September 29, 2007

The Architecture of Blue.




Street café... male model...



Unnaked man.


Anatomy of Love.



It's a beautiful Saturday, 60°. We've got things to do, places to go. Back eventually, with pictures. But this post will be your coffeehouse. Talk about whatever you like.



September 28, 2007

Friday... dusk.



Are you settled in for your blessed weekend?

Late last night on 5th Avenue.






An exercise in ignoring the obvious.

Judith Warner responds to the critics of her "Thelma and Louise" column -- which we discussed here, and has not one word to say about President Clinton. She says she was "quite shocked" at the response, but that what mostly surprised her was the reaction to the statistics showing a decline in the incidence of rape. Remember, she consigned the movie to the past: It no longer speaks to us, because the statistics show there's less rape than there was back then.
Most respondents felt the number was suspect. Some felt that I was being duped; others that I was naïve about the impossibility of gathering meaningful hard data on what remains, for the most part, a “silent” crime. Yet others still, I sensed, felt something more: that my mere mention of the number, and the great progress for women that I read into it, was a slap in the face to rape victims, a denial of their suffering, a Katie Roiphe-like brush-off of the tragic reality of their experience.
How could that response have surprised her? But it did. And she genuflects at length to those who gasped at her cheery citation of statistics.

But there isn't one word about what I thought separates us from the era of "Thelma and Louise":
What happened was that the Democratic President Bill Clinton got into trouble for sexual harassment, and those who had worked so hard for so many years to bring the subject of sexual violence and sexual harassment to the front of the national consciousness did a turnaround to preserve partisan power.
Warner does see fit to bring up Clarence Thomas:
[T]here still is a consensus right now among people who track the statistics that rape and sexual assault are on the decline. Sexual harassment complaints to the EEOC spiked following the Clarence Thomas hearings and the Civil Rights Act of 1991, which made it possible for plaintiffs bringing harassment suits to win compensatory and punitive damages in addition to back pay. Then the volume of claims flattened around the turn of the millennium and is now slightly in decline. Is this because of changed behavior, company crackdowns or fear of retaliation for complaining? The EEOC doesn’t have the data to say.
Hmmm.... so complaints spiked because of the Clarence Thomas hearings, but then flattened and declined. Warner speculates that men got the message about what they can and can't get away with. Maybe so. But as long as you're bringing up Thomas, you'd better bring up that other figure in the history of sexual harassment, Bill Clinton. Speculate about the effect he had. Maybe women got a message too.

ADDED: I just noticed that the column Warner wrote just before her "Thelma and Louise" column was about Bill Clinton's sex life. She wrote about how it made Hillary look:
As for Hillary – contemplating the Sarkozys this summer drove home to me the gender-bending aspect of her own unfortunate personal history. A formidable woman of real power and prestige, she emerged from the Monica affair much more cuckold than cuckquean. Her husband’s perfidy did, in a sense, disturb the natural order of things; in the post-feminist age, women like Hillary are not supposed to be subject to such indignities.

Hillary has never been, as she herself once put it, “some little woman standing by my man.” Perhaps that’s what made the spectacle of her public humiliation so unique and so unsettling and, ultimately, so unforgivable for the many women who came away from it all despising her.

I think I now understand that particular aspect of the Clinton conundrum in a way I never did before. It comes down to this: nobody likes a cuckold.
There are so many things wrong with that. I'll just point out the most obvious one: the Monica Lewinsky scandal increased Hillary's popularity.

"She was not the demure, religious, conservative person that they portrayed. That's not the person I knew."

"She could defend herself, let's just put it that way... She did not take slights very kindly and anyone who did anything, she responded very quickly."

"Didn't take 10 years?"

"It didn't take 10 minutes."

Clarence Thomas talks about Anita Hill in his "60 Minutes" interview (to air this Sunday, leaked at Drudge).

September 27, 2007

5th Avenue glow.

I had to go into Manhattan this evening for a little event. Afterwards, I walked down 5th Avenue for a few blocks before hailing a cab back to Brooklyn. The stores were closed, but the windows were so much more dramatic than in the daytime:




And the cathedral made a very different impression:


"If it was any other president, honestly, I would go to court. I happen to be Albanian, and he helped my people."

Says Nino Selimaj.
An Italian-restaurant owner - who's in the soup for displaying a picture of him with Chelsea Clinton outside his Village eatery - said yesterday that he won't remove the photo.

"The picture stays - unless I hear from Chelsea directly," said Osso Buco owner Nino Selimaj.

Selimaj received a letter from former President Bill Clinton's lawyer, Douglas J. Band, this week, asking the restaurateur to remove the photo from an outside menu case because Chelsea, "a private citizen," never gave permission to have it displayed there.

The letter was stamped on top with a gold presidential seal and the letterhead Office of William Jefferson Clinton....

Selimaj said if he takes the photo down, it would set a bad precedent for all the pictures he has taken with bold-face names.

"We have Derek Jeter, we have Regis Philbin, we have Rudolph Giuliani, Danny Glover, Mariah Carey [and] 'Sopranos' [castmates]," said Selimaj.
Posting photographs like this is a longstanding restaurant practice. Are we really supposed to believe it's suddenly a tort?
The legal letter has now joined the photo in the display case.
Ha ha. I'll have to stop by and look at that. Let's all eat at Nino's restaurants and show some support for the small businessman whom a former President has seen fit to harass with a rude letter on stationery with the presidential seal.

Aren't there some limits to the proper use of the seal? I note that the "seal" on the stationery might not count as the seal, since it is only the central part of what I think is the full seal. Nevertheless, I question Clinton's use of the seal -- or what seems to be the seal -- for private interests of this kind. Here's the federal criminal statute about misusing the presidential seal. Am I accusing Clinton of a crime? I am simply reserving the right to express any and all opinions about the law that may be available to me.

ADDED: Eugene Volokh weighs in:
The restaurant owner's actions likely violate Chelsea Clinton's "right of publicity." This right is recognized in one or another form by most states, but for our purposes the specific law is N.Y. Civil Rights Law § 51, which gives any person the right to sue over unauthorized use of her "name, portrait, picture or voice ... used within this state for advertising purposes or for the purposes of trade without ... written consent." Here, it looks like the photo is being used for promoting the restaurant to its customers, which makes it "purposes of trade" or perhaps even "advertising purposes."
There are an awful lot of restaurants who do this. Are they all subject to tort suits? It's not as if the restaurant is using her in an ad. It's the decor of the restaurant. It seems to me that if someone eats in a restaurant that follows a tradition of posting photos of celebrities who ate in the restaurant and posed with the owner and then one goes ahead and poses for a photograph with the owner, one implies consent to have the photo hung on the wall along with the other photos pursuant to the tradition.

But Eugene notes that "New York law -- unlike the law in many other states -- provides that consent to use one's name or likeness for advertising or trade must be given in writing." I'd argue that this is a reason to narrowly construe what counts as a use for "purposes of trade."

Eugene also notes that there is a 1 year statute of limitations. The picture has been there for 5 years, according to the press reports.

Eugene also thinks that "failing to remove Chelsea's picture is pretty rude," but it's important to note that Chelsea herself has not said a word to the Selimaj. He got a letter written on behalf of "President Clinton," and he has said he'll take the picture down if he hears from her.

What is rude is posing for a picture under those circumstances and then not expressing your objection in a friendly way. And what's really sickening is to intimidate a small business owner with an ugly letter from a man who is parading pseudo-governmental authority about a private legal matter on presidential stationery.

I certainly think, however, that Selimaj should respond to a cordial request cordially and, as a matter of good business and ordinary manners, shouldn't want to do something to one of his guests that the guest perceives as abusive.

"George Harrison's music and his search for spiritual meaning is a story that still resonates today and I'm looking forward to delving deeper."

Says Martin Scorsese, who's making a documentary about -- making his camera gently weep for? -- the Quiet Beatle.

Oh, no! From the air the Navy building looks like a swastika!

So... do you want to spend $600,000 to soften the edges with trees and stuff?

The building has been around since the 60s, but no one noticed until the advent of Google Earth.

(Via Metafilter.)

Could your guilty pleasures be a little guiltier?

Jeez. Studying languages, landscape restoration, yoga toes.... The question wasn't now tell us how charmingly wonderful you are!

