July 14, 2007

"They had food; they just chose not to give it to their kids because they were too busy playing video games."

"As we become more technologically advanced, there's more distractions. It's easy for someone to get addicted to something and neglect their children. Whether it's video games or meth, it's a serious issue, and (we) need to become more aware of it."

Please. Take some responsibility. This is an old, old problem. That the details are new is irrelevant. You're not special because your selfish indulgence is high tech.

So, what do you want to know?



Ask me some questions and I'll vlog a response. Isn't that what Rosie O'Donnell does? I'd like to try that.

The connection between Louis CK's stupid dog and the one time in my life that I broke a bone.

You know Louis CK, the comedian? This is just a little film clip of his dog, doing something that he found amusing enough to post on YouTube:

Wow! I saw a dog doing that one time. It was 1970. I thought it was hilarious. I was so entertained I kept watching it, not looking where I was going, and I walked into a bicycle and broke my toe.

"This is not a case that should occupy the mind of a person who has anything consequential to do."

Writes Dennis Jacobs, the Chief Judge of the 2d Circuit Court of Appeals. (Via Eugene Volokh.)
I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it. I suppose this is unusual, so I explain why.
Well, at least he feels a need to explain. I'm waiting for a federal judge to do the full Bartleby the Scrivener routine and say "I would prefer not to."

"He did not want to resemble a refrigerator or Jabba the Hutt, he said, but Sophia Loren with a couple of hundred extra pounds."

John Travolta reenvisions Edna Turnblad:
His Edna, unlike the greasy Gorgon created by Divine in the 1988 John Waters original or the Kabuki hausfrau rendered so memorably by Harvey Fierstein in the 2002 Broadway musical adaptation, has cleavage and a waist and a kind of geologic sex appeal....

“Playing a woman attracted me,” Mr. Travolta said. “Playing a drag queen did not. The vaudeville idea of a man in a dress is a joke that works better onstage than it does on film, and I didn’t want any winking or camping...."...

There was no film precedent for this approach to Edna. Though Dustin Hoffman in “Tootsie” and Robin Williams in “Mrs. Doubtfire” did well donning drag, they were playing explicitly male characters who for plot reasons needed to dress as women....

"[H]ow do I convince you I’m a woman doing that and make you want to watch her for an hour and a half?”

Having grown up the youngest of six children in a bohemian working-class family in Englewood, N.J., he modeled his idea of a watchable woman on his “very sexy mother” (Helen Travolta was a high school drama teacher and sometime actress) and on the bombshells in the European movies they enjoyed: Ms. Loren, Anna Magnani, Anita Ekberg. “I’m not as beautiful as any of those people,” he said, “but I’m not unpleasant to look at, and I thought: ‘This is my library. Not grandmas or Aunt Bee from Mayberry, but the kind of person a blue-collar woman would aspire to be if she had money. What if that kind of woman had gone to flesh?’ ”
Impressive. But what of the argument that the those who care about gay rights should boycott "Hairspray"?
In a blog entry posted in May on the Web site of The Washington Blade (washblade.com), a gay newspaper, Kevin Naff, its editor, called for a boycott of “Hairspray” because of Mr. Travolta’s membership in the Church of Scientology, which he described as a cult that “rejects gays and lesbians as members and even operates reparative therapy clinics to ‘cure’ homosexuality.” In a subsequent editorial Mr. Naff added that Mr. Travolta’s appearance in the “iconic gay role” is “even more galling given all the gay rumors that have followed him for years.”
There would be an awful lot of boycotting if we avoided movies starring any actor who belonged to a religion that held a belief we found abhorrent. But maybe a special case should be made if the role is somehow "iconic" for you. Travolta makes the point that Edna is not a gay role. Edna is a heterosexual female, traditionally played by a male. As the article points out, this is like the stage play "Peter Pan," where there is nothing gay about the character, but an actor of the opposite sex is always cast in the role.

Let's look at how Naff put it -- in writing and in this fair-and-balanced fight with Bill O'Reilly:

My thought on watching that was that people should go to the movie if they want to see it, but Naff did a great job of picking an issue that would get him some publicity and he handles his argument well even if he persuades no one.

What are you going to do with the subject of whether religions offer people fraudulent treatments? It's one thing if a psychologist purports to be able to cure homosexuality, but religions purport to solve all sorts of problems, including mortality. I can see why gay rights activists think it makes sense to single out one issue to make a big deal about, but boycotting the work of one religion's adherents seems wrong. Many religions are negative toward gay people. The only thing that makes Scientology stand out is that its approach resembles what therapists do. But it's a religion!

"The whole purpose of science for some Islamists is using it to reinforce faith; it really has nothing to do with science itself."

The conundrum of the terrorist doctors:
Muslim scientists are among the most politicized groups in the region, and the Muslim approach to the scientific method, in the most extreme cases, can squelch the freewheeling curiosity at the heart of scientific discovery.

“Fundamentalist-type attitudes are relatively common among people in applied science in the Muslim world,” [said Taner Edis, author of “An Illusion of Harmony: Science and Religion in Islam.”' “The conception has been that modern science is developed outside, and we need to bring it into our societies without it corrupting our culture.”...

For Islamists like Zaghloul el-Naggar in Cairo, the host of a popular television show about the Koran’s scientific teachings, all science can be discovered within the Muslim holy text, from the cause of earthquakes to genetics. Such direct links between science and religion ultimately hamper the scientific method by making some questions taboo, analysts say.

“You have the emergence of a new kind of religious figure who is not a cleric, and all of his authority is as a scientist,” said Todd Pitock, who profiles Mr. Naggar in an article about Islam and science in the July issue of the magazine Discover. “The whole purpose of science for some Islamists is using it to reinforce faith; it really has nothing to do with science itself.”

Medicine and engineering have long been the most prestigious professions in the Arab world, and many of its most illustrious writers, thinkers and politicians have risen through engineering and medical schools....

“Wherever you go in the Muslim world, those who are most violent and most extremist are the ones who have the most scientific tendencies,” Mr. Abu Hanieh said. “One could even argue that sciences might contribute to increasing one’s radical thinking if the radical finds justifications to his philosophy through science.”
Key phrase: "applied science." The dedication is not to pure science but to using science to do things. Many individuals become doctors to gain prestige and power. They don't love science; they love what they can get by knowing it. It's not surprising, then, that some of those who learn medicine in a severely religious culture are drawn into meshing their science with religion.

Approving of men's shorts.

Not me. You know what I think. But here's some expert opinion, approving, but setting stern limits:
I am so tired of the enormous, giant, and baggy cargo shorts from seemingly every American mall brand...

I'm still trying to find a shorter short that seems right for me.
Check the pictures. Do you look like these guys? They're all slim and tan. But the second picture? The one in the Converse sneakers? That exemplifies the biggest problem with a man in shorts: He looks like a large child. And not in cute, boyish way. In a "I'm standing around waiting for my mommy" way.

"We have been created diseased, by a capricious despot, and then abruptly commanded to be whole and well, on pain of terror and torture."

The horror of creationism, as phrased by Christopher Hitchens, responding to the statement by Michael Gerson that "In a world without God, this desire for love and purpose is a cruel joke of nature -- imprinted by evolution but designed for disappointment."

July 13, 2007

Usually, it's a large cappucino and a laptop.


Sometimes, it's a small espresso and a book

"That night, when I was insulted and disrupted, I lost my heart; I lost my sense of humor."

Says Michael Richards, referring to his disastrous n-word rant. "I've retired from that. I'm taking time off to feel myself out, get to know myself and appreciate other people." Like so many Westerners before him, he pictures Asia as the place to search for wisdom:
Richards, 57, and actress Beth Skipp traveled to remote temples before visiting Angkor Wat on a tour sponsored by the Los Angeles-based Nithyananda Foundation. The sect adheres to the teachings of 29-year-old Hindu monk Nithyananda — an avowed "enlightened Master and modern mystic" who's referred to by his followers as "swamiji."...

"I'm not a part of the group. I'm not a devotee. Like I said, I don't wear club jackets, but I honor all the clubs," Richards said. "Life is not always about us or making people laugh. I'm trying to understand the humanity that I am, that I belong to. So, in that sense, I'm part of a group: humanity."...

"What constitutes spirituality is heart," Richards said. "Making people laugh is something else — I did 'Seinfeld' for 10 years — it lightens things up, helps people enjoy the world they live in more. I've had people call me from hospital beds and tell me, 'That Kramer character got me through it. Thanks.' It's pretty simple, you know, the feeling of opening yourself up to others.

"You go through a country like this and see the people close to the land. I see the heart they put into their homes and their lives. I see their children: open-eyed and cheery. You're in the middle of the country and they're waving at you from a motorcycle. When you're right there at that living connection, that's spiritual."
It seems to me that Richards has some pretty scattered thought patterns. He's sort of a tourist and he's picking up a little religious vibe -- either by seeing a bit of swamiji or motorcycling past some little kids.

