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Saturday, September 13, 2008

Will Conservatives Try to Block a President Obama's Judicial Nominees?

MSNBC wonders whether conservative groups will mobilize to defeat controversial judicial nominations if Senator Obama is elected president. I hope not. While I doubt a President Obama's nominees would be much to my liking, I do not think the Senate should reject a President's judicial nominees on ideological grounds. Rather, I believe the Senate's "advise and consent" role should be limited to ensuring that judicial nominees have the necessary qualifications and temperament (as in, an understanding of what it means to be a judge).

As Alexander Hamilton explained in Federalist 76, we are likely to get better nominees from a single decision-maker (the President) than a committee, and the primary purpose of Senate confirmation is to place a "check upon a spirit of favoritism in the President" and "to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." His concern was cronyism, not differences in judicial philosophy. Allowing the Senate to have a greater role, he warned, would encourage an undue focus on narrow and parochial concerns, and I think that is what we've seen as the confirmation process has become more politicized. Senators spend hours trying to get nominees to tip their hand on specific issues or cases, whereas recent Presidents have largely focused on a prospective judge's overall judicial philosophy. In my view, the latter is the better way to do it.

So if we get a President Obama, and he nominates accomplished left-leaning lawyers and judges to the Supreme Court and federal appellate courts, I hope most conservatives and Republican Senators let them go through without much of a fight. This is how most Republicans treated President Clinton's nominations of Stephen Breyer and Ruth Bader Ginsburg, and equally qualified Obama nominees deserve nothing less. If this means that a President Obama gets to place several quite "liberal" jurists on the bench, so be it. Republicans have long argued that Senate Democrats have treated President Bush's judicial nominees unfairly. They're right, but the proper principled response is to set the right example, not to respond in kind, let alone to make our excessively politicized judicial confirmation process even worse.

UPDATE: Several comments make good points and raise important questions that I will address in a follow-up post. What is odd, however, is that some commenters seem to believe that Republicans have never obstructed Democratic judicial nominees. This is silly. While Republican opposition to Bill Clinton's Supreme Court nominees was far less that Democratic opposition to both Bushes' Supreme Court nominees, the Republican Senate certainly obstructed some of Clinton's nominees to lower courts -- obstruction which led Senate Democrats to respond in kind, and then some. I've blogged on this extensively before. For round ups with links, see here and here.

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Will Biden or Palin Influence Judicial Picks?

The Legal Times has an interesting article suggesting that either prospective VP could play a role in the selection of judicial nominees during the next administration.

In Biden, Sen. Barack Obama selected a running mate who, as chairman of the Senate Judiciary Committee from 1987 to 1995, officiated at the confirmation hearings of five Supreme Court justices, one would-be justice, and hundreds of lower court judges.

Palin brings less of a record in this regard, but she already has had more impact on the Alaska judiciary than her predecessor. Since taking office in December 2006, Palin has seated more than a dozen judges, including a state Supreme Court justice and a state court of appeals judge, the first appellate appointments in the state in more than a decade.

The article also includes some good reporting on Palin's approach to judicial selection as Governor of Alaska. Among other things, it notes that during interviews for prospective appointments, Palin asked prospective judges about their overall judicial philosophy, but avoided asking about specific cases.

Harrington, executive director of Alaska Legal Services Corp., interviewed with Palin in November 2007, days after the state Supreme Court issued a ruling striking down a law that required girls less than 17 years old and younger to get permission from their parents before receiving an abortion. Palin, who opposes abortion except in cases where the mother's life is threatened, called the ruling "outrageous." Harrington anticipated a question about the ruling. But Palin never asked about the case or any other, Harrington says.

"I was pleasantly surprised that the topic did not come up," he says. "I thought that was an indication that the governor and her staff were cognizant of the ethical responsibilities of someone who is a candidate for the court."

He and Palin discussed Alaskan native law, his role models and his work history. At one point, she asked him to define an activist judge. He said he was expecting that, too.

"I think she has a good sense of the separation of powers and the proper role of the judiciary," Harrington says. "She thinks the role of the court is to decide cases and controversies that come before it, and she wants judges to do a good job of applying the law and precedent."

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UK Court Greenlights Green Vandalism:

A British jury cleared a half-dozen Greenpeace activists of charges they caused £35,000 of damage to a coal-fired power plant on the grounds that such actions were justified to help prevent the threat posed by climate change. Among those who testified on behalf of the activist was NASA scientist James Hansen. The Independent reports on the verdict:

Jurors accepted defence arguments that the six had a "lawful excuse" to damage property at Kingsnorth power station in Kent to prevent even greater damage caused by climate change. The defence of "lawful excuse" under the Criminal Damage Act 1971 allows damage to be caused to property to prevent even greater damage – such as breaking down the door of a burning house to tackle a fire. . . .

Kingsnorth was the centre for mass protests by climate camp activists last month. Last year, three protesters managed to paint Gordon Brown's name on the plant's chimney. Their handi-work cost £35,000 to remove. . . .

During the eight-day trial, the world's leading climate scientist, Professor James Hansen of Nasa . . . called for an moratorium on all coal-fired power stations, and his hour-long testimony about the gravity of the climate danger, which painted a bleak picture, was listened to intently by the jury of nine women and three men.

Professor Hansen, who first alerted the world to the global warming threat in June 1988 with testimony to a US senate committee in Washington, and who last year said the earth was in "imminent peril" from the warming atmosphere, asserted that emissions of CO2 from Kings-north would damage property through the effects of the climate change they would help to cause. . . .

During the trial the defendants said they had acted lawfully, owing to an honestly held belief that their attempt to stop emissions from Kingsnorth would prevent further damage to properties worldwide caused by global warming. Their aim, they said, was to rein back CO2 emissions and bring urgent pressure to bear on the Government and E.ON to changes policies. They insisted their action had caused the minimum amount of damage necessary to close the plant down and constituted a "proportionate response" to the increasing environmental threat.

This was not the first time a British jury bought a "lawful excuse" defense by Greenpeace activists. In 1999 a jury acquitted activists who sabotaged a field of GM crops.

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Ohio GOP Challenges New Voting Rules:

In 2004, Ohio Democrats alleged Republican Secretary of State Ken Blackwell was applying the state's election rules to benefit Republicans. Now the shoe is on the other foot and Ohio Republicans are accusing Democratic Secretary of State Jennifer Brunner is make rule changes to help Democrats. Specifically, Ohio Republicans are challenging new rules that would allow some would-be early voters to register and vote on the same day. As the WSJ reports:

In Ohio, a recently enacted state law -- the subject of the Brunner directive -- allows residents, for the first time in a general presidential election, to vote early by absentee ballot without providing a justification. Advocates for the homeless and other groups say they will direct new voters to take advantage of the overlap between early voting, which begins Sept. 30, and voter registration, which ends Oct. 6. During that window, citizens can register and vote simultaneously. The outreach efforts are expected to benefit Democrats.

The Northeast Ohio Coalition for the Homeless, a Cleveland-based umbrella group for service providers, housing activists and others, is making plans to drive about 2,000 shelter residents to polling places during the overlap period. "This is a huge opportunity to prove to elected officials that very low-income people do vote," said Brian Davis, executive director of the group.

Republican officials are furious, charging that the one-stop process will encourage voter fraud. They argue that a state law requires Ohio residents to register at least 30 days before voting, so same-day registration and voting should be banned.

Ms. Brunner's position is that early ballots do not constitute votes until they are tabulated on Nov. 4, said Jeff Ortega, a spokesman for Ms. Brunner. In a statement about Friday's lawsuit, Ms. Brunner said, "It is unfortunate that a small, but vocal, group of Republican leaders continues to inject confusion and chaos in our elections."

A suit has been filed to stop the same-day registration and voting, and I will be curious to read the briefs and see how it comes out.

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Best Courts (and Worst)?

Which are the best state high courts? It depends on what you mean by “best.” Suppose you think the best courts are those that write the most influential opinions – are cited the most by out-of-jurisdiction courts. Then the best are California, Delaware, and Montana. The worst are Missouri, the Texas criminal high court, and the Oklahoma criminal high court. (Texas and Oklahoma have separate civil and criminal high courts.)

Suppose you think the best courts are those that publish the most opinions. Then the best are Georgia, Mississippi, and Arkansas. The worst are North Carolina, Delaware, and New Mexico.

Maybe the best courts are those that are most independent (which we define to mean that partisan differences among judges have little effect on outcomes). Then the best are Rhode Island, New York, and Oregon. The worst are Connecticut, Indiana, and Michigan.

And overall? If you (arbitrarily?) give equal weighting to the three measures, the best are California, Arkansas (!?), and North Dakota. The worst are Missouri, the Oklahoma criminal court, and Michigan.

Such is what I found, with two colleagues, when we crunched the numbers taken from 1998-2000. One might compare our rankings with this one and this one. What do practitioners think? If you have practiced in front of any of these courts (or have a sense of their reputation), please let me know in the comment section what you think of these rankings. (Remember: high courts only, not the entire judicial system for a state.) Judges seem not particularly happy about them (except for these ones).

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The Post Gets a Rewrite (But Doesn't Tell Its Readers):

On Friday, the Washington Post ran this story about Gov. Sarah Palin's speech before a brigade of soldiers bound for Iraq -- at least, that link is to the story that is on the Post's web page. But this is not the story as it originally appeared. As Bill Kristol notes here, the second paragraph of the story was rewritten -- and an entire sentence replaced -- to fix a gross error that dramatically distorted what Palin had said. Most egregiously, there is no indication on the web-version of the story that it was corrected, not even a note at the end of the piece. Whatever one thinks of the Post's reporting here, it should at least acknowledge that it changed the story's text to fix an error. If we bloggers are expected to disclose substantive revisions to our blog posts, shouldn't the MSM be held to the same standard?

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What Is the "Bush Doctrine"?

Today's Washington Post has a front-page story headlined "Many Versions of 'Bush Doctrine.'" Over on the op-ed page, Charles Krauthammer -- apparently the first pundit to coin the phrase, and a critic of Palin's nomination -- suggests there are at least four "Bush Doctrines," and the one Charles Gibson elucidated is the wrong one. For what it's worth, I don't know whether I would have identified the "right" definition of the "Bush Doctrine" if asked the same question, and I haven't seen the full interview yet, so I don't have an opinion of Palin's performance on this, or other, questions.

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Law Firm Campaign Contributions Increase:

The National Law Journal reports that lawyer and law firm campaign contributions to the presidential candidates increased over the summer. McCain saw a bigger increase in law-related contributions, but Obama's take was still twice as high.

Related Posts (on one page):

  1. Law Firm Campaign Contributions Increase:
  2. BigLaw Political Donations:
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You Can Put Lipstick on a Pit Bull

but she's still an intellectual lightweight. Sarah Palin apparently has never heard the phrase "Bush Doctrine." Sure, the phrase has several potential meanings, but she doesn't seem to be familiar with any of them. Talk about the look of a deer caught in the headlights. She appears not to understand that Fannie Mae and Freddie Mac are not (or at least until this week were not) funded by the federal government. Before the mortgage market imploded, plenty of policy sophisticates might not have known this, but there sure has been a lot of press about those two companies this summer. She says she's against creating embryos for stem cell research, apparently not realizing that the bills supported by both Obama and McCain would allow federal funding only of research on embryos that are left over from fertilization clinics, not embryos created for research. She claims government spending can be substantially reduced merely by finding "efficiencies" in entitlements. She doesn't appear to notice any inconsistency between her claim that she said "thanks, but no thanks" regarding the bridge to nowhere and the fact that she kept the money. And, of course, the list could go on and on.

The problem with Palin on a national ticket is not her lack of experience, per se. Few governors have much, if any, direct foreign policy experience, and we elect them President quite often. Specific experience can be quite overrated, and if you blindly use it to reinforce rather than challenge your prior beliefs and prejudices it can be downright harmful. The problem is that it isn't clear that she even pays much attention to the newspapers or has had, prior to this week's airplane flight to Alaska with McCain staffers, any in-depth conversations or even in-depth thoughts about the critical issues that have faced the country over the last several years. The Palin interviews with Charlie Gibson over the past two days have provided definitive proof that she lacks the intellectual heft that she will sorely need if she ever were to find herself having to weigh and choose between competing arguments made by advisors about complicated policy questions.

She's in way over her head. Worse, if you believe what she told Gibson about her lack of hesitation when McCain offered her the position, she doesn't even know it. No matter how much you might like or admire John McCain, given McCain's age and prior health issues, you should be very frightened about casting your vote for him.

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Do Voters Have a Moral Duty to Be Informed About Politics?

In a recent paper excerpted by Bryan Caplan, Brown philosopher Jason Brennan argues that the answer to this question is yes, and even suggests that poorly informed citizens have a moral obligation not to exercise the franchise:

Irresponsible individual voters ought to abstain rather than vote badly. This thesis may seem anti-democratic. Yet it is really a claim about voter responsibility and how voters can fail to meet this responsibility. On my view, voters are not obligated to vote, but if they do vote, they owe it to others and themselves to be adequately rational, unbiased, just, and informed about their political beliefs. Similarly, most of us think we are not obligated to become parents, but if we are to be parents, we ought to be responsible, good parents. We are not obligated to become surgeons, but if we do become surgeons, we ought to be responsible, good surgeons. We are not obligated to drive, but if we do drive, we ought to be responsible drivers. The same goes for voting.

Concluding that voters have a moral duty to be informed about politics doesn't require one to also believe that government should deny the franchise to the poorly informed. One can believe that all adult citizens should have a right to vote, while also holding that they have a duty to either become adequately informed or refrain from using that right. The latter obligation may not be enforceable by the government; but that doesn't mean that it doesn't exist. We have many moral duties that cannot or should not be enforced by law. Consider, for example, our moral obligations to our friends. If I betray a friend's trust, the government does not and should not punish me for it. But that doesn't mean that it's a morally acceptable thing to do.

If ignorant voters were choosing leaders and policies only for themselves, there might be no ethical problem with their being ill-informed. They would bear the full cost of their ignorance. Unfortunately, as John Stuart Mill pointed out, to vote is to wield "power over others." The politicians elected by ignorant voters will rule over all of us, knowledgeable and ignorant alike. The ethical voter therefore has a responsibility to his fellow citizens as well as to himself.

Unfortunately, the evidence suggests that the vast majority of citizens are both poorly informed about politics and often highly biased in their evaluation of the information they do know. If citizens do indeed have a duty to either become informed about politics or refrain from casting a ballot, most of them aren't living up to it. I have argued that this is perfectly rational and not a sign of voters' "stupidity." But rational conduct isn't always morally defensible conduct.

I'm not yet completely convinced that citizens have a moral duty to become informed about politics or not vote. Even if they do, it might be overriden by other moral imperatives in some cases (e.g. - if you can't become informed about this year's election because your time is taken up by other pressing moral duties, such as the need to care for a sick relative who requires round-the-clock attention). It's also difficult to determine exactly how much knowledge should be considered sufficient to meet the average voter's moral obligations to fellow citizens. However, I am sympathetic to the general outline of Brennan's argument as I understand it so far. I look forward to reading his paper in detail once I get my hands on the full version.

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Friday, September 12, 2008

Palin Haiku Contest:

Here are a couple to get you started.

Right-wingers rejoice

Maybe Obama Won't Win!

Palin on ticket

Democrats panic

What strikes terror in their hearts?

Pit bull with lipstick

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Pittsburgh Decision on Warrant Requirement for Historical Cell Site Records: A few readers have e-mailed me about the Pittsburgh district court decision requiring a probable cause warrant for stored cell site records. The court affirmed a magistrate's ruling that the Stored Communications Act doesn't govern historical cell site records as a statutory matter, and thus that the Rule 41 probable cause warrant requirement applied by default. The court added that this statutory reading was bolstered by the likelihood that the Fourth Amendment also protected the information.

  I don't have time for a full post on this, but the Pittsburgh decision is plainly incorrect. Of course the Stored Communications Act covers this: It's a "record concerning an electronic communication service" under 18 U.S.C. 2703(c) which can be compelled with a Terry stop "specific and articulable facts" court order under 18 U.S.C. 2703(c)(2), not a warrant. Also, the notion that the Fourth Amendment protects cell-site info is just pretty clearly wrong under the Supreme Court's decision in Smith v. Maryland. A cell site signal is closely analogous to numbers dialed in Smith: It's a signal that the user sends to the phone company that is necessary for the phone company to deliver the user's calls.

  Some have tried to argue that cell site data is different than numbers dialed because (a) some people think that cell phones work by magic, rather than by sending communications to cell towers to let the provider know where the phone is located, and (b) location information is more private than numbers dialed information. But these arguments don't work, I think. First, it's hard to see why the Fourth Amendment should protect a user's failure to have a basic understanding of how technology works. Second, the numbers dialed from a landline phone also give location information: In fact, they tell the police that the person is inside their home, the most private of all places under the Fourth Amendment. The Smith court didn't think this was relevant, though, so under Smith I don't think it's relevant here, either.

  Critically, this doesn't mean that historical cell site data should receive no protection. Historical cell site data should and does receive the protection of the Stored Communications Act, which requires a court order based on a showing of specic and articulable facts to believe the information would be relevant and material to an ongoing criminal investigation. But under current law, a warrant shouldn't be required. Anyway, I hope the U.S. will appeal the decision; I would guess the Third Circuit will look at this differently. And for more on the Fourth Amendment issues here, you might be interested in my draft article, The Case for the Third Party Doctrine.
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Briefs on Whether the Second Amendment Should Apply to the States Via the Fourteenth:

This is the "incorporation" question, and it's raised in Nordyke v. King, a case now pending before the Ninth Circuit; the pro-incorporation and the anti-incorporation briefs are now both available.

Note, though, that the issue in this case relates only to a ban on possession on government-owned nonresidential property: Alameda County banned firearms possession in county-owned "parks, recreational areas, historic sites, parking lots of public buildings (the State prohibits gun possession within the same buildings), and the County fairgrounds." The Ninth Circuit might well conclude that it need not decide whether the Second Amendment is incorporated, because even if it is incorporated it doesn't apply to the government's restrictions on the use of its own nonresidential property.

I'm not sure whether such a result would be right or wrong, but I want to flag the possibility that the Circuit will reach it. The First and Fourth Amendments often (though not always) apply differently to the government as proprietor than to the government as regulator of what happens on private property; likewise as to the right to an abortion; the circuit may well hold that the Second Amendment does so, too, and that it gives the government broad authority to control gun possession.

Note, by the way, that it's also possible that there may be a right to possess a gun in self-defense on government property, but no right to possess a gun for purpose of selling it. (The right to keep and bear arms necessarily includes the right not to have the government stop everyone from selling you such guns, just as the right to use contraceptives includes the right not to have the government stop the sales of contraceptives. But it need not include the right to buy a gun on government property, just as the right to have an abortion does not include the right to get an abortion in a county-owned hospital.)

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OK for Las Cruces to Have Three Crosses on Its City Seal:

So says a Tenth Circuit opinion handed down today. (The court also upholds the use of similar imagery in some other government displays around town.)

The Supreme Court has held that government endorsement of religion usually violates the Establishment Clause, and quite a few circuit cases have applied this test to strike down the use of religious imagery in city seals. But the Tenth Circuit concludes — in my view, quite correctly — that "Las Cruces's unique history explains why the City's name translates as 'The Crosses' and, relatedly, why the City uses crosses in its symbol," and this explanation shows that reasonable observers wouldn't see the seal as an attempt to endorse Christianity.

Here's the star of the show:

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Really Cool Photo Blog: If you like old black & white photographs, you'll love the photo blog Shorpy.com. It features new photos every day, very high resolution, mostly of American life in the early 20th century (and mostly around Washington, DC). It's super-cool stuff: I started visiting it about a week ago, and it's been a treat every day. Also note that each post has a "view full size" option that expands the photo. Hat tip: Eck.
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The New Obama Ad: This new Obama ad is really going to hurt Obama among 80s retro voters. But then I have both a turntable and a Rubik's cube in my office, so maybe I am overestimating the demographic.
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Sex, Drugs, and Minerals Management:

A new Interior Department Inspector General report details serious shenanigans at the Minerals Management Service office responsible for the "royalty-in-kind" program, including the acceptance of gifts from industry, cronyism, and "a culture of substance abuse and promiscuity," including illicit drug use and sexual relations with energy company representatives. (It even sounds worse than the Ohio Attorney General's office under Marc Dann.) . As the Washington Post reports:

Investigators from the Interior Department's inspector general's office said more than a dozen employees, including the former director of the oil royalty program, took meals, ski trips, sports tickets and golf outings from industry representatives. The report alleges that the former director, Gregory W. Smith, also netted more than $30,000 from improper outside work. . . .

n the report released yesterday, investigators said they "discovered a culture of substance abuse and promiscuity" in which employees accepted gratuities "with prodigious frequency." The report cited one e-mail from a Shell Pipeline representative asking a woman in the royalty office to attend "tailgating festivities" at a Houston Texans football game: "You're invited . . . have you and the girls meet at my place at 6am for bubble baths and final prep. Just kidding."

Besides Shell, the energy company employees mentioned in the report worked for Chevron, Hess and Gary-Williams Energy. The social outings detailed in the report included alcohol-, cocaine- and marijuana-filled parties where certain employees of the Minerals Management Service were nicknamed the "MMS Chicks" by the energy employees. The companies paid for federal workers to attend football and baseball games, PGA Tour events, Colorado ski trips, paintball outings and "treasure hunts," investigators found.

MMS officials are supposed to maintain "arms length" relationships with energy company officials yet, as the report noted, "Sexual relationships with prohibited sources cannot, by definition, be arms-length."