(Via Metafilter.)

Is this any way to treat...

... Juan Williams?

IN THE COMMENTS: Madison Man asks what Juan Williams thinks of this. The answer is here:
Williams said yesterday he was "stunned" by NPR's decision. "It makes no sense to me. President Bush has never given an interview in which he focused on race. . . . I was stunned by the decision to turn their backs on him and to turn their backs on me."
Jane says:
The comments at the linked site were unbelievably racist and demeaning. Evidently, Juan Williams is not so much a man as he is a black man and African-American. He is not allowed to hold (only a few) different opinions than the hard Left, lest he be an "Uncle Tom," a "House Negro," and I stopped reading the race-based insults after that.
The linked website is Crooks and Liars. Let's read the comments Jane won't read:
Williams is the Clarence Thomas of NPR, a sell out who lives for the favors of White Conservatives by legitimizing their positions by uncritically restating their talking points. Even the White House knows he’s a gutless suck up.

Why the hell would it be a surprise to anyone, why Bush insisted on Juan, to interview? It is very clear to black America why he would want a safe negro to speak to him about black issues, especially in today’s climate. Juan is not going to make that segment of white America uncomfortable as 90% of black America of today would not mind doing for them and nor would he want to raise up and slap the hate out of them so I would say that Juan is a safe bet for the Bush bigots of today.

Juan Williams is the newest of Bushit’s Field Negroes.

Who will get us out of Iraq? Not I, said the Senator.

Hillary Clinton, Barack Obama, John Edwards ... did you hear how they talked about Iraq last night?

Key quotes:
"I think it's hard to project four years from now," said Sen. Barack Obama...

"It is very difficult to know what we're going to be inheriting," added Sen. Hillary Rodham Clinton...

"I cannot make that commitment," said former Sen. John Edwards...


Not Myanmar.

"I am a dating disaster."

Says Abby Ellin, who hired a "dating coach" to get over this attitude:
The thought of meeting a stranger, sitting through a drink or meal, trying to be clever, makes me cranky. Think about the books that could be read while the other person drones on about his as-yet-unfinished divorce. Imagine the films that could be watched while he confuses the word “anecdote” with “antidote.” What a colossal waste of time.

More than one friend recommended an attitude adjustment.

“People can sense your intolerance,” they said. “They can smell negativity.”
Think about the books that could be read... think about all the Style section articles that can be written.

By the way, the dating coach will want you to pay her $500 and to devote 15 hours a week to the project. You'd think someone who starts with a bad attitude would have a bad attitude about that.
[The dating coach] instructs women to turn on their “cab light.” “You know how you know when a cab is free because the light is on?” she asked. “That’s what you need to do with dating. You have to be in the game.”
So that's what this is about.

Bible verses the candidates didn't cite.

Last night at the big debate, Tim Russert asked each of the Democratic candidates to recite their favorite Bible verse. They all made a stab at the assigned task. No one rebelled against the assignment. Who would dare to use the occasion to do a little lecture on the importance of the separation of church and state? It worked for Bush, back in 2000, to sidetrack a question about philosophy into religion and say that Jesus was his favorite philosopher, so who will be bold enough to veer away from an invitation to display religiosity?

Joe Biden came the closest, when he said "Christ's warning of the Pharisees." If you understand the reference, it actually is a subtle way to imply that religion should not be used publicly for the purpose of achieving worldly goals. It's good to remind religious people -- especially religious people who crave more religion in their politics -- that Jesus set his religion apart from politics and gives Christians a religious basis for the separation of church and state.

In last night's debate thread here on the blog, there was some talk about how no one recited John 3:16. Religion for the purpose of politics must be drained of the intensely religious material. And so the candidates cited "the Golden Rule" (Hillary Clinton) or, generically, "The Sermon on the Mount" (Obama and, following Obama, Richardson). This is religion as ethics, and to answer this way speaks of the theory that religion gives rise to values that infuse political opinions and actions that are not themselves religious. There's little doubt that this is the safest position for an American presidential candidate to take.

John Edwards did the best here, reciting "What you do unto the least of those, you do unto me." What's so good about this is that it's specific. He gives a particular Biblical verse, which shows deeper familiarity with the Bible, and he has a verse that expresses special concern for the poor, which is his campaign theme.

Edwards doesn't get the line exactly right (even considering the many translations). It's from Matthew 25. Here it is -- boldfaced -- in context:
(31) "When the Son of Man comes in his glory, and all the angels with him, he will sit on his throne in heavenly glory. (32) All the nations will be gathered before him, and he will separate the people one from another as a shepherd separates the sheep from the goats. (33) He will put the sheep on his right and the goats on his left.

(34) "Then the King will say to those on his right, 'Come, you who are blessed by my Father; take your inheritance, the kingdom prepared for you since the creation of the world. (35) For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, (36) I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.'

(37) "Then the righteous will answer him, 'Lord, when did we see you hungry and feed you, or thirsty and give you something to drink? (38) When did we see you a stranger and invite you in, or needing clothes and clothe you? (39) When did we see you sick or in prison and go to visit you?'

(40) "The King will reply, 'I tell you the truth, whatever you did for one of the least of these brothers of mine, you did for me.'
Now, I must say that it would be disastrous to have political leaders who took that absolutely seriously. This is a description of who goes to Heaven and who goes to Hell, and the standard would appear to require all out devotion to the needs of the poor, the sick, and the immigrants. ("...I was a stranger and you invited me in.") Try to picture America, run by that standard. Utterly unrecognizable! But I'm not saying Edwards goes that far. He only cited that last line, which gently says that whatever you do for the dispossessed counts as something that you did for Christ.

But I got to thinking this morning about all the rest of the Bible. All the things they might have cited, both apt and horribly inapt. I made myself laugh, here, alone at the breakfast table, picturing one of the candidates doing his Bible-quoting like this:

Surely, the Bible is full of lines that would be utterly bizarre for a presidential candidate to say. Help me think of some. I was going to start us off with "Vengeance is mine!" Can't you just picture Gravel summoning up all his strength and waving a clenched fist and going "Vengeance is mine!" But "Vengeance is mine" in context is actually about human beings refraining from taking vengeance: "Beloved, never avenge yourselves, but leave room for the wrath of God; for it is written, 'Vengeance is mine, I will repay, says the Lord.'" (Romans 12:19-21.)

And yet, we wouldn't want a President who said that either, would we?

September 26, 2007

"Imagine you were walking down a city street, and someone leapt from behind a tree and hit you so hard that you fell to the sidewalk unconscious."

"Would you later describe that as a fight?"

The Jena prosecutor ably defends his choices.

Big debate tonight.

Did you know? Well, pay attention. And comment here, if you're watching.

UPDATE: Is anyone watching? Based on the comments so far the answer is no:
Prosecutorial Indiscretion said...
But Ann, Bionic Woman premieres tonight. And the election isn't for another 14 months.

hdhouse said...
sorry....Ken Burns' WAR is on PBS...

Trooper York said...
Sorry I am watching the Met game with Doyle as they blow another game, good times.

Revenant said...
I would rather be boiled in beezelnut oil than watch another damned political debate at this point.

Wake me when they narrow it down to two candidates per party.

Michael_H said...
Food TV is showing a sandwich making contest. Much more appetizing than the dembate.
What's beezelnut oil? Trooper York is friends with Doyle?... Well, I'm watching. I just can't bring myself to live-blog.

ADDED: Would you want second-grade children to read a story about a prince who falls in love with another prince? This seems like a question that could come back to hurt them. Edwards says "yes" outright, but Hillary blabs up a storm without answering the question and gets away with it.

Another interesting question is whether you'd lower the drinking age to 18. They go on about how bad alcoholism and drunk driving are without addressing the age issue and whether delaying legal drinking helps avoid alcoholism and drunk driving. Finally, Russert asks if anyone takes the other side. Gravel gruffly says if you can fight for the country you ought to be able to have a drink, and then Kucinich forcefully makes what I think is the right argument, that the key is -- if you're going to drink -- to learn to drink responsibly. He adds that the voting age should be lowered to 16. Since he has no chance of being the candidate, I feel free to say I like the guy.

AND: Quite amusing to pose a hypothetical (about using torture) and tell Hillary after she answers that it was based on a position Bill Clinton took. She just smiles and says she'll talk to him later. (I'd like to hear that conversation.) I thought it was interesting that on the hypothetical -- about a captured al Qaeda leader who knows the location of a ticking time bomb -- Obama and Clinton stressed that it can't be American policy to have a loophole to the proscription against torture. But I got the feeling that they were leaving a loophole there: It can't be stated outright so that the world knows we'd do it, but still, maybe we'd do it.

AND: What is your favorite Bible verse? Obama says Sermon on the Mount, but then blabs generically. Hillary Clinton says "The Golden Rule: Do unto others as you would have them do unto you." Which is not exactly a Bible verse, but okay. Why should the candidates be ready to recite Bible verses? Kucinich holds up a card with a prayer from St. Francis, which fits his theme (peace) but, again, isn't a Bible verse. Edwards is impressive with "What you do unto the least of those, you do unto me." This resonates with his poverty theme, and I like the way he doesn't point out that it does. Richardson says the Sermon on the Mount. Yeah, well, Obama already said that so it's boring. You had time to think of a specific verse in the Sermon to distinguish yourself. "Blessed are the peacemakers" would have been so easy. Gravel: Love! Dodd cites the Good Samaritan. Biden: "Christ's warning of the Pharisees." Which is a clever answer to the question, essentially critiquing the question. The idea is: Don't parade your religion in public.

FINALLY: Some general observations on presentation (not based on whether I agree with the positions taken). Obama seems tired. And he's tiresome. He needs to learn to give crisp, clear answers. Hillary was strong and solid and sometimes charming. Richardson did nothing to distinguish himself. Edwards was on fire. Smart, sharp, and clear. A lot of passion, but not in any way out of control. Dodd and Biden did fine for guys who know they have no chance. Best guy with no chance is Kucinich. Very clear. Knows what he wants to say and says it. Gravel is the old guy that wandered onto the stage to say that teenagers should drink and love is the answer.

WRITTEN THE FOLLOWING MORNING: You know what would have amused me? If, asked to give a favorite Bible verse, somebody -- Gravel? -- had said: "And I will strike down upon thee with great vengeance and furious anger those who would attempt to poison and destroy my brothers. And you will know my name is the Lord when I lay my vengeance upon thee."

Can Senator Larry Craig withdraw his guilty plea?

If he can, who can't?
To withdraw a guilty plea under Minnesota law, defendants must prove that ["manifest injustice"] has occurred....

Craig, who has declared he is "not gay" and never has been, has contended in legal motions that he was "deeply panicked"...

But the prosecution has contended that Craig did not panic and was keenly aware of his legal standing during the two months from his arrest date to Aug. 8, when the court accepted his guilty plea and a $500 fine....

[The government argues] that in at least three phone conversations, the senator "seemed calm, intelligent and methodical in his questions" before filing the guilty plea.

"Everything I thought was cute was a sign of autism and I felt tricked."

Jenny McCarthy writes about her son Evan:
I guess the doctor sensed this from me because he turned my head back toward him and said, "He is still the same boy you came in here with."

No, in my eyes he wasn't. This was not Evan. Evan was locked inside this label, and I didn't know if I would ever get to know who Evan really was. All the behaviors I had thought were personality traits were autism characteristics, and that's all I had. Where was my son, and how the hell do I get him back?

Mistrial in Phil Spector murder case.

According to CNN.

MORE: " A judge declared a mistrial in the murder case against music legend Phil Spector after a jury announced for the second time in a week that it was hopelessly deadlocked."

"Do not create a legal writing program, moot court competitions, student-edited law reviews, clinics, or any other co-curricular offerings."

Gordon Smith offers some surprising advice for Erwin Chemerinsky on how to structure the new law school at UC Irvine. The idea is to stress classroom teaching:
Allowing practicing lawyers to drive educational reforms is what got us into this mess. If you feel the need to teach "skills," develop an externship program, which will expose students to real legal problems and forge relationships between your school and potential employers.
That would shake things up. It steps on a lot of toes. But UC Irvine doesn't have toes yet.

"We reserve the right to exercise any and all options available to us."

Writes Douglas J. Band, who identifies himself as "Counselor to President Clinton," to Nino Selimaj, the owner of an Italian restaurant that has a photograph of Chelsea Clinton hanging on the wall. Apparently, Chelsea posed for the photo with Selimaj when she ate as his restaurant. If you pose with someone for a photograph, don't they get to hang the photo on their wall? And if you decide you don't like it and want it taken down, shouldn't you ask nicely?

"We reserve the right to exercise any and all options available to us." What kind of crap is that? It's a legalistic-sounding garble of words intended to intimidate but also to leave room to deny that that it's a threat. Is Band even a lawyer? He writes on Clinton's letterhead, not law firm stationery. He doesn't put "Esq." after his name. And "counselor" -- it can be a lawyer, but isn't necessarily.

Parse the sentence: "We reserve the right to exercise any and all options available to us." What sense does it make? Whatever "options" are "available," if they are available, they are available. What "right" are you "reserv[ing]"? If it's an option it can be "exercise[d]." So, "We reserve the right to exercise any and all options available to us" means absolutely nothing more than "we might have some options." Which means nothing. And doesn't sound threatening at all. Obviously, you want the reader to think you're saying we have options and we intend to exercise them if you don't comply. But you haven't said that.

Nino, I'm not your lawyer. I'm just a law and politics blogger. But I say leave the photograph up. Clinton won't come after you over this. He'll look like a complete jerk.

I mean, he already does.

ADDED: I continue my tirade here.

"I promised him a squirrel sandwich, and he's going to get one."

Who wants to try one?

(My favorite part of the video is when The Huntress is slipping the skinned carcass into the boiling water, and she says he looks kinda cute.)

ADDED: Let me embed the video. Not for animal-lovers or the queasy, but really funny, especially after the shooting part.

UPDATE: I'm creating a "squirrel" label, in case you want to read all 34 Althouse blog posts.

Giuliani, taking phone calls from his wife during speeches.

What a cornball stunt.

"How come 'national service' proponents never talk about drafting the old?"

Great question, by Ilya Somin.
[T]he moral case for conscripting the elderly for civilian service is arguably stronger than that for drafting the young. Many elderly people are healthy enough to perform nonstrenuous forms of "national service." Unlike the young, the elderly usually won't have to postpone careers, marriage and educational opportunities to fulfill their forced-labor obligations. Moreover, the elderly, to a far greater extent than the young, are beneficiaries of massive government redistributive programs, such as Social Security and Medicare--programs that transfer enormous amounts of wealth from other age groups to themselves. Nonelderly poor people who receive welfare benefits are required to work (or at least be looking for work) under the 1996 welfare reform law; it stands to reason that the elderly (most of whom are far from poor) can be required to work for the vastly larger government benefits that they receive.
Great issue! Somin thinks politicians focus on the young is that they don't vote. Old people do, and they'll blow a gasket if anyone tries to push them around. (And, lest you rile them, you'd better pay for all the drugs they see fit to take.)

Another thing is that young people are assumed to need training to fit into an orderly and good society. They tend to be in a state of flux, footloose, and full of dangerous passions. We old people are scared -- and jealous. So even as we're devising schemes to make our lives a bed of ease, we're thinking up new ways to control you. How lovely it is when you serve us.

"I want religion to stop taking society and the vulnerable for idiots."

Said the artist, Stig Ramsing, explaining the meaning of his sculpture of Christ as a dog with a huge penis. This offends people even in Sweden.

Another Swedish artist, Lars Vilks recently caused a stir with a cartoon depicting Muhammad with a dog's body. No word on the penis size of dog-Muhammad, but Ramsing says, "It is my turn to follow (artist) Lars Vilks and provoke a sensible discussion about religion."

I don't know too much about how Swedes experience about these things, but I think Ramsing saw how much action Vilks got on his artwork and decided to get some too. Minus the death threats.

"I didn't think three years out I'd be uninsured, thinking it's a great day when a crackhead brings me $500."

Do you really want to go to law school?

"Give me an address so we are also aware of what happens in Iran."

Says Mahmoud Ahmadinejad, repeating his assertion that as far as he knows, there are no homosexuals in Iran. He is saying things in a form that looks like a joke, and people here in the United States laugh. We're primed to laugh and not think at the utterance of words in the form of a joke. (Jay Leno is still on television.) But Ahmadinejad is talking about murdering human beings. It's not a joke.

"Eat well, be well housed, have a screw from time to time, smoke your pipe and drink your coffee in peace."

How to do good work, by Vincent Van Gogh.

We're #1... in binge drinking.

"The bottom line is that there is a lot of very heavy drinking in [Wisconsin]. The adult rate has been the highest in the U.S. since 2002."


I really can't get into the complicated problems caused by "promiscuous friending."

September 25, 2007

17 cert. grants!

The Court is back!
The two most interesting issues seem to be "the constitutionality of requiring voters to show a photo ID before they may vote (Crawford v. Marion County Election Board, 07-21, and Indiana Democratic Party v. Rokita, 07-25)" and "the constitutionality of execution by lethal drugs when the chemical protocol poses a risk of pain and suffering (Baze v. Rees, 07-5439)."

ADDED: More on the photo ID case:
In general, Republicans argue that identification laws reduce voter fraud, while Democrats oppose them on grounds that they lower the turnout among people who tend to vote Democratic.

Coincidentally or otherwise, the two Seventh Circuit judges who voted to uphold the Indiana law, Richard A. Posner and Diane S. Sykes, were put on the bench by Republican presidents (Ronald Reagan and President George W. Bush, respectively), while the one dissenting judge, Terence T. Evans, was elevated by President Clinton.

Writing for the majority, Judge Posner acknowledged that the Indiana law favors one party. “No doubt most people who don’t have Photo ID are low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates,” he wrote.

But the purpose of the law is to reduce voting fraud, “and voting fraud impairs the right of legitimate voters to vote by diluting their votes — dilution being recognized to be an impairment of the right to vote,” Judge Posner said. And assertions that many people will be disenfranchised, or that there is no significant voter-fraud problem in Indiana, are based on unreliable data and “may reflect nothing more than the vagaries of journalists’ and other investigators’ choice of scandals to investigate,” the judge held.

In dissent, Judge Evans wrote that the Indiana law imposed an unconstitutional burden on some eligible voters. “Let’s not beat around the bush,” he wrote. “The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.”

Hillary's lead proves the netroots are ineffectual.

Says David Brooks:
... Clinton has established this lead by repudiating the netroots theory of politics. ... [T]he netroots emerged in part in rebellion against Clintonian politics. They wanted bold colors and slashing attacks. They didn’t want their politicians catering to what Markos Moulitsas Zúniga of the Daily Kos calls “the mythical middle.”...

The fact is, many Democratic politicians privately detest the netroots’ self-righteousness and bullying. They also know their party has a historic opportunity to pick up disaffected Republicans and moderates, so long as they don’t blow it by drifting into cuckoo land. They also know that a Democratic president is going to face challenges from Iran and elsewhere that are going to require hard-line, hawkish responses.
I'm ready to vote for her if she maintains that hawkish edge. That is, I think there's a hawkish edge in there somewhere, since she going to so much trouble to hide what must be it.

Brooks ends by saying that the netroots' "influence is surprisingly marginal, even among candidates for whom you’d think it would be strong." Evidence? "Several weeks ago, I asked John Edwards what the YearlyKos event was like. He couldn’t remember which event I was talking about, and looked over to an aide for help."

Oh, come on now. He looked over at his aide because he couldn't remember it? I'm thinking he looked over at his aide because he knows it's a tricky matter -- it helps him and it threatens to hurt him -- so he's got to play it just right. Seeming not to be closely connected to them is crucial to getting the best leverage out of their support. Edwards isn't dumb and confused. He's smart and strategic.

AND: Matt Yglesias is right about this, I think:
... David Brooks has decided to celebrate his liberation from TimesSelect by penning a column seemingly designed to get tons of liberal bloggers to link to him by pissing us off.

AND: Andrew Sullivan takes umbrage:
The conservative Washington Establishment is swooning for Hillary for a reason. The reason is an accommodation with what they see as the next source of power (surprise!); and the desire to see George W. Bush's invasion and occupation of Iraq legitimated and extended by a Democratic president (genuine surprise). Hillary is Bush's ticket to posterity. On Iraq, she will be his legacy.

Yes, as noted earlier today, Hillary is already consulting with Bush about the war.
... They may oppose one another; but they respect each other as equals in the neo-monarchy that is the current presidency. And so elite conservatives are falling over themselves to embrace a new Queen Hillary, with an empire reaching across Mesopotamia, a recently deposed court just waiting to return to the salons of DC, a consort happy to be co-president for another four years, and a back-channel to the other royal family. She'll even have more powers than Clinton I, because Cheney has given her back various royal prerogatives: arrests without charges, torture, wire-tapping, and spy-ware on your Expedia account. Only the coronation awaits.
Why all the monarchy imagery? Anyone who wins the presidency acquires great power. Sullivan has found a way to repeat what we already know: He doesn't like Bush's ideas about the scope of presidential power and the way to use it, and he thinks Hillary Clinton is too much like Bush. But going on about "Queen Hillary" has a bit of a sexist edge to it, especially when Sullivan has chosen to illustrate his post with a photo of a sculpted bust of Hillary, which includes bared breasts. (Yes, I know the bust is supposed to call to mind grandiose Roman emperors who were depicted this way. Nevertheless.)

Pointless/Walrus/Bad Mood Leads to Lethal Rage.




(Photos from DUMBO.)

"Is the GQ Man a Wuss?"

Kaus asks.

"Left-armer! Wicket-scalper! Chase-scupperer! Slip-catcher! Stump-knocker! Blinder-player! Ahead-of-the-asking-rate-keeper!"

"[T]here is nothing in sports journalism more delicious than reading cricket news when you know hardly anything about cricket."

Bush and Hillary.

Being mature together.

Let's come up with better names for common objects.

Like computer. That's not properly descriptive of what you do with it. Not really computing very much, are you? I remember when a computer was referred to as an electronic brain. That was pretty exciting. Back in the 50s and 60s. And I remember in the early 80s, when I was working in a law firm, that the secretaries all worked on what they called word processors. (And we lawyers weren't allowed to have them in our offices, because we wouldn't look like lawyers.)

"What tattoo would you recommend for the Dalai Lama?"

"As you can see, he has plenty of room on his arm."

"I have a cricket."

Yes, and an incredibly cool-looking blog post.

Having Mahmoud Ahmadinejad speak at Columbia University "is required by existing norms of free speech," says Lee C. Bollinger.

Here's the text of the speech by Columbia University president Lee C. Bollinger as he gave the stage to Mahmoud Ahmadinejad yesterday. Bollinger has a lot to say about free speech -- freedom of speech is his specialty in legal scholarship -- and there's no way to tell how much of this is sincere opinion and how much is an effort to shore up his reputation and the reputation of his university. He has a complex task in giving this speech. He must introduce the speaker and justify having him there, but he also wants to appease or one-up the critics who say the speaker doesn't belong on the stage at all.

Let's look:
First, since 2003, the World Leaders Forum has advanced Columbia’s longstanding tradition of serving as a major forum for robust debate, especially on global issues. It should never be thought that merely to listen to ideas we deplore in any way implies our endorsement of those ideas, or the weakness of our resolve to resist those ideas or our naiveté about the very real dangers inherent in such ideas. It is a critical premise of freedom of speech that we do not honor the dishonorable when we open the public forum to their voices. To hold otherwise would make vigorous debate impossible.

Second, to those who believe that this event never should have happened, that it is inappropriate for the University to conduct such an event, I want to say that I understand your perspective and respect it as reasonable. The scope of free speech and academic freedom should itself always be open to further debate. As one of the more famous quotations about free speech goes, it is “an experiment, as all life is an experiment.” I want to say, however, as forcefully as I can, that this is the right thing to do and, indeed, it is required by existing norms of free speech, the American university, and Columbia itself.
Required? Not just an acceptable option? "[T]his is the right thing to do"... "it is required" -- what is the antecedent for "this" and "it"? Having Ahmadinejad speak? You can't give the big stage at a prestigious university to everyone who wants it. Is he only referring to the generic idea that debate required and debate requires opposing voices? Bollinger claims to be stating his argument "as forcefully as I can," and the word "required" is forceful, but, oddly, you can't tell what exactly he thinks is required.