He was best -- and at least he knows it -- when he was on a script, a good script. He's a comic actor. He doesn't really have much to say. Spirituality. Okay. Fine. It's just too bad he went on the stage off script and said things that make it hard for people to accept him as an actor inside a role -- even retrospectively, as Kramer.

"I asked Breyer why Roberts had failed in his efforts to achieve consensus and whether he might ever come closer to achieving these goals."

Writes Jeffrey Rosen in a New Republic article (with subscribers-only access):
"Will he do better in the future? He can join my dissents!" Breyer replied with a chuckle.....

Breyer self-consciously embraced the mantle of restraint. "To a very large measure, judges have to be careful about intruding in the legislative process," he said. "[R]uth and I have been among the ones less likely to strike down laws passed by the legislature, and, by that measure, we're not very activist." Far from being a cautious or defensive posture, bipartisan restraint has always been rooted in liberal self-confidence--confidence that, given a fair opportunity, liberals can fight and win in the political arena. The fact that conservatives now rely on the Court to win their battles for them--striking down democratically adopted campaign finance laws and integration programs--is a sign of their weakness.

Breyer and his liberal colleagues were not unwavering in their restraint this term: They dissented from the partial-birth abortion decision, despite the fact that bans on the procedure are supported by bipartisan majorities in Congress and in most states. When I asked Breyer how he reconciled this dissent with his commitment to judicial deference, he demurred. "The only question for me was, am I suddenly going to overrule a whole lot of precedent? No. That's a strong basis." Liberals, in fact, could have reconciled their commitment to precedent and judicial restraint by upholding the partial-birth law while insisting it include a health exception. But no one is consistent in every case; and the activism of liberals here was an exception, not the rule.

Judged by their willingness to defer to legislatures, liberals are now the party of judicial restraint. Conservatives have responded to this embarrassing turnabout by trying to rob the term of any neutral meaning. In a series of unintentionally hilarious editorials, The Wall Street Journal praised the Roberts Court for "restoring business confidence in the rule of law and setting limits on the tort bar and activist judges." Spare us the twistifications. For more than 50 years, conservatives have insisted that judges should defer to legislatures and let citizens resolve their disputes politically. But, at the very moment they consolidated their Supreme Court majority, they have abandoned this principle and embraced the activism they once deplored. I hope that Chief Justice Roberts, over time, will achieve his welcome goal of transcending the Court's divisions and helping conservatives rediscover the virtues of modesty and deference. But, for now, the party of judicial restraint has a convincing spokesman in Justice Breyer.
I like judicial restraint myself, and I think Breyer actually does deserve the mantle of restraint as much as any of them. Of course, he doesn't keep it on all the time. Rosen conveniently -- and unintentionally hilariously -- declines to mention abortion rights and all sorts of other cases where Breyer votes on the side of individual and minorities and against the choice of the majoritarian political process. It wouldn't be much of a Constitution if the political choice always won. But it's good to have someone on the Court who will openly express the philosophy of restraint.

ADDED: Wait! Rosen does mention the abortion case in the middle paragraph there. Well, then he contradicts himself in his final paragraph. So Rosen conveniently -- and unintentionally hilariously - forgets his previous paragraph.

"Born in the early 1960s in Berkeley, California, to beatnik parents..."

That's pretty cool. Describes Dr. Helen, who's got this week's Normblog profile. And I'm not just flagging this because she listed this blog as one of her 3 favorites.

And if you like Normblog profiles, the whole archive of Normblog profiles appears here -- in an order I consider absurdly arbitrary, but like nonetheless: alphabetical order.

IN THE COMMENTS: Oddly enough, the subject is what life in Heaven is like.

Waiting for the blogger conference call with John McCain.

The song playing on hold: "Foolish Heart." I love this song, actually. Steve Perry. Don't know if "Foolish Heart" is the right message for a candidate, but I do like it.

MORE: He concedes the campaign has "financial problems." "The responsibility is mine and mine alone." He's sorry he had to "part company" with "some dear friends."

YET MORE: First two questions are about the war, with the expected answers. Third question is about the campaign's money. The fourth question begins, "Hello, Senator, how're you doing?" He gives a genuine laugh and says "In the words of Chairman Mao, it's always darkest before it's totally black."

AND: He says people keep asking him -- about Iraq -- "What's your Plan B?" He wants to know "what's their Plan B?" That is, those who want the war to end refuse to face up to the chaos that would ensue. They have no plan for how to deal with it. He's asked if he cares enough about Iraq to cut back on campaigning and "exert some leadership" in Congress. He says he will do "whatever is necessary," and he'd "rather lose a campaign than lose a war." He'd find it "difficult to shave in the morning" if he thought his campaigning were in any way burdening those who are sacrificing in Iraq.

On another topic: The Republican "base" became "dispirited" because of overspending. The "bridge to nowhere" was a "tipping point."

AND: What will he do about the war if his campaign fails and none of the candidates who are left have the strong position that he had? The idea of preferring to lose a campaign to losing a war doesn't really add up if he's forced out of the campaign because people don't like his position on the war, does it? You can say you want to move back to the Senate and fight for the war there, but how will that work if the remaining candidates seem to express the idea that people want a weaker stance on the war? His answer is mainly about the enthusiasm he encounters when he appears at a campaign stop and the standard campaign concept that he needs to "get our message out."

There is time for another question, but there are no more questions. He says "Oh, no!" in a humorous way.

NOTE: Since there was room for more questions, why didn't I ask one? Am I so apathetic about McCain? The fact is, I'm writing this in a café, with loud music playing, and I did not have the option of going off the listen-only mode.

State legislator who thinks there are "too many attorneys" convinces state assembly to cut all funding to my law school!

Here's the news from Madison:
"We don't need more ambulance chasers. We don't need frivolous lawsuits. And we don't need attorneys making people's lives miserable when they go to family court for divorces," said Rep. Frank Lasee, R-Green Bay. "And I think that having too many attorneys leads to all those bad results."
Oh, yeah... people have legal problems because of the lawyers. All those divorced people? Divorce lawyers are to blame. What utter lameness! What an embarrassment to the state!

I agree that there shouldn't be frivolous lawsuits, but how do you get a court to dismiss a frivolous lawsuit? You need a lawyer. And how do you get lawyers not to file frivolous lawsuits? You train them well so they know what is frivolous and what isn't and so they have the professional ethics not to use the legal system to harass people.

Good lord, it's one thing for one legislator to think so poorly, but quite another to convince the assembly to vote along with him.
But it's not that bad:
The plan appears to have little chance at surviving negotiations between the Assembly and Democratic-controlled Senate and being included in the Legislature's final budget.

Even if it did, Gov. Jim Doyle would likely veto it. Doyle, whose late mother was a beloved administrator at the law school, said Thursday that the plan was "a really bizarre thing that came out of nowhere."
What weird emotionalism in government! The governor's dead mother will help to get to the right result? She has no more place in the story than Lasee's fervid thoughts about too many lawyers.

Analyze it rationally, and you'll see that if the funding is cut the law school won't shut down. It will only raise tuition:
[Law School Dean Ken] Davis said ... [t]he school receives only $2.5 million per year in state funding, or 10 percent of its $20 million budget. Still, it would have to increase its $12,600 annual tuition, which is the lowest in the Big 10 Conference and enables many low-income students to attend.

"That would be a very bitter pill to swallow for us," Davis said. "We have a national reputation for access to legal education."
There's an easy emotional argument within reach here: Republicans only care about the rich.
Lasee said he would welcome a significant tuition increase for prospective lawyers or a cut in the school's 810-student enrollment.

"When we have an overabundance of attorneys already, there's no point in subsidizing the education of more attorneys," Lasee said.
Yes, the profession will be improved once you've limited access to the people who have the most money to spend on education. Brilliant.
The proposal, made public the day before the vote, prompted wide speculation. Was a lawmaker angry the school rejected him? Were the cuts retaliation against professors who called a sex offender tracking law unconstitutional? Were they punishing the Innocence Project for freeing a man who later killed a 25-year-old woman?
Yes, legislators, why do you hate us? Well, everyone instinctively hates lawyers and lawsuits, and this is essentially a healthy gut reaction. But you need to think a little harder and see why we need a legal system, why we should deeply value the rule of law and the role lawyers play in preserving it, and why legal education is part of that.


ADDED: A post with amusing comments over at Above the Law.

MORE: My colleague Marc Galanter provides some information relevant to the question whether there are too many lawyers in Wisconsin:
Wisconsin, with about 2.% of the U.S. population, has about 1.2% of the country's lawyers.

The ratio of population to lawyers in the U.S. in 2000 was 264/1. In Wisconsin it was 401/1.

Among the 51 jurisdictions (50 states and D.C.), the Wisconsin's population to lawyer ratio was 38th in 2000.

