry in public--
He does not wear shorts, no never--
He's pro-Hadley, anti-Baxendale...or is it the other way around?

But there's so much more we want to know!

Maybe all you readers could also help me out by reminding me of various "Althouse man" elements from bygone posts.

Taking account of race, ethnicity, and religion.

Officially, the French don't:

France's Constitution guarantees equality to all, but that has long been interpreted to mean that ethnic or religious differences are not the purview of the state. The result is that no one looks at such differences to track growing inequalities and so discrimination is easy to hide.

"People have it in their head that surveying by race or religion is bad, it's dirty, it's something reserved for Americans and that we shouldn't do it here," said Yazid Sabeg, the only prominent Frenchman of Arab descent at the head of a publicly listed French company. "But without statistics to look at, how can we measure the problem?"

Should France's policy of not taking account of race, ethnicity, and religion, in light of the recent rioting, make us look more favorably on our own attention to such things?

"We will be able to control what goes on ... in Ave Maria Town."

There are a lot of reasons to move from Ann Arbor to Florida. Personally, I like Ann Arbor, though I haven't been there in decades. My mother grew up in Ann Arbor, and, like a lot of people, I went to college there. Florida? I've been there many times, and if you were trying to entice me to move to Florida, my first question would be where in Florida. I realize it can get very cold in the north and it's usually really hot in Florida -- that's a tie in my book.

But what's this plan to move Ave Maria Law School from Ann Arbor to somewhere in Florida?

"We'll own all commercial real estate," [Tom Monaghan, founder of the school and of Domino's Pizza] declared, describing his vision. "That means we will be able to control what goes on there. You won't be able to buy a Playboy or Hustler magazine in Ave Maria Town. We're going to control the cable television that comes in the area. There is not going to be any pornographic television in Ave Maria Town. If you go to the drug store and you want to buy the pill or the condoms or contraception, you won't be able to get that in Ave Maria Town."

What a creepy vision! I wonder how different the set of students that applies to the Florida version of the school will be from the set that applies to the Ann Arbor school. Obviously, Ave Maria is a school designed to attract Catholic students, but I should think a different sort of student is going to be attracted to this super-sanitized environment than would want to be in Ann Arbor. And what about attracting and retaining faculty? One alumnus complains about the shift in the school's mission, which he'd understood was "to create attorneys who were well versed in Catholic social teaching and the law, who would engage the world and not retreat from it."

Do you think there's something tainted about wanting an untainted environment?

UPDATE: I want to say that I'm not against individuals deciding they want to live in retreat from the world. We all retreat to some extent. I think calling Ave Maria Town a "Catholic Jonestown" is offensive. I deliberately left that catchy epithet from the linked article out of my post. It's plainly wrong to lump all religious retreats together and label them with the name of the very worst one you can think of. It is not inherently wrong to want to live in a convent or a commune. It's not wrong to want to separate yourself from worldly temptations. Not every individual who chooses the life of a hermit should be called a Ted Kaczynsky. Religious (and nonreligious) enclaves should be judged on their own merit.

I have two big problems with Ave Maria Town:

1. Ave Maria is a law school. You can't practice law separate from the real world. You can't retreat and purify yourself. You have to become involved with the complexities of life, not shrink away from them.

2. Ave Maria has an existing faculty and student body who came to the law school that exists now in Ann Arbor. To move the school to Ave Maria Town imposes a radical change on them. Their opinions about whether the move is a good idea need to be taken very seriously. This isn't a matter of an individual deciding to go into retreat. Monaghan is deciding that others, who have adopted one way of life, need to live in a more purified environment.

"Two men in one-foot-tall bee-hive wigs, huge bug-eye sparkly sunglasses, fluffy dresses, bling and long gloves chatted happily."

Fetish Night at the Cardinal Bar -- a once-a-month event, here in Madison.

Attacks that make ordinary people think is that all you've got?

Pseudo-punctilious Alito opponents serve up a morsel of controversy.

UPDATE: Now that the concept of "superprecedent" has been created to beat down the Bush nominees, it's time for a new one -- you know: super-recusal. Some legal scholars attach special significance to what they call super-recusal, which is...