"It should never be thought that merely to listen to ideas we deplore in any way implies our endorsement of those ideas." But giving the big stage at a prestigious university is not "merely to listen," Ahmadinejad represents something more than "ideas," and the ideas that he has are not merely ideas that "we deplore in any way." Yet Bollinger denies that giving a high platform to one speaker implies any special respect: "[W]e do not honor the dishonorable when we open the public forum to their voices." Public forum? This isn't a street corner where everyone gets to say what they want. It is not just any "public forum" when you highlight one speaker like that. The university's speech is implied: This is someone worth listening to.

Now, Columbia has its World Leaders Forum, and you might say that Ahmadinejad fits the framework of that speaker series so well that to exclude him would be to betray the commitment to debate. But then define the program and say why this is so. The university's website says: "The Forum brings together a wide range of governmental leaders, influential citizens, and intellectuals from many nations to examine global challenges and explore cultural perspectives," but under the question "Can my country's leader participate?" it only gives an email address. The actual standard to be applied is not stated. Presumably, the university preserves its discretion to make individual decisions, in private, about which leaders will speak and which will not.

Will Bollinger provide a list of all the requests received and which leaders were given the forum and which were denied it? Will Bollinger offer a principled definition of who belongs in the World Leaders Forum so that we can see what speech the university is "required" to present and so that we can know a high-level commitment to open debate when we see it?

Back to excerpts from Bollinger's speech:
[T]his event has nothing whatsoever to do with any “rights” of the speaker but only with our rights to listen and speak. We do it for ourselves.
This is a solid point. I like it. But I want to understand how it squares with the earlier statement that the event "is required." I appreciate the emphasis on the audience's right to receive information, but if it is our right, why are we required? Don't we also have the right to withhold the respect of a lofty podium to individuals whose hateful ideas we abhor and whose actions we regard as murderous? The point must be we wanted to hear him. Say why!
We do it in the great tradition of openness that has defined this nation for many decades now. We need to understand the world we live in, neither neglecting its glories nor shrinking from its threats and dangers. It is consistent with the idea that one should know thine enemies, to have the intellectual and emotional courage to confront the mind of evil and to prepare ourselves to act with the right temperament.
So the implication is: This man is evil. This is our chance to study him in the flesh, to understand the mind of evil and to build our confidence in our values as we face up to him.

Now, Bollinger is framing the event and boxing Ahmadinejad in. What we have here is not really a normal speaker that we might provide a forum for, but more of an object of study for you to abhor in person. I present the monster. It's quite unusual to bring in a guest and then introduce him that way. Or is it a World Leaders Forum tradition? Prove it!

Bollinger exercises his free speech rights describing the monster's evil to his face and questioning the monster about why he is such a monster. Excerpts:
Iran hanged up to 30 people this past July and August during a widely reported suppression of efforts to establish a more open, democratic society in Iran. Many of these executions were carried out in public view, a violation of the International Covenant on Civil and Political Rights, to which Iran is a party.

These executions and others have coincided with a wider crackdown on student activists and academics accused of trying to foment a so-called “soft revolution”. This has included jailing and forced retirements of scholars....

Why have women, members of the Baha’i faith, homosexuals and so many of our academic colleagues become targets of persecution in your country?...

In a December 2005 state television broadcast, you described the Holocaust as a “fabricated” “legend.” One year later, you held a two-day conference of Holocaust deniers.

For the illiterate and ignorant, this is dangerous propaganda....

Will you cease this outrage?...

Twelve days ago, you said that the state of Israel “cannot continue its life.”...

According to reports by the Council on Foreign Relations, it’s well documented that Iran is a state sponsor of terror that funds such violent group as the Lebanese Hezbollah, which Iran helped organize in the 1980s, the Palestinian Hamas, and Palestinian Islamic Jihad. ...

Why do you support well-documented terrorist organizations that continue to strike at peace and democracy in the Middle East, destroying lives and civil society in the region?...

In a briefing before the National Press Club earlier this month, General David Petraeus reported that arms supplies from Iran, including 240mm rockets and explosively formed projectiles, are contributing to “a sophistication of attacks that would by no means be possible without Iranian support.”...

Can you tell them and us why Iran is fighting a proxy war in Iraq by arming Shi’a militia targeting and killing U.S. troops?...

Why does your country continue to refuse to adhere to international standards for nuclear weapons verification in defiance of agreements that you have made with the UN nuclear agency?
Bollinger ends by telling Ahmadinejad that he probably lacks "the intellectual courage to answer these questions." If you know he won't, why have him speak? Bollinger anticipates and answers that question: Avoiding the questions "will in itself be meaningful to us." And performing that avoidance in public will "exhibit the fanatical mindset that characterizes so much of what you say and do." And that will be helpful, because it will "only further undermines your position in Iran with all the many good-hearted, intelligent citizens there." Let's hope so. Ahmadinejad does look bad in the video clips I've seen. I hope that furthers the cause of his opponents in Iran, and if it does, then, thank you, Lee Bollinger.

Bollinger concludes:
I am only a professor, who is also a university president, and today I feel all the weight of the modern civilized world yearning to express the revulsion at what you stand for. I only wish I could do better.
But it's easy to do better. You make me vomit, you hateful bastard. But you can't do that when you're presenting a man on a prestigious stage. You have to use polite language.

Oh, I'm yearning, yearning to express myself. But I am only I am only a professor, only a poor wee little professor a humble little incredibly prestigious university, which I also happen to be president of... yet I must yearn and yearn to express myself.... here where I control the stage and decide who will speak and who will not...

So, okay, he made the best of a bad situation that he brought upon himself.

IN THE COMMENTS: Smilin' Jack writes:
I wonder if Bollinger himself wrote the invitation to Ahmadinejad...if so it must have read something like this:

Dear Hateful Monster:

I yearn to express my revulsion at everything you stand for, so please come and speak at Columbia. Tell us your deplorable ideas in order to strengthen our resolve to resist them. Then we will ask questions in order to learn more about you, our enemy. But you will be too cowardly to answer them.


September 24, 2007

"Well, everybody needs to spew sometimes."

Eva Nazemson, Swedish game show host heroine, giving new oomph to the notion that the show must go on.

Judge Posner: "a state is permitted, within reason, to express disgust..."

Upholding the Illinois Horse Meat Act, which banned the production of horse meat for human consumption.

Cavel International -- a Belgian company -- had been slaughtering 60,000 horses a year and exporting the meat to places where people like to eat horse meat: Belgium, France, and Russia. It was the last horse slaughtering plant in the country.

Here's Posner's opinion for the 7th Circuit (PDF):
Horse meat was until recently an accepted part of the American diet--the Harvard Faculty Club served horse-meat steaks until the 1970s. No longer is horse meat eaten by Americans..., though it is eaten by people in a number of other countries, including countries in Europe; in some countries it is a delicacy. Meat from American horses is especially prized because our ample grazing land enables them to eat natural grasses, which enhances the flavor of their meat.
The question was whether the law violated the negative Commerce Clause or the Due Process clause, and both issues depended on whether the law was wholly irrational. Posner serves up a meaty opinion.
[Cavel argues:] The horses will be killed anyway when they are too old to be useful and what difference does it make whether they are eaten by people or by cats and dogs? But the horse meat used in pet food is produced by rendering plants from carcasses rather than by the slaughter of horses, and the difference bears on the effect of the Illinois statute. Cavel pays for horses; rendering plants do not. If your horse dies, or if you have it euthanized, you must pay to have it hauled to the rendering plant, and you must also pay to have it euthanized if it didn't just die on you. So when your horse is no longer useful to you, you have a choice between selling it for slaughter and either keeping it until it dies or having it killed. The option of selling the animal for slaughter is thus financially more advantageous to the owner, and this makes it likely that many horses (remember that Cavel slaughters between 40,000 and 60,000 a year) die sooner than they otherwise would because they can be killed for their meat. States have a legitimate interest in prolonging the lives of animals that their population happens to like....

Of course Illinois could do much more for horses than it does--could establish old-age pastures for them, so that they would never be killed (except by a stray cougar), or provide them with free veterinary care. But it is permitted to balance its interest in horses' welfare against the other interests of its (human) population; and it is also permitted to take one step at a time on a road toward the humane treatment of our fellow animals....

