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Thoughts from San Diego on Law, Politics, and Culture
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March 31, 2004
West Wing Celebrities By Gail Heriot There was a time when working as a White House staff member was not quite so public a position as it has become in recent decades. Only Washington insiders knew much about even top White House staff members; they were shadowy figures who did their jobs and received little media attention. I like that way. If a presidential advisor has to think about how he’s going over with the media at the same time he thinking about how he’s going over with the President, he is having to think too much. Nobody is smart enough for that. Today, however, a few staffers--like Karl Rove or Condoleezza Rice--might have a difficult time buying a cup of coffee in Djakarta without attracting attention. They are celebrities in their own right. The news media is so big and hungry for interviews that elected officials cannot possibly satisfy it. Top White House staff members must ride the Sunday morning news show circuit. It’s part of what’s expected of them. An unpleasant side of celebrity is asserting itself this week. The Washington Post described the scene at Mr. Rove’s home in Northwest Washington on Sunday this way: “Several hundred people stormed the small yard of President Bush’s chief political strategist Karl Rove yesterday afternoon, pounding on his windows, shoving signs at others and challenging Rove to talk to them about a bill that deals with educational opportunities for immigrants. “Protesters poured out of one school bus after another, piercing an otherwise quiet, peaceful Sunday in Rove’s Palisades neighborhood ... chanting, ‘Karl, Karl, come on out! ...’” It’s a shame. Karl Rove and his family shouldn’t have to put up with this harassment. That would be so regardless of the policies he has advocated at the White House. And, as the Wall Street Journal observed today, it is especially so in view of Bush’s (and Rove’s) strong pro-immigrant policies. If Karl Rove has not been sufficiently pro-immigrant to keep the crazies from pounding on his windows, then it can’t be done. I wonder, however, if such ugly incidents aren’t difficult to avoid in the era of celebrity advisors. For good or ill, Karl Rove is a household name now. There are a lot of crazies out there, and crazies are attracted to celebrities the way that bugs are to light. They’re either going to pound on Karl Rove’s window or they’re going to pound on Ozzy Osbourne’s or Nicole Kidman’s and I guess this week it was Rove’s. The Condoleezza Rice issue this week is related. Some people were asserting that it would be politically damaging for Bush to forbid Rice from testifying before the 9-11 Commission in view of her regular appearances on radio and television. And that sounds right to me. The average American is indeed likely to believe that if the President is not worried about Rice’s appearing on Face the Nation and Meet the Press, he should not be worried about her appearing before the Commission. He must therefore being trying to hide something–or so some people’s line of reasoning might go. Maybe that’s among the reasons that Bush relented and allowed the testimony. If so, that’s a shame too. The argument that Presidential advisors should not be called to testify by Congress, the Courts or any other governmental body is by no means a frivolous one. It’s hard to give candid advice when you think that you might later have to explain that advice under oath to someone who was not there (and who may be unsympathetic to your position to the person you are advising). Rice testimony does indeed set an uncomfortable precedent. After yesterday’s announcement, all White House advisors with any sense will realize that they too may be called to testify before some politically-charged commission some day. The question is whether the existence of celebrity advisors makes all this inevitable, and if so, whether that existence needs some re-thinking. March 30, 2004
The Scottish Nectar By Tom Smith In addition to creating some of the best philosophy and economics in history, the Scots also make the finest distilled beverage. Here's a link to my favorite, part of an effort to enlighten certain persons who might otherwise be swayed by the prejudice against strong liquors. I hate it when you're nice By Tom Smith Just when I thought David Brooks was getting in touch with this inner wolverine, he writes this icky sweet thing. Sorry, kids, it does matter where you go to college. Very good piece on the Unborn Victims of Violence Act By Tom Smith I was going to write something on this point, but it probably would not have been this good. (via realclearpolitics.com). March 29, 2004
Colorado Fails to Eliminate Racial Preferences By Gail Heriot It is difficult to deny that racial preferences are unpopular. In California and Washington, the two states that have had voter initiatives on the ballot prohibiting such policies, the intiatives have passed by substantial margins (54.6% in California and 58.22% in Washington). Moreover, judging by surveys described by public opinion experts Paul Sniderman and Thomas Piazza, the results in California and Washington may have significantly understated opposition to such policies: The affirmative action agenda "is politically controversial precisely because most Americans do not disagree about it," they wrote in The Scar of Race. "The distribution of public opinion on ... affirmative action ... is unmistakable .... [T]here is scarcely any support ... among whites." Polls cited by Sniderman & Piazza show that even African Americans are "split right down the middle on affirmative action." Some polls show opposition higher than 90%; all polls show overall opposition to be high. Even so, it has proven almost impossible to end racial preferences through legislation. It is the classic special interest policy. A few people benefit handsomely from preferences, particularly preferences in public contracting. They desperately want to retain these discriminatory policies and they are willing to do whatever is necessary to keep them going. One group even calls itself the Coalition to Defend Affirmative Action By Any Means Necessary (BAMN). In the end, legislators, timid souls that they are, always cave to them. And on Friday, the Colorado Senate joined the list. Because I co-chaired California's Proposition 209 campaign, I sometimes get calls from state legislators around the country interested in sponsoring legislation that would ban racial and gender preferences in their state. I've spoken to several thoughtful and hardworking representatives from both parties who are convinced that justice requires them to act to prohibit these policies. Invariably, however, they have misjudged the power of the affirmative action lobby. Despite support from the public at large, they find themselves unable to garner the support of the majority of their colleagues. The effort collapses. That's apparently what happned to State Senator Ed Jones, the African American Republican who sponsored the Colorado bill. It lost 18 to 17, in a mostly party-line vote in which one Republican senator defected to vote with the Democrats. I have come to believe that popular initiatives are the only effective way to deal with the issue. It's a shame, since in many ways popular initiatives are an unwieldy tool. Since Colorado is an initiative state, we may see such an effort soon. Stay tuned. March 28, 2004
If it's good enough for the Secretary of Commerce ... By Gail Heriot I just peeked ahead to April on my calendar and saw that April 21st is designated "Administrative Professionals Day." Evidently, I am lagging behind the times again (a positon to which I've grown accustomed). A quick internet search revealed that "Administrative Professionals Day" is the new, blander, more PC term for what was originally called "National Secretaries Day" when it was proclaimed by the U.S. Secretary of Commerce Charles Sawyer in 1952. At the time, there was thought to be a critical shortage of qualified secretaries; Secretary Sawyer hoped that a special day of appreciation would encourage more people to enter the occupation. The term was changed to "Administrative Professionals Day" in 2000. I've never understood why the term "secretary" should be demeaning, but evidently some view it as such. I was told a few years ago that some secretaries here at the University of San Diego were so desperate to have their job titles changed that they were very nearly in tears over the issue. (They are now called administrative assistants.) Maybe I'm old-fashioned, but I like the term "secretary" better. It derives from the Latin "secretum" (or secret) and conjures up images of the confidante. "Administrative assistant," on the other hand, is bureaucratic and lifeless. What's interesting, of course, is that it's getting to the point where the only ones left with the title "Secretary" are cabinet level officers of the United States government--like Secretary Sawyer himself. Somehow I can't imagine them adopting the title "Administrative Professional." March 27, 2004
Yassin the spiritual By Tom Smith I agree with almost everything in this Martin Peretz piece. But when writers put scare quotes around "spiritual leader" in describing persons such as Yassin, they are just showing their naivite about things spiritual. It is entirely possible, even likely, that Yassin was a spiritual leader. Being a spiritual leader does not mean you are good. Not everything spiritual is good. If you believe in things of the spirit, there is a good chance you believe some of those spiritual things are evil. Indeed, evil spiritual things are more evil than just regular old bad things. Spiritual is not a synonym for "introspective," "compassionate," or "appreciative of new age music and low fat spa food." Personally, I think the Yassins of the world would be less scary if they were not spiritual, but as it is, I don't doubt they are. Cool jet By Tom Smith NASA sets new world speed record in cool scramjet. In my next life, I'm going to join the Air Force. I know, naval aviators land on pitching decks at night, but that's too scary. March 25, 2004
Deliberation Moment By Tom Smith As an alternative, I propose that Congress appropriate $500,000, to be paid to Bruce Ackerman on the condition that he not come up with any dumb ideas for a period of one year. Some ideas just create negative externalities. Famous professor proposes dumb idea. Across the country millions of American pause and think, hmmmm, that seems like a dumb idea. In sum, thousands of man-hours are wasted, time that could have been spent shaving, or recording sports shows, or sweeping out the garage. This is just wrong. $500,000 would be money well spent. I'm sorry. Maybe there's something wrong with me. I went to Yale Law School and attempted to take a class from Prof. Ackerman and ended up dropping it because after listening to R.M. Hare, Jeremy Waldron, Ronald Dworkin, HLA Hart and Charles Taylor at Oxford, it was just too depressing. I went around thinking, "why does everybody think this guy is so smart?" I still do not understand. It's not just politics. Some conservatives think he's smart. I admit he is very charming if you can stand to suck up to him like your life depends on it. But not everyone has that kind of energy. What if you just ate? Well, you all have your deliberation day. I've got a garage to clean. Did Scalia engage in promissory fraud? By Tom Smith Brian Leiter has linked to this item, floating around the blogosphere, to the effect that Scalia, J., engaged in promissory fraud by buying a round trip ticket he intended to use only one leg of. The first response is, oh please, give me a break. But actually, there may be a bit of a puzzle here. Airline pricing is just an exercise in pure price discrimination. The idea in this instance is to sort out those who really are engaging in one way travel and those who are going round trip. Needing to go only one way is a rather odd situation when you think about it. Airlines undoubtedly sell far more round trip than one-way tickets. They sensibly figure they can extract more from one way travelers. Of course, any idiot would buy a round trip ticket instead of one way, for the same reason you would buy a dozen oranges for $2 rather than a half-dozen for $3. So, apparently, airlines make it a standard term in the form ticket contract nobody has ever read that the buyer of the round-trip ticket really is a round trip flyer and not a one-way flyer. In effect, the buyer is making a representation about his intentions. But it is a queer sort of representation. It is not like "I will make my best efforts to sell your widgets" or the like. It is more like "$100 is really the most I am willing to pay for this widget." This is so because that's all price discrimination is, an effort to sort people out according to what they are willing to pay. But does anybody really think it is fraud to represent to a seller that you are not willing to pay more than $X when in fact you would be willing to pay more? Even if there is an odd term in the contract that says "I really am unwilling to pay more than $X", how could such a term have any effect? A related reason to think buying a round-trip ticket when you mean to travel only one way is not fraud, is that it is hard to see how the airline could possibly rely on such a representation and undoubtedly they do not. They must realize that lots of people buy round trip tickets and throw away the return. They would like to price discriminate against these people, but are defeated when people respond rationally by buying the round trip. For a passenger not to do so would constitute the ethical lapse of being an idiot. Further, for there to be fraud, their must be damages. "I wanted to price discriminate, but he wouldn't let me because he misrepresented how much he was willing to pay," would be a pretty strange case for damages. Some sort of lost profits claim, I guess. But the airlines still sold the round trip ticket. They can fill the empty return seat with a stand-by or by over-booking, which they normally do. Even if the seat sits empty, so what? The buyer already paid for it. So the airlines says, you can't do that, you must be there. But the airline cannot compel performance of this sort. So it asks about present intentions, presumably. Then you are back to the supposed ethical obligation to let somebody price discriminate against you by revealing your indifference curve. That's indecent. Nobody has the right to insist you expose your indifference curve. The only way I can see to argue the seller has suffered any harm is to go back to the price discrimination point, and I doubt any court would call that fraud. (But just wait. Somebody will send me a case in which some benighted federal judge did just that.) But honestly, how could anybody reasonably rely to their detriment on a representation to the effect that "yes, I'm really a round trip flyer" when they are asking you just so they can soak you if possible? No doubt there is some refined moral theory under which you may not misrepresent such intentions in the marketplace, but it would be a rare bird that followed it in practice. The morality of contract law, I would hazard, is much more practical. I would put representations given merely to avoid price discrimination in a category similiar to agreements to agree. You might be able to make sense of them, barely, in theory, but in practice, they're meaningless. That's what I would say if I were a judge anyway. Then I would fly away on a public private jet and kill some ducks. And one more thing: Scalia was using both legs of the ticket if you consider the strange ethical position he was is. If he is going to accept a ride on somebody's jet, it helps to be able to say "I didn't save any money by doing so; I already had a round-trip ticket." So he needs that empty seat on the plane. It is occupied, if you will, by his conscience or at least by his reputation, or perhaps only by some purely juridical body. Just because his actual bottom, on which we are not going to dwell, is not in the seat, does not mean he's not using it. But I suppose there's some really, really refined view under which it is unethical or illegal to buy an airline seat you want to use (maybe it's a weird hobby you have, or maybe you're fulfilling your late girlfriend's last wish, or whatever) in some way other than just sitting in it. Of course, it's funny that Scalia saved money on his one-way leg by buying a ticket that shows he did not save money by taking a private plane for the other leg of the trip. But it still allows him to say "I already had a round trip ticket," and in this age of soundbites, that's a useful thing to be able to say. March 24, 2004
Beginning of end for Kerry? By Tom Smith Dick Morris may have odd sexual tastes (who can forget 'bark like a dog'?) but I've long thought he has acute political judgment. This NY Post piece via realcl arpolitics.com is well worth reading. I'm on record as thinking that the election would be close, but maybe I'm wrong. I hope so. I just keep remembering how many votes Al Gore, not exactly one of nature's charmers, managed to get. More, even, than Bush. Did you know the Kerrys or the Kerry-Katchups or whatever they're called, live in a house in Sun Valley that was disassembled in Europe, shipped to the US, than reassembled? Assuming this is actually true, and it seems too awful to be really true, it bothers me. As I mention every chance I get, I grew up in Idaho, and it is one of the tree capitals of the world. Boise means trees. Ever heard of Boise Cascade? We are very proud of our wood. It offends me that someone should think it necessary or desirable to disassemble some Euro-shack, ship it to my home state, and put it together again. We have lots of nice wood and we know how to build houses with it, even big ones. I would be happy with a constitutional amendment which provided that no one who lived in a house that had been taken apart in Europe, shipped here, and put back together again, may be President. Talk about conspicuous consumption. And not to mention phoniness. Here's a fun fact. Sun Valley is not in Europe. But maybe John needs it to feel more comfortable. Really stupid point By Tom Smith Ian Ayers makes a really stupid point, which is rare for him. He accuses Justice Scalia of buying a "throw-away" round trip ticket, that is a ticket he intended to use only one leg of. Airline pricing is such that this can sometimes be cheaper than buying a one-way ticket. First, doing so is not illegal in any way I can see. Airlines don't want you to do it. So what. At most, it amounts to some technical breach of the terms of the ticket contract, for which the damages would be zero when the airline fills the seat with somebody else, or when the seat you've already paid for sits empty and somebody puts their coat on it. As far as any ethical problem, oh please. It does not nearly rise to the level of say, feeding a parking meter against regulations, where your action is arguably selfish. Furthermore, Ian Ayers probably has no idea with Scalia's intentions were. Plans change. A round trip ticket might have come in handy. Scalia deserves to be criticized for frolicing with rich and powerful muckity-mucks in an way unseemly for a jurist. But the violation is of good taste, not morality. Idaho update By Tom Smith This little tidbit from a special correspondent (whose parents happen to live in Sun Valley). I was listening to the Sean Hannity show today and someone from the Sun Valley area called up to tell a little tidbit about Kerry's visit. I guess there was a party for the all the volunteers -- those who drove people around and did other things to make the Senator's trip to the area more enjoyable. There were about 100 people and Kerry was down the street having dinner and was supposed to show up. Well after a couple hours of waiting, word was received that he wasn't going to come. He basically stood up all these people that had given of their time to him. I wonder if Blaine County [Idaho, where Sun Valley is located] will still go to the Dems in November? March 23, 2004
Learn how to write pompously By Tom Smith When we allow people to write like this, we are letting the terrorists win. Life-style stylings of the help-the-poor set By Tom Smith I would satirize the high living of our liberal nobility, but I am not worthy. (via opinionjournal.com) squeaky squeals in mouse tell-all By Tom Smith Somebody should ask those starving mice just why they live so much longer than mice that occasionally get to eat their fill. I have an idea. Pure mean-spirited revenge. Furry spite. Rodent malice. Put yourself in their place for a moment. Trapped in a small cage with nothing to amuse yourself but an exercise wheel and a water bottle. Sound familiar? A little rodent action when the lab lights go out? Oh no. Your genes aren't good enough. Well, you can always down another mouthful of those green pellets they call food. But wait! Now you can't even do that! It's just hour after hour of gnawing rodent hunger, and for what? To prove that a miserable mouse can live longer than one that gets to eat. So you hang on, knowing that every hour more you live is thousands more humans who feel guilty for that extra bowl of raisin bran, and ashamed for each additional fry. Vicious, hate-filled little bastards. I saw some documentary on public TV about this starvation and longevity stuff some years ago. They interviewed some guy who was a professor at some UC school who was on this low calorie regime, along with his daughter if I remember correctly. They were skinny. I mean stick-man, death's head skinny. Every meal was some elaborate salad, piles of vitamins etc. etc. The reporter, to her credit, asked him the important question "Aren't you hungry?" "All the time," he said. And you could tell he really, really meant it. But he said he thought it was worth the trade off. He figured he would get extra years of life out of the deal. Poor, sad, scared little man. However, I do wish I had taken it easier at the Asian stir-fry buffet in the faculty dining room today. Krugmanology By Tom Smith Who is Paul Krugman trying to influence? Is he just consumption for the Democratic base? Lying in Ponds looks at four years of columns. Somebody has to do it. Via instapundit. March 22, 2004
This makes me nervous By Tom Smith This story makes me nervous. About a year ago or so, debka.com (check it out it you're not familiar with it--their format is lousy, but they seem to have some good inside sources) was running a similar story with dates and names. What bothers me is, it's not impossible. The Soviets did have suitcase nukes and they would fetch a very high price. There are people that evil out there. I hope the CIA is on the hunt. Unfortunately, I think San Diego would be a natural target. It is very rich in high value naval targets and easily accessible from Mexico. Family Life Update By Tom Smith I don't generally wear shorts, unless it's really warm. A few months ago, I was wearing shorts and my lovely wife Jeanne said, "Your legs look really . . . " At this time I was working out maniacally, especially with my legs, for a climbing trip. I would do 120 squats with 150 lbs. I spent four hours on a step mill with a 60 lbs. pack and mountaineering boots. I would do toe raises until I wept. "Strong-looking?" I was thinking, "shapely? fit? ripped? powerful?" "Really what?" I said. "Really white." * * * "I'm glad I'm not named Rich," William (age 7) said. "Why?" said Jeanne. "Because it means weiner!" "I think you mean "dick," dear." "I know." *** I promised Jeanne not to blog about the child or the behavior during Mass yesterday that very nearly caused me to go insane and beat my child to death during the service, which would be no doubt some sort of serious sin. However, just a note to those who might give sermons in the future. If there is a story in the gospel, there is no need to repeat the entire story in different words during the homily. Take yesterday, the story of the prodigal son. You know the story. You have heard it before. Good story. You listen to it again. By Catholic standards, it is a long gospel, especially in a packed church with kids driving you deeply insane. So, yes, it ends as it has before. Now comes the homily. Do not repeat the story! We just heard it! We get it! Add something! We know it is a parable! And then this praying for the sick business. It has gotten so that we are sitting through scores of names being read out. No doubt they are really sick. But how about "and all the sick in our parish," or maybe you should at least have to be in the hospital or something. There is some evidence (controversial of course) that intercessory prayer for the sick works. But is there any evidence you have to mention them by name, out loud, to have the desired effect? I doubt it. March 21, 2004
all things japanese By Tom Smith My oldest son is obsessed with all things Japanese. As a result, among many other things, I am spending four hours a week training with him in Japanese style martial arts, two in Jujitsu, the weaponless fighting technique of the samurai warriors, and two hours in their sword fighting art. I'm in the process of turning our garage into a martial arts training area, and I'm most of the way there. I am planning a post on sword fighting, which I think many blogophiles will find interesting, given the high level of interest by many internet types in LOTR, fantasy novels and other genres that involve fighting with blades. In just a few weeks, I've learned a number of things you wouldn't necessarily expect from having read Tolkein or Robert Jordan. Anyway, just a teaser. The novel Across the Nightingale Floor, a fantasy novel set in an imaginary version of medieval Japan, is really quite good. It is certainly on a higher literary level than the vast majority of fantasy novels. It has unusually developed characters, and works in elements of magic and fighting prowess much more naturally than is usual in the genre. And here's a blog from some design type guy in Tokyo, where my son threatens to move. I'm worried. How about you? Are you worried? By Tom Smith The New York Times is impossible to parody. Check this out. The Times dishes out a story on how both Republicans and Democrats are "worried" about the harsh tone the campaign is taking. What this really means, of course, is that the Times is worried that Bush's attacks are scoring, as they are. Kerry is turning out to be one of those guys who can dish it out but can't take it. Such a charming trait. What Republicans are worried. Two guesses. That's right. John McCain, that flinty individualist, that rock of integrity, that roarin' Commie-defying man of iron. I am so sick of McCain. That fact that his self-promotional instincts stop him from ever following anybody does not make him particularly admirable. And Chuck Hagel. Please. Is there any issue on which he does not have an opinion? What chances would his mother have if she stood between him and a TV camera? The Times has been joyously running negative stories on Bush and his policies everyday for months, as is their right and by now their accepted role. So Bush has a rally, Cheney gives a speech, Kerry pouts in Sun Valley, surrounded by Secret Service agents he abuses and various idle rich sorts, and all of a sudden, it's oh dear, have we huwt youw feewings, John? The putative concern is, negative campaigning depresses turnout. Oh yeah, just like it did in 2000. What a joke. I miss the old Democratic party. Can you imagine HHH whining about negative campaigning? LBJ practically invented it. Kerry can get together with his pals at the Times and play beanbag if he doesn't like getting some of what he's been tossing. Weird is right By Tom Smith Kerry has had a weird and not-so-good couple of weeks. Mark Steyn does his usual unkind best to rub it in. (via realclearpolitics.com) I'm generally sympathetic to insecure displays of macho. I would love to have Kerry's motorcycle, house in Sun Vallley, and wife's fortune (though I would prefer to keep my own wife). But Steyn is right about the male insecurity thing. I wish there was some less risky way to reassure him that didn't involve the security of the nation. March 20, 2004
Jets for Justices By Tom Smith This New York Times article shows a picture of the business jet that flew VP Cheney and Associate Justice Scalia to their duck blasting fandango in America's swampland. Much has been made of their chummy relationship. As far we know, they did not paint runes in duck blood on each others bellies (in Cheney's case that might have taken several runes, perhaps a whole epic). And the Justice noted he and the Vice President did not share the same blind or "swap spit." Oh, all right, I made that quote up. This controversy, however, has neglected the real issue. The fact that the judicial branch, unlike the Executive, does not have its own fleet of jets that it can use when it goes on vacations. What is this all about? Is not the Supreme Court at least as wonderful, brilliant and deserving of our sycophantic up-sucking as any other branch of government? If each Justice had his, or her, own jet, then they would not have to chum around with Executive Branch officials. It is this egregious oversight in equipping some of the most powerful near-superhumans in our power stratosphere that led to this indecorous infraction in the first place. In general, it is dangerous to let Justices wander about in the social highlands with inadequate status symbols. They must suffer from a bad case of what David Brooks called in his mean ,but funny book, Bobos in Paradise, of status-income disparity (or something like that). Supreme Court justices are supremely important. They have whole battalions of law professors trying to figure out what they meant in opinions they did not even write themselves. Justices go home at night and wonder if they are really historic or not. But unless they are married to super rich lawyers, as Justice Ginsberg is, do they wonder this in marble bathrooms? Do they have personal shoppers to spare them the time to worry? Do they get to fly about in private jets? Do they get to dump their tired spouses and hook up with young hunks or hunkettes, or at least with interns? They do not. It is shockingly unfair. No one can fairly blame Justice Nino for jumping at the chance to fly in such a cool aircraft. The answer is clear. The Justices need their own jets. At say $25 million a pop, times ten (you need an extra to send out for extra shotgun shells or whatever, and I can multiply by ten in my head) that's a mere $250 million. Chump change in our empire's capital. Something else the Justices need is their own song. The President has "Hail to the Chief" but what do the justices have? "I'm leaving on [my own, taxpayer funded] jet plane"? No, too sappy. "Chain of Fools"? No, too sarcastic. "You're So Vain"? No, too true. I suppose each Justice could have his, or her, own song. Yippy Tie Yie Yay, Get Along Little Doggies, is one obvious choice, but what about the rest? Food for thought, you must admit. (My son suggests "Smells Like Teen Spirit," but you'd have to know the lyrics to know how appropriate that is.) In a republic, the people are governed by laws, and the public servants affect a certain stern austerity, as the Romans knew. So what would be appropriate in our case? I suppose some sort of transparently fake austerity, with our leaders living like the super-rich every chance they get. Like Cheney, or Clinton, or Scalia. Welcome to club, Nino. UPDATE: The other side of the story here. Doctrinally, I would be happy to see Scalia have 9 votes to everyone else's one. I just think flying around in non-commercial jets, hunting with oil industry elephants, etc. etc. is unseemly in a judge. I know it's how the world works. I don't have to like it. I agree the L.A. Times has redefined media bias. Weird Science By Tom Smith This is pretty weird. Apparently in Minnesota, kids will now be taught that evolution is just one of at least two "scientific" theories accounting for such things as marine iguanas and puffer fish. I suppose this means if you want to learn evolution, and not the book of Genesis in biology class, you'll have to go to a Catholic school. I admit I find this pretty rich. Maybe we'll repeat history, in which the Irish monks preserved civilization through the dark ages. I looked at my sixth grader's science book the other day, curious about its treatment of evolution. The book discussed evolution, but not very well. One argument in favor of teaching evolution and teaching it well is that it is very interesting. There are lots of great computer simulations that would appeal to kids, for one thing. Another thought that occurs to me is that if it were easier for kids to study their own religion while in school, there might be less pressure to inject it into inappropriate places, such as science classes. Why shouldn't Christian kids be able to take a Bible study class in a public school? Because the ACLU and federal judges won't let them, but how would such a class hurt rather than help their education? If there were such classes, then religion teachers could tell them the theory of evolution was false, and biology teachers could shoot back with evidence and arguments. Kids could decide for themselves. Now instead, at least in Minnesota, they will have every right to be confused as to what scientists actually think. Does Kerry read the Right Coast? By Tom Smith Drudge reports today that Kerry has been hiking up to the 9000 foot level on Baldy and snowboarding down, taking repeated falls. I guess I have to withdraw my judgment that he is a weiner, at least on the grounds of his snowboarding. Reporters counted at least six falls. So maybe he is trying after all. Could this be in response to my comments on this blog? Never underestimate the influence of the internet. March 19, 2004
NRO needs to clean up its act By Tom Smith In the intelligent design kerfuffle over at Brian Leiter's site and National Review Online, Brian's opponents seem to be striking below the belt. Read all about it over there, but in a nutshell, a graduate student of the Intelligent Design scientist posing as an independent journalist attacked Brian in a piece published by NRO. Of course, the conflict came out, thus discrediting the attack. Nobody enjoys a good, honest fight more than I, and Brian, as you have no doubt noticed, can take care of himself, but even in the Wild West of the blogosphere, certain rules have to observed. One of them is you can't pretend to be something you're not. You don't have to reveal that you are a dog, but you can't hold yourself out as something else. Or so it seems to me. Kerry is a weiner By Tom Smith You may have missed this account of an incident in today's New York Times about Senator Kerry's vacation in Sun Valley, Idaho: The image-conscious candidate and his aides prevailed upon reporters and photographers to let him have a first run down the mountain solo, except for two agents and Marvin Nicholson, his omnipresent right-hand man. His next trip down, a reporter and a camera crew were allowed to follow along on skis — just in time to see Mr. Kerry taken out by one of the Secret Service men, who had inadvertently moved into his path, sending him into the snow. When asked about the mishap a moment later, he said sharply, "I don't fall down," then used an expletive to describe the agent who "knocked me over." The incident occurred near the summit. No one was hurt, and Mr. Kerry came careering down the mountain moments later, a look of intensity on his face, his lanky frame bent low to the ground. Ms. Heinz Kerry, for her part, stuck to a pair of skis and was taking her time down the slope, accompanied by two old friends, one a former Olympian, the other a ski school instructor. "I'm going tentatively, but prettily," she said, wearing tight black pants and a flaming red jacket. I grew up skiing in Idaho, and I can assure the Senator if he does not fall down, it's because he's not trying hard enough. In fact, what we used to say was, if you don't fall, you're not trying hard enough. And we had a term for people who say things like "I don't fall." Senator, you, sir, are a weiner. And a weiner of the worst sort. A rich, Eastern weiner who clogs up the ski slopes with your snootiness and mediocre technique. "I don't fall" indeed. Maybe the Senator should try the chutes at Alta or Steeplechase at Aspen Highlands or Tuckerman's in New Hampshire or anywhere off-piste in the Canadian Rockies or do some trees on skinny skis. "I don't fall." What an unbelievable weiner. If you don't fall, it because you're skiing where it's flat. You probably are followed around by a lackey with one of those little hand brooms to brush you off when you do whatever it is you do when you don't fall, you weiner. And then you blame the Secret Service Agent (who stands ready to take a bullet on your behalf) whom you run into for getting in your way and call him a name. It's like driving. If you run into someone from behind, it's your fault. You're supposed to be able to stop. Somebody who wasn't a complete weiner would have said something like "My fault! Sorry! I was going to fast!" and then see if the guy you hit was alright. Flatlander weiner to the core. And I think it's great that somebody asked Kerry which foreign leader told him he wanted him to win. Probably a native. March 18, 2004
Good speech By Tom Smith Very good speech by Veep Cheney, the avuncular looking guy with ice water in his veins. Read the whole thing. And see this observation by Dick Morris. (Both via realclearpolitics.com) March 17, 2004
The business of the Passion By Tom Smith Interesting piece on the economics of the movie. Gibson is going to make an astonishing amount of money on it. March 16, 2004
When giving in to terrorists is not giving in to terrorists By Tom Smith I knew Madrid was George Bush's fault, I just couldn't quite work out the logic. Now Tom Oliphant explains it all to us. Patrick Henry addresses Europe By Tom Smith As have countless sixth graders before him, my son Luke is memorizing Patrick Henry's famous speech. It strikes me that it provides the perfect sentiment with which to answer the Spanish and like-minded Europeans: They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? . . . Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations, and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable--and let it come! I repeat it, sir, let it come. We have met the enemy, and they are French By Tom Smith If this were a Tom Clancy novel, it would be unbelievable. Is trying to intimidate the Free Chinese anything other than a cynical power play by the French? Or maybe the Chinese are in the market for some WMD parts. On the bright side, the French are to naval warfare, what the British are to food (and vice versa). The universe and God By Tom Smith Here's an interesting talk by a distinguished chemist about cosmology and creation. March 15, 2004
Krugman and the CEA By Tom Smith As an alum of the CEA (Senior Counsel and Economist, 1988-89), it makes me mad when people attack the CEA. (And I have a picture of a much hairier me with the Gipper to prove it.) Yes, we were a stable of economics who worked for the POTUS, but the CEA is structured to protect against the corruption of academic standards, as much as any group of academics in political office could be. I think it is really a wonderful institution, an economic think tank inside the White House, and one much less liable to capture by regulated industry. So now Paul Krugman is attacking the CEA, saying their job numbers are lies. Talk about the pot and the kettle. Marginal Revolution comes to the defense. San Diego county astronomy rules! By Tom Smith Not the biggest, but possibly the coolest observatory makes an important discovery. I wish it were true By Tom Smith Jacob Levy argues that Spanish election and change in foreign policy is not a victory for al Queada, but it reads to me like wishful thinking. But then, I spent the morning cleaning the garage while listening to NPR. They really need to get some training at not sounding delighted when America suffers a defeat abroad. You get the feeling that if 1000 died in Madrid instead of 200, they would be beside themselves with joy. What a defeat for Bush. Terrible, of course. But what a defeat for Bush! Survival of the fittest in the blogosphere By Tom Smith Brian Leiter has got them fuming at the National Review online. UPDATE: Here's Brian's response. March 14, 2004
The A-word By Tom Smith I know people are sick of abortion, and I don't blame them. It always leads to unpleasant arguments, at best. I understand that it is a religious or otherwise purely ethical view that it is wrong to kill a little ball of cells smaller than a grain of rice. But there is something deeply wrong with killing a full or nearly full-term baby in a horribly inhumane way just to salve our own less than fully formed consciences. I gather that is what "partial birth abortion" is. It would be much more humane to deliver the baby and then kill it with an injection of morphine or whatever, to "put it to sleep" as we do with old or injured animals, rather than cut it apart. At least part of the reason for doing it the hard way (for the baby) is presumably that it qualifies, for legal, not medical or moral reasons, as an abortion rather than a murder. Of course, I understand it is easier on the mother, presumably, to have the baby come out in crushed pieces rather than as a whole. But surely avoiding the suffering of the infant is worth something. Animal loving Americans would be outraged at the prospects of dogs and cats being cut into pieces in order to avoid even significant human pain and inconvenience, as they should be. We should take the suffering of animals seriously. Yet because it is a "choice," it is somehow OK to do anything to a baby, as long as it is partly enclosed by its mother's body. People who think it is morally acceptable to kill infants who could survive outside the womb, should at least be humane about it, and argue for humane infanticide, rather than abortion of full term infants. But of course they won't, because that would be politically unacceptable. We would do that much for our pets. The fact that the abortion rights crowd doesn't acknowledge the ethical interest in avoiding suffering by the baby or "fetus" shows just how depraved they have become. It gets even weirder when you realize that what abortion rights is largely about is lowering the costs (including the expected cost of various risk exposures) of sexual gratification. But if abortion is about making sexual pleasure more available, then the suffering of other humans, or nearly humans, further down the line, should be taken into account. But my impression is that many abortion proponents don't even rise to the undistinguished moral level of utilitarianism. We're fat because we're rich By Tom Smith Food is cheaper, so we eat more of it. We are more productive, so we work less, though we complain about it more. March 13, 2004
Why I don't read contemporary "quality fiction" By Tom Smith Just what we need, a really funny attack on the family. Leiter on USD Law School recent hires By Tom Smith Brian has this informed review of our recent successes in hiring at USD law school. I, of course, agree that we are a school with a lot of momentum in the right direction. I mean the correct direction. Upward. You know what I mean. Brian's famous (and notorious) efforts to review and rank law schools and philosophy departments are a boon to schools that want to rise in quality rather than merely rest on laurels. It just goes to show you how important competition is in the marketplace. I am happy to be among Brian's favorite "right wing kooks." He in turn is my favorite Red. If things ever really get out of hand, Brian, you're welcome in my bunker. March 12, 2004
When aviators and digital cameras mix By Tom Smith Can I have a jet please, mommy? Check out these pics from Afghanistan. Via Instapundit. March 11, 2004
Norval Morris By Gail Heriot Norval Morris, the Julius Kreeger Professor of Law & Criminology Emeritus at the University of Chicago, was my criminal law teacher back in the late 1970s. He collapsed and died at a restaurant this week at the age of 80. I almost never agreed with him about anything, and evidently a significant number of the members of Congress felt as I did, since they forced President Carter to withdraw his nomination as head of the Law Enforcement Assistance Administration. (A quick and somewhat unfair summary of Morris' views: Putting criminals in prison is usually excessive and counter-productive.) But he was an interesting and entertaining figure as well as a talented teacher and storyteller. He will be missed. Evil children's books By Tom Smith This post of Brian's got me thinking about the swill we often expose our children to in "children's books." For reasons I can't reconstruct, I was reading an awful screed called "The Rainbow Fish" to my children. The rainbow fish has pretty scales and so all the other little fishies resent him and won't play with him. So what to do? In the book (supposedly "a classic") Rainbow fish gives away his scales so all the fishies each have one pretty scale (which of course looks really stupid). The moral? If you're lucky enough to have something like pretty scales, other people will resent you until you make yourself as ugly as they are. True enough, but hardly edifying. So I changed the story for my kids. All the other fishies admired the scales and wanted them. But were they worth more to them, really, than they were to Rainbow fish? How do we figure this out? We let the other fishies bid for the scales of course! So little Rainbow Fish held an auction, and sold off some of his scales to other fishies who actually did value them more than Rainbow Fish did. And it was Pareto Superior. "What does that mean, dad?" It means some of the fishies were better off, and none were worse off! Of course, some of the fishies didn't want to buy any scales; they just wanted to complain that Rainbow Fish had nicer scales than anybody else. But they were no fun to be around, anyway, so Rainbow Fish just ditched them, and discovered he had more fun anyway. The end. The kids loved it. The Corps By Tom Smith This is San Diego, so I've known quite a few Marines over the years. Some random impressions. My dad, who missed all of WWII except for the Battle of Okinawa, had mixed feeling about Marines. He thought they cut through Japanese (they didn't use that term) so fast that they left too many behind who still had to be fought. Yet my father's outfit, the 77th Infantry Division, US Army, gladly accepted the ulitmate compliment paid to them by the Marines, who called them "the 77th Marines." In combat situations in which other fighting organizations would use armor or artillery, the Marines often seem to wade in, preferring rifles and bayonettes and pappy's bowie knife pulled from a boot. They did this on the outskirts of Baghdad, to which they got with impressive speed. Marines seem to enjoy their work. Their training seems to emphasize the blunt fact that war is about fighting and killing people. It's good to know that. People don't realize how small the Marine Corp is compared to the Army, Navy or Air Force. I agree with general Smith (no relation except of admiration), I think it's useful to keep them around, just to scare our enemies. I want the response to "the Marines have landed" to be however you say "Oh Shit" in Arabic. Yes, he was the greatest By Tom Smith Yes, Yeats was the greatest poet in English since Shakespeare. I can think of anyone better, anyway. Of course, it helps that everything went seriously downhill after his time, in terms of the arts. I suppose the motive of post-modernists might be, "if we can't produce art (and we can't), then nobody else will be able to either, ever again! And we'll make sure everyone is (mis)educated, so they can't appreciate the art of the past, either. There, my revenge is complete!" Some other day, I'll tell you about my pilgrimage to Sligo. Forget about Christians. Anybody who cares about beauty should be homeschooling. Regulate before it's too late By Tom Smith Science has its fads, memes and bubbles too. (via arcturus.) Although I am not an expert on global warming, I seem to be the only person who isn't. While people who seem to know what they are talking about think the planet might be getting warmer, I doubt very much we have any idea how much human activity has to do with that. As to climate models, oh please. I have seen economists from the Fed model the macro-economy, and it makes sausage making look pretty. Somehow I doubt the world climate over centuries is any easier. And how much grant money is the science guy who produces a model suggesting we just can't know, going to get? The moral is, we had better hurry up and establish some kind of ridiculously inefficient and corrupt international system to tell every country how much economic growth they can have, before we realize the science wasn't very good after all. We did that with financial markets in the 1930's and we're happy with that, aren't we? March 10, 2004
Exorcist bunnies By Tom Smith If you have seen the Exorcist too many times, you might find this funny. I did, but what does that prove? EV on gay marriage By Tom Smith Eugene makes a very good point against professor Brylmeyer's argument in the WSJ that federal marriage amendments supporters needn't be worried that full faith and credit will require all states to recognize out of state gay marriages. