The Kennedy effect.

Gina Holland reports:

The Supreme Court ruled 5-4 Monday that regulators may have misinterpreted the federal Clean Water Act in refusing to allow two Michigan property owners to build a shopping mall and condos on wetlands they own.

Chief Justice John Roberts writes for a plurality, with Justice Kennedy providing the 5th vote in a concurring opinion. I haven't got the text yet, but Roberts slams Kennedy for leaving "lower courts and regulated entities ... to feel their way on a case-by-case basis." [See the update below!]

The court's four most conservative members wanted a more sweeping ruling, clearing the way for development of land unless it was directly connected to waterways.

The court's four most liberal members said that such a ruling would reject three decades of practice by the Army Corps of Engineers and threaten the environment.

It takes nerve to hold the two sides of the Court in equipoise like that, but it would also take nerve to commit to a clear rule. It takes nerve to relegate everyone to so much uncertainty and litigation, but it would also take nerve to determine the outcome in so many cases beyond the case at hand. Poor Justice Kennedy. I can't imagine how he feels about his role. And now it seems that it's the next change on the Court that will produce the... deluge.

UPDATE: Chief Justice Roberts, concurring, faults the Army Corps of Engineers for failing to come up with rules governing the scope of its power after the Court rejected its grandiose view in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC):

Lower courts and regulated entities will now have to feel their way on a case-by-case basis. This situation is certainly not unprecedented. See Grutter v. Bollinger, 539 U. S. 306, 325 (2003) (discussing Marks v. United States, 430 U. S. 188 (1977) ). What is unusual in this instance, perhaps, is how readily the situation could have been avoided.

That's an interesting citation to the Michigan affirmative action case, Grutter. Note how elegantly Roberts doesn't quite criticize Grutter. He doesn't even criticize Kennedy for leaving the law in a condition of fuzziness. My original post says "Roberts slams Kennedy," which is an incorrect inference I made reading Holland's report. Roberts doesn't even mention Kennedy. He slams the Army Corps of Engineers. And he doesn't complain about fuzzy legal standards generally. He's focused on the failure by the Corps to provide the clear rules that would have solved the problem.

Justice Scalia who wrote the plurality opinion, joined by Roberts, Thomas, and Alito, did go after Kennedy, but not to chastise him for leaving the lower courts to struggle through unclarity. His opinion is concentrated on proper textual analysis of the statute.

So, I really need to reframe this post. I was too eager to perceive Kennedy setting himself apart from the Roberts-Scalia-Thomas-Alito group. I think this opinion would have been written differently by the Rehnquist Court, and that Roberts is having a moderating effect.

The biodiversity freezer.

Carved in an icy mountain, guarded by polar bears. Norway as Noah.

Its purpose is to ensure the survival of crop diversity in the event of plant epidemics, nuclear war, natural disasters or climate change, and to offer the world a chance to restart growth of food crops that may have been wiped out....

The vault will have thick concrete walls, and even if all cooling systems fail, the temperature in the frozen mountain will never rise above freezing due to permafrost, it said.

So it will protect us in the event of "climate change," and it will always be frozen "due to permafrost"?

The most ever paid for a painting: $135 million.

And it's for a Klimt painting. A Klimt! I mean -- wow! -- it's pretty. Look at all the gold.


Museum Associates/Agence France-Presse - Getty Images

Speaking of prettiness, the purchaser's money comes from cosmetics.

Actually, the purchase and the price make a lot of sense. The buyer, Ronald S. Lauder, is the founder of the Neue Galerie, "a tiny museum at Fifth Avenue and 86th Street devoted entirely to German and Austrian fine and decorative arts." The painting exactly fits the place and is one of the artist's greatest paintings. Lauder had to convince the owner to sell. And the owner, the niece of the woman in the portrait (Adele Bloch-Bauer), fought a long and hard to obtain the painting from the Austrian government, which, she successfully argued, had obtained it by way of the Nazis.

The complexity of the Texas redistricting case....

Which may or may not come down today. Scotusblog notes three issues beyond the mid-decade redistricting problem that's gotten all the attention:

1. Constitutional Constraints on Racial/Ethnic Redistricting....

2. The Voting Rights Act in Today’s World of Multi-Racial and Ethnic Demographics....

3. Is Partisan Gerrymandering Unconstitutional at the Retail Level Even If Not At the Wholesale Level?

These issues are very complex, but that doesn't guarantee that the Court won't find some simple answers.

Audible Althouse #54.

The new podcast. Streamable here -- no iPod needed. But all the cool people subscribe:

I talk about: Father's Day when your father is gone. Staying on good terms with people who are not gone. Hiding your disappointment. That sign that says "We have Potato!" The way schools disfavor boys... and rebel girls. The high school with 41 valedictorians. Back in the old days, getting assigned to give the prayer at graduation and doing it, rebel-style.

Murtha bumbling through "Meet the Press."

Did you watch Congressman John Murtha on "Meet the Press" today? (If not, you can watch it here.) Or read the transcript. Murtha is -- in Tim Russert's words -- "the most outspoken Democratic critic of the president’s handling of the war." I admit to feeling a certain amount of resistance to outspoken critics of the war effort, so take that into account. But I thought Murtha's performance was embarrassing. I've never seen a "Meet the Press" guest take the first question and spew everything he could think of in one giant, jumbled dump:

MR. RUSSERT: The president says, “stay the course,” that within the next six months, Iraq will be secure under the direction of the new prime minister, and to do anything less now would be irresponsible.

REP. MURTHA: Well, “stay the course” is “stay and pay.” This is the thing that has worried me right along. We’re spending $8 billion dollars a month, $300 million dollars a day. And to give you some perspective of what that means, Gates said, “I’m going to quit the corporation, or I’m going to—less time with the corporation.” Well, you weigh $30 billion dollars. That’s four months of the cost of this war. This port security, if you want to spend more money, it’d would take 47 years the way we’re spending it. Education, the No Child Left Behind, a couple months of the war would pay for that.

[234 words cut.]

It’s getting worse. That’s why I feel so strongly. All of us know how important it is internationally to win this war. We know how important. We import 20 million barrels of oil a day—we use 20 million barrels of oil. We know how important, international community. But we’re doing it all ourself, and there’s no plan that makes sense. We need to have more international cooperation. We need to redeploy our troops, the periphery. What happened with Zarqawi could have been done from the out—it was done from the outside. Our planes went in from the outside. So there’s no reason in the world that they can’t redeploy the troops. They’ve become the targets, they’re caught in the civil war, and I feel very strongly about it.

He gets rolling and jumps from point to point -- mostly freeform financial analysis -- with no end in sight until he suddenly, apparently, thinks of an exit strategy: "I feel very strongly about it."

Russert bases the interview on a clips from a speech Karl Rove gave in New Hampshire last Monday, and Murtha should have been well prepared to answer this. Rove's remarks are clear: the Democrats want to "cut and run." "They may be with you at the first shots, but they are not going to be there for the last tough battles." Murtha's response is nothing but babble about how Rove isn't personally fighting the war:

He’s, he’s in New Hampshire. He’s making a political speech. He’s sitting in his air conditioned office with his big, fat backside, saying, “Stay the course.”

You know, most Americans are fat. Including Murtha. This kind of personal invective may be hilarious among fellow Rove-haters, but it's frustrating to listen to an answer like that when Rove has articulated exactly the issue Democrats need to address. It's always been the case that the leaders are back home in physical comfort -- though it's an unusually bad week to dredge up that hackneyed observation, since Bush just went to Iraq.

Murtha continues:

That’s not a plan. I mean, this guy—I don’t know what his military experience is, but that’s a political statement. This is a policy difference between me and the White House. I disagree completely with what he’s saying.