But even if no horses live longer as a result of the new law, a state is permitted, within reason, to express disgust at what people do with the dead, whether dead human beings or dead animals. There would be an uproar if restaurants in Chicago started serving cat and dog steaks, even though millions of stray cats and dogs are euthanized in animal shelters. A follower of John Stuart Mill would disapprove of a law that restricted the activities of other people (in this case not only Cavel's owners and employees but also its foreign consumers) on the basis merely of distaste, but American governments are not constrained by Mill's doctrine.
Go to the PDF if you want to see how Posner manages to work in a photograph of a lion eating a birthday cake made out of horse meat. John Stuart Mill... a photograph of a lion eating a birthday cake made out of horse meat... I love these erudite opinions!

“You exhibit all the signs of a petty and cruel dictator.”

Columbia University president Lee Bollinger said to President Mahmoud Ahmadinejad.

Ahmadinejad's response:
I think the text read by the dear gentleman here, more than addressing me, was an insult to information and the knowledge of the audience here, present here. In a university environment we must allow people to speak their mind, to allow everyone to talk so that the truth is eventually revealed by all.
Oh, isn't that nice? He believes in the marketplace of ideas when he's over here and he's been given a big stage.

And why did Bollinger call him a petty dictator? He's running a country with 67 million people.

ADDED: Giuliani on Hannity's show:
HANNITY: “While Bollinger in his introduction said his views were ridiculous, the Holocaust is not an issue in dispute, that his arguments were absurd.”

GIULIANI: “But then he turned the podium over to him.”

HANNITY: “Well then he turned the podium over to him and I’ll tell you what was more frightening to me, immediately thereafter, here was Ahmadinejad basically saying he found the introduction insulting but more importantly I want you to listen to the students’ reactions and clapping for Ahmadinejad in the background. … Does that student reaction frighten you as much as it does me?”

GIULIANI: “Well here’s—this is really to my point, Sean. It frightens me because I don’t know what kind of reaction Ahmadinejad has to that, which means he comes away from this thinking, hey there’s a strong level of support for me in the United States of America, maybe I can push these people a little further, maybe I can take advantage of them a little bit more. That’s why I say in spite of the fact that the president of Columbia introduced him with an insult, he turned the podium over to him and he comes away from it. Ahmadinejad comes away from it saying, ‘Sure there are people there that don’t like me and opposed me and booed me, but hey, there were an awful lot of people there that applauded for me too. So I have some support there.’ And who knows what that results in when you’re dealing—look we have to come to the conclusion that Ahmadinejad is an irrational man. You don’t say the things he says if you’re working on, kind of a rational script. The denial of the Holocaust, the threat of—against Israel, the ways in which he gives five different versions of every single answer. This is a man who’s living in this fantasy world of jihad and world domination by Islamic extremism.”

HANNITY: “And providing the weaponry to kill American troops.”

GIULIANI: “And providing weaponry right now, right as we’re speaking possibly taking the lives of American troops. And we hand him a podium at Columbia University. And have no idea of what impact that can have on him? And the idea that it’s in the name of free speech, well that isn’t correct. Not everybody gets to speak at Columbia. …”

Nature or nurture?


(Via Metafilter.)



It's nice to see an old-fashioned skill preserved and used.

IN THE COMMENTS: I'm told these are not cobblestones but Belgian blocks and that these men are not using good technique. Oh, well. It looked nice to me. Made me think the song lyric "Just kicking down the cobblestones... Life I love you, all is groovy." But all is not groovy, because there are no rubber mallets, no levels, not eye protection. Me, I'm impressed by the appearance of skill. I'm dappled and drowsy and ready to sleep...

Supreme Court cartoon robots with flashing eyes.

Beldar slams the big NYT Magazine piece about Justice Stevens, written by Jeffrey Rosen. (All the Supreme Court psychodramatists are named Jeffrey.)
Yellow journalists masquerading as legal scholars like The Jeffrey Rosen do their very best to persuade us that the Justices view each other in terms like "back-stabbers." In truth, you'll find, for example, Justice Scalia and his wife joining Justice Ginsberg and her husband at the opera several times a year because they like and respect each other despite their very different judicial viewpoints.
As Beldar notes, the kind of people who make it all the way to the Supreme Court are -- of necessity -- extraordinarily mature and highly self-regulated. So why do they come across as such hyper-dramatic characters in popular journalism?
Read Rosen's whole interview with Stevens. Look hard for personal insults toward other Justices that come from Stevens' lips. There aren't any. Instead, you get things like Rosen reporting that Stevens' "eyes [were] flashing" as he talked about Bush v. Gore.

Wow, really? His eyes were flashing? Way cool: John Paul Stevens as Optimus Prime! Pew-pew-pew! That, plus gossip and innuendo, is what Rosen has to peddle.
Yeah, eyes don't actually flash... and it would be spooky as hell if they did. Nor do eyebrows dance (as Jeffrey Toobin perceives looking at Justice Scalia).

And even if eyes flashed and eyebrows danced, it wouldn't necessarily signify what the Jeffreys tell you it signifies.

Jena... maybe everyone's wrong.

Jeralynn Merritt of TalkLeft tries to sort through what we know of Jena. Orin Kerr responds:
Based on her summary, it looks like we don't yet have clear evidence of racial discrimination in the charging decisions. There were two charging decisions that seem questionable, but we don't yet have the context to know why they were made. Perhaps we'll get that evidence in time, but I don't think we have it yet.
These are very complicated (and conflicting) reports, strained through high passions. It's important to keep a clear head and try to get a complete picture. And don't forget that you don't have to choose sides. It's possible for everyone to be wrong.

ADDED: The last line of this post got the song "For What It's Worth" playing in my head: "There's something happening here/what is is ain't exactly clear... Nobody's right if everybody's wrong."

The cross on the firehouse.

Here's a firehouse in Brooklyn Heights:


Establishment Clause violation?


(If you need some case law to get started analyzing this, start here. If you need background on the cross found at Ground Zero, look here.)

The glitch in the Hillary quote.

So it seems Hllary Clinton was on 5 Sunday talk shows. Sorry, I missed it all. I had other things to do on Sunday. But now I see that I missed some verbiage about Iraq, and I do appreciate good verbiage.
You know, I'm not going to get into hypotheticals and make pledges, because I don't know what I'm going to inherit, George.
She's talking to George Stephanopoulos there.
I don't know and neither do any of us know what will be the situation in the region. How much more aggressive will Iran have become?...

What will be happening in the Middle East? How much more of an influence will the chaos in Iraq have in terms of what's going on in the greater region? Will we have pushed al-Qaeda in Iraq out of their strongholds with our new partnership with some of the tribal sheiks or will they have regrouped and retrenched?...

I don't know, and I think it's not appropriate to be speculating. I can tell you my general principles and my goal. I want to end the war in Iraq. I want to do so carefully, responsibly, with the withdrawal of our troops, also, with the withdrawal of a lot of our civilian employees, the contractors who are there, and the Iraqis who have sided with us."
"The withdrawal of ... the Iraqis who have sided with us." See, that's the thing. The Iraqis don't get to withdraw. So why do we, unless we can defend the condition in which we leave them -- unwithdrawn?
We have a huge humanitarian refugee crisis on our hands. We have millions of Iraqis who have been displaced, some internally, some into other countries. The problems we're going to face because of the failed policies and the poor decision-making of this administration are rather extraordinary and difficult, and I don't want to speculate about how we're going to be approaching it until I actually have the facts in my hand and the authority to be able to make some decisions.
That's basically what Kerry said back in '04, except he couldn't straightforwardly say he wasn't going to tell us what he would do. But whatever it was, it was going to be careful and competent and just so darned better than what the other side would do.

The linked piece, by WaPo's Anne E. Kornblut sounds really irritated by Hillary's windy blabbiness: "Above all, though, in a morning of appearances that yielded virtually no news, Clinton illustrated her ability to talk. And talk. And talk."

Mmmm. Kerryesque!

Uncle Jay Explains the News.

Today's key word, kids: Blogosphere.

