The moon is blue.

Over the bridge to Hutchinson Island.



Earlier, at dusk:



The sky, the dunes:

What do you think? Should I learn how to fly?

Maybe. If I had this $450,000 airplane...

ADDED: I don't actually want to own a plane, even if I had an extra $450,000 to spend. But if one of my millionaire readers wants to hit the PayPal button for $450,000... well, don't impetuously give me $450,000 and think you've made a contract that obligates me to do any particular thing. I may eat an egg salad sandwich for $200, but I don't want anyone giving me $450,000 and then thinking they've bought the right to tell me what to do, with access to courts to enforce the obligation. Paying for the plane would only be the beginning. First, it might be taxable income, and I'd have to pay for a lawyer to advise me on the subject (unless TaxProf wants to give me free advice). Second, I'd have to get insurance and pay and pay for it. Third, I'd have to pay to keep the plane somewhere and to use various airports. Fourth, I'd have to use it to go places, with all the expenses of travel. Do you know how expensive hotels and restaurants and clothes are for a person with a $450,000 plane?

Therefore, I think I would need several million dollars before I could learn to fly. But if you love this blog and would love to see more travel and adventure blogging here and if you are very rich, you see the PayPal button over there. I say this, worrying that anyone who gives me several million dollars might feel entitled to intrude into my private — and mysterious! — life. I would really prefer more of a John Beresford Tipton character. A John Beresford Tipton who operates via PayPal. Isn't there some web geek turned billionaire who would find fulfillment giving $1 million PayPal donations to the bloggers he loves?

Anyway.... the inside of this Cirrus airplane looks and feels very much like a car (a very nice car). I thought the design was beautiful, and I enjoyed sitting in it — which wasn't my idea. The guy showing off the plane invited me to get in. His idea was to get lots of people to sit in the plane. Most wouldn't buy, but the company is surely correct to assume that there were a lot of rich people walking by here at a PGA tournament and that seeing the plane close up would plant the idea of owning it in the heads of some people who might actually buy it.

I think the plane was designed to make an ordinary car driver feel safe, at ease, and capable of flying. I can drive, so why can't I fly? The seats are constructed to adjust to your height, so as you pull it forward so your feet reach the pedals, the height of the seat changes according to an assumption about the length of your torso. I got into a discussion with the guy who was demonstrating the plane about leg-torso disproportion, and he admitted the design only took account of the average proportion. But he swiftly called attention to the way my eyes were at exactly the same perfect level as the eyes of the tall man sitting in the other seat, and had had me close the door to see how the comfy armrest put my hand in exactly the right place to hold the throttle. I've never considered learning to fly, but I had the real sensation that with a plane like this, I could do it.

ADDED: Hey, I got linked by Daily Aviator. Thanks. And a special hi to anyone who hasn't read this blog before.

After waiting eons....

... the dune rouses itself and takes one step toward the ocean.

I'm in Stuart.

Your humble blogger is all worn out from traveling. Where am I? I'm in Stuart. Stuart, you say. Yes. I am in Stuart. (Not a guy! A place.) I hope you're happy that I travel to the ends of the earth to procure material to entertain you and this effort has brought me to Stuart.

More later, presumably. Meanwhile... carry on without me.

Let me get my hand around a giant cup of coffee.

There is so much to do today. Get some early morning blog posts up. Reabsorb McCulloch v. Maryland... contemplate the way it looks to a first year law student.



Teach a 2-hour Conlaw class....

Pack my bag for Port St. Lucie, keeping an eye on the cut. You watch your sport and I'll watch mine. I'll either be in Port St. Lucie or somewhere around Orlando or Palm Beach by nightfall. As Paul Simon used to sing: I'm on my way. I don't know where I'm going, but I'm on my way....

"LGBT Americans who know..." and "African American ministers and citizens who believe...."

The LGBT Americans "know that their sexual orientation is an innate and treasured part of their being." They know. That is, they are right. The African American ministers and citizens "believe that their religion prevents them from fully embracing their gay brothers and sisters." They have a belief. That is, we'd like to be respectful and inclusive and simultaneously signal that they are wrong.

These quotes are from a joint letter from Barack Obama's African American Religious and LGBT Leadership Teams, in response to criticism of him for sharing the stage with Donnie McClurkin — a pastor and a popular gospel singer who presents himself as saved from what he believes is the sin of homosexuality.

From the letter:

[A] great many African Americans share Pastor McClurkin’s beliefs. This... cannot be ignored.

[W]e believe that the only way for these two sides to find common ground is to do so together.

Not at arms length. Not in a war of words with press and pundits. Only together.

It is clear that Barack Obama is the only candidate who has made bringing these two often disparate groups together a goal. In gatherings of LGBT Americans and African Americans of faith, Obama has stated that all individuals should be afforded full civil rights regardless of their sexual orientation, and that homophobia must be eradicated in every corner of our nation. If we are to end homophobia and secure full civil rights for gay Americans, then we need an advocate within the Black community like Barack Obama....

We also ask Senator Obama’s critics to consider the alternatives. Would we prefer a candidate who ignores the realities in the African American community and cuts off millions of Blacks who believe things offensive to many Americans? Or a panderer who tells African Americans what they want to hear, at the expense of our gay brothers and sisters? Or would we rather stand with Barack Obama, who speaks truth in love to both sides, pulling no punches but foreclosing no opportunities to engage?

This sounds like to me like a specific example of the general idea that Obama has been purveying all along. Were you excited about the abstraction, but put off by the concrete manifestation?

John Aravosis hates it:

Keep digging, Senator....

I'm aware that some people claim that there's a lot of homophobia in the black community - frankly, I wouldn't know - but Obama is now saying that a great many African-Americans agree with McClurkin? Meaning, they agree that gays are trying to kill our children, that America is at war with the gays, and that homosexuality is a "curse"? I'm willing to believe that we may have to do some educating of a lot of Americans of all races and creeds, but I'm having a hard time believing that a "great many" of them believe the kind of wacky stuff that McClurkin does....

[Are we] to believe Obama would not exclude anti-Semites or racists from his campaign either?...

I simply don't believe that Obama would have the same reaction, be just as welcoming, if we were talking about racists or anti-Semites. He wouldn't say that we're all one big tent. He would kick the racist or the anti-Semite to the curb....

I mean, we're to believe that the fact that Obama, alone among Democratic candidates, is willing to openly welcome bigots into his campaign, and that fact makes him the best candidate for voters concerned about civil rights. And the corollary, the worst candidate for someone who cares about civil rights is the candidate who actually stands up against the bigots. So the best way to promote tolerance is to tolerate and embrace intolerance. And I suppose the best way to tackle the issue of domestic violence is to not exclude wife beaters from your campaign either? That's just wacked.

Obama made his name as a brilliant, inspiring speaker. So why am I reading a verbose letter by his supporters and a rambling rebuttal by an angry blogger?

I want to see Obama, on easily accessible video, putting in words exactly why he's doing the right thing, and I want to hear it and be able to say, yes, that's great.

If that doesn't happen, then the whole premise of Obama's campaign is delusional.

***

And I had a hard time even finding the letter I was looking for on Obama's website. Why don't they have a search function? After wasting time searching for a search function, I decided my only hope was trial and error hitting the buttons along the top of the page to get pull-down menus. The "Issues" button looked like a good bet, but no. I finally found it under "People."

People? "LGBT" appears on that menu. So does "Women." Just as I had to go to "People" to find out about gay rights, I would have to go to "People" to find out about abortion.

When is an issue not an "issue"? When it's associated with a particular interest group? But "Honoring our veterans" gets to be an "issue," as does "Fulfilling our covenant with seniors."

This is not great communication.

"Your day will come, vile one. As long as we live, you won't be safe, Jazeera."

Bin Laden fans suddenly annoyed by bad press.

"They didn't have to read Dostoevsky, they had to read critiques and deconstruction of Dostoevsky."

What's what's wrong with these kids today. Peggy Noonan looks at Scott Thomas Beauchamp and sees a whole twisted generation.

"Tabs sock Giuliani over Sox"

Muffi&Tiger, originally uploaded by Mats&Muffi.

