Should have?

I'm giving this my "Althouse the pedant" tag, so stop now if you don't like where this is going. I'm reading the headline at The Washington Post, "Why Scalia should have loved the Supreme Court’s Title VII decision."

The man is dead. There's NOTHING he should have done.

Why not say "Why Scalia would have loved the Supreme Court’s Title VII decision"? I think I know why. The article is by George Conway. It's in WaPo. I'm going to say: They don't want to concede that Scalia would have joined the majority in this case, that he would have stuck to his principles (and that this case was truly an instance where these principles dictated the outcome the majority reached).

"Trump Administration Eyes Defining Transgender Out of Existence."

A NYT headline. I recommend not using "eyes" as a verb in headlines. My eyes can't take it. I get distracted in useless searches for meaning: Why allow eyes to define things? But maybe some people love interposing confusion and tripping up the readers. I remember long ago, back in the 1990s, there was a headline that began "Clinton Eyes Higher..." — I think the whole thing was something boring like "Clinton Eyes Higher Taxes." I laughed like lunatic at the notion that the news was that somehow Clinton's eyeballs had been relocated to a higher position on his face. In case you're making a study of my personal sense of humor: It still makes me dissolve into giggles.

But on to the serious stuff. From the new article:

[T]he Department of Health and Human Services is spearheading an effort to establish a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance, according to a memo obtained by The New York Times.

The department argued in its memo that key government agencies needed to adopt an explicit and uniform definition of gender as determined “on a biological basis that is clear, grounded in science, objective and administrable.” The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with, according to a draft reviewed by The Times. Any dispute about one’s sex would have to be clarified using genetic testing....

For the last year, health and human services has privately argued that the term “sex” [in the text of Title IX] was never meant to include gender identity or even homosexuality, and that the lack of clarity allowed the Obama administration to wrongfully extend civil rights protections to people who should not have them.

"Wrongfully" is the wrong word. The question is what the statute means, and the argument is that the Obama administration wrongly — incorrectly — read the text to include gender identity. It's much easier to say that the Obama administration got it wrong than to say it read the statute "wrongfully," which means that it pursued injustice or unfairness. The interpretation could be incorrect — a wrong interpretation of the statute — but consistent with principles of fairness and justice. Indeed, legal minds are often drawn toward incorrect interpretations of statutes precisely because they want to get to fairness and justice. Those who defend the Obama administration's interpretation will deny that the interpretation is wrong, and of course, they don't think it's wrongful. But those who attack the Obama adminstration's interpretation only need to say that it's wrong. They don't need go so far as to say it's unjust or unfair to protect transgenders from discrimination. They only need to say that's not what Title IX does.

"Even Hillary Clinton, as secretary of state, never made an impassioned Beijing-style speech about women in Saudi Arabia being obliterated under a black tarp."

"During the first gulf war, fought in part to protect the Saudis from an encroaching Saddam, a group of Saudi women — artists and academics — got excited by the presence of American female soldiers and went for a joy ride. The clerics branded the drivers 'whores' and 'harlots.' They received death threats and lost their jobs. Driving by women, banned by custom, was made illegal. America was mute. Our government did not even fight for the right of its women soldiers protecting Saudi Arabia to refuse the Saudi directive to wear an abaya and head scarf when off the base."

From "Step Away From the Orb" by Maureen Dowd (NYT).

"The Orb" refers to this:



That is our President, Donald J. Trump, and much of the column is, as you might expect, about him. I chose to highlight the "Even Hillary Clinton" part. There's also an "Even Barack Obama" part:

Even Barack Obama, who had no love lost for the Saudis, refused for eight years to release a classified document from 2002 detailing contacts between Saudi officials and some of the 9/11 hijackers, including checks from Saudi royals to operatives in contact with the hijackers and a connection between a Bandar employee and a Qaeda militant. (Bandar’s wife, Princess Haifa, wrote charitable checks that ended up in the hands of two hijackers.)

And there's a set of matching photos of Trump, Obama, and George W. Bush bowing their head to receive an idiotic medallion from a Saudi King. Dowd begins with a story about the time "a Saudi muck-a-muck" slid a velvet box of "expensive jewelry" across the table to her and, after she refused, attempted to hand it to her under the table.

ADDED: "During the first gulf war..." — odd not to capitalize "gulf." It's not as though "gulf" is a type of war (as in "trade war" or "war of nerves"). It's the Persian Gulf. If "Persian" were attached — and why isn't it? — the need for capitalization would be obvious. Elsewhere in the NYT archive I'm seeing either "Gulf War" or "Gulf war." I'll give this my "Althouse the pedant" tag, but I'm not just nit-picking. I'm noticing what is downplayed and wondering why.