Wisconsin's lawyer population is slightly older (median 50 vs. 47) and significantly less female (22% vs. 27%) than the nation as a whole. This suggests that it has not been growing at as high a rate as the nation as a whole.

In short, Wisconsin seems to have about one third fewer lawyers per capita than the rest of the country and it's not catching up.

Is this a lawyer deficit? Research has shown a correlation between economic growth and lawyer population. Causality may run in either or both directions. But it is clear that lawyer population does not have an inhibiting effect on economic growth.

The lawyer population also seem to be associated with such non-market goods as civil liberties and political democracy.

(Marc's comment is based on research done done by the American Bar Foundation, Frank Cross, and Charles Epp. It dates back to 2000, but Marc says "there is no reason to suspect that any of this has changed more than marginally.")

Charter Communications is annoying me.

So, I finally got a post up this morning. The time stamp is 7:45, but it went up at 11:39. For about the 7th time in the last 4 days, my internet connection cut out. It's constantly on and off.

Last night, it was on, then off, and I called Charter Communications and went through the familiar layers of the automated program until I got to the part where I was told that all the human beings were busy, so why not just get started with the help of the pleasant-voiced robot lady? Okay. Actually, I liked working with the robot lady. She didn't bug me with preliminary questions like what are the last 4 digits of my "social."

But then she misunderstood one of my answers and got onto a path of questions that were all wrong. Exclamations like "stop" and "you've misunderstood me" and "you're wrong, wrong, wrong, shut up, stop" all failed to get her attention. The connection restarted for some reason, so I just hung up. But an hour later, it was off again, and I was back on the phone. We got it fixed again, but an hour later it was off again. I shut the computer down and went to bed.

This morning it was working, and I wrote the long post about the Hindu priest, but then the connection cut out just as I needed to leave the house and go to an eye doctor appointment. No time to stop at a café and publish the post. After a morning spent answering questions like "Is it better this way or this way?" -- which in another context could be exciting questions -- I dropped back at home to see how things were. Still out. I relocated to a café so I could get on line without layers of robotic questions... and get some coffee.

I'm so annoyed with my Charter Communications service right now. They help you when you call, but I'm sick of calling only to lose the connection later. Maybe I'll just cancel all my service. I'll have to leave the house to get a high-speed connection and I'll just dial up at home. It would inject some moderation into my internet habit. But what would it do to my coffee habit? But it's all temporary, since I'm moving to Brooklyn in a few weeks. That's why I'm not in the mood to spend any time fixing problems. Perhaps I will think of that as liberating.

On a different level: life itself is temporary. Maybe you shouldn't consume too much of your time trying to fix your problems. Live while you can.

And yet a different level: Do you think when eye doctors have sex, they're all "which is better #1 or #2, #3 or #4"?

The tallest man in the world...

... and the shortest. Together. What difficulties in both conditions! I wonder which way is harder. But if you must be extremely and inconveniently tall or short, you may as well be the shortest or the tallest and have the glory of setting the record. The two men -- Bao Xishun and He Pingping -- look happy enough, and let's hope they are.

I note that the tall man -- Bao -- is 59 years old and has just married a 29 year old woman. Here they are in their magnificent Mongolian wedding costumes. I love the clothes.

Do they look strange together? The woman is two thirds his height... but only half his age. The height disparity is less than the age disparity. Whatever. She loves him:
You need to have feelings for someone to be in love. Even if he is a big shot, you can't love him without feelings.
Good point! You shouldn't marry someone just because he's tall.
"If we can have children, we'll have children," Bao said before the wedding. "If not, then not. If we have a child, I hope he or she can be about 2 metres tall. Then he or she can play basketball."

"We meditate on the transcendental glory of the deity supreme, who is inside the heart of the earth..."

"... inside the life of the sky and inside the soul of heaven. May he stimulate and illuminate our minds. Lead us from the unreal to real, from darkness to light, and from death to immortality. May we be protected together. May we be nourished together. May we work together with great vigor. May our study be enlightening."

Beautiful Hindu prayer, spoken as the invocation in the Senate yesterday. The Hindu priest was Rajan Zed of Reno, Nevada. Unfortunately, the reason I'm reading about this -- in the Times of India (via Memeorandum) -- is because some idiots -- from the anti-abortion group Operation Save America -- interrupted him:
"Lord Jesus, forgive us father for allowing a prayer of the wicked, which is an abomination in your sight," the first protester shouted. "This is an abomination. We shall have no other gods before You."

Democratic Senator Bob Casey, who was serving as the presiding officer for the morning, immediately asked the sergeant-at-arms to restore order. But they continued to protest as they were headed out the door by the marshals, shouting, "No Lord but Jesus Christ!" and "There's only one true God!"
What a shame to insult the priest that way!

There are invocations in the Senate, and the way to handle that properly is to give representatives of different groups the chance to offer a prayer. Look how well the priest did at choosing a prayer that would enhance mutual respect among religious groups and between the religious and the irreligious.

Zed showed the best side of religion -- a prayer of manifest literary value that invokes the presence of the diety and pulls the human beings who hear it to a higher plane.

Why doesn't the invocation violate the Establishment Clause? Here is the Supreme Court case on the subject, Marsh v. Chambers:
The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom....

Although prayers were not offered during the Constitutional Convention, [n6] the First Congress, as one of its early items of business, adopted the policy of selecting a chaplain to open each session with prayer....

On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights, S.Jour., supra, at 88; H.R.Jour., supra, at 121. Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress. ...

...John Jay and John Rutledge opposed the motion to begin the first session of the Continental Congress with prayer.... [But that only demonstrates] that the subject was considered carefully and the action not taken thoughtlessly, by force of long tradition and without regard to the problems posed by a pluralistic society. Jay and Rutledge specifically grounded their objection on the fact that the delegates to the Congress "were so divided in religious sentiments . . . that [they] could not join in the same act of worship." Their objection was met by Samuel Adams, who stated that
he was no bigot, and could hear a prayer from a gentleman of piety and virtue, who was at the same time a friend to his country.
C. Adams, Familiar Letters of John Adams and his Wife, Abigail Adams, during the Revolution 37-38, reprinted in Stokes, at 449.

This interchange emphasizes that the delegates did not consider opening prayers as a proselytizing activity or as symbolically placing the government's "official seal of approval on one religious view." Rather, the Founding Fathers looked at invocations as "conduct whose . . . effect . . . harmonize[d] with the tenets of some or all religions." McGowan v. Maryland, 366 U.S. 420, 442 (1961). The Establishment Clause does not always bar a state from regulating conduct simply because it "harmonizes with religious canons." Id. at 462 (Frankfurter, J., concurring)....

In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed, "[w]e are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313 (1952).
The Operation Save America protesters were thus not only rude and intolerant, they were demonstrating an attitude toward the invocations that, if it were accepted, would render the practice unconstititional. Government cannot elevate one religion over another. One of the primary values of the Establishment Clause is preventing divisiveness. These benighted characters would like to foment religious strife.

Operation Save America issued a statement saying the Senate chamber "was violated by a false Hindu god":
"The Senate was opened with a Hindu prayer placing the false god of Hinduism on a level playing field with the One True God, Jesus Christ," the statement said, adding, "This would never have been allowed by our Founding Fathers."
That is precisely at odds with constitutional law (and good moral sense).
The Hindu prayer was also questioned by a Christian historian who maintained that since Hindus worship multiple gods, the prayer will be completely outside the American paradigm, flying in the face of the American motto "One Nation Under God."...

"In Hindu (sic), you have not one God, but many, many, many, many, many gods," the Christian historian David Barton maintained. "And certainly that was never in the minds of those who did the Constitution, did the Declaration [of Independence] when they talked about Creator -- that's not one that fits here because we don't know which creator we're talking about within the Hindu religion."
More exactly-backwards constitutional law. The motto isn't in the Constitution, and if you want to interpret it to authorize discriminating against groups that are not monotheistic, you are asking for the motto to be declared unconstitutional, not providing the basis for discrimination you (foolishly) want.

I hope when people read this news story, in this country and around the world, especially in India, that they focus not on the three protesters, but on our traditional benign approach to religion. Sometimes we exclude religion from government activities -- and we argue about how far we must go with that exclusion -- but when we include it, we don't favor one sect over another and we certainly don't identify one religion as true and another as false.

We do declare true and false constitutional doctrine, however, and these fundamentalist Christians have a false interpretation of the Constitution... and a very bad idea of how to make the world a better place.

I don't think much of their idea of Christianity either. Since when do Christians go around yelling "No Lord but Jesus Christ!"?

More commentary on this news story:

Captain Ed: "Idiots."

The Moderate Voice: "There’s a Term for These Folks - They Are Stupid Jerks"

If I Ran the Zoo: "... assholes... jerks..."