I thought Rudy had got into trouble with a couple of kitty cats — Tabs and Sox. But it turns out to have to do with newspapers and baseball.

Like George Bush, Hillary Clinton "presides over an office of intense and focused workaholics, protective of their patron and wary of outsiders."

Mark Leibovich writes near the end this big NYT piece. The idea of this article seems to me to be to portray Hillary Clinton as possessing solid management style, and you have to wade through a lot of flattery before you get to the interesting negative stuff:

“The Clinton campaign seems to be dominated by the same old people,” said William Mayer, a Northeastern University professor who is an expert on presidential campaigns.

Having a tight inner circle can cut both ways, Professor Mayer said. With Mr. Bush, he said, “it looked fine to have this group of loyal Texans in there, until his approval ratings went under 40 percent and there were no fresh eyes to see the mistakes.”

Mrs. Clinton, not surprisingly, bristles at such comparisons. She contrasts what she calls the “echo chamber” around the president with her own willingness to expand her own circle, hear disputes and solicit opposing views.

“I’m very interested in how you reach and implement decisions in a very efficient way,” she said.

The people who thrive within Mrs. Clinton’s “process” are those who best provide the currency of choices. “She wants to know, ‘O.K., what are my options here?’” [says Clinton’s campaign manager, Patti Solis Doyle]. “She wants a Plan A, a Plan B and a Plan C. She wants recommendations. Then she’ll make a decision.” She and Mrs. Clinton speak two, three or four times a day, in a kind of shorthand.

Ms. Solis Doyle said she knew intuitively which items required the senator’s attention. When news surfaced of the criminal record of Norman Hsu, a Democratic fund-raiser, Mrs. Clinton’s advisers suggested a range of responses, including defending him, keeping the money he had raised for her campaign, or returning it.

In the end, Mrs. Clinton decided to refund $850,000 in contributions linked to Mr. Hsu.

“Her overriding sentiment was to move on and not get bogged down in the matter,” said a person familiar with the deliberations.

That was a departure from how Mrs. Clinton might have handled a comparable situation in the 1990s, when she might have been more “lawyerly,” dug her heels in and said little — generally her default method of crisis management back then. Today, “it is what it is” has become a favorite phrase of Mrs. Clinton.

So, how do we put together these 3 things? 1. surrounding oneself with a tight group of loyalists, 2. having others present a set of options so you can, efficiently, perform the "decider" role, 3. accepting what is.

It certainly sounds Bush-like. But remember, this is how her people portray her management style, so this is campaign spin. Who knows what she is really like as a "manager"? What have we seen her manage in the real world?

Mrs. Clinton has never led a large enterprise, a point her Republican rival Rudolph W. Giuliani has made in recent days. She has overseen a Senate office (staff of 55), a first lady’s office (staff of 25), an ill-fated “health-care task force” (involving 511 people), a presidential campaign (staff of more than 500) — and attended many, many meetings....

It seems we've only seen her manage one thing, and it was a spectacular failure.

Alone again... in October...

Another latte lunch with my Federal Courts book....



Looking to see if all that arcane doctrine will...



... crystallize.

"If this were a wedding, we'd be at the 'speak now or forever hold your peace' part."

"If you're a candidate hoping to get past her, the time for nuance and veiled references has passed."

Weddings... veils...

This woman for President business... it's driving you crazy, isn't it?

Too damned bad! It's too late! Maybe if you act fast... that's what they're saying... because they're political analysts — the quote above is from Steve McMahon, a former advisor to Howard Dean — and they'd like to have some relevance. So they're saying hurry, hurry, hurry... or it will be too late.

But it is too late. She's the Democratic candidate — unless you've got some dramatic new scandal... and even then....

Adjust. Give up. Deal with it. Resign yourself. It will be so much easier if you don't resist.

Beautiful...

... night...



There's very deep serenity tonight, here in New York.

"The late Gambino crime boss John Gotti was for ordering the hit [on Rudy Giuliani], and had the support of the leader of the Colombo crime family."

This was back in 1986, back when Giuliani was U.S. Attorney for the Southern District of New York and had indicted the heads of the five families. The Gambino and Colombo families said yes, but the other 3 said no, and it did not happen.

I doubt if any blogger will consider it inapt for me at this point to note that Bill and Hillary Clinton once did a commercial where they play-acted roles associated with the fictional TV crime family "The Sopranos."

In this world, there is the real and the fake.

"Michelle Malkin lives for this. At Hoover, Blackfive was unimpressed."

At Hoover? Please, somebody help Andrew. Oh, I'll just sit back and wait for Uncle Jimbo to respond.

And as long was we're trashing journalists this morning...

Beauchamp! Foer! TNR!

"Look at the bright side, kid. Every guard in the U.S. Military will know EXACTLY who you are from here on out."

Wow. A reporter from Knight Ridder — Knight Ridder, I tell you! — writes a blog post disrespecting an American soldier who had never heard of Knight Ridder — Knight Ridder, I tell you! — and one commenter after another tells him what an insufferable, ungrateful jackass he is. (Via Instapundit.)

At comment #67, Arthur writes:

The amazing thing is not that there are 63 comments, almost all them hammering this clown, but that the clown didn’t realize that by posting his story that everybody who WASN’T a journalist would call him out. These MSM guys are in a universe all to themselves.

Amazingly too, the reporter — Bobby Calvan — left the comments up until nearly 200 nasty — deservedly nasty — comments were posted. Finally, he took down the post, but not before it was preserved (at the link above). The smackdown in the comments is so satisfying and entertaining that I'm doing my part to make this viral, but I did start to feel a little sorry for the... jackass. Glad I’m Not You said, at comment #82:

I’m so glad I’m 42. When I was young and immature, like you, and I made an ass out of myself it was usually in a room with a Fire Marshal-rated capacity of under 100 people. Even if the place was full and each person told two friends what I did, I was still under the 300 mark of people I needed to avoid for a week. And since memories are short and someone else was bound to make an ass out of themselves in a relatively short amount of time it never really mattered that much. But you, Bobby, have the distinction of making an ass of yourself on the World Wide Web, which is currently accessable by just over 1.2 billion human beings. On top of that, your friends - and apparently rather plentiful enemies - can now copy-cut-paste your idiocy and keep it forever. And ever. And ever.

Bobby, in the year 2065, when you are 80 or so, you will receive an email with this blog post in it. All of it. Each. And. Every. Word.

I’m so glad I’m 42. And not you.

Best of luck with that reporter thing.

That's the closest he gets to a shred of sympathy for his horrible, distorted self-importance. And then there's the mock sympathy. Drew Cloutier said:

Dude, I can’t believe how all of these commenters like don’t get it. I’m with you. You were being hassled by The Man and you were like so cool. I hate it when I like go to an airport and those TSA yahoos are all like, “Take your computer out of your bag” and “Take of your shoes off” and sh*t like that. Like, whatz their problem. Its not like I’m Richard effing Reid. Next time that happens to me, I’m like going to go all Bobby Calvan on their asses. I’ll pretend like I’m taking down their names (they’ll sh*t their pants at that just like I bet that solider did). I’ll make a press Knight Ridder pass up on my computer (dude, I wish I had a real one like you) and yell “What the hell good is this if I have to be treated like an effing terrorist.” I’ll tell them that I work for a big corporation where we all drive talking cars and they are just peons who probably didn’t graduate from high school. Man, you’re my hero. All these damn Chimpy McHitlerburton clones pretending like they are protecting us when all they are doing is oppressing us. Ignore all of these commenters and just keeping on being you.

I’m like going to go all Bobby Calvan on their asses.

Halloween in Brooklyn Heights.

"Giuliani and religious right meet on the road to political adulthood."

Writes Daniel Henniger in the Wall Street Journal:

Call me old-fashioned, but I think governing philosophy is more important than the endless Chinese puzzle of moving this or that issue forward and back. American politics, right and left, has become obsessive about nailing where candidates "stand" on standalone issues--abortion, gay marriage, immigration, the North Pole melting or pulling out of Iraq. Trying to pin politicians down is honest work. But last time I looked, the thing you win was still called a "government." That means it matters if the candidate is able to govern, which has proven a challenge the past 16 years or so, in part because proliferating factions refuse to be governed.