"Ironically, the demonstrations in favor of school safety featured, in some instances, attacks on non-conforming students."

"At one Minneapolis high school, two students stood apart from the throng calling for more gun control. One of them carried a sign that said “Blame the Culture, Not Guns.” The other carried a Donald Trump banner. He was cursed, pursued, knocked down and beaten up by “pro-school safety” demonstrators. School officials, who purport to be so concerned with the safety of their students, did nothing to intervene. It is fair to say that school administrators and teachers organized children’s demonstrations on behalf of the Democratic Party. Today, the Democratic National Committee sent out an email fundraising on the students’ gun control protests...."

Writes John Hinderaker at Powerline in "ON TODAY’S DESPICABLE MISUSE OF CHILDREN."

When I heard that the children in my school district were cutting school in my city to attend a demonstration, my reaction was as one of the school district taxpayers, who pay for this expensive benefit to children that they were just throwing out one day's worth of. I imagined their answer. Actually, I performed it out loud (we were in the car): This demonstration is a real-world education that is more valuable than one another routine day in the classroom, and if you don't believe that, you ought to ban all field trips. To which Taxpayer Me said: I do want to ban all field trips. Go places on your own time!

But now that I'm reading John Hinderaker, I'm thinking: This is a campaign finance violation! 

I loathe the use of children in politics (and if you click that link, you'll see all the past posts with this theme). I really love and feel a strong urge to protect children, so I'm not going to display the image of 3 sweet teenage girls holding up a sign that reads, "@Donald Trump/If your place of work is a gun-free zone, then why isn't mine?" I wonder whether it ever occurred to them how wrong those words are. But if I were in real-world space with them, circulating the way I did during the Wisconsin protests, I would have approached them and nicely engaged them: Excuse me, can I ask you, what does your sign mean?

And if benevolent pedantic adults would engage protesting children in conversations like that, then the public square would be a better free-speech forum, and I'd think better of the value of vamoosing the classroom.

"For Nationals, a crazy night ends with anguish and a season-ending loss to Cubs."

WaPo headline. (Am I being too pedantic if I complain about "season-ending"?)

Four straight Cubs reached base in unconventional ways, some known only to true baseball seam heads — an intentional walk, a strikeout with a passed ball (about which there was some controversy), catcher interference and a hit batsman. The website baseball-reference.com has 2.73 million half-innings in its database. None of them contain those four events — let alone from four consecutive hitters.

“That was probably one of the weirdest innings I’ve ever seen,” Nationals Manager Dusty Baker said.

Also in WaPo: "All defeats are not created equal. For Nats, this one is a special kind of painful."

[I]n the new world of baseball challenges and replays, doing things that would have been satisfactory since the 19th century is no longer good enough. Lobaton’s foot came off the base for an instant. The Cubs challenged. And he was ruled “out” after the crowd of 43,849 waited in agony for 96 seconds.

“I thought I was safe. I didn’t know my foot came off,” said Lobaton, adding later, “That’s baseball. You got to win. You got to lose. And you got to take it.”

For now, “and you got to take it” may have to be the Nationals motto after six seasons with the talent to contend for a World Series spot, but not even one year in the National League Championship Series....

"Progressives turn from Obama to embrace Warren."

A headline at The Washington Post. Sample text:

The trepidation that some Democrats feel in standing with President Obama — along with former secretary of state Hillary Rodham Clinton’s absence on the midterm campaign trail — has provided an opening for Warren, who excites the base voters and small-dollar donors critical to any Democratic contender’s chances.

Jeez, that's poorly written. Trepidation provides an opening? Standing with Hillary Clinton's absence? That's the kind of clutter that builds up when you carelessly cram too much into one sentence, something writers tend to do precisely when they have little to say.

Yeah, I know that's pedantic, but I take it schoolmarmishness is hot right now.

Here's a poll, and don't be boring and say you wanted to pick more than one or the one you want is not there. Pick the best option (or just take the poll in the spirit in which it's intended: political fun).

What's with this pushing of Elizabeth Warren?
	She excites crowds, which seems eventful, and WaPo covers events.
	She's pretty left-wing, and that excites the media, which flirts with leftism.
	The Democrats are in trouble, the media want to help, and she's a distraction.
	It's time to look to the new generation, and Warren's fresh-faced and 65.
pollcode.com free polls

And speaking of political fun... and X turning from Y to embrace Z... this never gets old:

Would you want to go out to a concert of Bach Suites in a space that is kept completely dark?