Daily Kos: "Somehow I just don't think this is what Jesus would have had in mind."

National Review Online: "very unfortunate... not the Senate's best moment."

Looks like everyone's on the same page here.

ADDED: Here's the video:

And here's an interesting post from Reader_Iam (who frequently comments on this blog):
Perhaps these protestors fancied themselves as Jesus in the temple, scattering the money-changers desecrating a holy space. But the Senate chamber is not a temple....
Read the whole thing.

July 12, 2007



Anything you want to talk about?

ADDED: Closeup:


It's called Scottish cotton thistle -- I guess because of that cottony stuff you see here.

"Free General Vang Pao."

I'm not seeing any news reports of this large rally I encountered today at the federal courthouse in Madison, Wisconsin. This film clip gives an idea of the size of the rally, which stretched around the block in two directions.

You can hear the chanting in the background -- "Free General Vang Pao" -- but on this side of the building people were nearly silent. There were many signs, and clearly there was a plan to dress alike. Writing on various signs:
Please release General Vang Pao on Bail!!!

Hmong need peace

President Bush -- release General Vang Pao

Let freedom ring

Honor your war heroes. Don't jail them.

We need justice

Do not betray your allies. Free Vang Pao.

Hmong need freedom

Here is the backgound on Vang Pao's arrest:
A former Laotian general and a former California National Guard officer were among nine people charged Monday with plotting a violent overthrow of Laos's communist government.

The group was raising money to recruit a mercenary force and buy enough weapons to equip a small army, including antitank missiles and grenade launchers, prosecutors said.

"We're looking at conspiracy to murder thousands and thousands of people at one time," Assistant U.S. Attorney Robert Twiss said in federal court....

Vang had led CIA-backed Hmong forces in Laos in the 1960s and 1970s as a general in the Royal Army of Laos...

UPDATE: Vang Pao released on bail:
He has been allowed to return to his southern California home under extremely strict conditions, but prosecutors say the 77-year-old is "the most dangerous" of the defendants and should be kept in detention pending his trial.

The Vitter Tears of James Taranto.

There are a couple updates on my post from Tuesday about Senator Vitter and prostitution. I respond to James Taranto's misreading of my post and then come back a second time when he accepts the correct reading but still tries to wriggle out of the steel trap of my moral logic. By the way, did you know an anagram for his name is Ramjet Sonata?

Animal news -- incredibly cute and not cute at all.

1. There's this chihuahua puppy born with a big heart-shaped spot on its back. He wuvs you.

2. There are these -- I don't know -- corpse-eating monster badgers that Iraqis in Basra are saying the British released on them. Here's the video that goes with the story:

"Well if you really believe I'm John Mackey you should probably pay more attention to what I say on this board."

"I would be the ultimate Whole Foods Insider!" -- wrote Whole Foods founder John Mackey on the Yahoo Finance’s bulletin board, under the pseudonym Radoheb, just one of over 1,100 entries he's written there over the past 7 years -- pushing Whole Foods and knocking its rival Wild Oats. And stuff like:
I like Mackey’s haircut. I think he looks cute!

"Kim Wardlaw (2009, for Souter), Deval Patrick (2010, for Stevens), and Elena Kagan (2011, for Ginsburg)."

Tom Goldstein predicts the next President's Supreme Court appointments. There will be three -- as explained here -- one in each of the first three years of the next administration, assuming a Democrat wins. Big explanation at the link. Excerpt:
I believe that the next President will feel an extraordinary pressure... to name another woman to the Court, likely in a first appointment. In addition, I think that the next nominee will be non-white, and most likely Hispanic....

... I applied a birth date cutoff of 1952. Any nominee born earlier than that would be fifty-seven or older by the time of a post-election appointment in 2009....

The age cutoff presents a particularly difficult dilemma for a Democratic President. In 2009, it will have been more than eight years since a Democratic administration had the opportunity to groom candidates by placing them on the bench or in high-level positions in the Department of Justice....

I did not attempt to study many other important factors. For example, beyond reputation, I do not know much about these candidates in terms of their suitability for the job with respect to intellect and judicial philosophy....
You have to go back to this post to see why Goldstein is predicting the Souter to go first, followed by Stevens and then Ginsburg:
Justice Stevens is 87. He seems in great health, but it is not reasonable to expect him to extend his tenure to age 93 (i.e., past the 2012 elections). Justice Souter is only 67. But he seems the most enthusiastic about leaving; he never embraced the job (or Washington, DC) as a lifetime commitment. Justice Ginsburg is 74. Many people say that she is in poor health, but I just don’t see that; it is easy to mistake her somewhat timid physical demeanor for broader health problems and she is certainly intellectually in top form. Nonetheless, one does get the strong sense that, having served 16 years by the time the next President takes office and facing the prospect of serving in the current environment until she reaches 80, Justice Ginsburg would very seriously consider allowing a Democratic President to nominate a replacement to be confirmed by a Democratic Senate.
He thinks Stevens and Souter will leave even it a Republican wins (but Ginsburg will hang on if she can).
The consequences of two or three moderate-to-liberal seats turning over will be either minor (under a Democrat) or potentially massive (under a Republican)....

[I]f a Democratic President wins in 2008, the current conservative-leaning détente on the Court is likely to be enshrined for the indefinite future. Imagine if in 2009 Justices Stevens, Souter, and Ginsburg were replaced by Judge Garland (then age 57), former Solicitor General Seth Waxman (58), and Dean Elena Kagan (49); they would join Justice Breyer (71). On the right, you would have Scalia (73); Thomas (60); Alito (59); Roberts (54). And Kennedy in the center (for this Court) would be 73.

In that scenario, the potential range of movement in the Court’s jurisprudence would narrow dramatically. Only three Justices – one from the left, one from the right, and one in the center – would be at an age at which they would even be thinking of retiring. The other six Justices would be expected to serve at least 10 (and more likely 15 or 20) years.

In sum, the 2008 election window presents the most significant opportunity to shape the direction of the Supreme Court that can be anticipated for roughly the next two decades – i.e., as far into the future as anyone can reasonably hope to look. For the left and the right, the stakes are genuinely high.

UPDATE: Tom Goldstein comments on the commentary and notes:
[T]hough the post dealt with Democratic nominees – the commentary was almost uniformly from the conservative blogosphere. There was nothing from sites on the left like Daily Kos, Talkingpointsmemo, and Balkinization. My point isn’t that the post was particularly insightful, but instead that interest in the subject of judicial nominees seems focused on the ideological right. No doubt there is something of an echo-chamber effect. The kind notes by Orin on Volokh and my law partner Paul Mirengoff on Powerline were likely noticed by the authors of other conservative sites. But the one-sided response to the post reinforces the commonly held view that conservatives recognize the importance of judicial nominations much more than do liberals.
Does this mean liberals are not up-to-speed or are they just demoralized?

"I wound up doing time for something I should have been rewarded for. What I did was a community service.... I was punished for political reasons."

"Absolutely meaningless. Was I a criminal? No. I was a good member of society. Only my society and the one making the laws are different." LSD folkhero Owsley speaks. More:
"I never set out to change the world," he rasps in recalling his early manufacture of LSD. "I only set out to make sure I was taking something (that) I knew what it was. And it's hard to make a little. And my friends all wanted to know what they were taking, too. Of course, my friends expanded very rapidly."

By conservative estimates, Bear Research Group made more than 1.25 million doses of LSD between 1965 and 1967, essentially seeding the entire modern psychedelic movement....

He found the recipe for making LSD in the Journal of Organic Chemistry at the UC Berkeley library.
So some library nerd started it all!
Bear [AKA Augustus Owsley Stanley III] has always lived in a quite particular world. "He can be very anal retentive, on a certain level, on a genius level," says Paul Kantner of Jefferson Airplane. "I've seen him send his eggs back three times at Howard Johnson's."

His all-meat diet is a well-known example. When he was younger, Bear read about the Eskimos eating only fish and meat and became convinced that humans are meant to be exclusively carnivorous. The members of the Grateful Dead remember living with Bear for several months in 1966 in Los Angeles, where the refrigerator contained only bottles of milk and a slab of steak, meat they fried and ate straight out of the pan. His heart attack several years ago had nothing to do with his strict regimen, according to Bear, but more likely the result of some poisonous broccoli his mother made him eat as a youth.
He's meticulous about what he ingests. On a genius level.
As a sound mixer, Bear holds equally strict viewpoints, insisting that the most effective rock concert systems should have only a single source of sound, his argument quickly veering into the realm of psycho-acoustics.

"The PA can only be in one spot," he says. "All the sounds have to come from a single place because the human brain is carrying around the most sophisticated sound processing of any computer or living creature. It equals the bats that fly by echo. It equals the dolphins. It equals the owls that hunt at night without any daylight at all. It is a superb system for locating and separating one sound from everything else."
I love reason. Especially, on the genius level. I may not understand it, but I like the way it emanates from a single point. Helps me keep my bearings. It's just one guy saying things like that.
Bear left Northern California in the early '80s, convinced that a natural disaster was imminent.
He predicted at the time that global warming would lead to a six-week-long ultra-cyclone that could cover the Northern Hemisphere with a new ice age. Determining that the tropical northern side of Australia would be the most likely region to survive, Bear made a beeline for Queensland and says he felt at home the moment he set foot on the new continent.

"I might be right about the ice age thing," he allows. "I might be wrong."
He might be wrong.

Wetting the bed.

Here's an article about extremely expensive beds -- some over $50,000. It seems that the bed's ability to "breathe" is a big selling point, driven home by the news that you sweat like mad during the night. But how much?
“If you consider the average person sweats about a pint each night,” he said, pausing to let his words sink in...

“... you sweat one liter a night, and all that stays in the bed...”...

And then, like Mr. Burney, Mr. Ashe began tearing into Tempur-Pedic. “Take Memory Foam,” he began. “It’s synthetic, it’s dense, it doesn’t breathe, it’s hot, you end up lying in a pool of your own perspiration.”

The sweat again. How much did Mr. Ashe reckon the average person dropped in a bed each night? Was it, and I quoted Ms. Schleenvoigt, a liter?

“That’s disgusting,” he said. “I’m not sleeping with you. I’d say a cup, max.”

It sounds like these characters are all trying to dissuade you from going with the Tempur-Pedic. But if you're oozing that much water, do you really want it all seeping into the mattress? I think an impervious mattress with a thick, washable cover would be better.

And what's with the mattress salesman guy joking about sleeping with the customer? That's creepy! The writer doesn't flag it as creepy, though, so I'm assuming the guy is extremely handsome. Wouldn't you have to be to sell $50,000 beds?

Iraq is not "a colossal failure,” but "a mixed bag."

About those benchmarks.

UPDATE: The release of the report on progress in Iraq:
The report... said the Iraqi government had shown satisfactory performance so far on 8 of the 18 benchmarks, including providing brigades of troops to support security operations in Baghdad. But more work was needed on eight others, it said, including preparations for local elections. And in two areas, it was not yet possible to judge how things are going.

Mr. Bush sought to deflect the national discussion on Iraq away from the question of when and how to start withdrawing troops. “This is not the real debate,” he said. “The real debate over Iraq is between those who think the fight is lost, or not worth the cost, and those who believe the fight can be won.”

He added: “As difficult as the fight is, the cost of defeat would be higher. I believe we can succeed in Iraq, and I know we must.”...

[H]e said, “I don’t think Congress ought to be running the war; I think they ought to be funding our troops.” Running a war from Capitol Hill, he said, “is a prescription for failure.”...

He has said also that history’s judgment is more important to him than fleeting public opinion polls, and he struck that note today. Years from now, he said, when reporters visit “old, tired me down there in Crawford, I will be able to say I looked in the mirror and made decisions based upon principle, not based upon politics.”

Hillary Clinton versus Princess Diana?

Mickey Kaus plots some connectable dots:
Dot 1: Jeff Gerth and Don Van Natta report in their recent book that Hillary Clinton personally
listened to a secretly recorded audiotape of a phone conversation of Clinton critics plotting their next attack. The tape contained discussions of another woman who might surface with allegations about an affair with Bill. Bill's supporters monitored frequencies used by cell phones, and the tape was made during one of those monitoring sessions.
Dot 2: Tina Brown's new Diana Chronicles contains this passage, supporting reports that Princess Di was thinking of marrying U.S. tycoon Ted Forstmann as part of a possible presidential ticket:
Diana built an escape fantasy around Forstmann for a time. "It's a true story," he told me, "that Diana had the idea that we should get married, that I should run for president and she would be First Lady."
Dot 3: Forstmann was in fact seriously mentioned as a Republican opponent for Hillary in the 2000 N.Y. Senate race.

Dot 4: Both Diana (according to Tina Brown) and Forstmann (according to the New York Daily News**) thought they were being bugged.

Dot 5: A British paper reported that Diana and Forstmann and Diana were bugged by some American outfit during the Clinton administration, although the official Lord Stevens inquiry failed to include this allegation despite press predictions that it would.

Hard to think of Di as a Republican... and as an American First Lady. Oh, the glamour that never was!

By the way, I highly recommend "The Diana Chronicles," which I enjoyed as an audiobook download. There's quite a lot of focus on the development of journalism over the Diana years -- so it's not just escapist reading.

Speaking of glamour... do you think Bill Clinton will make a glamorous First Gentleman? Do you think Barack and Michelle would be a more glamorous First Family?

New Victorians in New York City.

From the New York Observer:
While their forbears flitted away their 20’s in a haze of booze, Bolivian marching powder, and bed-hopping, New Vics throw dinner parties, tend to pedigreed pets, practice earnest monogamy, and affect an air of complacent careerism. Indeed, at the tender age of 28, 26, even 24, the New Vics have developed such fierce commitments, be they romantic or professional, that angst-ridden cultural productions like the 1994 movie Reality Bites, or Benjamin Kunkel’s 2005 novel Indecision, simply wouldn’t make sense to them....

Down in the West Village, we have Liv Tyler, barely 30, the daughter of Aerosmith’s Steven Tyler and legendary rock-star muse Bebe Buell, who’s now contented wife to Royston Langdon and mother of 2-year-old Milo. “I’ve always been super-responsible and hardworking and kind of a worrier,” she recently told Allure. Even former rebel Angelina Jolie has turned somewhat New Vic on us, what with her adopted brood and her causes and empathetic emaciation. Yes, the wasting disease!
This concept is spiraling out of control. Is this a phenomenon or a cascade of impressions and a label? Anyway, whatever it is, it's supposedly a reaction to those terrible Boomers -- I mean, us terrible Boomers. And Lord knows, we deserve it.
“Maybe this is also fallout from the sort of these boomer ideas about what sexual freedom is,” [says a 26-year-old New Vic in Brooklyn]. This theory is a popular one among New Vic observers, just as it was popular to blame the priggishness and probity of the Old Victorians on the ill example of their Georgian predecessors. In this case, the reaction isn’t against specific syphilitic laxity and moral decay, but is rather a vague fear of too much sex (hello, STDs!) as well as the pressure for procreative sex (even men have biological clocks these days!) and the attendant nightmare of becoming—pardon the phrase—an aging spinster, lurching around New York sloshing cosmos and wearing age-inappropriate Capri pants, as in the TV version of Sex and the City and its many spinoffs....

In fact, just a few months ago, [that 26-year-old New Vic] was out with friends when a pair of slightly older women launched into a jeremiad of dating and despair, imploring her to hold tight to her boyfriend, lest she wind up single and, gasp, 30-something, just like them. “It’s like I was being terrorized by these older women who were like, ‘Don’t let him go, there’s nobody out there!’” she recalled with an alarmed laugh. “I was really scared.”
There have always been slightly older women like that, I say, being a much older woman. And there are usually also older women to tell you not to sew things up too quickly. Your fantasy of rescue and permanence may lead you back to the single life, this time with children and little or no career.
And then there are the moments of revelation, the ones when a New Victorian stumbles, say, into a book party at a bar celebrating a gay-interest anthology, as [that 26-year-old New Vic] recently did. “I felt really, really straight, and really, really normative,” she said. “Because there were all these gay men who were obviously trying to get with each other, and I was like, ‘Oh, my God, this is New York, and I’m living some weird other place that’s not New York, but I don’t know what that place is!

“You have to confront this question of, ‘Am I a deeply conventional person?’ she said. “It kind of throws the idea of who you thought you would be into question.”
So.... what do you think: New Vics as the new phenomenon or lifestyles writer who talked to one or two people she already knew?

"Nothing says progressiveness and prosperity like an elaborate urban park."

The Capital Times on Mayor Dave's idea for "Madison's Central Park."
[P]lans may gain momentum this summer on a $24 million Central Park on 17 acres in what was once the industrial core of the Near East Side.
That "industrial core" area does look bleak and empty.
"This is the most consequential public improvement for the Isthmus for the next 50 years, " said former Madison Mayor Joe Sensenbrenner, comparing its potential effect to Monona Terrace and Overture Center. He 's a member of a committee Mayor Dave Cieslewicz appointed this year to develop a plan for the park
Monona Terrace and the Overture Center were huge public improvements. I'm not seeing why it's always time for another.
Across the country, citizens and planners are finding that developing urban parks can create special challenges, namely how they fit into existing neighborhoods and business districts. And now that prime urban real estate is more scarce and expensive, "it 's much more challenging to satisfy everyone 's notion of what a park should be, " says Witold Rybczynski, a professor of urbanism at the University of Pennsylvania.

The larger debate about the purpose of a park often pits people who believe in peace and quiet and the soulful contemplation of nature against those who prefer zip lines, Frisbee golf and hang gliding.

In Madison, Cieslewicz 's 12-member commission is expected to answer those types of questions, including: Should the park serve the neighborhood or region? Will it include a skate park? A concert stage? Where will visitors park?
Park? They don't worry about that in NYC. It seems to me that if you want to build a Central Park, it should be beautiful green space available to people who are downtown and in need of respite. It's not a destination in itself. If you want an amusement park that will pull in crowds, put it in the outskirts of town where it's easy to park.

What we need in that scarily empty near east area is more buildings. It's not urban enough. There's nothing to seek respite from. Sure, make some of that land a beautiful park, but not for people to drive in to visit. Make it a place where we want to live and can live and where it will be urban enough that we'll feel the need for a little stroll in the park... that we can walk to.

July 11, 2007

The new transparency.

Above the Law offers to pass along stories of "the clerkship from hell." Oh, how I love the free-flow of information on the internet!

Above the Law is responding to this from Mike Rappaport. There's also this from Ilya Somin.

A Smug Brain... Abusing Arm...

Sangria Bum...


Rumba Gains...


Amusing Bra...

ADDED: This is a puzzle, solved in the comments. Don't peek!

"If it looks like a phallic symbol, someone has a strange perception."

"You can find sex anywhere if you want to. . . . There's just some sick people out there." So says developer Sandor Shapery -- whose name is an anagram for Harder Ass Pony. He's wrong and he's right. He's wrong, because obviously his building is a phallic symbol. It's just silly to deny it. But he's right that no one ought to care. Nearly all tall buildings are phallic symbols. (I found a vulva symbol building that one time.) Deal with it people! The phalluses are everywhere. Get a grip!

About the war, she said to her President husband: "How much can they tear us down? And what effect might it have on the way we appear in history?"

Lady Bird Johnson, dead at 94.
[T]he unpretentious woman from Texas found herself first lady of the United States....

Her White House years ... were filled with the turbulence of the Vietnam War era....

She quoted her husband as saying: "I can't get out. And I can't finish it with what I have got. And I don't know what the hell to do."
All I remember of Lady Bird is her work on highway beautification. Comedians made fun of her by saying "Beautify! Beautify!" Was it absurd to care that the highways were lined with billboards? Things really did look different then.
She raised hundreds of thousands of dollars to beautify Washington. The $320 million Highway Beautification Bill, passed in 1965, was known as "The Lady Bird Bill," and she made speeches and lobbied Congress to win its passage.

"Had it not been for her, I think that the whole subject of the environment might not have been introduced to the public stage in just the way it was and just the time it was. So she figures mightily, I think, in the history of the country if for no other reason than that alone," Harry Middleton, retired director of the LBJ Library and Museum, once said.
I didn't get the concern about beauty when there were so many troubles in the world, but it was a good cause, and beauty matters. She picked a good First Lady issue. There's a limit to what political spouses should do.

I visited the LBJ Library last March, and my post about it says nothing about Lady Bird. I'm sorry to see that. It's mostly because I didn't like any of the photos I took in the exhibit devoted to her. There were some dresses and china and handwritten notes. The dresses were tiny, as dresses worn by famous women so often are. So her profile was a bit small, but she did some good, and she lived a long time.

Goodbye, Claudia Alta Taylor.

Should the No Child Left Behind Act give students the right to transfer to another school district?

Jonathan Kozol has a NYT op-ed about the new Supreme Court case on school integration:
In his concurrence, Justice Anthony Kennedy opened up a new avenue for educational justice by contending that other methods of achieving integration — like revising school attendance zones — are constitutionally permissible so long as they do not sort and label individual children by race.

Congress has an opportunity to take advantage of the opening created by Justice Kennedy later this year when it reauthorizes the federal No Child Left Behind Act. The law gives children the right to transfer from a low-performing school to a high-performing school if the low-performing school has failed to demonstrate adequate improvement two years after being warned of its shortcomings.

Unfortunately, the transfer provision has until now been a bust. Less than 3 percent of eligible children have been able to transfer, in part because of the scarcity of space in high-performing schools within most urban districts. Although the law does not prohibit transfers between urban and suburban schools, it offers no inducements to the states to make this possible.

Democrats in the Senate should therefore introduce an amendment to authorize and make easier cross-district transfers — not on a specifically race-conscious basis, but solely to fulfill the professed intention of the law.
Exactly how did Justice Kennedy create a new opening for this solution? It's been available all along, hasn't it? The most you can say is that the case has generated some new energy over the issue of school integration and that Congress could harness this energy to impose new requirements on state and local government.

But why should the case be used to justify this imposition? The Supreme Court restricted a pro-integration program. Shouldn't local government respond to the case by trying to devise new programs that take advantage of the advice provided by Justice Kennedy?

It seems to me that the uniform national solution to a problem comes into play when the work of local government can be impugned. That's not the case here. It's exactly the opposite.

And why assume that there is a one-size-fits-all response to the Supreme Court's limitation and that you know what it is? Isn't this exactly the situation where you want decentralized efforts by local government that are fine-tuned to local conditions and preferences and that can serve as useful experiments for us all to learn from?

Cockfighting and the First Amendment.

There's a federal court lawsuit claiming a First Amendment right not to put on a cockfight, but to show it on the internet when the fight itself takes place in Puerto Rico where it is legal.
“We believe firmly that broadcasting and selling legal cockfighting over the Internet is not a crime,” said David O. Markus, a lawyer for the company, Advanced Consulting and Marketing, which runs the site www.toughsportslive.com. “As bullfighting is part of Spanish culture and as violent human fighting is part of our culture, cockfighting is part of Puerto Rican culture.”...

The [federal] law, enacted in 1999 and signed into law by President Bill Clinton, makes it a crime to sell depictions of animal cruelty for commercial gain. There is an exception for works of “serious religious, political, scientific, educational, journalistic, historical or artistic value.”
The plaintiffs do well to play the ethnic diversity card. Congress did not come up with this law to squelch Puerto Ricans, however. What Congress wanted to crush was crush video -- which had women "talking to the animals in a kind of dominatrix patter” and crushing them under her bare or high-heeled foot. (Remember the 90s?)

The law says nothing about whether the underlying conduct is illegal, but makes it illegal to sell depictions of cruelty to animals in places where that conduct would be illegal.
President Clinton issued a statement when he signed the bill, saying he would instruct the Justice Department to construe the law narrowly, limiting it to “wanton cruelty to animals designed to appeal to a prurient interest in sex.”
Ooh! A signing statement! I love when a Bush era bugaboo comes up in an non-Bush context. And I note the humor in the way the plaintiffs would take advantage of Clinton's limiting construction by saying that the interest in cocks is not about sex.

Anyway, the government has prosecuted individuals for selling videos of dog fights, so Clinton's effort to maintain the focus on prurient sex is a nonstarter.

The linked article quotes Eugene Volokh, saying the law is unconstitutional because it restricts speech and does not "fall into any existing First Amendment exception.” On the government's side, the argument is that it's like "laws prohibiting obscenity, child pornography, incitement and fighting words." The idea is to create a new category of speech that is "low value," a new First Amendment exception. I hate seeing the courts move in that direction.

UPDATE: Eugene Volokh writes:
The real question is whether the child pornography exception -- the one exception that allows restriction of the distribution of speech because of the manner in which the speech was created -- should be extended to cover the distribution of material the making of which involved harm to animals, rather than just harm to children. The argument would be that, as with child pornography,
  1. production of cruelty videos can be done in secret, but the distribution has to be relatively public;
  2. a ban on production will thus be very hard to enforce;
  3. so long as there's money to be made in distributing cruelty videos, there'll always be someone willing to produce them; and thus,
  4. to prevent the harm that takes place when the videos are made (injury to animals), one also needs to stop their distribution.
The argument against extending the child pornography exception would be:
  1. The statute might end up suppressing a lot of valuable speech, such as the film of the bullfight and the like, and clause (b) is an inadequate safe harbor because it's much too vague.
  2. The statute will in fact suppress more valuable speech than child pornography law does, because depictions of animal cruelty are more likely to be relevant to political debates or to legitimate art than depictions of sex (or of lewd exhibition of genitals) involving children.
  3. The harm that the distribution of this speech causes -- indirectly furthering animal cruelty -- is much less severe than the harm of indirectly furthering sexual exploitation of children.

"The secret to successful advocacy is simply to get the Court to ask your opponent more questions."

That's an old wisecrack from John Roberts, cracked back when he was an appellate judge, based on his observation that the lawyer who gets asks the most questions usually loses -- according to a count of his, 86% of the time.

Tony Mauro applies the theory to the Roberts Court:
A new study indicates that in the 25 oral arguments that led to 5-4 decisions in the term just ended, the mean number of questions Roberts asked of the side he favored was 3.6. The side he voted against got a mean of 14.3 questions from the chief justice. Overall, in 23 of the 25 5-4 decisions, Roberts asked more questions of the side he voted against than the side he favored....

Breyer asked more questions of the side he opposed in 19 of the 25 cases; Justice Antonin Scalia, who enjoys toying with any and all lawyers before him, followed the pattern in 17 cases; and for swing voter Kennedy the number, predictably enough, was 13 of the 25 -- about half.
Why do you ask more questions of the side you disagree with? Should we think it shows unfairness -- that you're trying to impede the lawyer you want to lose? Mauro quotes Lawrence Wrightsman, author of "The Psychology of the Supreme Court," who is critical, specifically of Roberts, because "he is setting a higher standard for one side than for the other."

I don't think there's any unfairness here. Wrightsman's point doesn't make sense to me. It's natural to keep quiet when someone is making statements you agree with and to stop someone who's saying things that strike you as wrong. A question reveals to the advocate what your sticking point is, and a good advocate picks up on that and solves your problem -- or realizes that you are a lost vote and uses the occasion to persuade those who can be persuaded.

There's no reason why a judge should come to an oral argument with an open mind and offer the lawyers a level playing field. They've read the briefs and ought to know what they think already. The oral argument gives them a chance to probe at remaining tough spots in the argument.

You might say it's not fair to consume the time of the lawyer for the side you think should lose, but presumably all the justices ask more questions of the side they disfavor, both sides have their time consumed according to how many justices are predisposed to decide against them. If you have a disproportionate number of justices against you, maybe you have a weak argument, and if you don't, they think you do, and you'd better have some good answers. It would only be worse if they sat there is stone silence, waiting for you to shut up and leave.

There are some things that really are unfair, but you can't discover these by merely counting the questions. What is unfair is asking overlong questions for the purpose of using up the time and not letting the lawyer answer. It's also unfair to use the time to make the argument for the other side when it's not really a specific question. And it's not fair to take up much time asking questions when your mind is made up if there is another judge puzzling over questions that his decision actually depends upon.

July 10, 2007

"Maybe she should sue AutoAdmit?"

Rueful punchline. If you don't get it, David Lat and I provide the background here.

ADDED: The comments at the first link are harrowing.

"No, no, no, no. I'd describe the campaign as going well. I'm very happy with it. People are free to make their own assessments."

Says John McCain.

Okay. If you insist. You seem to be collapsing.

Giuliani: "The effort to try and make marijuana available for medical uses is really a way to legalize it."

He takes a tough position:
"You can accomplish everything you want to accomplish with things other than marijuana, probably better. There are pain medications much superior to marijuana," he said.

"We'd be much better off telling people the truth. Marijuana adds nothing to the array of legal medications and prescription medications that are available for pain relief."
I think he's right. But perhaps marijuana should be legalized, not just for people who can portray themselves as sick enough, but for any adult. Of course, he can hardly say that.

And he's got this on health care:
"If you try to do socialized medicine, a la Hillary Clinton, John Edwards, Barack Obama or Michael Moore, you're going to end up with a disaster," he said.

He urged voters to press other candidates for specifics and to move beyond lofty language.

"We tried that before. We tried that with the `War on Poverty' and we tried that with welfare. Look what happened. We tried a simplistic solution and look what happened. We locked people into poverty. It was a tragedy."
I do enjoy the straight talk.


Black flower


"'I'm an asshole,' he replied, completely in character."

She'd just said, "You're some kind of a miracle."

When liberals beat conservatives over the head with the word "activism"...

... they fight back.

This is a very old game, but that's a pretty good bout if you're in the mood to watch. Adam Cohen, in the NYT, did the usual thing of saying that conservatives complain about "judicial activism" but when they get to pick the judges, those judges engage in activism for conservative political causes. And then Ilya Solmin responded the way you'd expect: Conservatives are dedicated to getting the law right and doing what it requires.

But liberals also assert that the judges they like are only doing what they law requires. It's extremely uncommon for anyone to embrace the label "activism." "Activism" is a pejorative you throw at your opponents.

But here's the thing. Wielding the "activism" epithet has does not equal embracing a philosophy of "judicial restraint." Unlike "activism," "restraint" is often viewed in a positive light and some judges and legal scholars will embrace it.

Restraint has to do with deferring to the choices of democratic decisionmakers. This can favor either liberal or conservatives causes, and the price is paid by those who have preferences that lost in the political process -- often, but not always, the preferences of the majority. This is a respectable type of jurisprudence, and some judges and scholars do embrace it.

This restraint is not the same thing as avoiding activism. Judges who say they will do what the law requires and only what the law requires are not promising to use restraint.

A senator grovels.

Are you pleased?

I hate seeing people publicly humiliated for the sexual things they do in private. But the government is criminally prosecuting a woman, Deborah Jeane Palfrey, for what it says was a prostitution ring. These are federal charges, and the senator, David Vitter, has some responsibility for the laws that make this prosecution possible.

Vitter situates his misdeed in the realm of religion and private morality:
"This was a very serious sin in my past for which I am, of course, completely responsible"...

"Several years ago, I asked for and received forgiveness from God and my wife in confession and marriage counseling... Out of respect for my family, I will keep my discussion of the matter there -- with God and them. But I certainly offer my deep and sincere apologies to all I have disappointed and let down in any way."
Oh, well, if God has forgiven him...

Palfrey can't say God has forgiven her and walk free. In fact, Vitter's statement hurts Palfrey because it strongly implies that Palfrey was doing what she's accused of. Vitter's confession -- intended to move us to mercy -- links him to criminal activity, but only she is facing criminal punishment.

Shouldn't the expiation of Vitter's sins wait until he has introduced a bill that would create a federal right to engage in the business of prostitution? It's not a matter to be resolved within the realm of church and family as long as Palfrey is being prosecuted.

UPDATE: James Taranto links here and asks:
How would advocating the legalization of prostitution expiate Vitter's sins? Prostitution is illegal because it is wrong, not the other way around. The reason we have laws at all is not so that "good" people can impose their will on "bad" people, but because everyone has the capacity to do bad things. Thus it's not surprising that moralists sometimes turn out to be hypocrites. They are moralists because they are closely acquainted with the temptation to do wrong.
Taranto isn't reading me carefully. I'm not talking about what Vitter needs to do to expiate his sins. I'm talking about what Vitter needs to do to make it only an issue of sin. My point is -- quite clearly -- that as long as Palfrey is incapable of treating this as a matter between herself and God, it is not morally logical for Vitter to claim that capacity for himself. He must first take whatever action he can to put Palfrey in the same position he wants for himself. Vitter is a member of Congress, and Palfrey is being prosecuted under federal law. He cannot morally turn away from her plight while he holds power.

ANOTHER UPDATE: James Taranto responds to my response:
Althouse's original words were: "Shouldn't the expiation of Vitter's sins wait until he has introduced a bill that would create a federal right to engage in the business of prostitution?" It would take a careful reader indeed to conclude that Althouse is not referring to "what Vitter needs to do to expiate his sins."

Indeed, we expect careful reading here on Althouse. When you see a concise and puzzling sentence, remember to pause and think deeply -- especially if you want to write about it!
Anyway, the argument is illogical on several levels. For one, the crime Vitter is thought to have committed, patronizing a prostitute, is different from the crimes with which Palfrey is charged: racketeering and conspiracy. (Prostitution is under state and local jurisdiction.) Does Althouse think Vitter should introduce legislation to decriminalize racketeering and conspiracy?

No, I think he should -- as I wrote -- introduce a bill that would create a federal right to engage in the business of prostitution! Congress has the power to do that under the Commerce Clause, and it would preempt the state law that currently criminalizes prostitution. The conspiracy and racketeering laws would remain intact, but the state law they draw on would no longer include a crime of prostitution. See? Nothing permanently puts prostitution "under state and local jurisdiction." It can be federalized.
Further, the idea that Vitter is getting off easy seems to have it backward. The proper comparison here would be not to Palfrey but to others situated similarly to Vitter -- i.e., those who may be incriminated by Palfrey's phone records. Among this group, Vitter is being singled out for humiliating attention owing to his status as an elected official. However much Vitter might like to treat this as a matter "between himself and God," it is also a matter between the news media and Larry Flynt and the voters of Louisiana and political junkies and voyeurs all over the world.

I didn't say Vitter "is getting off easy." In fact, I feel sorry for him. I am simply objecting to his announcement that it's a private matter in the realm of family and religion. And I don't see why Taranto thinks he can simply announce what the "proper comparison" is. Palfrey faces prison. It is a very serious matter for the government to take away a person's freedom. Why should Vitter be able to say it's no concern of his? He was part of the same illegal behavior that she is being prosecuted for. He holds a position of legislative power. I'm saying that if he wants to say that the wrong he did is something to be dealt with exclusively as a private matter, he's morally obligated to use the power he has to make prostitution a private matter for her too.

