"[Jill] Biden is a longtime English professor who casually uses the correct group noun for starlings ('murmuration')."

"She quotes many writers here — Albert Camus, Robert Frost, Nikki Giovanni, James Salter — but the author the book recalled most vividly to me, in its careful catalog of small details, was William Carlos Williams, who in his epic poem 'Paterson' wrote 'no ideas but in things.' This tracks, because Biden acknowledges the help of Ada Calhoun, the author of [a book] about Frank O’Hara. Indeed, Biden’s description of being hustled for security reasons through the service entrance to hotels made my O’Hara stand on end, so cleanly could it be broken into stanzas, if you’ll forgive the liberty: 'right by garbage cans/ reeking of rotting room service leftovers/mixed with discarded mini shampoos/ — an odor so sour and pungent/that it almost knocks you down.'"

So writes Alexandra Jacobs in "Jill Biden’s New Memoir Shows Off a Sharp Eye, if Not a Sharp Elbow/Beyond a few pointed digs at her husband’s successor, 'View From the East Wing' largely sticks to the head-spinning details of first lady-hood" (NYT).

Speaking of "no ideas but in things," we're told that, in her new memoir, her second, Jill Biden "marvels at the perks of the office, the masses of flowers, attentive staff and fine art, such as 'Morning on the Seine, Good Weather,' the oil painting that Angela Merkel said Trump called 'my Monet.' ('Our Monet,' Biden corrects, meaning the American people’s.)"

I looked it up. Here's "Our Monet":

According to The White House Historical Association's Facebook page: "On December 4, 1963, the family of John F. Kennedy donated the painting 'A Morning on the Seine; Good Weather' to the White House collection in memory of the late president." That was 2 weeks after the assassination. I'm only noticing this painting now, because I'm reading about Jill and Donald verbalizing possessively about it. And now I feel as though I can see, in that fuzzy image, 2 profiles yelling at each other. And both look like Trump.

Oh! The derangement! An odor so sour and pungent....

ADDED: Did Trump say "my Monet"? It's hearsay — at least double hearsay. Jill Biden is asserting that Angela Merkel said that Trump said something. There's room for mishearing, misquoting, misinterpreting, and lying from Merkel (supposedly hearing Trump) and Biden (supposedly hearing Merkel) and from anyone else who's passed this statement along.

Interestingly, Trump has used the phrase "my Monet," but not to refer to an artwork by Claude Monet. Trump has called one of his golf courses "my Monet": "I have friends who buy Monets. Turnberry is my Monet and it’s far more beautiful." But that quote too is hearsay. Eric Trump wrote it in a book, it says here: "Donald Trump: Turnberry is my Monet — and it’s more beautiful/US president ‘obsessed’ with details about his golf courses in Scotland and continually makes suggestions to improve them, according to his son Eric’s book" (London Times).

Googling for more reporting of Trump's use of the phrase "my Monet," I got a good laugh:

 

I'd like to hear the "Apprentice" theme song with "Monet!" taking the place of "Money!":

"When will the press tell us that Democrats 'assert, without evidence,' that Biden has withdrawn?"

Glenn Reynolds quips darkly, linking to something I wrote earlier this morning.

ADDED: Speaking of evidence, Kamala Harris is a first hand witness:

"I am first hand witness that everyday, our president, Joe Biden, fights for the American people, and we are deeply, deeply grateful for his service to the nation."

She is quoted in "Harris: ‘We are deeply grateful’ for Biden’s service/Harris spoke on the South Lawn of the White House for a celebration of NCAA championship teams, filling in for Biden as he recovers from Covid" (Politico).

So she's filling in for him and simultaneously attesting to his daily work, his "fight" for us. The last time we saw him, he was fighting to keep his place as the nominee. KH is a "first hand witness," that is, we're stuck with hearsay.

I have a tag for the word "deeply," and she just said it twice in a row. She must really mean it.

AND: Here's the original post where "deeply" became a tag: "Deeply... it's such a poser word." That's from 2014. There, I made a list of earlier examples of the use of "deeply" in the blog archive. And look what's #1 on the list!

1. "Beauty is a system of power, deeply rooted, preceding all others, richly rewarded," wrote Garace Franke-Ruta, explaining "Why Obama's 'Best-Looking Attorney General' Comment Was a Gaffe."

Obama's 'Best-Looking Attorney General' was, of course, Kamala Harris. 

"Now, the fact that a judge’s impartiality might reasonably be questioned doesn’t mean that the judge is partial."

"The public may simply not trust the impartiality of the judge. Because public trust in the work of the court is a value as important as the work itself, the rule says that the judge should not sit when we can’t fairly ask the public to trust what the judge does. That rule is especially important in this case. One thing the prosecution can do is move to recuse Judge Cannon on the ground that, in light of her experience in the search-warrant case last year, her impartiality might reasonably be questioned. And who would make that judgment if the government does push for this recusal? The judge herself gets to make that decision in our system. If she denies the recusal, the government could go to the Eleventh Circuit and ask it to order her to recuse herself... a process called mandamus.... Mandamus efforts are rarely successful...."

Says lawprof Stephen Gillers, interviewed in "Will the Judge in Trump’s Case Recuse Herself—or Be Forced To?/Federal law requires a judge to step away from a case in which her impartiality 'might reasonably be questioned'" (The New Yorker).

The judge — Aileen M. Cannon, assigned the case through the routine and random selection process — is a Trump appointee.

If the random selection had been a Biden appointee, would that judge also have to recuse herself/himself? If Cannon were to recuse herself, and she is replaced by a Biden appointee — or an appointee of any Democratic President — wouldn't Trump's demand for recusal be at least as strong as the prosecution's demand that Cannon recuse herself? We'd be talking about fairness to the accused. 

"The public may simply not trust the impartiality of the judge" — the public doesn't trust the impartiality of anything here. That's the problem with the pursuit of political goals through the criminal process... or the appearance that's what you're doing. The argument for recusal in this case is an argument about the appearance of partiality, but the appearance of partiality is baked into this case. Can anyone suggest how to unbake it?

Let's look at Ginsburg's language: "I will not be replaced until a new president is installed."

That is the form of her dying wish, as told to us by her granddaughter Clara Spera, who is a fellow at the American Civil Liberties Union. It is hearsay, and we don't know for certain that Ruth Bader Ginsburg said those words at all — though of course we assume that the basic idea expressed is something that she did indeed wish. But did she use the verbs "replaced" and "installed"? Is that Spera's paraphrase?

The words sound wrong to me, especially "installed." We normally speak of electing a President. If you look up the words "install" and "president" in the New York Times archive, the relevant hits are about colleges and professional organizations "installing" a president. There, a president is chosen by an elite group, not by the people.

I read through a long page of old NYT headlines and finally arrive at one that looks like it may be a political leader: "Silurians Install President" (April 16, 1963). Who are Silurians?! Is Siluria some country that has escaped my attention all these years?



Click to enlarge and clarify. Key line: "The Silurians is an association of men who have been on New York City newspapers for 25 years or more." Another professional organization, the sort of thing that installs its president.

You see my point. It is a strange and revealing word choice. And if there's one thing you can say about Donald Trump, it's that he was not installed. The 2016 election was a populist expression that gobsmacked the elite. If Hillary had won, it might make some sense to declare that she was "installed."

Ah! And now you see a motivation for Ginsburg's use of "installed." If Biden wins — which is what Ginsburg hoped for (and "a new president" implies) — it really is more of an installation. The Democratic Party elite have been working to install him. It's not his own doing. It was a reaction against the populist expression that had Bernie Sanders winning in the primaries.

When I hear "installed," I think of appliances — dishwashers, refrigerators — that need to be positioned and hooked up by licensed professionals. That resonates with the Biden story... except that no one would install an appliance so superannuated and marginally functional.

And I don't like the use of the word "replaced" either. Ginsburg filled a seat, seat #6, established February 24, 1807. She was the 13th person to sit there. "I will not be replaced until..." suggests a sense that there ought to be a new version of her, someone who will carry on as she would have. But she took over that seat from Byron White. Was there any sense that she was supposed to be like him? She certainly wasn't. The seat belongs to all of us. Just as we control who is elected President, we have a collective interest in that seat, which now needs to be filled.

Justice Ginsburg exercised her own will by holding on to the seat despite grave illness, and there was some ability to choose who would take her place, but the force of nature kept her from completing that task. The Constitution gives the appointment power to the President, and a Supreme Court Justice cannot grab that power from him.

The Constitution has its complicated method for determining who will be President. I won't elaborate on it here, but it does have something to do with what we, the people, want. The last time we cranked through the mysterious process, Trump popped out. It was very weird! But he is the President, and a Supreme Court Justice has vacated a seat.

We can make political arguments that Trump should wait and let us make filling that seat an issue in the election. I'd love to see Trump and Biden debate and give us the question: What kind of Justice we want?

Biden was chair of the Judiciary Committee for so long. Let's grill him about what he did to Robert Bork and Clarence Thomas. Let's ask him to show us his list of potential nominees as President Trump has. I think that would be great. But I also think that if the tables were turned and a Democratic President had a Democratic Senate, we'd get the nomination and confirmation quickly and without fussing about inferred principles that have nothing to do with the text of the Constitution.

ADDED: Wikipedia: "The Silurian is a geologic period and system spanning 24.6 million years from the end of the Ordovician Period, at 443.8 million years ago (Mya), to the beginning of the Devonian Period, 419.2 Mya. The Silurian is the shortest period of the Paleozoic Era.... A significant evolutionary milestone during the Silurian was the diversification of jawed fish and bony fish."



But also: "The Silurians are a race of reptilian humanoids in the long-running British science fiction television series Doctor Who.... The first Silurians introduced are depicted as prehistoric and scientifically advanced sentient humanoids who predate the dawn of man; in their backstory, the Silurians went into self-induced hibernation to survive what they predicted to be a large atmospheric upheaval caused by the Earth capturing the Moon."



ALSO: From the OED entry, "install":

1817 S. T. Coleridge Biogr. Lit. I. iii. 60 It is said that St. Nepomuc was installed the guardian of bridges because he had fallen over one, and sunk out of sight....

"Social media has enabled the Great Control Swap.... The first baby step toward the Great Swap was the shift from phone calls to texts."

"A phone interaction requires participants to be 'on the same time,' which entails negotiations over entrance into and exit from the conversation. Consider all the time we spend first on, 'Is this a bad time to call? Can you talk?' And then later on, 'O.K., gotta go, talk to you soon, see you later, good talking to you … '... [If you tweet about your children, they] can’t control whether you laugh at it, or what tone you use when you do.... But we live in a world that is starting to allow us to satisfy [the desire for human connection] without feeling the common-sense moral strictures that have traditionally governed human relationships. We can engage without obligation, without boredom and, most importantly, without subjecting our attention to the command of another.... The immense appeal of this free-form socializing lies in the way it makes one a master of one’s own time — but it cannot happen without a place. All that data has to sit somewhere so that people can freely access it whenever they wish.... When we alienate our identities as text data, and put that data 'out there' to be read by anyone who wanders by, we are putting ourselves into the interpretive hands of those who have no bonds or obligations or agreements with us.... People we cannot trust. The Great Control Swap buys us control over the logistics of our interactions at the cost of interpretive control over the content of those interactions. Our words have lost their wings, and fallen to the ground as data."

From "The Real Cost of Tweeting About My Kids/When I’ve told you what my son said, it’s not 'his data' anymore" by Agnes Callard (NYT). Callard is a philosophy professor at the University of Chicago.

As is even more clear if you read the entire column, Callard mixes 2 topics:

1. Creating permanent text that is stored beyond your control where it can be used by others for their purposes. There's the businesslike monetization done by whatever social media platform you use. And there is the infinite human potential to use whatever has been written down for whatever new purposes arise at any point in the future. There's too much evidence in written form, lying there, discoverable, to be used against you, out of context, by anybody, any time for the rest of you life.

2. The escape from the time constraints involved in conversations — whether in person or by telephone. There is freedom in not having to get and stay in the same time frame with another person, but you miss the ongoing feedback about how the other person is responding, and there's more distance, room for interpretation, and exposure to people whose emotions and intentions are far beyond your knowledge and control.

This essay would work better if the subject of websites monetizing data were left out. The topic of control in personal relationships is enough and even too much. The headline writer teased us with an even smaller topic, mothers writing about their children and appropriating their lives for their transitory narcissistic pleasure. We do (ironically) hear some details about her sons, but Callard is writing about human relationships more generally, and she doesn't have the space to really get into that topic.

Callard doesn't go back into the history of adopting the telephone and whatever havoc that caused. Before that, people spoke in person or wrote letters. What about "The Great Control Swap" that happened when we all got telephones? Fewer letters and less knowledge about what people who were speaking to you were actually doing and feeling and where they were and who they were with.

I'm not buying "Our words have lost their wings, and fallen to the ground as data." Yes, there's data in the sense of our manufacturing a product that some business can sell, but the words still have wings in the sense that they are read by real human beings who understand and interpret and do things of their own with those words. Are the words more dangerous to the person who creates them because they are written down? If they're dangerous, it's not because they've "fallen to the ground" but because they are still in action and the writer has lost control. But the words you speak also escape your control, and because there is no text record, you're at the mercy of the the person who heard or misheard and remembered or misremembers and repeats or misrepeats whatever you said.

"Well, Linda Tripp — remember, Clinton was impeached because of Linda Tripp’s testimony, which was complete hearsay!"/"Well, she was not under the desk with Monica. Let’s put it that way. So that’s hearsay."

Discussion of the hearsay rule on "The View."

"The idea that Vindman would have grown up with any sense of fealty to the Ukrainian volk is patently absurd, not only because he and his twin brother are clearly ardent American patriots..."

"... who have committed their lives to this country’s service but because I have yet to meet a single Jew who came to America from the Soviet Union who feels any kind of personal or historical tie beyond any relatives who might have been left behind."

From "Vindman is a Jew, Not a Ukrainian, Mr. Duffy/A loaded charge" by John Podhoretz (at Commentary).

I'm reading about attacks on Vindman, but let's look at why Vindman matters. I'll read "White House Ukraine Expert Sought to Correct Transcript of Trump Call/Lt. Col. Alexander S. Vindman, who heard President Trump’s July phone call with Ukraine’s president and was alarmed, testified that he tried and failed to add key details to the rough transcript" (NYT).

Excerpt:

The omissions, Colonel Vindman said, included Mr. Trump’s assertion that there were recordings of former Vice President Joseph R. Biden Jr. discussing Ukraine corruption, and an explicit mention by Ukraine’s president, Volodymyr Zelensky, of Burisma Holdings, the energy company whose board employed Mr. Biden’s son Hunter.

Colonel Vindman, who appeared on Capitol Hill wearing his dark blue Army dress uniform and military medals, told House impeachment investigators that he tried to change the reconstructed transcript made by the White House staff to reflect the omissions. But while some of his edits appeared to have been successful, he said, those two corrections were not made.

Colonel Vindman did not testify to a motive behind the White House editing process.

So there's the old question of whether the transcript is completely reliable and the new questions about the importance of these 2 things that were (allegedly) said but left out.

The phrases do not fundamentally change lawmakers’ understanding of the call...

Okay, then it's only about how complete and reliable the transcript is. It's reconstructed and not verbatim. But there's no new material from Vindman that matters. Vindman is only useful for the proposition that not everything is in the transcript, and then, I presume, the idea is to add in things that do matter from others who unlike Vindman, did not listen into the conversation but only heard about it second hand (or third or fourth hand). That feels quite tenuous.

If there was something important that was left out, why isn't Vindman the one to tell us about it? You have to say that he was troubled by what happened to trouble him and though that turns out not to be important, there were other things that were important but that just didn't happen to trouble Vindman, and here's a second/third/fourth-hand witnesses who can tell us about that.

I'm skeptical because I assume that things would tend to become more troubling as they are retold, remembered, and retold again.

"A woman stabbed and left for dead named her killers in her last moments, police say."

WaPo reports.

“Her internal fortitude, to stay alive and to fight, is pretty remarkable,” Sgt. Ray Kelly of the Alameda County Sheriff’s Office told the San Francisco Chronicle. “This young woman clung to life when she was left for dead and was able to live for another couple hours and get us that information. Ultimately that led us to these arrests.”...

Lizette Andrea Cuesta of Tracy, Calif.... had crawled nearly 100 yards... to get to the road, where she had some chance of being seen by people in passing cars....

“You could tell it was so bad to where you just had to give her comfort,” Richard Loadholt, one of the UPS employees who had been riding with three other men on Tesla Road in Livermore around 2 a.m., told Sacramento Fox affiliate KTXL. Initially, he said he and his workmates thought she was missing an arm. “She fought like a soldier. Like a warrior.”...

"Dying declaration" is a technical term in law. It's an exception to the rule against hearsay. In the California code:

Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.

"I hope you can see your way clear to letting this go, to letting Flynn go.... He is a good guy. I hope you can let this go."

Trump said to Comey, according to a memo by Comey, as reported in the NYT.

Mr. Comey wrote the memo detailing his conversation with the president immediately after the meeting, which took place the day after Mr. Flynn resigned, according to two people who read the memo. The memo was part of a paper trail Mr. Comey created documenting what he perceived as the president’s improper efforts to influence an ongoing investigation. An F.B.I. agent’s contemporaneous notes are widely held up in court as credible evidence of conversations....

I'd like to know more about the basis for saying "An F.B.I. agent’s contemporaneous notes are widely held up in court as credible evidence of conversations." I'm guessing that's a reference to the admissibility of the evidence as an exception to the hearsay rule (803(6)). The weight to be given the evidence depends on all of the circumstances. By the way, it's double hearsay, since we're asked not only to believe what Comey wrote but the unnamed individuals who told the NYT about the memo. The NYT has not seen a copy of the memo.

But let's assume the memo exists and says what you read quoted in the post title. How bad is it to say Flynn is a "good guy" and to express "hope" about the outcome? The headline has a pretty aggressive paraphrase of the quote. It reads: "Comey Memo Says Trump Asked Him to End Flynn Investigation."

The asking is at most only implicit in what is a declarative statement: "I hope you can see your way clear to letting this go." That's just Trump revealing what he hopes for. There's no question at all, let alone any pressure or threat. And "see your way clear" is a delicate phrase. That's not saying do it my way. Go your way. And if your path is clear and it gets you to the outcome I hope for, then I will get what I want, but I'm assuming you will go where you see it clear.

Here's the White House response to the memo:

“While the president has repeatedly expressed his view that General Flynn is a decent man who served and protected our country, the president has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn. The president has the utmost respect for our law enforcement agencies, and all investigations. This is not a truthful or accurate portrayal of the conversation between the president and Mr. Comey."

I thought that Oscars mixup was some kind of political performance art.

I didn't watch the Oscars last night, and I'm sorry I missed the real-time WTF fun. I saw the news on my iPhone in the middle of the night, then slept on it before reading the details and seeing video.

As the NYT explains it, I don't think it was fake news: There's video, and there's a transcript of what happened. We've got Warren Beatty and Faye Dunaway on stage and presenting, and the only reason I can think of why they'd give those two the honor of announcing the most important award is: White Privilege. Rich, old, white people. They rule America and they rule Hollywood. And of course, the white movie "La La Land" wins in their world. All the white La La people file up on stage to take the naked-man statuette, and they start blah-blahing about their la la-ing, and then it's: Oh, no, white people! There's a revolution! The real winner is "Moonlight," the black movie. All the black people come up on the stage. Yay! Victory! Things are not what they seemed! What you thought happened didn't really happen. Who you thought won didn't really win! Wake up from your nightmare! If only President Donald Trump were only a nightmare. Ha ha. La la. Blah blah.

Now, I know Faye Dunaway and Warren Beatty were Bonnie and Clyde. This here's Miss Bonnie Parker. I'm Clyde Barrow. We rob banks. American outlaws. To put those 2 together is to wink: the rules don't apply. And Warren Beatty has some political wit. (Isn't Trump a bit like Beatty's Bulworth?) So Beatty hesitates over the card, then hands it to Dunaway and she finally says "La La Land." The NYT reports that Beatty says that the card they looked at was the card for the Best Actress award, which said "Emma Stone/La La Land." That's an explanation for why they said "La La Land" for Best Picture? Obviously, that would be the wrong card, though it is a (feeble) excuse for saying "La La Land." It's the only name of a movie on the card.

I said I thought the NYT did a good job of reporting, using transcript and video. And they've got a quote from Beatty:

“I opened the envelope, and it said ‘Emma Stone, La La Land.’ That’s why I took such a long look at Faye and at you. I wasn’t trying to be funny. This is ‘Moonlight,’ the best picture.”

I trust that he said that, but I don't know that he's not lying. He might have wanted to make the big political gesture. He might have thought it's justified because the world in which Donald Trump is President is not a normal world. Fair is foul, and foul is fair. You can do it and you can lie too. It's art, and it's poetic justice. White people — unhand that Oscar. Donald Trump — ungrab that pussy. Unbreak America's heart!

Warren Beatty for President.

4 boxes of new Supreme Court opinions...

... with SCOTUSblog live-blogging here.

1. Brumfeld v. Cain (PDF). About habeas relief and the question when a person is "mentally retarded and therefore ineligible for the death penalty."

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Brumfield could secure relief only if the state court’s rejection of his claim was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §§2254(d)(1), (2)....

We do not deny that Brumfield’s crimes were terrible, causing untold pain for the victims and their families. But we are called upon today to resolve a different issue. There has already been one death that society rightly condemns. The question here is whether Brumfield cleared AEDPA’s procedural hurdles, and was thus entitled to a hearing to show that he so lacked the capacity for self-determination that it would violate the Eighth Amendment to permit the State to impose the “law’s most severe sentence,” Hall, 572 U. S., at ___ (slip op., at 7), and take his life as well.

2. Ohio v. Clark (PDF). This is a confrontation clause case with no dissenting opinions. Justice Alito writes the main opinion, and there's a concurring opinion written by Justice Scalia that is joined by Justices Thomas and Ginsburg. Everyone accepts what the trial court did: allow the hearsay evidence that was the statement a 3-year-old boy to his pre-school teacher that identified the defendent as responsible for the marks she saw on his body. From the main opinion:

The Sixth Amendment’s Confrontation Clause, which is binding on the States through the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In Ohio v. Roberts, 448 U. S. 56, 66 (1980), we interpreted the Clause to permit the admission of out-of-court statements by an unavailable witness, so long as the statements bore “adequate ‘indicia of reliability.’” Such indicia are present, we held, if “the evidence falls within a firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” Ibid.

From SCOTUSblog: "Lovers of Justice Scalia and/or the confrontation clause should DEFINITELY check out Scalia's concurrence in the judgment in Ohio v. Clark. It is some sharply worded stuff -- accuses Alito of "shoveling dirt" on the grave of the key precedents, and using intentionally confusing "dicta" to try to undermine the clause's protections." I'll be getting to all of that later.

3. Davis v. Ayala (PDF). 5-4. "Holding: Any federal constitutional error that may have occurred by excluding Ayala's attorney from part of the Batson hearing was harmless."

4. Walker v. Texas Division, Sons of Confederate Veterans (PDF). "Texas's specialty license plate design constitutes government speech, and thus Texas was entitled to refuse to issue plates featuring the proposed Confederate Veterans' design." 5-4, by Justice Breyer, with Justice Thomas joining the liberals. Justice Alito has a dissent, which is joined by the rest of the conservatives (Roberts, Scalia, and Kennedy.)

5. McFadden v. United States (PDF). "When a controlled substance is an analogue, §841(a)(1) requires the Government to establish that the defendant knew he was dealing with a substance regulated under the Controlled Substances Act or Analogue Act." McFadden was selling bath salts. The case is remanded to determine if the error was harmless (which it is if no rational jury would find that McFadden didn't know).

6. Reed v. Town of Gilbert (PDF). "The Sign Code’s provisions are content-based regulations of speech that do not survive strict scrutiny." Justice Thomas writes the main opinion. There are also 2 concurring opinions.