Military blogs.

Here's a nice entry point if you want to read military blogs. There are 576 military blogs written from 17 countries, and you can group the blogs by country or by gender, language, branch, etc. There's also a top 100 list, based on votes by members.

"The Apprentice."

Great episode tonight. I don't know why things like that still surprise me. Feel free to spoil in the comments. I have a new favorite character tonight after having a single favorite character since the first episode.

"If you see ten troubles coming down the road, you can be sure that nine will run into the ditch before they reach you."

Calvin Coolidge said that. If I had paid attention to that advice this week, I would have saved $67. But how did I know I wasn't dealing with the one-in-ten-thing that needed a remedy?

Can Congress force television cameras on the Supreme Court?

The L.A. Times reports on a bill that would impose television cameras on the Supreme Court:

Under [Sen. Arlen Specter's] proposal, which he introduced last month, cameras would be removed only if a majority of the justices determined that their presence would undermine the due process of a litigant in a specific case....

The public affairs network C-SPAN broadcasts gavel-to-gavel coverage of House and Senate floor sessions, and the network's Chairman and Chief Executive Brian P. Lamb told the Judiciary Committee that he had written to Chief Justice John G. Roberts Jr. offering similar coverage of the high court.

"The judiciary has become the invisible branch of our national government as far as television news coverage is concerned — and, increasingly, as far as the public is concerned," Lamb said.

I would very much like to see the oral arguments on television, but I don't think Congress ought to be imposing it on the Court. At least two of the justices -- Scalia and Souter -- have strongly opposed cameras in the Supreme Court. I should think there is a decent argument that this would be unconstitutional, violating separation of powers.

What song is playing in your head today?

Some commenters are saying that my post title "Always look on the bright side of life" has got them thinking that Monty Python song in their heads.

Funny, I've got a song stuck in my head this morning. It's Lou Reed's "I'm So Free":

Oh, please, Saint Germain
I have come this way
Do you remember the shape I was in
I had horns and fins

I'm so free
I'm so free

Do you remember the silver walks
you used to shiver and I used to talk
Then we went down to Times Square
and ever since I've been hangin' round there

I get this song in my head every time I read United States v. Ballard:

Respondents were indicted and convicted for using, and conspiring to use, the mails to defraud. 215 Criminal Code, 18 U.S.C. 338, 18 U.S.C. A. 338; 37 Criminal Code, 18 U.S.C. 88, 18 U.S.C.A. 88. The indictment was in twelve counts. It charged a scheme to defraud by organizing and promoting the I Am movement through the use of the mails. The charge was that certain designated corporations were formed, literature distributed and sold, funds solicited, and memberships in the I Am movement sought 'by means of false and fraudulent representations, pretenses and promises'. The false representations charged were eighteen in number. It is sufficient at this point to say that they covered respondents' alleged religious doctrines or beliefs. They were all set forth in the first count. The following are representative:

'that Guy W. Ballard, now deceased, alias Saint Germain, Jesus, George Washington, and Godfre Ray King, had been selected and thereby designated by the alleged 'ascertained masters,' Saint Germain, as a divine messenger; and that the words of 'ascended masters' and the words of the alleged divine entity, Saint Germain, would be transmitted to mankind through the medium of the said Guy W. Ballard;

'that Guy W. Ballard, during his lifetime, and Edna W. Ballard, and Donald Ballard, by reason of their alleged high spiritual attainments and righteous conduct, had been selected as divine messengers through which the words of the alleged 'ascended masters,' including the alleged Saint Germain, would be communicated to mankind under the teachings commonly known as the 'I Am' movement;

'that Guy W. Ballard, during his lifetime, and Edna W. Ballard and Donald Ballard had, by reason of supernatural attainments, the power to heal persons of ailments and diseases and to make well persons afflicted with any diseases, injuries, or ailments, and did falsely represent to persons intended to be defrauded that the three designated persons had the ability and power to cure persons of those diseases normally classified as curable and also of diseases which are ordinarily classified by the medical profession as being incurable diseases; and did further represent that the three designated persons had in fact cured either by the activity of one, either, or all of said persons, hundreds of persons afflicted with diseases and ailments;'

Each of the representations enumerated in the indictment was followed by the charge that respondents 'well knew' it was false.