I mean, wouldn't recorded music be better? And it would be a lot less trouble than going out, your chair at home is probably comfier, and there would be no one rattling a program/opening a candy wrapper/coughing. No one other than you. At home, you're free to sneeze, take you music device into the bathroom with you, eat all manner of smelly foods, and even sing along, making up your own words that don't even have to rhyme or make sense. The room was humming harder/As the ceiling flew away.... You can call out for another drink. Because you're alone and no one cares about your outbursts. Or someone else is there, but they've resigned themselves to putting up with the likes of you. You with your coughing and sneezing and nonsense lyrics. What happens when you call out for another drink? Does that long-suffering wife/husband of yours bring a tray?

But let say you do want to get up off your sofa and amble down the sidewalks of New York City to the Goethe-Institut Wyoming Building at 5 East 3rd Street. I love the combination of Goethe and Wyoming. Especially on 3rd Street. That's not 3rd Street in Brooklyn, where, you may remember, I lived back in the early 80s. That's positively 3rd Street in Manhattan, where you've got a lot of nerve to enter a concert hall in the dark:

After of years of investigation, the Suites are removed from the concert hall and placed in an unilluminated space, in which the cellist repeatedly plays them over a period of ten days. Through the extended timeframe and the elimination of any visual input, the listener and the playing musician are unified within the same visual and musical space.

Scurry over there — would you? — if you're within scurrying distance, and let me know if you became unified with the musician by virtue of your presence in "the same visual and musical space." The "visual space" is nothingness. You can close your eyes while listening to your iPod, and imagine the cellist playing with his eyes shut. But he's not there, and it's not happening now, so unification requires more imagination. Still, this mystic state might be more achievable in the absence of the distraction of finding your way around in the dark.

Uncertainty about the original creative intentions of the Suites invites perpetual debate and allows imaginative free reign for redefining the environment in which they are played. 

I'm distracted reining in my imagination and reigning over my imagination about the old rein/reign pedantry. But proceed:

Bach Suites in the Dark removes the Suites from the concert hall [and] explores their malleability and the notion of practice in which they are rooted. 

Most people know the Suites from recordings — like this — so the notion of removing them from the place where you never needed to go invites us into the even-more-imaginary place in the past when people had no recorded music.

Eristic.

"Eristic, from the ancient Greek word Eris meaning wrangle or strife, often refers to a type of argument where the participants fight and quarrel without any reasonable goal."

The aim usually is to win the argument and/or to engage into a conflict for the sole purpose of wasting time through arguments, not to potentially discover a true or probable answer to any specific question or topic. Eristic is arguing for the sake of conflict as opposed to the seeking of conflict resolution....

According to Schopenhauer, Eristic Dialectic is mainly concerned to tabulate and analyze dishonest stratagems, so that they may at once be recognized and defeated, in order to continue with a productive dialectic debate. It is for this very reason that Eristic Dialectic must admittedly take victory, and not objective truth, for its selfish aim and purpose.

Have you noticed any good eristic lately?

ADDED: I've discovered that what I like to do is something that's just about the opposite of eristic. I like to have conversations in which I'm looking for the truth and I don't care about whether what I'm saying is working to persuade anyone. It's simply a performance of truth-seeking for its own sake and with the full freedom to say everything without concern for whether it drives the reader/listener even further from what I think is the right answer. What's the Greek word for that?

Get ready for the first annual "Diversity Week" at the University of Wisconsin.

We're told the idea is "to engage students who are not specifically interested in diversity issues to think about the issue on a broader level." So you want to interest people who are not currently interested by having some sort of events... over the course of a week?

Tentatively, the week will feature a sexuality day, multicultural day,  religious diversity day, women’s day and a disability day.

The group also debated how to address “intersectionality” between the different types of diversity.

The student chair of the Diversity Committee "said she hopes the event would probe students’ minds and make them think about how their own identities are 'compiled.'"

"We are trying to say to people that you don’t have to be a minority, you don’t have to be an underrepresented group to be able to feel like you’re diverse or that you have a unique identity... This is really for all students."

I don't think the word "diverse" should apply to an individual. I think you have to say: This set of individuals is diverse. Not: This individual is diverse. Sorry to be pedantic about words. Now, it's interesting that the Diversity Committee has arrived at the idea that it wants specifically to get the attention of the students who do not belong to "underrepresented groups." The students who were not pursued by the University in its effort to increase "diversity" might, it is thought, respond to the idea that they are part of the diversity too. I'm trying to picture Diversity Week events that would convey that message!

***

Here's some campus graffiti I photographed the other day:

Isthmus columnist Emily Mills slimes me over the Wisconsin Supreme Court "chokegate" story...

... without taking the trouble to link to or quote anything I said. Or should I say without daring to link to or quote anything I said? She cites the "the fires of victim blaming amongst Prosser supporters" and then says:

One of the more vocal among them is blogger and UW Law School professor Ann Althouse, who has gone to great and terrible lengths to excuse the alleged behavior, attack the credibility of only the anonymous sources with whom she disagrees, suggest that no arrests (yet) mean no wrongdoing, impugn the honor of Justice Bradley, and cast doubt on the very justice system of this state.

What? Emily makes no effort to back up that characterization of me. My posts about the Wisconsin Supreme Court are all collected here. Any fair reader can see that I'm endeavoring to understand the stories that have appeared in the press, critiquing the press, and asking a lot of sensible questions. It's not even fair to call me a "Prosser supporter," let alone assert that I've "gone to great and terrible lengths" to "excuse... attack... [and] impugn" anybody.

Emily Mills' dishonest assertions about me seem to reflect her desperation, her need to believe what she wants to believe, her reflex to plug her ears and go la la la la la. I mean, look at what I actually said.

When Bill Lueders first dropped the allegation that Prosser choked Bradley, I merely noted it and said "Hmmm." My second post linked to the presentation of the story on the lefty blog Think Progress, which was about the ways to oust Prosser from the court. I corrected the blogger (Ian Millhiser) for calling Prosser an "accused criminal" instead of a "person accused of a crime" — which is a point anyone who cares about the rights of the accused ought to find important — and I observed that we lacked the full context. I speculated about who Lueders's sources were and who would have the motivation to go to the press. And, most devastating to Mills's embarrassing statement about me, I said:

But sure. If Justice Prosser committed a criminal attack on another Justice, he shouldn't be on the court, even if he only lashed out after weeks or years of merciless bullying. 

In fact, if you search through my posts, you'll see that I've consistently said Prosser should resign if he choked Justice Bradley. I said:

I agree with Millhiser that if it's true Prosser reached a breaking point and started strangling Bradley, he should go. I doubt that's true, however, because there was no arrest. That's why we're getting the story in this unsourced, piecemeal form.

I'm struggling to figure out what went on. Yes, I do use the evidence of no arrest to suggest that Prosser didn't suddenly snap and launch into a strangling, but that doesn't mean I'm saying "no arrests (yet) mean no wrongdoing." It means — as anyone who reads that post with a calm, clear mind can see — that I'm guessing the situation was complex — and later reports confirm my guess.

That post is updated with a reference to the Milwaukee Journal Sentinel report citing allegations that Bradley initiated the physical aggression — charging at Prosser with fists raised. Emily Mills deserves to have her own language turned back on her: She has gone to great and terrible lengths to excuse Bradley's alleged behavior and to impugn the honor of Justice Prosser and blah blah blah. It's so easy to be a hot-headed partisan. And so risky! Because you make it so easy for someone to show what you are.

My next post on the subject goes into more detail examining the new material in the Journal Sentinel article. That post, before updates, concludes:

I want to know not only what really happened at the time of the physical contact (if any) between the 2 justices, but also who gave the original story to the press. If Prosser really tried to choke a nonviolent Bradley, he should resign. But if the original account is a trumped-up charge intended to destroy Prosser and obstruct the democratic processes of government in Wisconsin, then whoever sent the report out in that form should be held responsible for what should be recognized as a truly evil attack.

I boldfaced another sentence for you, Emily. My first update includes the material that, I think, has touched off panic in the local ideologues:

Everyone who thinks Prosser must to resign if he attacked Bradley ought to say that if Bradley attacked Prosser, she should resign.

I was calling for even-handedness and consistency. And that, I think, was what was truly "terrible" to people like Emily Mills. After the burst of enthusiasm that came with Bill Lueders's hit piece on Prosser, there came the horrible realization that the dreaded conservative governor Scott Walker might end up with the power to name a replacement for one of the liberal justices. I pointed that out — in the context of critiquing the decision to give Lueders the ability to break the story the way he did. I was trying to analyze the reasoning and motivation of the Lueders's unnamed sources.

