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2004-01-29T23:59:00.000-05:00

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A Rant Deferred

2004-01-28T19:24:00.000-05:00

I was going to go off on a big rant, but I've been stewing all day and don't have the energy. The gist of it was (1) I got a bad haircut; (2) I still don't like kids; (3) I really don't like drivers of big SUVs who flash their lights at me, on a residential street, covered in slush and ice, when I'm doing a mile or two over the speed limit, just because every road has to be their own little private Autobahn; (4) I've been up for about 36 hours and am a freaking zombie about now. Anyway, feel free to vent your own rant at me if you want. I'll be awake and back to blogging soon.

UPDATE, Thurs: Oh, and another thing. Now my computer is acting all crizappy on me. It won't let me use Internet Explorer at all, and then it tells me that I don't have any disk space. Even I know that downloading a dozen or so remixes of the Dean scream won't fill up my hard drive. So, between being super-busy at work and having computer troubles at home, I'm all out of sorts.

They're Playing My Song

2004-01-27T22:37:00.000-05:00

They announced this year's Oscar nominees today. (See Crescateer Amy's predictions, which look pretty spot-on to me.) In the "It's a pleasure just to be nominated" bunch, I was really happy to see "A Kiss at the End of the Rainbow" from A Mighty Wind nominated for Best Song. If you don't know it, it's the latest from Christ Guest & Co. (Best In Show, Waiting for Guffman). It's an homage to folk musicians from the '60s, filmed as a documentary of a reunion show. I didn't think it was as good as Best In Show, but that's a high standard. A Mighty Wind is plenty funny -- one of the best movies I saw in 2003. And, the soundtrack is great! It could stand alone as a solid folk album. Some of the songs are laugh-out-loud ridiculous ("Potato's in the Paddy Wagon," "Old Joe's Place") and some are a little overdone ("Skeletons of Quinto," "The Ballad of Bobby and June") -- but so were a lot of songs back then. All in all, you could convince a lot of people who like folk music that this album really did come out in the '60s. My favorite tune is "When You're Next to Me," but "Rainbow" is very good too. Both of those are by the fictional "Mitch and Mickey," who are really Eugene Levy and Annette O'Toole. "A Kiss at the End of the Rainbow" is a genuine love song that ought to be on the radio as often as something like, I don't know, "Dedicated to the One I Love" or "Leaving on a Jet Plane." If you think I'm nuts (and who doesn't by this point?), a review on the All Music Guide said, "The greatest testament to its success is that it works as a folk-pop album regardless of the film. It is funnier if you're in the joke, but that's not necessary to know if you just want to enjoy the music here on this splendid album."

Anyway, I doubt "Rainbow" will win here, but what I'm really stoked about is that during the Oscar telecast, they usually have performances of the nominated songs. I would love to see Levy and O'Toole in Mitch & Mickey get-up singing this one before an audience in the billions. Instead, it will probably get cut so we can get extra time for Sting to sing some Civil War campfire song from Cold Mountain. Here's hoping that Oscar gets that folky feeling.

Oh, the Humanity!

2004-01-27T16:40:00.000-05:00

Adam Sandler will assume the Burt Reynolds role in a remake of The Longest Yard.

I am speechless.

Founding Father Quiz

2004-01-27T13:17:00.000-05:00

For the historically-minded among you, via Amanda at Crescat we are led to the "Which Founding Father Are You?" Quiz.

I'm not as into these guys (and the Founding Fathers were all guys, near as I can tell) as some are. Maybe it's a symptom of my liberalism that I don't revere these folks, although I do acknowledge that they did some great things. I think history is better, and more accessible, when we realize these folks had flaws, just like us, and I think that makes them more human and their accomplishments all the more noteworthy than if they were so many Collossi come down from Olympus who could do no wrong. (Don't start; I know I'm mixing metaphors like crazy.) Anyway, I would also like to point out this interesting article from Atlantic a few months ago entitled "Founders Chic." Acting like the Founders were more-than-human makes us think we can't do as much. Our problem is more likely to be that we won't get off our duff and do it. (And of course, here I'm talking about getting off one's duff for purposes of poltical revolution, rather than other potential duff-duster-offers, like love.)

By the way, according to the quiz, I am John Adams:

You are right more often than not, but can be irritating enough about it that people will tune you out even when they shouldn't. You enter a room more concerned that everyone acknowledge that you're right than that everyone like you. You tend to make few friends, but those you do make are closer than family.

Ouch. Sadly, probably more true than I would care to admit.

Fisking Governor Dean

2004-01-27T01:38:00.000-05:00

A few days after The Scream, I opened my mailbox to find the smiling visage of Howard Dean (as the song used to go) on the cover of the Rolling Stone. He is this issue's interviewee, and boy, it is a doozy. I thought about taking it down piece-by-piece (a true fisking), but it really almost fisks itself. The link above is only an excerpt, so some of the quotes I discuss will only be found on paper. (I think I'm safely within fair use here, but note that I had to type a lot of this out myself, so spelling errors are mine.)

Let me say first that I like RS -- I've been a subscriber for years. And part of the reason for that was always their political coverage. You used to be able to get strong work from Eric Schlosser (Fast Food Nation), Hunter Thompson, and Tom Wolfe in there. P.J. O'Rourke used to provide some token conservatism. And that was back before Bill Greider went off the liberal deep end over at The Nation. But it has gone downhill fast. Now, it's all "Bush sucks, legalize drugs!" Okay, that's an oversimplification, and some of the national affairs coverage is still solid. But overall, I'm pretty glad that so few people are getting their politcal info from RS. After all, John Kerry dropped his f-bomb in these same pages, and it hardly made a ripple.

Anyway, the interview is credited to Will Dana and RSeditor and publisher Jann Wenner. I don't know anything about Dana, but Wenner is pretty liberal even for the media. So be assured that all the hilarity in this interview isn't confined to one side of the table. Also note that I skip to the good parts, largely a consequence of having to type it out.

In the glowing introduction to the interview, Dean is called "the year's most extraordinary political story." That's may well be true enough, but the authors go on to say that when Dean started his campaign, he "was launching the kind of candidacy that usually appeals to the kinds of liberals who write about politics, and no one else." Oh, I see: only liberals who write about politics are smart enough to see a diamond like Howard in most cases. I sure wish they would tell the rest of us next time.

"By the time the nation started paying attention [to what these brilliant liberals already knew], Dean was suddenly not just a guy running for the White House - he was an insurgent leader around whom a movement was coalescing, the first political leader to harness the power of the Internet." [...and thunder, and wind, and fire...they make him sounds like one of the X-Men]

"Unlike most politicians, who work hard to seem like your best friend, Dean, a physician by training, projects a refreshing quality of seeming not to really care if you like him." [Because, of course, that's exactly the quality one looks for in a doctor. And, haven't the liberals been all over George Bush for not caring if the leaders of other countries like him? Do they find that "refreshing"?]

[Denouncing Democrat attack ads against him, calling the people running them "unelectable"] "Because they're being funded by enormous special-interest groups -- we don't know who they are yet. That is the old Democratic Party, the Democratic Party that can't possibly win. If you're a politician who relies on special interests, trying to run against the president, who relies on special interests, you really don't have much of a case to be president." [But aren't the biggest Democratic special interest groups -- the unions -- supporting you, Howard? Okay, so maybe you're not "relying" on them the way you are on your internet legions, but it's not like you're turning down endorsements from unions.]

Here's a nice exchange:
Q: Why do you think the Democrats just rolled over for Bush?

A: I don't know, but there's something funny in the water in Washington, because they all rolled over when Newt Gingrich got elected Speaker of the House in 1994. And I was the first one who took a whack at him then, too. Everybody was just bowled over by Gingrich. I thought he was a house of cards.

Q: I'm assuming, once Bush came in, that you told your fellow Democrats to stand up to him. What was the reaction?

A: They didn't pay any attention. I was this governor from Vermont. What did they care? The currency in Washington is "Can you get reelected?" It's not my currency -- I want to change the country.

[Funny, I don't remember Howard Dean ranting against Gingrich in 1994, much less being the first Democrat to do so. And these aren't even the biggest softball questions of the interview, but "You were right, and they were wrong, right?" is a pretty fat pitch for Dean to hit.]

Q: Didn't you also say at the time [Dean signed the civil union bill] that the whole idea of legally sanctioned gay relationships made you feel uncomfortable?

A: Sure. Look, I didn't know anything about the gay community when I signed the civil-unions bill. I grew up in the same homophobic milieu that everybody else did. I was told the same thing about gay people that all heterosexuals were. And most gay people were told the same thing themselves -- by parents, ministers and everybody else. I was uncomfortable, and I said so. And I got a lot of flak for it. But I still thought it was the right thing to do.

You don't allocate civil rights by who makes you comfortable and who doesn't. I believe that civil unions was a masterful way of making sure that every gay and lesbian Vermonter was entitled to the same rights as everybody else -- without getting into the business about telling churches who they could marry and who they couldn't marry. I think what we did was the right thing. Others may do it differently.

Equal rights under the law is a fundamental part of everybody's thinking in America -- which is why I don't think civil unions is going to be a big issue in the election for me.

Q: Is this an important enough issue to have it be one of the main issues of a presidential campaign?

A: Well, civil rights is an important issue. Gay marriage is not. Karl Rove will make it that way. Because he'll claim that everything is gay marriage, and this and that and the other thing.

Q: So you are just going to change the subject?

A: Yeah. If we allow the Republicans to run the campaign based on divisive issues -- like prayer in school, gay marriage and gun control -- then we lose.

[I will admit that I do love that Dean really likes to use the word "milieu." But I have reason to doubt that Park Avenue and Yale are the same homophobic milieu that "everybody else" grew up in. But Dean really is nuts if he thinks that the civil union issue wouldn't come up if he wins the nomination. That's just losing touch with reality -- it's akin to saying the war in Iraq wouldn't be an issue. He may not want it to be, and in his heart of hearts he may think it's a simple issue, but Karl Rove et al. probably already have the tv ads written. It's delusional to think it won't come up. And it's just as simple-minded to think that they can just "change the subject."]

Q: What do you think is George Bush's philosophy? What motivates him?

A: George Bush's philosophy is, "If you're rich, you deserve it, and if you're poor, you deserve it." That's not my philosophy.

[Actually, I kind of like that construction, but I thought it was funny the way he had to add on "That's not my philosophy" just in case we were confused.]

Q: The Republican Party has become the official party of the religious right.

A: There's nothing wrong with being religious, and there's nothing wrong with having religious people lobbying the government. What's wrong is to have anyone in this country be able to inflict their religious views on somebody else who doesn't share their religion.

[I had a hard time putting "Q" in front of that because it's not really a question. It's phrased as a statement of fact, like it's simply incontestible, and they want to know what "equal rights" Howard is going to do about it. And that still may not be my favorite "question."]

Q: How about John Ashcroft?

A:He doesn't represent the mainstream. He doesn't care, and he believes he literally has the God-given right to enforce his views on every other American.

Q: Irrespective of what the Constitution says?

A: That's what I believe. You'd never get them to admit that, but that's what they're up to. This administration intends to remake America by appointing judges who will rewrite the Constitution by their court decisions.

These guys are not driven by real-world considerations. They're driven by an ideological view of the country, which they believe, literally, it's their God-given right to inflict on everybody else. And this election's going to show, I hope, that it's not their God-given right, and that we don't want it.

[Well, not to split hairs, but it could be their God-given right, and the Dems could still win the election. But I love how Dean knows things the Republicans would "never admit," like it's some big secret that they have this radical view of the Constitution they want to force down our throats. :) ]

Q: You criticized the president for not standing up to Saudi Arabia. What would you do to confront the Saudis?

A: First of all, I'd get off foreign oil. All it means is enormous investment in renewables. Wind -- the Danes get twenty percent of all their electricity from wind. We can do something very close to that. Solar -- you've got to change the tax laws and have a massive effort to do that. Oil conservation -- if you had the same mileage requirements for SUVs and trucks as you did for the rest of the fleet, every year you'd save the entire amount of oil that's supposed to be in the Arctic National Wildlife Refuge.

["All it means"?! Oh, gotcha -- all it means is an "enormous investment" in renewable energy. And not that I'm happy about the massive U.S. energy consumption, but might the Danes need a bit less energy than us? I think we need serious energy reform in America, and I think we do need to wean ourselves from foreign oil. But isn't this like saying, "All we need is a massive investment and we'll be on Mars in twenty years"? And there's no follow-up: How much? When? Where we will build these windmills, Don Quixote?]

Q: In the short term, you've got the Saudis financing fundamentalist schools; you've got this web of connections they have with terrorists and the terrorists of tomorrow. How do you deal with that?

A: You use economic pressure.

Q: Like how?

A: We're not going to go into like how. As a potential president of the United States, I prefer to make my threats privately.

[Well, Guv, I think you just said publicly that you would use economic pressure to threaten the Saudis, didn't you? I guess he isn't telling us whether he would prefer economic sanctions or cutting off aid, but don't those two usually go hand-in-hand?

[The interview then moves on to drugs. Dean says he supports the use of medicinal marijuana for some afflictions but not others, but "I don't like legalizing medicinal marijuana by referenda." Dean thinks "substance abuse problems should be medically fixed, instead of put into the judicial system." And: "Look. I don't think drugs are good, period, and that includes alcohol and tobacco." This is a couple of paragraphs after Dean, arguing that "the counterculture of the Sixties was much exaggerated" said, "I think beer was still the drug of choice. It was for me." I wish Governor Dean luck out there on the stump when he tells all those folks that drinking beer is as bad as smoking pot. And medically, he may even be on to something, but I think it's indicative of the cultural divide between Dean and most Americans.]

Q: What do you think of the performance of the news media? Are they doing a good job covering your campaign?

A: I have no personal complaints about the media. But I think the media's got a big problem in this country, and I think they're partly responsible for the decreasing spirit of democracy in America.

Q: They seem to trvialize the candidates...

A: I agree.

Q: ...which diminishes people's respect for the process.

[Again, who's being interviewed here? Are these questions? And I love when media outlets report on "the media" as if it's something they're not a part of.]

Q: Aside from Al Sharpton, you're the only Democratic candidate who's trying to make race an issue in this campaign. Why is this issue so important to you?

A: Because it's about social justice, and social justice is important to me. Race is a big problem in this country, and nobody wants to talk about it anymore. I am appalled by the generation younger than me that doesn't know anything about race in this country -- particularly white folks. I'm amazed.

[I'm appalled and amazed too. I'm not going to track down the links tonight, but the claim that Howard Dean is the only candidate willing to talk about race is simply demonstrably wrong. And I'm pretty sure this interview was conducted before Carol Mosley Braun dropped out, and I seem to remember her talking about race some. And shame on Dean for laying the blame on the "younger generation" which he also credits for much of his success. I look forward to all the coverage of Black History Month on Dean's website. If he thinks all these young folks need some learnin', he might as well do some teachin'. But overall, this attitude -- again, that Dean knows best -- is just ridiculous.]

Q: You have a reputation for having a temper, and I'm curious: What gets you pissed off?

A: Actually, not as much as most people say. . . . What makes me mad is people who don't tell the truth.

[Finally, something Howard Dean and I have in common.]

[The interview discusses Ralph Nader and Florida in 2000. I only mention this because Dean expresses concern about Diebold voting machines, and I think this is going to be a big mess this fall, regardless of the nominee.]

Q: What kind of person are you going to be in the White House? What do you bring, personally, to the job?

A: Somebody who likes to work hard, somebody who likes people, somebody with a scientific background -- so I have a very low tolerance for BS. . . .

[Didn't the authors just say that Dean didn't care if people liked him? Do you know anyone who "likes people" but don't care if they like him? And maybe we should cue the "You sit down!" rant from Iowa if we're discussing how much Dean likes people. And has anyone ever admitted having a high tolerance for BS? Just curious.]

[The authors go on to sort-of push Dean into calling his economic plan a "de facto tax hike," but it really just gives Dean a chance to say it isn't, and they don't fight too hard. When they say, "But you can't deny that you've been running your campaign from the left," Dean replies, "I totally deny that," and mentions his "financial record" and "record on guns, and things like that." I actually think Dean isn't as liberal as the RS folks seem to want to make him, but I don't know if a "de facto tax hike" is exactly a conservative position. Also, wasn't Dean the one who said he wasn't going to be talking about "guns, God, and gays" in this campaign? I guess that means unless it makes him look like a centrist.]

Q: Gangsta rap, video-game violence, Paris Hilton -- is pop culture spinning out of control?

A: [Paraphrasing, "every generation thinks the next one is out of control."]. . . . There was a comedian who was white and straight at an event that I did who made homophobic and racist remarks. I was shocked -- I couldn't believe it. And I said so. When I got out there, I thanked the crowd for coming, but I said, "This is not the kind of stuff that this campaign is all about, and we don't appreciate that kind of humor."

Q: Have you ever listend to Eminem?

A: Yeah. I don't like Eminem much. My kids like him, but I don't.

Q: Is that an example of going too far?

A: It's not for me to judge what goes too far. . . .

[Didn't he just say that comedian went too far? Isn't that judging? Dean goes on to say it's not "helpful to have characters smoke in the movies." Isn't that judging?]

Q: Who are some authors, thinkers, or poets who've informed your thinking?

A: [Dean cites David McCulloch's Truman as "the most important book I've read in the last ten years" and discusses a couple of other authors.] Oddly enough, Christianity has had a significant influence on me. Especially as I've gotten older, I have gained an enormous affinity for the teachings of Christ [particularly on the self-rigteousness of the Pharisees, and healing lepers and all].

[Two things here. I expect all the liberals who mocked George Bush in 2000 for citing Jesus Christ as his favorite philosopher to give Howard Dean the same treatment now. Second, I just love that "oddly enough." I'm not the most religious guy in the world, but even I don't think it's "odd" that people might be influenced by Christ.]

[Back to Dean's answer:] But I find, as I get older, that the basic tenets of religions are, in many ways -- what's the word I want to use? [Dean struggles to find the word "converging."] They converge in many ways, and they have common humanitarian values. And I think those values are important.

[Again, Dean feels compelled to state the obvious banality -- here, in essence, that he is pro-human. And I suppose you might be able to say that every religion is aimed, very very broadly, at making its believers better people, I think it goes way too far to say that the "tenets of religions" (presumably all of them) converge. Some do, but a lot don't. That's pretty much why most people pick one religion over the other ones, isn't it? And I think Dean would have a lot of trouble -- not just in the South, but in much of middle America -- if he tries to say something like "in the big picture, all religions are pretty much converging on the same point."]

Q: In broad strokes, what are we going to get when we vote for you?

[I think this is my favorite question. "When"?! Isn't it usually the candidate who says stuff like "when I'm President"? The answer here isn't even important; it's just Dean's stump speech wrap-up. But the question is pretty typical of the kind of searching inquiry Gov. Dean got in this hard-hitting interview.]

Anyway, that's my first attempt at fisking anything. I really don't think RS is emblematic of every media outlet, and I don't think Howard Dean is the typical Democrat. But put them in the same room, and it's five big pages of lunacy.

Pander Alert

2004-01-26T00:36:00.000-05:00

I saw this tragic story out of South Carolina. Six people died in a motel fire in Greenville. Several people jumped out of windows or climbed down bed sheets. One man jumped even though stairs were only a few feet away. Nobody used a fire extinguisher before the fire department showed up, and the building wasn't required to have sprinklers in the hallway.

This reminded me of an interesting story in Wired about a study of how people behave in situations like this (although I think the specific impetus was things like concert club fires and trampling at exits).

But I also note that next week the Democratic presidential candidates are scheduled to have a debate in Greenville. I dread the inevitable pandering. They have to mention it -- how could you not? Yes, this is a tragic event, and yes, perhaps the deaths could have been prevented. But it's probably too soon to say if or how that's so. I don't expect John Edwards to hand out his card, but he might well use this to segue into his standard line about how he spent twenty years defending people injured by heartless corporations like Comfort Inn. Maybe Howard Dean will call for tough federal sprinkler standards enforced by, I don't know, FEMA or somebody. Maybe John Kerry or Wesley Clark will say something really painful about "courage under fire."

At a minimum, I'm sure every candidate will try to one-up the others' expressions of sympathy. There will probably be more "moments of silence" than moments of debate. I haven't watched any of the Democratic debates, and don't plan to start with this one, but it will be interesting to see how they deal with this event. I am in no way trying to downplay or ridicule the tragedy these deaths are for the families of the victims. But I am perfectly willing to ridicule any Democratic candidate who tries to exploit this fire for political gain.

Where is Encyclopedia Brown When You Need Him?

2004-01-25T23:28:00.000-05:00

Mr. P had a post wondering if there is some uplifting story behind the invention of nail clippers. So that got me wondering: Just who did invent nail clippers?

According to this corporate promo, they were invented by a man named Chapel Carter in 1896. (The company was announcing that Mr. Carter's grandson had joined the company, making it "poised to become the dominant North American nail care provider.")

But, a vintage jewelry store in Georgia is selling a set of nail clippers dated 1894.

The plot thickens! The game is afoot!

Anyway, I may look into this if I can find some time. If anyone knows the answer, or knows how to search for patents from the 1890s, and can straighten this up, I'd appreciate it.

Another Admin Law Tidbit

2004-01-25T22:58:00.000-05:00

A week or so ago, I discussed a case that looks likely to end up before the Supreme Court, concerning how the Americans with Disabilities Act affects wheelchair-bound movie patrons at stadium-style theaters. In short, do the theaters have to provide merely an unobstructed view to people in wheelchairs (which the theaters could do by putting all the wheelchair-accessible seats up front), or do they have to provide sight lines similar to those enjoyed by other patrons (which would probably require a lot of work by a lot of theaters to make the upper portions of the "stadium" accessible to wheelchairs)?

Anyway, last week the Supreme Court decided another administrative law case, and I wanted to mention it briefly in case I needed a cite for an I-told-you-so later on. The case was Alaska Department of Environmental Conservation v. Environmental Protection Agency. For a nice summary, check out this one at SCOTUSblog (see also the links to news reports on the case in the next two posts after that one).

Very briefly, the case dealt with whether the EPA's interpretation of certain requirements of the Clean Air Act could trump state agency determinations that facilities were in compliance. The Act gives the state agencies the authority to make those determinations, but it also gives the EPA the authority to enforce the act, so when the EPA decided that the state agency had gotten it wrong, it stepped in. The facts of the case aren't important to this post, but they're interesting, so go ahead and read up on it, and I'll be here when you get back. The gist of the Court's decision was that the EPA had the authority based on its interpretation of the Clean Air Act.

The aspect of the decision that caught my eye focused on the level of deference courts owed to the EPA's interpretation. The majority said it wasn't due the highly deferential review called Chevron deference, because the agency interpretation wasn't a formal notice-and-comment rulemaking. Nevertheless, the majority said the EPA's stance was owed respect, and upheld it under the "arbitrary and capricious" standard (if the EPA wasn't crazy, it's permissible). The dissent argued that the majority had given the EPA too much deference despite saying it wasn't -- it was Chevron deference in all but name. (Hmm....Justice Ginsburg wrote the majority opinion, and the dissenters argued she did the same thing in her VMI decision, applying strict scrutiny review without calling it that....nothing else to say there, just noting it.)