ADDED: Beltway Blogroll transcribes my favorite part of the video:
Among the thousands of political blogs, he said, there is "one for every type of political prejudice." He divided them into helpful categories and flashed screenshots of examples for each category:

1) The "godless, socialist, hate America, Bush-is-Hitler, cut-and-run, nanny state, tree-hugging, amnesty, traitor, left-wing, scumbag blogs": Crooks & Liars, Daily Kos, The Huffington Post, Talking Points Memo and TalkLeft.

2) The "neocon, corporate, racist, Bush-is-god, flag, Bible, homophobe, cold-dead-hands, transfat, right-wing scumbag blogs": Instapundit, La Shawn Barber's Corner, Little Green Footballs, Michelle Malkin and SteynOnline.

3) And the "more independent-thinking, left or right, perhaps libertarian, make-up-your-mind, who's-side-are-you-on, mamby-pamby, scumbag blogs": Ann Althouse, BuzzMachine, and Andrew Sullivan.

"Argument by impressionistic psychodrama."

I have a review of Jeffrey Toobin's "The Nine: Inside the Secret World of the Supreme Court" in the New York Sun.

ADDED: My main problem with the book is a general problem with popular writing about law (and politics and plenty of other serious subjects). To make it readable and entertaining, you forefront the people, not the ideas, you use a lot of colorful details, and, like a novelist, you make the details seem to express deep things about the characters. Within this rhetorical style, when there are any ideas or events to describe, they seem to arise from the depths of your characters.

Toobin describes Supreme Court cases like that, and because his book is entertaining and readable, many people will get their view of the Court from it. The material analyzing the actual arguments and opinions in the cases is cut way back, as if the author wrote with constant awareness of how little patience you would have for any legal analysis. This is understandable, up to a point. But this extreme minimization of the legal material allows for much sleight of hand, and like a novelist, you are led to take the point of view of some characters over others. He's really making an argument -- an "argument by impressionistic psychodrama."

You don't get to read how Chief Justice John Roberts analyzed the equal protection precedent in deciding the Louisville and Seattle school integration cases and how Justice Breyer saw the same precedent in a different way. Instead you feel along with Justice Breyer: "Breyer's wan longing for stare decisis will stir few hearts," Toobin writes (at page 339). Wan longing! It reminds me of something Stephen Colbert said on the first episode of "The Colbert Report": "Anyone can read the news to you. I promise to feel the news at you." Anyone can explain the cases to you. Toobin feels the cases at us. And the reader, who's had his feeling massaged for 300+ pages, will read of Breyer's "wan longing" and think: I will be one of the few! My heart is stirred!

But you haven't been given the material to decide if the bad guys are really trashing the precedents. You're just accepting the viewpoint of the judges you've been felt at to think are the good ones. They feel sad, so it must be a calamity. "David Souter was shattered" (page 177), so Bush v. Gore was atrocious.

What is missing is the analytical substance that would let you decide for yourself. In the review, I write:
[H]uman individuals drive the law, as Mr. Toobin tells it. The story of Jay Sekulow, "a nice Jewish boy from Brooklyn" whose "ignorance" was "his best weapon," swells the 12-page chapter on the Supreme Court's religion cases, but there isn't a word about the Rehnquist Court's most important Free Exercise case, Employment Division v. Smith. Smith, written by the conservative Justice Scalia, said religion was not entitled to special exceptions from generally applicable laws. (You can't avoid the Controlled Substances Act, for example, by saying you need to use peyote in a religious rite.)

Smith doesn't fit the theory that the conservatives are out to favor religion or the proposition that the religion cases "usually come down simply to ‘What will Sandra do?'" Justice O'Connor opposed the doctrinal shift in Smith, as did the three most liberal justices: William Brennan, Thurgood Marshall, and Harry Blackmun. It was a liberal tenet that the Free Exercise Clause relieves religious practitioners from requirements the law imposes on everyone else. To bring up Smith would require Mr. Toobin to acknowledge that conservatives favor equality and liberals want to favor religion and that would mess up the narrative arc of his story.
There's something else in the religion chapter that I couldn't fit into the review. When Toobin writes that Jay Sekulow's "ignorance" was "his best weapon," he's portraying the lawyer as someone who bumbled into using the Free Speech Clause to win protection for religious activities. Toobin writes that Sekulow didn't realize that "cases involving religion were always argued under the Free Exercise Clause."

But a mere 3 pages earlier, he was praising Robert Jackson's 1943 opinion in West Virginia Board of Education v. Barnette -- the case that said schools couldn't force Jehovah's Witnesses to recite the Pledge of Allegiance. Toobin doesn't mention that Barnette is a free speech case and that Sekulow competently cited it.

(And what about all the cases based on the Establishment Clause? They involve religion, even if they aren't litigated by Jay Sekulow.)

The pop culture approach Toobin uses demands that the individual, not the case law, governs what happens. It's a little like the "great man" theory of history -- the inferior man theory of the law.

It is fun to read though. Jay Sekulow is "a nice Jewish boy from Brooklyn," who moved to Atlanta and out of laziness attended Atlanta Baptist College. There, accepting a challenge by a "Jesus freak" to take the Book of Isaiah seriously, he saw that the messiah must be Jesus and became one of the "Jews for Jesus." Etc. etc.... and that's why we have the recent cases that say it violates the Free Speech Clause to discriminate against the religious viewpoint.

It makes sense if you get caught up in the seductive pop culture reading that is "The Nine."

And another thing....

Writing about Barnette, Toobin enthuses about Justice Jackson's idealistic prose: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." But he makes Justice Kennedy seem foolish for his love of "drama and what he called 'the poetry of the law'" (page (147), "flowery language about the First Amendment" (page 167), and "Kennedyesque flourish like 'the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" (page 223). But Toobin's not much different from everyone else there. Jackson had the knack for high-flown phrases, and Kennedy can't quite pull it off.

And I'm not completely opposed to pop culture writing about law. I do it too, and I follow my own standards of fairness. Like I think it's fair to tweak Toobin for making a big deal out of Kennedy's glasses -- how he changed from "seventies-style steel-framed aviators" to "a Euro-chic frameless model." This supposedly symbolized how much Kennedy is soaking up the influence of Europeans and European law as he travels to various conferences. What I find so hilarious is that on the back cover of the book jacket -- where there aren't any words at all, just a big picture of the smiling Jeffrey Toobin -- he's wearing rimless glasses. Meaningful!

(And aren't steel-framed aviator glasses in style right now?)

September 23, 2007

Me, in a few dark places.

There was last night, doing the blogger meetup at Pete's Ale House:


I forget who took this picture, but we looked at it right then, and Palladian remarked on the Diana iconography.

Today, I was sitting in a nook, under a bust of Mozart, at the Caffe Reggio in the Village.


I say that I always avoided the Caffe Reggio, back in the old days when we lived near here. We loved the Caffe Dante. And later, walking back toward my temporary home, I stopped, alone, at the Caffe Dante, where we sat all the time, circa 1980.


No, there's no going back. And nothing can ever be the same.

There is no greater sorrow than to recall happiness in times of misery.

The tiny dogs of New York.

I typo'd "tiny gods of New York." That last post fried my brain.

Anyway, there's the woman with the tiny dog and tiny waist in Brooklyn Heights:


And the woman with the tiny dog in SoHo:


She's wearing flip-flops on Prince Street and those midlength pants we used to call pedal-pushers.

Tiny gods of New York. I wonder what they would be....

Smiling about the end of the world.

DSC05202.JPG I have no idea what religion this is. DSC05202_2.JPG And I don't want to know. But doesn't God look a little smarmy in that picture? I think it's unlikely that God has that Michelangelo-style white beard: But I'm just so, so sure He's not going with the mustache but no beard look. I can't picture a God that grows whiskers. But if He does, the flowing beard look probably the divine choice. It says, I'm too busy to shave. But I think that if He needs to shave and decides to shave, He's going for the clean-shaven look. And could we get a few more options about "the future for the earth"? And a little less smugness that you've got a lock on "paradise"?

About Justice Kennedy's garish carpet and the way his desk is wedged in a corner.

Let's take a look at this passage from Jeffrey Toobin's book "The Nine: Inside the Secret World of the Supreme Court," page 147:
[Justice Anthony] Kennedy's vanity was generally harmless, almost charming -- sort of like the carpet in his office.