It's a case about how you really don't want the government delving into the question of whether religious beliefs are false.

The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom.

The conviction is upheld, however, because the trial judge excluded this evidence and asked the jury to decide only whether the defendants believed these things. But how do you think about whether they believe something without thinking about whether it's believable? Justice Jackson dissented, in an opinion that's one of my favorites, containing a delightful snark about judges:

I do not know what degree of skepticism or disbelief in a religious representation amounts to actionable fraud. [William] James points out that 'Faith means belief in something concerning which doubt is theoretically possible.' Belief in what one may demonstrate to the senses is not faith. All schools of religious thought make enormous assumptions, generally on the basis of revelations authenticated by some sign or miracle. The appeal in such matters is to a very different plane of credility than is invoked by representations of secular fact in commerce. Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop's fables. Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges. It is hard in matters so mystical to say how literally one is bound to believe the doctrine he teaches and even more difficult to say how far it is reliance upon a teacher's literal belief which induces followers to give him money.

UPDATE: I've changed the link for the "I'm So Free" lyrics and changed "horns that bent" to "horns and fins." One of the commenters said he thought it was "horns and fins," and that was what I'd always heard too. There are lots of lyrics sites, but how do they know the lyrics? They aren't really authoritative. I'm changing the spelling of "Germaine" to "Germain" too, even though both lyrics sites have the "e." A Google search convinces me that "Germain" is correct. But who is Saint Germain? I assume the references are to the Count of St. Germain: "a courtier, adventurer, inventor, amateur scientist, violinist, amateur composer, and generally mysterious gentleman."

Two things that came in the mail this morning.

1. The book "Drama Kings: The Men Who Drive Strong Women Crazy," by Dalma Heyn. I might take a look at that (not that anyone's driving me crazy). I'll tell you later.

2. A typed letter:

Prof. Ann,

I read with dismay your 11/6/05 column in the Journal/Sentinel on Bush and Alito.

I concluded that during the past 56 years my alma mater must have slipped considerably.

I hope that the extent of your teaching duties consists solely of teaching Tiddle-winks to over-pampered fraternity and sorority students.

The problem with Roberts and Alito is that while they may have been born with good brains; the poor devils have no hearts. Unfortunately, Bush has neither!

He added in handwriting:

And he is a damn liar!!

John Roberts to fulfill a year-old commitment to judge a moot court competition.

At Wake Forest University. Remember that the next time you feel like getting out of a commitment on the ground that you're very busy or something came up.

Always look on the bright side of life.

Chai Soua Vang, sentenced to life without parole for murdering six persons:

He called Tuesday the happiest day of his life, saying he would no longer have to deal with child support and mortgage payments.

Does the ADA just enforce existing rights for prisoners?

Linda Greenhouse reports on the oral argument in a key federalism case -- United States v. Georgia -- about whether prisoners can sue the states for damages for violations of the Americans With Disabilities Act. This is another one of those cases where the question is whether Congress has successfully abrogated sovereign immunity. The answer depends on whether the statute fits the Fourteenth Amendment power -- that is, whether the law is a remedy for the violation of Fourteenth Amendment rights (as opposed to the creation of new rights).

The man in the case is a paraplegic confined to a 12 feet by 3 feet cell 23 to 24 hours a day, where he can't turn the wheelchair around and lacks adequate bathroom facilities. He says "that guards leave him sitting in his own waste rather than assist him."

Greenhouse observes that the Justices seemed to think that the ADA in this situation dealt with mistreatment that would also violate constitutional rights, so providing for suits for damages would be properly characterized as an appropriate Fourteenth Amendment remedy.

Chief Justice Roberts posed one of the first questions. "Are you suggesting that the A.D.A. just tracks the Constitution and doesn't add to the burden on state officials?" he asked [Solicitor General Paul] Clement.

There was at most a "narrow band" of actions that the law would require but that the Constitution did not demand, Mr. Clement replied. "The prophylactic gap here is not large," he added....