I think a similar scenario could play out in the ADA/movie theater case. The theaters have been consistently arguing that the DOJ regs implementing the ADA aren't owed the deference most courts have been giving them. And it's true that they are somewhat informal and did not go through the formal rulemaking process. But so far, the Fifth Circuit is the only court that disagreed with the DOJ's interpretation of its own reg.

Well, like I said, the biggest reason for this post is to have something to link to when the Supreme Court finally decides the movie theater case. It wouldn't surprise me to see a cite to AEDC v. EPA for the standard of deference owed to the agency interpretation. Of course, these cases are pretty complicated, and I may be missing something. For example, the Clean Air Act gives some power to state agencies and sets up an interplay between the states and the feds -- this really isn't present in the ADA. And the way in which the agencies acted is different. But, if this case is a sign that the Supreme Court will be pretty deferential to agency interpretations of statutes under their purview, it's probably a good sign for wheelchair-bound moviegoers.

And of course, if the Supreme Court goes the other way and somebody wants to cite this as an I-told-you-NOT-so, I'll just delete it and pretend it never happened.

The Best Ever?!?

2004-01-23T14:19:00.000-05:00

This story notes that NBC will no longer run an ad calling "Friends" the "best comedy ever." Most of the story focuses on Kelsey Grammer being miffed at the "Fraiser" dis, but I liked this nugget from CBS chief Les Moonves:

The people who did "All in the Family" and "M*A*S*H" and "Mary Tyler Moore" and "I Love Lucy" and "The Honeymooners" and "Cheers" and "Seinfeld" and "Everybody Loves Raymond," all those shows, may have a little bit of a problem with that claim.

OK, leave aside the fact that "The Simpsons" didn't make his list, which is just wrong. But "Raymond"?!? Come on! I like "Raymond" fine, and I know Moonves wants to talk up the CBS comedy keystone (and note that almost all the other shows he cites were CBS shows, too). But "Raymond" among the eight best comedies ever? That's just crazy talk.

Posner on Internationalism

2004-01-23T14:09:00.000-05:00

I saw something interesting yesterday. Sometimes when I'm in the library, my eye catches something on the spines of the Federal Reporters. (Note to non-lawyers: the Federal Reporters are a collection of judicial decisions. They also sometimes include transcripts of ceremonies like courthouse dedications, portrait unveilings, memorial services, etc. These are listed on the spine of the volume.) Anyway, I read the report from Seventh Circuit Judge Diane Wood's 1995 investiture ceremony, located at the beginning of volume 72 of the Federal Reporter, 3d series.

Judge Wood had a very strong background in international law before her appointment. In introducing her, then-Chief Judge Richard Posner had the following to say, which I found interesting given recent controversy over the Supreme Court's citation of foreign law in the Atkins and Lawrence cases:

Now, you may say: But the Seventh Circuit, snugly situated in the very heart of the American Continent, has very little foreign business. It's true that we don't have many international cases, though we have had some, including one of the largest, the oil spill by the Amoco Cadiz off the coast of France. We even had one involving Idi Amin's doctor. But we need an international perspective, not only because the world is becoming increasingly integrated, but because the problems of the American legal system cannot be solved without borrowing from the experiences of foreign nations. We risk provincialism if we consider only nativist responses to our problems. The awareness of how differently similar problems are dealt with abroad may defend us from that provincialism, may insulate us from the complacent belief that our answers are the best or the only ones, and may encourage that skepticism and anti-dogmatism that are the defining trait of our greatest judges.

I can hear the Feddies now: "You say 'provincialism' like it's a bad thing!" And I'm not arguing that everything Posner says is pure gold everyone should obey. I'm not really arguing anything. I guess I just wanted to point out this interesting perspective, and also note that it was a matter of debate well before Atkins and Lawrence.

Also, reading these pefatory ceremonies in the reporters is a nice way to waste time because it looks like you're reading cases. The portrait unveilings are always fun because judges like to joke about "getting hung." You get to read fun stories about judges and see them speak in a fairly candid manner sometimes. The worst are the ones where a judge has an axe to grind, or acts at an investiture that he or she was destined for the lifetime appointment, and could barely stand to suffer the fools who only now realized his or her brilliance. (It happens plenty.) One of the judges on the court for which I work commented to me once that "A person who thinks it's his destiny to be a federal judge probably isn't the kind of person we want in the judiciary anyway." Hear, hear.

Yee-aaaaaaaah!

2004-01-23T08:43:00.000-05:00

I missed the Democratic debate last night. Fortunately, Jeremy Blachman over at En Banc read the transcript and has posted his commentary here. My favorite line comes from Al Sharpton: "I wanted to say to Governor Dean, don't be hard on yourself about hooting and hollering. If I had spent the money you did and got 18 percent, I'd still be in Iowa hooting and hollering." Amen, Reverend.

Lamentation

2004-01-22T23:42:00.000-05:00

I haven't been blogging too much recently. Part of that is because I have been extra busy at work, but I have a story to tell about another reason. But first, two asides.

1. This story is about a woman, and since I'm all about anonymity, I'll give her the pseudonym Kate. The reason for giving her that name is that this story is about regret, even though I'm the kind of guy who usually just swims along and doesn't worry too much about things I can't change. But a girl I knew in high school named Kate is the source of one of my biggest regrets. She was a really cool girl, and I liked her a lot. I got the sense that she liked me (I got that sense a lot in high school, but this time it was justified), and I asked her out. We went to see The Last of the Mohicans. I had a great time....and I never asked her out again. Instead I got back together with the girl I dated most of the way through high school and into college. (Aside within an aside: Even though her name is Angie, the song that reminds me most of her is not the Rolling Stones' Angie but Led Zeppelin's Tangerine.) Angie dumped me in a most vicious manner some time later, and I always regretted not asking Kate out on a second date. Kate, if you're reading this, give me another chance! Anyway, that's why I'm using the pseudonym Kate for this story.

2. "Love" is the worst word in the English language. But that's a-whole-nother post.

OK, so this is what happened.

When I get all cynical about love when I'm talking to my friends (all of whom seem to be in relationships despite not being nearly as cool as me), I sometimes point out that it has been so long since my last real date that it's easier at this point to measure not in months or even years but decades. So, long story short (too late! -- ed.), I was in an online chat room. Don't worry, it wasn't devoted to some freaky sex topic (work safe, and funny when taken out of context). It was one of these regional things. I was hoping maybe to meet a girl in the area.

Well, anyway, this girl (Kate) sends me a message and we get to chatting. And we really hit it off -- we chatted for hours. She's getting her master's degree in Public Administration (a wonk! what luck!), she's witty and cute and very into politics (Democrat!), and even liked talking to your humble author. In short, after talking with her a lot over the course of a few weeks, I decided that Kate had just about every quality I was looking for in a woman except one big one: proximity.

For you see, Gentle Reader, Kate does not live near me. She has friends here and will probably eventually pursue a career here and she doesn't like chatting with the folks from her region who go to that chat host. In fact, Kate lives about 1000 freaking miles from me. But, as luck/fate/whatever would have it, she lives about four hours away from the city where I will be moving in August to start my next job.

Let's just pause a moment to take this in. Here I was, the proverbial needle-hunter in the Haystack chat room, looking for a smart, funny, cute, cool woman -- and I found one! As my mountain forebears would say, Even a blind hog finds an acorn sometimes. Well, soooiee! And even though she didn't live anywhere near me, she did live fairly close to where I'm moving. I was actually starting to believe in all those treacly aphorisms about how it's all about destiny or fate or how "it happens when you're not looking" or all those others I just loathe most of the time. But how else to explain it?

Anyway, I really like her; she's great. And I've never hit it off so well with someone when starting from scratch. So, after a lot more talking, we started talking about meeting in person. At first we considered her spring break week. But I don't think either one of us wanted to wait until then, and eventually I suggested coming down the weekend before Presidents' Day (I have the holiday off anyway). I knew I was going to have to make a trip or three to my future home to scout out living quarters, so the plan was to spend a few days there doing that, and then drive to Kate's city for, well, a date.

Being a guy, and a zealously single one at that, I hadn't looked at the calendar or thought about another certain February holiday before making this suggestion, but Kate knew: "You're going to be here on Valentine's Day?!?" When Fitz heard that I floated this trial balloon, he went into "Danger, Will Robinson!" mode. But it turned out okay -- she thought it was a good idea, and she started planning all the things we could do with a day to kill in her city.

But I guess I can't handle success or something. I should have been making preparations like buying plane tickets and making hotel reservations. And I should have been getting excited about having a first date with such a great person on Valentine's Day, of all days (even though I knew I was going to get gouged on flowers).

We hadn't had a chance to talk in a few days, and I had been doing a lot of thinking. And then tonight when she called, she asked me if I had bought the plane tickets yet. And at that moment, I held it all in my hands...and I let it go. My natural tendency is to overthink, overrationalize, overanalyze, and overtalk everything. (Exhibit A: this post.) But tonight, to my credit I think, I didn't. I gave it to her straight: I don't want to be in a long-distance relationship. The absolute best-case scenario I could map out had us meeting in person maybe four times in the next eight months. After that, she will probably live close to where I am now, and I will live close to where she is now. An Alanis Morissette song comes to mind.

When it came down to it, I couldn't pull the trigger. I guess I'm looking for something more -- or at least different -- than a bunch of phone calls and seeing each other every two months. And the crazy thing is that I still really like her. If she lived in the same city as me -- hell, the same state! -- I would probably already be thinking of her as my girlfriend, in a sense. I certainly wouldn't be looking for other women. But then again, we probably would have had a few dates by now. And I liked her even more for how cool she was tonight about all this. I wasn't expecting sobbing hysterics, but I was expecting a little more "Huh?" and a little less "Ah." She seemed to understand my point of view.

The thing she said that really tore me up was, after I said I was looking for more than seeing her just a handful of times in the next year, "I guess I was just looking at it differently." She was totally willing to take a big gamble that something special might come of this. She knew that, after my year in her home state (I have a clerkship lined up there), I will probably come back to this area. I think she saw it as a year and a half of hassle, after which we would be in the same place finally.

I don't want you to think she was already picking out china patterns or anything; it wasn't like that. It was more that she was willing to be optimistic about our chances. My position is that it's easier to maintain a long-distance relationship that started out with the pair together than to begin a long-distance relationship in the hopes that eventually the distance won't be quite so vast. At that point she called me a "realist." To which I replied, "Maybe so. But people like you are the ones who find love, and people like me die alone." So, we promised to keep in touch periodically, and she encouraged me to seek her counsel once I move to her home state. Who knows if any of that will happen.

Yeah, I'm upset about this. To the extent that you could call it a "breakup," it hurts. I was surprised at how much of an emotional investment I was able to make based on several (dozen) three-hour phone calls. But what I'm most bothered by is the haunting specter of regret. Leaving aside the dreadful possibility that it's been so long that now I'm completely gun-shy towards women ("The horror! The horror!"), I'm worried that this will turn into another wound like Kate from high school. After all, what are the chances that I will have four dates with someone as cool as pseudo-Kate in the next eight months? (Although, to be fair, I won't have to fly 1000 miles for them if they happen, so I got that going for me, which is nice.)

So I go looking for some inspiring words to help me out and I find:
"I see it all perfectly; there are two possible situations--one can either do this or that. My honest opinion and my friendly advice is this: do it or do not do it--you will regret both."
--Soren Kierkegaard

*sigh*

Anyway, all those long phone calls were a big reason I haven't been doing much blogging lately. Sorry if this was even more off-topic than our usual off-topic posts. (we have a topic? -- ed.) But as I've often said, this blog really started as emails among friends, and this is the kind of stuff I would have forced them to listen to. So, new friends, welcome aboard the crazy train. Tomorrow we will return to our regular programming.

I am no longer confused by Wesley Clark

2004-01-22T14:05:00.000-05:00

Alternative post title: "F.U.? F.U.? It took me thirty minutes to realize that 'F.U.' meant Felix Unger!"

Michael Hastings has posted an article over at Slate on my least favorite Democratic presidential candidate. In the article, Hastings raises the question of whether Wesley Clark has ever seen Michael Moore's Bowling for Columbine (note to readers: you can find a link to it without my help). The season's political odd couple, according to Hastings, is "the union of the Silver Star winner and the self-described peacenik."

Moore is an idiot. I could explain that in more detail, but I don't really feel it is necessary. And Moore's idiocy is not my point here. I write this post to again point out to the BTQ audience that Wesley Clark is either: (1) an idiot or (2) crazy. And he did not get a section 8 discharge so my money is finally on choice number 1. There. I have said it. No more dancing around the issue trying to remain balanced and trying to avoid the word "idiot."

What compels me to conclude that Wes Clark is an idiot? Well, for now let's focus on Hastings's article. To begin with, Clark accepted the endorsement of Michael Moore, whom Clark described as "a fantastic leader" and an "enormous talent." That is bad enough. But once you understand that, in his movie Bowling for Columbine, Moore blames NATO's bombing campaign in Kosovo - thus implicitly blaming the then commander of NATO General Clark - for the Columbine shootings, you really must question Clark's sanity and/or intelligence.

Most candidates, even Dennis Kucinich, would balk at the idea of accepting the endorsement of someone who accused the candidate of fomenting murder. Does it bother Wesley Clark? Nah. According to a campaign aide, he 'doesn't "pre-screen the views" of all who support him.' In principle I understand that a candidate and his supporters need not see eye-to-eye on all issues. But perhaps when the supporter thinks you are a murderer you might consider kindly declining the offer of an endorsement.

With the lack of a screening process and an absence of good judgment, I wonder which other "fantastic leaders" and "enormous talents" we should expect to endorse the Clark campaign in the coming weeks? I am leaning toward Kim Jong Il, Britney Spears (Madonna has already endorsed him), and Slobodan Milosevic.

Candidate Clark, you have fooled some people so far, but with BTQ as my soapbox I will continue to spread the word that you are an idiot - Rhodes scholar or not. And if you make it to the Virginia primary mine is one vote you will not be getting. I know, I know, you would like my endorsement even though we don't see eye-to-eye. Fortunately, I do have a screening process.

The alternative post title is a line from Neil Simon's The Odd Couple which came to me after reading Mr. Hasting's description of Moore and Clark as the season's political odd couple.

Is She Talking About Us?

2004-01-22T11:44:00.000-05:00

Via Larry Solum's indispensible Legal Theory Blog, I see that Professor Barbara Fried of Stanford has a new article called Begging the Question With Style. I can only understand it well enough to know that it is not about BTQ. (It is actually an analysis of Robert Nozick's Anarchy, State and Utopia if you're that interested.)

Still, it's a nice title. How many other blogs find their names showing up in academic literature? Yeah, we rock. Oh, pardon me -- we rock with style.

Santa Claus Conquers the Martians

2004-01-22T11:21:00.000-05:00

Here is a good example of how busy I have been. Last week I missed this humorous Jack Balkin post titled "Top Ten Reasons Why Bush Wants to Go to Mars."

My favorite: President thinks it would be really cool to dress up in space suit and shout "Mission Accomplished!"

I just had an image of the wackiness that might ensue: "Jinx put Bush in space!" (All right, that's a pretty obscure reference, but I think that's an underappreciated movie.)

As you may suspect by now, all I'm really doing here is posting on something -- anything -- instead of working. And I find it more entertaining than discussing etiquette and revolving doors.

I am confused by Wesley Clark and scared by the fact that people actually support his candidacy

2004-01-21T10:42:00.000-05:00

My apologies for the boring post title.

It boggles the mind that Wesley Clark has any kind of serious support. His little display on CNN Monday night just confirmed that for me.

I can hardly bring myself to check National Review Online's The Corner more than once a day. The quality of the content (I know, I know, "Hello Teapot, my name is Kettle") has been in steady decline since I began checking the site. The Corner's zenith was probably sometime around March - May of last year during the Iraq war. Anyway, on my one check through there yesterday I found a link to CNN's transcript of an exchange between former Senator Bob Dole and former general Wesley Clark on the Larry King Show on Monday night. It is too bad I cannot get an audio file of this, because Dole was masterful and Clark was shrill, self-centered, and not-ready-for-prime-time. Here is a little taste of what transpired:

DOLE: No, I think, you know, it's a tough -- you indicated it's a tough business you're in. Looking at it from my perspective, it seemed to me that John Kerry is a big winner tonight, not just in Iowa but also New Hampshire. I know you can't worry about Kerry's campaign but just as an observer I think he's going to benefit a great deal in New Hampshire. Somebody has to lose. Now, of course, you don't want it to be you but I think it may be you.

CLARK: Senator, let's be honest about this thing. The American people want a change in leadership. They're looking for a candidate that can lead on all of the issues. I'm the only person in this race who has ever done foreign policy and I know all of the domestic issues, too. It's one thing to talk about it, but if you think of foreign policy it's like major league baseball. I'm the only person who has ever played it and I pitch a 95 mile an hour fastball. I've negotiated peace agreements, I've won a war. I'm prepared to help the country that's why I'm running. I'm not worried about John Kerry or anybody else.

DOLE: We're not -- we're discussing here as friends but I think just politically you just became a colonel instead of a general...

CLARK: Well, I don't think that's at all -- Senator, with all due respect, he's a lieutenant and I'm a general. You got to get your facts on this. He was a lieutenant in Vietnam. I've done all of the big leadership. I respect John Kerry and I like him but what I'm going to say it's up to the voters of New Hampshire, South Carolina, New Mexico, Arizona, Oklahoma, all across this country, and that's what democracy is about. It's your job to handicap the race. It's my job to go out here and do the best thing I can do for the United States of America and that's what I'm going to do.

DOLE: And I certainly wish you luck. I'm not being critical. I'm just being realistic. I've been there and I lost, of course, which is a lot more fun winning but...

CLARK: Well, I'll tell you what, I've been in a lot of tough positions in my life, one of them was leading the operation in Kosovo where I not only had to hold alliance but I had to worry about the Pentagon behind me. I'm looking forward to New Hampshire.

KING: General Clark, we'll see you next week. And Senator Dole just announced his support for you.

DOLE: In Kosovo, he had my support in Kosovo.

Score one for the Viagra spokesman - he laid the smack down on Clark. And more to the point, he was right. Kerry's win in Iowa really does make him the presumptive favorite in New Hampshire now. Clark failed to realize that - all Clark could do was huff and puff about Kosovo (which I still do not believe was a victory) and outranking Kerry. He was one step away from screaming "Look at me ! I am a general! I was a Rhodes Scholar! That means you have to vote for me! Me me me me me me!" (insert H-bomb's caucus night primal scream here)

I don't want to believe that the guy is crazy. For now, I will chalk it up to being really dense or so sensitive about comparisons between his military career and John Kerry's that he could not distinguish analogy from reality. That is still pretty discouraging. But then I look at his platform and I am even more discouraged (and more inclined to go with "Clark is crazy" over "Clark is really dense"). On domestic policy grounds he has not given me anything to get excited about except "I know all of the domestic issues" (Really? I know them too, but that does not mean I understand them or that I have a plan for them, or that my plans are superior to my adversaries' plans) and an abortion stance that only Jack Kevorkian could embrace. He says he wouldn't use litmus tests in deciding which candidates he would nominate to the federal bench, then in the same interview tells us that he would never appoint a pro-life judge. Regarding the war on terrorism he promised us that he would have captured Osama years ago and that he would have prevented the September 11th attacks AND would never let another major terrorist attack occur in the U.S.!* Prior to the Iraq war he gave us perhaps the most persuasive case for war and then renounced it (then didn't, then did again) once he became a candidate. And you want to be my latex salesman? To borrow a phrase from Jerry Seinfeld, "I don't think so."

What scares me most about Clark is that several of my moderate and conservative friends are actually considering voting for this guy if he becomes the Democratic nominee because they just love a man in uniform.

*Note to candidate Clark: I promised chocolate milk everyday in the cafeteria, bumper cars on the playground, and jets to fly us to school when I ran for fifth-grade class president in 1985. I learned the hard way that wild promises about things you have absolutely no ability to deliver do not win elections - even when you only have to convince a bunch of fifth graders.

EDIT: Although the Corner is in danger of losing me as a faithful reader, Don Luskin and his Krugman Truth Squad will not lose me. I love the KTS!

Kudos to Two I Emulate

2004-01-20T13:46:00.000-05:00

Two of my favorite blogs are celebrating their one-year anniversaries this week. Steve Minor's Southwest Virginia Law Blog and Eric Muller's Is That Legal? have both reached a milestone that I suppose marks them as old hands in this new medium. There are other blogs that get more traffic, but these two are as good as any out there.

Minor is a lawyer for a firm in the border town of Bristol, and Muller is a professor at North Carolina. I have some ties in my past to both regions, and it's nice to hear about what's going on in the old stomping grounds. But both authors discuss all sorts of issues, and I think both are worth reading even if you don't care about what the Virginia Supreme Court is up to or whether Chapel Hill is going to punish red-light runners civilly or criminally.

I won't go on and on, and I won't comment on every anniversary of every blog I enjoy reading. But I've been doing this for a couple of months now, and I hope that a year after I started, I can be as good at it as Minor and Muller are at what they do.

Free advice for "Comeback" Kerry

2004-01-20T09:38:00.000-05:00

Now that "Comeback" Kerry has reestablished his frontrunner status with a solid win in the Iowa caucuses he must turn to New Hampshire and a new contender: former-general-turned-politician Wesley Clark. Kerry and Clark focus their campaigns around a similar theme: my record as a war hero gives me the national security credentials to go head-to-head with President Bush. The advantage here goes to Clark, though, because his experience is more recent (the "victory" in the Kosovo campaign) and because he was a general (and the job of a general, according to Postmaster General Henry Atkins, is "to by God get things done"). Clark also has the advantage of having devoted the last several weeks to New Hampshire while the other major candidates focused on Iowa.

But Clark has a serious problem in that he cannot make up his mind about where he stands on the war in Iraq. Candidate Clark has been all over the map, from supporting the war to being strongly opposed to it. But General Clark was not all over the map. Here are some excerpts (via Drudge and WaPo) of his testimony before the House Armed Services Committee about 18 months prior to the invasion of Iraq:

There's no requirement to have any doctrine here. I mean this is simply a longstanding right of the United States and other nations to take the actions they deem necessary in their self defense.

***

Every president has deployed forces as necessary to take action. He's done so without multilateral support if necessary. He's done so in advance of conflict if necessary. In my experience, I was the commander of the European forces in NATO. When we took action in Kosovo, we did not have United Nations approval to do this and we did so in a way that was designed to preempt Serb ethnic cleansing and regional destabilization there. There were some people who didn't agree with that decision. The United Nations was not able to agree to support it with a resolution.

***

There's no question that Saddam Hussein is a threat... Yes, he has chemical and biological weapons. He's had those for a long time. But the United States right now is on a very much different defensive posture than we were before September 11th of 2001... He is, as far as we know, actively pursuing nuclear capabilities, though he doesn't have nuclear warheads yet. If he were to acquire nuclear weapons, I think our friends in the region would face greatly increased risks as would we.