In response, Interior Department Dirk Kempthorne is promising reform.

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Virginia Supreme Court Reverses Itself on Rehearing of First Amendment Spam Case:

In this morning's Jaynes v. Commonwealth decision, the Virginia Supreme Court unanimously struck down as overbroad a Virginia law that banned

[using] a computer or computer network with the intent to falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail ....

The court concluded that the law was substantially overbroad because it covered not just commercial spam advertising (such as the material that Jaynes was distributing) but also a substantial amount of innocent anonymous and pseudonymous noncommercial e-mail: "[W]ere the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute."

The court also rejected the state's argument that the statute should be read narrowly to cover only commercial advertising: "Nothing in the statute suggests the limited applications advanced by the Commonwealth. If we adopted the Commonwealth’s suggested construction we would be rewriting Code § 18.2-152.3:1 in a material and substantive way. Such a task lies within the province of the General Assembly, not the courts."

In late February, the same court held by a 4-3 vote that the First Amendment overbreadth doctrine applied only to federal courts, and not to state courts, a decision that struck me as quite wrong given the Supreme Court's overbreadth precedents. A petition for rehearing, however, prompted four Justices to change their minds.

Thanks to How Appealing for the pointer.

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Constitutional Interpretation at "The View": Looks like the Thirteenth Amendment Public Awareness Society has its work cut out for it.
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Palin Palin: Palin palin, palin palin Palin Palin. Palin Palin. Palin palin palin palin -- palin. (Palin: Palin)
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"You are a Mother of Five

and were a homemaker for many years before entering politics. You say ... the skills you honed doing those things were the same ones you needed when you got [into politics]. How so?"

"[A:] Absolutely, and this is what I want women to know, so they recognize the value of their own path, their unique experience. I've been in politics a while, ... and this is a very rough-and-tumble.... I shouldn't say 'rough,' let me say a very challenging arena to be in. But as challenging as it is, nothing is as challenging as raising a family -- nothing. That experience forced me to be disciplined, diplomatic, focused, and successful, and I brought that discipline and focus to [my political career]. Also, having a family keeps you focused on the future, which is the biggest inspiration in politics. In order to do what it takes to succeed in politics, you have to be inspired by your constituents, the power of your ideas, and the fact that you speak on behalf of children and their future, whether you have children of your own or not. It makes all the difference in the world...."

Very interesting. (The interview quotes are from here, though I've seen the same in yesterday's edition of The Wall Street Journal's Political Diary Newsletter, which I've always found to be reliable in its quotations.)

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Comedian Facing Criminal Prosecution for Insulting Religious Leader at Political Rally:

The Times (London) reports:

An Italian comedienne who said that Pope Benedict XVI would go to Hell and be tormented by homosexual demons is facing a prison term of up to five years.

Addressing a Rome rally in July, Sabrina Guzzanti [said,] ... after warning everyone that within 20 years Italian teachers would be vetted and chosen by the Vatican, ... "But then, within 20 years the Pope will be where he ought to be -— in Hell, tormented by great big poofter devils, and very active ones, not passive ones." ...

She is facing prosecution for "offending the honour of the sacred and inviolable person" of Benedict XVI.

Giovanni Ferrara, the Rome prosecutor, is invoking the 1929 Lateran Treaty between Italy and the Vatican, which stipulates that an insult to the Pope carries the same penalty as an insult to the Italian President. Prosecution requires authorisation from the Ministry of Justice, for which Mr Ferrara has applied....

The July rally was called to protest against alleged interference by the Vatican and the Catholic Church in Italian affairs, from abortion to gay rights, but also to attack the Prime Minister for passing "ad personam" laws to protect his own interests and avoid prosecution on corruption allegations....

The move to prosecute her over her anti-papal remarks was praised by some on the centre Right, including Luca Volonte, a Christian Democrat, who said that "gratuitous insults must be punished".

However, many people were strongly critical. Paolo Guzzanti, Ms Guzzanti's father and a centre Right MP, said the move was "a return to the Middle Ages”....

Even certain sections of the Church are unimpressed. Father Bartolomeo Sorge, a Jesuit scholar, told La Repubblica the move to prosecute Ms Guzzanzi was incomprehensible. "We Christians put up with many insults, it is part of being a Christian, as is forgiveness. I feel sure the Pope has already forgiven those who insulted him on Piazza Navona."

The article also points to this stanza from Dante, which "condemned Boniface VIII to Hell even before his death" (Henry Boyd, translator):
“Shame of the Papal Chair! and art thou come,
Hollow and dismal from the fiery tomb,”
He cried -– “a later doom the Prophet told –-
But come, Seducer of the Spouse of God,
Who rul’d the christian world with iron rod,
Come! thine eternal revenues behold!”

I think suggesting, even humorously, that your ideological enemies ought to be sexually abused is in pretty poor taste. But it seems to me that a democracy should allow even such speech, especially when it comes to important religious and political leaders.

Even if in theory public discourse wouldn't lose much from insults such as this, I think the U.S. Supreme Court was right in saying that the line between fair criticism and "outrageous" criticism can't be reliably drawn by legal institutions. And this is especially so when the judgment of the decisionmakers can easily be colored by their ideological sympathy with or antipathy to the target of the speech. Plus, of course, allowing prosecutions such as this will also encourage censorship envy on the part of those who want to suppress alleged blasphemy against their own religion and criticism of their own religious leaders; and it will make it harder to resist calls for such further censorship.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

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The Most Powerful Americans Over Age 80:

Slate has an interesting list. My thinking: Placing Justice Stevens at #1 reflects a common overestimation of the importance of the Supreme Court; though I'm no expert at all on business, my sense is that many of the top businesspeople on the list are easily much more powerful than Justice Stevens, if you define power as the ability to affect many people's lives in an important way. But I might be wrong; check out the list for yourselves.

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Thursday, September 11, 2008

Charlie Gibson’s Big Mistake.

One thing I learned tonight is that neither Charlie Gibson nor anyone on his staff reads the Volokh Conspiracy (or Hot Air for that matter).

Outrageously, in his interview Gibson claimed that Sarah Palin had called the Iraq War “a task . . . from God.”

No she didn’t. She prayed that it was a task from God. As I said a few days ago:

I find it hard to believe that Anderson Cooper [and now, Charlie Gibson] does not understand the difference between praying for something you hope is true and stating that it is true.

Is praying for peace throughout the world the same as saying that there is peace throughout the world?

If I had prayed for the press to be fair to Sarah Palin that would not be the same as stating that the press is being fair to Sarah Palin.

Here was the exchange between Palin and Gibson tonight:

GIBSON: You said recently, in your old church, “Our national leaders are sending U.S. soldiers on a task that is from God.” Are we fighting a holy war?

PALIN: You know, I don’t know if that was my exact quote.

GIBSON: Exact words.

PALIN: But the reference there is a repeat of Abraham Lincoln’s words when he said — first, he suggested never presume to know what God’s will is, and I would never presume to know God’s will or to speak God’s words.

But what Abraham Lincoln had said, and that’s a repeat in my comments, was let us not pray that God is on our side in a war or any other time, but let us pray that we are on God’s side.

That’s what that comment was all about, Charlie. . . .

GIBSON: But you went on and said, “There is a plan and it is God’s plan.”

No, Charlie, she prayed that that was true.

The more I look at this, the more it looks intentional. How could Gibson and the staff have blown both quotes (not just one as Anderson Cooper did on CNN)?

Clearly, not enough is being done to debunk the myths that the press is spreading, and these debunkings are not being spread widely enough if the staff of ABC hasn’t learned that what they are saying is not true.

Again, rather than relying on competence and fairness to solve the problem, newsrooms need to be integrated politically.

Political segregation and lack of ideological diversity just doesn’t work, no matter how careful or how fair a newsroom tries to be. And this time, I am struggling to believe ABC was even trying to be fair.

Here was most of my earlier post, which includes a transcript of Palin's actual remarks in her former church:

DID PALIN ACTUALLY SAY THAT IRAQ IS "A TASK . . . FROM GOD"?

While searching for CNN's story on Troopergate, I came across a surprising statement of Palin's quoted by Anderson Cooper: that the war in Iraq was "a task that is from God":

[Palin] also talked to church members about “being saved” at the Assembly of God and suggested to them that the war in Iraq is a mission from God. Palin said, “our national leaders are sending them out on a task that is from God. That’s what we have to make sure that we are praying for, that there is a plan and that that plan is God’s plan.”

Wow! CNN caught Palin saying on tape that Iraq was a task from God. Ouch!

But then I listended to the clip. Palin actually said:

“Pray for our military. He's [Palin's son Trask] going to be deployed in September to Iraq. Pray for our military men and women who are striving to do also what is right for this country – that our leaders, our national leaders are sending them out on a task that is from God. That’s what we have to make sure we are praying for, that there is a plan and that that plan is God’s plan.” . . .

I'm an atheist, but I'm not so old or out of touch that I don't know that Palin was doing what Christians often do: praying that what the country was doing was God's will. It's not strange for a Christian to hope that what you want to do or think is right is indeed God's will. . . .

238 Comments

Gibson Interviews Palin: Read excerpts from the transcript here.
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Does 18 U.S.C. § 242 Permit the Death Penalty for Child Rape?: After reading about the Supreme Court's order seeking briefing on rehearing in Kennedy v. Louisiana, a reader e-mails in with a question: Is 18 U.S.C. § 242 another federal law that also permits the death penalty for child rape? I did some quick research into the matter. To my surprise, my tentative answer is "yes."

  [UPDATE: Ah, the beauty of tentative answers is how easy they are to change! In the comment thread, Kent Scheidegger points out 18 U.S.C.A. § 3591, a statute that (as I presently understand it) appears to trump the language § 242. Under § 3591, the death penalty cannot be charged unless death results in a federal criminal case even if the statute itself appears to authorize it. So as I understand things, § 242 on its face appears to authorize the death penalty for crimes including child rape, for the reasons explored below, but such a prosecution could not be brought under § 3591. I apologize for the confusion, and thank Kent for the comment.]
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Saved by the Militia: I though some might appreciate a link to my September 18th, 2001 Guest Comment on National Review Online entitled, Saved by the Militia: Arming an army against terrorism. Here is how it began:
A well-regulated militia being essential to the security of a free state. . . ." The next time someone tells you that the militia referred to in the Second Amendment has been "superceded" by the National Guard, ask them who it was that prevented United Airlines Flight 93 from reaching its target. The National Guard? The regular Army? The D.C. Police Department? None of these had a presence on Flight 93 because, in a free society, professional law-enforcement and military personnel cannot be everywhere. Terrorists and criminals are well aware of this — indeed, they count on it. Who is everywhere? The people the Founders referred to as the "general militia." Cell-phone calls from the plane have now revealed that it was members of the general militia, not organized law enforcement, who successfully prevented Flight 93 from reaching its intended target at the cost of their own lives.

The characterization of these heroes as members of the militia is not just the opinion of one law professor. It is clearly stated in Federal statutes. Perhaps you will not believe me unless I quote Section 311 of US Code Title 10, entitled, "Militia: composition and classes" in its entirety (with emphases added):
"(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are —

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."
This is not to score political points at a moment of great tragedy, though had the murderers on these four airplanes been armed with guns rather than knives, reminders of this fact would never end. Rather, that it was militia members who saved whatever was the terrorists' target — whether the White House or the Capitol — at the cost of their lives points in the direction of practical steps — in some cases the only practical steps — to reduce the damage cause by any future attacks.
Here is how it ended:
A well-regulated militia does not require a draft or any compulsory training. Nor, as Alexander Hamilton recognized, need training be universal. "To attempt such a thing which would abridge the mass of labor and industry to so considerable extent, would be unwise," he wrote in Federalist 29, "and the experiment, if made, could not succeed, because it would not long be endured." But Congress has the constitutional power to create training programs in effective self-defense including training in small arms — marksmanship, tactics, and gun safety — for any American citizen who volunteers. Any guess how many millions would take weapons training at government expense or even for a modest fee if generally offered? [snip]

Rather than make war on the American people and their liberties, however, Congress should be looking for ways to empower them to protect themselves when warranted. The Founders knew — and put in the form of a written guarantee — the proposition that the individual right to keep and bear arms was the principal means of preserving a militia that was "essential," in a free state, to provide personal and collective self-defense against criminals of all stripes, both domestic and foreign.

A renewed commitment to a well-regulated militia would not be a panacea for crime and terrorism, but neither will any other course of action now being recommended or adopted. We have long been told that, in a modern world, the militia is obsolete. Put aside the fact that the importance of the militia to a "the security of a free state" is hardwired into the text of the Constitution. The events of this week have shown that the militia is far from obsolete in a world where war is waged by cells as well as states. It is long past time we heeded the words of the Founders and end the systematic effort to disarm Americans. Now is also the time to consider what it would take in practical terms to well-regulate the now-unorganized militia, so no criminal will feel completely secure when confronting one or more of its members.
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9/11 and War of the Worlds:

My 9/11 story is not as dramatic as some of those recounted in Orin's thread. But it may say something about the perils of reading too much social science research.

I was clerking for a Fifth Circuit judge in Houston at the time, and was driving to work, listening to a top 40 station that never had any news reports. The regularly scheduled programming was interrupted by a breathless announcer who said that there were reports that multiple planes had hit the World Trade Center. I was skeptical. Why? Because I was familiar with the famous Orson Welles "War of the Worlds" incident in 1938, when a radio station broadcast fictional reports of an invasion by aliens from Mars, sparking a minor panic (the public reaction is recounted in Hadley Cantril's classic book, which I had read in grad school). For some reason, I decided it was possible that the top 40 station was trying to boost ratings by repeating a version of Welles' stunt. The scenario of multiple airliners crashing into the World Trade Center seemed almost as implausible as an alien invasion. And this station had never broadcast any other news during the weeks I had been listening to it. I decided to withhold judgment until I could check the news on the internet when I got to the office. When I arrived and found that CNN.com couldn't be accessed, I realized that the reports were true.

Related Posts (on one page):

  1. 9/11 and War of the Worlds:
  2. Where Were You on 9/11/01?:
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Crystal Morning:

In honor of those who lost their lives on September 11, here's Evan Maloney's powerful video Crystal Morning (which I posted last year as well).

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Removing Old Posts That Mention People's Minor Misconduct?

Here's something that I've run into twice myself -- once with this blog and once with a discussion list I run -- and that I imagine will happen even more often to bloggers and other Web site operators. I was wondering what people thought was the right answer here. (This is an ethical issue, not a legal one; it's clear that under these facts the blogger has the discretion to make the choice.)

Say a blogger posts an accurate story -- perhaps based on a news report or a court decision -- that discusses some minor misconduct by some person. The post names that person.

Several years later, the person asks the blogger to remove the post, or to remove the person's name from the post. The person is not a government official or other important figure (at least at that point; one never knows what will happen in the future). The past misconduct was pretty minor, and doesn't suggest that the person will be a serious menace to his friends, neighbors, or others. But it's embarrassing, and the person doesn't like this story coming up whenever the person's name is Googled.

The person asks the blogger, as a favor and not as a legal demand -- which you can assume would be groundless in any event -- to help out. "I've suffered enough for my minor misbehavior," the person says or implies; "please help me start afresh with my new friends, acquaintances, and business partners." (In practice, in many such situations the person or the person's representative might not be quite so forthright, and might throw in some empty legal bluster, but let's set that aside for now.)

Should the blogger delete the post, or edit out the name? Should the blogger insist on keeping the post (again, assume that it's accurate), on the theory that people shouldn't be able to rewrite history, even the history of an online publication? Is there some sensible in-between position? For instance, say the blogger can change the post so that the name is visible to readers but not findable when Google reindexes the page (I assume that Google will at some point do that), perhaps by rewriting the name using some special characters or other computer tricks. Should the blogger do that?

Again, let me stress that I'm not looking for a First Amendment analysis or other legal analysis. We can assume (in my view, with great confidence) that the blogger would be legally free to make any of these decisions. Let me also set aside the separate question of what a blogger should do if the request comes from an entirely innocent named person, for instance someone who was the victim of a crime, or an innocent bystander. And let me set aside the question of what a blogger should do if the blogger believes the reported misconduct was quite serious, and that the person is a continuing threat of some sort to others. The question is what a decent blogger ought to do when someone wants this sort of help in lowering the public profile of the person's past minor misconduct.

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Where Were You on 9/11/01?: I was teaching a morning class, in my first semester as a professor. There was no Internet access in class yet, so we found out about the attacks immediately after the class ended. Where were you?

Related Posts (on one page):

  1. 9/11 and War of the Worlds:
  2. Where Were You on 9/11/01?:
211 Comments

We're Still Here!!

As you probably heard, they switched on the Large Hadron Collider yesterday deep in the ground under the France-Switzerland border, and notwithstanding some predictions, no black hole was created, and the universe, as far as we can tell, continues to exist. [The Telegraph lists 10 other days when the world was supposed to end but didn't here]
In a slightly more serious vein, check out the absolutely stunning photos of the LHC posted here. It looks like something out of a wild sci-fi fantasy movie . . . just what you'd want the world's largest machine to look like.

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Iranian Legal Scholar Scheduled to be a Visiting Professor at Penn Law School Detained by Iranian Regime:

Iranian legal scholar Medhi Zakerian, who was scheduled to be a visiting professor at the University of Pennsylvania Law School this fall, has been arrested by the Iranian authorities and detained without charges for the last three weeks. Since I am serving as a visiting professor at Penn myself this semester, I thought I would make note of this egregious behavior by the Iranian regime. Apparently, Zakerian has been targeted because of his criticism of the regime's human rights abuses, and perhaps because the government feared that his visit at Penn would make it possible for him to reach a broader audience for his views. This website provides a bit more information about Zakerian and states that he is being held by the Ministry of Intelligence.

I don't know much more than this about Zakerian or his work. So I can only say I hope that he will be released soon, and urge my fellow legal scholars, among others, to pressure the Iranian government towards that end.

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Defending Obama for Sending his Daughters to Private School.

On the NY Times blogs, Sandra Tsing Loh is depressed to discover that Barack Obama sends his kids to private school, the University of Chicago Laboratory Schools (tip to Tim Blair). She asks: Why can't he send his daughters to public school?

Personally, I compliment the Obamas for not using their children as political pawns to get elected or to reform society two children at a time. In my opinion, that makes the Obamas good parents.

By the way, Sarah Palin sent her kids to Iditarod Elementary School.

Ms. Loh at the Times blog:

I do not know why Barack and Michelle Obama cannot send their children to a nice public school in Hyde Park. You understand that I am a bit unstable this election season (I voted for Hillary) and I do my research by erratically Googling from home. And all I know about Hyde Park — and, readers, I’d love to be corrected if I’m wrong — is that even though real estate prices seem high, the brave little public schools in its ZIP code seem to be flailing. Their scores on www.greatschools.net are largely 2’s and 4’s (on a scale of 1 to 10, 10 being the best). When you read the tea leaves as manically as I do, those low numbers suggest that few children of educated, middle-class children are attending the local schools. Rather, they’ve withdrawn, with nary a ripple, into their whispery private enclaves.

Let us not even touch the term “community organizer,” so buffeted about, by both sides, like a balloon at a rock concert. Let us just say that if Mr. and Mrs. Obama — a dynamic, Harvard-educated couple — had chosen public over private school, they could have lifted up not just their one local public school, but a family of schools. First, given the social pressure (or the social persuasion of wanting to belong to the cool club), more educated, affluent families would tip back into the public school fold. And second, the presence of educated type-A parents with too much time on their hands ensures that schools are held, daily, to high standards. . . .

So it is with huge grief-filled disappointment that I discovered that the Obamas send their children to the University of Chicago Laboratory School (by 5th grade, tuition equals $20,286 a year). The school’s Web site quotes all that ridiculous John Dewey nonsense about developing character while, of course, isolating your children from the poor. A pox on them and, while we’re at it, a pox on John Dewey! I’m sick to death of those inspirational Dewey quotes littering the Web sites of $20,000-plus-a-year private schools, all those gentle duo-tone-photographed murmurings about “building critical thinking and fostering democratic citizenship” in their cherished students, living large on their $20,000-a-year island.

Meanwhile, Joseph Biden, the Amtrak senator, standing up boldly for the right to be a Roman Catholic, appears to have sent all three children to the lovely looking Archmere Academy in Delaware. Archmere’s Web site notes some public school districts allow Archmere students to use public school buses. Well, isn’t that great — your tax dollars at work in the great state of Delaware because with $18,000 a year in tuition, they can’t afford their own buses.

Then again, a spot of happy news for the Democrats: not only did John McCain’s four children attend elite private schools in Arizona, but collective donations to their children’s private schools between 2001 and 2006, totaled $500,000.

And yes, I know I appear to be ranting on like a pit bull without lipstick, which brings me to the final nail in the coffin in this sorry election year. As a Democrat I am horrified that Sarah Palin is the one who snagged the deeply profound — and absolutely ignored by professional smart people — emotional real estate of “P.T.A. mother.” I too am, in fact, not just “my kids’ mom” but their Title I Los Angeles public school P.T.A. secretary. This unheard female howl is, for better or worse, what Ms. Palin has set out to tap into; it is real, and I am sick that we’ve let the Republicans charge this ground.

Sarah Palin’s children went to what looks like a humble little public school: Iditarod Elementary on Wasilla Fishhook Road. The school’s score on www.greatschools.net is a 4. That’s a lot of street cred, for a gun-totin’, snow-mobilin’ creationist-lovin’ lady.