In the '60s, the left introduced the "non-negotiable demand" into our politics. It's still with us. It's political infantilism. In real life, the non-negotiable "demand" usually ends about age six.

So, has Giuliani really done anything more than to tell the social conservatives that he can't agree with them on all their issues but that they ought to want him anyway? Are 60s lefties really to blame for one-issue voting? And if we really got into thinking about maturity and infantilism in American politics, which candidate would we gravitate toward? Giuliani?

IN THE COMMENTS: Madison Man: "That damn left! If only everyone was mature like the right!"

An intimate relationship with the internet.

A Zogby poll about Americans and the Internet:

The poll found that 24% of Americans said the Internet could serve as a replacement for a significant other....

... [B]ut most are not prepared to implant it into their brain, even if it was safe. Only 11% of respondents said they be willing to safely implant a device that enabled them to use their mind to access the Internet. Interestingly, men were much more willing than women. Seventeen percent of men said they were up for it while only 7% of women wanted to access the Internet using their mind.

"Interestingly"? More like predictably, isn't it? What would the world be like if we could see the internet, at will, in our heads? People can already think about anything they want — even while giving the appearance of relating to the outside environment. But they'd be able to speak about things as if from knowledge or memory when they were only reading from the internet. I think your real memory and conscious mind would deteriorate as you transferred your attention to the seemingly more reliable and capacious internet, and you would lose track of this deterioration and perhaps not care, as you gradually slid into robothood. Ah, I assume this has been written to death in science fiction books, but I haven't read them. Anyway, my advice is don't get the device and stay away from those who do.

As for the internet "as a replacement for a significant other" — how did people interpret the question? Substitute "reading" or "watching television" for the internet, and you can see that there's nothing abnormal there. If you didn't have an adult companion living with you, what would you do differently? You might say, I'd be fine. I see people when I'm out or at work, and I'd be fine by myself at home. I'd have plenty of time to read and write — or play games and look at pictures — without anyone physically present and needing my attention. Is there anything wrong with that?

For the Common Good.

 

Palladian photoshopped that crazy photograph from the WaPo article I was talking about earlier today.

IN THE COMMENTS: Palladian writes:

For the record: I am NOT suggesting that Bill and Hillary Clinton are Communists or even socialists for that matter. I was merely struck by the photo and the fact that, intentional or not, it uses a conventional propagandistic mode of depicting political leaders. I would have done the same to any politician photographed in that way, though being able to use Hillary Clinton's old quote made them an especially good target.

Think you can startle Condoleezza Rice?

Think again.

"Contrast Dodd's leadership and conviction on this matter with the complete passivity and invisibility of Hillary Clinton and Barack Obama."

Okay. Then contrast Dodd to Clinton and Obama on this new LA Times/Bloomberg poll (PDF), asking Democrats who are registered and plan to vote in the primary how they'd vote if the primary were held today:

Hillary Clinton 48%
Barack Obama 17
John Edwards 13
Bill Richardson 2
Joe Biden 2
Dennis Kucinich 1
Someone else 2
Don’t know 15

- Chris Dodd and Mike Gravel each got less than 0.5%.

"A kafuffle has broken out between Yale Constitutional Law Professor Jed Rubenfeld and self-righteous right-wing blogger 'Simon.'"

LOL. Our Simon has a quote for his banner from preening, left-wing, he's-not-Mickey blogger Stephen Kaus (who seems to be some sort of lawyer but thinks judges announce decisions by saying "Decision: [name of winning party]" and that there is a word "kafuffle").

IN THE COMMENTS: Inwood writes:

I don't know how anyone could fail to, um, decide correctly which is more reasonable from both a commonsense POV, & a Con Law approach: (a) the carefully reasoned & well-expressed points presented by both Mukasey & Simon or (b) the, um, “self-righteous” as well as hysterical "five days from the effective date of Mukasey's appointment, we're all gonna be back in the McCarthy era where, because we've talked to certain people, expressed certain ideas, or are some kind of free thinkers; we’re gonna be on the "National Wire Tapping List", following which we may well be randomly water boarded by the jackboots of BushHitler" nonsense of The NYT & these guys.

BTW, IR, how about “Kausfluffle”?

And Simon is unruffled by the Kausfluffle:

I'm not sure how ruffled my feathers could really get when someone whose sole claim to fame is having a brother more famous, more erudite and more accomplished than he is decides to demonstrate the same lack of reading comprehension skills (he completely misapprehends my post, not to mention making some very questionable assumptions) by scrawling some graffiti on the sewer wall of the internet.

I mean, really, Steve Kaus? For all the world, he's the blogosphere's equivalent of the brother of the Paul Bettanny character in Wimbledon.

And what's with the "Simon" in scare quotes? It's not as if my last name's a secret or hidden.

ALSO IN THE COMMENTS: Too Many Jims said "there are better indictments of Kaus' writing than "kafuffle is not a word." And I said:

I have many indictments, but that doesn't mean I'm going to spend my scarce time rebuffing some lawyer who writes for readers that he thinks will be awed by the title "Yale Constitutional Law Professor." I've seen too many things written by Yale Constitutional Law Professors to get stirred up when a non-Yale Constitutional Law Professor comes along and acts like something must be true because it was written by a Yale Constitutional Law Professor. Kaus must be: unsophisticated/blinded by ideology/out to manipulate readers. I have no time for that.

MORE: Jed Rubenfeld — the Yale lawprof who wrote the NYT op-ed that started all this — emails:

In response to my op-ed, some have said, "But Judge Mukasey in no way suggested a presidential authority to ignore constitutional statutes; all he meant was that the president has authority to ignore unconstitutional statutes." Others have wondered, on my behalf, whether, given Judge Mukasey's actual statements, and given the history of executive-power claims by the present Administration, this reply is in fact a meaningful reply to the point I made in my op-ed. Of those posting on your blog, "Laser" comes closest to saying what I myself would have said. But in case it would be helpful, here is my own answer.

There are two interpretations of Judge Mukasey’s statements that I meant to be addressing simultaneously and that I would object to equally.

Judge Mukasey indicated that the president has constitutional authority to disregard a federal statute if “what goes outside the statute nonetheless lies within the president’s authority to defend the country.” The president was not above the law, Judge Mukasey emphasized, but the law “starts with the Constitution.” A "statute, regardless of its clarity, can't change the Constitution."

The first question — and what I regard as the real question — is whether Judge Mukasey's statements imply a presidential authority to ignore a federal statute in the following kind of case: (a) where both the president and the Congress possess constitutionally granted power over a certain subject matter; (b) where Congress has exercised its constitutionally granted power; but (c) where the president, in the exercise of his constitutional power, wants to do something that is otherwise constitutionally permissible, that he believes justified in the name of defending the nation (at least in wartime) as he thinks best, but that the enacted statute prevents him from doing. I think Judge Mukasey's statements at least leave open the possibility that the president has authority to disregard the statute in this kind of case.

There are two interpretations of Judge Mukasey's statements according to which he could have endorsed such an authority. First, he might have meant: (1) that, under our Constitution, executive power simply trumps a constitutionally enacted statute in those cases. This is not an unintelligible position. Where two branches each have power over a certain subject matter, one must be supreme over the other, even if both are acting within their constitutionally granted powers. In matters of defending the nation in wartime, someone might intelligibly believe that the executive power must be supreme. On my view, however, this position is plainly unacceptable, contrary to Youngstown, contrary to the supremacy clause, and a subversion of the Constitution’s foundational principles.

Second, Judge Mukasey’s statements could be interpreted to mean: (2) that in the cases specified, the statute becomes unconstitutional just because the statute has infringed on executive power. Now, some people seem to think that this is very different from position (1). They say, "On this view, Judge Mukasey was merely arguing for an executive power that everyone agrees to -- the power to disregard an unconstitutional statute." For myself, I do not view position (2) as meaningfully different from position (1). I think position (2) just is position (1), dressed up in different words; or, to put it the other way, that position (1) just is position (2), dressed up in different words. I take position (2) to be unacceptable precisely because it boils down to the same thing as position (1). I also take position (2) to be close, if not identical, to the position articulated in the repudiated “torture memo.”