***

And, I want to underscore that I think the United States should not categorize this action as preemptive. Preemptive and that doctrine has nothing whatsoever to do with this problem. As Richard Perle so eloquently pointed out, this is a problem that's longstanding. It's been a decade in the making. It needs to be dealt with and the clock is ticking on this.

***

I think there's no question that, even though we may not have the evidence as Richard [Perle] says, that there have been such contacts [between Iraq and al Qaeda]. It's normal. It's natural. These are a lot of bad actors in the same region together. They are going to bump into each other. They are going to exchange information. They're going to feel each other out and see whether there are opportunities to cooperate. That's inevitable in this region, and I think it's clear that regardless of whether or not such evidence is produced of these connections that Saddam Hussein is a threat.

Wow. General Clark's testimony before Congress was one of the most eloquent presentations of the Administration's case for war - better than anything the President ever said, and better even than Colin Powell's presentation to the UN. So how will he reconcile his testimony with his current anti-war position? I am curious to see how he spins it because I only see two options for him: (1) admit he lied before Congress or (2) accuse the Administration, the Pentagon, and the CIA of deceiving him and using him to present false information to Congress. What attractive choices!

Here is the real point of this post though: I am curious to see how "Comeback" Kerry spins this, because I think the situation offers him an opportunity to torpedo the Clark campaign. Kerry has an opportunity to complete his "Clark is really a Republican" message by telling the voters that he voted for the war in part based on information provided to Congress by General Clark! Granted, Clark testified before the House not the Senate, but that is not an obstacle to Kerry's presenting Clark as in cahoots with the Administration in leading America into an unnecessary war. I think there is potential to deal serious damage to Clark by portraying Clark and President Bush and the neo-cons as the persons responsible for Kerry's vote in favor of the war and his current anti-war position. Kerry can deflect all the criticism of his waffling by telling the voters that it was Clark who convinced him to vote for the war and tell them to ask Clark why he changed his tune.

I happen to think that this is a smart (if opportunistic) move that Kerry should make,* though I could be wrong. Milbarge doesn't think the Kerry campaign is smart enough to come up with this on their own and I am sure plenty of people could explain to me why this would not work. So here is your chance. Tell me why Kerry should not lay the blame for his Iraq war vote on General Clark.

*Understand that I don't happen to think that Kerry's anti-war stance is the correct one, nor do I think it would be absolutely truthful for him to blame Clark for his pro-war vote. I think Joe Lieberman, and to a lesser extent Dick Gephardt, have taken the correct positions on the Iraq war. But this post is not about who is right and who is wrong. The strategy I propose above is about primary politics (like telling Iowans that you favor ethanol subsidies) and in no way should be construed as an endorsement of Kerry's position on the war.

Thank you, Dick

2004-01-20T08:34:00.000-05:00

Alternative post title: Iowans prefer the F-bomb to the H-bomb by 2 to 1 margin

So John Kerry, John Edwards, and Howard Dean all claimed victory in the Iowa caucuses (big surprise), while Dick Gephardt reportedly will announce today that his candidacy is over. That is too bad, because Gephardt, for all his pro-union flaws, has been fairly consistent in his position on the war in Iraq and he had the courage to vote for the $87 billion to finance Iraqi reconstruction. I am not saying I would have wanted to see a President Gephardt (egads!), but I would like to have seen him stay in the race a little longer.

Now, I am not sure how finishing a distant third in Iowa constitutes a victory for frontrunner Dean (hereinafter "H-bomb") -- Sen. Harkin summed it up this way at the H-bomb 'victory' rally, "Iowa has traditionally written three tickets out of here and we are on that ticket!" Praise the Lord and pass the ammunition, that was a rousing victory speech if ever I heard one! What I am sure of is that the Democratic party owes a debt of thanks to Dick Gephardt for knocking H-bomb out of contention at the expense of his own campaign. Gephardt's attack ads hurt H-bomb even among his "hardcore" supporters (query how hardcore they really were if they abandoned ship after seeing a couple of TV spots). Joe Trippi absolved the H-bomb campaign (aka himself) of any blame for the abysmal third-place finish and blamed it all on Gephardt going negative. For now I'll put aside any comments about Trippi washing his hands of failure and just congratulate Gephardt on doing what was right for the party and the country. H-bomb has absolutely no chance of beating President Bush and the sooner the angry left figures that out and rejects him in favor of a candidate who can offer some competition the better. The last thing we need in this country is for President Bush to breeze past the finish line in November without Karl Rove even breaking a sweat. The Dems need to offer a candidate who will force President Bush to earn his victory -- it is simply better for the Republic. H-bomb is not the guy who can do that and I am thankful that Gephardt convinced Iowans of that fact. Hopefully the voters in New Hampshire were paying attention last night.

This Never Would Have Happened If We'd Gone To Macon, Georgia

2004-01-18T16:26:00.000-05:00

Today's Random Thoughts:

1. Today's lyrics in my head:
"But anyone who ever had a heart,
They wouldn't turn around and break it.
And anyone who ever played a part,
They wouldn't turn around and hate it."
--Velvet Underground, Sweet Jane

"And she was lying in the grass,
And she could hear the highway breathing."
--Talking Heads, And She Was

Thank you, VH1 Classic. (Motto: More mullets per capita than any other channel on television.)

2. I don't know if Howard and Mr. P are "Eggles" fans, but I'm predicting a Panthers upset today. By the way, speaking of conference championship football games, I don't really care who wins, but I know some people who do. The folks in Tennessee still love Peyton Manning so much, the Indianapolis Colts' radio network includes stations in towns and cities all over Indiana, plus one in northeast Tennessee near Knoxville. He is still their fair-haired golden boy. (Thinking of Knoxville always reminds me of my favorite Simpsons episode, which includes the chant "Knoxville! Knoxville! Knoxville!" and provided the title of this post.)

3. I saw that the Kevin Costner/Robert Duvall movie Open Range is coming out on DVD this week. I saw it in the theater with Fitz-Hume, and I liked it. It has some flaws, but if you like westerns, you should see it. I hope it doesn't give anything away to let you know that the climax of the film involves a gunfight, but I thought it was very well done.

4. Why is it that pizza delivery guys never freaking ever have a pen?

5. I know I'm late coming to this bandwagon, but Curb Your Enthusiasm is a darn funny show. In this season's opener, Larry reminded his wife of her promise to him just before they married ten years ago: If they made it ten years, he could sleep with another woman. Now she has practically challenged him to do it if he thinks he can get another woman. I predict much hilarity. I'm not saying I'm looking for a similar promise in my pre-nup, but it reminds me....

6. After vacillating a bit, I finally filled out a profile on Match.com, complete with picture and interests and the whole shebang. (At first, I typed Math.com, which I suspect is a much less successful dating site.) I did that last night, and it's already been viewed twice, although for all I know that was by the staff to make sure I didn't use any "inappropriate language." Anyway, as an inside joke to any BTQ readers who stumble across it during a drunken game of "find the biggest loser," I said my favorite movie was Spies Like Us.

7. Today is my birthday. Please -- no congrats. All I did was not die for a year. One good thing about senility: Two grandmothers = three birthday cards. Sweet.

8. Here's something I've been thinking about. What is the best song whose the title does not appear in the lyrics? My nominee is The Who's Baba O'Riley. Led Zeppelin seemed to have a bunch of these: Bron-Y-Aur Stomp, Black Dog, and Over the Hills and Far Away come to mind. I'm sure I'm forgetting some really great songs, so let me know. The rules: instrumental songs don't count, of course; adding "The Ballad of" or "Blues" or "Theme" or "Song" to words that do appear in the lyrics doesn't count. Something like Bohemian Rhapsody by Queen or Bob Dylan's Subterranean Homesick Blues is probably okay. Anyway, feel free to chime in.

Goodbye, Judge Pickering. Hello, Judge Pickering

2004-01-16T15:42:00.000-05:00

From How Appealing, I see this new alert noting that President Bush has used a recess appointment to place Mississippi district court judge Charles Pickering on the Fifth Circuit. And, from Southern Appeal, here is a Fox News story.

I'm not against recess appointments generally, but I think this is a bad move. I seriously doubt that the GOP will pick up enough seats in the Senate this year to get a filibuster-proof majority, and if not, Pickering's tenure on the appeals court will end in short order when he is not confirmed by the Senate (unlike Roger Gregory on the Fourth Circuit, whom President Bush re-nominated after President Clinton used a recess appointment to put him on the bench). Plus, under most interpretations of the recess appointment power, Pickering would have to give up his district court seat once his time on the Fifth Circuit ends.

Of course, Pickering is in his mid-60s, and may decide that it's about time to retire anyway, in which case this would be a nice retirement present from the White House. But strategically, I think using the recess appointments this way will be characterized either as a usurpation of the Senate's role or as Bush throwing in the towel in the face of Democratic opposition. (Note: I'm not saying it deserves to be characterized that way, only that I think in the long run it's not going to look like the best course for the White House.)

Anyway, I'm sure there will be a lot of heated rhetoric (and maybe even some thoughtful commentary) on this soon, but I just wanted to mention it while it's fresh.

UPDATE, an hour later: Trent Lott's office, after Lott cast the only vote against the confirmation of Judge Gregory:

"This was an institutional decision based on a statement Senator Lott made last year that any approval of federal judges during the recess should be opposed," said Lott's spokesman Ron Bonjean. [found here]

I wonder if Lott feels the same way about Pickering now? Time will tell.

Keep An Eye On This Gun Case

2004-01-16T12:58:00.000-05:00

I'm a little surprised I haven't seen more commentary on this case, but maybe I haven't been looking in the right places. The other day, a federal district judge in Washington, D.C. upheld that city's gun ban. The decision is available here (68-page pdf), and here is Post summary.

The District of Columbia has what is essentially a total ban on legal gun ownership. It goes without saying that there is plenty of illegal gun ownership in the District. I can't provide a cite for this right now, but my understanding is that the ban is worded so broadly that it is illegal to carry a gun from one room in a house to another. Even for legally registered guns, trigger locks are required.

Anyway, several DC citizens sued over the law. The court found that all but one lacked standing to sue because they did not own guns nor had they sought to register one. The remaining one owed a shotgun and thus could maintain her suit. As to her, though, the court held that the Second Amendment does not apply to the District of Columbia, because that city is a unique unit of the federal government. If the purpose of the Second Amendment was to allow the states to maintain militias to protect themselves, the court reasoned, "there is no reason to believe that the First Congress thought that the federal seat of government needed to be protected from itself when the Second Amendment was adopted." Moreover, the Fourteenth Amendment (through which most of the other amendments in the Bill of Rights were incorporated against the states) does not apply to the District of Columbia. (As an alternative holding, the court held that the plaintiff would lose because she did not claim an association with a militia, relying on the Second Amendment's preamble and DC law regarding a volunteer militia.)

There was a minor buzz last month when the Supreme Court denied cert. in a Ninth Circuit case sticking by that court's precedent that the Second Amendment protects a collective, rather than an individual, right. That case is arguably in conflict with a Fifth Circuit case saying that the right is indeed an individual one. (I say "arguably" because I believe, as did a concurring judge, that this statement is mere dicta. The Fifth Circuit said that, even if the right to bear arms is individual, the restriction on that right at issue there would stand. Therefore, the statements on the scope of the Second Amendment were not strictly necessary to reach the decision.) The cert. denial in the Ninth Circuit case did not surprise me, because I think the Supreme Court would only take a case in which the scope of the Second Amendment right made a difference.

Some have suggested that a challenge to the DC gun ban would be that case. But the plaintiff here has several hurdles to overcome. A court would have to say that the Second Amendment applies to the District of Columbia, and the amendment protects an individual right, and it does not require a connection to the militia, and either that the right is absolute (not a chance) or the particular restriction she challenges goes too far. I am highly doubtful she will win on all of those counts. But if she does, I think it would have to be the biggest victory for gun-rights advocates ever.

I'm not going to get into my position on the Second Amendment here. I will just say that (1) I think the DC judge makes some good points on the incorporation issue, and (2) I don't think the preamble in the Second Amendment is superfluous. Anyway, I mainly just wanted to pass along word of this case. I am looking forward to seeing what the DC Circuit has to say. I guess they should have been asking Miguel Estrada about guns instead of abortion.

I Wouldn't Exactly Say I've Been Missing It, Bob

2004-01-16T11:44:00.000-05:00

Let me assure you that my plan is not to leave posts up front until you feel compelled to comment on them. Yesterday I played hooky from work and blogging. And so now it's Friday and I have a three-day weekend coming up, so everything is cool.

I'll have some real content up later, but a few random things to kill some time.

Via Mr. Poon, I saw the Classic Movie Test: Which Classic Movie Are You? I was Easy Rider and Fitz-Hume was Apocalypse Now. Mr. P was Raiders of the Lost Ark, which makes one wonder when they're coming out with the prequel Temple of Poon. Wait, uh, scratch that...I think they've already made a movie with that name.

In political news, the Iowa caucus now looks like a statistical dead heat between Dean, Gephardt, Kerry, and my boy Edwards. My prediction: All four of them will somehow manage to claim victory Monday.

Also, I was thinking about my "guilt bias" post while I was walking to work this morning. I had an addendum I wanted to add, but I liked the way I signed off on that one (with Frankfurter's quote) too much to add this below it. But anyway, in that post I suggested that it would be darn hard to find a "factually innocent" defendant with a Fourth Amendment issue because there wouldn't be a suppression claim unless the police had found something bad. Upon further reflection, I suppose there could be a case where the cops did a bad search that didn't turn up anything but somehow led to, say, a confession. There, the Fourth Amendment issue would be more of a "fruit of the poisonous tree" analysis. Still, defense attorneys who will only work for factually innocent defendants will probably go out of business.

Anyway, I just wanted to add that to my post below. I'll have some new stuff later.

Lyric in my head today: "She said she was working for the ABC News/ It was as much of the alphabet as she knew how to use."
--Elvis Costello, "Brilliant Mistake"

Also, does anyone think it's a coincidence that, mere days after I use a Van Morrison song as a template for a BTQ theme song, Howard makes a pun from a Van Morrison song in a post title? Not this guy. Still, Domino is a better song than Brown-Eyed Girl, so you win this round, Bashman! (Although I will note that my song fits the meter and "Guantanamo" doesn't work as well for "Domino.")

(Title of this post from the brilliant film Office Space.)

Down In Front!

2004-01-14T17:07:00.000-05:00

The big news at the Supreme Court this week was the argument in Tennessee v. Lane, a case pitting state sovereignty against rights under the Americans with Disabilities Act (ADA). If you can't find news on that case, you're not even trying, but Howard has about a million links over the last few days, including one to a good summary here and you may want to look here for one account of the argument and here for a quite different one. (And while I'm linking, check here and here and here and here). Anyway, there's plenty to read about elsewhere if you want. I won't get into all the details here, but my hope is that this case turns out more like Hibbs than Garrett. My prediction is a narrow win for Lane on as-applied grounds, and a muddle on the facial challenge. Confidence: medium to strong. I wouldn't rule out a Lawrence line-up redux, with Kennedy writing a broad holding on the facial challenge and O'Connor concurring urging an as-applied analysis. Confidence there: low.

Anyway, I wanted to mention another ADA issue that should soon find its way to the Supreme Court: wheelchair access to stadium-style movie theaters. This week the Supreme Court called for the views of the Solicitor General (CVSG) in a pending case raising that issue. For those unfamiliar with it, a CVSG is styled as an "invitation," but it is never refused. It usually comes up in cases involving the application of federal law but where the United States is not a party. (Sometimes it happens in constitutional cases coming from the state courts, or in other situations where the federal government has a big interest in the outcome, but I won't get into all that here.) This invitation means, at a minimum, that the Court is very interested in the Government's take on the case, and if the SG's Office recommends granting cert., it's a near-lock.

Back to the movies. Title III of the ADA prohibits discrimination against the disabled in places of public accommodation. It was passed by Congress in 1990. The Department of Justice has implemented regulations to govern compliance and enforcement. Obviously, Congress couldn't think of every possible circumstance requiring accommodation for the disabled, and stadium-style movie theaters are a perfect example. They didn't really even become popular until the mid-1990s. The DOJ reg governing them states in part that "Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public."

Lower courts have split over whether this language means that wheelchair-bound patrons have a right only to unobstructed sight lines, or to the wider range of sight lines and proximity to the screen enjoyed by other moviegoers. Most stadium-style theaters clump the wheelchair-accessible seating near the front, and one can only imagine the cost and difficulty necessary to build ramps or elevators or other means of wheelchair access to the upper tiers of the theater.

In all of the litigation, the United States has taken the position that the DOJ reg required comparable viewing angles for wheelchair seating and other seats. Plaintiffs presented scientific evidence showing that the viewing angles for most wheelchair areas can be quite uncomfortable, and moreover, wheelchair-bound patrons often cannot slump in their seats to correct for being too close to the screen. The plaintiffs won in the Ninth Circuit case now pending with the Court, and a more recent Sixth Circuit case brought by the Government itself. At least three district court cases (cited in the Sixth Circuit case) have adopted this reasoning too.

The theaters have countered that all they need to provide is an unobstructed view. Besides, lots of people choose to sit close to the screen, so it can't be that bad. The theater won in a Fifth Circuit case in 2000.

I think that based on a plain reading of the DOJ reg requires line-of-sight comparability and not just unobstruction comparability. But Judge Kleinfeld's dissent in the Ninth Circuit case is strong -- better than the Fifth Circuit decision. The nuts and bolts of the (eventual) Supreme Court decision is going to turn more on how much deference a court should give those DOJ regulations. (Without getting into a quagmire of administrative law, let me just say that some aspects of the implementation of the regs are odd and I think the deference decision will be complex.) Judge Kleinfeld's dissent is more about this process than the content of the reg. He argues that judicial decisions like that one suddenly make hundreds of theaters out of compliance, whereas if the proper process were adhered to, the results would be prospective and would be subject to public comment and then everybody would know what they need to do. The Sixth Circuit answered that the DOJ's practice was permissible and did not require formal notice-and-comment rulemaking.

Obviously, a major concern for administrative law cases should be administrability. The Sixth Circuit remanded the case back to the district court for compliance, and did not suggest how many new viewing angles for wheelchair seats would satisfy it. Likewise, the Ninth Circuit left that question unanswered. It approved of the DOJ guideline requiring sight lines "equivalent to or better than the viewing angles provided by 50 percent of the seats," which Judge Kleinfeld mocked: How can one subjective choice for a movie theater seat be "better" than another if one person likes to sit on the aisle to be able to get to the restroom and another chooses to sit in the middle of the aisle to avoid being stepped over by people going to the restroom? (not a quote, but that's the gist of it)

It will be interesting to read the SG's brief and see how the Government proposes to apply its reg to thousands of movie theaters. I think the theaters should lose based on the reg, but that whole "now what?" question is a gaping hole. I will try to remember to look for it, but if anyone sees the SG's brief once it is filed, please let me know. Thanks.

Guilt Bias

2004-01-14T12:42:00.000-05:00

Via Will at Crescat, I found this post on Professor Jim Leitzel's always-interesting Vice Squad blog. Both of them are concerned that a "guilty defendant bias" comes into play in Fourth Amendment cases, such as yesterday's Supreme Court opinion in Illinois v. Lidster upholding "information-gathering" traffic roadblocks.

Will nobly suggests a legal foundation dedicated to defending factually innocent Fourth Amendment clients. At least those folks have section 1983 to use, but I suppose my question is why would there be a Fourth Amendment/suppression issue in your case if you are factually innocent and the cops didn't find anything when they searched you?

That said, I have no doubt that "guilt bias" plays a role in lots of criminal cases, and not just in the Fourth Amendment context. I was talking just this week with another appeals court clerk about a sentencing issue in a case. It had to do with whether a certain predicate offence should have been counted in the defendant's criminal history. It has absolutely nothing to do with the offense of conviction, although if it counted, his sentence would be about twice as long. I didn't even know what the guy had done; I was only concerned about the sentencing issue. The other clerk said, "He was convicted of [something really horrible]." I replied, "And that's relevant how?" He allowed that, technically, it wasn't, and I know that much of this comes from his judge, who is always exhorting the clerks to focus on the facts of the case. But I have to suspect that the details of the horrible crime will be on the judge's mind when the judge thinks about what sentence the guy "deserves."

It reminds me of Walter Dellinger's story about how you can often know how a decision is going to end up just by reading the first line:

I was getting ready to argue the line-item veto case, which was scheduled as a special argument after the argument session was over. The Court was announcing a series of opinions which I was paying no attention to, because it was still May and none of the big opinions would come down. I heard the chief justice say, "Mr. Justice Stevens has the opinion in 96-1401, William Jefferson Clinton v. Paula Corbin Jones," which I had argued on behalf of the United States in January of that year.

And Justice Stevens began, "The case we resolve today involves a lawsuit against an individual who happens to be serving as president." I turned to my then-deputy solicitor general, Seth Waxman, and said, "Seth, we're dead." Only I probably used a more colorful phrase than dead.

You can always tell by that first sentence. If a criminal conviction is being affirmed, the oral presentation of the opinion begins, "It was a dark and stormy night when Sally Jones and her boyfriend were on a lonely road." If the opinion is being reversed, the conviction is being reversed, it always starts out, "From the time of the Magna Carta ..." So you know right off how it's going. [That whole article is great, by the way.]

Anyway, I agree with Will and Prof. Leitzel that the "guilt bias" phenomenon is probably more prevalent and more harmful in Fourth Amendment cases. And I can almost hear the resignation in Ken Lammers's voice when he concludes that "I no longer believe that you have rights if you choose to drive your car."

For one thing, as I noted above, Fourth Amendment issues only come up when the cops found something, so the defendant is virtually always guilty of some crime. Second, unlike a lot of trial errors (which can be called "harmless error"), winning a suppression is often a get-out-of-jail-free card. Unless the good faith exception saves it, a Fourth Amendment violation often takes away the only evidence the Government has. Case dismissed. So Fourth Amendment issues have more of a make-or-break quality than many others. In an appeal concerning trial error, sending it back for a new trial leaves the possibility that a defendant might be convicted again. But Fourth Amendment appeals give an appellate judge a pretty stark choice: uphold the search or let a guilty man go. And when the judge knows how many just-as-guilty folks will be subject to the same police action in the future, it must be very hard not to let a natural bias against guilty folks creep into the subconscious. So the bias is more prevalent there, but it's also more harmful, because all these guilty-defendant cases move the line for all of us, and pretty soon we're getting stopped on every block by "information-gathering" cops.

Having said all that, let me back off my cynicism just a tad. Much of this is undergirded by the judge's philosophy about our rights under the Fourth Amendment. I think a reasonable jurist could conclude that the Fourth Amendment gives or should give the police considerable leeway in fighting crime. With that mindset, what I'm calling the "guilt bias" isn't even subconscious or illegitimate -- it's a result that follows naturally from a belief that, whatever the purpose of the Fourth Amendment is, it isn't a tool to be used for wholesale emptying of the jails.