Understatement was the rule for the decor in most justices' chambers. Everyone had a few personal touches -- O'Connor employed a southwestern motif, with Native American blankets and curios; Ginsburg had opera mementos; Stevens had the box score from the World Series game in 1932 when Babe Ruth hit is "called shot" home run against the Chicago Cubs. (Stevens had attended the game as a twelve-year-old boy.) Kennedy, in contrast, installed a plush red carpet, more suited to a theater set than a judge's chambers. Worse (or better, depending on one's perspective), the carpet was festooned with gold stars -- garish touches that made the office a sort of tourist attraction for law clerks and other insiders.
So, let's see. Some law-clerk source of Toobin's was all... Omigod, you should see the carpet in Kennedy's office. It's all red like thick red like something you'd put in a theater set and it has like these garish stars all over it, so whenever our friends come in late at night we always go into Kennedy's chambers. I am always all you have got to see these garish stars like festooned all over the thing. I mean, like O'Connor has these really tasteful Native American thingies and Ginsburg has all this really high-class opera crap, and Stevens has that Babe Ruth thing because he actually saw Babe Ruth. My friend was all O'Connor and Ginsburg and Stevens all have stuff that like represents actual interests, you know, represents who they are. So it's like Kennedy is thick red carpet with gold stars, you know what I mean? Now, we all say that to each other whenever we want to crack up. It's always good when you want to roll on the floor laughing to have this really thick, plush, Kennedyesque, red carpet with garish stars to roll on.

What the hell? So what if Kennedy has proletarian taste in carpet? Does that mean anything about him? And, supposing it does, why would a man who likes thick carpet and bright colors be less suited to make decisions for us than someone with high-class, refined tastes? Who are these asinine clerks who are trying to take the justice down a peg because of his carpet?

And what the hell is a "theater set"? If you mean the carpet seemed like the kind you'd find in the aisles or lobby of a theater, that is not the set. The set is up on the stage, and the kind of carpet that would belong in the set would depend on what the play was. We're not using plush red with gold stars for "Long Day's Journey Into Night" or "Waiting for Godot."

Back to the passage that is irking me so bad:
All of the justices had the right to borrow paintings from the National Gallery, but Kennedy had taken the fullest advantage, plucking several near-masterpieces from the collection.
Now, what's the problem? He's got the good taste to pick the best paintings? Or do you think he's hogging paintings that the National Gallery would like to have on display for the general public? I'm willing to bet that the National Gallery is lending paintings that would otherwise be in storage. So now you're knocking Kennedy because he likes art? That makes him inferior -- more grandiose -- than the justices who display their personal memorabilia? Why?
What was more, he wedged his desk into the far corner of his office, away from the door, so that visitors had to traverse the expanse of the room to shake his hand.
Who's imposing that interpretation of the placement of the desk? There are any number of reasons why you might choose to position your desk in a corner. In fact, if Toobin wasn't in the middle of promoting the theory that Kennedy -- as the next sentence reads -- "tried hard, maybe too hard, to impress," most readers would probably think the corner was a rather humble position for a desk. Or maybe the light is better over there. But Kennedy is a ridiculous man, don't you know. He has red carpet, paintings, and a desk in the corner. Q.E.D.

The NYT admits it gave a deep discount to for the "General Betray Us" ad.

Amazing. Clark Hoyt, the NYT public editor, has this:
... paid what is known in the newspaper industry as a standby rate of $64,575 that it should not have received under Times policies. The group should have paid $142,083. The Times had maintained for a week that the standby rate was appropriate, but a company spokeswoman told me late Thursday afternoon that an advertising sales representative made a mistake.

... [T]he ad [also] appears to fly in the face of an internal advertising acceptability manual that says, “We do not accept opinion advertisements that are attacks of a personal nature.” Steph Jespersen, the executive who approved the ad, said that, while it was “rough,” he regarded it as a comment on a public official’s management of his office and therefore acceptable speech for The Times to print....

Eli Pariser, the executive director of, told me that his group called The Times on the Friday before Petraeus’s appearance on Capitol Hill and asked for a rush ad in Monday’s paper. He said The Times called back and “told us there was room Monday, and it would cost $65,000.” Pariser said there was no discussion about a standby rate. “We paid this rate before, so we recognized it,” he said. Advertisers who get standby rates aren’t guaranteed what day their ad will appear, only that it will be in the paper within seven days....

Jespersen, director of advertising acceptability, reviewed the ad and approved it. He said the question mark after the headline figured in his decision.

The Times bends over backward to accommodate advocacy ads, including ads from groups with which the newspaper disagrees editorially. Jespersen has rejected an ad from the National Right to Life Committee, not, he said, because of its message but because it pictured aborted fetuses. He also rejected an ad from that contained a doctored photograph of Cheney. The photo was replaced, and the ad ran....

For me, two values collided here: the right of free speech — even if it’s abusive speech — and a strong personal revulsion toward the name-calling and personal attacks that now pass for political dialogue, obscuring rather than illuminating important policy issues. For The Times, there is another value: the protection of its brand as a newspaper that sets a high standard for civility. Were I in Jespersen’s shoes, I’d have demanded changes to eliminate “Betray Us,” a particularly low blow when aimed at a soldier.
Terrible. Embarrassing, too, now that we know it. What else is there that we don't know. Could Hoyt look into that?

By the way, I'd have allowed them to use the language they wanted. I like to see how people choose to express themselves. It's helpful if it's not watered down for more comfortable consumption. I want to taste the poison so I can spit it out. And free speech is kind of an important value too, you know.

The world, tired of hating America, wants Hillary to win.

That's the way Bill Clinton tells it:
"Every African leader I talked to, every single one when I was there, without any prodding from me, said, 'For God sakes, I hope Hillary wins. We don't like disliking America here,'" Bill Clinton said at a fund-raiser for her last month.

"I called the outgoing French president, and he said, 'Oh, tell me Hillary's going to win. I'm so tired of disliking America,'" Bill Clinton told the crowd.

Bill Clinton also quoted the immediate past prime minister of Singapore as saying, "'Please tell me Hillary's going to win. We need America leading the world again.'"

Aides to Jacques Chirac, the former French president, and Goh Chok Tong, Singapore's former prime minister, told The News they could not confirm Bill Clinton's assertions - and, they said, it's general policy to stay out of other countries' elections.
But the Daily News, reporting this, says "Yet none of the leaders the former President cited will back him up." So what are you saying, Bill Clinton's a liar? Oh, my.

But what does this lie/exaggeration/statement imply? Bill Clinton thinks we want to have the President that leaders of other countries will love the most, and we will believe that Hillary Clinton will inspire world love. That's all rather odd.

Oh, no!

Thompson is boring!

Last night at Pete's Ale House.

Thanks to everyone who came to the readers-and-blogger meetup last night at Pete's Ale House. You could have been there too if you'd emailed me for the time and place back whenever that was that I said I was going to do this. The conversation went on for hours, and much ale and fried food was consumed. It was great seeing everyone. I won't post photos or invade your privacy by revealing who's who. You know who you are.


Portly Pirate says "I think we can all agree that a moment of silence is appropriate, can't we?" And so begins the outpouring of silence = death bons mots at the news that Marcel Marceau has died.

There's also "Walking Against the Wind." I was thinking of saying something along the lines of Walking Against the Eternal Darkness.

And before you unleash the now-conventional hatred of mimes -- there was a point, around 1972, when everyone started to say "I hate mimes" after years of finding mimes fascinating and profound -- let's remember the man who started it. His real name was Marcel Mangel, and his family changed that last name to Marceau to hide from the Nazis.
With his brother Alain, Marceau became active in the French Resistance. Marceau altered children's identity cards, changing their birth dates to trick the Germans into thinking they were too young to be deported. Because he spoke English, he was recruited to be a liaison officer with Gen. George S. Patton's army.

In 1944, Marceau's father was sent to Auschwitz, where he died.

Later, he reflected on his father's death: "Yes, I cried for him."

But he also thought of all the others killed: "Among those kids was maybe an Einstein, a Mozart, somebody who (would have) found a cancer drug," he told reporters in 2000. "That is why we have a great responsibility. Let us love one another."...

Marceau likened his character [Bip] to a modern-day Don Quixote, "alone in a fragile world filled with injustice and beauty."
Show some unspoken love today.