Oh, I’m such a depressed, Democrat P.T.A. mother.

First, the UC Lab Schools should be forgiven for quoting John Dewey. It was his school; it was his “laboratory”; he founded it.

Second, one of the things I admired about Bill Clinton when he became President in 1993 is that he refused to give in to the pressure to send Chelsea to a mediocre public school, sending her instead to a good private one. A president might have to miss a lot of important events in his daughter’s life, but at least he needn’t use her as a political pawn to the detriment of her education.

I went to public schools in Rockford, Illinois until I went to Yale College. If the public schools are good, why not? If they are poor, then send your kids to a private school. If they are close in quality, I would lean toward public schools.

Third, I should disclose that i sent my daughter to the Lab School from nursery school through high school. Academically, it was excellent. It was, however, a bit cliquish and very left wing.

Fourth, why does Ms. Loh consider it a bad thing for the McCains to be generous with charitable donations to private schools?

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When Asserting Your Constitutional Rights is Cause for Suspicion: I just came across a Fourth Amendment case, Cady v. Sheahan, 467 F.3d 1057 (7th Cir. 2006), that isn't new but has annoyed me enough to blog about it anyway. It's a case that I'm sure the Seventh Circuit panel found silly — you can listen to the argument here — but I actually think may have a lot of merit. At the very least it's an example of how courts often don't take the Fourth Amendment rules governing Terry stops as seriously as they should.

  Here are the facts. Cady had filed a civil suit against a police officer, and he showed up at a Cook County courthouse in Bridgeview, Illinois sometime between 6:15 and 6:30 a.m on August 22, 2001, to serve process on the officer during an early morning shift-change. He was carrying a briefcase, and his clothes were dirty and wrinkled. He stood outside the courthouse by the sidewalk and waited for the shift change so he could serve process.

  An officer approached Cady to see what he was doing, but Cady apparently declined to answer the officer's question. The officer alerted another officer, Lucio, and Lucio decided to investigate. Lucio approached Cady and asked what he was doing; Cady responded that he was "a federal process server." Officer Lucio asked for Cady's ID. Instead of giving the officer an ID, Cady engaged in a legal discussion with the officer of whether was any law requiring him to have identification with him. In fact, there wasn't. The facts aren't totally clear, but it seems that Cady had chosen not carry an ID that morning because he had researched the law and knew he was not required to do so.

  After a few minutes, Cady asked to speak with Lucio's supervisor. Sargeant Barbat arrived on the scene and asked Cady why he was there and asked to see his ID. Cady stated that he would not reveal his identity "unless he was assured that it would not be used against him in a future criminal prosecution." (This is the Fifth Amendment standard, in case you're wondering.) He also asked Barbat whether "Barbat was making a Terry stop, and if so, what crime he suspected Cady was committing, was about to commit, or had committed," tracking the language of the Illinois Terry stop statute. Cady bolstered his many legal questions and discussion points with supporting legal documents, including a law dictionary and a copy of the Federal Rules of Civil Procedure that he retrieved from a briefcase he was carrying.

  Now we get to the interesting part from a Fourth Amendment standpoint. One of the officers present took the briefcase from Cady and placed it on the hood of a squad car. Then two officers searched the contents of the briefcase. They found a Sullivan's Law Directory, a Bible, an address book, and a pen. No weapons were found. The officers started looking through the books for a name so they could figure out who Cady was. Inside the Bible, they found a name. The officers then closed the briefcase and placed it in their squad car.

  Cady was also personally frisked at this time, but no weapons were discovered. The officers then ran the name that appeared in Cady's Bible through their squad car computer:
Finding that a name was not enough to identify Cady, the officers pressed Cady for more information. Officer Margalus stated that if Cady did not comply, he could be arrested for obstructing a police officer. Officer Jacoby took out his handcuffs and told Cady to put his hands behind his back[.]
  Faced with the threat of arrest for refusing to disclose more information, Cady told the officers his name and date of birth. The officers ran that through the computer and found there was no warrant out for his arrest. They then gave him back his briefcase and sent him on his way. The entire incident lasted "between twenty and thirty minutes."
168 Comments

Wednesday, September 10, 2008

Biden to Help Pick Judges?:

Jeff Rosen writes in the New Republic that if Obama wins, "Biden's instincts will help guide the selection of judges and the challenging task of reconstructing civil liberties after the assault of the last eight years." Even if one accepted Rosen's underlying ideological (and pro-Biden) premises--which I don't (isn't Biden the one who attacked Bork for not believing in unenumerated rights, and then attacked Thomas a few years later for exactly the opposite reason?)--this seems to be wishful thinking on Rosen's part. I'm happy to be corrected if I'm wrong, but the Vice-President has no obvious constitutional or political role to play in selecting judges, and I don't recall the Vice-President ever, in fact, playing a significant role (or any role) in selecting federal judges. It's not clear to me why Biden would be the first. Sure, he has tons of relevant experience, but it's not like Obama, a former law school lecturer, can't figure out how to run the judicial selection process without bringing his V.P in.

Hat tip: Instapundit.

UPDATE: Just to be clear, it's not completely outside the realm of possibility that Obama would give Biden some significant role in judicial selection. However, it would be against historical practice, and I haven't seen any evidence, including from Rosen, that Obama would in fact do so. Rosen may (or may not) be right that it would a good idea for Obama to consult Biden, but that's very different from suggesting that such consultation is a foregone conclusion.

FURTHER UPDATE: A reader points out that Dick Cheney was apparently intimately involved in choosing Chief Justice Rehnquist's successor.

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BigLaw Political Donations:

It might not be a surprise that major law firm donations largely mirror those of law professors, and are weighted heavily toward Barack Obama (albeit not as heavily as lawprof donations), as Bruce Batista summarizes here. Why is this? Batista has his own ideas, and I'd be curious about others.

Related Posts (on one page):

  1. Law Firm Campaign Contributions Increase:
  2. BigLaw Political Donations:
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How Much Do Supreme Court Opinions Borrow from the Briefs?: Over at the Glom, David Zaring flags an interesting new paper about Supreme Court opinionwriting: Pamela C. Corley, The Supreme Court and Opinion Content, Political Research Quarterly, Vol. 61, No. 3, 468-478 (2008). Here's the abstract:
Do parties' briefs influence the content of Supreme Court opinions? The author contends that the parties, through the briefs submitted on the merits, have the ability to influence the content of opinions and, consequently, have the ability to influence the law. Utilizing plagiarism software, the author compares the parties' briefs with the majority opinion of the Court. The results indicate that there is a connection between the language of the parties' briefs and the language of the opinions, which means that parties have the potential to influence the law.
  The paper unfortunately is gated right now, but those coming through academic institutions with access rights can get the paper here. Those who can't download the paper can get David's summary:
As you might imagine for a very unbusy Court overloaded with law clerks, time, and amici, the Court didn't borrow too much from the party briefs when it writes its decision, at least for the opinions issued in the 2002, 2003, and 2004 terms. The average overlap between opinion and winning party brief then was roughly 10%. I bet the percentages are higher in the appellate courts, and especially in the district courts.

Sometimes, however, the Court found winning briefs to be, shall we say, highly persuasive. In one case, Justice O'Connor used 41% of a respondents' brief in her opinion, and in another, she used 33% of an appellant's brief. Rehnquist and O'Connor were the justices most likely to borrow from the briefs (they comprised 14% WJR/11.5% SDO of the content of the justices' majority opinions authored during those three years, depending on respondent/appellant), Souter the least (7% either way).

Corley found that the justices are more likely to borrow from high quality briefs (proxied by a DOJ or DC return address), from ideologically compatible briefs (conservatives were more likely to use briefs advocating the conservative position), and from briefs in low-profile cases, or at least low-profile enough not to appear on the front page of the New York Times the day after the decision was handed down (which might just mean "statutory cases").
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Are Abortion Politics Increasingly Irrelevant?: Over at Balkinization, Neal Devins has this provocative post arguing "yes."
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Jazz for Obama: In addition to getting the overwhelming financial support of law professors, Barack Obama seems to have the jazz musician vote locked up. Fortunately for McCain, the Village isn't in a swing state.
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Creationism and Ability to Evaluate Scientific Evidence - Or, How I Caught Myself in a Contradiction:

Various commenters on my post arguing that belief in creationism shouldn't be held against candidates for political office note that belief in creationism might be dangerous because it reflects a flawed attitude to scientific evidence. After all, belief in creationism (at least in the more extreme versions thereof) requires one to reject a great deal of geological, biological, and other scientific data or argue that God deliberately placed it on Earth in order to deceive us or test our faith. Indeed, I myself partially endorsed this argument when I criticized Ron Paul's rejection of evolution earlier this year, and favorably cited this article by science writer Ron Bailey, who pointed out that:

A larger question is whether a candidate's belief about the validity of evolutionary biology has anything to say about his or her ability to evaluate evidence. A January 4, 2008, editorial by Science editor Donald Kennedy correctly argues, "The candidates should be asked hard questions about science policy, including questions about how those positions reflect belief. What is your view about stem cell research, and does it relate to a view of the time at which human life begins? Have you examined the scientific evidence regarding the age of Earth? Can the process of organic evolution lead to the production of new species, and how? Are you able to look at data on past climates in search of inferences about the future of climate change?" Kennedy concludes, "I don't need them to describe their faith; that's their business and not mine. But I do care about their scientific knowledge and how it will inform their leadership."

For what it's worth, I thought I should point out this potential contradiction between two of my own posts. Although I hate to admit it, it's possible that I was more willing to overlook Sarah Palin's possible belief in creationism than Ron Paul's because I have more sympathy with her other political views than I did with his. This is an example of the kind of biased evaluation of political information that I have written about in my scholarly work. Studies show that people are more likely to reject or minimize negative information about candidates they favor than those they oppose. Sadly, I can't say that I am entirely immune to this tendency. My only defense is that I detected the bias myself and have tried to correct it.

The question still remains: Which of my two posts is closer to the truth? After further reflection, I think that there is some merit to Bailey's argument quoted above. To that extent, the conclusion of my last post on creationism needs to be qualified. At the same time, I still think that the difference between creationism and other unscientific or irrational religious beliefs is more one of degree than kind. Belief in the Great Flood, the Devil, the virgin birth, or the resurrection of the dead also requires people to reject extensive empirical evidence and/or conclude that a scientifically impossible event occurred on the basis of extremely thin historical evidence that usually consists of testimony by biased commentators writing many years after the fact. Certainly, we would view with great skepticism a presidential candidate who professed his belief in "miracles" supposedly committed by pagan gods that are no less well-documented than the Jewish and Christian miracles discussed above. Ditto for one who believed in ghosts, witches, reincarnation, and astrology (all of which are endorsed by large minorities of the public).

In addition, I think that Bailey and others who make similar claims err in implicitly assuming that people who do a poor job of assessing evidence in one field will necessarily make similar mistakes with respect to others. For reasons I discussed at the end of the last post, I think that people are likely to be more rational in evaluating evidence in cases where they have a stronger incentive to get at the truth.

Nevertheless, I have to conclude that belief in creationism should be viewed as a negative in a candidate for high public office. It will often be outweighed by other considerations (especially in a case like Palin's, where it is not even clear whether she really does believe in creationism or not). But that doesn't mean we should ignore a candidate's commitment to creationism completely.

The bottom line: I was probably too complacent about creationism in my last post. On the other hand, I still think that creationism has more in common with a variety of other scientifically dubious religious beliefs than many of my critics are prepared to admit.

Related Posts (on one page):

  1. Creationism and Ability to Evaluate Scientific Evidence - Or, How I Caught Myself in a Contradiction:
  2. Should We Hold Belief in Creationism Against Candidates for Political Office?
  3. Palin on Creationism.
150 Comments

Law Prof Political Donations:

Paul Caron has the data:

FundRace 2008 on The Huffington Post lists 635 "law professors" as having made contributions to candidates in the 2008 Presidential election totalling $623,472. Of this amount, 92.7% ($577,924) has been contributed to Democratic candidates, 7.3% ($45,548) to Republican candidates. $487,772 has been contributed to the nominees of each party — 94.7% ($461,754) to Barack Obama, 5.3% ($26,018) to John McCain.

He also has the breakout for some leading law schools.

Notice that the percentage giving Republican actually slightly exceeds the percentage giving to McCain (although probably not in a significant fashion). This is consistent with my observation that among the small number of confessed "conservative" law professors (or people in the "ideas business" generally), John McCain was not a candidate who generated a great deal of excitement. Fred Thompson, Rudy Giuliani, and Mitt Romney all seemed to be relatively more ideas-driven candidates (note that I did say "relatively") and who garnered more law prof support and excitement. And, of course, for many libertarian and conservative law profs McCain-Feingold and the view of the Constitution that it implies was basically disqualifying, at least at the time there were other apparently viable Republican options available.

Caron's report is also consistent with a hypothesis that I have heard others express, that although schools like Harvard are supposedly hiring more self-professed "conservatives" these days, they tend to be (with a small handful of notable exceptions) of a certain ilk who can make it through the meat-grinder of the appointments process--"well-behaved" conservatives who aren't going to rock the boat or otherwise challenge the prevailing culture, such as by taking public political stances or otherwise speaking out on controversial issues. I haven't done any sort of systematic analysis of this hypothesis, which presumably would require substantial first-hand knowledge.

Update:

The Harvard reference was triggered (subconsciously at least) by Steve Bainbridge's similar observations, which he makes here.

26 Comments

The Emperor's New Clothes:

David's analogy is basically sound, I think. As to how it "got started" (which a commenter asked), I think there is some path-dependency at work here in law that is different from other scholarly fields. Most law reviews got started as offshoots of state-based law schools. The Alabama or Missouri Law Review (or wherever) existed to publish articles on developments in the state's laws. The students were going to practice in those states. The article selection process was not really competitive. It was not illogical to have the students edit the articles which were essentially extended case comments, not disquisitions on Habermas or amateur empirical studies. Students can read cases and figure out what the professor is saying about them. Students cannot competently read and judge most of the "major" scholarship that is produced today. I'm sorry, but they just can't.

What I think we have today is path-dependency imposed by what amounts to a cartel model of the law review market. The professors at "elite" law schools look at publishing in "elite" journals as a valuable signal because, well, those journal publish their work and the work of their buddies so they assume that those law reviews must know what they are doing. And the article selection process is a signalling model as well--students, who are unable to discern quality directly because they know so little, instead have to fall back on a signalling model of quality, namely the prestige of the author's institution.

So what we end up with is a circularity--students look to the prestige of the law school as a signal of quality of the article, and in turn, those schools look at the prestige of the publication as a signal for the quality of article.

This also contributes to the frequent boom-and-bust cycles of legal scholarship, where an idea becomes hot for no obvious reason, other than that someone "important" thinks it is important, so everyone talks about it and since all the important people talk about it the law reviews think it is important and so they publish articles on it. Until it is recognized that the ideas are typical law professor hand-waving with no real-world relevance or serious empirical support and it eventually drifts off.

It is a silly, indefensible system, as most cartels are. It does create market opportunities for some schools to actually look at the actual quality of a person's work rather than the trendiness or useless signalling value of placements.

But will it be seriously reformed in coming years? It is not obvious to me that this is an unsustainable cartel, at least for the foreseeable future. After all, it turns out that "reputation" is itself is based largely a signalling model too. So it is not obvious where the incentive to reform the system will come from.

True, because of the way they work, law reviews are laughing-stocks in the academy at large. I've never heard a scholar in another field opine that she wished that their journals were more like law reviews. I've published in at least 5 economics journals that I can think of, and it is simply a superior system (without even getting into the nitty-gritty of peer review versus non-peer review). But it is not obvious that being thought of as a laughing-stock in the larger academy will provide an incentive to reform the system which seems to be largely self-contained and insulated from meaningful competition. So while I share David's aspiration for the emergence of a better system I'm not sure that I share his optimism.

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Richard Shenkman on Stupidity and Political Ignorance:

My George Mason University colleague Richard Shenkman has a good Washington Post op ed rebutting several widespread myths about voters and their knowledge of politics. As Shenkman shows, most voters know very little about politics, liberal voters are not more knowledgeable than conservative ones, and - despite claims that the young are paying more attention to politics - they continue to be even more ignorant than older voters. Shenkman also points out that political knowledge levels have been stable (and low) for decades, despite greatly increasing education levels. Most of these points aren't entirely new; all have been documented by numerous earlier studies (see, e.g., my own summary of the evidence here). Still, Shenkman has performed a valuable service by summarizing them and bringing these issues to the attention of lay readers. He is right to emphasize that widespread voter ignorance is a major shortcoming of our democracy.

I do, however, have one bone to pick with his argument. Shenkman seems to equate political ignorance with stupidity, repeatedly claiming that poorly informed voters are "stupid" and that the relatively well-informed minority are "smart." His recent book on political ignorance is even called Just How Stupid Are We?: Facing the Truth About the American Voter.

However, as I explain in this post, ignorance isn't necessarily a sign of stupidity. It is perfectly rational for even highly intelligent people to be ignorant about politics. Because an individual vote has almost no chance of actually determining the outcome of an election, a person whose only reason to acquire political information is to make sure that the "best" candidate wins is quite rational to invest very little time in learning about it. We are all inevitably ignorant about a vast range of matters because they don't interest us much, and because we have little or no incentive to learn about them. For most people, politics falls into that category. I discuss the logic of rational ignorance in greater detail in this article.

The rationality of political ignorance helps explain what Shenkman calls the "almost incomprehensible" finding that political knowledge has not increased much over the last 50 years despite the fact that "[e]ducation levels are far higher today than they were half a century ago, when social scientists first began surveying voter knowledge about politics." Education makes it easier for people to acquire political knowledge but doesn't necessarily give them any incentive to use that ability. Similarly, my college education makes it a lot easier for me to learn about art criticism than it would be for a high school dropout to do so. In fact, however, I know almost nothing about art criticism because I have chosen to devote my time to other pursuits.

Various other trends of the last 50 years might actually have reduced people's willingness to use their education to follow politics. As I explain here, the absence of any incentive to acquire political information in order to be a better voter suggests that most people who learn about politics do so for other reasons. One important reason is entertainment value; some people enjoy following politics for much the same reasons as others follow sports or pop culture. Over the last 50 years however, a wide range of new entertainment options has emerged, including cable TV, video games, the internet, and so on. Politics is no longer as competitive with other entertainment media as it used to be. Some people who in previous generations might have gotten their jollies by following politics are pursuing other entertainment options instead. Back in the 19th century, spending a couple hours listening to political oratory may have been one of the best entertainment choices available to many people. Today, their descendants can watch reality TV and American Idol instead.

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Chief Justice of the Supreme Court:

The N.Y. Times just published this correction (thanks to How Appealing for the pointer):

An article on Saturday about the variety of fashion choices made by New York City’s judges misstated the title once held by two former United States Supreme Court justices — John Jay, who was often pictured wearing a scarlet and black robe with silver trim, and John Marshall, who departed from tradition by wearing a plain silk black robe. They were chief justices of the United States — there is no such title as chief justice of the Supreme Court.

It's true that the U.S. Code almost exclusively (with one minor exception) labels the Chief Justice as "the Chief Justice of the United States." But in fact he is also the chief justice of the Supreme Court — there is a Supreme Court, there are justices of it, and he is the chief justice among them. (Note that the original article spoke of "the chief justice of the Supreme Court," with "chief justice" in lower case. That suggests the article was describing the office, and not giving an official title; if it were capitalized, that might be more ambiguous as to whether it's a description or a title, though even there it could be read as a description.) So whatever the official title may be, "chief justice of the Supreme Court" is a perfectly proper locution.

But this isn't just my view. It's also George Washington's, speaking to John Jay himself when Jay was first appointed: "Sir, It is with singular pleasure, that I address you as Chief Justice of the Supreme Court of the United States, for which office your commission is enclosed." ("Chief Justice of the Supreme Court" would be a naturally abbreviation for that.) It's also Hamilton's or Jay's in Federalist No. 65, which spoke of the proposed Constitution's "making the chief justice of the Supreme Court the president of the court of impeachments."

It's St. George Tucker's view in his Appendix to his highly influential 1803 edition of the Blackstone's Commentaries (in turn quoted by Chief Justice Joseph Story in his highly influential 1833 Commentaries on the Constitution), where Tucker spoke of how "the constitution expressly requires that the chief justice of the supreme court shall preside" at an impeachment trial. It's the view of the Congress that enacted the Judiciary Act of 1802, which spoke of "the present chief justice of the supreme court" (who at the time was Chief Justice Marshall). It's the view at least at times of Chief Justice Marshall himself, who signed some documents, "Witness the honorable John Marshall, chief justice of said supreme court." And these are just early examples; there are lots more from later decades.

So if you want to tell all these people that their usage was invalid, or is no longer valid because of what intervening Congresses have done, be my guest. (You can't tell them that their usage is no longer valid because actual usage has changed, since in today's actual usage "chief justice of the Supreme Court" is quite common, and in fact a little more common than "chief justice of the United States," as either a Google search or a Nexis search will confirm.) But I can't see why the rest of us should be persuaded of this, and should reject the judgment both of modern usage and of historical usage (buttressed by the normal presumptions of English phrase formation). This latter judgment, I think, is that both "chief justice of the Supreme Court" and "chief justice of the United States" are perfectly correct.

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Does Scholarly Productivity Improve Teaching Quality in Legal Academia?

There is a longstanding argument over the question of whether scholarship improves teaching in academia or detracts from it. Some claim that productive scholars are better teachers because they have a greater command of the subject and more original insights to convey to their students. On the other hand, it's also possible that scholarly productivity detracts from teaching. The time academics spend writing articles and books could instead have been devoted to improving their teaching skills.