Ultimately, however, I have to agree with Ken that the courts are just out of touch with how the Fourth Amendment plays out in real world encounters between police and citizens. I think it's always worth remembering Justice Frankfurter's admonition that "It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting).

All Real! All Yours!

2004-01-12T21:04:00.000-05:00

My favorite feature on The Onion has long been "Pathetic Geek Stories." I love it even more than Dan Savage's advice column or the general hilarity on the main page.

Well, I just found out that PGS now has its own web site. If you're not familiar with Maria Schneider's drawings of readers' stories of embarrassment (usually from childhood), you should check it out. Even if you don't think you are or were a geek, you're probably wrong. Proof? Well, you're reading a freaking blog, for starters. Last month, I told the coolest person I know that I had started a blog, and her response was, "That's cool -- what's a blog?" But seriously, we all did some stupid stuff when we were stupid kids. I'm sure you'll be able to identify with some of these poor folks. Since I have repressed all my painfully geeky memories from my youth (the scenes from adulthood are all too close at hand), I'll have to ask my friends from back then about some of the dorky things I did. The sheer vastness of the blank space that should be junior high in my memory leads me to believe there were a lot of them.

Anyway, I'm really excited about a whole web site devoted to Pathetic Geek Stories. Check out the archive for the classics, and stop by the letters page for great stories Maria hasn't drawn for one reason or another. By the way, here is my all-time favorite. Enjoy!

Better Not Call Him "The Terminator"

2004-01-12T18:58:00.000-05:00

From the left coast comes this interesting story about how California Governor Arnold Schwarzenegger will soon be faced with some thorny death penalty issues. California, despite having the largest death row in the nation, has not executed anyone in nearly two years. The next execution is scheduled for February 10. The article notes that Schwarzenegger has been much more willing than his predecessors to grant parole, but no California governor has commuted a death sentence since Ronald Reagan in 1967 (when the national death penalty debate was much different).

The article suggests that Schwarzenegger has enough political capital -- and enough of a reputation as a moderate -- to get away with commuting a death sentence. The Governor has expressed support both for the death penalty and the executive's clemency power, so it will be interesting to see how he handles this one. One hopes he will put more thought into his decisions than former Texas Governor Bush did.

It seems paradoxical to say that a person's convention is to be unconventional, but Schwarzenegger has shown some typical independence and pragmatism so far on crime issues. In just a few months, he has granted parole to six murderers, something Gray Davis never did. He has also proposed closing some state prisons, sure to raise the ire of California's very powerful prison guard union. On the other hand, he has decided not to approve the wholesale release of nonviolent offenders.

Without undertaking a detailed study of all the issues, I have to give Schwarzenegger a reserved thumbs-up for having a fairly sensible approach to crime control issues. California never needed all the prisons built under the Wilson and Davis administrations, and this is even more true after the recent voter-approved proposition mandating treatment instead of incarceration for first-time non-violent/non-dealing drug offenders. Given the horrendous debacle that the California budget is (an issue I still think will sink Schwarzenegger), closing some prisons makes perfect sense. On the other hand, the political climate out there just wouldn't support the widespread release of thousands of prisoners. Schwarzenegger might, in turn, use that conserved political good will to take a bolder step, like granting clemency to Stan "Tookie" Williams, a founder of the Crips gang who has apparently reformed himself in prison.

I have been somewhat critical of Schwarzenegger in the past, so I thought I would also give him a little credit when I thought he did something right. Not perfect, but not bad. Now, let's see how that budget turns out.

I'm Incompetent, Please Give Me $25,000

2004-01-12T12:00:00.000-05:00

I don't like automobile ads generally. There's all that fine print and fast talking and promises that only come true if your credit is golden or you don't want any options, like seats. I hate they way they act like they are losing money because they are selling you the car at one dollar below factory invoice. I hate SUV ads mainly because I hate SUVs, but I have a special loathing for the Dodge Durango ads in which the wife tells her friend, "It's not too big, it's not too small...." Not too big? It's freakin' huge, lady. Not too small? If that beheamoth is too small, I think you need to be shopping for cargo planes. As Sideshow Bob would say, "Grrrrr."

But I digress. The ads I really, really can't stand are the ones in which the dealer laments that he or she has ordered too darn many fantastic cars, and the only solution is to give them away to the first lucky folks that set foot on the lot. I heard one this morning on the radio, and apparently this phenomenon is so common at this particular establishment that they have commissioned a jingle to memorialize the purchaser's stupidity. It goes, "Shame, shame shame! Shame on Jimmy!"

Here's a free tip from me to this dealer: Fire Jimmy.

Even assuming the manufacturer would agree to ship an order of cars radically above the number the dealer has ever sold in the past, and even assuming there is no remedy under the UCC or general contract law for a "scriverner's error" (say, writing on the order "2000" instead of "200"), I can't imagine any business hanging onto an employee who made such an error, much less writing a jingle about it and making it the centerpiece of your ad campaign.

The underlying message I get from these ads is "We're so stupid we can't even count. But notwithstanding this pretty basic deficiency on our part, we would like you to give us thousands of dollars and/or enter into a long-term lease agreement with us." I guess you have to take it on faith that you won't ever get a bill for $2990 when your monthly payment should be $299. Or that the odometer doesn't say 20000 when it really should say 200000.

Is there any other industry in which this would be an acceptable marketing ploy? "Hi, I'm the manager of your local McDonald's. We accidentally ordered more beef than our freezers can hold, so come on down and get it before it goes bad. Our prices are MAD!"

Anyway, that's my rant for today. At least so far.

Welcome to America...Now Get Out

2004-01-09T18:33:00.000-05:00

In light of the President's controversial immigration proposal, and last night's episode of ER, I was reminded of a Seventh Circuit case I saw last week, Oforji v. Ashcroft. Howard Bashman mentioned it here and called Judge Posner's concurring opinion (starting on page 16 of the 22-page pdf) a "must-read." I concur with Howard.

This is an immigration case, and I should say at the outset that what I know about immigration law could fit on a postage stamp. The facts are distressing but not terribly unusual. A Nigerian woman, Doris Oforji, sought asylum because she feared that her two U.S.-born daughters (aged 6 and 4) would be subject to "female circumcision" or "female genital mutilation" (FGM) if she took them to Nigeria upon her removal from the United States. (Oforji tried to enter the U.S. without proper documentation and was charged with "seeking to procure entry by fraud.") All the lower-level decision makers within the INS (now part of the DHS) denied her request for asylum, and in this opinion last week the Seventh Circuit affirmed. So, Oforji is faced with a pretty tough choice: leave her children here and cast them unto the welfare/foster care system or take them with her to Nigeria where they would probably face FGM.

I won't get into the issue of FGM here; Posner makes a point to note that we don't call male circumcision "mutilation." And, without trying to pass along knowledge I don't have, you should note that under certain circumstances, the threat of FGM can be enough to warrant asylum. Here, Oforji didn't meet the test, and you can read the opinion if you want to know why not.

Anyway, on to the part of the opinion that interested me most. Posner suggests that none of this would have been a problem if we didn't have a policy that granted U.S. citizenship to everyone born in the United States (known as "jus soli"). If these girls weren't citizens, they'd be a lot easier to shuttle off to Nigeria. (Again, I'm severely oversimplifying things, but at bottom we wouldn't be faced with the same tough choices in this case.)

According to Posner,

[t]his rule, though thought by some compelled by section 1 of the Fourteenth Amendment, which provides that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," and in any event codified in 8 U.S.C. § 1401(a), which provides that "the following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof," makes no sense.

Posner says we should "remove the incentive" of women to come to America to give birth by refusing to grant citizenship to their children. In his opinion, this would not be unconstitutional. I haven't taken the time to read the law review articles Posner cites in support of that proposition, but color me dubious.

Posner asserts that the Fourteenth Amendment doesn't mean what it seems to say because Congress has made exceptions to the rule in the past, for children of certain diplomats and visiting heads of state. Isn't an equally strong (if not stronger) argument that Congress's exception is itself unconstitutional, and the Fourteenth Amendment grants citizenship to whatever little Tony Blairs that happen to be born here? At best, this seems like a thin reed for Posner to cling to.

Posner goes on to express support for the passage of H.R. 1567, a bill that would "deny citizenship at birth to children born in the United States of parents who are not citizens or permanent resident aliens." Again, I don't think you have to be an immigration law expert to know that this bill has about as much chance of going over as a pregnant pole-vaulter (one of my brother's favorite phrases).

Hispanics are a large and growing voting bloc both parties are aiming for. What percentage of Hispanic voters are themselves children of illegal immigrants, or at least know such a person? Heck, what percentage of Americans know someone who fits that definition? If this bill actually makes it through Congress, George Bush might even christen his "veto" stamp on this one.

Randy Tunac, the author of immigration law blog The Manifest Border, who actually does know what he's talking about, notes that Posner is focusing on citizenship-mills and extreme cases like Yaser Hamdi to make his point. But he says nothing about the vast majority of citizens his proposal would affect. Tunac suggests the perfectly reasonable alternative of simply not granting tourist visas to women who are pregnant. This would eliminate most of the cases to which Posner refers. (Note also that Oforji was pregnant when she tried to enter the U.S.)

I'm not as fond of Tunac's other solution, which is to postpone the grant of citizenship for 14 years. If the kid lives here that long, he or she becomes a citizen and that citizenship reverts to the date of birth. Leaving aside the administrability concerns of trying to prove continuous residence and what to do about kids who die before age 14 (reminds me of a Rule Against Perpetuities hypo), that isn't what the Fourteenth Amendment says.

I'm no literalist, generally, but the citizenship clause is clear. Yes, as Posner points out, the Amendment was passed after the Civil War to retroactively grant citizenship to slaves. But the principle behind it is even clearer than the text. If you're born here, you're an American; you've won the lottery. We shouldn't be making that dependent on how long you (really, your parents, because you're a minor) live here after that. The purpose of the Fourteenth Amendmenrt was to correct the awful mistake of slavery. The slaves properly should have been citizens from the day they were born in America. With the Amendment's passge, we were setting things right, not granting some gratutity that can be freely withdrawn when we are faced with the unpleasant fact that our immigration system isn't perfect.

Bush's "guest worker" immigration plan depends on much the same principle: We have always welcomed people who want to come here and take part in America and work honestly and pay their taxes -- and have kids who will be citizens themselves, from the moment they're born.

I don't think I've ever argued in terms of "natural rights" (even though I do believe in some), but I think people have a natural right to be a citizen of wherever they are born. Yes, that gives pregnant women an "incentive" to try to sneak into America. And yes, it strains our social services system to care for all these kids. But these mothers (and fathers) are trying to give their children the golden ticket, American citizenship. I'm not saying we should open the borders or not enforce the laws -- and I would support the visa rules change Tunac mentions. But Posner's approach is unpragmatic and misguided. Let's not throw the baby out with the bath water.

Christmas Comes Late

2004-01-09T12:17:00.000-05:00

"Stoked" does not even begin to describe how I feel today now that my new edition of the U.S. Sentencing Guidelines Manual arrived!

Which is more strange: (1) I agree with Justice Scalia's dissent in Mistretta that the Sentencing Commission and Guidelines are unconstitutional, but I still really like working on Guidelines cases; or (2) On my computer at work, the Sentencing Commission web site is on my "favorites" list, but BTQ is not.

Engage!

2004-01-09T10:44:00.000-05:00

I want to thank Mark Lewis, author of Acquire, Identify, Engage for blogrolling BTQ. Frankly, I am not sure we warrant such status, but I am pleased to see that some folks (besides my family members) enjoy reading BTQ.

Mr. Lewis's blog is a terrific source for thoughtful analysis of military-related matters. His most recent posts deal with training / safety issues in the military and Howard Dean's contention that Saddam's capture has not made Americans safer. Go take a look. You won't be disappointed.

BTQ Theme Song #1*

2004-01-09T03:22:00.000-05:00

To the tune of Van Morrison's Brown-Eyed Girl.

Hey, where'd we come from?
Hey, what's this new blog?
Linked to by Feddie,
And blog rhymes with egg nog!

Postin' and a-linkin', hey, hey,
Writin' and a-quotin'.
Early morning posts with
Trial balloons a-floatin',
And you, my BTQ.
You, my BTQ!

So what's the story
With Fitz-Hume and Milbarge?
Which one's Beetle Bailey,
And which one is his Sarge?
Easy now, it's nothing like that --
They're just two old friends.
One is a smart guy,
The other one pretends.
They're your BTQ.
You're my BTQ!

Do you remember when we used to sing,
Buh-buh-buh-buh-buh-buh-buh-buh-buh-buh BTQ,
Just like that!
Buh-buh-buh-buh-buh-buh-buh-buh-buh-buh BTQ,
BTQ!

Not hard to find the site,
We're with you all day long.
And if we get no feedback,
I'll write another song.
Cast your mouses back here, folks,
Somedays we have some real content!
Here's a shout-out to may*star,
And all of you readers
Of your, your BTQ.
We're your BTQ!

Do you remember when we used to sing,
Buh-buh-buh-buh-buh-buh-buh-buh-buh-buh BTQ!
Buh-buh-buh-buh-buh-buh-buh-buh-buh-buh BTQ,
BTQ!

*Yes, I recognize that labeling this "#1" is as pretentious as calling your first greatest-hits album "Volume One." But I think I can do better. I heard Brown-Eyed Girl on the radio tonight and the song started coming to me. The lines are open; make your requests now.

Random Thoughts

2004-01-08T16:41:00.000-05:00

1. Elvis Presley (1935) and Stephen Hawking (1942) were both born on January 8. And no, I did not discover this because I'm working on a song about the sun being a hunka hunka burnin' gas. That's been done.

2. I'm not sure I can pinpoint exactly when it happened, but E.R. has jumped the shark.

3. The song I've had stuck in my head lately is Elvis Costello's Alison. Let's just say it reminds me of some women I've known in my life. Not that I'm bitter or anything.

Hall of Fame-worthy Hypotheticals

2004-01-08T14:51:00.000-05:00

It looks like Will has called me out. Will presents a hypothetical list of "crimes" and asks which should bar entry to the Hall of Fame if a player commits them. If I think Pete Rose's gambling is so bad (and I do), which of these others is also bad enough for me, Kenesaw Mountain Milbarge? Will's list is (1) regular domestic battery; (2) murder; (3) cocaine use; (4) use of performance-enhancing drugs; and (5) using a corked bat.

I suppose the line I draw is somewhat arbitrary, but here it is. I would call it "crimes against baseball." The only thing a fan can rely on is the knowledge that the game he or she watches is being played straight-up. Rose's gambling cast that into doubt. We can never know if Rose's bet affected his managing, and that potential made those games no better than a professional wrestling match.

This is also why the only one of Will's list that would be a bar for my vote would be the use of performance-enhancing drugs, even if the player is as good as...oh, to pick an example out of thin air for no reason...Barry Bonds. Performance-enhancing drugs, by definition, tilt what should be a level playing field. Again, we go to the ballpark with the assumption that the players got where they are through a combination of natural talent and hard work. Short-circuiting that route by taking steroids is little different (to me) than a high-schooler lying about his age to play (and dominate) in the Little Leagues. It's like the Mafia demanding a spot on the Fortune 500 list because, after all, it's one of the biggest businesses in the country.

So, why not the same for corked bats? My answer is twofold. First, it's highly doubtful that corking a bat adds any real edge to the batter. Second, a mere violation of the rules should be punishable by something less than banishment from the Hall. I even feel this way about something like knowingly letting the grounds crew pile the dirt a little too high on the pitcher's mound, which gives the pitcher a slight advantage. These things I would characterize more as "gamesmanship" than taking the fairness out of the game.

As for domestic battery and murder, these are awful, to be sure, but again, my criterion is an assault on the game, and those don't qualify. Let me be clear: I wouldn't make them an absolute bar to enshrinement, but they would certainly be entered into the overall election calculus, and might be enough to prevent winning my vote. I feel the same way about cocaine use, even though I know some would compare it to steroids. I'm not sure if cocaine has overall performance-enhancing attributes either. And my bleeding liberal heart wants to consider drug or alcohol addiction a disease warranting treatment, rather than (merely) a moral failing.

Finally, allow me to add another hypo to Will's list, one that is a closer call for me: stealing signs. This is a time-honored tradition in baseball. But one could see it as altering the fundamental fairness of the game if one team knows what the other is doing. Ultimately, however, I have to come down on the side of "gamesmanship" and rules violation possibly meriting a suspension, rather than an HOF bar. I started to write this long-winded explanation, but ultimately it got more long-winded than explanatory.

To use an analogy from another sport, I see stealing signs as akin to reading a poker opponent's "tells," and if somebody does that to you, well, it's as much your fault for having signs that are easy to pick up. I see steroid use like marking cards or peeking at the other guy's hand -- try getting in a game of poker with those on your resume. And I see gambling on baseball as the equivalent of the dealer stacking the deck -- it means you can't trust anything in the game.

Anyway, that's my response to Will's hypo. He asked for a line, and that's where I draw it. But reasonable minds can differ, so I welcome your comments telling me how little I know about baseball and cocaine and poker.

[An aside. I was talking to my dad for a few minutes today. He was a high school baseball manager (and football coach) for fifteen years, and has a million great stories. We got to talking about this, and he agrees with me. Steroids "taint the records," he says. As for Rose, if they let him in the Hall, "they should go in the clubhouse and tear down those signs, because there's no way they can say it's all right for him but we won't stand it from you." I mentioned the pitcher's mound thing, and commented that he had probably seen plenty of college (as a player) and high school fields with bad mounds. "Yeah, none of them were regulation. And they'd narrow the foul lines too, so the bunts would roll foul." Me: "You never got out your tape measure and measured the ninety feet, did you?" (thinking of the scene in "Hoosiers" where they measure the court) Dad: "Nah, but one year I had that team in the state semis and Brookville came to play us at Felt's Pond [really Felt's Park, his team's crappy stadium which apparently had a drainage problem we didn't get into] and they measured our field." Me: "Really? They literally measured to see if your field was regulation?" Dad: "Yeah, but we beat their ass."]

Come on in, boys, the water's fine

2004-01-07T09:56:00.000-05:00

To any new readers joining us on the advice of Feddie we say "welcome." May I also add that if you are dismayed by the apparent lack of law and political commentary, you have just caught us on a slow week. Might I suggest a stroll through the archives, or for some representative posts check out this post on John Edwards, attorney at law or this post on Locke v. Davey, this post on drugs and terrorism, or this post on Chief Justice Rehnquist and civil liberties in war time. I hope you like the blog and we welcome your comments.

Speaking of going to hell

2004-01-07T08:39:00.000-05:00

I turned on the local news this morning and learn that our community has already experienced its first murder of 2004. Not surprising, since a lot of people are murdered around here (no, I don't live in Detroit, but Mayberry this ain't). But the story was very troubling. Apparently, against their wishes, three young men (18 and younger) were asked to leave a party on New Year's Day and in retaliation sat in their car in the host's driveway honking the horn. This went on for some time and eventually a neighbor came outside and asked them to stop honking the horn. What happened? They shot and killed the neighbor. For asking these morons to stop honking a car horn in the middle of the night he was murdered.

I don't have any thoughtful comments, I just needed to share with you my dismay over this senseless type of behavior. How does anyone develop the world view that the proper response to another person asking him to stop acting like an idiot is to kill that other person?

The shooter is lucky that he did not take the wallet off of his victim, as he would then be facing the death penalty (in a state where there is no shame in sentencing an 18-year old to death). As it is, he only faces life without the possibility of parole, defended by a court-appointed attorney who will be paid only $1000 for the case. Not an auspicious start for '04.

Damn It To Hell

2004-01-06T20:15:00.000-05:00

I saw a passing reference to a poll that got me thinking. According to the (unlinking) source, 94% of Americans believe in heaven, and 1% believe they are going to hell. I was finally able to track down a Fox News story noting that 92% believe in God and 85% in heaven, but not mentioning the number who believe they are headed elsewhere (although it says 74% believe hell exists). And I found this Harris poll from 1998 with the following findings:

Fully 84% of all adults say that they believe in the survival of the soul after death and, of these, three-quarters (76%) expect to go to heaven. This represents 64% of the total population. Only 2% of those who believe in life after death expect to go to hell, while 4% think they will go to purgatory.

I'm not sure what to make of this. I was mentally composing this post during the walk home from work, and kept going down theological blind alleys and tangents. But really, who would answer the poll question, "Do you think you're going to hell?" with a "Yes"? (And for present purposes, let's discount the possibility of people lying to the pollsters, although I have a feeling that represents a goodly portion of this number.)

I'm fully prepared to face the fact that if certain belief systems are right, well, let's just say I'm not going to be in that number when the saints go marching in. That's the decision all believers have to make when they cast their lot with a certain sect (unless you're Ned Flanders, who prays five times a day and keeps kosher just in case). And, likewise, people who make the informed decision not to believe do so with the knowledge of the consequences of their possible incorrectness.

But here's what I don't get. I can see someone saying "I don't believe at all, and therefore I don't think I'm going to hell." But how does someone say, "I believe in heaven and hell, and I have some idea of what will get me to either place, and I choose the path less traveled by." I guess some of this is people giving God the finger, so to speak -- people who believe in God and his judgment but for whatever reason choose open defiance, to hell with the consequences, so to speak. And there are probably some good people who think they aren't good enough or something -- an "I'm not worthy" thing.

I guess what I'm really getting at is, Why would someone who thinks he or she is going to hell believe in heaven and hell in the first place? What's the point? If you're upset by the thought of going to hell, do whatever your religion requires to change the destination on your one-way ticket. But if you're not upset about it, why not? Everything I've ever heard about hell makes it sound pretty bad.

I'm sorry if this is a little rambling and disjointed. I'm just confused by that one or two percent. If I am able to make any more sense of this, I may update this post later.

Two other thoughts: First, I'm not necessarily accepting the fact that so few people actually do go to hell, if it exists. Some of the people in that vast majority might be wrong about their fates. And second, it was hard to write this without thinking of the very good Seinfeld episode wherein Puddy thinks Elaine is going to hell but doesn't care. Hmm. In that episode, Elaine seems to be okay with it -- even to embrace it -- once she learns Puddy is going there too. So maybe people like her are in the 2% hell's-a-poppin' set.

UPDATE, Wed. afternoon: In the comments to this post, our old friend Seb pointed out this religion selector test. I would also like to suggest this test from the terrific Beliefnet site, a wonderful resource for religious news and information. I know it's called the "Belief-O-Matic," but it's still pretty interesting. Plus, once they post your results, there are lots of links for information on the various religions. I took it some time ago, and I think the top result was Reform Judaism. I think that was because I was more concerned about life here than life after death, and my understanding is that Jews don't believe in hell the way Christians do. Anyway, just thought I'd point that out, and I think Beliefnet is worth the plug.

By the Bye

2004-01-06T13:12:00.000-05:00

Even though he didn't mention it, and perhaps may not have even known it, Fitz's last two posts, reviewing the new Lord of the Rings movie here and the new Lyle Lovett album here, have launched a new feature for the blog, the BTQ Review. We're hoping that this will be a weekly feature in which one of us will review a book or a movie or an album or whatever else we're spending time on that week. So, the pressure is on me to ingest something this week and synthesize it for you soon. Fortunately, I have just started a really interesting new book, so I hope that will be my first contribution to the review corner.