I thought about trying to distinguish these two positions in my op-ed, but in the end decided not to. I made this decision not only to save words. On my view, the two positions are in the end not distinguishable, so it is obfuscatory to try to make them sound distinct.

Let me emphasize that I take both positions (1) and (2) to be distinguishable from position (3), which holds that the president has the authority to disregard a statute that unconstitutionally asserts congressional power over a subject matter that the Constitution simply does not grant Congress power over. Thus if Congress passed a statute ordering the deployment of troops in a fashion so specific that Congress had attempted to exercise a power that only the commander-in-chief possesses, Congress would not have been exercising one of its constitutionally granted powers and would not have passed a valid statute at all. By contrast, I take FISA and the military commissions act clearly to govern matters that both Congress and the president have powers over (at least, in FISA’s case, as applied to communications made by United States persons on United States soil). It follows that the president is simply breaking the law if he unilaterally violates these statutes, regardless of which position, (1), (2), or (3), is asserted in defense thereof.

What is key is that there are some things with respect to which the President has exclusive power. This is commonly known as Jackson's category 3 (from the Youngstown case). Here is Justice Jackson's delineation of the concept:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system....

[Where the President's action is contrary to a federal statute,] it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject.

I think this is what Mukasey was referring to, and, as such, it is a solid and unremarkable position. The real dispute is not over whether the President can violate statutes, but how big "category 3" is: How much power does the Constitution give exclusively to the President? I don't doubt that Mukasey has a more expansive view of "category 3" than Rubenfeld does.

Dark clouds seem to rise from the city like smoke.

This morning, at 7:15 AM.

"Islamo-Fascism Awareness Week" at Berkeley.

A long report with lots of pictures and video. The Berkeley students — in contrast to the Wisconsin students I wrote about yesterday — tried to disrupt the speaker. And their speaker — Nonnie Marwan — was not harshly confrontational like the Wisconsin speaker — David Horowitz. The disruption at Berkeley, it should be emphasized, seems to have come not from Muslim students but from political leftists. But the difference in student behavior at the two schools is striking and instructive.

This picture caught my eye:



Here's some fashion advice:

1. If your ideas are loathsome, wear loathsome clothing to ward people off.

2. If you think you have an acceptable way of wearing shorts, don't stand near someone who is wearing obviously horrible shorts.

"You can participate in the other threads and be your zany libertarian self all you want, but you cannot pimp Ron Paul."

Redstate cracks down on Ron Paul supporters. Captain Ed doesn't like it:

... I disagree with Leon's assumption that these Paul supporters are all or mostly cryptoliberals. Plenty of libertarian-leaning Republicans exist in the party, along with the former Buchananites and isolationists of the GOP. Instead of cutting these people off, it might be better for Redstate to keep engaging them. After all, Paul will not be in the race all that much longer, and we need those voters to stay in the GOP when Paul disappears. There are worse impulses than libertarianism.

Seems like there's a big fact question here. Are they "cryptoliberals" — and therefore trolls — or not?

The mesmerizing Clintons and the mystifying Giuliani.

Yikes, look at the photograph of Bill and Hillary Clinton on this WaPo story about a new Los Angeles Times/Bloomberg poll. It looks like a photorealist painting. I'm picturing this the size of a gallery wall and oozing irony. Or as a 50-foot banner hanging along the wall of a large government building. Look at those visionary, upcast eyes.....

[ADDED: Picture photoshopped for your amusement.]

But that's not what I came here to talk about! Jeez, I nearly got sucked into a Clinton vortex....

What I want to talk about is those crazy Republicans. According to the WaPo:

[D]anger looms for Republicans should they nominate the politically moderate Giuliani: About one-third of GOP voters said they would consider supporting a third-party candidate in the general election if the party nominee supported abortion and gay rights.

Yes, yes, blah, blah, blah... We've all heard this sort of thing. But you have to click into the PDF of the poll for the interesting part:

[A]mong the 34% of Republican primary voters who would consider a third party candidate if the candidate chosen is not conservative enough, Giuliani received more support than the other candidates.

What?! The question was whether they agreed with the statement: "If the Republican Party nominates a candidate supporting abortion and gay rights, the social conservatives in the Party should run a third party candidate." Then they asked the 34% who agreed who should be that third party candidate. Response:

Giuliani 26%
Thompson 19
McCain 10
Huckabee 9
Romney 7

Another question asks "Could you vote for a candidate for president who supports abortion and gay rights if you agree with him on other issues, or could you only vote for a candidate for president who opposes these issues?" This gets 39%, which seems to mean that there are 5% more Republicans who want to abstain from voting and don't want to see a third party candidate. In this 39%, the support breaks down like this:

Thompson 22%
Giuliani 19
Huckabee 11
Romney 11
McCain 8

Still 19% for Giuliani.

Here's more on the mystifying support for Giuliani:

More than two-thirds of Republican voters said abortion should be illegal (which includes 51% who said illegal with exception – rape, incest and to save the mother’s life). Seventeen percent want abortion to be illegal without any exceptions. And nearly half of Republican voters are against same-sex couples marrying or forming civil unions, including huge majorities of those who consider themselves part of the religious right and Christian fundamentalists.

Although Giuliani is pro-choice and favors civil unions, among those who want abortion to be illegal 35% would still vote for the former mayor; among voters who want same-sex couples to neither marry nor join in civil unions, 24% are also supporting him. He gets the most votes in both of these groups.

Can anyone explain this? Could it be perhaps that people don't know his positions, but they recognize his name as Italian and assume Catholic along with all that supposedly entails? How long can this ignorance persist?

Republican haters can assemble over there and laugh and say mean things, but I think we should assume that a vast chunk of Americans have yet to start paying attention to the presidential race. This is chilling, because it looks like the the process — whatever this process is — has already selected the candidates.

But the voting hasn't begun. Maybe in a couple months — Christmas is 2 months away — ordinary people will start paying attention and everything will change. It did in '04.

Using kids to bypass campaign finance law.

WaPo has an exposé. Including this:

A supporter of former Massachusetts governor Mitt Romney (R), Susan Henken of Dover, Mass., wrote her own $2,300 check, and her 13-year-old son, Samuel, and 15-year-old daughter, Julia, each wrote $2,300 checks, for example. Samuel used money from his bar mitzvah and money he earned "dog sitting," and Julia used babysitting money to make the contributions, their mother said. "My children like to donate to a lot of causes. That's just how it is in my house," Henken said.

Nice to see someone raising her kids to be all high-minded and generous. Because, you know, in some families, people cheat and lie.

"For some families, ketchup accounts for a large part of the household vegetable intake."

So ketchup is a vegetable! In an article about "going organic," the New York Times blithely expresses the belief that has sprouted millions of Reagan jokes for the last quarter century.

Halloween in Brooklyn Heights — tasteful!

What did Mukasey say about the President's power to disregard statutes?

Yale lawprof Jed Rubenfeld has a NYT op-ed. Simon wields the transcript in retaliation. Decision: Simon.

UPDATE: The discussion continues here, where, among other things, Rubenfeld responds.

Rudy Giuliani promises to fight off space aliens.

Have the other candidates given us equivalent assurances?

ADDED: Source.

"I will follow Osama Bin Laden to the gates of hell and I will shoot him with your products."

McCain. He's tough. But reasonable: "I certainly didn't mean I would actually shoot him. I am certainly angry at him, but I was only speaking in a way that was trying to emphasize my point. I would not shoot him myself." He's going to get someone else to shoot bin Ladin.

Back in New York, back in the work week.

Ah, remember last summer when I was flooding the blog with photographs of flowers? Where is that summer now? Still, here in Brooklyn Heights and here in October, there are many flowers, some insisting on posing for a photograph:



I was on my way to that café on Henry Street, the one where we took all those portraits against the neutral-colored wall. Today, I sat there alone — alone with my Federal Courts book. I had a big latte and a tiny sandwich, and I chose an outdoor table, where I studied habeas corpus for the hundredth time and tried to collect my thoughts over the roar of the traffic on Atlantic Avenue.

But first, a tablescape:



I took many more photographs on my walk to and from the café. The first one started a theme of Brooklyn Heights-style Halloween decorations which I will manufacture into a separate post eventually. For now, here it is, the assemblage that inspired me:



Who needs orange when there is black and white?

"I assume there are dragons and griffins and werewolves and homosexual Frankensteins throughout these novels..."

"...but I honestly don't give a shit if my assumption is true or false."

Chuck Klosterman is not reading the Harry Potter novels.

I find it astounding that the unifying cultural currency for modern teenagers are five-hundred-page literary works about a wizard. We are all collectively underestimating how unusual this is. Right now, there is no rock guitarist or film starlet as popular as J. K. Rowling. Over time, these novels (and whatever ideas lie within them) will come to represent the mainstream ethos of our future popular culture. Harry Potter will be the only triviality that most of that coming culture will unilaterally share.

And I have no interest in any of it.

And I wonder how much of a problem this is going to become.

If it's the only shared thing, that means, in the future you won't get any of the references.

... I will not grasp the fundamental lingua franca of the 2025 hipster. I will not only be old but old for my age. I will be the pterodactyl, and I will be slain. It is only a matter of time.

ADDED: The word "hipster" is vastly overused these days. Anyone with a tinge of youth and a shred of knowledge of fashion and pop culture trends seems to be a hipster — at least to people who notice they're aging and don't want to bother with the trends. Hipster — the category should be more elite. Or it seems completely absurd.

We could try to think deeply about the word "hip." For example, why aren't hipsters and hippies the same thing? What is the -ster relationship to "hip" that is different from the -ie relationship? To me, -ster seems to make you more of a knowledgeable proponent or an obsessive devotee, and -ie suggests you're having fun with it. Other -ster words that come to mind: mobster, roadster. Is a mobster's relationship to the mob and a roadster's relationship to the road the same as a hipster's relationship to hip?

Other -ie words I think of easily: foodie, groupie. See? More fun.

AND: A little musical accompaniment to this postscript: here. In the comments, Trooper York brought up The Orlons, but then he didn't quote "South Street." The first time I ever heard the word "hippie," it was in that great early 60s song. Let's check out the etymology:

During the jive era of the late 1930s and early 1940s, African-Americans began to use the term hip to mean "sophisticated, fashionable and fully up-to-date". The term hipster was coined by Harry Gibson in 1940, and was used during the 1940s and 1950s to describe jazz performers. The word evolved to describe Bohemian counterculture. Like the word hipster, the word hippie is jazz slang from the 1940s, and one of the first recorded usages of the word hippie was in a radio show on November 13, 1945, in which Stan Kenton called Harry Gibson "Hippie". This use was likely playing off Gibson's nickname, "Harry the Hipster."

In Greenwich Village, New York City, young counterculture advocates were named hips because they were considered "in the know" or "cool", as opposed to being square. Reminiscing about late 1940s Harlem in his 1964 autobiography, Malcolm X referred to the word hippy as a term African Americans used to describe a specific type of white man who "acted more Negro than Negroes."

In a 1961 essay, Kenneth Rexroth used the term to refer to young people participating in African American or Beatnik nightlife.

In 1963, the Orlons, an African-American singing group from Philadelphia, Pennsylvania released the soul dance song "South Street", which included the lyrics "Where do all the hippies meet? South Street, South Street...The hippest street in town".[9][10]....

The more contemporary sense of the word "hippie" first appeared in print on September 5, 1965. In an article entitled "A New Haven for Beatniks," San Francisco journalist Michael Fallon wrote about the Blue Unicorn coffeehouse, using the term hippie to refer to the new generation of beatniks who had moved from North Beach into the Haight-Ashbury district of San Francisco. Fallon reportedly came up with the name by condensing Norman Mailer's use of the word hipster into hippie. Use of the term hippie did not catch on in the mass media until early 1967, after San Francisco Chronicle columnist Herb Caen began referring to hippies in his daily columns.

Nothing there about the more recent transition to "hipster," though there is a section about the pejorative use of the word "hippie." Basically, "hippie" ended up meaning not hip at all. That's certainly the way I use it (almost always in self-deprecation).

"Beatnik" is a cool word, but I think it's solidly anchored in the 1950s... or to refer to Maynard G. Krebs, the Bob Denver character in my all-time favorite TV show "Dobie Gillis." He also did his beatnik role in a cool movie called "Surf's Up," which came out the same year as "Hard Day's Night." What a contrast between those two movies. I must confess that I saw them in a double feature at the time... and much preferred "Surf's Up." I found this hilarious:



CORRECTION: The movie title is actually "For Those Who Think Young." I went through a long period of thinking it was pathetic of me to have liked this movie more than "Hard Day's Night," but now, much as I know "Hard Day's Night" is better, I think it's perfectly acceptable to enjoy an old surf movie. Look at the cast:

James Darren ... Gardner 'Ding' Pruitt III
Pamela Tiffin ... Sandy Palmer
Paul Lynde ... Uncle Sid
Tina Louise ... Topaz McQueen
Bob Denver ... Kelp
Robert Middleton ... Burford Sanford 'Nifty' Cronin
Nancy Sinatra ... Karen Cross

POSTSCRIPT: If we called monsters "monnies," would we be less afraid?

Wisconsin students may hate the speaker — David Horowitz — but they gave him a respectful hearing.

I'm writing up the good news. I thought there might be disruption — and David Horowitz seems almost to want to bait the students into causing a publicity-getting scene when he calls his event "Islamo-Fascism Awareness Week." He did get some attention, but the students showed a solid commitment to free-speech values by assembling before the lecture and chanting — the chant was "Racist, fascist, anti-gay, right-wing bigot go away" — and then listening respectfully to what Horowitz had to say.

But there was one man....

Former UW lecturer Kevin Barrett — who attracted national media attention to the university for promoting his belief that the Sept. 11, 2001 terrorist attacks on the World Trade Center and Pentagon were an inside military job — was in attendance and voiced opposition, disrupting Horowitz’s talk near the beginning of the lecture.

Horowitz may be a publicity whore, but he wasn't the biggest publicity whore in the room.

Barrett, who was booed by the crowd after he interrupted the speech, left the Memorial Union Theater shortly thereafter in the midst of a popular UW football tradition — the “asshole” chant.

Ha ha ha. Wisconsin students rule.

HOLD EVERYTHING: Uncle Jimbo was there! With video:



And text. Jimbo — who was "predisposed" to agree with Horowitz — thinks the reason the crowd didn't disrupt him was that he was too dull and uninspiring. He also says the students "maintained more decorum" than Horowitz, who said rude things like "Well I guess you just aren't able to read" and "I don't know what to do if you can't add two and two and get four."

It would have been a total bomb, but Ebo decided we needed a pitcher of Optimator in the Rathskeller and we spent about an hour talking with a couple of groups of folks who came in opposition to Horowitz. It was enagaging [sic], entertaining and so completely superior to the waste of time that was the theater in the theater [sic], that we resolved to attend the Muslim dialogue tomorrow night. I truly enjoyed the discussion with some folks who, although we disagreed on much, came with much more open minds and helpful attitudes than the headliner.

Ha ha. The marketplace — the tavern — of ideas.

"The Future of Reputation: Gossip, Rumor, and Privacy on the Internet."

Daniel J. Solove is offering free review copies of his book "The Future of Reputation: Gossip, Rumor, and Privacy on the Internet" to bloggers who act fast, write reasonably relevant blogs, and agree to review the book. (ILs: Is that an enforceable contract?)

I've already got the book, and I didn't agree in advance to write it up here. I note that he's cutting off the option of following the old advice of shutting up if you haven't got something nice to say. Which I sometimes follow.

You can also just buy the book: here.

I'll have more to say about it later. I note that it doesn't include the AutoAdmit scandal and that ham-handed lawsuit brought by some Yale Law Students.

It's a rosy morning...

Here in New York.

"Finding a $1 million painting in the garbage is very unusual."

A delightful story.

ADDED: Here's a version of the story that includes a photo of the painting. It also says that the woman who found it is getting "an undisclosed percentage" of the sale price along with the $15,000 reward that dates back to the time when the painting was stolen. (Are we sure it was stolen?)

Andrew Sullivan's inane attack on me.

Let me repeat the update I added to this post of mine: Andrew Sullivan really needs to make some effort to understand my sense of humor before posting another inane attack on me. I already gave him The Andrew Sullivan Award (for humor deafness) that one time. Get a damn clue, man.

ADDED: You know, if he had comments, someone could nudge him when he does this. Maybe that's why he doesn't have comments. The embarrassments would show.

AND: In the comments, several readers have questioned whether Sullivan's new post is really properly called an "attack." At least one suggest Sullivan himself is trying to be funny. If I had reason to think Sullivan really read and liked this blog, I could believe that, but this is a case of Sullivan picking up something that's already being linked and misunderstood on other blogs where I am portrayed as a mindless right-winger — not that Sullivan hat-tips any other blogger as the source.

"Islamo-Fascism Awareness Week" at the University of Wisconsin.

The Badger Herald reports:

Drawing concern from liberal and minority-based campus groups, conservative author David Horowitz kicks off a weeklong event at the University of Wisconsin today opposing Muslim extremism....

The author’s visit is part of “Islamo-Fascism Awareness Week”... The event has been criticized by the Muslim Students’ Association, Black Student Union, MultiCultural Student Coalition, International Socialist Organization, Campus Antiwar Network and College Democrats, according to College Democrats Chair Oliver Kiefer....

[UW College Republicans Chair Sara] Mikolajczak said the UW Police Department has been notified of a possible disruption during the lecture and will be present during the event.

“They’ve got every right to be there, as long as they’re not disruptive while he’s speaking,” Mikolajczak said. “I actually hope they do show up.”

Chancellor John Wiley, who was contacted by the American-Arab Anti-Discrimination Committee last week, wrote a letter Friday to explain the university’s view on what he called an “inflammatory campaign.”

In the letter, Wiley wrote UW does not endorse Horowitz’s ideas “but is providing an environment where the widest variety of views can be aired.

“We also have a strong commitment to academic freedom and First Amendment rights, and a belief that, in an open marketplace of ideas, the strongest ideas will be embraced and fraudulent ideas will be exposed,” Wiley wrote in the letter.

The event is about to start (at the Memorial Union Theater). I'm back in New York, so I can't report first hand. If you are there, email me your descriptions or links to blog posts, photos, and videos.

ADDED: I heard that there was going to be an effort to fill the room with those who objected to the speech to provide "a respectable non-violent opposition." I'm not sure what that means. Noisy disruption is nonviolent. Let me know what happens.

UPDATE: Here.

"It was nuclear winter. It was like Armageddon. It looked like the end of the world."

A San Diego firefighter.

"Justice Clarence Thomas is the winner of the Partisan Voting Award for the most politically skewed voting pattern."

According to Thomas J. Miles and Cass R. Sunstein.

Justice John Paul Stevens is the runner-up...

The Judicial Restraint Award, for the most humble exercise of judicial power, goes to Justice Stephen G. Breyer....

The Judicial Activism Award, for aggressive use of judicial power, goes to a most surprising winner: Justice Antonin Scalia....

And Anthony Kennedy is the most neutral, followed by David Souter.

Agree?

ADDED: This is making me think of that radio show I did with Sunstein the day Samuel Alito was nominated to the Supreme Court:

Cass Sunstein came ready with statistics based on reading 41 Alito dissents and concluding that Alito was a predictable conservative vote, a point he repeated at least five times. And then he accused me of spinning.... Isn't this like "he who smelt it, dealt it"? He who detects spinning is the spinner?

IN THE COMMENTS: Henry writes:

I'm sure Sunstein's and Miles' methodology is spot on. So, in the spirit of the Emmy's, I suggest the following:

The Consistent Application of Principles Award goes to Justice Clarence Thomas.

The What-Side-of-Bed-Did-I-Get-Out-of-Today Award goes to Justice Anthony Kennedy.

The Check Executive Power Award goes to Justice Antonin Scalia.

The Check? Moi? Award goes to Justice Stephen G. Breyer.

(As an aside -- remember how concerned the left was with the idea that Roberts and Alito would be too prone to defer the executive branch? Apparently deference is a good thing!)

Thanks for the opening, Professors.

Very well put! I haven't examined the empirical methodology, so I have no idea what skewing and bias may lie therein, but Miles and Sunstein have skewed the labels like mad. Thanks to Henry for doing the reverse-skew so well.

"Violence in Iraq has dropped by 70 percent since the end of June, when U.S. forces completed their build-up of 30,000 extra troops..."

According to the Iraq Interior Ministry.

And bin Laden pipes up and tells his people they've been "lax."

Sunset on the BQE... from the taxi window...

Medium: iPhone.

"She told me she hoped to be complicated, someday."

"Someday? I was reminded of those credit cards which come preapproved. I was pretty sure that Diane Keaton was preapproved for complicated, and still is. On a too-brief visit last weekend I had, for a glimmering moment, a sense that I was about to grasp what she was up to. But when she left, she took the glimmer with her, leaving me no closer to comprehending her agenda than I have been for the past twenty-eight years."

Larry McMurtry effuses over his friend Diane Keaton... and her book "Clown Paintings":

There's nothing the fondest friend can do about the pain of clowns—pain, after all, is where their job starts. In working up to the book called Clown Paintings—it's filled with paintings of clowns—Diane called various of her friends who work in comedy to get their thoughts on clowns—and what she got was their permission to shove off. Woody Allen and Steve Martin and the others she lists "work in comedy," and comedy arises from pain, not from happiness. Perhaps the pain of clowns is a little more primal, which is one good reason for people who work in comedy to give clowns a pass.

Clown Paintings—it's filled with paintings of clowns....

The video game-inspired law school.

BBC reports that businesses are restructuring work to take advantage of the mindset workers have developed playing video games:

[S]ome companies have turned work groups into guilds, rewarded staff with experience points when they complete tasks, giving out titles and badges when a guild finished a project and portraying objectives as quests.

Some were also considering using a virtual currency as a reward system allowing workers to cash in their savings for benefits or extras for their office space. The top performing guilds also get to do the best projects.

None, so far, he said, were tying wages to how people performed in the quests and against other guilds.

"Mapping levels and points on to wages is the most extreme application," [said Stanford education professor Byron Reeves, whose company, Seriosity, applies game elements to workplaces].

Companies were adopting game mechanics for several reasons, said Reeves.

Partly because workers were so familiar with this structure, he said, and because people become powerfully motivated when they know how they compare to their contemporaries.

The main reason was for the transparency it gave to the way workplaces were organised and for revealing who got things done.

"It exposes those that do and do not play well," said Dr Reeves. "There is a leader board and you know the rules."

Hey! I finally thought of an answer to TaxProf Paul Caron's question: "What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?" Set the whole thing up according to the principles of a video game.

I'm not kidding. When I went to law school, I did not know what the hell I was doing. I was undereducated — having majored in painting undergrad. I had a rebellious, alienated attitude and had no friends or family who had gone through the experience who could give me any sort of advice. Somehow, I hit upon the device of thinking of law school as an "athletic contest." I devised a set of rules and imagined myself to be playing a game. I didn't do this because I was very competitive. I considered myself an artist. (I still do.) I did it because I thought everyone else was competitive, and I'd be overwhelmed by them. My conception of the experience as a game gave me pleasure, serenity, motivation — and success.

But imagine a law school where the whole thing was openly structured as an elegant game, designed to absorb and hold everyone's attention and to yield motivating rewards along the way.

ADDED: I want to emphasize that the "game" of law school would be played in person and not on line. Students and faculty would interact in a real workspace (according to various devices and principles taken from video games). I would put the faculty inside the game. Perhaps alumni could integrated and it can work to bring donations into the school. I wish I understood more about video games so I could try to spin out some more detail here. I'm just working off the BBC article. If we're going to get serious, we can call in Seriosity.

"Who will be able to strengthen that house? Because that's the house... gonna build the house... that Clinton, Hillary wants to build."

That's something Mitt Romney said at last night's debate. Bush-like, isn't it? ("The house" is whatever it is Ronald Reagan built.)

Meanwhile...

... here's what it looks like chez Stephen Green. Deep snow. Where on earth is he? Wherever he is, he promises to drunkblog the Republican debate that's about to start. I don't know if I can stand to sit through another debate, but.... WAIT! Last time, I got the idea of blogging the hell out of the first half hour of the debate. I think I'll do that. Green has his drunkblog gimmick. My gimmick with be blogging the hell out of the first half hour.

0:02: The audience is boisterous. We don't realize this after Tom Tancredo is introduced to polite applause. But Ron Paul gets a cheer, and then Mike Huckabee gets wild applause (that causes his eyes to twinkle and his dimple to deepen mesmerizingly). Next is Rudy Giuliani, and the cheer is perhaps a little louder, possibly echoing off his gleaming domed head. Ooh, now it's Mitt Romney, and he's got his hair carefully tousled to put a little Elvis-y strand right in the middle of his forehead. The cheering seems to have hit a plateau, which holds steady for all the rest of the candidates, so that even Duncan Hunter seems popular.

0:03: Chris Wallace tells us he's going to probe into the all-important matter of who is the real conservative. He informs Rudy that Thompson has said he's soft — he says "sawft" — on abortion and gun control, and he's never claimed to be a conservative. So who's the most conservative? Chris ends with a big, silly smile. It must have been fun saying that to Rudy's face. Rudy laughs and says he can't comment on Fred. We see Fred in the split screen, and he scratches his face. Apparently, Fred's tell is the face scratch. (It's mine too, so I notice.) Rudy cites George Will, who said that Giuliani ran the most conservative government in the United States in the last 50 or 60 years. The banner at the bottom of the screen says "Thompson on Giuliani/Soft on abortion." Rudy goes through his favorite statistics on bringing down crime and taxes and balancing the budget. He "drove pornography out of Times Square." And you have to take into account that he did this in a liberal city with a very liberal City Council.

0:05: Now, Chris hits Mitt with Thompson's you're-not-a-conservative indictment. Romney seems to ignore the question and plug in a pre-written speech. "You know this is a critical time for our nation and for our party." We need to put together a coalition. The way Ronald Reagan did. That seems bad, but then it seems good when he says the name "Hillary Clinton" twice. Why bother with Fred? The person to fight off is Hillary.

0:06: Fred Thompson then gets a complete softball: Have these two convinced you they're conservative? He tells a joke about Teddy Kennedy. Essentially: he's fat. We see Romney in the split screen yukking. Thompson ticks off his record of conservatism, which goes back to his reading of "Conscience of a Conservative" in his college days. In the Senate, he had a 100% pro-life voting record, he says, scratching his philtrum. Then he quickly reels out all the non-conservative positions Giuliani has, as the time bell goes off. He deserves credit as he proves he can talk somewhat fast and is willing to attack.

0:08: Rudy gets to rebut. "Fred was the single biggest obstacle to tort reform in the United States Senate. He stood with Democrats over and over again." He chops the lectern over and over again. He brings up that $54 million lawsuit about the lost pants. The man that brought the lawsuit ought to have had to reimburse that family he sued. He cost them over $100 thousand. Fred Thompson basically cost them $100 thousand. Hmmm. Can Rudy bring down Fred with pants?

0:09: Okay, Fred, you have 1 minute. "Talk fast." He wastes 20% of that time chuckling over the fact that he only has a minute. (A minute that I am blogging the hell out of.) Fred plays the federalism card. He voted for tort reform when it was about securities or products liability where it was "interstate commerce," but the rest of it belongs at the state level. "That's our system," he says strict-construction-y. Then, he blames Giuliani for suing over the "sanctuary cities" law.

0:10: Giuliani, with only 30 seconds, says the "sanctuary cities" policy in New York was good. Otherwise, they'd have to report every illegal alien who reported a crime. The way he did it, he brought down crime. He took "the crime capital of America" and made it the safest large city in the country. "The Senator has never had executive responsibility. He's never had the weight of people's safety and security on his shoulders. I have. And I think I outperformed any expectation." Excellent use of 30 seconds.

0:11: John McCain gets the "Quien es mas macho?" question at last. How it must have irked him to wait through all of that to get his turn. Attacking Romney, he points to his long years of service, and has the great line, "I led. I didn't manage for profit. I led for patriotism."

0:12: Wallace tells Romney — whose Elvis-lock has disappeared — that McCain just accused him of "conning people." Romney chatters out a list of accomplishments and gets back to the subject of Ronald Reagan. "Who will be able to build the house that Ronald Reagan built?" He seems to realize that's not a good phrase. (If Reagan already built the house....) "Who will be able to strengthen that house? Because that's the house... gonna build the house... that Clinton, Hillary wants to build." And Romney, Mitt garbled that pretty badly. His lines are preplanned and he's too nervous. But, again, he's the only one taking shots at Hillary.

0:12: McCain gets a chance to take a shot at Romney for saying he'd ask his lawyers whether he needed congressional authorization to attack Iran. McCain doesn't think much of lawyers: "Those are the last people on earth I'd call in." He feels great about saying that. There's a big cheer from the audience. And he's got a big smile on his face. He'd "call in" his own ability and experience. In other words, he's got a huge repository of knowledge and judgment, so he only needs to think for himself. That's leadership! Is that the kind you want? That's what he's offering. He turns to Romney and scolds him for "fooling" people about McCain. McCain starts chopping at the lectern as he says words like "believe" and "steadfast." He's got the qualifications and he's proud of it, he says, very earnestly, and then, after he says them, he remembers to smile.

0:15: Romney assures us that if U.S. security were at stake, he'd act immediately. But the decision to take the country to war shouldn't be done on a "half-cocked basis." And he's back to Hillary Clinton: she's trying to say that Bush went to Iraq without Congress, but he went to Congress.

0:16: Carl Cameron asks Ron Paul about his support for gay marriage. Paul can't hear the question, and he's got a ridiculous look on his face as he strains to hear. That doesn't seem fair. Paul talks about how all marriage should just be a private, religious matter. Well, that's so far from the current law, so it doesn't make much sense that he proceeds to talk about how a constitutional amendment is unnecessary. You have to face the fact that the state is involved in marriage. Then he garbles in a federalism point. The states can handle it. Then it's not a private, religious matter. I don't support the amendment, but I hate this kind of mixing of the issues. He is incoherent.

0:18: Romney argues for the gay marriage amendment. We need a national standard. If one state allows same-sex marriage, "it's going to spread to the entire nation." (I'm sure some people will hear that as making gay marriage sound like a disease.) He says we need to strengthen "the institution of marriage in this country by insisting that all states have the right to have marriage defined as between a man and a woman and we don't have unelected judges — liberals — standing up and saying we're going to impose same-sex marriage where it was clearly not in their state constitution." Look that quote over. It's very strange. He seems to be saying that federal law should protect states from their own judges. Why?

0:19: Giuliani is brought in on this question, and he seems to agree with Romney, though he says we "don't need a constitutional amendment at this point." But if 3 or 6 states' courts required gay marriage, we'd need the amendment. That would be a "real problem." When he was mayor he did 210 weddings and "they were all men and women." He pauses and lets the audience perceive a reason to laugh. They laugh. He smiles. He adds, "I hope." Carl Cameron is acting like he's having a hard time not bursting out in hysterics. I'm disgusted with everyone I see on screen right now. Oppose legal recognition of same-sex marriage if you must, but don't laugh at the people who feel this nontraditional love. "You've got to give me a little slack here. It was New York City." He's pandering to the "values voters."

0:21: Finally, Huckabee is brought in. He acts like he's happy that he wasn't caught up in the Romney-Giuliani-Thompson tiff. Let them "shed each other's blood" and then he'll be there to run for President. Giuliani acts like that's simply hilarious. He claps with glee. Huckabee tells us he doesn't want to fight those guys. He wants to fight for us. Good face saving. One issue he wants to fight for is "the sanctity of human life." He says that with fervor. He talks about the Declaration of Independence and "inalienable rights." Most of the signers were clergymen. (Oh?)

0:23: Cameron confronts Thompson with his lobbying for Planned Parenthood. "Frankly, I'd forgotten about," he says, noting that he just made "a few calls."

0:24: McCain says something mature.

0:26: Tancredo yammers.

0:27: Hunter's allowed to speak. No one cares.

0:28: Well, my half hour's almost up. All the candidates have spoken, and they've just handed off the questioning to Wendell Somebody or Somebody Wendell. This is the real half-hour mark, even if there are 2 minutes to go. The subject is education or health or education and health or something. And I see this as the signal that I've done my job. What the hell! This isn't a job. My friends, you're on your own!

Madison — foliage and firearms.

I'm here in Madison today, and I took a couple pictures with my iPhone. Here's Bascom Mall with lots of green and orange, and a woman lounging around in a tank top:



Is she very hardy, inured to cold by years of Wisconsin weather? Maybe she is, but you can't judge from this, because the temperature was in the 80s today.

As long as we're looking at tops worn by Madison women today, check out this one:

Why can't Hillary Clinton be more like Ellen DeGeneres?

Well, I see the new idea for knocking down Hillary Clinton is about how she got rid of Socks the Cat. I guess that was sometime after she sent Buddy the Dog to run out in the road to get squashed by a car. Mean, mean woman. Where is her heart?

It was a good week to attack a woman over her insufficient love of pet animals, because we just saw Ellen DeGeneres emote over the repossession of a pet dog that she'd adopted and then passed on to someone else.



Now, there's a woman whose love and empathy radiates out with the full heat of daytime television.

Ah, but both women palmed off an unwanted pet to someone else.

So, Hillary, just go on the Ellen show — if Ellen ever manages to stop the tears and broadcast again — and cry about how terribly much you loved Socks and have Ellen help you explain why love is what makes you get rid of the pet. Then you can get back to telling us how you're going to bring the womanosity to the presidency.

UPDATE: Andrew Sullivan really needs to make some effort to understand my sense of humor before posting another inane attack on me. I already gave him The Andrew Sullivan Award (for humor deafness) that one time. Get a damn clue, man.

On blog dress and lawprof dress.

When did Stephen Bainbridge's blog start looking so devoid of Bainbridginess? Last Friday, I was going to blog about his post on dress codes for law professors, but I was too busy to get to it. This morning, I saw a link on the subject at Memeorandum — which is a great place to see what's getting blogged about — and I clicked a link to a post on the same subject. Reading it, I was all hey, someone stole Bainbridge's writing. There are, as you may know, blogs that just lift writing from other blogs. (It's been done to me.)

Click on the first link up there. Can you tell who wrote it? It's a blog with the nondescript name BusinessAssociationsBlog.com, and you won't see Bainbridge's name anywhere unless you happen to scroll all the way to the bottom of the page and see the copyright notice. I only saw his name — and I looked — when I did a "find on page" search for it, which I wouldn't have done unless I'd recognized it as the writing I'd read the other day when I knew it was Bainbridge's. [UPDATE: My post prompted Steve to put his name in the upper part of the sidebar.]

I think what's happened here is that Bainbridge was so keen on the idea of segregating his business law writing from his other writing — on "wine & food" and "punditry" — that he unwittingly drained it of all personality. He gave it the blandest possible name — BusinessAssociationsBlog — perhaps reflecting a belief about business that it needs to be all business. It's very serious. No funny business. Wear a suit and tie. It had better be a gray or dark blue suit. Don't go jazzing it up with anything flashy like — God forbid — black. In a world where it works to call a business Google or Yahoo, can't we have a little more fun? In any case, you need to have some identity. You can't want your trade dress to be as generic as a gray business suit.

But what should we law professors wear? We've opted out of the practice of law, so we get to claim the perk of wearing whatever we want. True?

Bainbridge is exercised over this article by Case Western lawprof Erik M. Jensen, "Law School Attire: A Call for a Uniform Uniform Code."

Although I don't like anyone — ever — telling me what to do, I found Jensen's article highly amusing. He has my favorite quote about professorial dress, from Tom Wolfe's "I Am Charlotte Simmons":

[H]e had worn a plaid cotton shirt and pants -- nothing remarkable about that. The shirt had had long sleeves, and the pants had been long pants. But this morning he had on a short-sleeved shirt that showed too much of his skinny, hairy arms, and denim shorts that showed too much of this gnarly, hairy legs. He looked for all the world like a seven-year-old who at the touch of a wand had become old, tall, bald on top, and hairy everywhere else, an ossified seven-year-old...

I quoted this back in 2006, as part of my ongoing fight against men dressing like children.

Jensen's in good humor, and it's not a real code:

Faculty members at accredited law schools shall, when on law school grounds or on law school business, dress in a way that would not embarrass their mothers, unless their mothers are under age 50 and are therefore likely to be immune to the possibility of embarrassment from scruffy dressing, in which case the faculty members shall dress in a way that would not embarrass my mother.

There's plenty of fine writing here with tasty references, and it starts a conversation, which is something I love.

But what do I think about how lawprofs should dress? I'll tell you in a minute. First, let's drag Stephen Bainbridge back out here. He begins with: "Fuck that. And the horse it came in on." (Maybe Jensen can write an article about what language law professors should use.)

Bainbridge goes on to say that his clothes style of choice is "grunge," and he insists on feeling comfortable (unless the school pays him extra to dress up). But he does wear a collared shirt and khakis — the usual "business casual" for a man — not sweatpants. It seems he's mainly upset about the idea of wearing a tie. (Did you know, according to the NYT, young guys these days are wearing ties not because they have to but "as an informal thing" and that they even assert that "It just felt comfortable"?)

So what do I think? I think if you're a law professor, you have many wonderful benefits, and one is that you can go with your own personal style. There's so much more self-expression here than in law practice (or judging).

Most valuable is that you can speak the way you like. You can even say things like "Fuck that. And the horse it came in on." You can't say that in court. Personally, I don't want to say that. The worst language I've ever used in class is "screw," and only in the sense of "screwed up." But you can put things in your own way, make offbeat observations, digress, get a laugh. It's quite cool. The main rule, to me, is that you have to give value to the students. You can't be just amusing and indulging yourself. That would be unethical.

As for clothes, of course, you should feel comfortable. It's possible to be comfortable in a suit — at least a man's suit.

(A tie is nothing compared to nylons. I challenge all you men who bitch about ties to wear pantyhose under your trousers for a day at work and report back. In fact, why don't all you guys do that tomorrow? Then blog about it or comment here, because I'd like your opinion — and maybe you'd like my permission to conduct this experiment. If your wife or girlfriend questions you about it, just say that it's a blog meme you got from Althouse. She'll understand.)

So, yes, #1, you should feel comfortable, but there is plenty of room to look reasonably good and to show some personal expression as you dress for the law professing game. It would be sad if everyone resorted to business dress, because it's boring and predictable. Just as your verbal presentation should be varied and engaging for the students, your visual presentation can serve them well too. Be specific, not generic. The students are going to look at you for an hour. A hat, unusual glasses, purple shoes — just about anything can provide a little amusement and a break in the monotony.

So, Steve, maybe a paisley ascot. And sign your blog posts!

Now, in an instant, you can disguise yourself as a vending machine.

Innovations in hiding.

ADDED: Hey, that reminded me of this — the second method of trying to steal the ring here:

"If this was a microcosm of America, I'd vote for Rudy Giuliani at this point."

Says Bill Maher, as idiot 9/11 Truthers disrupt his show this week. "Ass-kicking is what's called for."



Watch the disarray on the live show, with Bill himself getting involved in rousting a guy from the audience. Bill says that for all the things he's said, the one he gets protests about is for calling the 9/11 conspiracy theorists crazy. Here's the old clip:



On the new show, Maher observes that this was a case of defending Bush. He say's that as if it's odd that the assholes are on the anti-Bush side.