I realize the media are slavering over this too. I'm not saying that's right. But it doesn't absolve him of his wrongs. As for the comparison to other clients who have less to lose from exposure -- it is always the case that getting accused of wrongdoing has an impact on your life that depends on the particularities of your life.

Phase 2.

You know the great "Gnomes" episode of "South Park" with the famous 3-part plan? The Underpants Gnomes have a business plan:
  1. Collect Underpants
  2. ?
  3. Profit!
They were collecting underpants, but they hadn't worked out why, yet they had a giddy confidence that the result would be profit. This historical research should point the gnomes to the answer: create widespread literacy.

July 9, 2007




Talk about whatever you like.

"How Sandra Day O'Connor became the least powerful jurist in America."

Dahlia Lithwick thinks the new Court is ignoring O'Connor's "theoretical framework." Cue the quip: "She had a theoretical framework?!" But let's play along:
It's tempting to argue that this is the nature of being the court's swing vote: You're too powerful while on the bench, and then you're obsolete once you retire.
Lithwick abandons this theory when presented with a counterexample. (Justice Powell's idea for premising affirmative action on "diversity," which seemed "weird" at the time of Bakke.)

So maybe it's something about the way O'Connor's did her swing voting:
... Charles Krauthammer once wrote of O'Connor that "she had not so much a judicial philosophy as a social philosophy. Unlike a principled conservative such as Antonin Scalia, or a principled liberal such as Ruth Bader Ginsburg, O'Connor had no stable ideas about constitutional interpretation." Buried in this criticism was the implication that her legal framework would go easily, once she was replaced by someone with a "serious" constitutional theory. Samuel Alito, her successor, is probably that someone, at least from Krauthammer's point of view. Certainly no one would suggest calling him a "moderate," a "pragmatist," or a "common-law judge." Alito has an agenda far broader than O'Connor's one-case-at-a-time approach. It's hardly surprising that he has not taken up where she left off.
What Krauthammer calls "stable ideas about constitutional interpretation," Lithwick calls an "agenda."

IN THE COMMENTS: Our house troll says -- among assorted insults:
Krauthammer, huh? Now THERE'S a legal scholar.
I'm pleased to get the push to respond to that:
Yes, chosen by LITHWICK to illustrate the side of the argument she wanted to minimize. On the liberal side, she chose to quote the dean of a top ten law school. So who's doing law in a bluntly political way: me or Lithwick? The answer is obvious.

"In other fields do you see people spouting 'I just thought of this, and I'm an economist, so it must be true!'"

Well, in other fields they don't say "I'm an economist" because they're not economists, but we know exactly what you mean there.

That's a comment in a Metafilter thread about that book "More Sex Is Safer Sex." Someone else says, "Ah. I see the new trend in economics, post Freakonomics, is to say something outrageous to get people's attention and then try to back it up with numbers."

We talked about the "More Sex" book last Friday, and a really cool thing was that the author, Steven E. Landsburg, participated in the comments and got into a whole back-and-forth with people here. Here's the exchange he had with me. I said:
The phrase is "more sex is safer sex," not "more sex is more sex and assuming sex is generally good, there are more total benefits weighed against the costs of disease, depending on just how relatively bad you think it is to have HIV." I still don't see how more sex is safer sex. But it is a catchy phrase. I'll give you that. It made me blog about it.
He said:
I hope you will read the book, or at least the chapter; if you do, you'll find that there are several related points, and I am careful to distinguish among them.

The first point is that under quite reasonable assumptions drawn from standard epidemiological models, more sex probably IS safer sex; i.e. it actually reduces the spread of STDs. That conclusion relies on some modeling assumptions, but the assumptions are nowhere near as naive or silly as many of the commentators in this thread seem to assume.

The second point is that REGARDLESS of your modeling assumptions, and REGARDLESS of whether more sex actually reduces STDs, more sex (by the relatively chaste) MUST increase the excess of benefits over costs, not as a matter of idle speculation but as the conclusion of a careful logical argument.

And the third point is that following logical arguments is both illuminating and fun. Far more illuminating and far more fun than constructing and attacking straw men, in fact.
I said:
I don't see why this assertion is susceptible to logical analysis -- careful or not. Isn't it just [an] article of faith that sex with a partner produces happiness?
He said:
The assumption is that on average, sex produces the expected amount of happiness. Sometimes much more than expected, sometimes much less than expected, but not systematically one or the other. The justification for that assumption is that if people are systematically wrong in a predictable direction, they'll eventually learn and correct for that.

That turns out to be all you need to get the analysis going (and if you won't grant me this much of a start, do be aware that the same assumption underlies 90% of economic analysis, and, stereotypes to the contrary, economic analysis does yield lots and lots of accurate predictions).

Now you can reason as follows (this is highly stylized, but it gives the flavor): You take a new partner when the expected benefits to you exceed the expected costs and not otherwise. Sometimes that will cause you to turn away partners even when the total expected benefits (to you and other members of society) do exceed the expected costs (because you count only some of the benefits, not all of them). And because, on average, expected benefits equal actual benefits, it turns out that actual benefits-minus-costs would be higher if you took additional partners.

(The ways in which your taking an additional partner benefits your neighbors are, incidentally, more substantial---and more subtle---than those mentioned in the New York Times review.)
I quoted him -- "The justification for that assumption is that if people are systematically wrong in a predictable direction, they'll eventually learn and correct for that" -- and got sarcastic:
I guess I'm cynical. I stopped believing in fairy tale romance long ago.
Lots more at the Friday post. I really loved that Landsburg came over and duked it out in the comments. Let's see more of that sort of thing.

Yes! That was one of the best threads in recent memory. It was a great topic. And it was interesting, logically challenging, and pound-on-the-table funny by turns—yet remarkably free of slash-and-gash trolldom.

You know, I've been grousing about trolls, the quality of comment writing, etc. here and elsewhere. I know at least a few longtime bloggers and commenters who seem depressed and generally bummed out by the blogosphere. But this is the kind of thread that restores your faith in the whole enterprise.

Hate to turn all Polyannaish on everybody.

Dubious Drudge headline: "Hillary Pollster: Clinton Victory 'Inevitable.'"

Thinking that was rather an unfortunate thing to declare, I clicked on the link, and it goes to Politico. Here:
Obama strategist David Plouffe released a memo last week arguing that Hillary Clinton's advantages were essentially those of incumbency, that her support was thin, and that Obama should actually be considered the front-runner.

Mark Penn, Clinton's chief strategist, responded today with a memo that seemed designed to bludgeon all opposition into senselessness through the sheer power of numbers (links to 40 polls showing Hillary in the lead!)

Penn strongly implies another i-word is the best description of Hillary -- not "incumbent," but "inevitable."
Did the quotes around "inevitable" confuse Drudge, is he just entranced by the strength of Politico's powers of inference, or does he really want to hurt Hillary? The full Penn memo appears on Politico, so there is no confusion there. You can see that Penn never uses the word, and that Politico is using quotes the way you do when you want to refer to, for example, the word "word." [UPDATE: Drudge has now removed the quotes and put the word in italics.]

The presentation on Drudge completely makes it look as through the Clinton camp is saying "inevitable," and that sounds incredibly arrogant. She's proclaiming that resistance is futile. It resonates with the negative image of Hillary Clinton as power-mad and controlling -- exactly the image we saw here:

That hurts.

[ADDED: And look at the picture Drudge is running:

Yikes! Scarily authoritarian. [IN THE COMMENTS: Palladian says, "That tiny, scary hand!"]]

Let's check the tone of Penn's memo:
....Hillary’s electoral strength has grown in the last quarter... Voters yearn for change and they say that Hillary has the strength and experience to actually bring about that change. Hillary’s message: that her strength and experience will bring real change that America needs, is resonating strongly with voters.
Let's see. Strength... strength... strength... strongly... I'm strongly getting the impression that you want me to strongly think that Hillary is strong -- strongly strong -- and experienced.
... So far the debates have been the key moments where the voters get to see all the candidates side by side and they have shown just how ready Hillary is to be president and how she has the strength and experience to make change happen.
I'm beginning to get it. She's has strength and experience ... for change.
There will be another debate every month from now until the end of the year, and each debate provides Hillary with another opportunity to demonstrate her experience, talk about her record on the issues, and show voters why she is the person best qualified to be president.
So you say she has experience?
The reason for Hillary’s growing support is that voters want change, and they know that only Hillary has the record of fighting for the kind of change they want, and the experience to execute it.
Let me get this straight. Are you trying to say she has experience? And is there some sort of theory that the people want change?

Anyway, the memo is full of polling data that amply supports Politico's interpretation of the idea Penn is trying to plant in your head, but "inevitable" is not the campaign's own word, and thinking that it is hurts Hillary.