This led to my next piece, analyzing the political reasoning behind Lueders's attack. There, I noted how the Lueders piece inspired lefty bloggers to go all out attacking Prosser in ways that will now — after the Journal Sentinel piece — be used to leverage arguments against Bradley. I repeated my statement "if it's true Prosser reached a breaking point and started strangling Bradley, he should go." And I called for principled consistency (addressing the Think Progress blogger Millhiser):

All right, Mr. Millhiser, I appeal to you. Let's be unanimous about this and show that our political system has not broken down. I agreed with you that if Prosser did what Lueders's story made it seem that he did, Prosser should resign. By your own standard, will you say that if Bradley initiated the physical aggression, running at Prosser with raised fists, that the integrity of our political system demands that there be unanimous calls for Bradley to be removed?

This is what's so scary and what — I think — is making these partisan local columnists tear into me. I'm not a pro-Prosser blogger. I'm a law professor blogger, probing with questions about neutral principles, the actual facts, and political interests. Lueders lured lefties into making statements that are now quite inconvenient, and they don't know how to get out of the corner they've written themselves into. Don't lash out at me. That's childish.

I'm asking hard questions that demand thoughtful, careful answers. It's been my job for a quarter of a century as a law professor to frame questions like that. And I'm an expert at seeing when people don't want to answer the questions. Answer the questions, I plead with my students before they take my exams. You can only get credit for answering the questions.

In my next post, I deal with a comment that Lueders left on that previous post, trying to defend himself. I continue to critique him and demand precision about the various assertions and what constitutes spin. The post after that has a similar theme, trying to figure out who Lueders's sources were. Here's another short post, wondering about who had the motivation to go to Lueders.

And that's just about all Emily Mills could have read before lashing out at me. Now, it's possible that she didn't read anything I wrote, because after the paragraph of hers I quoted above, she says:

I won't go into why Althouse's arguments are wrong -- someone has already done a far, far better job of it than I ever could -- but her writings on the matter provide a fairly good overview of what so many Prosser supporters are now arguing.

She links to some blogger's long screed about me. Emily, that's quite a confession! That's a far, far better job than you could ever do? How dare you write about me the way you did without going through my writings yourself? Did you check that blogger's work? Are you adopting the poor reading and reasoning as your own? You call me on fairness and you write about me the way you did? Aren't you even afraid for yourself, that you will look like a stupid hack? Aren't you even afraid for your liberal cause, that you have lost the very credibility you will need to defend Justice Bradley (and the Chief Justice) as the facts unfold? You need to show that you are interested in the truth, in principle, and that you will deal with the evidence and the serious questions. Why would you be so careless? It smells like desperation and panic.

I have waited nearly a day to respond to Emily Mills's embarrassing attack on me. Yesterday, Meade went over there to participate in the comments. He wrote:

Shame on you, Emily.  You assert and smear without so much as linking to her posts. You fail to cite the passages in which you claim she goes to "great and terrible lengths," "excuses," "attacks" credibility of sources (you happen to want to believe), "suggests," and "impugn[s]." You do this without linking or citing the specific words and sentences you want your readers to believe are objectionable. All because, what, because you say so?

Weak.

And then you dish off the dirty work of trying to substantiate your charges to a verbose blogger whose only argument in smearing Ann Althouse relies on the notion that Justice Bradley was in fact choked - a fact that is still in dispute.

I've seen you do better, Emily.

Although Mills responded within 2 hours to the previous commenter, she has not responded to Meade, and more than 13 hours have passed. I was hoping Meade's relatively gentle push-back would have been sufficient. I don't really like slamming a young writer who could do much better. Even when I have been attacked, I don't like it. Because I feel like a teacher. I'm not a political ideologue. I don't even care that much about politics. I care about truth and the ability of human beings to reason and to interact with each other.

And I generally choose not to draw attention to attacks on me. But the statement that Emily Mills made about me simply cannot be allowed to sit there festering on the website of a newspaper — Isthmus — that is widely read in my town.

It's too much like the attack from Bill Wineke that I felt I had to respond to yesterday. Both writers are attacking me as a law professor at the University of Wisconsin. I think they would like to destroy my reputation in this town, where they so casually assume the benefits of inclusion in what is a political majority here. I think they carelessly and lazily believe that local readers will eat up the sloppy attacks they're serving, because local readers agree with their political ends.

As they rush at me from across town shaking their balled-up fists in my face, I feel I must extend my fingers in self-defense, and type out an exposé of their shoddy work for a larger audience.

CORRECTION: The writer of the column "Emily's Post" isn't "Emily Post." It's Emily Mills. I've corrected all the mistaken references to "Emily Post."

"Homemade desserts that don’t have a crust that needs to be fussed over but still hue to the flavors of Thanksgiving."

The flavors? What about the colors?

(NYT front page teaser.)