As for what else the new year has brought me, the answer is a new office. Our office is expanding in size but not presonnel. The physical expansion was approved back when the budget was in a surplus and the court foresaw hiring several more bodies. Now, with the budget cutbacks, we're not even replacing some people as they leave, and the site expansion is going to produce several empty offices. We are on the twenty-second floor of an office building. We used to have about three-fourths of the floor, and the rest was empty. We're expanding into that space and now have the whole floor.

In the interest of preserving my anonymity, I won't tell you what body of water my window overlooks, but it's a hell of a view. The sun is out today, and I can see for miles. There are only six offices with this view, and the other five belong to the boss and four attorneys who have been here for over a decade. So how did I, who has been here for about 16 moths, get one? Well, my office was clearly an afterthought. It's a tiny space between two huge offices. It has an odd shape that made furniture arrangement a headache. When it came to be my turn to choose a new office, I found out that virtually everyone ahead of me in seniority had considered this office but passed. So yesterday everyone came by the see how I liked it and wonder at how I was going to arrange things. I was greatly aided by some of my co-workers with an eye for design, and I think I have achieved the best use of the available space. And they're all jealous of my view...my Precious.

Anyway, while Fitz was posting about movies and music (and working, too, I'm sure), I was unpacking boxes and shoving my desk across the floor. (Sorry, folks on the twenty-first floor!) And if I'm sitting at the computer desk and lean back at the wrong angle, I bump into the other desk. But it's worth it. My view kicks ass. And, thanks to the natural light, I can turn off the flourescents and save myself from that eerie hum they produce -- not to mention whatever health and happiness those monsters sucked out of me. Oh, and I now have an air-conditioning unit. In my old interior office, we were at the mercy of whatever temperature the buidling folks set. Now, I can crank the air like those Sierra Mist commercials. And, now that everyone's been shuffled around, my office is very close to those of the two most attractive women in the office, so I see them walk by all the time. If it weren't for all this work that piled up over the holidays, my working life would be just about perfect.

My Baby Don't Tolerate

2004-01-05T17:04:00.000-05:00

I am listening to the latest Lyle Lovett CD My Baby Don't Tolerate and I am loving it. I was prompted to buy the album after attending a recent LL concert at the Carpenter Center in Richmond, Virginia. (Aside: I have not seen that many urban cowboys - complete with oil-skin fedoras, pony-tails, and tapered-leg Levis - in one place in a long time. Lord, help them, they looked as out of place as salad forks at a chili cook-off). The CD is a solid collection of blues and country songs with a couple of gospel tunes tacked on at the end. The gospel songs are okay but they don't do a whole lot for me. Likewise with the first track Cute as a Bug. The country songs, however, including The Truck Song, San Antonio Girl and Nothing But a Good Ride are great driving songs. Good Ride is maybe one of the ten best rodeo songs I have heard. The jazz / blues-inspired songs You Were Always There, Election Day, and the title song are quite good. And if you have ever driven through the speed traps in Tomball, Texas you will certainly appreciate Big Dog ("thirty's fine, but thirty-one is a crime..."). This CD is very much in the style of Road to Ensenada and, as with all his albums, Lyle combines an eclectic mix of musical styles with sharp lyrics to create an entertaining musical blend. He is a heck of a song-writer, and, dang it, he was once Mr. Julia Roberts (so I will forgive him for the gospel songs).

Rating: 5 Pepsi cans out of a possible 6-pack.

EDIT: Why does BTQ Review use a Pepsi can rating system instead of stars or thumbs? It comes from the line in Spies Like Us, "Won't you gentlemen have a Pepsi?" Also note that Pepsi is an acceptable rating tool, but as a beverage it is despised among the members of BTQ.

Tolkien is ahead by a length, by two lengths, by three...

2004-01-05T16:30:00.000-05:00

Okay, I have seen The Return of the King and I have to say that it is amazing. Truly. The charge of the Rohirrim into the flank of the Orc army was spectacular (for another great cavalry charge, rent The Lighthorsemen). The lighting of the signal fires was an exceptional piece of cinematography. The Witch-King was appropriately fearsome. It is a grand film and compels me to conclude that the LOTR trilogy surpasses Star Wars as the better movie trilogy. It is more compelling (due to a vastly superior story from Tolkien) and more appealing visually. The battle between good and evil in Star Wars feels like a political struggle rather than a pure struggle between good and evil. I still love pre-Jar-Jar Star Wars but LOTR has moved into the top spot on my list.

In case you care, I think my favorite scene is that in which Faramir and the remnants of his army are racing back to Minas Tirith pursued by the Nazgul. Gandalf races from the city to meet them and protect them from the Nazgul and I just love the feel of the scene and the way the camera moves from closeups to wideshots and how the CG effects are integrated seamlessly with real actors and sets. Just amazing. My favorite line from the movie is spoken by King Theoden on the eve of battle when one of his riders despairs that they cannot prevail against Sauron's army. "No, we cannot defeat them," he says, "but we will ride out to meet them nonetheless." That is stirring stuff and, in my view, more gut-wrenching than his speech exhorting the Rohirrim before they ride into battle. (my apologies if the quote is a little off)

The only bone I have to pick is that the pacing for the first hour or so was very rushed and it made me anxious (in a disconcerting way, not in an eager-for-battle-scenes way) while the last hour dragged too slowly. I did not have a problem with the length (what did you expect?) or the several endings because there are several story lines that had to end separate from one another. It did irk many of the idiots with whom I shared the movie theater, though. Of course, one of these very "cool" guys had to yell "It's not over yet!" His date must have been so proud.

While I am on the subject of movie audiences, let me also take a moment to relay a personal message to all of those movie watchers who: (1) explain or critique the movie during the movie, (2) applaud during the movie, or (3) yell "It's not over yet!" YOU NEED TO SHUT THE HELL UP. I do not pay $15.00 to hear some Tom Clancy wannabe explain to his wife that the Petersburg earthworks in Cold Mountain were taller in the movie than in real life. Neither do I want to hear you explain to your friend who did not see The Two Towers that Aragorn is the Dunedan, the heir of Isildur, and the future king. Furthermore, I don't like it when your applause drown out the dialog (have you ever noticed that some of the best one-liners follow the dramatic, applause inducing scenes? Probably not, since you are too busy clapping - save it for your kid's school play buddy.) And I don't like your sitcom reject one-liners. If you want to force people in a movie theater to listen to you, then go to Hollywood, join the SAG, and start auditioning for the "Joey" Friends spin-off. But the AMC 24 in Hampton is not a casting couch.< /rant>

Movies I think are better than the books.

2004-01-05T10:26:00.000-05:00

Inspired by Milbarge's post about movies he liked better than the books upon which they were based, I will offer some candidates for your consideration (in no particular order). Note that many of these movies I like only slightly more than the book. They are on the bubble (like "Jaws" for Mr. P).

1. The Searchers (based on the novel by Alan LeMay). John Wayne - at his best - in an against-type role. The first video I ever watched in a VCR and one of my all-time favorite westerns. The book is a short, easy read, and oh-so-good, too.
2. Band of Brothers (based on the book by Stephen Ambrose). Does non-fiction count? If so, then this one has to be on the list. A magnificent set of stories about leadership, courage, and just how great Americans can be in the face of evil. The movies are superior in my mind because I can keep the characters straight and the hardships the men suffer are more vivid on screen than on the page.
3. The Last Picture Show (based on the book by Larry McMurtry). A spot-on portrayal of life in small-town west Texas.
4. Lonesome Dove (also based on the book by Larry McMurtry). Another great western, made greater still by the performances of Robert Duvall and Tommy Lee Jones.
5. Apocalypse Now (loosely based on Joseph Conrad's "Heart of Darkness"). Is this close enough to count? The book is tough to read and high school English sucked most of the life out of it. The movie is much easier for me to deal with.
6. A River Runs Through It (based on the short story by Norman Maclean). If you have brothers then this book is a must-read. The movie makes me cry every time I watch it. You do not have to be a fly fisherman to appreciate this story.
7. The Last of the Mohicans (book by James Fenimore Cooper). The Daniel Day Lewis version. Yes, it is a very different story, but it is great nonetheless. The Blue Ridge Mountains of North Carolina are a beautiful setting for this great period piece. Awesome battles and a great chase through the forest. The pacing, the scenery, the music all give the edge to the movie over the book.
8. The Scarlet Letter (based on the novel by Nathaniel Hawthorne) I am not kidding. A bathing Demi Moore makes this one easy to call. I suffered through the book and suffered ever so slightly less through the movie.
9. The Legend of Sleepy Hollow (based on Washington Irving's famous work, not a book but I will still count it). Two candidates here: I really, really like the Disney cartoon version of this tale and I also like Tim Burton's adaptation with Johnny Depp and Christina Ricci.
10. Treasure Island (based on the book by Robert Louis Stevenson). One of my all-time favorite books and the production featuring Christian Bale and Charlton Heston (in the greatest performance of his life, in my opinion) does justice to the story. It is worthy of your home collection. A lot of people like the Orson Welles version, but I never really cared for it.
11. Hi-Fidelity (based on Nick Hornby's book). Jack Black had me at "hello." I am a big Cusack fan, too.

Well, I have some more, but I also have workers' comp benefits to award, so I need to get back to the grind. I hope these choices generate some more discussion.

Pete Rose, Cheater

2004-01-04T17:45:00.000-05:00

The word from ESPN is that Pete Rose admits betting on baseball, finally, in his new book due out Thursday, coinciding with Rose's interview with Charlie Gibson on ABC. (I guess Jim Gray wasn't available.) This move is generally seen as Rose's effort to be removed from baseball's ineligible list and made eligible to be elected to the Hall of Fame.

Whether Pete Rose should be in the Hall of Fame is probably sport's ultimate agree-to-disagree issue. None of you will ever be able to convince me that Bud Selig and Major League Baseball should reinstate Rose and make him eligible to be hired as a manager or be elected to the Hall of Fame. And I doubt I would ever be able to convice those of you who feel that a Hall of Fame isn't worth its name without "the Hit King" that Pete Rose was a cancer on the game of baseball, and I once taped a picture of Bart Giamatti to my wall for excising it.

Briefly, my position is this: Rose knew the rule against gambling and broke it. He agreed to be placed on the lifetime ineligible list, although he has never expressed an iota of remorse and instead insists his understanding was that he was to receive only a slap on the wrist and be reinstated after a year. That's like someone getting a life sentence under the Federal Sentencing Guidelines saying he assumed the President would pardon him after a short time in prison. The rule was posted in every clubhouse in baseball: gamble and you're suspended for a year; bet on baseball and you're banned for life. Rose stood in those clubhouses and used the phone to call his bookies and bet on his team, the Reds.

Ah, but he only bet for the Reds, you say. But consider this: every time Rose didn't place a bet, that was a signal to the bookies that he didn't think the Reds could win. I say that in the larger sense the result is the same as if he had bet against the Reds.

I don't oppose Rose's reinstatement because he's a jerk, although he is. And if this were football, where the Hall of Fame doesn't have a "morals clause" (see: Lawrence Taylor, et al.), it might be a different story. But Rose committed conduct detrimental to the game he purports to love and even stand for, knew what the penalty was, and accepted it. He doesn't deserve to be reinstated. And even though I'm not the biggest fan nowadays anyway (steroids and labor trouble have largely ruined it for me), my promise is that if Selig and his crew reinstate Rose, I am swearing off Major League Baseball forever. They won't miss me, I know, but I can't in good conscience support a system that allows someone like Rose back in the fold.

The Movie Was Better Than The Book

2004-01-02T23:19:00.000-05:00

1. Full Metal Jacket (based on The Short-Timers by Gustav Hasford)
2. The Silence of the Lambs (based on the book by Thomas Harris)
3. A Time to Kill (based on the book by John Grisham -- close second, The Client)
4. The Shawshank Redemption (based on the novella by Stephen King -- Stand by Me gets consideration here too)
5. Fail-Safe (based on the book by Eugene Burdick and Harvey Wheeler)
6. The Bridge Over the River Kwai (based on the book by Pierre Boulle)
7. Blade Runner (based on the book Do Androids Dream of Electric Sheep? by Philip K. Dick)
8. The Rules of Attraction (based on the book by Bret Easton Ellis)
9. Presumed Innocent (based on the book by Scott Turow)
10. Henry & June (based on the book by Anais Nin)

One man's opinion; no particular order. These are off the top of my head, so I'm probably forgetting some really obvious ones. And none of this necessarily means that I didn't like the book -- only that I enjoyed the movie more, for whatever reason. Also, my rule is that I have to have both seen the film and read the book. So, The Godfather isn't in there because I haven't read Mario Puzo's book, and J.R.R. Tolkien's Lord of the Rings isn't in there for the same reason. I can't state an opinion on them, but I have a feeling that some folks would nominate them. The Shining isn't on here because I'm not a fan of Shelley Duvall. And I know some might say The Natural. I loaned a good friend of mine the novel by Bernard Malamud, and when he finished he threw the book at me in a rage. (Spoiler alert) He was quite upset that at the end of the book, Roy Hobbs strikes out. I think the book explores themes that are so different from the movie's that it's almost a different story. I thought both were good, but I still liked the book better. It's close, though.

Anyway, that's just something that was on my mind tonight. I welcome your thoughts.

Online Dating Follow-Up

2004-01-02T20:25:00.000-05:00

Long-time readers of BTQ know about my ongoing search for a date and my curiosity about internet dating sites. Well, here's the latest update. In the process of making my 2004 predictions, I had cause to open the web site of Jenna Jameson. For those of you who don't know her and might have wondered why I included the "not work friendly" warning in there, Jameson is by far the #1 adult film star in America. There's not really a precise mainstream Hollywood analogue, because not only are Jameson's films the most popular in her genre, they win lots of adult film awards. And, the "box office" draw -- and hence salary structure -- in the adult film industry is heavily skewed towards women, so Jameson is widely regarded as the highest paid adult film star too.

Anyway, her web site had a link to a dating service. In the interest of research, I checked it out. I was mainly curious about what kind of person would sign up for this kind of thing. A few impressions: First, none of the women are as attractive as Jameson. Second, this service has none of the hangups Match.com does about explicit language in the profiles. "Come and get it" was one of the tamer taglines I saw. Finally, and most amusing to me, one could search for the following: "Man, Woman, Couple, or Group."

We truly live in amazing times! No longer does a woman looking to hook up with a posse of men and women have to stand on a dark, rainy street corner or thumb through the ads in seedy swingers' magazines or move to Southern California! Today's modern slut can simply point-and-click her way to group sex adventures! The future is now!

A Candidate I Can Support!

2004-01-02T20:05:00.000-05:00

Via the Cyber Attorney, I saw this story alerting us that the Russian pop duo t.A.T.u. is planning on running for president of Russia, as some sort of combined candidate. (Added together, their ages exceed the minimum age requirement.) If you're not familiar with them, t.A.T.u. is famous not for their music but for being a pair of teenage girls in school uniforms who routinely make out with each other.

Obviously, this is a publicity stunt, but it still made me consider applying to work at our embassy in Moscow.

What with Fitz's mention of various Madonna-kissers, are we in danger of becoming the blogosphere's home for commentary on girls kissing girls? If so, I'm ok with that.

I Can Quit Any Time I Want

2004-01-02T14:22:00.000-05:00

Over at Crescat, Will points out this quiz to find out if one is a blogaholic. Will found out that he is "definitely a blogaholic."

I took the quiz and discovered I am not. This is probably because I haven't been blogging as long as Will, but still, it's nice to know. Will got an 84/100, while mine was only 56/100. The analysis: "You are a dedicated weblogger. You post frequently because you enjoy weblogging a lot, yet you still manage to have a social life. You're the best kind of weblogger. Way to go!"

Two things. First, I note that this analysis seems to apply to anyone falling between 51 and 80 percent, which is a big range, and one Will just missed. Second, I like how the quiz authors assume that the only way I spend my non-blogging time is "hav[ing] a social life."

Well, I'm sad to say that blogging is pretty much the highlight for me. And still, I only scored 56%. I need to re-evaluate my priorities.

And the Winner Is...

2004-01-02T14:11:00.000-05:00

Two acting-related anecdotes:

1. On Conan O'Brien's New Year's Eve show (the highlight of which was an appearance by one of my all-time favorites, Amy Sedaris), the gang was reminiscing about the past year. Triumph, the Insult Comic Dog, was not too impressed with bandleader Max Weinberg's acting ability. Triumph: "Max, you're stiffer than Michael Jackson watching The Goonies!"

2. I was chatting off-blog with Fitz the other day. He mentioned that he had caught a few minutes of the Paris Hilton reality show (well, the "reality show" on Fox, not the other thing). He commented that she was indeed quite stupid, and as evidence he noted that she didn't even know what Wal-Mart was. I told him that I had read that she admitted to staging that bit of classist ignorance. His reply: "Well, she's a good actress, then, because she looked pretty stupid."

So there you have it: Fitz thinks Paris Hilton is a good actress.

Ladies and gentlemen, rock 'n' roll.

2004-01-01T00:01:00.001-05:00

You will no doubt notice the amazing facelift here at BTQ - we owe a debt of gratitude to the very talented may for reworking the site. may, thank you very much. We could not have done it without you!

In conjunction with the "re-launch" of the site and the new year, I will offer my predictions for 2004 (and beyond). You can take these to Vegas ("These are IOUs. They are as good as money. See? This one's for a car. You might want to hang on to it.").

Without further ado, here is what the Magic 8-ball tells me:

1. The DOW will hit 12K.

2. "The Return of the King" will be snubbed in Best Picture and Best Director categories.

3. Fidel Castro will die. Finally.

4. The Department of Interior Solicitor's Office will reject me at least 2 more times - bringing the total number of rejections to 4. Four for '04.

5. The final installment of the "Star Wars" prequels will suck - and I mean suck, like "Judge Dredd" levels of suckiness - but I will still go see it.

6. Britney Spears will pose full nude in Playboy. This "jump the shark" move will mark the beginning of the end of her pop career. She will discover that kissing Madonna doesn't make you Madonna (she should have just asked Sandra Bernhard).

7. In legal news, Jacko = guilty; Scott Peterson = guilty; Rush = guilty; Saddam = guilty; Martha Stewart = not guilty; Kobe Bryant = not guilty.

8. God will stay in the Pledge of Allegiance.

9. Any and all "Friends" spin-offs will fail miserably. This goes double for "Joey moves to L.A."

10. The Democratic presidential candidate (not Howard "Interesting Theory" Dean) will challenge President Bush's electoral victory in every possible court - and the challenges will not prevail. Al Sharpton will incite race riots as a result. Bill Clinton and the DLC will win the power struggle in the party and set Hillary up for 2008.

* Bonus prediction: Hillary will lose in 2008.
* Bonus prediction #2: Justice O'Connor will step down from the Court in February 2005. Finally.

Have a great new year everyone and thank you for reading BTQ!

2004 Predictions

2004-01-01T00:01:00.000-05:00

I think this concept is self-explanatory, so here goes:

1. Howard Dean will not win the Democratic nomination. Neither will John Dean. Nor will Dean Cain. Nor will John McCain. Nor will John McClane. Nor will McLean Stevenson. Nor will Parker Stevenson. Nor will Jameson Parker. Nor will Jenna Jameson (not work friendly). Nor will Jenna Bush (you must read this one, too!). Nor will George Bush. He won't need it, of course, because he'll win the election anyway.

2. There will be major flooding of the Mississippi River, approaching the severity of the 1993 flood.

3. The Lord of the Rings: The Return of the King will win Oscars for Best Picture and Best Director.

4. Mike Tyson will spend at least one night in jail, but neither Kobe Bryant nor Michael Jackson will.

5. Colin Powell will be replaced as Secretary of State by Condoleeza Rice.

6. A human being will be cloned.

7. A major terrorist attack (comparable to Sept. 11) will occur in Europe, maybe in London, but more likely directed at the Athens Olympics.

8. Electronic voting miscues (and potentially, fraud) will cause serious problems with vote counting for the 2004 elections. (And don't miss this article -- plus links -- or this one -- plus links.)

9. Duke will win the 2004 NCAA men's basketball championship.

10. I will have a date. Bonus prediction: My date will be with a woman who reads BTQ.

Have a great 2004, everyone!

What Was the Name of That Book Again?

2003-12-30T22:08:00.000-05:00

I'm sure the author's heart is in the right place, but I can't be the only one taken aback by a book called Alzheimer's for Dummies.

Note that the author posted a review of the book on Amazon defending the title and awarding her book five stars.

Rehnquist's Selective History

2003-12-30T00:12:00.000-05:00

A short while ago, I got one of those Amazon emails telling me that a friend of mine had bought a book, and offering me a discount if I bought it. The book was Chief Justice William Rehnquist's All the Laws But One: Civil Liberties in Wartime. Even with the discount, I'm not going to buy the book, but I wanted to write a response to my friend's suggestion. He's a bright guy, but let's just say I was worried about the lesson he would take from the book.

It turns out that Eric Muller beat me to it by a few years. Muller, an expert on the Japanese internment in World War II, wrote a review (31-page pdf) of Rehnquist's book. Rehnquist's basic theme is that the executive and the judiciary restrict civil liberties during war, and offers a few examples to support his contention. Reading Rehnquist's book, you'd think this is always the case, and there is no other responsible stance for executive authorities or judges to take. Muller presents several counter-examples and shows that, at the very least, the story of "civil liberties in wartime" is far more complex and nuanced than the picture Rehnquist paints. (Muller doesn't go this far, but at worst Rehnquist's book is wrong both as a matter of history and policy.)

And then last week, Muller had this fine post on his fine blog. He quotes some commentators who were highly critical of last week's decisions regarding Jose Padilla and the Gitmo detainees. For comparison, Muller provides quotes from the dissents in Korematsu, and asks rhetorically if those judges were so crazy too.

Way back here, Muller worried that folks (there, Michael Chertoff) would read Rehnquist's book and think it presents the whole story, when in fact it is, in Muller's words, "a radically incomplete (and one-sided) account of the history" of civil liberties in wartime. This post is simply my attempt to make sure my friend doesn't make the same mistake. If he can sit all the way through Rehnquist's book, he should at least read Muller's brief, interesting review.

I'm Lost in the Supermarket

2003-12-29T22:19:00.000-05:00

Tales from the grocery store:

1. They had a guy in a security guard uniform bagging groceries. Leaving aside the issue of whether this guy would be willing to break a customer's eggs to foil a robbery, won't the unions be upset by that? Then again, maybe the security guards and the baggers are in the same union. That reminds me of the "Simpsons" episode in which we learn that Homer's union is the International Brotherhood of Jazz Dancers, Pastry Chefs and Nuclear Technicians.

2. Is it ok to buy egg nog after Christmas? I'm not talking about the expiration date, that was Jan. 9 or something. I'm wondering if I'm the only person who would do this. I didn't have any before Christmas (I was sick), and just had the urge a few days late, I guess. I'll probably get tired of it before I even finish the quart, but it makes me curious if they even make egg nog in the off-season. Don't send me recipies; I don't like it that much. But if anyone sees any nog next summer, let me know.