Ben Barton of the University of Tennessee Law School has an excellent new article testing the impact of scholarship on teaching. He shows that there is little or no correlation between scholarly productivity and teaching ability (as measured by student evaluations) in a sample of over 600 law professors from 19 schools. Thus, scholarship neither improves teaching ability nor detracts from it.

This study is an important advance over the existing literature. But I have two significant reservations about it. First, Barton was not able to find data controlling for other variables that might affect teaching quality. For example, the quality of teaching might be influenced by a professor's speaking style, organization, personality, and so on. Some of these omitted variables might well be inversely correlated with scholarship. If so, it's possible that if we controlled for them, we might find that better scholars are better teachers after all.

Second, student evaluations are a highly imperfect measure of teaching quality; some of their shortcomings could end up biasing Barton's results against the hypothesis that scholarship improves teaching. I'm not one of those professors who thinks that student evaluations are useless. To the contrary, they often contain important and valid criticisms of the professor. My own teaching, I believe, has improved as a result of attending to such critiques. Nonetheless, teaching quality is far from the only variable that influences student evaluation scores. For example, we know from previous research that scores go up if the professor makes the class easier. Evaluation results are also influenced by such irrelevant factors as the professor's physical attractiveness. Although I don't know of a study testing this, I'm willing to bet that student evaluation scores are heavily influenced by the quality of the professor's sense of humor.

Some of these factors may well be inversely correlated with scholarship. For example, it's possible that the most productive scholars make their courses harder than those of the less productive ones, thus taking a hit on their evaluations. It's even possible that more productive scholars are, on average, not as well-dressed as their less productive counterparts (perhaps because they spend more time doing research and less time paying attention to fashion trends). If so, this too would lead them to get lower evaluation scores.

In Barton's defense, it's very difficult to get data on many of the relevant control variables. And student evaluations are perhaps the only available quantitative data on teaching effectiveness at most schools. Overall, I think he did the best he could with the available evidence. However, I don't think his evidence is good enough to decisively reject the theory that scholarly productivity improves teaching.

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A Parable:

I used to think that I (like everyone else) basically understood the story of the Emperor's New Clothes. It wasn't until I re-read the original story a couple of months ago, though, that I actually got it. [I've been slowly making my way through a volume of collected Hans Christian Anderson stories in Italian - to keep my Italian in good shape for my next visit to Italy, and because I thought (probably mistakenly, as it turns out) that fables and children's stories would be the right level for me to work on]. Everyone knows the story -- the king is naked, but nobody acknowledges it until finally some small boy speaks up in the crowd, at which point everyone realizes how stupid they've been . . . But what I hadn't understood was: why did the King walk around naked in the first place? Why did he think he had clothes on?

The answer is that two tailors had come to town and convinced everyone that they made clothing with special magic attached to it; the magic was that the clothing was invisible to stupid people. The King ordered some, and sent his courtiers to check on its progress in the tailors' shop. The courtiers, of course, were terrified of being labeled stupid, so they reported back to the king that it was coming along beautifully. Positive feedback then took over, and did the rest, until everyone is falling over themselves commenting on how beautiful the new clothes are.

I was thinking about this recently, not, as you might suspect, in connection with Sarah Palin's nomination, but in connection with the systemic problems of legal scholarship. My law school -- like many others, I suspect -- is undertaking a review of the whole law journal system, with an eye, possibly, to making some substantial changes. It's a discussion that sometimes reminds me of the King's -- staring us in the face is a system that is profoundly, and even laughably, dysfunctional, but we all just stand around and grumble to ourselves about it and nobody stands up to pronounce it so. [I use "laughably" advisedly; I've actually had people laugh when I tell them that the direction of legal scholarship is set, in substantial measure, by 2d and 3d year law students.] It's not just the Internet, of course, that is pushing this along, though that has made the cracks all the more obvious -- if the designation "published in the XYZ Law Review" has any utility at all anymore, it is not as a distribution vehicle but as a signaling device: read this because it's been selected as a particularly good one to read. But really -- what value could that signaling possibly have when we're talking about selections made by 2d and 3d year law students? None whatsoever. The system will, I hope, have entirely disappeared in 20 years or so -- but it's going to take some institution to stand up and say that it is ridiculous and that they're not going to support it any more for that to happen.

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Ron Rychlak on Father Pfleger:

Upon seeing clips Father Michael Pfleger's now-infamous sermon, I think many Catholics responded as I did--before even focusing on the substance of the sermon, the first response was, "What the heck? I've never seen a Catholic Priest act like that!" And I've continued to harbor a deep psychological reservation that somehow it was just misreported, and that he couldn't actually be a Catholic Priest in good-standing.

Well, looks like my hopes have been dashed. Ron Rychlak, Associate Dean of Ole Miss Law School, has a profile and critique of Rev. Plegler here. Certainly not the typical Priest.

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Wanna Hear Some Music?

Mosaic Records -- one of the truly marvelous specialty re-issue houses that have sprung up in recent years, specializing in jazz recordings of the '30s through the '50s -- have just released a 4-disc set of the Lester Young/Count Basie sessions (1936-40) that is a true marvel of nature. Lester Young, for my money, was the greatest sax player ever -- all you Coltrane-istas, spare me your invective, please; chacun a son gout, as they say -- and these are some of the best performances you're likely to hear. There's some small group stuff (including a half-dozen tracks from a session with Basie, Young, Benny Goodman on clarinet, Charlie Christian on guitar, and Philly Jo Jones on drums -- now that's some serious talent for one group) and some big band stuff, and it's all pretty consistently spectacular. Highly recommended.

And if you're unfamiliar with Young and understandably unwilling to splurge for a 4-disc set just on my say-so, there are lots of 1-disc compilations out there worth having. The best, imho, may well be the one put together as a tie-in with Ken Burns' "Jazz" documentary from a few years ago -- a fairly execrable documentary, but the tie-in compilation CDs they released were generally quite good, and the Lester Young volume is really wonderful.

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A Cyberlaw Connection to the Bloomberg Fiasco:

There's an interesting little cyber-law connection to the Bloomberg f***-up that sent out the (false) news that United Airlines had entered Chapter 11, and that sent United stock tumbling in a matter of minutes on Monday (wiping out more than $1 billion in shareholder value in less than an hour before trading was halted).

According to the Int. Herald Tribune/NY Times,

"United blamed an old Chicago Tribune article that, it said, was posted on the Web site of The South Florida Sun-Sentinel newspaper. That article was picked up by a research firm, Income Securities Advisors, which then posted a link to it on a page on Bloomberg News, which sent a news alert based on the old article."

If United (or United shareholders) are thinking (as they may well be thinking) of suing Bloomberg for the damage, they will come up against an important little principle of US law that cyber-law folks are very familiar with but which may be unfamiliar to others. Section 230 of the Communications Decency Act, which was part of the Telecomm Reform Act of 1996, provides that

"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

It's not the most artfully-drafted statutory section around (what exactly does it mean to "treat" an entity "as the publisher or speaker" of information?), but it has been interpreted -- somewhat controversially, but plausibly, in my own opinion -- to provide a near-blanket immunity for online information redistributors (like Bloomberg) from all liability arising out of that redistribution. (Important exception: the statute expressly provides that IP claims (e.g., copyright or trademark) are not affected by this provision). Bloomberg is clearly a "provider of an interactive computer service" (defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server"), and the information that United had entered bankruptcy was clearly provided by "another information content provider" (defined as "ny person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service). So Bloomberg cannot be treated as the publisher or speaker of that information. I don't think we know for sure whether that would immunize it from e.g. Securities Act liability, for example -- but I'm pretty sure that it would.

Among the interesting things about section 230 is that it only applies online. That is, had Bloomberg published the same information via a hardcopy newsletter, they'd have a liability nightmare on their hands. But because it was online, they have sec. 230 to protect them.

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Lipstick on a Pig, An Old Fish Who Stinks.

THE LIPSTICK MEME AND WHAT IT MIGHT MEAN.

The Democrats attacked the Republicans twice on Tuesday using a lipstick metaphor. First,

Democratic Congressman Russ Carnahan on Tuesday – introducing Joe Biden at a campaign event – ripped into Palin’s record and punctuated it with this snarky jab. “There’s no way you can dress up that record, even with a lot of lipstick,”

Later in the day, Barack Obama referred to lipstick on a pig and immediately after to an old fish who smells:

You can put lipstick on a pig. It's still a pig.

You can wrap an old fish in a piece of paper called change. It's still gonna stink.

Before this, Obama listed many issues on which he said that McCain was simply following Bush’s policies.

Those juxtapositions allowed Obama's supporters to claim that he wasn’t actually calling Palin a pig, and allowed his opponents to claim that he called Palin a pig and McCain an old fish who stinks.

This coupled comparison and the lipstick meme introduced earlier on Tuesday tends to suggest that Obama’s comment was not off-the-cuff; it was probably planned.

Palin’s defenders complain that it’s an insult. Of course, it’s an insult. Insulting the opponent is what Palin did to Obama in her convention speech and what Obama did to McCain in his.

Probably, the Democratic speechwriters today were trying to do their own version of Palin’s pointed gibes (about community organizing, talking about victory, personal discovery, etc.), but got the tone wrong. There is little question that in literal textual terms, Obama was referring to the views of McCain and Palin, not McCain and Palin themselves. The choice of language, however, suggests a high likelihood that Obama was also intentionally alluding to Palin and McCain personally.

It is not just a case of plausible deniability; the speechwriters were trying to be witty. By referring to McCain and Palin’s ideas using colorful language that will cause his audience to think of the actual people Palin and McCain, Obama was almost certainly trying to come right up to the line between acceptable and unacceptable insults without actually crossing it. That Obama's crowd understood the allusion to Palin is suggested by the enthusiastic cheers that started even before he finished the pig sentence. Without seeing the Palin connection, would they have cheered in the middle of him uttering an otherwise completely ordinary cliche?

Did Obama have female speechwriters work on his speech? If not, would he have miscalculated if he did?

Was Obama calling Palin a pig and McCain a stinky old fish? No, it would be too crude to do – and he didn’t directly do so.

But when Obama talked about a pig and a fish, was he slyly referring to them personally? Almost certainly. Very likely, this paired comparison was intended to be a Palin-style sharp, but good natured insult. It misfired because the insult was far less sly (and far more crude) than he and his speechwriters thought it was.

THE PROPER RESPONSE

The proper Republican response for a joke that misfires would be to make fun of Obama’s gaffe, but not to demand an apology. Palin is tough. An off-color joke may not be that big a deal – and even if it is, she should be tough enough to brush it off. The Republican narrative should be that Obama is losing his cool and that he is acting like a VP candidate by going after the other VP candidate — ie, they should be suggesting that Obama can't take the heat.

Further, having people other than Palin demanding apologies on her behalf sends a false message that she is weak and needs protection.

Republicans should make some political hay about Obama's crude insults for a couple days – as the Democrats did about McCain’s multiple apartments – and then move on.

This is far from the worst thing that either side has said – or will say – about each other.

Instapundit has a nice roundup on this issue.

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Should We Hold Belief in Creationism Against Candidates for Political Office?

Many argue that Sarah Palin's supposed belief in creationism is a major strike against her qualifications for the vice presidency. As co-blogger Jim Lindgren demonstrates here, Palin did not in fact advocate laws requiring the teaching of creationism in public schools; still less did she oppose teaching the theory of evolution (which she in fact endorsed). Nonetheless, given her religious background, it is certainly possible that Palin believes in creationism herself even if she doesn't want to use the power of the state to indoctrinate schoolchildren in that belief.

Assuming that she does believe in creationism (in the strong sense of rejecting the theory of evolution), should that be an important consideration against her candidacy? I believe not. I think that creationism is contradicted by overwhelming scientific evidence. And as an atheist, I don't believe that God exists in the first place and I certainly don't believe that he did any of the things that creationists attribute to him. Nonetheless, I don't see why belief in creationism should be a major strike against a candidate for public office any more than are a wide range of other common religious beliefs that are contradicted by modern science. Consider the following widespread religious beliefs:

1. Belief in the virgin birth of Christ.

2. Belief in the resurrection of the dead.

3. The belief that the Red Sea parted, enabling the Israelites to escape from Egypt.

4. The Bible's claim that God wiped out nearly all life on Earth in a great flood (with only the denizens of Noah's Ark surviving).

5. Belief in the existence of the Devil (a view held by 71% of Americans).

All of the above are contradicted by science, empirical evidence, or both. Yet few argue that endorsement of any of these beliefs should be a major strike against candidates for high political office, including the presidency. As an apparently believing Protestant, Barack Obama presumably adheres to at least 1 and 2 on the above list. Yet virtually no one claims that he is thereby unfit for the presidency. I don't see why believing the items on the list above is any less irrational and unscientific than believing in creationism. One could argue that people can legitimately embrace these beliefs "on faith" irrespective of evidence. Perhaps so. But belief in creationism can be justified in exactly the same way.

Maybe the conventional wisdom is wrong and we should hold all irrational and unscientific religious beliefs against candidates for high political office. Some of my more militant fellow atheists probably feel that way. However, I don't think they are right. Many people embrace irrational religious beliefs out of unthinking adherence to tradition or simply because they lack the incentive to reexamine those beliefs in an unbiased way. As I discuss in this article, the same is true for beliefs on a wide variety of subjects where people are "rationally ignorant" or "rationally irrational" because they have little incentive to seek out the truth. For most people, holding an inaccurate view on the origins of life on Earth isn't going to affect their lives in any significant way and won't prevent them from making good decisions on matters that are within their personal control. Thus, they have no more reason to become knowledgeable about evolution than they do about particle physics or many other fields of scientific research that aren't relevant to the decisions they must make in their own lives. Many people - including many political leaders - believe in the existence of the Devil or in the virgin birth, yet still make perfectly rational judgments in their decisions on matters within their areas of responsibility. I don't see why the same won't hold true for belief in creationism.

Perhaps the problem with creationism is not that it is unusually irrational in and of itself but that belief in in correlates with what many people consider to be objectionable beliefs on various public policy issues. I'm not entirely convinced that this is more true of creationism than of some of the other beliefs I listed above. But even if it is more true on average, it doesn't make much practical difference. Palin, like most other candidates for high office, has an extensive record of positions that she has taken on various issues. We don't need to use creationism as a proxy for a candidate's issue positions when we can simply look at the issue positions themselves.

Certainly, Palin has had a lot to say on the domestic policy issues with which belief in creationism might be correlated. So far, I don't see how any of her positions on these issues are any more objectionable than those of other mainstream conservatives, including those who (like John McCain) endorse the theory of evolution. Indeed, Palin is probably more libertarian than most of them, and thus less likely to use the power of government to promote her religious agenda. Ultimately, we should judge candidates for high office on their policy positions, not on religious views that are at most only tangentially related to policy.

Finally, some fear that creationist politicians might skew government funding away from scientific research based on the theory of evolution. That is indeed a legitimate concern. In Palin's case, however, there is little if any evidence that she intends to do any such thing. Moreover, any such danger has to be weighed against the possibility that a Democratic victory might skew science funding in favor of crackpot theories favored by some on the political left, such as the "junk science," which, as co-blogger David Bernstein has shown, was at the root of much costly tort litigation in recent years. Politicians in both parties promote dubious science when it is politically convenient to do so. Sometimes they do so for religious reasons; more often for entirely secular ones.

UPDATE: I should probably have mentioned that when I said that the five events I listed were contradicted by science or empirical evidence, I meant either that science has shown that they are impossible (e.g. - virgin birth, resurrection) or that the empirical evidence is against the claim that they occurred (e.g. - the worldwide flood, the parting of the Red Sea). The belief that the devil exists falls into the latter category. If the Devil (defined as a powerful supernatural being who actively promotes evil in our world) exists, we should expect to observe evils that he has caused - evils that don't have natural explanations. Yet we do not in fact observe any such evils. As far as we can tell, all the evil we see is the result of the operation of natural laws or of human action. Thus, the claim that the Devil exists is contradicted by empirical evidence. This argument against the existence of the Devil isn't original to me, and has been developed in much greater detail by philosophers such as Michael Martin. I briefly summarize it here in response to comments claiming that it is impossible to prove or disprove the Devil's existence.

Of course, it is always possible to argue that the Devil causes various evils and then somehow "disguises" them to make them seem natural. This kind of argument, however, can be used to "prove" that virtually anyone or anything caused the evils in question. For instance, I could argue that Bozo the Clown is the real cause of all the evil in the world and that he has "disguised" its true origins to make it look natural. We rightly reject this argument in the absence of additional evidence that Bozo really did cause all those evils. The same point applies to claims that various seemingly natural evils are attributable to the Devil.

Related Posts (on one page):

  1. Creationism and Ability to Evaluate Scientific Evidence - Or, How I Caught Myself in a Contradiction:
  2. Should We Hold Belief in Creationism Against Candidates for Political Office?
  3. Palin on Creationism.
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More on Whether the Supreme Court Should Follow Written Law or Pursue Justice: In response to the poll showing the dramatic gap between McCain and Obama supporters on whether they want the Supreme Court to follow the written Constitution and precedents or to pursue justice and fairness, Josh Patashnik has some provocative thoughts over at TNR's The Plank:
  [T]his reflects very poorly on Democrats. Less than a third of Obama voters are willing to sign on to a fundamental tenet of American government that you learn in elementary school civics class, and half think that judges should just make it all up as they go along. (After a full five days of law school, I find this quite disturbing--have Obama's supporters no shame about admitting this to a pollster!?)
  Now, since it seems unlikely that many Americans spend much time weighing the relative merits of different methods of judicial decisionmaking, it's a fairly safe bet that voters are largely reflecting the rhetoric they hear from political elites: Republicans talk about enforcing the law, while Democrats talk about fairness. Not only does this put liberals at a huge rhetorical disadvantage, but it makes Democratic voters look stupid when they parrot that rhetoric back to pollsters. All the more reason for prominent Democratic politicians to start making an affirmative case that conservative jurisprudence is actually wrong, not just that it sometimes leads to undesirable outcomes. And if liberals can't make that case, they should get out of Justice Thomas's way, take their marbles, and go home.
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Tuesday, September 9, 2008

The End:

While there's no obvious connection to Sarah Palin, I thought I'd mention that the world may end tomorrow. Scientists in Europe are planning to fire up a particle accelerator known as the Large Hadron Collider (once memorably misspelled by The New York Times), which has a 17-mile circumference. A few scientists think there is a small risk that the experiment will create a black hole voracious enough to swallow the huge unit and, well, the entire Earth.

I'm betting it won't happen. If I'm wrong, you can collect tomorrow night.

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Tort Reform Hoax

This is an update to an earlier post. I fell for a hoax e-mail from a senior faculty colleague of mine, listing purported examples of outrageous tort awards. I circulated that e-mail as a post of my own. I quickly caught the error and have since corrected that post. I apologize for my mistake in giving further circulation to bogus examples.

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The Calvinist Roots of the American Revolution and the Second Amendment:

That's the topic of a new article I've written for Liberty magazine. First year law students may be interested in observing the importance of contract law in the right of revolution against tyranny.

Also, the latest version of my draft article, Pacifist-Aggressives vs. the Second Amendment: An Analysis of Modern Philosophies of Compulsory Non-violence is now on-line. (3 Charleston Law Review, no. 1, forthcoming). VC readers first saw this article, as a working paper, last fall. It's been significantly revised, in part thanks to helpful commenters from VC readers.

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Palin and the Post-Bush Politician: I enjoyed my co-blogger Todd's insights about Sarah Palin being a post-Boomer politician. At the same time, I tend to think that what makes her so interesting — what causes such strong reactions to her on both sides — is that she is a post-Bush politician rather than a post-Boomer politician.

  Here's my thinking. For the last eight years, the Bush Administration has defined the GOP. The Bush Administration's tremendous emphasis on loyalty helped ensure that few if any successful GOP politicians could define themselves independently of the Administration. And with the Bush Administration unpopular for so long, it meant that there were few if any popular GOP politicians for the last eight years. There was no apparent farm team, no new generation of leaders to take over when the Bush Administration ended. Unsurprisingly, the GOP ended up fielding a relatively weak set of Presidential contenders for the '08 race. Indeed, the winning candidate was known largely for his opposition to Bush in the 2000 race. And he wasn't trusted by many Republican insiders for not adhering to the party line during the Bush years.

  I think the reason Palin is causing such a stir is that she is a post-Bush politician. To both her supporters and opponents, she seems to have come out of nowhere. She hasn't been in the limelight for the last few years, and she hasn't yet had to take public positions on many of the Bush Administration's signature (and in some cases, quite unpopular) positions. Her physical distance from Washington is an appropriate symbol here: While everybody else has been focused on DC, she was spending the Bush years way out out in Alaska.

  In light of that, it makes sense that Palin's candidacy leaves many Republicans exhilarated and many Democrats exasperated. Palin has no direct connections to Bush, or to the Bush Administration's distinctive issues. For many Republicans, Palin is a fresh start after several years of a very unpopular President. For many Democrats, Palin's candidacy is a completely unfair effort to avoid holding the GOP accountable for its loyalty to George W. Bush.

  Anyway, that's my best sense of things. Perhaps my take is idiosyncratic, but if so I'm sure I'll hear about it in the comment threads. Actually, I know I will hear about it either way. Oh, and I should add for purposes of full disclosure, as I have before (although I stopped doing so because it was getting repetitive), that I have endorsed McCain and I'm on a McCain advisory committee on judges. I'm of course speaking only in my personal capacity here, as always, but of course you're free to take my associations into account if you think it's relevant.

  UPDATE: I should add, as a loyal reader of Talking Points Memo (traditionally one of my favorite blogs, by the way, even if it has become unusually shrill recently), that of course there are a lot of suspicions among Democrats that Palin is just a Bush clone. I understand the meme, but I don't see the evidence that backs that up.
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TORT REFORM? - Phony Stella Awards Making the Rounds

There is an e-mail and webpostings making the rounds that appears to recount the "Stella Awards" for the year. These are awards named after 81-year-old Stella Liebeck, who spilled hot coffee on herself and successfully sued McDonald's (in New Mexico).

The purported winner this year is the following:

This year's runaway winner was Mrs. Merv Grazinski of Oklahoma City , Oklahoma. Mrs. Grazinski purchased a brand-new, 32-foot-long Winnebago motor home. On her first trip home from an OU football game -- having driven onto the freeway — she set the cruise control at 70 mph and calmly left the driver's seat to go into the back to make herself a sandwich. Not surprisingly, the RV left the freeway, crashed and overturned. Mrs.Grazinski sued Winnebago for not advising her in the owner's manual that she couldn't actually do that. The jury awarded her $1,750,000 plus a new motor home. The company actually changed its manuals on the basis of this law suit, just in case there were any other complete morons around.

But this case is an urban legend. I think we need tort reform. But these fraudulent examples are hardly going to make the case for it.

Update: I orginally fell for the hoax after receiving an e-mail from a senior law school faculty colleague of mine. I then essentially forwarded the e-mail to VC readers in a post of mine. I apologize for the error, which I have corrected in the above -- revised -- post.

Related Posts (on one page):

  1. Tort Reform Hoax
  2. TORT REFORM? - Phony Stella Awards Making the Rounds
45 Comments

The Good Old Days:

A commenter on the thread below writes:

Thankfully, the courts seem to be getting more involved in this sort of stuff.

It is amazing that the nation survived the 200+ years or so before speech codes forced students to be nice to each other.

I've heard this sort of assertion before, but I don't think it's quite right. I'm not a historian of higher education, but my understanding is that until the 1960s, it was commonly assumed that universities had broad power to suppress student speech (whether to speech that was seen as offensive or speech that was seen as dangerous), and universities regularly used such power. To give just a few examples:

  1. Papish v. Board of Curators (1973), in which the Court held unconstitutional a university's expulsion of a student who distributed a newspaper that "on the front cover ... reproduced a political cartoon previously printed in another newspaper depicting policemen raping the Statue of Liberty and the Goddess of Justice [witht he caption] ‘... With Liberty and Justice for All’" and also "contained an article entitled ‘M---f--- Acquitted,’ which discussed the trial and acquittal on an assault charge of a New York City youth who was a member of an organization known as ‘Up Against the Wall, M---f---.’"

  2. Ratchford v. Gay Lib, in which a university tried to deny recognition to a pro-gay-rights club.

  3. Steier v. New York State Ed. Comm'r, 271 F.2d 13 (2d Cir. 1959), in which a student was suspended under a "courtes[y]" / "good manners" rule for writing "letters to the College President which were obviously bitter and in one of which intemperate language was directed against the office of Student Administration of The College."

The doctrine that students could speak, even in rude or vulgar ways, free of punishment by the university seems to have arisen in the 1960s and 1970s.

More broadly, talk of the "good old days" of liberty -- especially as to free speech -- usually paints too rosy a picture of the past. Free speech in America is on balance more protected now than at any time until about 1970, and probably about as protected as it was in 1970 (though slightly more so in some areas and slightly less so in others). Free speech on campuses is on balance more protected now than at any time until the 1960s; the campus speech code movement of the 1980s onward wasn't something new so much as it was a return in some degree to the control universities tried to exercise over student speech in the past (though often as to different subjects than before).

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Fannie and Freddie Nationalization:

For those looking for a nice summary of issues around Fannie and Freddie, I found this article in the NY Sun pretty informative.

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Interesting New University Student Speech Case:

It's Murakowski v. University of Delaware, and it holds that a student's Web page posts of apparently satirical (though largely in pretty bad taste) stories about sex, relationships, rape, and other things was constitutionally protected, and the university couldn't discipline the student for them. FIRE reports that Murakowski was originally investigated by the university under a speech code that applied to "[a]ny instance that is perceived by those involved as being racist, sexist, anti-Semitic, homophobic, or otherwise oppressive"; but by the time the case went to court, the only questions were whether Murakowski's speech fell within the "true threats" exception to First Amendment protection, or whether it otherwise caused sufficient disruption to justify its punishment. The court said no on both counts.

Related Posts (on one page):

  1. The Good Old Days:
  2. Interesting New University Student Speech Case:
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Post-Boomer Politicians:

I've been mulling over in my head a couple of insightful comments that readers posted to one of my posts last week. I think these readers are onto something quite striking about the Presidential election.

Commenter Blue wrote:

"Palin likes men." That is a very concise way of putting something I have been mulling over.

I think there is a reason for that, as well--Palin isn't a Boomer. She is in one of the first cohorts of Gen-X. She didn't suffer through a lot of the same travails that the Boomer women politicians did that marked all of them with a seriousness and general lack of humor that just turns a lot of men off.

Palin didn't have to fight for a woman's basketball team--it was already in her high school. She didn't have to fight to study something but nursing or teaching--others had already gone into journalism. She didn't have to fight to be the first female newscaster in her market--others had gone before. The list goes on.

So she never experienced--at least not to the same level--the gnawing self-doubt that afflicted so many Second Wave feminists. I think that is the source of her confidence and her appeal.

And David Warner generalized the point:

"Palin isn't a Boomer"

We have a winner!

I think this is why she's the first one to treat Obama like the grown man he is. She was 4(!) in 1968. She acted like a post-sexist, and she treated Barack like a post-racist.

These comments strike me as being right on target. Obama comes across (and I suspect thinks of himself) as a serious, accomplished person who just happens to be black. His race is part of who he is but he isn't defined by his race. He's sort of a Tiger Woods-Michael Jordan kind of guy, not a Jesse Jackson sort of guy. Also, iterestingly he doesn't shy away from engaging in activities that are often thought of as stereotypically "black," such as hip hop music, fist bumps, playing basketball, and Bernie Mac-style humor. It is just what he happens to like, and there is no symbolism that he is trying to send one way or the other with it. Palin is a serious, accomplished woman who just happens to be a woman (I'm not sure who the popular culture comparison might be to her). She is a stylish, feminine dresser who sees nothing inconsistent with being a tough, competent, chief executive and also a fun, loving mother. She simply isn't Hillary Clinton, she's a different generation. Palin and Obama just don't define themselves by these external characteristics. And they aren't the type to sit around and complain about how the world is stacked against them or engage in a bunch of symbolic posturing.

To which it can be added that although McCain is technically a Boomer, he comes across as pre-Boomer (as was widely observed by the media at the convention).

Which leaves Joe Biden, who is many ways strikes me as a very Boomer sort of person (which one of my colleagues at lunch today summed up as "Me, Me, Me" in echoing agreement with this observation).

I've heard Michael Barone observe that this is part of the defining experience of our past two Baby Boomer Presidents (Clinton and Bush) who embody the two different sides of the Baby Boom generation and all the baggage that goes with it. I suspect that Baby Boomer fatigue may have had something to do with the inability of Hillary, John Edwards, Rudy Giuliani, and Mitt Romney to get over the hump in the primaries (all of whom seem quite Boomerish to me). And whichever side you are on, the other side doesn't just have bad ideas but must be a bad person.

And in thinking about the comments by Blue and David Warner that we're talking about post-Boomers here, this is the characteristic of Obama and Palin that the mass media--dominated by Baby Boomers in senior positions--simply doesn't seem to understand. So we keep seeing these efforts by the media to engraft this Baby Boom intellectual baggage onto Obama and Palin. While one might question Obama's judgment on his associations with William Ayres and Jeremiah Wright, I don't think any sensible person seriously thinks that Obama approves of the things those guys say and do. And has become comical to watch Baby Boom media commentators try to fit Sarah Palin into their mental models. It is just weird to me to see old-style folks on both sides try to gin up dislike of these two very appealing people.

Perhaps I'm wrong as this is based on my personal observations, but I think that most post-Boomers see this whole game as sort of ridiculous. And to my mind, at least, simply more evidence of the self-absorption of the Boomer media folks in trying to fit these new people into their crabbed, pre-existing mental constructs than to actually open their eyes and recognize that something new and important is going on. Or to put it more bluntly, most of what these Boomer media-types are obsessed with is BS. And you can tell that Obama and Palin both think it is BS too, although they respond to it differently. But interestingly enough, both of them try to approach it by focusing on points that unite people and which gain consensus. Obama's approach is to try to trascend it with big themes and trying to find ground of agreement. Palin's approach is to try to cut through it by focusing on efficiency, competence, accountability, and pragmatism in governance--by all accounts the focus of her term as governor has been on getting things done, accountability, and problem-solving, rather than pushing divisive ideological themes.

This is also why I wasn't surprised when Obama reacted the way he did to the intrusive media coverage of Palin's daughter's pregnancy--I think he probably just isn't interested in trying to destroy anyone over something like a political election. And as a parallel, this is why Palin's humor is so effective--there is no mean edge to it, but a sort of joshing, "let's have fun and not take ourselves and all of this too seriously" aspect to it (compare that to the way Rudy Giuliani delivered the same sort of jokes). Both are very non-Boomer, I'd say.

If our commenters are right, this is sort of a neat point--and an optimistic one, I think, for the future of the country.

P.S.: On Obama, this gives me an opportunity to direct readers to a neat piece by Harvey Silverglate a little while back on the death of parody. As Harvey notes, I think correctly, the outrage over the New Yorker cover cartoon a few weeks back simply missed the point--the parody there was not in suggesting that Barack and Michelle Obama were domestic terrorists. The parody was in making fun of those who would try to paint Michelle and Barack Obama as domestic terrorists (as Harvey observed, "the joke was on his enemies").

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Michigan Supreme Court Keeps "Reform" Initiative Off Ballot:

The Michigan Supreme Court ruled 6-1 yesterday that the "Reform Michigan Government Now" initiative is ineligible to be on the ballot. According to the Court's majority, the initiative would make too many changes to the state constitution to be placed on the ballot as a single initiative. The Detroit News reports on the decision here.

Related Posts (on one page):

  1. Michigan Supreme Court Keeps "Reform" Initiative Off Ballot:
  2. Michigan Appeals Court Voids "Reform" Initiative:
  3. Rewriting a State Constitution for Partisan Advantage:
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The Way You Haunt My Dreams,

Sarah Palin: Well, not actually my dreams, but some people's; Slate is collecting examples of Palin dreams, and links to an Obama dream site as well.

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Home Defense Law Takes Effect in Ohio:

Starting today, Ohio law embraces the "castle doctrine" — the idea that your home is your castle — and homeowners who use force to protect their homes against intruders will be presumed to have acted in self-defense. More here.

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Court to Consider Kennedy Rehearing:

The Supreme Court has issued an order requesting briefing on whether it should rehear Kennedy v. Louisiana, the case in which the Court held the death penalty to be an unconstitutional punishment for the crime of child rape. The basis for rehearing would be the Court's reliance upon the lack of a federal law providing for capital punishment for child rape as evidence for the existence of an emerging "national consensus" on the issue when, in fact, such a federal law actually existed (and had been adopted relatively recently). The Court's decision to seek briefing on the question of rehearing is heartening news, as I believe the Supreme Court needs to rehear the case if for no other reason than to restore the Court's tarnished credibility.

SCOTUSBlog has more here. Our prior posts on the possibility of rehearing in this case are here and here.

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Fannie Mae and Freddie Mac: Too Big and Too Expensive.

As I noted over the weekend, Fannie Mae and Freddie Mac were taken over by the federal government. Previously, the federal government had agreed to prop them up and in effect to make good on many of their losses. So as things deteriorated, that existing guarantee and the exposure it reflected was becoming too expensive for taxpayers to bear.

Further, while governments can seldom run things better than private businesses, Fannie and Freddie were only quasi-private. Their business model proved to be an expensive one, in part because they wasted huge sums on lobbying and executive compensation that was unwarranted given the firms’ poor performance. Also, it seemed to the Treasury Department that if the firms were taken over, the rates to place their mortgage debt would drop, in essence that the interest that they had to pay out to place their paper was too high.

So Fannie Mae and Freddie Mac had become too big and too expensive to taxpayers to let the firms continue on as they were. Allowing them to continue to operate was wasting too much taxpayer’s money, since we were on the hook for their expensive and wasteful business model.

In part to reduce the expense to taxpayers of the guarantees given in July, on Sunday the federal government put Fannie and Freddie in receivership, removed their board, put in new management, and eliminated their lobbying costs. Fannie Mae and Freddie Mac had become too big and, given the pre-existing promises to make good or offset much of Fannie and Freddie’s losses, too expensive to let them become yet more expensive for taxpayers. Better to takeover and potentially take losses sooner than to let the expense of a rescue explode in the future.

As I understand it, Sarah Palin made this point in passing, saying that they had "gotten too big and too expensive to the taxpayers." She was right; their growing expense to taxpayers was one of the main reasons for the takeover (among other worries were secondary effects on some investors of further Fannie and Freddie troubles).

Not surprisingly, Palin was roundly attacked by people either too partisan to be honest about things or too ignorant that Congress had already written a blank check to Fannie and Freddie that was getting more expensive to taxpayers by the day.

Here is Peter Viles’ take on things at the LA Times blog:

My take: The Palin comment is well within the margin of error on the campaign trail. There is no "gaffe" here. Congress earlier this summer — in the housing bill that both John McCain and Barack Obama supported but didn't bother to vote on — gave Treasury Secretary Henry M. Paulson Jr. a blank check* to invest in Fannie or Freddie. It OKd a big bailout. Perhaps in your book a blank check freshly signed by Congress is not "too expensive." Perhaps you trust the government not to spend a blank check. Perhaps pigs have wings. Palin was right: The very existence of a blank check means that Fannie and Freddie are too expensive to taxpayers.

*In a comforting bedtime story that several members of Congress actually believed, Paulson said the blank check was so big and powerful (a bazooka of cash!) he would never have to use it. By the time Palin spoke, it was clear that Paulson's attempt at "verbal intervention" had failed and that real taxpayer money will be spent to prop up Fannie and Freddie. No one knows how much, but the Treasury has signed contracts to invest up to $100 billion in each company. Oh, and loan them money too. Oh, and buy their mortgage-backed securities. Do you really want to argue that she made a mistake by saying the two companies are "too big and too expensive to the taxpayers"?

Give her time, and a few one-on-one interviews. I'm certain she's as capable of the other three of a real screwup. This is not it.

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"Hallucinogen’s Popularity May Thwart Medical Use": The New York Times has this very interesting story. For some videos of folks on the hallucinogen in question, go here.
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Working the Refs: Access to Obama and Palin.

One of the big stories in the last two days was the unavailability of Sarah Palin for interviews (Palin has been out campaigning and giving speeches, but has put off interviews for now).

I think Barack Obama had the best term for public complaints about the opponent's behavior: Working the refs.

If I were Obama, I would try to work the refs too. After all, Palin is indeed dodging the press.

But observers should not get too worked up about this issue, given the Obama campaign's long history of struggles with the press over access to Obama, intermittent refusals to hold regular press conferences with the reporters following him (favoring instead short interviews with local and national press less up on the issues), and the habit of punishing any reporters who probe too deeply, especially about his carefully crafted personal history.

A TRIP DOWN MEMORY LANE: From February through July.

POLITICO, 2/3:

"We're not on the plane, in my view, to have private talks with presidential candidates," Zeleny added. "We're here to report what they are saying and give our readers a better idea of their campaigns and their candidacies."

"There has never been a press corps in the history of our nation that got as many interviews as they wanted," Jen Psaki, the Obama campaign's traveling press secretary, responded in an e-mail.

. . . Whereas a candidate like Sen. John McCain of Arizona relishes lengthy on-the-record bull sessions with the media, Obama generally does not. So it's no surprise that reporters will rush to get a quote when he does so.

Of course, journalists griping about not getting enough access is nothing new — but as Obama and Clinton fraternize a bit more with the traveling media, and the rules aren't clear, it presents a problem.

UPI, 2/26:

Reporters are finding it tougher to gain access to Barack Obama as the Illinois senator's campaign closes in on the Democratic U.S. presidential nomination.

Complaints from the press plane include blackouts on Obama's satellite television interviews and requirements for escorts at large campaign rallies, the Web site The Politico said Tuesday.

The Politico said Hillary Clinton and John McCain remain more open to the press pack and also noted the growing lack of access comes at a time when Obama is seeing increased criticism over a perceived lack of specifics on his platform.

Wall Street Journal, 3/3:

This year, Hillary Clinton made a clumsy attack on Mr. Rezko as a "slum landlord" during one debate. But her campaign has otherwise steered clear — at least until last Friday, when Howard Wolfson, a top Clinton aide, suggested to reporters on a conference call that "the number of questions that we don't know the answers to about the relationship between Mr. Rezko and Mr. Obama is staggering." Mr. Obama's campaign told me they have answered all questions about Mr. Rezko and have no plans to release any further records. . . .

Mr. Obama will eventually have to talk about Illinois, if only to clear the air. After John McCain last month was attacked for cozy ties to lobbyists, he held a news conference and answered every question. Hillary Clinton held a White House news conference on Whitewater and her cattle futures. Mr. Obama must do the same for questions about Mr. Rezko and "the Chicago way" of politics. If he doesn't, they may increasingly haunt his candidacy.

Telegraph, 4/22:

Accusations of a passionate love affair between Barack Obama and the press have been a feature of the 2008 campaign. Well, if that's the case there's maybe a need for a bit of counselling at the moment if the relationship is to be stopped from heading towards splitsville. On Obama One, there's a sense of growing mutiny. There's been no press availability for 11 days and only two in April. And today there was "Wafflegate" yep, the incident achieved gatedom status within hours.

Is Barack Obama too busy eating waffles to talk to the press?

In an exchange in a Scranton diner that may well lead to Obama being dogged by hapless young Republican volunteers dressed in foam waffle costumes come the general election, Aswini Anburajan of NBC asked the presidential hopeful what he thought of Jimmy Carter meeting Hamas. Visibly annoyed, Obama responded: "Why can't I just eat my waffle? I'm just eating my waffle here." Realising he was being videoed, he then winked at Anburajan and tried to make a joke of the moment. But it was too late.

A few hours later, Obama was unrepentant, again rebuffing a reporter's question. . . .

When we asked him (David Axelrod) why Obama wasn't talking to us, he responded: "I'm sure that he'll be spending time with you some time soon. He's done a series of interviews today on national television, on local television with local press so he's done a lot of media."

But Obama's unwillingness to hold a press conference is clearly part of a strategy of message control. Short television, radio or local newspaper interviews are very unlikely to put him at the mercy of the kind of persistent line of questioning he was subjected to during last Wednesday's Philadelphia debate which clearly annoyed him.

In the short term, it might be a clever tactic he hasn't been tripped up in the closing days of the Pennsylvania primary campaign. But in the longer term it could be a problem against John McCain, who grants almost unfettered media access.

Reporters get antsy when they're not talked to particularly if their organisations are stumping up thousands of dollars a day to travel with the candidate. Normally, Obama wouldn't get questions thrown at him in diners, on the tarmac or when he's micing up for a tv show.

But if he's not doing press conferences or avails on the plane then we have no other option but to buttonhole him whenever we can. . . .

When he does engage with the press, Obama can be charm itself and is more than up to the task of handling a bit of back and forth. But as the waffle video shows, avoiding questions feeds the notion of a certain type of arrogance and a feeling that the candidate thinks he doesn't have to hold himself up to proper scrutiny.

Politico, 6/19:

News organizations complain about access to Obama

The Times mentioned today a letter from Washington bureau chiefs of six leading news organizations to the Obama campaign, complaining about access and about being deceived by campaign aides.

I've obtained a copy of the letter, whose signatories include AP's Ron Fournier and the late Tim Russert of NBC. It was sent June 6, after Obama flew his press corps to Chicago and stayed behind to meet Clinton. The news organizations threaten in the letter to withhold payment for the flight.

More broadly, the organizations complain that Obama offers less access to the press even than President Bush, keeping even a single pool reporter out of his security bubble. He also answers relatively few questions, and his agreement to admit reporters to fundraisers remains partial: Last night, the pool reporter, the Washington Post's Anne Kornblut, reported that she was confined to a Kennedy poolhouse while Obama talked to donors.

Guardian, 6/19:

The US media is airing frustration over its access to Barack Obama's campaign, complaining that the Democratic nominee sets a lower standard for press relations than George Bush.

The Obama camp is known for its disciplined message and well-oiled operation. Such control appears to be creating tension with major US television networks and newspapers, which pay high prices to travel with the candidate and expect access to Obama in return.

Reporters have been shut out of two Obama events in the past week, according to the New York Times.

Newsbusters, 7/21:

Andrea Mitchell might be a doyenne of the liberal media, but she has her reporter's pride and principles, which have been trampled by the way the Obama campaign has managed the media during the candidate's current trip to Afghanistan and Iraq. Mitchell let loose on this evening's Hardball, speaking of "fake interviews," and decrying that she was unable to report on pertinent aspects of the trip because the media has been excluded and that the video released is unreliable because it's impossible to know what has been edited out. …

MITCHELL: Let me just say something about the message management. He didn't have reporters with him, he didn't have a press pool, he didn't do a press conference while he was on the ground in either Afghanistan or Iraq. What you're seeing is not reporters brought in. You're seeing selected pictures taken by the military, questions by the military, and what some would call fake interviews, because they're not interviews from a journalist. So, there's a real press issue here. Politically it's smart as can be. But we've not seen a presidential candidate do this, in my recollection, ever before.

The New Republic, 7/24:

Reporters who cover Obama these days grouse that Obama's flacks shroud the campaign in secrecy and provide little to no access. "They're more disciplined than the Bush people," a reporter on the Obama trail gripes. "There was this idea of being transparent, but they're not. They're total tightwads with information."

In June, there was something of a revolt after Obama ditched the press corps on his campaign plane for a secret meeting with Clinton at Senator Dianne Feinstein's house in Washington, leaving the reporters trapped on the flight to Chicago. . . .

Meanwhile, there have been widespread complaints over the shortage of spots to accompany Obama on his tour of the Middle East and Europe. A few days before the tour departed, Time magazine was told it couldn't send a photographer along, and, on July 22, NBC foreign affairs correspondent Andrea Mitchell complained on-air that the only images the press had received of Obama meeting with the troops was released by the U.S. military. (To be fair, congressional delegations to Iraq are kept secret for security purposes). And there's been widespread grumbling that the campaign revoked New Yorker writer Ryan Lizza's spot on the trip as retribution for the magazine's recent satirical cover. These may or may not be legitimate complaints--the evidence is mixed--but the press is hardly inclined to give the campaign the benefit of the doubt.

Obama's press liaison, Robert Gibbs, has built a particularly large reservoir of ill will. David Mendell, who covered Obama's Senate campaign for the Chicago Tribune and authored the 2007 Obama book From Promise to Power, wrote about Gibbs as "the anti-Obama" and described him as "Obama's hired gun, skillfully trained to shoot at reporters whose coverage was deemed unfair. Mendell tells me, "if [Gibbs] feels you're necessary to achieve a campaign goal, he will give you access and allow you in. But, if he feels you're not going to be of help, he can just ignore you." Mendell has his own specific gripe: Apparently, the Obama team was less than pleased with his biography, on which they cooperated, and Gibbs has since refused to help with the second edition.

Much of this is certainly the run-of-the-mill complaining of campaign reporters who can't get enough access. Still, the campaign hasn't helped itself, approaching reporters with a sense of entitlement. "They're an arrogant operation. Young and arrogant," one reporter covering the campaign says. "They don't believe in transparency with their own campaign," another says.

Reporters who have covered Obama's biography or his problems with certain voter blocs have been challenged the most aggressively. "They're terrified of people poking around Obama's life," one reporter says. "The whole Obama narrative is built around this narrative that Obama and David Axelrod built, and, like all stories, it's not entirely true. So they have to be protective of the crown jewels." Another reporter notes that, during the last year, Obama's old friends and Harvard classmates were requested not to talk to the press without permission.

As tensions escalate, the risk to Obama, of course, is that reporters will be emboldened to challenge his campaign ever more aggressively

Media Matters, 7/29:

But back to Obama. Any discussion about his press relations and whether his campaign has walled out reporters takes place against the backdrop of the Beltway conventional wisdom that McCain enjoys an easygoing kinship with reporters because his free-wheeling, media-loving campaign boasts an "almost obsessive level of press access," as Ana Marie Cox stressed in a recent issue of Radar. (It's access that, as Media Matters for America's Jamison Foser pointed out, serves no real purpose unless reporters put it to use by asking McCain probing questions.)

"Covering McCain is a blast," wrote Cox. "He genuinely likes reporters: He'll joke with us about our drinking habits, playfully request our cell phones in the middle of a call and tell some unsuspecting editor or parent that the phone's owner has just been hauled off to rehab, and engage in gleefully sarcastic banter about both our colleagues and his."

UPDATE: If I were working on the McCain campaign, I would turn the access question back on Obama — in essence, working the refs.

In a few days, I would announce that Sarah Palin will hold her first open press conference devoted to questions about her background on the day after Barack Obama holds his first open press conference devoted to questions about his background — his Chicago days, his attempts to reform education, his obtaining grants for developers, his ties to questionable friends, and his earmarking practices in both the Illinois and US Senates. This would have to be an announced press conference where Obama would stay long enough to answer essentially all questions from the traveling press, as well as from investigative reporters from the National Review and the Weekly Standard. The next day Palin would hold her press conference and do essentially the same thing, answering questions about her background.

Even if the McCain campaign does not take this exact approach, if Palin ever does hold a public press conference on her background, she should challenge Obama to do the same. If she has to answer questions from the dozens of news organizations now probing her past, Barack Obama should have to answer questions from the very few news organizations who have bothered to look into his in any depth.

2d UPDATE: The more I think about it, I wouldn't trust the existing press corps to do its job even if given the opportunity -- it hasn't so far.

The better offer, which can be made today and fits the anti-press narrative even better, is this: Sarah Palin will sit down for a long interview about her background with an investigative reporter from the NY Times or Washington Post the day after Barack Obama sits down for a long interview about his background with Stanley Kurtz of the National Review.

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New Washington Post "Expose" on Palin:

You have to read the article carefully to figure this out, but what the story ultimately reveals is that Palin (a) billed the state for most expenses allowed by law, including per diem when she stayed in her own home (her "duty station" was the state capitol of Juneau) in Wasilla; (b) didn't bill the state for other expenses, when she could have done so lawfully, such as per diems for her children; and (c) spent a lot less money on expenses than did her predecessor, especially on travel and by ridding herself of the state's personal chef. [FWIW, she apparently maintained two residences, the governor's mansion in Juneau, which by state law is her official work "base" and where assumedly she didn't get a per diem [update: confirmed here] (but where her predecessor had a personal chef whom she let go), and Wasilla, from where she commuted to Anchorage for work when the legislature wasn't in session. Saintly to take the per diem she was legally entitled to when in the second residence? No. Worthy of the lead headline on Washingtonpost.com? Please! Not illegal, not unethical, and not a scandal.]

Meanwhile, I have to wonder whether the Post has several reporters looking over Joe Biden's expense reports. Does he bill the government for his daily roundtrip to Delaware? How many "fact-finding missions" has he participated in annually during his Senate career? Inquiring minds want to know?

UPDATE: The Post doesn't do the math for us, but the total per diem claimed was $16,951 divided divided by 312 days, or $54.33 per day (the per diem is $60, so there were some partial days).

Also, the article headline, "Palin Billed State for Nights Spent at Home," and some related content, is very misleading. A glance at the expense report reproduced on the Post's website makes it clear that she requested per diem for her daily expenses, but not for lodging, and that she apparently wrote "lodging--own home" only to explain why she wasn't requesting hotel expenses. One almost wonders whether the author of the story understands what a "per diem" is; the story notes that Palin rarely charged the state for meals when in Wasilla and Anchorage, but of course she didn't, because she instead just asked for the per diem!

The Post also reports:

In the past, per diem claims by Alaska state officials have carried political risks. In 1988, the head of the state Commerce Department was pilloried for collecting a per diem charge of $50 while staying in his Anchorage home, according to local news accounts. The commissioner, the late Tony Smith, resigned amid a series of controversies.

"It was quite the little scandal," said Tony Knowles, the Democratic governor from 1994 to 2000.

It must have been quite a little scandal, because a search of the Anchorage Daily News for "Tony Smith" reveals no per diem controversy, only a controversy over alleged contract-steering that led to Smith's resignation, and an earlier, much smaller controversy about state officials, including Smith, taking foreign trips. There was a contemporaneous (early 1989) controversy over the expenses claimed by state Sen. Paul Fischer, including allegations that he requested a per diem on days when he was not where he claimed to be.

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Survey Shows Sharp Differences in How McCain Supporters and Obama Supporters View Proper Role of the Supreme Court: Rasmussen Reports recently conducted a survey of 1,000 likely voters and asked survey respondents the following question:
Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?
The responses revealed a sharp difference between the views of McCain supporters and the views of Obama supporters:
While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.
Hat tip: lkcjpd.
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Question re Fannie/Freddie:

As I understand it, the common and preferred shareholders are basically being wiped out, but the government is backing Fannie and Freddie's existing debt, the value of which therefore rose. So here's my question: if Fannie and Freddie were heading for bankruptcy but for the government's intervention, why didn't the Treasury Department bargain hard with major holders of their existing debt (such as the Chinese government), and threaten to let Fannie and Freddie go bankrupt unless the debtholders agreed to write down the value of the debt? After all, there was no explicit guarantee of such debt, and Treasury still could have agreed to explicitly guarantee FUTURE Fannie and Freddie debt.

The way the bailout is structured, it seems that Fannie and Freddie shareholders, and the American taxpayer, are paying the price, but holders of the GSE's debt get made whole at the latter's expense. Why?

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Future of Federalism Conference at AEI:

This Friday, September 12, I will be speaking at a conference on "The Future of Federalism" that I helped organize at the American Enterprise Institute. Co-Conspirators Randy Barnett and Jonathan Adler will also be speaking, along with an ideologically diverse group of prominent federalism scholars, including Jesse Choper, Rick Hills, and Malcolm Feeley.

If you are in the DC area and have any interest in federalism-related legal and policy issues, I hope to see you there.

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Monday, September 8, 2008

"Anger Over 'Ramadan' Trial Delay":

BBC reports:

A row has broken out in France after a court postponed a trial, apparently because it was to take place during the holy Muslim month of Ramadan.

Critics say the decision is a breach of France's strict separation of religion and state.

The trial of seven men for armed robbery was due to start on 16 September in Rennes.

But last week the court agreed to a request from a lawyer for one of the accused to put it off until January....

[The lawyer for one defendant], a Muslim, would have been fasting for two weeks and thus, he said, be in no position to defend himself properly.

He would be physically weakened and too tired to follow the arguments as he should....

The government's Minister for Urban Affairs, Fadela Amara, herself a Muslim, said it was a "knife wound" in the principle of a secular republic ....

The far right leader, Jean-Marie le Pen, for his part, said the French justice system had reached a new low....

(Note that the prosecutor denies the trial was postponed because of Ramadan, but others question the denial.)

Here's my thinking, at least as to similar questions that might arise in the U.S.:

(1) Generally speaking, the justice system allows a considerable range of modest delays for the convenience of the lawyers and of judges. In principle, I would think that a brief delay for a couple of weeks in order to accommodate a defendant's religious beliefs would be quite sensible. Certainly that's true for delays of a few days, if the concern is that the trial would fall on a defendant's -- or a witness's -- holy day, such as Yom Kippur or some similar Muslim holiday. If there's enough advance notice, then this shouldn't cause much trouble at all, and neither would it unduly interfere with the public's or the victims' interest in speedy justice. And if prosecutors don't object, then this seems little different from the sorts of scheduling delays that are pretty common in trials, especially when the prosecution and the defense agree.

(2) A delay of over three months is potentially more troubling. Witnesses' recollections may suffer even over those three months (especially if the trial would otherwise have been quite close in time to the crime). The victims may have to spend more time dwelling on the coming trial. And if the defendants are out on bail (not clear whether these one are) such a long delay may give them a material unfair advantage, since lots of us, religious or otherwise, would rather have an extra three months of freedom now than three months of freedom later. (True, some defendants may want closure as much as the victims do, but many don't, and would happily put off their prison term, again if they're out on bail.)

Much of the delay here of course has to do with the court's schedule. But when you move things around on short notice -- and it looks like there was short notice here, though I don't see why -- you'll certainly run up against other trials or other constraints on the lawyers or the witnesses, and you'll foreseeably have to put things off for some months.

(3) I've never fasted for a month, even just during the daylight hours. But it would surprise me if not eating from dawn until sunset -- while still being able to eat from sunset to dawn -- would leave people so weak that they can't follow the arguments at trial and help their lawyers as necessary. Presumably Muslims work normal jobs during Ramadan, and manage to do just fine, I take it because they can fill up at night and before dawn and therefore suffer modest discomfort more than debilitating weakness and fatigue. Perhaps this particular defendant has a special medical condition that exacerbates the effect of the daytime fast, but I saw no evidence of this in the news stories. So it looks to me like the case for the religious accommodation here is fairly weak, unlike a situation where a person has a religious belief requires him to spend all of one day in religious services.

(4) All this having been said, such a reaction in the U.S. would strike me as out of proportion to the problem, especially given the pretty routine ways in which criminal trials are often postponed, and not just for a few days but for months. (If in France there's a longstanding tradition against most postponements, I might take a different view as to this case.) The problem isn't that religious accommodations in the judicial system are somehow wrong; even a secular system, it seems to me, should at times accommodate the religious beliefs of its religious citizens. Rather, it's that this particular accommodation might cause too long a delay, and the asserted justification for the accommodation might be overstated.

Thanks again to Prof. Howard Friedman (Religion Clause) for the pointer.

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"Russian Prosecutors in Bid to Ban South Park,"

reports the Times (London):

Prosecutors took action against the 2x2 television channel for broadcasting an episode [Mr Hankey's Christmas Classics] of the animated comedy show that featured Christmas songs including a medley duet performed by Santa Claus and Jesus Christ.

The Basmanny regional prosecutors office in Moscow has announced that the programme "bore signs of extremist activity"....

A statement by Moscow prosecutors read: "It offends the honour and dignity of Christians and Muslims alike." It could just have easily included Jews, Scientologists, Catholics, Mormons and Moonies all of whom have been mercilessly targeted by American series....

The prosecutors said ... the programme "could provoke ethnic conflict and spark inter-religious hatred".

Russia passed a 2006 law widening the definition of extremism to include "the abasement of national dignity" and "inciting religious and national hatred", which backers say was needed to stem a wave of violence aimed at ethnic minorities....

Thanks to Prof. Howard Friedman of the Religion Clause blog for the pointer. I haven't had the time to search for any Russian-language stories on the subject, but if you can find any — especially from prominent Russian news sites — please let me know, since of course I'd prefer to read stories that are closest to the source. If there are any statements from the prosecutor's office, they would be especially helpful.

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Did Palin Actually Say That Iraq is "a Task . . . from God"?

While searching for CNN's story on Troopergate, I came across a surprising statement of Palin's quoted by Anderson Cooper: that the war in Iraq was "a task that is from God":

[Palin] also talked to church members about “being saved” at the Assembly of God and suggested to them that the war in Iraq is a mission from God. Palin said, “our national leaders are sending them out on a task that is from God. That’s what we have to make sure that we are praying for, that there is a plan and that that plan is God’s plan.”

Wow! CNN caught Palin saying on tape that Iraq was a task from God. Ouch!

But then I listended to the clip. Palin actually said:

“Pray for our military. He's [Palin's son Trask] going to be deployed in September to Iraq. Pray for our military men and women who are striving to do also what is right for this country – that our leaders, our national leaders are sending them out on a task that is from God. That’s what we have to make sure we are praying for, that there is a plan and that that plan is God’s plan.”
I find it hard to believe that Anderson Cooper does not understand the difference between praying for something you hope is true and stating that it is true. Is praying for peace throughout the world the same as saying that there is peace throughout the world?

I'm an atheist, but I'm not so old or out of touch that I don't know that Palin was doing what Christians often do: praying that what the country was doing was God's will. It's not strange for a Christian to hope that what you want to do or think is right is indeed God's will.

When I was growing up, I used to enjoy hearing our local Congressman, John B. Anderson (who ran for president in 1980), preach in the Protestant Church I went to as a child. He was certainly more interesting than our regular pastor. In Chicago, it's common to see news clips of politicians speaking in churches (often African American ones) on the eve of elections, and sometimes those politicians urge that someone vote for a particular candidate.

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Podcast on Cognitive Error as a Justification for Paternalism:

In recent years, many prominent scholars have argued that widespread cognitive errors by consumers justify the imposition of various paternalistic policies by the government.

I criticize such claims in this recent Cato Institute podcast, "Nudging Paternalists." I previously criticized "libertarian paternalism," one of the ideas discussed in the podcast, in this series of posts last year.

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"She's More a Conservative Man Than She Is a Woman on Women's Issues":

That's what Politico reports that "[a] spokeswoman for the National Organization for Women, noting Palin’s opposition to abortion rights and support of other parts of the social conservative agenda, told Politico."

This sort of "not a real woman" argument strikes me as quite reprehensible, a denial of individuals' right to come to their own moral and pragmatic judgments independently of their group. To give an analogy, it would be equally reprehensible to say "he's more a white than a black" of a black who opposed race-based preferences for blacks, or to say "he's more a black than a white" of a white who supported such preferences.

But even if it's just shorthand for the statistical assertion that "her views are those shared by men much more than by women," it is, as best I can tell, simply false, at least to the item specifically mentioned in the quoted passage:

Age, education and religion each plays a strong role in informing people's views on the issue. But despite conventional wisdom, sex does not. Indeed, as usual, men and women support legal abortion in roughly equal numbers: 54 percent of men, and 58 percent of women, say it should be legal in all or most cases. In the various conditions tested, moreover, men and women express virtually identical views:

Favoring Abortion: Men Versus Women

SituationMen Women
All or Most Cases 54% 58
To Save Woman's Life 88 88
To Save Woman's Health 82 83
In Cases of Rape/Incest 80 81
Physically Impaired Baby 53 55
To End Unwanted Pregnancy 43 40
D&X/Partial-Birth Abortions 28 19
Pregnancy is 6 Months+ 15 8

So "she's more a conservative [wo]man than she is a [liberal] woman" on abortion would be accurate. "She's more a conservative woman than she is a liberal or centrist woman" would be accurate on some aspects of abortion rights questions (perhaps if she thinks abortions should be illegal when the only reason is a "physically impaired baby"), but not on other aspects (such as in her opposition to allowing abortions "to end unwanted pregnancy"). But to say "she's more a conservative man than she is a woman on women's issues" is factually inaccurate (at least if I read it right as an assertion that she votes with what is dominantly the "male view" as opposed to the "female view"), as well as reprehensible for the reasons I mentioned earlier.

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Now That's an Angry Dissent: The Sixth Circuit is well-known for its ideological divides and sometimes-nasty dissents in habeas cases, but the dissent in Tucker v. Palmer last week from Judge Damon Keith seems to set a new standard. The issue in the case was whether under the deferential AEDPA standard, the state court had unreasonably determined that there was sufficient evidence to uphold the verdict in a state burglary case. The majority concluded that under the doubly-deferential standard, the evidence was sufficient for the state court to have upheld the verdict. Judge Keith disagreed. Here's how he began his dissent:
  The majority's opinion flagrantly violates the Fourteenth Amendment. I therefore vehemently DISSENT. It is “[b]etter that ten guilty persons escape than that one innocent suffer.” 4 William Blackstone, Commentaries at 358. This powerful and wise axiom reveals that a court commits the ultimate injustice by convicting and imprisoning a person based on insufficient evidence. Such a judicial transgression contravenes the most important right our Constitution affords the accused: “the Due Process Clause [of the Fourteenth Amendment] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); U.S. Const. Amend. XIV, § 1. Apparently neither the state trial judge nor the majority ever read or understood the Constitution, for in the instant matter, they recklessly disregarded this fundamental requirement of proof beyond a reasonable doubt by convicting Defendant Raymond Tucker of home invasion without any evidence sufficient to prove his guilt.
  Wow. There's nasty, and then there's "accusing the other judges of never having read or understood the Constitution" nasty. In case you're wondering, the majority opinion was by Senior District Judge Harold Ackerman, a Carter appointee to the District of New Jersey, joined by Jeff Sutton, who as many readers know was a Bush 43 appointee to the Sixth Circuit.

  Thanks to Steven Wells for the link.
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The Supreme Court's Criminal Docket: Crime & Consequences has a list of the criminal cases the Supreme Court is hearing this fall. Kent's list reminds me that the Fourth Amendment cases this Term are front-loaded: there will be three in the first two weeks. I have blogged already about one case, the fascinating Herring, and I plan to blog more on Herring and also on Gant.
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Biased Omissions From ABC Report on Troopergate.

I watched a 5 minute, 18 second ABC investigative report on Troopergate in a genuine desire to learn more about Sarah Palin's concerns about the dangerous Trooper who had tasered his stepson, allegedly threatened to kill a member of Palin's family, drank beer in a police car, etc. Palin herself reported the alleged death threat against Palin's father made by Trooper Wooten (her former brother-in-law): "I will kill him. He'll eat a (expletive) lead bullet, I'll shoot him." And Wooten himself admitted that he tasered his 10 [or 11]-year-old stepson, according to some reports justifying it as a training exercise.

Yet some on the internet have suggested that it's not so simple. I, for one, wanted to know more. In Chicago, a big issue over the last decade has been the extent to which police hierarchy looked the other way when dealing with "dirty cops." The press in Chicago is uniformly harsh on officials who treat such serious behavior leniently, as Alaska Director of Public Safety Moneghan appears to have done.

So I was shocked that the entire ABC report made no mention of any reason anyone would want to have a dangerous cop fired. The only reason even hinted at in the entire ABC report was that the trooper was Palin's brother-in-law.

I think that all the reporting that's actually in the ABC report is fine; it is effectively edited to make Palin look like she is shading the truth (at best) — and she probably is. But it is unconscionable for ABC to fail to mention ANY LEGITIMATE REASON why Palin might want the dirty cop fired or any reason to be contacting Mr. Moneghan about it (the threats to kill her family that she witnessed). The ABC report is trying to say that Palin fired the state official because she wouldn't fire her former brother-in-law; even if that were true, don't you think the audience would be entitled to know WHY?

If I were head of ABC News, I would immediately fire or demote the producer of this ABC report. I would then break up the team that did the report and bring some political diversity to ABC's newsroom by hiring a Republican-leaning producer from outside. There is no possibility that an ABC producer could report an entire 5 minute story with extensive clips from past interviews without knowing of the reasons for Palin wanting the allegedly dirty cop fired. To suppress that knowledge from their viewers because it would allow viewers to understand Palin's actions was a breach of simple journalistic ethics. An apology to Palin is due.

That ABC, which has been fairer in this election cycle than NBC or CBS, could act as it did here just suggests how bad things are in journalism today. This is the most biased season of press coverage that I can remember for at least a decade.

And I am not as sanguine as others that the backlash against the press will effectively offset press bias. As ABC's report shows, Palin is probably at least shading the truth — perhaps worse — and fair-minded viewers who know no more than ABC is willing to tell them would likely think even worse of her.

I'm slowly learning more about Troopergate, but I still have a lot to learn. ABC could have been a lot more helpful. Every day I am thankful that the monopoly on the national news has been broken, but the remnants of that monopoly remain powerful.

UPDATE: Flopping Aces has some details based mostly on online sources. According to that site, it turns out that (1) the investigation into Wooten started before Palin even started her run for governor, (2) there were two people who heard the death threat by Wooten, (3) there were substantive reasons given by Palin for her removing Moneghan and offering him another job in her adnministration, and (4) the investigation found that Wooten had behaved improperly:

"The record clearly indicates a serious and concentrated pattern of unacceptable, and at times, illegal activity occurring over a lengthy period, which establishes a course of conduct totally at odds with the ethics of our profession,” Col. Julia Grimes, then head of Alaska State Troopers, wrote in [a] March 1, 2006, letter suspending Wooten for 10 days. After the union protested it, the suspension was reduced to five days.

She warned that if he messed up again, he’d be fired.

So apparently Wooten was a dirty cop being treated fairly lightly by his superiors and his union.

2d UPDATE: Some commenters are arguing particular facts below, in particular, some reports that the 10 or 11 year old stepson asked to be tasered, and immediately asked to be tasered again. I have read other accounts that suggest that the child was trying to show he was tough in front of his cousin, one of Sarah Palin's daughters.

You are missing one of the points of my post, made both at the beginning and the end. I want to know what happened. I don't know the details; I want to know them. The press should be of more help. ABC just gave one side of the story, an account that was not even very coherent since it didn't mention why anyone would be concerned about keeping Wooten on staff.

Tasering a child is wrong, whether he asks for it or not. If the tasering was motivated by the stepson trying to seem tough to his cousin -- and Wooten knew this -- then it would show him to be as childish as his stepson. I wish I knew what happened; I wish the national press cared what happened.

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Wiki Needed: Over at Prawfs, Dan Markel points out the need for a wiki on the AALS law-prof hiring process. Interesting idea, I think. If a reader wants to set one up, post the link in the comment thread and we'll make sure word gets out.
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Professor Biden:

Here's an interesting report on Senator Biden's turn as a professor. It seems he got high marks.

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Suing Over Cheney's Records:

Citizens for Responsibility and Ethics in Washington is leading a lawsuit to prevent the sealing or destruction of Vice President Cheney's records, the Washington Post reports.

The group expects to file the lawsuit today in the U.S. District Court for the District of Columbia. It will name Cheney, the executive offices of the president and vice president, and the National Archives and chief archivist Allen Weinstein as defendants.

The goal, proponents say, is to protect a treasure trove of information about national security, the wars in Iraq and Afghanistan, domestic wiretapping, energy policy, and other major issues that could be hidden from the public if Cheney adheres to his view that he is not part of the executive branch. Extending the argument, scholars say, Cheney could assert that he is not required to make his papers public after leaving office. Access to the documents is crucial because he is widely considered to be the most influential vice president in U.S. history, they note.

[NOTE: Link fixed at approx. 1pm. Sorry about that.]

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Integrating Crime Victims into the Federal Rules of Criminal Procedure

The Federal Rules of Criminal Procedure constitute the "playbook" for the federal criminal justice system. But crime victims have been largely absent from the rules, even though they have an expanding number of rights in the process.

In this paper, which recently appeared in the Utah Law Review, I argue that it is time to fold crime victims into the federal rules. I develop a rule-by-rule analysis of changes that should be made, including: 1. Ensuring that crime victims' attorneys can appear in court (Rule 1); 2. Providing for victim participation in the plea bargain process (Rule 11); 3. Protecting victims' addresses and telephone numbers from improper disclosure (Rule 12); 4. Guaranteeing victims the right to attend criminal depositions (Rule 15); 5. Protecting victims from having personal and confidential information improperly subpoenaed (Rule 17); 6. Considering victims' interests when cases are transferred or when a bench trial is ordered (Rules 21 and 23); 7. Integrating victims into the sentencing process (Rule 32); 8. Articulating victims' right to discretionary appointment of counsel (Rule 44.1); 9. Giving victims the right to be heard at bail decisions (Rule 46); 10. Requiring victims' views be considered before a case is dismissed (Rule 48); 11. Protecting victims' right to a speedy trial (Rule 50); 12. Giving victims notice of court proceedings and of their rights in those proceedings (Rule 60(a)(1)); 13. Guaranteeing victims the right to attend court proceedings (Rule 60(a)(2)); 14. Guaranteeing victims the right to be heard on bail, plea, sentencing, and other issues important to victims (Rule 60(a)(3)).

I hope that the advisory committee that handles rule changes will seriously consider some of these proposals and move forward to make sure that crime victims' rights are protected in the federal criminal justice system.

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McCain leads Obama in RCP composite.

In the Real Clear Politics composite, McCain now leads Obama for the first time since March: 46.7% to 45.7%.

This is in part because the Gallup / USA Today Poll switched in one week from Obama up 7% to McCain up 10% — a staggering increase for McCain of 17%.

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Pajamas Media Debunks Another False Obama Rumor.--

Pajamas Media has done the work shooting down another false Obama rumor, this one spread by the notorious pro-Hillary website, No Quarter. It questioned whether Obama had registered for the draft, and thus whether he was allowed to serve in the executive branch.

PJM reporting:

After contacting the Selective Service System for an answer several times since late June, Pajamas Media obtained official confirmation from the Selective Service System via email that Barack Obama did indeed register for the Selective Service as required by law, and is eligible to run for the presidency.

Mr. Owens,

Barack Hussein Obama registered at a post office in Hawaii. The effective registration date was September 4, 1980.

His registration number is 61-1125539-1.

Daniel Amon Public Affairs Specialist

It is difficult to determine why no one had confirmed Obama’s Selective Service registration until now. The mainstream media may have had no interest in pursuing the story for a multitude of valid reasons. New media sources aligned with the Obama campaign may have had no interest in conducting an investigation that may serve to impede their selected candidate, and new media opponents may have simply found confirmation of his registration too difficult to obtain — some have suggested that they had contacted the Selective Service, only to be told they would have to file a request under the Freedom of Information Act, which rather notoriously may take months to complete. Perhaps others found it more useful to keep the rumor alive than put it to rest. But the conclusive answer is now known.

Barack Obama fulfilled his Selective Service obligation and has every legal right to run for the presidency of the United States.

It's unclear from the story whether or not Obama signed up a month later than he should have, but in any event, at that point he was legal to serve in the executive branch.

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The Wasilla Frontiersman Vs. Times (London):

The Columbia Journalism Review has the story on the battle, which began with this paragraph from a Times story:

It's a small, unkempt-looking place, defined by a series of out-of-town stores, a huge lumber yard, a ramshackle bar named the Mug-Shot Saloon with Harley Davidsons parked outside, and a lake, by the side of which is Palin's house....

The Frontiersman responds:

It’s as inaccurate and unfair as it would be for anyone else to define England by a stereotypical lack of dental hygiene.

Ouch. Plus, special bonus: New stereotypes from the Times about Inuits' capacities to prepare coffee.

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Unusual Concurrence: From Chief Judge Edmondson of the Eleventh Circuit, concurring in the en banc Fourth Amendment decision in Powell v. Barrett:
  I do not write in a complaining spirit. I unhesitatingly concur in the Court's judgment and in almost all of today's Court opinion. I write separately because I think it is jurisprudentially unsound to look at a Justice's dissenting opinion to determine what the Supreme Court has decided in a case.
  To the degree that our Court today seems to make some verifying use--I think unnecessarily--of this approach, I cannot join it.
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Obama Slip of the Tongue Reignites False Claims That He is a Muslim.

According to the Washington Times, some anti-Obama people (not the McCain Campaign) are spreading the "Obama is a Muslim" falsehood — again (tip to Althouse).

Obama, who seems awfully gaffe-prone recently, referred to "my Muslim faith" on ABC this morning. Obviously, that was a simple slip of the tongue. Ironically, it happened while Obama (who has usually not been especially unfair) was engaged in making perhaps his sleaziest [most unfair] personal criticisms so far: trying to smear the McCain Campaign as being behind the false Muslim claims ("these guys love to throw a rock and hide their hand"). When George Stephanopoulos pressed him, Obama backed off to some extent.

Althouse has the video. Here is a transcript from the Washington Times:

STEPHANOPOULOS: You mention your Christian faith. Yesterday you took off after the Republicans for suggesting you have Muslim connections.

Just a few minutes ago, Rick Davis, John McCain's campaign manager, said they've never done that. This is a false and cynical attempt to play victim.

OBAMA: You know what? I mean, these guys love to throw a rock and hide their hand. The...

STEPHANOPOULOS: The McCain campaign has never suggested you have Muslim connections.

OBAMA: No, no, no. But the — I don't think that when you look at what is being promulgated on Fox News, let's say, and Republican commentators who are closely allied to these folks...

STEPHANOPOULOS: But John McCain said that's wrong.

OBAMA: Now, well, look. Listen. You and I both know that the minute that Governor Palin was forced to talk about her daughter, I immediately said that's off limits. And...

STEPHANOPOULOS: But John McCain said the same thing about questioning your faith.

OBAMA: And what was the first thing the McCain's campaign went out and did? They said, look, these liberal blogs that support Obama are out there attacking Governor Palin.

Let's not play games. What I was suggesting — you're absolutely right that John McCain has not talked about my Muslim faith. And you're absolutely right that that has not come...

STEPHANOPOULOS: Christian faith.

OBAMA: ... my Christian faith. Well, what I'm saying is that he hasn't suggested...

STEPHANOPOULOS: Has connections, right.

OBAMA: ... that I'm a Muslim. And I think that his campaign's upper echelons have not, either.

What I think is fair to say is that, coming out of the Republican camp, there have been efforts to suggest that perhaps I'm not who I say I am when it comes to my faith — something which I find deeply offensive, and that has been going on for a pretty long time.

What an unfortunate distraction from the genuine issues, even the genuine issues of the candidates' personal history. I don't think this nonsense helps either side.

UPDATE: Reading the first hour of comments, I see that most commenters below do not read the exchange the same as I do.

Here is how I see it.

Stephanopoulos says: "Just a few minutes ago, Rick Davis, John McCain's campaign manager, said they've never done that. This is a false and cynical attempt to play victim."

Obama clearly responds: "You know what? I mean, these guys love to throw a rock and hide their hand."

The two guys just mentioned were McCain's campaign manager and McCain. It is "these guys [who] love to throw a rock and hide their hand."

As I see it, that's the unfair attempt to smear the McCain campaign, not what Obama said when challenged on that charge. IMO, as Obama sees himself slipping (temporarily) behind, he is willing to make unproven charges that he probably wouldn't have been willing to say a week ago: that these guys are throwing rocks and hiding their hands.

And Obama would probably have gotten away with it if Stephanopoulos had been willing to accept that. But Stephanopoulos pushed back and forced Obama to back down, Obama finally admitting: "Well, what I'm saying is that he [McCain] hasn't suggested ... that I'm a Muslim. And I think that his campaign's upper echelons have not, either."

So when McCain's campaign manager is raised, Obama says, "these guys love to throw a rock and hide their hand." But when Stephanopoulos points out that he has no basis for making such a reckless charge, Obama admits that they haven't thrown rocks on this issue.

Most of you — at least most of you commenting — see it differently, and focus only on Obama's final position, the one he settles on after Stephanopoulos won't accept the original charge. In this view, there is only one view expressed, the final one.

So we see things differently. And commenters have already pointed the opposite position below. That's what makes a discussion.

2d UPDATE: Ann Althouse, whose post was the trigger for this post, originally saw things much as my early commenters did. But she has now come over to my view on it. Indeed, she takes the next step (which I didn't and wouldn't) of speculating that Obama is projecting his own campaign's behavior onto McCain's campaign.

We know that some of the attacks on Palin's mothering skills do come from people in the Obama Campaign (Howard Gutman of his National Finance Committee). But these are not "hidden" attacks; they are on the record.

Interestingly, I went back to look at how Obama handled the Jack Ryan revelations in his 2004 campaign. Ryan was the Republican whose divorce papers were unsealed, revealing that he had suggested to his wife that they have sex in a public club. Ryan then withdrew from the race.

Here is part of an April 3, 2004 Chicago Sun Times article on Obama's efforts in that one, just before the bombshell divorce files were released:

Barack Obama reversed his position on Republican rival Jack Ryan's divorce file Friday, calling on fellow Democrats to refrain from trying to inject it into the campaign.

"I don't think it's an appropriate topic for debate," Obama said.

Obama has consistently said that his campaign would not focus on Ryan's 1999 divorce from TV actress Jeri Ryan.

But when he first made that pledge, Obama refused to call on other Democrats to follow his lead.

"It's going to be up to other people to determine what's appropriate and what's not," Obama said the day after his March primary victory.

Since then, Mayor Daley called on Democrats and the news media to avoid delving into politicians' divorce records, and Ryan urged Obama to insist all Democrats lay off the matter.

Speaking at a taping of the WBBM-AM radio program "At Issue" on Friday, Obama took that additional step and insisted he was not being inconsistent.

"I'm not the policeman for what the media and everybody else does," Obama said. "What I can take responsibility for is my campaign and those people who are supporting me. And to the extent that people who are supporting me, including the Democratic National Committee or the Democratic [Senatorial Campaign] Committee are engaging in these kinds of things, I would urge them not to do so because I think Illinois voters really want to focus on those issues that are going to help them in their lives." . . .

Obama pledged Friday that even if the media uncovers something embarrassing, he would not try to capitalize on it.

"I can say unequivocally that this is not something that we are going to be focused on in our campaign," Obama said.

Ryan spokeswoman Kelli Phiel called Obama's remarks "a bit hypocritical," because the Democratic Senatorial Campaign Committee has already e-mailed reporters copies of news media articles about the divorce controversy. . . .

A Democratic Senatorial Campaign Committee official said they would have no problem adhering to Obama's request. . . .

"Other than our standard procedure of forwarding stories around to talkers and politicos about some races, I don't believe we've engaged in any on-the-record commentary about his divorce files," he said.

82 Comments

Sunday, September 7, 2008

Most Asian Stock Markets Up Sharply After Fannie/Freddie Takeover.

Some VC readers were wondering what the US Stock Market is likely to do on Monday, the day after the federal takeover of Fannie Mae and Freddie Mac.

While the opening on the New York market is still 12 hours away and anything can happen, right now Dow Index futures are up 244-249 points, SP 500 futures are up 33 points, and NASDAQ futures are up 38.5 points.

This is the biggest evening-before jump I remember seeing in the last year (though I don't check every day). Right now, Australia, Japan, and Singapore are up 3.6-3.8%; So. Korea and Hong Kong are up 4.4-4.6%; and Taiwan is up 5.4%. Shanghai, however, is the laggard, up only 0.1%.

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The Perils of Palin Blogging: I appreciate my co-blogger David P's post explaining why he won't be blogging about Sarah Palin. David suggests that the problem with Palin-blogging is that it's an unusual distraction. I disagree. Remember the topics in the blogospheric limelight back before the 2004 election? In September 2004, the blogosphere was in an absolute frenzy about the forged memos of W's military service that had misled Dan Rather in a 60 Minutes segment. Compared to that, blogging about Palin is tremendously substantive and important.

  Instead, I think the problem with a lot of Palin blogging is an aggravated version of the problem with blogging about political candidates more generally: There are many acceptable criteria for evaluating candidates and no real agreement as to which criteria are more important than the others. As a result, it's easy for commentary to focus on what many will perceive as minor points while ignoring what many perceive as bigger ones, and it's easy for commentary to speak to a very small slice of the ideological pie while ignoring or even alienating the rest. The result is that a lot of blogging about candidates ends up just running in circles.

  Let me explain what I mean. For any political candidate, there are dozens of possible criteria that you could use to assess a particular candidate. The criteria might include, to just pick 20 or so obvious ones: 1) the candidate's position on a particular issue, 2) the candidate's experience on a particular issue, 3) the candidate's perceived honesty, 4) the consistency of the candidate's views, 5) the candidate's articulateness, 6) the candidate's past connections to extreme groups, 7) the candidate's understanding of the lives of average Americans, 8) the candidate's leadership qualities, 8) the candidate's sense of fair play, 9) the ability and background of the candidate's current advisers, 10) the candidate's friends and associates, 11) the candidate's personal history, 12) the candidate's intelligence, 13) the candidate's charisma, 14) the candidate's judgment, 15) the candidate's generosity, 16) the candidate's ability to delegate, 17) the candidate's management skills, 18) the candidate's family life, 19) the candidate's willingness to work hard, and 20) the candidate's health.

  There are many other criteria, of course — these are just a few. But you get the idea.

  The key difficulty with blogging about political candidates -- and Sarah Palin in particular -- is that any one of these criteria can be an acceptable basis for commentary. A really predictable dynamic follows: One commentator picks one aspect of one criteria and focuses on it, while others will marvel at the commentator's focus on such a narrow issue while ignoring everything else. And that criticism will often be pretty fair. That is, often the commentator really will be more focused on some things and less focused on others based on their own biases and interests in a way that doesn't accurately reflect the merits of the candidate for a lot of people.

  You can see this in a lot of threads on Palin, both here and elsewhere. A blogger might make argument #2 about candidate A, and a commenter will respond my making (say) argument #6 and #7 about candidate B. Another commenter will respond to the first commenter with argument #12 about candidate A, which will then lead yet another commenter to pivot to argument #8 about candidate A with a left hook of argument #1 on candidate B. You end up running in circles, which everyone changing the topic to whatever ground they think puts their side in the most favorable light. The only conclusion anyone reaches is that everyone else is a political hack.

  Is there a way out of this dynamic? Maybe, maybe not. But I tend to think that it would improve the level of commentary for bloggers and commenters to explicitly acknowledge how limited their claims really are. Given how many criteria exist, narrow commentary about just one criteria is necessarily only a very small piece of the puzzle about the merits of voting for a particular candidate. I think it would help us if we all acknowledged that, and didn't pretend that any one point was determinative. Perhaps it won't make any difference. But possibly, just possibly, it will be a fairer way of discussing the candidates and won't send us running in circles quite as much.
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Palin on Creationism.

About nine days ago, shortly after Sarah Palin was announced as the VP candidate, I mentioned in passing what I termed Palin’s “ridiculous and embarrassing approach to creationism.” At the time, I had seen only left-wing attacks on her statement that both should be taught in public schools. Not surprisingly, I was immediately attacked in comments as being unfair to Palin.

While I consider Palin’s initial statement on the issue to be “ridiculous and embarrassing,” I admit that I was unfair to call that statement her “approach” to creationism for two reasons.

First, almost immediately after the debate, Palin backed off her initial statement, so the statement I had seen quoted by the anti-Palin folks did not represent her public views beyond the debate itself. In other words, she quickly reconsidered and changed her approach, so it was unfair of me to call it her approach.

Second, Palin promised not to push creationism into the schools or appoint people who would do so – and she apparently kept that promise as Governor. So her actual public policy approach to creationism is not to add it to the curriculum.

So what remains of her personal or policy views? Unlike McCain, who says he believes in evolution, Palin has never clearly addressed the truth or falsity of evolution.

In 2006, Palin did say that, if a student brings up creationism, it should be discussed in class. I guess I warily agree that discussion — ie, free inquiry — should not be prohibited, so long as creationism is presented as a religious belief that is not supported by prevailing science. I would certainly hope for a clearer statement of support for evolution from Palin (or any other national candidate who was asked for an opinion).

Further, both evolution and the Big Bang Theory refer to how worlds or organisms changed over time and do not necessarily tell us how these worlds came into being in the first place. For example, it would be contrary to prevailing views of modern science to believe that evolution did not occur; it would not be contrary to modern science to believe that God started the Big Bang, though that belief would not usually be thought of as based on science.

A sort of middle ground would be occupied by the large numbers of Americans who believe that evolution occurred, but that God guided it.

John McCain's comments supporting evolution were followed by this ambiguous statement hinting that he believed that either God started it all or that God guided the process:

At a GOP presidential debate in May 2007 in Simi Valley, Calif., McCain said he believed in evolution.

"But," he added, "I also believe, when I hike the Grand Canyon and see it at sunset, that the hand of God is there also."

In this AP story a few days ago, Palin’s expressed views on teaching evolution in the schools were explored:

Palin has not pushed creation science as governor.

As a candidate for governor, Sarah Palin called for teaching creationism alongside evolution in public schools. But after Alaska voters elected her, Palin, now Republican John McCain's presidential running mate, kept her campaign pledge to not push the idea in the schools.

As for her personal views on evolution, Palin has said, "I believe we have a creator." But she has not made clear whether her belief also allowed her to accept the theory of evolution as fact.

"I'm not going to pretend I know how all this came to be," she has been quoted as saying. . . .

When asked during a televised debate in 2006 about evolution and creationism, Palin said, according to the Anchorage Daily News: "Teach both. You know, don't be afraid of information. Healthy debate is so important, and it's so valuable in our schools. I am a proponent of teaching both."

In a subsequent interview with the Daily News, Palin said discussion of alternative views on the origins of life should be allowed in Alaska classrooms. "I don't think there should be a prohibition against debate if it comes up in class. It doesn't have to be part of the curriculum," she said.

"It's OK to let kids know that there are theories out there. They gain information just by being in a discussion." . . .

Palin said during her 2006 gubernatorial campaign that if she were elected, she would not push the state Board of Education to add creation-based alternatives to the state's required curriculum, or look for creationism advocates when she appointed board members. . . .

Palin's children attend public schools and Palin has made no push to have creationism taught in them.

Neither have Palin's socially conservative personal views on issues like abortion and gay marriage been translated into policies during her 20 months as Alaska's chief executive. It reflects a hands-off attitude toward mixing government and religion by most Alaskans.

"She has basically ignored social issues, period," said Gregg Erickson, an economist and columnist for the Alaska Budget Report.

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George Will Misses the Point:

George Will critiques the now-ubiquitous election campaign question, "Are you better off" and concludes that it is short-sighted by failing to capture the full human experience as to what it means to be "better off":

In contemporary politics, nothing succeeds like excess, so permutations of Reagan's trope are going to recur. Therefore, it is time to consider its deficiencies, which are symptomatic of a desiccated mentality.

Unfortunately, the phrase "better off" is generally understood as a reference to your salary, your bank balance, your IRA and the like. But wait. Are you better off being four years older? That depends.

If you are young, since 2004 you might have found romance, had children, learned to fly-fish and become a Tampa Bay Rays fan. In which case you emphatically are better off, even if since 2004 there has been only a 0.6 percent increase -- yes, increase -- in the median value of single-family homes.

***

Suppose in those years you read "Middlemarch," rediscovered Fred Astaire's movies, took up fly-fishing, saw Chartres and acquired grandchildren. Even if the value of your stock portfolio is down since 2004 (the Dow actually is up), are you not decidedly better off?

***

The people asking and those answering the "better off" question seem to assume that the only facts that matter are those that can be expressed as economic statistics. Statistics are fine as far as they go, but they do not go very far in measuring life as actually lived.

Will is correct, of course, that economic statistics don't capture the elements of life that determine whether we are better off or worse off.

But his column misses the point as the question is asked in the context of a political campaign. There is an obvious unspoken qualifier to the question, which should be understood if read in context, "Are you better off with respect to the things that the government could do to improve your life." The government can't make you read (and gain happiness from) Middlemarch or Fred Astaire movies. The government can help to produce peace, security, and prosperity (sometimes, of course, by doing nothing at all). It is that sense, which I think most everyone understands, that "Are you better off?" is a perfectly reasonable and appropriate question to ask.

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Palin Supports Contraception, Not Abstinence Only.

The LA Times has a good story on Palin's views on sex education and contraception:

Palin appears to disagree with McCain on sex education.

The Republican vice presidential candidate says students should be taught about condoms. Her running mate -- and the party platform -- disagree.

Palin's running mate, John McCain, and the GOP platform say children should be taught that abstinence until marriage is the only safe way to avoid pregnancy and disease. Palin's position is less clear.

In a widely quoted 2006 survey she answered during her gubernatorial campaign, Palin said she supported abstinence-until-marriage programs. But weeks later, she proclaimed herself "pro-contraception" and said condoms ought to be discussed in schools alongside abstinence.

"I'm pro-contraception, and I think kids who may not hear about it at home should hear about it in other avenues," she said during a debate in Juneau. …

Palin spokeswoman Maria Comella said the governor stands by her 2006 statement, supporting sex education that covers both abstinence and contraception.

McCain's campaign did not respond to questions about whether Palin's position is inconsistent with his. But earlier, a campaign spokesperson said McCain believes abstinence is "the only safe and responsible alternative." . . .

Palin's statements date to her 2006 gubernatorial run. In July of that year, she completed a candidate questionnaire that asked, would she support funding for abstinence-until-marriage programs instead of "explicit sex-education programs, school-based clinics and the distribution of contraceptives in schools?"

Palin wrote, "Yes, the explicit sex-ed programs will not find my support."

But in August of that year, Palin was asked during a KTOO radio debate if "explicit" programs include those that discuss condoms. Palin said no and called discussions of condoms "relatively benign."

"Explicit means explicit," she said. "No, I'm pro-contraception, and I think kids who may not hear about it at home should hear about it in other avenues. So I am not anti-contraception. But, yeah, abstinence is another alternative that should be discussed with kids. I don't have a problem with that. That doesn't scare me, so it's something I would support also."

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Government Takes Over Fannie Mae and Freddie Mac.

The AP reports a federal takeover of Fannie Mae and Freddie Mac:

Government assumes control over mortgage giants Fannie Mae and Freddie Mac

WASHINGTON (AP) — The Bush administration, acting to avert the potential for major financial turmoil, announced Sunday that the federal government was taking control of mortgage giants Fannie Mae and Freddie Mac.

Officials announced that the executives and board of directors of both institutions had been replaced. Herb Allison, a former vice chairman of Merrill Lynch, was selected to head Fannie Mae, and David Moffett, a former vice chairman of US Bancorp, was picked to head Freddie Mac.

Treasury Secretary Henry Paulson says the historic actions were being taken because "Fannie Mae and Freddie Mac are so large and so interwoven in our financial system that a failure of either of them would cause great turmoil in our financial markets here at home and around the globe."

The huge potential liabilities facing each company, as a result of soaring mortgage defaults, could cost taxpayers tens of billions of dollars, but Paulson stressed that the financial impacts if the two companies had been allowed to fail would be far more serious. . . .

Both companies were placed into a government conservatorship that will be run by the Federal Housing Finance Agency, the new agency created by Congress this summer to regulate Fannie and Freddie. . . .

Paulson said that it would be up to Congress and the next president to figure out the two companies' ultimate structure. . . .

The companies own or guarantee about $5 trillion in home loans, about half the nation's total. . . .

Lockhart said in order to conserve about $2 billion in capital the dividend payments on both common and preferred stock would be eliminated. He said that all lobbying activities of both companies would stop immediately. Both companies over the years made extensive efforts to lobby members of Congress in an effort to keep the benefits they enjoyed as government-sponsored enterprises.

The transcript of the official statement is here. Several regulatory changes are announced.

UPDATE: As a reminder, Fannie Mae was involved in a lot more than "lobbying." There was the Enron-style accounting and the thuggish behavior.

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Gallup Tracking Poll Shows McCain Ahead 48-45%.

In the 3-day Gallup tracking poll released today, McCain leads Obama by 3% — 48% to 45%. This is a 5-point jump from yesterday's tracking poll, which means that Saturday's respondents were a staggering 14-16% more favorable to McCain than Wednesday's respondents (polled before Palin's speech).

The Rasmussen tracking poll showed a smaller, but still large, bounce of 8-10% between Wednesday's respondents and Saturday's. It appears that McCain/Palin is getting a big bounce from the convention.

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Obama bounce now gone in Rasmussen Tracking Poll; both tied at 48%.

As I suggested might happen a few days ago, Rasmussen is now reporting that McCain and Obama are tied in the 3-day tracking poll, each at 48%. This represents a 3% jump from yesterday’s results. Thus, Saturday’s respondents favored McCain by 8-10% more than Wednesday’s respondents, just before Palin’s Wednesday speech.

The Obama bounce, which peaked at a 6% lead in the Rasmussen poll released last Tuesday, is gone. Obama still leads by 1.8% in the Real Clear Politics composite.

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Really Really Belated Advice to New Law Students:

I know it’s probably too late, since you’re already deeply embroiled in your first year classes (and have given up, among other things, trolling through the Volokh Conspiracy), I did want to pass along two thoughts in response to master conspirator Eugene’s calls for our thoughts on the matter, for what they’re worth.

The summer before law school, I read Charles Rembar’s wonderful book “The Law of the Land,” and I recall myself thinking, many times during my first year, how glad I was that I had done so. Rembar takes you through the history of the development of Anglo-American law, and I found it both fabulously entertaining and extremely helpful as a practical matter – trying to extract some meaning from those inscrutable texts that one encounters early on in most first-year classes (Pierson v. Post in property, Hadley v. Baxendale in contracts, and all the rest) is not easy, and I found it helpful to have some rudimentary understanding of the archaic and arcane forms that the law had taken in the past – about the old pleading rules and their “writs” and forms of action, about the Field Code, about the differences between law and equity courts in the old days, and like matters. Highly recommended.

Second: I agree with all that was said, in several other postings here, about different learning styles for different people. But I suspect everyone would agree on one thing: to be a good lawyer, you have to know how to write well. You’re probably taking some kind of “legal research and writing” class during your first year, and, if you’re tempted to blow it off (as you may well be), my advice to you is: Don’t. In many, many ways, what you learn there is more important than what you learn in any one of your doctrinal classes – there are a lot of terrific lawyers out there who never really understood (and still don’t understand) property law, say, or constitutional law, or contracts. But there are very few terrific lawyers out there who haven’t mastered legal writing and legal research. (And consider this, too: all of those judicial opinions you’re reading in your “doctrinal” classes are themselves the output of judges (and their law clerks) engaged in the process of “legal research and writing”; the more you understand about that process, believe me, the better you’ll be able to understand those opinions and, therefore, the better you’ll be able to understand the various doctrinal subjects you’re encountering). If I had the magic bullet to get you to write well I’d reveal it to you, but I don’t. Legal writing, in my view, is one of those things (like playing the piano, or juggling, or carpentry) that you get better at by practice, and only by practice. There are lots of guidebooks out there – Volokh’s, of course, and Bryan Garner’s got a good one – and I’ve even tried (here) to put down on paper pretty much everything I could about how to write good legal prose. But you won’t learn how to write good legal prose by talking about it or reading about it – you learn by practicing it, so look for every opportunity you can to do so

Related Posts (on one page):

  1. Really Really Belated Advice to New Law Students:
  2. Tips for new law students: Take practice tests, and start your outline now!
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Mea (sorta) culpa: Why I Won't Be Writing Anything More about Sarah Palin:

What has surprised me most (and depressed me some) about my recent postings(here, here, and here) questioning Sarah Palin’s qualifications to lead the country was the vehemence of the reaction from commenters. I’ve made many suggestions and comments here on the VC over the years that some have considered wrongheaded and obtuse – in fact, I pride myself on that a bit – but I’ve never before been called a “putz” (let alone a “complete putz”!), a jerk, a “leftoid,” or a moron. There’s something about the subject that seems to bring out a bit of a nasty streak in people.

The more I thought about this, the more I realized that this is one of the very reasons that I disliked the Palin choice in the first place: because it threatened to become a distraction. McCain-Obama has the makings of a great contest, a real turning point election in which we get to decide important questions about the direction we want the country to take. Both candidates, in my opinion, are plausible presidents – something that could not be said (in my opinion) for most of their opponents in the primaries. I was delighted when it became clear that these were the two who would be squaring off – I like elections in which I can be reasonably certain that whether my guy wins or not, the republic’s in good hands, and I felt that way about this one. They’re very different visions, of course – that’s the point – and I do have my preference; but I thought the debate would be a constructive one, the country would choose to go in one direction or the other based on important differences among us about which direction is the right one to take. And off we’d go.

But then along comes the Palin thing, and now we seem to be arguing about fundamentally irrelevant things – like about whether the mayor of Wassilla, AK did or did not ask the school librarian to ban books (and which books they might be), about how many colleges the Governor of Alaska has attended (and the relative value of a University of Idaho vs. a Harvard Law education), about the virtues of small-town life, about hunting, and snowmobile racing, and whether the Governor of Alaska did or did not improperly interfere with the state police to remove a trooper she didn’t like, and about a thousand other things like that. If you had asked me early last week, those all would have struck me as pretty insignificant, in the greater scheme of things, and entirely irrelevant to the 2008 election. But now they are relevant, alas – McCain has made them so. Whatever you think of Sarah Palin and of her qualifications, surely we can all agree on one thing – that until McCain nominated her, the vast majority of the American people didn’t know the first thing about her, and that now we only have six weeks to get up that curve, and we will be soaking up a huge amount of information about her because we do need to know who she is if she is to become Vice President.

That is a distraction. That has absolutely nothing to do with the important stuff on the table this time around. Both sides seem to agree (and I agree with them) that the country is in a rather serious mess – that we’re losing our edge, wasting our money, and falling behind. I agree – I’m glad everyone seems to be in agreement about that. What to do about it is pretty complicated – and we’re not getting anywhere talking about Sarah Palin all the time.

But the more I thought about that, the more I realized that I was as much at fault as anyone. After all, my own postings about her qualifications had started the whole brouhaha, and it is unseemly for me to complain about the distraction that is Sarah Palin, and then to contribute to the distracting discussion. So, mea culpa. This is the last you’ll hear from me on the subject.

193 Comments

Frum on "The Vanishing GOP Voter":

David Frum has an interesting op-ed in the NYT on the "vanishing Republican voter." Here's a taste:

Measured by money income, Washington qualifies as one the most unequal cities in the United States. Yet these two very different halves of a single city do share at least one thing. They vote the same way: Democratic. And in this, we are not alone. As a general rule, the more unequal a place is, the more Democratic; the more equal, the more Republican. The gap between rich and poor in Washington is nearly twice as great as in strongly Republican Charlotte, N.C.; and more than twice as great as in Republican-leaning Phoenix, Fort Worth, Indianapolis and Anaheim.

My fellow conservatives and Republicans have tended not to worry very much about the widening of income inequalities. As long as there exists equality of opportunity — as long as everybody’s income is rising — who cares if some people get rich faster than others? Societies that try too hard to enforce equality deny important freedoms and inhibit wealth-creating enterprise. Individuals who worry overmuch about inequality can succumb to life-distorting envy and resentment.

All true! But something else is true, too: As America becomes more unequal, it also becomes less Republican. The trends we have dismissed are ending by devouring us.

The piece is filled with interesting observations, many of which should unsettle Frum's ideological compatriots on the Right. He concludes:

Equality in itself never can be or should be a conservative goal. But inequality taken to extremes can overwhelm conservative ideals of self-reliance, limited government and national unity. It can delegitimize commerce and business and invite destructive protectionism and overregulation. Inequality, in short, is a conservative issue too. We must develop a positive agenda that integrates the right kind of egalitarianism with our conservative principles of liberty. If we neglect this task and this opportunity, we won’t lose just the northern Virginia suburbs. We will lose America.

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The Northwest Passage Opens:

From the NYT:

Leading ice specialists in Europe and the United States for the first time have agreed that a ring of navigable waters has opened all around the fringes of the cap of sea ice drifting on the warming Arctic Ocean.

By many expert accounts, this is the first time the Northwest Passage over North America and the Northern Sea Route over Europe and Asia have been open simultaneously in at least half a century, if not longer.

While currents and winds play a role, experts say, the expanding open water in the far north provides the latest evidence that the Arctic Ocean, long a frozen region hostile to all but nuclear submariners and seal hunters, is transforming during the summers into more of an open ocean.

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Are Heller's Attorney's Asking for Too Much?

The Washington Post argues Alan Gura and the other attorneys who successfully challenged the D.C. gun ban are asking for too much money in seeking attorneys' fees. The fees sought certainly sound high, but I would be curious how they compare with the fees sought by attorneys in equivalent cases filed within the District of Columbia.

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Sunday Song Lyric: The RNC played the Heart song "Barracuda" after John McCain's acceptance speech on Thursday night, and it seems Heart's Wilson sisters are none too happy about it. Their lawyers have sent a cease-and-desist order to the campaign to prevent further use of the song.

No doubt someone at the RNC chose to play the song because Sarah Palin's earned the nickname "Sarah Barracuda" on her high school basketball team. But, as Glenn Reynolds notes, it's not the best song to promote the GOP vice presidential candidate given its lyrics. According to the Wilson sisters, "The song 'Barracuda' was written in the late '70s as a scathing rant against the soulless, corporate nature of the music business, particularly for women." Here's a taste:

So this ain't the end
I saw you again today
Had to turn my heart away
You smiled like the Sun
Kisses for everyone
And tales - it never fails!

You lying so low in the weeds
Bet you gonna ambush me
You'd have me down on my knees
Wouldn't you, Barracuda?
Here's a video of Heart performing the song some years back.

UPDATE: Glenn Reynolds has posted the following update:

Reader Gerry Daly says I'm wrong: "The song was in response to ugly, unfounded sexual rumors being spread about the Wilson sisters. In that regard, it is extremely fitting for Palin. Honestly, can you think of a more fitting rejoinder to her foes in politics and the media than 'And if the real thing don't do the trick, you better make up something quick'?" Good point.
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They broke John McCain.

The most affecting part of John McCain’s acceptance speech was also the most surprising: McCain’s admission that he was broken by torture. I had read a little about this before on the internet – suggesting that McCain had illegally collaborated with the enemy. More generally, I had heard that virtually no one is actually able to resist extreme physical torture; eventually everyone breaks down. But McCain admitting it seemed both heartfelt and somewhat shocking.

A lot of prisoners had it worse than I did. I'd been mistreated before, but not as badly as others. I always liked to strut a little after I'd been roughed up to show the other guys I was tough enough to take it. But after I turned down their offer, they worked me over harder than they ever had before. For a long time. And they broke me.

When they brought me back to my cell, I was hurt and ashamed, and I didn't know how I could face my fellow prisoners. The good man in the cell next door, my friend Bob Craner, saved me. Through taps on a wall he told me I had fought as hard as I could. No man can always stand alone. And then he told me to get back up and fight again for our country and for the men I had the honor to serve with. Because every day they fought for me.

I fell in love with my country when I was a prisoner in someone else's. I loved it not just for the many comforts of life here. I loved it for its decency; for its faith in the wisdom, justice and goodness of its people. I loved it because it was not just a place, but an idea, a cause worth fighting for. I was never the same again. I wasn't my own man anymore. I was my country's.

I remembered a line from Orwell about any life "viewed from the inside" as a failure. I hadn't remembered the line immediately preceding it:

Autobiography is only to be trusted when it reveals something disgraceful. A man who gives a good account of himself is probably lying, since any life when viewed from the inside is simply a series of defeats.

Roger Simon also mentioned the same passage from McCain's speech, after noting Obama's grudging recent admission on the Surge:

More interesting is the snippet from O’Reilly of Obama acknowledging that the Surge was a great success while seemingly not being able to admit that he was wrong about it. You would think it wouldn ‘t be that difficult, but he struggled as if admitting an affair. Compare that with McCain who in the midst of his acceptance speech, seen by more even than Obama’s, acknowledged to the world that he was broken under the pressure of North Vietnamese torture. What we have before us is the pretension of honesty (Obama) versus honesty (McCain). In a certain way it relates to the Oprah Show, which has always seemed to me an “as if” production: we are all “open” here, it purports to say. But to paraphrase Orwell, “some people are more open than others.” I suspect the public senses this and, ultimately, knows the difference. We shall see.

Although Obama does seem to be more resistant to admitting error than most (and though he wrote two autobiographies by the age of 45), Obama has sometimes shown a self-deprecating side. Indeed, there are moments of effective modesty in the Audacity of Hope: Obama’s nuanced and winning account of Peggy Noonan’s taking him to task for comparing himself to Lincoln in an essay (he was sort of asked to do so by the editor, but he admits that Noonan wasn’t necessarily unfair), and Obama’s description of his troubles in his 2004 Senatorial debates responding to his opponent’s criticisms of Obama’s positions as un-Christian.

Yet McCain’s confession was of a different order.

My first thought was to be struck by how honest it was; that helped make the rest of McCain's speech seem (and perhaps be) more genuinely felt.

My second thought was more cynical: was McCain trying to make a pre-emptive strike against a forthcoming onslaught that he collaborated with the Communists?

My third thought was whether it’s necessarily a good thing for McCain to believe that he was not “my own man anymore. I was my country's.”

What do you think?

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The Republican "Triumph of the Will" (Not):

I usually skip watching political conventions entirely, given that they are just staged political propaganda for each party, providing a forum for politicians on each side to present rhetoric that mostly ranges from the dishonest to the insipid, as American political rhetoric usually does. (It's especially not surprising to find such rhetoric at a convention, because they are trying to win over the undecideds, who tend to be the most ignorant of voters, who generally cannot be bothered with substance, and are unaware of the dishonesty). And given that my libertarian views are so far out of the political mainstream, I rarely can take ideological pleasure in any of the speeches given by politicians for either party, almost all of whom I dislike and often despise.

That said, this election cycle is more interesting than most, and I caught a few of the Republican convention speeches. Dishonest and insipid, not surprisingly, was par for the course, though it was very interesting to watch Gov. Palin easily surpass low expectations as a rhetorician.

According to Brian Leiter, however, one of his colleagues at a "leading American law school" found the Republican speeches Wednesday night, which included Palin's, not the usual partisan nonsense one gets from political conventions, but "horrific." Leiter's anonymous correspondent continues: "Only twice have I heard anything so blood-curdling: First, on viewing Leni Riefenstahl's Triumph des Willens while an undergraduate. And second, on listening to a radio broadcast of an old tape of a Jim Jones sermon in 'Jonestown' Guyana."

Res ipsa loquitur.

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