Thanks for the big, fat nonanswer. We know you disagree with him. Murtha goes on for another 210 words, and Russert finally finds a way to break in and tries to remind him that the Democrats need to keep Rove from pinning that disastrous label "cut and run" on them. Russert:

Is it appropriate for the president’s principal political adviser to accuse the Democrats of cutting and running?

Does Murtha pick up the cue and do the one thing he most needs to do, which is to portray the Democrats as more responsible on national security?

I think it’s, it’s, it’s a, a name—they just use that. I say “stay and pay.” And what I mean by stay and pay, and I’m talking about the hardship on the families, the hardship on the troops. And there’s no plan, that’s the thing. It’s easy to say that. That’s, that’s an easy—the public is way ahead of this. The public is two-to-one against what we’re doing, and they want a change in direction. That’s the thing I see the most.

Notice all the stumbling? "It’s, it’s, it’s a, a name... there’s no plan, that’s the thing. It’s easy to say that. That’s, that’s an easy—the public is way ahead of this." Remember the polls? Americans already disagree with Rove. So why should I -- the most outspoken war critic the Democrats have -- bother to put two coherent sentences together?

Did somebody misprogram him? It sounds as though he was repeating a pep talk someone gave him before the show. It's easy! No, it's not. The polls! You're going into the campaign season, when people are going to start paying attention to the arguments. Are you just going to tell us that we already agree with you?

I'm sure Rove enjoyed that pathetic performance.

"The picture shifts the emphasis from Christ's warning to Mary's desire, and runs with that."

"The gorgeous flesh of the nearly naked Savior, and the Magdalene's luxuriant blond hair and silk robes, do more to invite caresses than ward them off. The saint herself is looking awfully hands-on, with fingers tightly clutched around her golden jar of ointment or reaching out to grasp at her beloved Lord, who in turn is busy fingering the fine cloth he's wrapped in."

The Washington Post is getting a lot out of art today...

Ointment? Why not go all the way and call it lube?

But isn't this is a typical -- and, really, rather cornball -- way to try to get the public jazzed up about art? Oh, it's all so incredibly sexy! Why not wheel out Sister Wendy?

About that potato.

Yesterday's photograph prompted commenter Mathew to write: "I love the fact that the moment I saw that photo I knew exactly where it was taken, and exactly why it was posted."

That amused me a lot. Am I even sure exactly why I posted it? Consider the manifold possibilites:

1. I want those in the know to know potato is available there.

2. I find handmade signs charming, especially when they express enthusiasm about ordinary things.

3. I love the Eggagog feel to it.

4. It's a mystery for commenters to riff on.

5. I'm completely high and have the munchies.

6. It was about time for another Madison photograph on the blog and that was the one thing that caught my eye on my Saturday walk.

7. It was a little game to see how long it would take for someone to mention Dan Quayle.

8. Setting up something to talk about in the podcast.

Oh, this wants to be a blogpoll. Haven't done a blogpoll in a good, long while. So have at it:

"Somalia was saved because of the Somali women."

"I think it is even something that the men acknowledge now. Finally."

"We were like, 'What if this thing blows up and everybody wants to get burned?'"

Says one of two sisters who were severely disfigured in a house fire and have now had huge portraits painted.

The painter, Doug Auld, 52, says that if people have a chance to gaze without voyeuristic guilt at the disfigured, they may be more likely to accept them as fellow human beings, rather than as grotesques to be gawked at or turned away from.

So go ahead and stare. This is what people with burns look like. There are thousands and thousands of them, and while many shut themselves away, plenty venture out to conduct their lives.

Photography already serves this function of allowing us to stare, and grotesque subjects are frequently chosen. But a painting is different, isn't it? To paint something in a detailed style like Auld's requires a great deal of time and intensely focused attention. A painting proves the artist's long stare. A photograph -- however long the photographer planned and gazed -- is only evidence of one moment.

Life in Canada.

The NYT reports:

The Inuit are a traditionally nomadic people who migrated about 1,000 years ago from western Alaska toward what is today Arctic Canada. Until very recently, they had no formal political organization. Nuclear families lived together and occasionally joined other families to compose small, fluid bands to share their hunt.

Since World War II, the Inuit have been forced by the federal government to abandon their nomadic lives for remote settlements approachable only by airplane. The federal police killed their sled dogs, saying they were sickly. Young Inuit were required to leave their parents and sent to residential schools, where they were routinely abused physically and sexually.

Modern life has its benefits, but the Inuit diet of hunted game has largely been replaced by sugary and fatty packaged foods. Welfare has become a way of life, and 30-year-old grandparents are not uncommon. Housing is scarce, so crowding only exacerbates social ills.

"Now perhaps there's been a chance to reattach the original democratic, liberal values to the flag that come from the 19th century..."

How hard -- and rightly so -- it's been for Germans to wave their flag.

"To the old generation, the flag symbolized aggressive nationalism, or even some continuity with the Third Reich, even if the Third Reich didn't use that flag," said Paul Nolte, a professor of contemporary history at Berlin's Free University...

The new display of pride is almost strenuously nonnationalistic. There are even German cars that show the German flag on one side and some other flag — the Brazilian one seems popular, perhaps because Brazil is a likely opponent if the German team makes it to the [World Cup] finals — on the other side.

"This happy year flew by/My Maury, what a guy!"

Is there no limit to abasement via television? (Thanks, Metafilter.)

Don't miss the part where she gets off the piano.

ADDED: In other Maury news, "Povich Wants a Maury-torium."

"As the engineers of tomorrow, they represent the future of our nation's infrastructure...."

It's the National Concrete Canoe Competition, and the University of Wisconsin-Madison team is number 1 for the fourth year in a row.

Father's Day... is your father gone?

Mine is.

The mubtakkar.

Time Magazine reports:

Al-Qaeda terrorists came within 45 days of attacking the New York subway system with a lethal gas similar to that used in Nazi death camps. They were stopped not by any intelligence breakthrough, but by an order from Osama bin Laden's deputy, Ayman Zawahiri. And the U.S. learned of the plot from a CIA mole inside al-Qaeda. These are some of the more startling revelations by Pulitzer Prize-winning author Ron Suskind, whose new book The One Percent Doctrine is excerpted in the forthcoming issue of TIME....

U.S. intelligence got its first inkling of the plot from the contents of a laptop computer belonging to a Bahraini jihadist captured in Saudi Arabia early in 2003. It contained plans for a gas-dispersal system dubbed "the mubtakkar" (Arabic for inventive). Fearing that al-Qaeda's engineers had achieved the holy grail of terror R&D — a device to effectively distribute hydrogen-cyanide gas, which is deadly when inhaled — the CIA immediately set about building a prototype based on the captured design, which comprised two separate chambers for sodium cyanide and a stable source of hydrogen, such as hydrochloric acid. A seal between the two could be broken by a remote trigger, producing the gas for dispersal. The prototype confirmed their worst fears: "In the world of terrorist weaponry," writes Suskind, "this was the equivalent of splitting the atom. Obtain a few widely available chemicals, and you could construct it with a trip to Home Depot – and then kill everyone in the store."

Why are Suskind (and Time) revealing that we have a source in al Qaeda? If al Qaeda breaks into chaos at the news, maybe they'll start killing each other -- or just every guy named "Ali" -- but I don't see how it's Suskind's call. Did the government approve of this disclosure? Is it even true? It might be good disinformation. What am I missing?

"The equivalent of splitting the atom"? "The holy grail of terror R&D"? But "you could construct it with a trip to Home Depot"? Is it easy or hard? What's so amazing about a container with two compartments? It can't be the potential for a remote switch. There's no genius involved in thinking of the two chemicals, is there? That's basically how they set up the gas chamber they used to use in California, isn't it?

The CIA tested the design and was impressed by how... mubtakkar it was? Is that a trick to get them to build it and off themselves, Weatherman-style?