3. The woman in front of me in line had the following items in her shopping cart: a large bag of parsley and four boxes of birthday candles. I'm sure the cake will be tasty and well-garnished.

(This post's title from the song by The Clash. In the linked lyric transcription, the "her" in the third line should be "here." It's an important distinction in context.)

There's Fever in the Funk House, Now

2003-12-29T17:12:00.000-05:00

I'm mainly just posting this to get back in the habit of blogging after several days away. I had an enjoyable holiday, mostly, except I got sick. Not what I was wanting for Christmas, but it did keep me from gaining all those holiday pounds.

I saw this article from USA Today noting that, not only are there more than one million lawyers in the U.S., a record number of applicants are taking the LSAT. The article is somewhat optimistic about the "where will they all go?" question, noting that 52% of lawyers say their firms expect to hire in the next year.

Well, I'm a natural pessimist, but I don't see things as being so rosy. Most of my evidence is anecdotal, admittedly. But I knew plenty of folks in my graduating class (2002) at a top 20 law school who could not find jobs. Several are still "underemployed." I wonder if the reason our law school pushes clerkships so hard is because the employment-at-graduation numbers are high, but all those folks are looking for work again a year later.

I was talking with a co-worker about her fiance's trouble finding a job. They're moving, so he's looking for work in a small market where she has a job lined up. He graduated a couple years ago from a decent regional law school, clerked for a bankruptcy judge, passed two bars, and has worked for a year or so for a small firm. He couldn't find a job for anything, and finally took an offer for $30,000 to start. Even in a small city, there are lots of jobs that would pay more than that. Granted, they have some profit-sharing and will bump up the pay considerably once they know he's there for the long haul and not a two-years-and-out deal. But still, 30 grand is not a lot of cabbage these days. His wife's federal job will pay about twice that. And the kicker is he's doing bankruptcy, the growth industry during economic hard times!

But aside from not having a place to go once they get out of law school, I have to wonder why these people are going in the first place. Let me first say that I went to law school largely because I didn't know what else to do, but it turned out I really liked it and would go back if given the chance. I was really just looking to stay in school -- if my LSAT score had been any lower, I would have taken the GRE next.

Anyway, Will Baude has discussed the law school brain drain theory here in a conversation with Feddie of Southern Appeal and here in a conversation with Stuart Buck of The Buck Stops Here. I'm sure I've read about this elsewhere, but memory and google fails me now. Anyway, the idea (which Will attributes to "Richard Posner, among others" and Buck attributes to former Harvard president Derek Bok) is that smart people are going to law school and "adding 300 words to a 1000 word prescription drug warning" when they could, presumably, be doing something more socially beneficial. (Quote from Walter Olson of the good blog Overlawyered, quoted in the USA Today article.)

Will isn't asking me, but I think there's some truth to this theory. On the one hand, several of my classmates left promising careers in other fields to study law, and several had obvious capabilities in, say, the hard sciences or business or academics or whatnot, but chose law instead. I think it's a good thing to have smart, capable lawyers. But on the other hand, plenty of my classmates have no great aptitude for the law or much else. If the easy track is to go to law school, well, shit rolls downhill. I saw no evidence that potential future captains of industry or, in Buck's words, "budding Aristotles" were among this bunch. I don't think it's that terrible that lots of smart people are going to law school, and tend to agree with Buck that if people were truly motivated to go do something more worthwhile than lawyering, we're better served having motivated people in those fields.

What constantly amazed me at law school was the utter lack of curiosity or interest about the law among many of my classmates. I thought it was ridiculous when Clarence Thomas testified under oath that he did not discuss Roe v. Wade while he was in law school, even though the decision was announced while he was at Yale. (Moreover, he denied "ever debat[ing] the contents of it" in the years since. See about halfway down the linked page.) But once I got to law school, I was somewhat less dubious. Why go to law school if you don't care, or even know, what the Supreme Court is up to? Is this even possible at other professional schools? Has anyone in business school not heard of Enron? Those are the kinds of brains I wouldn't mind draining out of law school.

OK, enough ranting from me for today. I'll try to get back in the regular blogging rhythm.

(This post's title from The Rolling Stones' Tumbling Dice. I did have a fever last week, but I'm not necessarily calling my body "the funk house." If you would like to do so, be my guest.)

I'm glad you found us, but did it have to be like this?

2003-12-23T13:09:00.000-05:00

EDIT: Alternative title for this post - "That's my purse! I don't know you!"

For the BTQ fans (are there any?) keeping score at home, the following google searches have led people to BTQ:

"turkey fryer marinade recipes"

"Wesley Clark's birthday"

"Starcraft South Korean pro"

"child begging in Pakistan"

AND my personal favorite "homemade ladies purses in Oklahoma." WOW. Milbarge must have posted something about his previously secret purse fetish which I never read.

Taking a break

2003-12-22T08:05:00.000-05:00

With real work piling up on my desk I will have to take a break from blogging until after Christmas. But there will be many treats in store, including the unveiling of our new look, our top ten predictions for '04 and my responses to Milby's post below. Oh, and a review of Return of the King and my answer to the burning question, "Why is The Lord of the Rings a better movie trilogy than Star Wars?" It just begs to be answered!

The terror threat level was raised yesterday. I hope this does not spoil anyone's holiday travel plans - try to be patient at the airport. I would like to send out a special holiday "thank you" to the men and women who help keep our country safe. To them and everyone else I say "Merry Christmas" and best wishes for 2004.

A Festivus For The Rest Of Us

2003-12-20T03:12:00.000-05:00

I don't have to pretend to work next week because I'm taking the week off to go home for Christmas. I'll be out of touch from Saturday 12/20 to Sunday 12/28, more or less. I'm sure Fitz will have some thoughts to pass along, and I'm really hoping he's going to elaborate on my Indian law post. Fitz promised me he would post new stuff now that we've seen the new Lord of the Rings movie. Also, BTQ is new enough that I worry that if you don't click over here for a week you'll get out of the habit.

After I return, we're going to launch the new blog design and post our predictions for 2004. And, lots of other good stuff is on the back burner.

In my absence, allow me to make a few reading suggestions. First, any of the blogs in the blogroll on the right, although Fitz and I will probably shake that up a little on the new site. Second, for an interesting perspective on what's going on in the Middle East, you may want to peruse Beyond Northern Iraq. The author is a BBC reporter (although it's not an official BBC blog) whose foot was blown off by a landmine. Here is my favorite post, kind of a separated-at-birth comparison photo of Saddam post-capture and Chewbacca the Wookie.

In an even more entertaining vein, check out True Porn Clerk Stories (no images, but plenty of potentially work-unfriendly language). The author worked for several years in a Chicago video store, and relates many very funny tales from the experience. Lots of interesting insight into the human condition, but mostly so funny my sides hurt from laughing. She read several of them as part of my very favorite episode of my very favorite radio program, This American Life. (I can't find a permalink to the episode, but if you'd like to hear it, go to the main page, and look up Episode 216, July 12, 2002, "Give the People What They Want." All the stories in that episode are wonderful.)

I hope everyone has a safe and happy week, whether they're celebrating anything or not.

By the way, if you didn't know, this post's title is a reference to a classic Seinfeld episode. I will leave it to you to discover the true meaning of Festivus. But note that Wesley Clark's birthday falls on Festivus. How'd you like to have to compete in the Feats of Strength against him? (Fitz, when you're alone in the office this week, you may want to play a few of these sound clips from the Festivus episode!)

"To Regulate Commerce. . . with the Indian Tribes"

2003-12-19T02:15:00.000-05:00

I was flipping through Title 18 of the U.S. Code (containing most of the federal criminal laws) the other day, and my eye caught Chapter 53: Indians. Specifically, 18 U.S.C. sec. 1160:

Whenever a non-Indian, in the commission of an offense within the Indian country takes, injures or destroys the property of any friendly Indian the judgment of conviction shall include a sentence that the defendant pay to the Indian owner a sum equal to twice the just value of the property so taken, injured, or destroyed.

The statute goes on to say that when the offender can't pay or isn't caught, renumeration shall come out of the U.S. Treasury.

I just found this quite interesting. On its face, the law discriminates against non-Indians (for simplicity, I'll adopt the statute's nomenclature). An Indian who destroys property (even an unfriendly one?) doesn't have to pay the double damages. Everyone else does. While I think this is justifiable under either the Indian Commerce Clause (quoted in this post's title) or Section 5 of the Fourteenth Amendment, consider how different the answer might be outside of the Indian frame. A simple property destruction offense outisde "the Indian country" isn't generally a federal crime. The Ninth Circuit seems hell-bent on declaring all kinds of federal laws as falling outside Congress's Interstate Commerce Clause power. I wonder how different the scope of federal power here would be. I don't want to dive back into Seminole Tribe v. Florida, and Fitz is the Indian Law guru, not me. But my quick take is that the history of federal criminal prosecution and concurrent jurisdiction over criminal offenses might be different enough (i.e., fed/tribe v. fed/state) to justify disparate treatment on this count. I'll have to get Fitz's input and ponder on this a little more, though.

I also don't want to get into a rant about "hate crime" laws, but one of my peeves in arguments on that subject is when opponents assert that "we don't penalize people differently based on who their victims are." If they are arguing that we shouldn't, well, reasonable minds can differ. But if they're arguing that we don't, they're just wrong. And 18 U.S.C. sec. 1160 proves it: a property crime is punished differently if the victim is a "friendly Indian" within the Indian country. There are plenty of other, more-commonly-prosecuted examples, like crimes against children or "vulnerable victims" (an enhancement under the U.S. Sentencing Guidelines) or police officers. But sec. 1160 is clear proof that we do have some victim-dependant punishments. So, even if unwise, they aren't "unprecedented."

Note: I'm going to do some more thinking about this statute and will update this post if I find more about it. I don't even know right now if it's ever been used.

UPDATE, Friday afternoon: As Mr. P points out in the comments to this post and on his own blog, this statute was amended in 1994 to read "non-Indian" instead of "white person." The Supreme Court dealt with this very issue in United States v. Perryman, 100 U.S. 235 (1879). There, the offender was a black man (Crit alert: his white accomplice was nolle prossed!) who couldn't pay the damages for stealing cattle. The Supreme Court held that the "friendly Creek Indian" claimant could not recover damages from the U.S.:

While the negro, under the operation of the constitutional amendments, has been endowed with certain civil and political rights which he did not have in 1834 [when the law was renewed] he is no more, in fact, a white person now than he was then. . . . There may be no good reason for restricting any longer this liability to acts of whites; but until Congress sees fit to change the statute in this particular, the courts are not at liberty to disregard the law as it is left to stand.

(I won't comment here on what "liberties" courts take with statutes these days; that's for another post, or another blog.)

It is good to see that Congress finally got around to changing this -- 115 years later! Thanks for lead, P!

It's A Good Idea, Which Is Why It Will Never Happen

2003-12-19T00:38:00.000-05:00

While Howard is busy discussing (see here and here) the contents of one of the magazines I bought tonight (just before my Cinnabon purchase), I'll say a word about an item in the other, Wired. First, though, I found it funny that a magazine dedicated to the cutting edge had a picture of last month's cover on its "current" page when I visited tonight.

Anyway, they have a story entitled, "101 Ways to Save the Internet." Number four is "Appoint Larry Lessig to the Supreme Court. Is he a Democrat or a Republican? Who cares! Laws governing information flow are the new affirmative action, abortion, and gun control rolled into one."

I think that last sentence is a bit of a stretch, and is influenced by the subject matter that fires Wired up. (But it's not totally indefensible -- consider the Fourth Amendment issues, First Amendment issues, surveillance and investigation/"total information awareness" issues, consumer/commercial law issues, etc. that would be included in the category of "information flow.")

Anyway, we could do worse than Lessig, that's for sure. But Lessig might be just as happy if Wired's number fourteen comes to pass: "Dump the Digital Millennium Copyright Act." Hear, hear.

Sweet

2003-12-19T00:08:00.000-05:00

I like Cinnabon, even though the only thing worse for me would be directly pumping the frosting into my veins. (Stop the presses: Lawyer/Blogger could stand to lose a couple of pounds!)

The grocery store I use prints coupons on the back of the receipt. Most are for stores in the same shopping center. Most are worthless, but every once in a while they give me a buy-one-get-one-free Cinnabon coupon. These I hoard.

So, tonight I was ready to cash one in. I got to the store around 8:00, and they close at 9:00. I handed the clerk the coupon and she gets me two of the beauties. I ask for a bag, and she says, "Sure, but I've got to get you another one."

Me: "Oh, was that what the coupon was for?" (Thinking it might have actually been a buy-two-get-one-free deal.)

She: "No, but I'm going to give you another one anyway."

Me: "Well, I'm not going to fight you over it."

So I got three Cinnabons for $2.75. That's what I call. . . a sweet deal! (Cue wacky sitcom "wah-wah-wah" music.)

Second Circuit rules that Padilla cannot be held as an "enemy combatant"

2003-12-18T13:33:00.000-05:00

Howard has collected several links related to the decision here. The ruling can be found here. Go here for Larry Solum's post, here for the CNN story, and here for the MSNBC report.

Note that the court in its decision does not suggest that Padilla cannot be turned over to civilian authorities and tried in a civilian court. Jose will not be walking around a free man (unlike my new neighbor, John Hinckley).

The Ballad of Strom Thurmond

2003-12-18T10:53:00.000-05:00

To the tune of (what else?) Brown Sugar, by the Rolling Stones. I like to imagine Strom belting this out on stage with Mick and Keith.

Ole Strom Thurmond's got a secret past,
Had me a baby with a nigra lass.
I got famous 'cause I raised some hell,
But I kicked her to the curb with a "Fare thee well!"

(Chorus) -- Brown sugar, how come you taste so good?
Brown sugar, just like a young girl should.

Drums beatin', cold Thurmond blood runs hot,
Miss South Carolina wonders when it's gonna stop.
They get no schoolin' but I get what I like,
Hear me with the wimmin just around midnight!

Chorus

You know her Momma kept the mansion clean,
But I knocked her up when she was just sixteen.
No miscegenatin' was the way of the world,
But still I turned my back on my own little girl.

Chorus

Note: This is a parody. As such, I used language (one word in particular) that Strom used but I don't. Also, the "Miss South Carolina" reference: As I recall, Strom married two former Miss South Carolinas.

It was bad enough that Strom had this child he never acknowledged, but for me what stood out was that the girl's mother was so young and in his employ when this happened. Even leaving aside the age difference (Strom was 22), and when it happened (1925), the power imbalance was so great that I doubt the girl could have given meaningful consent. I'm not calling it "rape," and I'm not saying all sex between people of different stations in life is coercive. Far from it. Maybe they were even in love, although if that's the case, Strom's public positions are even more troubling. I never liked Strom, and this incident just reinforces my feelings about him. But I guess today he was my muse.

Casting Call!

2003-12-18T10:50:00.000-05:00

In an effort to one-up Peter Jackson, I have initiated a casting call for my re-make of the Lord of The Rings trilogy. Here are the people I have gotten commitments from so far:

Frodo: George W. Bush
Sam: Dick Cheney
Meri: Don Rumsfeld
Pippin: Colin Powell
Gandalf: Karl Rove
Aragorn: OPEN (but talks with Governor Arnold are on-going)
Gimli: OPEN
Legolas: OPEN
Arwen: OPEN
Faramir: Jonah Goldberg
Aoewyn: Ann Coulter

Sauron: Bill Clinton
Saruman: Al Gore
Nazgul #1: Howard Dean
Nazgul #2: John Kerry
Nazgul #3: Dick Gephardt
Nazgul #4: Joe Lieberman
Nazgul #5: Jon Edwards
Nazgul #6: Wes Clark
Nazgul #7: Dennis Kucinich
Nazgul #8: Al Sharpton
Nazgul #9: Carol Mosely-Braun
Urak-hai: The Deaniacs
Wormtongue: Jacques Chirac

If you have not blown your top by the time you read this line, you have hopefully deduced that I was being ironic in my casting choices. The easy and obvious casting - at least according to "real" Hollywood insiders - would have been to cast Bush as Sauron and Clinton as Aragorn. That is just too easy. Call me crazy, but I like to cast against-type. There are many other spots to be filled – Treebeard, Gondorian soldier #3, Cave Troll #5, and many more. If you have any suggestions, let me have 'em!

College: The Best Thirty Years of My Life

2003-12-17T16:38:00.000-05:00

Former North Carolina State basketball star David Thompson is getting his degree today, some 28 years after he left school. I am a huge college basketball fan, and ACC basketball in particular. Even though Thompson's college career was over before I was born, I still consider him one of, if not the best college basketball players of all time. His pro career was a let-down because of drugs and injuries, but seeing the old footage of him playing for the Wolfpack is simply awe-inspiring. He could do things no one else could at the time, and few have been able to do since. During his last two years at State (back in the days before freshman eligibility), his teams lost only two games (I think). His game against Bill Walton's UCLA team in the 1974 Final Four was a masterpiece. So, congrats to Thompson for getting his life back in order a few years ago, and now taking this step.

I have a feeling my pronoucement above might cause some debate, so here is my defense. I am basing my judgment only on what the player did while in college. Not on what he did in the pros, or even the potential he showed while in college. Championships are the most important criterion, but not the only one, especially when we're talking about a truly transcendant player. One great season is not better than three or four very good ones. I won't try to rank these folks in a precise order, but the rest of my top ten (semi-arbitrarily -- in the last 40 years) is probably (some tweaking possible) this: David Thompson (NC State), Bill Walton (UCLA), Pat Ewing (Georgetown), Phil Ford (UNC), Len Bias (Maryland), Christian Laettner (Duke), Oscar Robertson (Cincinnati), Lew Alcindor (UCLA), Bill Bradley (Princeton), and Mateen Cleaves (Michigan State).

I know it looks like there's an ACC bias there, and I admit I went to an ACC school, but most of these guys won multiple championships, and almost all at least went to multiple Final Fours. I guess there should probably be someone from Kentucky or Indiana there, especially, but no one stood out as having multiple great seasons or that special something. (As for what is probably the most glaring individual omission, Michael Jordan wasn't even the best player on his team the years he was at UNC.) I welcome your suggestions, and you might even be able to convince me to change a few of these (I'm probably forgetting someone really obvious), but you won't be able to convince me on Jordan based only on his college performance. (That would be like saying Keith Smart was a better college player than Steve Alford.)

You just watch your mouth, mister!

2003-12-17T15:29:00.000-05:00

The L^3 guys have a post up now about the F-bomb and the FCC. Check it out here.

There can be only one (or three)

2003-12-17T13:59:00.000-05:00

The Return of the King, the final movie in Peter Jackson's three-part adaptation of J.R.R. Tolkien's The Lord of Rings opens today and by all accounts it is a fitting conclusion to the trilogy. There is talk that Peter Jackson could win the Oscar for Best Director (my prediction is that, as with the first two installments he and the movie will be snubbed by the Academy in the major categories, perhaps only picking up awards in technical categories). Among many movie fans the conclusion of the LOTR trilogy raises the question which is the better movie trilogy: the original Star Wars or The Lord of the Rings?

My John Kerry-like answer is: Yes. Not helpful, I know, but I am torn. This is a question without an easy answer. Here are some factors you might consider in reaching an answer:

(1) Will either trilogy remain relevant in 10, 20, or 50 years?
(2) To the extent that commercial success is a measure of greatness, will LOTR match or surpass Star Wars in gross box office take? In merchandising? In home-video/DVD sales?
(3) Do the advances in visual effects make LOTR better than Star Wars?
(4) If you have a Saturday afternoon to kill watching a movie, are you more likely to slip in the Two Towers DVD or Return of the Jedi?
(5) If Peter Jackson receives the Academy Award for Best Director does this accolade establish that his direction of the LOTR trilogy is superior to George Lucas's direction of the original Star Wars?
(6) Is Tolkein's story better than Lucas's story?
(7) Should the utter stupidity of Episodes I and II be taken into account when assessing the merits of the original trilogy?

Of course there may be other factors I am leaving out and you may disagree with the criteria I have set out above. That is fine. I am not a professional film critic, just a movie buff with opinions and an outlet for those opinions. But before I post my "answer" I would like to get some comments from our readers on this question. So, I now pose the question to you, dear readers. Which trilogy is better, Star Wars or the Lord of the Rings? Chime in and let me know what you think!

And now, I will incise.

2003-12-17T12:53:00.000-05:00

BTQ readers will be pleased to know that we are in the early stages of a revolutionary visual transformation of the site. We were fortunate enough to secure the services of the very talented may*star who has graciously agreed to give this site the face lift it so desperately needs. And when I say face lift, I mean something more like a face transplant a la "Face/Off" - the movie where John Travolta's daring undercover agent, John Archer, switches faces with the notorious terrorist Castor Troy, played by Nic Cage (query who - Big John or Little Nicky - got the short end of the stick in that trade?).

Have no fear, though, the high-quality content you have come to expect from Milbarge and (to a lesser extent) yours truly will survive the metamorphosis.

Also note that, in coordination with the de facto re-launch of BTQ, we will soon post our top predictions for 2004. Some predictions will be serious, some will be light-hearted, all are guaranteed to come to pass - or maybe not (if John Kerry can waffle, why can't I?).

Why Saddam? Why not Osama?

2003-12-16T08:34:00.000-05:00

Read this excellent post by Gregg Easterbrook on the time-honored Arab tradition of selling out your friends and neighbors and why that tradition has not yet resulted in the capture of Osama bin Laden.

If the Shoe Fits

2003-12-15T15:58:00.000-05:00

Mr. P mentions the Ethical Selector Philosophy test. The test is here.

Let me say that I know very little about philosophy, at least in terms of knowing who thought what and which moral theory means killing people is wrong or whatever. (Apparently, many philosophical theories take that stance.) I had heard of almost all of the philosophers/philosophies listed in my results, but probably could have only described the belief set of maybe half a dozen out of the nineteen. I feel the odd need here to defend myself: I'm not stupid. I just don't know a lot about the specific phiosophical tenets of particular thinkers. Also, I took the quiz in a hurry.

So, my top result was the Epicureans (100%). The site describes their theory as "Pleasure is the ultimate moral end." Well, hard for me to argue there. I don't think "Hedonist" is on the list. (Actually, I'm pretty sure the Epicureans don't -- didn't? -- think the same way about pleasure, but whatever.) My next few results were J.S. Mill (93%), Jeremy Bentham (90%), and then Ayn Rand and Immanuel Kant at (83%). I'm a little surprised at #2 and #3 because I don't consider myself a utilitarian. And what kind of weirdo has exactly the same amount in common with Rand and Kant? This one, apparently.

Mentioning Rand reminds me of a funny line I had once, and since this is my blog, I can make myself seem witty by presenting such anecdotes. I once accused a friend of mine of being selfish in some position he was taking. His response: "I'm only looking out for number one." Me: "Uh, that's the very definition of being selfish." I guess I learned that from Rand.

On the International Page...