Samuel R. Bagenstos, a law professor at Washington University in St. Louis and a specialist in disability rights, represented the inmate and shared the government's side of the argument with Mr. Clement. Chief Justice Roberts addressed the same question to him, adding, "I'm just wondering if that's a reasonable reading of the A.D.A., which I had always understood to change the rights of the disabled."

Mr. Bagenstos replied that there was little difference in the specific context of prisons because "this is one of the few areas where the government has an affirmative constitutional duty."

Gregory A. Castanias, a Washington lawyer arguing for Georgia, said the inmate's claims in this case went well beyond constitutional requirements. Several justices then suggested that the law might be interpreted to apply only to constitutional violations. Justice Scalia asked, "To the extent that it includes constitutional violations, why isn't that lawsuit perfectly O.K.?"

This looks like a rather easy case, though Greenhouse portrays it as a big test of where the Roberts Court will go on federalism cases. It's very much like Tennessee v. Lane, the recent ADA case about access to courtrooms. Congress is beefing up remedies for existing rights, permitting lawsuits for damages. The reference to the "prophylactic gap" -- which must mystify laypersons -- is about proscribing behavior that the constitutional alone would permit. To some extent, defining additional violations is not really the creation of new rights, but is genuinely remedial of existing rights.

In the classic case, as characterized in later cases, the Voting Rights Act of 1965 proscribed various practices but did so as a way of controlling race discrimination, which, of course, violates the Fourteenth Amendment. So the rights prisoners have under the ADA may be more extensive than the Constitution alone gives them, but they could still be viewed as a way to enforce constitutional rights. Complicated, but it looks as though the prisoner will win.

Is Alito libertarian and, if so, what should liberals think about that?

Lawprof Ilya Somin identifies a "libertarian streak" in Samuel Alito. What is the evidence?

1. Two Free Exercise cases -- which I called attention to here. Alito was quick to see a nonneutral policy and to invoke strict scrutiny protection for plaintiffs who asserted the government burdened their exercise of religion.

2. Alito's dissenting opinion in Rybar, a Commerce Clause case, which would have limited federal power with respect to gun possession. Somin's point is not that Alito cares about gun rights. (The opinion says nothing about the states' power to ban gun possession.) He's guessing that Alito would leave more room for states to protect liberty interests than the majority of justices who recently decided that federal law trumped state law in the medical marijuana case, Raich. Notably, Scalia was in the majority in Raich, and Somin's point is that Alito is a stronger supporter of state autonomy than Scalia. There are two problems with reading Rybar as showing a "libertarian streak." 1. States can also use their autonomy to restrict liberty (unless rights are enforced to limit their anti-libertarian policy experiments), and 2. Alito's Rybar dissent looks like the work of a lower court judge who is mainly trying to apply a new Supreme Court precedent correctly, so we can't extrapolate that he would behave the same when he is a Supreme Court judge. But here's Somin's point:

In an era when control of Congress and the presidency will often be in the hands of conservative Republicans, constitutional limits on federal power benefit liberals at least as much as conservatives. Many liberal policies have far better political prospects in "blue states" than in Washington. To cite a few recent examples, Republicans have intruded on states' traditional control over education policy, have overridden state laws legalizing medical marijuana (as in Raich), are trying to use federal power to undermine gay marriage laws established at the state level, and are currently litigating a case before the Supreme Court that would enable the federal government to override Oregon's decision to legalize assisted suicide.

For the last 20 years, I've been making the argument that liberals should see the good in protecting state autonomy. What I find is that they worry so much about the harm states might do with autonomy that they won't take the risk in the hope of getting benefits. Part of this mindset is that they still believe they can get the policies they want from Congress and that the power to impose that policy on all of the states is too good to sacrifice. I haven't thought so much about whether libertarians as opposed to liberals should find state autonomy appealing. Maybe they have a different mindset and have different predictions about what states would do with more autonomy.

3. Free speech:

In Saxe v. State College Area School District (2001), he concluded that anti-harassment rules should not be allowed to infringe on free speech in a case where a public school anti-harassment code was used to forbid expression of some students' religiously based opposition to homosexuality. He has also written opinions protecting commercial speech, notably in Pitt News v. Pappert, where he struck down a ban on paid alcohol advertisements in student newspapers. Expansive definitions of "harassment" and restrictions on commercial speech are two of the most important threats to free expression today. Libertarians have every reason to welcome this aspect of Alito's jurisprudence. Liberals, too, have reason at least partially to embrace Alito's positions here. After all, school anti-harassment codes can just easily be used to stifle gay activists' criticisms of religious conservatives as the reverse. And the latter probably control more school boards than the former do.

4. Immigration:

Alito showed some libertarian leanings in a key immigration case. In Fatin v. INS (1993), he wrote an opinion holding that an Iranian woman could be entitled to refugee status based on the Iranian government's oppression of women and on her support for women's rights. Fatin was not a constitutional case, and was partially based on deference to agency judgment. Still, Alito embraced a more expansive vision of refugee rights than is accepted by many conservatives, and advocated a broad definition of asylum rights for victims of gender-based persecution.

How should liberals react to the Alito nomination? Bush has the appointment power and will pick from the pool of those he imagines will be conservative on the Supreme Court. Given the range of possibilities, what should liberals prefer? Perhaps they should prefer the most ambiguous sort of "stealth" nominee with the hope that he or she will turn out to be a liberal on the Court. (Hence, the lack of opposition to Harriet Miers.) But Somin makes the argument that liberals should find the libertarian sort of conservative at least somewhat appealing:

[T]hey should think seriously about whether they would rather have a conservative with a significant libertarian streak like Alito or a pro-government conservative who will be just as likely to overturn Roe, but less likely to vote to restrict government power over religious freedom, free speech, or immigration.

Finally some recognition for a Wisconsin achiever.

Johnny Lechner, the "genius of self-promotion" who has made a lucrative career out of not graduating from college, makes the front page of the NYT:

[T]he makers of Monster Energy Drink deliver 30 cases a week, along with advertising posters and condoms, to the house where Mr. Lechner lives and parties, in exchange for his endorsement of Monster as "the official energy drink" of his 12th college year.

He has signed with the William Morris Agency, which is marketing a reality television series based on his life at the University of Wisconsin at Whitewater. And in recent days he has referred to interviews with The New York Times on his personal Web site, anticipating new publicity from this article.

The dizzying whirl of sudden celebrity has not been easy, Mr. Lechner said.

"I'm really stressed out," he said. "All the money, the book deals, the agents. It's just crazy."

Of course, he has a website. How could you even begin to be a genius at self-promotion without a website. Clearly, he's doing especially well by remaining a student, so any arguments about how he needs to get on with his life don't make sense. Worry about graduates who are going nowhere, not him.

Why women don't like The Three Stooges.

That men love The Three Stooges and women don't is one of the classic old topics in the unending discussion of the differences between men and women. Without researching the conventional theories on the subject, I'm going to assume that people are following the rule I say scientists follow when they report research on the differences between men and women: Portray whatever you find to be true of women as superior. So it would go that men are simple-minded and love violence, while women appreciate complexity and abhor violence. (I'm eschewing this digression right now.)

I was talking about The Three Stooges on Audible Althouse #19, last night, tracking the blog post of mine about that Stanford study and, as is the Audible Althouse way, digressing:

When I was a kid, there was a real tomgirl in the neighborhood who just loved The Three Stooges, loved them so much -- really thought Moe was funny. Most of the girls just thought Curly was kind of sweet and liked Curly a lot but found Moe really a little too frightening, a little too disturbing. And Larry was just ... uh ... Larry was ... kinda ugly.

This prompted Steve Donahue, in the comments here, to defend Larry Fine:

Larry is indisputably the funniest of the Stooges. Much like the Zippo you defend, Larry is reliable and funny in an understated way. If you ever get a chance to watch another Stooges Short, do nothing but watch Larry. His reactions to the physical comedy are excellent; it's easy to forget when you watch him that they're not really smacking the hell out of each other.

I respond to Steve over there in the comments:

Steve: That was a vague memory of what young girls (other than the tomgirl) thought of the 3 Stooges in the late 50s/early 60s. I think we were distracted by Moe and Curly, who called more attention to themselves. I'm willing to believe what you say about Larry is true. In fact, I'd rather completely concede it than watch the 3 Stooges. I do think guys who love the 3 Stooges and comment on the fact that women don't are failing to take adequate account of how physically ugly these men were.

So, yeah, I wanted to front-page this point. Maybe if The Three Stooges were physically attractive -- at least to The Marx Brothers level -- women might be willing to watch them. The assumption is that women want more language-based humor, while men are more visual, but maybe a big part of the problem is that the humor is visual and the men are ugly.

Think about it! Which comediennes do men respond to? (Sorry for being so heteronormative here!) Who are the comediennes men don't like so much? There's a physical attraction element here!

And you know how women are always saying the number one thing they want in a man is a sense of humor? You know they aren't picturing Larry Fine coming into their lives.

UPDATE: "You know they are picturing Larry Fine" was a typo, now corrected. And believe me, it wasn't a Freudian slip. I am not longing for Larry!

Budhia, the three-year-old marathon runner.

Sold by his poor mother for 800 rupees, the tot is famous now in India. He's run 33 miles in 6 hours. Child abuse? Or is this some super boy?

[His mentor] Mr Das, a judo coach, noticed Budhia's talent when scolding him for being a bully.

"Once, after he had done some mischief, I asked him to keep running till I came back," Mr Das said.

"I got busy in some work. When I came back after five hours, I was stunned to find him still running."

I would like to believe in Superboy, but I think something is very wrong here.

Audible Althouse, #19.

The new podcast is an hour long. Topics: male and female brains, 3 Stooges comedy, 3 Stooges sex, the Marx Bothers, some Halloweenish thoughts about the new Supreme Court, heteronormativity, military memoirs, lawprof bloggers, good and bad commentary about Samuel Alito, why so many Catholics have been nominated to the Supreme Court, the affinity between physicists and religionists, the politics of Intelligent Design, and the demand for nuanced reporting on the riots in France.

A political vault over the casket of Rosa Parks.

Here is Jesse Jackson's execrable anti-Alito rant. Ugh.

UPDATE: I deleted the long quote. I didn't like the way it looked, taking up all that space at the top of the blog. Go over there and read it. It's disgusting and completely distorted and unfair to Alito.

ANOTHER UPDATE: Todd Zywicki takes special interest in Jackson's promotion of the "Constitution in Exile" conspiracy theory.

MORE: Steven Kaus at Huffington Post reads this post as flaking out over Jackson's use of the term "Constitution in Exile." Makes you wonder about Kaus's ability to read and present things straight, doesn't it? I admit I could have itemized what I didn't like about Jackson's piece, but I just didn't want to bother with it.

"The guy who says 'you stole my stuff' is always the jerk."

The movie "Jarhead" includes some stories that did not appear in the memoir "Jarhead." If those stories did appear in another memoir, do the moviemakers owe its author?

William Broyles Jr., the screenwriter and former marine who adapted Mr. Swofford's book for the movie, said that Mr. Turnipseed was confusing his own experience with the received wisdom of being a marine.

"The joke about the gas mask has been told 10,000 times," Mr. Broyles said by phone. "It is not his joke or mine."

Mr. Broyles admits that there are coincidences. But he says they are just that.

In [Joel] Turnipseed's book ["Baghdad Diary"], a colonel "burst onto the stage, grabbing the microphone from its stand while still in stride, like Wayne Newton doing Patton."

In the shooting script for "Jarhead," stage directions command that "Lieutenant Colonel Kazickis mounts a makeshift stage, grabbing a microphone in mid-stride like a Vegas M.C." What follows is a profanity-laced scene of call and response that is remarkably similar in both plot and language to the scene that follows in Mr. Turnipseed's book.

So are you with Turnipseed or Broyles on this one? Before you answer, compare how the two men express themselves.

Turnipseed:

"There is no way that I am going to come out ahead on this," he said. "The guy who says 'you stole my stuff' is always the jerk, but this is not something that is based on a scene I did; it is verbatim dialogue."

Broyles:

"I feel bad that he feels bad," Mr. Broyles said, adding that he had read and admired "Baghdad Express." "Maybe some of it stuck in my mind or maybe it was already there," he said.

"I don't have any conscious memory of using anything out of his book," Mr. Broyles said. "I can remember reading it and thinking, this guy really has it down. It was one of those unintentional coincidences that is frustrating for him, but there has been no effort to take anything from him."

I'd say it's obvious that they need to give Turnipseed a lot of money right now. And have him sign a statement not to say anything more about your movie. Because when he talks and Broyles talks? Everyone likes Turnipseed. And tell Broyles to shut up about it too.

Intelligent design.

If you're worried about Kansas:

The fiercely split Kansas Board of Education voted 6 to 4 on Tuesday to adopt new science standards that are the most far-reaching in the nation in challenging Darwin's theory of evolution in the classroom.

The standards move beyond the broad mandate for critical analysis of evolution that four other states have established in recent years, by recommending that schools teach specific points that doubters of evolution use to undermine its primacy in science education.

You may want the courts to stop this immediately.

But remember that democracy works too:

Voters on Tuesday ousted a Pennsylvania local school board that promoted an ''intelligent-design'' alternative to teaching evolution, and elected a new slate of candidates who promised to remove the concept from science classes.

ADDED: It's too simple, however, to point to what happened in Dover, Pennsyvania as proof that democracy is all the correction that is needed. That vote took place in the context of an ongoing trial:

For the last six weeks, the teaching of intelligent design has been challenged in federal court by a group of Dover parents. They said the concept is a religious belief and therefore may not be taught in public schools, because the U.S. Constitution forbids it. They also argue that the theory is unscientific and so has no place in science classes....

The trial, which attracted national and international media attention, was watched in at least 30 states where policies are being considered that would promote teaching alternatives to evolution theory.

We have to take into account the effect of this litigation on the voters:

1. It may have educated and persuaded voters that teaching intelligent design is a bad idea.

2. Even if they still like the policy, they may want to avoid the bad publicity the litigation brought to their town.

3. They may still like the policy but be averse to the expense of the litigation.

Without lawsuits (and the threat of them) the democratic process would play out differently.

"Heated bra aims to save the world."

That's a headline at the BBC website.

A reinvigorated Supreme Court.

Linda Greenhouse describes the Supreme Court "in the midst of a generational shift": an aging Justice tells the new young Chief Justice to call them by their first names ("I'm Nino"); Justice Ruth Bader Ginsburg was seen about town "laughing and kidding" with her husband; Justice Thomas asked two questions at an oral argument the other day (amazing!); Justice Stevens cracked a (very mild) joke on the bench the other day.

As Greenhouse analyzes it, it's not so much the arrival of a vigorous new man as being free of the the sickly old man:

The explanation for the court's mood is no mystery. It is relief. The justices who lived through the long year of Chief Justice Rehnquist's battle with thyroid cancer are survivors of a collective trauma, the dimensions of which are obvious only in retrospect.

After a description of that "trauma," which culminates at Rehnquist's funeral, Greenhouse's article ends with these two paragraphs:

Flash forward barely two months to an ordinary argument day in the courtroom, when a light bulb above the bench suddenly exploded with a jarring bang that brought court police officers to their feet. There was a tense silence before the benign explanation became clear. It was "a trick they play on new chief justices all the time," Chief Justice Roberts commented.

The incident occurred on Halloween, not a day when the chief justice could linger in his chambers. He had to get home, where, disguised as Groucho Marx, this father of two young children greeted the neighborhood trick-or-treaters at his front door.

The NYT, perhaps, found it "unfit to print" a transition that would have connected the trauma of William Rehnquist's death to the Halloween lightbulb burst and the new Chief Justice dressed as a zany comedian. Surely, it must have been tempting to write that it was the ghost of the old Chief that burst the bulb and that the new Chief's costume speaks of lighthearted happiness, while the dying old Chief, traumatizing everyone, by contrast seemed a ghoul.