2003-12-15T13:56:00.000-05:00

Catching up in The Corner, I saw this story. Pakistani President Pervez Musharaff narrowly escaped an assassination attempt the other day. Plotters blew up a bridge maybe a minute after Musharraf's car crossed it.

Musharraf isn't a perfect leader or ally by any stretch, but it would be a very bad thing if Pakistan lost him now. (Granted, I don't know the country well enough to know who the likely successors would be, so take that for what it's worth.) Even if the transfer of power were peaceful (cross fingers!), the next leader might not be as helpful an ally. Civil war or the installation of extremists, ala Iran, would be even worse. Of course, having a footprint in Iraq now would mitigate the need to operate out of Pakistan, but we certainly don't need a hostile Pakistan situated on the other side of Iran and right next to Afghanistan. Also note that Pakistan has harbors on the Arabian Sea, which would allow the ingress and egress of, well, just about anything from anywhere.

Finally, perhaps most importantly, who knows what a new leader in Pakistan would do about India? And a new regime might consider selling nuclear info (or the bombs themselves) to North Korea.

All in all, I'd say we (Musharraf and the U.S. both) had a lucky break over there.

Proof I Made Some Good Decisions

2003-12-15T13:30:00.000-05:00

Ken Lammers has a post on his very good CrimLaw blog entitled "A Week in the Life of a Defense Attorney." It's a good read, funny and frustrating at the same time. It makes me even more sure that I made the right decision to go into appellate work. Ken drives all over the place visiting clients and explaining to them why their best bet is to plead guilty and still get "only" whatever the mandatory minimum is. I sit in front of a computer all day. No clients ever call me. I don't have to visit people in jail.

On the other hand, Ken has some pretty good stories. My best stories are like talking about your favorite law school exams -- "Ooo, I really spotted a good issue in that one!" Don't worry: that won't be a regular feature on BTQ.

UPDATE, an hour later: Crescat guest blogger Toby Stern (aka Mr. P) linksto this amazing story. A law firm in Orlando was really a front by convicted drug dealers who sought money from the families of other prisoners, promising reductions in sentences. (Well, who would understand the Guidelines better...?) As happy as I am that I don't have to do all the yeoman work Ken Lammers does, I am even happier that these folks aren't opposing counsel.

Newsflash: Saddam endorses Howard Dean!

2003-12-15T10:20:00.000-05:00

Only kidding! But there is a lot of speculation about whether the capture of Saddam Hussein spells the end for Howard Dean's campaign. I don't have a lot of analysis to add, except to say that I think Dean probably won't lose any support during the primary season as a result of Saddam's capture. His current supporters hate Bush more than anything else and a Bush success in Iraq will not likely sway them (it will just make them more angry). I think the real threat to Dean posed by Saddam's capture is the potential for Saddam's war-crimes trial to dominate the news next summer in the run-up to the November presidential election. Dean's opposition to the war will stand in sharp contrast to the testimony of victims and survivors of Saddam's rule.

What should concern Deaniacs now, and especially once he obtains the nomination, are statements like this one detailed by Slate's Chatterbox (here) about September 11, which have received surprisingly little coverage from the major media outlets:

"There are many theories about it. The most interesting theory that I've heard so far, which is nothing more than a theory, I can't—think it can't be proved, is that he was warned ahead of time by the Saudis. Now, who knows what the real situation is, but the trouble is that by suppressing that kind of information, you lead to those kinds of theories, whether they have any truth to them or not, and then eventually they get repeated as fact. So I think the president is taking a great risk by suppressing the clear, the key information that needs to go to the Kean commission."

Dean made this statement on December 1, 2003, on the Diane Rehm radio show. On December 9, at the Durham, New Hampshire debate, Dean fielded a question from reporter Scott Spradling about his comments on the Diane Rehm show:

"Scott Spradling, WMUR-TV: Governor Dean, you had once stated that you thought it was possible that the president of the United States had been forewarned about the 9/11 terrorist attacks. You later said that you didn't really know.

A statement like that, don't you see the possibility of some Democrats being nervous about statements like that leading them to the conclusion that you are not right for being the next commander in chief?

Howard Dean: Well, in all due respect, I did not exactly state that."

Dean went on to pretend that the subject was first brought up on Fox News Sunday and never acknowledged his comments originally made on the Diane Rehm show.

In all due respect, this is incredibly irresponsible rhetoric from a major presidential candidate, and justly brings into question his suitability for the job of Commander-in-Chief. Charles Krauthammer really takes Dean to task for it here but otherwise major coverage of this looney tunes conspiracy theory (which seems more appropriate to the Kucinich camp, frankly) is nowhere to be found. Is this not news-worthy? Do Dean's statements not seem remarkable? Didn't this kind of conspiracy mongering essentially end the political career of Cynthia McKinney? It looks like the good doctor will avoid having to answer any tough questions about these comments (at least until after his "coronation" as the Democratic candidate).

For Milbarge and others who keep urging me to take a hard look at Howard Dean, I am. And, so far, I don't like what I see.

Again, thanks to Chatterbox who deserves full credit for the quotes and the facts.

Gathering, level 20

2003-12-15T09:13:00.000-05:00

I have added a new blog to the blogroll and I commend it to those of you with any interest in military affairs in general or the Iraq war in particular: Acquire, Identify, Engage. Mr. Lewis' comments provide the kind of insight into military matters that can only come from experienced soldiers. He currently has several excellents posts regarding the Army's decision not to court-martial the "so famous he's in-famous" Lt. Col. West. Check him out.

Here is a picture of my sister. You can all have her.

2003-12-14T06:44:00.000-05:00

Saddam Hussein has been captured outside of Tikrit. A news conference is scheduled for 7a.m. Congratulations to the U.S. forces for a job well done.

CNN reports on it here, MSNBC here, and Fox News here.

I hope he gets a full body-cavity search in hopes of turning up the missing WMD.

(cue "No where to run" by Martha Reeves and the Vandellas)

Let's Buy Some Drugs

2003-12-13T23:17:00.000-05:00

Go read Fitz-Hume's post about drugs in Afghanistan first. It's about how the U.S. Government is saying, on the one hand, buying drugs here supports terrorism, and on the other hand, not stopping drug production or sales in Afghanistan. I wanted to respond to it with a devil's advocate argument, but it was stating to run kinda long for the comments section, and since I have the password, I decided just to make it a full post.

Here's my question: Why don't we just buy the poppy from the locals? (We, as in the U.S. Government, not me and Fitz.) This would prevent illicit sales to terrorists and still give local farmers economic support they desperately need. Then, we could do several things. (A) We could just destroy it. Hey, we pay farmers here in America not to grow stuff; it's not like we're not used to wasting money on agricultural decisions. (B) Use some of it for poppyseed bagels and legal opiate byproducts. (C) Give to old people as part of the Medicare prescription drug plan; no one will notice a few billion more dollars there. (D) Legalize it in America and resell it in ABC stores; make the money back in taxes! (Again, just making the devil's advocate argument here.)

My point is, this would accomplish both goals we have over there: supporting the locals, and keeping the terrorists from getting drug money. Logistically, it could work like this. Make farmers get a license to grow from the Karzai government. Promise top dollar -- let them experience capitalism. We'll price the Taliban out of the market. And then anyone without a license or selling to al Qaeda is fair game to be shut down. But if you've got a license, you know you're going to get paid. Over time, we can lower the number of licenses we grant and try to wean those farmers onto other crops or whatever. That, of course, would require years of "nation building" and U.S. A.I.D. and U.N. (especially) and, say Peace Corps invovlement, but it could be done.

The way Fitz-Hume describes it, based on his brother's first-hand observations, we're staring all this in the face and doing nothing. I'm sure a lot of folks would have a field day with news that the U.S. Government was going to start "buying drugs" in Afghanistan. But to make any headway, either against terrorism or drugs (and I'm not Bill Bennett crsuader here, and we're not doing enough on the demand side of the equation anyway), we're going to have to start being innovative in our approach. Why not hit the terrorists in the pocket book and prop us the locals at the same time?

UPDATE, late Sat. night: See this major article from page 1 of the Sunday Washington Post, explaining that al-Qaeda remains well-funded. Check out the opener:

Governments around the world are not enforcing global sanctions designed to stem the flow of money to al Qaeda and impede the business activity of the organization's financiers, allowing the terrorist network to retain formidable financial resources, according to U.S., European and U.N. investigators.

And this paragraph:

A report released this month by a U.N. panel of experts documented the continued flow of money -- including drug money -- to terrorist organizations and warned that al Qaeda "has already taken the decision to use chemical and biological weapons in their forthcoming attacks. The only constraint they are facing is the technical complexity to operate them properly and effectively" -- rather than a lack of means to acquire them.

We'll probably never be able to shut off the flow of money completely. But while we blame other countries for not enforcing financial sanctions, we should be doing what we can. I don't think the answer is simply dropping napalm on the poppy fields of Afghanistan. And maybe the answer isn't buying the poppy harvest before it gets to al Qaeda. But it's better than doing nothing, right?

Unconstitutional Consistency?

2003-12-12T16:25:00.000-05:00

So I was reading a death penalty decision yesterday and saw something very interesting. It was an appeal from the district court's denial of habeas relief. To the extent that any capital case can be called “routine,” this one seemed to be. A guy went into a convenience store, demanded money, and shot the clerk. The whole thing was captured on the store’s security camera, and the killer was caught pretty quickly. He had committed a few other robberies before. There was testimony that he had suffered abuse as a child and became suicidally depressed after his marriage failed (not long before the murder). Oh, and one other thing: the guy is white.

Because the case was so open-and-shut, the defense attorney approached the prosecutor and offered that Dennis, the defendant, would plead guilty in exchange for the state taking the death penalty off the table. These kind of deals happen all the time. The prosecutor responded that she wouldn’t deal. And here’s her reason: Six months earlier she had prosecuted another capital murder case and didn’t offer a deal there.

A couple of points. The jurisdiction where these two murders occurred is small and doesn’t have many capital murder cases. The other one was somewhat similar -- also a robbery murder. In that case, two men abducted another and forced him to withdraw money from an ATM before killing him. One of the men pled guilty and testified against his accomplice, Daryl. Daryl is black.

Anyway, the prosecutor rejected Dennis’s deal, saying (this is undisputed) “she could not agree to give a white man a life sentence when she had just asked for and obtained a death sentence for a black man.” Her concern was that “someone might allege that he received special treatment only because he was white.”

I will leave aside the excruciating minutiae of habeas corpus law that prevented direct assessment of this claim. For those who know about that kind of thing, it was a procedural default/cause and prejudice analysis. But’s let’s assume that Dennis had preserved an objection to the prosecutor’s action and a court was faced with the issue directly. Did the prosecutor violate Dennis’s constitutional rights?

His claim was premised on the Equal Protection Clause; that he was treated differently than he otherwise should have been but for his race. The court basically said he perverted the meaning of the Equal Protection clause to complain about being treated the same, despite his race.

But really, isn’t it clear that the prosecutor took race into account here? She testified that she simply didn’t see much difference between the two cases and figured that if one was a death case, the other qualified as well. Both she and Dennis’s trial attorney testified that neither one of them took the conversation to be about race, and her statement was almost an afterthought. (Still, in a capital case a defense attorney ought to object to everything!) But the fact of the matter is that she did take Dennis’s race into her calculations, even if only slightly.

Now, consider what your answer would be if the events had taken place this way. Instead of Daryl’s case coming first, what if Dennis had committed his murder first? And the prosecutor had offered him a plea, which certainly would not have been irrational. Then, six months later, Daryl comes along. If she had proceeded to trail seeking a death sentence against Daryl, don’t you think someone would point out the racial difference there?

What if Daryl had gotten a plea but the prosecutor had gone to trial against Dennis like did? Wasn’t someone likely to say, in those circumstances, that she was being tougher on the white guy to avoid being called a racist?

My point is partly that she was in a no-win position, because regardless of how she dealt with these two killers, she opened herself up to charges of racism or reverse racism. (And I could go off on a long rant about how ridiculous proportionality review is.)

But my main point is this: Is consistency a good thing here? Can Dennis (in theory) state a constitutional claim based on the prosecutor’s actions? What about the Eighth Amendment? The Supreme Court said (in response to mandatory death sentences for capital murder convictions) that, just as it is “arbitrary and capricious” to treat similar cases differently, it is arbitrary to treat dissimilar cases the same way.

Now, granted, the two cases are similar to some degree. But a hallmark of post-Furman death penalty jurisprudence has been that each case demands an individual assessment of each defendant’s worthiness for the death penalty. And that worthiness should not turn on race.

I’m not in any way calling the prosecutor a racist here. These decisions ought to be the toughest a prosecutor has to make, and it appears that her decision was based almost entirely on the facts of the two cases. But if Dennis had been black, and she wasn’t worried about how the two prosecutions would be perceived, how much would that have increased Dennis’s chances for a deal?

It’s a tricky balancing act. There has to be some rationality to the decisions on which cases get charged as capital cases and which of those end up with death verdicts. But there has to be some individuality to it as well. Dennis will go to the execution chamber wondering how individualized his treatment was.

The road to Dushanbe

2003-12-12T14:00:00.000-05:00

President Bush has said that "It's so important for Americans to know that the traffic in drugs finances the work of terror, sustaining terrorists, that terrorists use drug profits to fund their cells to commit acts of murder." Think tanks like Canada's Mackenzie Institute suggest that as much as 30% of funding for Islamic terrorist groups is derived from narcotics sales and the State Department has concluded that as much as 72% of the world's illicit opium is produced in Afghanistan. The link between the drug trade and the financing of terrorism is clear and success in the war on drugs would seem to have a direct effect on success in the war on terror. Imposing fiscal restraint on the Taliban and al-Qaeda (who reap significant financial gain from the opium fields of Afghanistan) is obviously a worthwhile objective. But the U.S. government's admonishment to pot-smoking hippies that "individual decisions about using drugs have real-world consequences" rings hollow in light of the Administration's failure to confront the drugs / terrorists relationship in Afghanistan.

My brother, a soldier with the U.S. Army's elite 10th Mountain Division, has been stationed in southern Afghanistan since August of this year. Among the several issues he has raised in his letters home (the main issue being "RPGs really suck") is that his unit is under direct orders to avoid confronting poppy farmers and traffickers. Poppy fields are not to be damaged and drug traffickers are allowed to pass through highway checkpoints unmolested and unsearched. The checkpoints are a principal means of searching for weapons and al-Qaeda fighters moving through the region, yet trucks carrying poppy are allowed to pass through without a second look. My brother's CO (commanding officer) explained that the reason for this hands-off policy is that the poppy fields provide the main source of income for the Afghan population and any effort to interdict the drug trade or destroy the poppy crops would result in an open revolt against the American-supported Karzai government.

I recognize that trade-offs like this are the stuff of foreign policy real politik, but for how long can such a policy square with reality that profits from the sale of Afghan heroin fund the very al-Qaeda and Taliban soldiers we are fighting in the war on terror? Why don't the "anti-drug" television ads mention that U.S. foreign policy decisions, like individual decisions about using drugs, have "real world consequences?" Do as I say, not as I do is sometimes a defensible position. Such a position should be acknowledged and explained, though, and I have yet to see any acknowledgement or explanation from the Administration. I am not holding my breath waiting for one either.

And you thought bloggers were nerds?

2003-12-12T13:00:00.000-05:00

With just a little shame I will admit to our readers that I am 29 years old, married, a lawyer, and, yes, I play computer games. Really, I only play one computer game: StarCraft. Go ahead, make all the jokes you want, I have heard them all (Milbarge, for one, is relentless). At least I don't play Yahoo! games at work like some of my colleagues and I don't own 9 video game consoles like a friend of mine from law school. I just happen to enjoy the occasional game of galactic conquest (who doesn't?). Trust me, I am not obsessed with computer gaming - though my wife has expressed a contrary opinion.

Whatever my true level of interest in StarCraft, certainly I am not anywhere near as devoted to it as the people of South Korea. In South Korea, StarCraft is a national past time and skilled players are revered like rock stars or pro athletes. In fact, several people make a good living as StarCraft players. These "pros" (most of them teenagers) can make upwards of $30,000 per year in tournament winnings and endorsements. There are online tournaments through which players from all over the world compete for bids to go to South Korea and join professional teams. Three television stations in South Korea are devoted to 24-hour coverage of tournaments, players, and teams. All of the major championships are broadcast "live." The 2003 KPGA/OGN StarCraft championship drew a crowd of 25,000+ fans and paid out $30,000 in prize money to the winner. To quench your thirst for knowledge of the pro-gaming scene in Korea, go here, here, or here.

So playing StarCraft one night a week means I am "addicted?" I don't think so. I can quit any time I want. Someone with my broad range of interests just doesn't qualify as a computer-game nerd. I do lots of other things besides playing StarCraft. For example, I like travel, reading, and talking with friends. And I have never watched a "pro" game of StarCraft (or soccer for that matter). Probably never will.

Pennies and Pounds

2003-12-12T00:07:00.000-05:00

No, this isn't a post about monetary policy or my position on the Euro. I was in the grocery store tonight, and I went to the deli counter to buy some turkey and cheese. I noticed something funny about how the attendant weighed out the food for both me and the guy before me. Clearly, after doing something like that for a while, you start to get a sense of how many slices of something equal how much weight. So, she slices up a bunch of whatever it is and throws it on the scale. Let's say it comes out to .97 pounds. So she goes back over to the slicer and shaves off another piece or two. Now when she weighs the stuff it comes to 1.03 pounds. She wraps it up and send you on your way.

Why do they always go over like that? Her second weighing was no closer to the exact weight I asked for. I wouldn't have complained if she had given me only .97 pounds (15.52 ounces) instead. Maybe some people would, but it's not as if you're paying the same price regardless and either you're getting shorted or they are. You pay for what you get, down to the fraction of a pound. I wonder if this is just her being a little off in her estimation of how many slices makes up the missing .03 pound (half an ounce, roughly).

I fear, however, it is company policy to always go a little over (it's a major chain grocery store). One reason for that would be to keep jerks from snapping, "Hey, I asked for a whole pound!" But think about how much money that .06 pound of turkey I got adds up to over time. My math (check me!) says, if a pound goes for $6.99, I paid 42 cents to get bumped up over the one-pound mark. Even if they only do that ten times a day (ridiculously conservative estimate; I saw it happen four times in five minutes), that's over $1500 a year. Do it 50 times a day, it's $7500. In that store alone. The chain has over 2500 grocery stores. My math says that adds up to over $19,000,000 a year in turkey I didn't ask for but bought anyway.

We've Made It

2003-12-11T23:29:00.000-05:00

Maybe Howard got ahold of some bad shellfish in the V.I. Only back one day, and not only does he link to BTQ, he blogrolls us -- and in mighty good company too!

The L,L,L guys will always be first in our hearts for being the first to blogroll us. But when I think of Bashman, I am reminded of the line in the classic defy-you-not-to-dance song by Arthur Conley/Otis Redding/Sam Cooke, Sweet Soul Music, about James Brown: "He's the King of 'em all, y'all!"

Hmm. I wonder if that's the first time Howard Bashman has ever been compared to Soul Brother #1? Anyway, thanks!

Blowout?

2003-12-11T20:51:00.000-05:00

Apparently the Republicans are very, very excited that Howard Dean is running away with the Democratic nomination. In this article, someone cited as a "key Bush official" said that, "[t]he best thing Bush has going for him is that Dean is a weak Michael Dukakis. Dukakis won 10 states. Unless things turn very bad for Bush, I don't see Dean winning more than five." The source writes off California and New York and Vermont.

This is dumb. The Gore endorsement was Dean's first major attempt to start tacking back to the center (although I don't think he was as lefty as he was painted). I just find it unfathomable that all those "blue states" are going to go for Bush.

Now let me spin that a bit. I think a blowout is possible because Dean seems perfectly capable of shooting himself in the foot. But of course, as Michael Kinsley points out, Dean's most "impractical" move (opposing the war) is the one that worked out the best for him. And a lot of this depends on how you define "blowout." I think NRO's Ramesh Ponnuru may be on to something when he posits that, because of lower turnout and an overall closely divided nation, Bush might only get, say 53% of the vote, but compared to recent years that would be a blowout. Also, I think a lot of states will be close, but may end up going to Bush. The margin in the popular vote might not be huge, but the Electoral College margin might be wide -- although if Dean wins California and New York, it can't be too wide.

In sum, I think it's reckless at best for the Bushies to get overconfident now. William Kristol had a great line in this column warning Bush, and comparing him to the Oklahoma football team: "Saying you're not overconfident (as the OU players repeatedly did) is no substitute for really not being overconfident." And Team Bush isn't even saying they're not overconfident! This story in the Times notes that the GOP is already polling on the effects nominee Dean would have on Senate races. I think that's putting the cart well before the horse.

Look, in the end, Dean may well get beaten. But it is way, way too soon for the Republicans to break out the five-year paint on their West Wing offices.

Favorite Christmas Song?

2003-12-11T15:27:00.000-05:00

I don't usually make a big deal out of Christmas. And, like most everyone else, I get a little tired of Christmas music well before the holidays are over. But, it's still early, and we haven't been inundated yet. So, partly to sort of take the pulse of BTQ's readers, but mostly to kill a little time and raise the comment count, I'm just wondering what your favorite Christmas songs are? Two categories: traditional, and non-traditional.

For me, the traditional song would probably be Good King Wenceslas or God Rest Ye Merry Gentlmen, although Adeste Fidelis is nice too, especially with organ accompaniment.

For "non-traditional," I have to go with Father Christmas by The Kinks and Christmas Wrapping, and early 1980s tune by The Waitresses. Both kind of cynical, but they have their moments. And they're catchy.

Anyway, let me know if I'm crazy here. I'll warn you now, though: I will delete any comments approving of "Grandma Got Run Over..." I won't even link to it I hate that song so much. Hey! That's the spirit of the season, no?

Buddy, Can You Spare a Dime?

2003-12-11T13:07:00.000-05:00

I know that some of our loyal readers are big fans of Ronald Reagan, so I thought I would pass on three very interesting posts by Unlearned Hand over at En Banc: here, here, and here. Hand is "Blogging Reagan," trying to come to grips with the man and his legacy. He is starting, wisely, with a flattering biography, and will presumably then move to something more critical. (The title of this post, of course, refers to the drive to put Reagan's face on the dime.)

Reagan, to me, is kind of odd. I'm not really sure what was going on there. I took a political psychology class in college, and we spent a lot of time talking about all the problems Nixon and Clinton had, but those were obvious, outsized, identifiable if baffling. But with Reagan, no one's really sure if there was ever any "there" there. He apparently had so few friends that Edmund Morris had to invent one for him. He was famous for not even recognizing people very close to him (well before Alzheimer's). My favorite anecdote is how he confused Grover Cleveland (the president) with Grover Cleveland Alexander, the baseball player, whom Reagan portrayed in a movie. (This is a Tip O'Neill story, but I don't have a cite handy.) Ultimately, I guess I just don't "get" Reagan as a person or as a President. Kudos to hand for tackling the subject.

I have been mentally trying to compose a parody sitcom (are sitcoms even beneath parody?) called Everybody Loves Reagan. Good ole Reag' lives with his patient wife who is really the brains of the operation. The long-suffering sidekick is taller than Reag' but still lives in his shadow: George H.W. Bush. Across the street live the two wackos who started it all for Reag', Jeane Dixon and Bonzo. Anyway, that's as far as I got. I had trouble coming up with plot development, which some people think is a problem with the namesake show too.

Enough of my rambling. Go read what Hand has to say.

More BCRA Bickering

2003-12-11T00:42:00.000-05:00

The title of this post is only even a mildy amusing pun if you pronounce "BCRA" as "bick-rah." As much I don't like the goofy pronouceable-acronym statutes we're getting these days, at least everyone knows how to say them.

Anyway, Rick Hasen has follow-up coverage on today's McConnell decision upholding most of the law here, here, here, here ("the big picture") and here. Will Baude has some thoughts here, here, and here. Eugene Volokh weighs in here and here. At En Banc, Unlearned sounds otherwise here, and Chris opines here. The Rice Grad, currently at Southern Appeal, mentions the case here, which I pass along mainly to note the calls for impeachments in the comments. Stuart Buck and Mr. P had pretty much the same overall thought I did, though. UPDATE: Howard is back from the V.I., and his first BCRA post is here, with lotsa links.

One thing I did find interesting that I doubt will get much play in all the discussion of election law is that a big chunk of the opinion (which the Chief Justice wrote) was based on jurisdictional grounds: the elected officials did not have standing to challenge a certain tv ad cost provision, and other plaintiffs did not have standing to challenge the so-called millionaire provision. I quickly scanned this section, and it's an interesting look at just how "imminent" an injury has to be. My very, very uninformed opinion is that, under Lujan, it ought to be enough for Sen, McConnell to say he is going to run again in 2008 and run ads critical of his opponents. What more can he do -- go ahead and try to buy tv time five years in advance? As for the millionaire thing, beats me.

I am no expert, and I have only skimmed the opinion so far. I don't want to get into any of the details here, but I am interested in campaign finance reform as a concept. At the very broadest level, I support it. But that's totally uncontroversial -- who wants corrupt politicians? But I am sympathetic to the views expressed by, among others, Justices Scalia and Thomas, and Judges Bork and Starr, that speech directed at affecting election outcomes is probably as close to the center of "core First Amendment values" as you can get. If, as Scalia said today, we let nude dancers and internet pornographers have their free speech, why not someone who wants to run a tv ad saying "Call Congressman Doe and tell him to stop kicking old ladies down the stairs!"

I believe in robust First Amendment speech rights -- I might go even farther than Justice Black would have. And, as Rick Hasen (who has always thought the law was consitutional) points out in his "big picture" post, it's troubling how easily the Supreme Court dismissed First Amendment arguments today. Part of me, though, wants to say, Who better than Congress to make necessary findings about the level of corruption (or appearance thereof) and the pervasiveness of money in modern campaigning? The courts? But isn't Congress just a little self-interested here?

So, I'm not sure where I come down in all this. I'll throw it open to our readers. Let's start out at a big-picture, meta- level: Should money be considered "speech" at all? Even if it is, we regulate speech in all sorts of contexts -- why not here? Commercial speech can't be misleading; isn't it more important to make sure an election for Congress is transparently unpolluted than it is to police a vacuum cleaner ad? If you think this law is unconstitutional, is there any regulation short of a ban on the outright buying of votes that you would support? Where's the line for you?

Doggone It, People Like Us

2003-12-10T23:13:00.000-05:00

Sorry for the light posting lately. Fitz has been very sick, and I have been trying to do some real work. I feel especially bad about it because I just got finished gently poking fun at Howard Bashman for leaving me in the lurch. It's kind of scary how often I'm on his site.

So, a few belated thank-yous. First, to Scott at Life, Law, Libido, first for telling people to visit here, then for mentioning us again, and finally, for blogrolling us! As far as I know, that's the first for us, and we're honored. And it's pretty high, too – although that may not mean anything; ours isn't terribly organized yet. Fitz emailed me to let me know, and I scrolled to the bottom of their list, not even imagining how far up I'd have to read to find it. Thanks, guys! And to anyone visiting from their site, welcome. And if you're one of those girls they have pictures of on their page, I'm single.

Also, hello to anyone coming from Jeremy Blachman's "Average Joe" post at En Banc. And truly, wherever you’re coming from, we're glad to have you. This started as an easy way for us to send rants to our friends, and now we're getting hits from all over. It's pretty cool. Oh, but if you got here by googling "jason average joe melana gay -tiner," sorry, can't help you there. And did I hear a "-tiner" in there? Were you googling from a walkie-talkie?

Finally, thanks to Will Baude for correctly pegging me as "elusive." Now that I know people are checking in, I feel a lot of pressure to perform, and to be less elusive in the future. Feel free to let us know how we're doing!

And, because it may be the only way to shake it, the song stuck in my head right now is David Bowie's "Young Americans."

NEWSFLASH: BCRA MOSTLY UPHELD

2003-12-10T10:36:00.000-05:00

It looks like most of the challenged provisions in the McCain-Feingold campaign finance law were upheld today by the Supreme Court. This is huge, huge -- and Al Gore won't be in the news for a while now. Rick Hasen will have the scoop; see here for the first of what is sure to be many posts. I'll be back later.

Gore-Dean

2003-12-09T10:34:00.000-05:00

I've been thinking about Gore endorsing Dean and am working on writing something about it. I'll get it out later on today. In the meantime, your thoughts are appreciated. Thanks.

Picking Up Howard's Slack Again

2003-12-08T16:41:00.000-05:00

Today is the 50th anniversary of the oral argument in Brown v. Board of Education. NPR has been presenting several stories about the case, including interviews with some famous folks involved in the case, and behind-the-scenes glimpses of the Court's deliberations. You can access the stories here. (So far, they're pretty interesting.)

Fourth Circuit Says Ray-Loopa Is Soopa-Doopa

2003-12-08T16:07:00.000-05:00

Since Howard Bashman is suffering in St. Croix, I'll mention a big appellate case to come down today. The Fourth Circuit upheld the constitutionality of part of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) in an opinion written by Judge Wilkinson you can access here. The act was passed back in the days before international terrorism gave us pronounceable statute acronyms. Most people pronounce it "Ray-loopa," or, for us slack-jawed hill people, "Ruh-loopa." It is a follow-up to the old Religious Freedom Restoration Act (RFRA, or "riff-ra"). (Hmmm...maybe we should have used "Riffra and Rayloopa" as our pseudonyms -- all we would need is a Human Beat Box.)

Anyway, enough silliness. The basic thrust of the act is to protect the free exercise rights of prisoners. Congress found that, absent Congressional action, religious people in prison would be substantially burdened in the exercise of their rights. Well, that's certainly how Ira Madison, a Virginia prisoner, felt. He wanted to eat a kosher diet due to his conversion to some kind of Hebraic sect in prison. Local prison officials went along with it, but the powers in Richmond disapproved the request, because (1) they thought he had sufficient alternatives within the ordinary menus; (2) they doubted the sincerity of his beliefs; and (3) he had apparently had some disciplinary problems in the past. To me, that sounds like the kind of burden Congress had in mind.

So, Madison sued. The district court found the act to be an unconstitutional establishment of religion. Specifically, the district court decided that the act "impermissibly advanced religion by offering greater legislative protection to the religious rights of prisoners than to other fundamental rights that were similarly burdened." (all quotes from the 4th Cir. opinion) Today, the Fourth Circuit reversed.

I am not going to discuss here the myriad other issues presented by this case, but I want to point them out. Part of the reason the Supreme Court struck down the RFRA in Boerne v. Flores (I was at the Court that day, by the way) was that it went beyond the scope of what Congress could do pursuant to its Fourteenth Amendment, section 5 powers. So in passing RLUIPA, Congress cited its powers under the Spending and Commerce Clause. The Fourth Circuit did not decide whether it has such power under those clauses. Also, Virginia challenged the law on Tenth and Eleventh Amendment grounds, but the court did not address those either. It will be up to the district court to look at those in the first instance now. I should also say that several other challenges to the law are percolating in the courts (the opinion cites them), and a split of authority is developing. I would love to find time to address those issues in some detail later.

Anyway, does any of this sound familiar? A few days ago, I was talking here and here about the Locke v. Davey case, currently before the Supreme Court. There, the establishment and free exercise clauses are butting heads. Today Judge Wilkinson (on everybody's Supreme Court short list) came down squarely on the side of the accommodation principle: that the Government can lift burdens (selectively) on the exercise of religion and shouldn't have to worry about clamors for burdens to be lifted from the exercise of other rights (like free speech or whatnot).

Adopting the state's position, Wilkinson says, would mean that "Congress would have to make determinations in every instance of what fundamental rights are at risk and to what degree they are at risk, and it would be able only to heighten protection for fundamental rights in a symmetric fashion according to these assessments. The byzantine complexities that such compliance would entail would likely cripple government at all levels from providing any fundamental rights with protection above the Constitution's minimum requirements."

Citing a 1992 case holding that neutral laws are ok even if they have the effect of burdening religious practice (Smith -- peyote case), Wilkinson writes, "Our society has a long history of accommodation with respect to matters of belief and conscience. If Americans may not set their beliefs above the law, there must be room to accommodate belief and faith within the law."

That's nice law-talkin' and all, but this case is sort of the inverse of Locke. The Fourth Circuit's decision followed the Lemon test to get to its result, and I don't think it cited the voucher case, but it tracked that principle. As Justice Ginsburg noted last week, "We know we can give funding to religious schools if we want to...." Likewise, Wilkinson says, we know Congress can give Ira his kosher meal if it wants to. But is it required to under the free exercise clause?

A great deal of my work involves prisoner litigation, so I sometimes think of constitutional cases through that lens. If Davey wins, and the Supreme Court recognizes a free exercise right to equal access to the Washington scholarship program, what sorts of free exercise claims will prisoners seek in civil rights suits? And, in the Fourth and a few other circuits, they can cite RLUIPA, too.

I really really hope to write soon about the other issues popping up here, especially the Eleventh Amendment sovereign immunity issue. Can Virginia claim that its sovereign immunity exempts it from granting Ira his free exercise rights? More strategically, can it claim the establishment clause as a sword (RLUIPA is bad because it would make us violate the establishment clause) while at the same time using the Eleventh Amendment as a shield against a free exercise claim? (Or wait...are they both shields?....well, you get the idea.) And is any of this kosher after Lopez and Morrison? If not, can the Spending Clause save everything? Stay tuned....

If You Read This Blog, I Will Bring Back the Sun

2003-12-08T11:00:00.000-05:00

A very warm thank-you to Mr. P for his nice comments about BTQ. Don't let me stop you from going over there, but I can't resist quoting him: "You should be reading Begging the Question, since they have had several good posts lately."

When Mr. P talks, people listen, and it means a lot that he thinks so much of our fledgling little enterprise. I like to think we lured him in with the psuedomyns, but he keeps coming back for the posts.

And to anyone who comes here based on his recommendation, welcome! As you can see, we're just getting off the ground, and we're still trying to keep the blog from turning into a Radical Vertical Impact Simulation (what part of that was "simulated," by the way?). But we appreciate your patronage. Enjoy!

Can Week Again

2003-12-08T08:24:00.000-05:00

When I was in law school, we had this deal where, one week per semester, students could bring in a canned food item and receive immunity from being called on in class. Over the years, I gave a lot of food to needy people just so I didn't have to read for class.

Well, clicking here won't keep you from having to work, but for every visit, Campbell's is donating soup to hunger relief charities. To encourage participation, you make your "donation" by voting for your favorite NFL team. If you don't have one, just pick anybody. (They also make you fill in a little box with the displayed word to foil spammers and auto-voters, but that takes about three seconds.)

Thanks, folks!

Proportion

2003-12-08T07:20:00.000-05:00

I saw here that for the first time, applications to medical school by women outnumbered those by men. This has been the case in law school for a couple of years.

I just found this interesting, and wanted to point it out. I didn't want to make it into fodder for a rant, or to raise any hackles, but this makes me think of my arguments over the affirmative action cases back in the summer. I think that one of the strongest arguments for affirmative action in graduate schools is that it is a social good (a compelling state interest, even) to have a certain quanta of minority professionals. I think it's a bad thing if a state has virtually no black or hispanic doctors or dentists or lawyers or whatever. I'm not trying to encourage or promote any conspiracy theories that some minorities might have about the white establishment. I don't really have time to get into all the reasons. But, to take an example, it's bad for society if black people won't go to the doctor because the only doctors in town are white. And there is at least some probability that a minority doctor will be more likely to go into an underserved community.

Anyway, we have now reached a point where the number of female applicants for law school and medical school is in proportion to their number in the overall population. But we can't forget that this is partly a result of efforts in the courts to create opportunities for women. I share Justice O'Connor's hope that twenty-five years from now, we'll see stories that minority applications to law school and medical school are proportionate to the minority population.

Shelling Out

2003-12-08T06:54:00.000-05:00

I was reading a review of a new restaurant that opened in my city. It styles itself as a "lobster and steak house," or a "steak and lobster house," I can't remember which. The reviewer noted that the lobster was selling that day for $28 per pound. That's bad enough, but she also noted that the smallest lobster they had available -- the smallest -- was six pounds! That comes to $168 for the tiniest crawdad they've got. Un-freakin-believeable. Sorry to break your hearts, but none of my friends will be getting gift certificates from this place for Christmas.

Kerry Says a Dirty Word

2003-12-08T01:56:00.000-05:00

I almost missed this non-story. In an interview with Rolling Stone, Democratic presidential candidate John Kerry discusses his position on authorizing the use of force in Iraq and Howard Dean's position:

Q: Did you feel you were blindsided by Dean's success?

A: Well, not blindsided. I mean, when I voted for the war, I voted for what I thought was best for the country. Did I expect Howard Dean to go off to the left and say, "I'm against everything"? Sure. Did I expect George Bush to f--- it up as badly as he did? I don't think anybody did. (edit mine)

So now conservatives are upset about this. The New York Post called it "an X-rated attack at President Bush," even though you can say the f-word in a PG-13 movie. White House Chief of Staff Andy Card called it "beneath" John Kerry and "disappointing." Kerry's defense is basically "Sailors use salty language."

I am of the opinion that nothing can help John Kerry now, even if this was calculated as an attempt to paint himself as being as angry as Dean. But I'll leave all that aside. What I want to see is somebody point out that the Bushies should be the last folks to get on a high horse about language.

Does anybody remember Bush, during the 2000 campaign, calling New York Times reporter Adam Clymer a "major league asshole"?! I do, "big time." And at the end of this article I saw this nice anecdote:

Though he's done a decent job of hiding it in this election cycle, Bush has been known to use salty language. At the Republican National Convention in 1988, he was asked by a Hartford Courant reporter about what he and his father talked about when they weren't talking about politics.

"P----," Bush replied. (again, edit mine, and the word isn't "pants," although that's close...)

Anyway, what a stupid, piddly, little nothing of a story. But this is what passes for political discourse these days. Oh well, f--- it.

UPDATE, Monday noonish: The New Republic has been running a "primary" in which they grade the candidates on various things. They have given Kerry an "A" in the "General Likeability" category for his f-bomb.

UPDATE, Tuesday a.m.: According to the last item in this dispatch from Slate, Kerry is now cursing at almost every opportunity. No more f-bombs (yet), but several references to "kicking ass." I can just see the inaugural now: "Ask not whose ass your country can kick, ask who you can f--- up for your country!"

Greatest Hits

2003-12-08T00:33:00.000-05:00

"Greatest Hits collections are for housewives and little girls." -- Bruce McCulloch

And guys like me who are too tech-stupid and lazy to burn their own. Last week I bought three greatest hits CDs. I wasn't even really meaning to. I was in Best Buy and wandered into the CD section. I didn't even know that one of these albums existed, but all three were from bands I liked but didn't have any CDs of. All the songs I liked were on two of them, and the third had most of them (I liked all the ones on there, but there were a couple I wished had been included).

I was retro before retro was cool. And that was before it got lame and then got cool again! I still make mix tapes (as in cassette tapes) to listen to in my car. My cell phone is large and heavy and doesn't have anything that flips open. I've always been late to the high-tech party. I took a rotary-dial phone to college, and immediately had to buy a new phone because my school did all its class registration via touch-tone phone. I still have that phone, by the way. The first stereo I ever bought had a record player on it. I don't have a TiVo or a dvd player.

But I'm trying to drag myself into the digital age. I don't want to be a housewife or little girl anymore. I want to violate my own copyrights. (Hey -- if those artists want money, the should put out some new material instead of killing time with greatest hits packages!) I don't like the looks I get when I rent VHS tapes -- it's like they must have looked at BetaMax folks twenty years ago. Plus, the selection sucks.

So, I'm thinking about finally getting a dvd player and upgrading my computer, although I may just get an external burner and hold off on a new computer for another year or so. Any advice is hereby solicited. I'm keeping the tape player in my car, though.

[Aside: Writing this post made me think of the fun word retronym. An example from the post is "rotary phone." It used to just be a "phone," until they came out with buttons on phones. Other examples are "black and white television" and "acousitc guitar." We had to come up with a new way of describing an old thing. I saw a reference to "film cameras," which would have sounded stupidly redundant only a few years ago, before digital cameras. This is an interesting phenomenon, our eagerness to adopt new technology as the standard (in language, too) and to use the simplest word possible to express a thought. I wonder if we will ever refer to email simply as "mail," and call everything else "snail mail." My guess is no, but only because "email" is so easy to say. If it was as cumbersome as "color television" or "electric guitar," I'd say maybe. How long before "camera" refers only to the digital kind?]

Wide Open Spaces

2003-12-07T23:18:00.000-05:00

The New York Times ran an interesting series last week about "the emptying Great Plains." There are three stories here, here, and here, plus a neat "interactive" feature where you can listen to some of the subjects of the story speak. (The Times requires a registration to read stuff, and even then they archive stuff after a week or something, so act fast. I have the full text of these articles if you would like them, though.)

I grew up in a pretty rural area, but it's still hard to imagine such a huge area of the country basically empty. There's a story about a company in Kansas that lays telepone and high-speed internet cable out in the middle of nowhere. (That "universal service fee" on your phone bill subsidizes this.) He said they have something like two people per square mile out there. With the rise of Big Agra, and the departure of manufacturing, there's just no one there anymore.

I'm not going to spin out the electoral map (red state/blue state) ramifications of this, although they exist. And I'm not going to lament the loss of "a way of life," for two reasons. One, I don't have any room to talk, because I'm sure not going back home either. And two, these things happen; times change. I guess what's interesting to me is how we were supposed to have this wired (and now wireless), satellite, videoconference, computer-driven world that was going to make it just as easy to be in Nowhere, Nebraska as NYC. I didn't really have much of a point here, I just thought the stories were well done. I'm just going to blame it all on NAFTA and the U.N. like everything else.

R.I.P., A.U.S.A.

2003-12-07T22:41:00.000-05:00

In case you hadn’t heard, there’s this really awful story about a man named Jonathan Luna, who was an Assistant U.S. Attorney in Maryland. Last week, for reasons that are still unknown, he left his Baltimore office and ended up dead in Lancaster, Pennsylvania. Howard Bashman at "How Appealing" has been all over this story, with posts here, here, here, and here, just in last day or so. The short version is that Luna was stabbed many times and drowned in a river.

As of now, it doesn’t look like the murder was connected to any of Luna’s cases, but instead might have been because of something personal going on in his life. What that means, I have no idea. It’s obviously a tragedy for Luna’s family (he had two small kids), and I’m sure it has really shaken up that office.

I worked one summer in a U.S. Attorney’s office, although not in that district. On our first day, they showed us news clippings about shoot-outs in the courthouse and witnesses being killed to prevent them from testifying. It’s been a few years, and right now I don’t remember if an attorney from that office had ever been killed. Not to be melodramatic about it, but they made it very clear that we were dealing with dangerous criminals who might be willing to kill to keep from going to prison. The people who deal with that in person (and I’m including most defense attorneys here too, because they get even closer, and judges too) are brave folks. One reason I don’t want to do that kind of thing is that I prefer to keep it all nice and academic and theoretical, and quite frankly, I prefer not having to deal with people in those situations.

Anyway, it doesn’t look like Luna’s killing was because of his work, but that’s probably not because there aren’t any criminals out there who wanted to kill him – he was a prosecutor in New York City before he came to Maryland. I’m not trying to make him into a hero, because he was just a regular guy who did a tough job. But apparently he was good at it, and it’s a shame something in his life got so screwed up. Here’s hoping they figure it out.

Thinking and Looking

2003-12-07T07:17:00.000-05:00

"Thinking is more interesting than knowing, but less interesting than looking." -- Goethe.

Lest I seem pretentious, and in case any of you had any doubts, I don't read Goethe. Especially not at this time of day/night. But I liked the quote, and hadn't posted anything in a while.

I saw it on "Stay of Execution" a blog by a bankruptcy lawyer in Maine. (That's a good blog, by the way; my favorite post is this one -- oh, and this one, where I found out where we got the term "boilerplate.")

I've been spending even more time than usual lately looking at other blogs, to get a sense of what I like and what I don't. I'm not specifically trying to emulate anyone else's style here, but it's nice to see the variety out there and get some ideas.

Anyway, I'm going to go do some more looking.

Discuss Amongst Yourselves

2003-12-06T05:53:00.000-05:00

There's a question going around some of the blogs I read which I thought I would pass on to you. What is the worst Supreme Court decision ever? If you could remove one case from the books, what would it be, and why?

The rules: You can't say Roe v. Wade. If you don't like abortion, that's just too easy. And, removing a case also wipes out all the cases relying on it. So, for example, if you took out Roe, that would eliminate Casey and Carhart and all the other abortion cases. Oh, and you can't say Marbury v. Madison either, because that would just screw everything up. If a case has already been overruled, you can't choose it (but you can choose the overruling case). And if somebody takes your first choice, please give us your second.

My tentative first candidates would be Hans v. Louisiana or The Slaughterhouse Cases. But I'm still thinking about it. Anyway, if you want to, feel free to suggest your own choices in the comments. Once I come to a final decision, I'll update the post.

By the way, I know we have at least one regular reader who is not a lawyer. I'm not trying to exclude him with this post. In fact, I would be interested to see what he (or any other non-lawyer readers we have) would say. My guess is that the lawyers' choices have more to do with particularly distasteful doctrines, or maybe progeny of cases that we feel have taken the original too far. (I think my suggestions above probably fit that bill.) But my hunch is that a non-lawyer's decision will have more to do with the real world. Obviously, I wouldn't require a non-lawyer to provide exact citation; saying something like "the flag burning case" or "the gay sex case" will probably give us enough to figure it out.

Sorry for the overt law-geekiness, but I find this a fun little mental exercise in historical revisionism, or something.

[By the way, the original posting of this question was on a blog called Sugar, Mr. Poon?, a reference I'm sure at least one of our readers will find incredibly funny. His post had 60 comments when I checked it, so if you need suggestions, try those.]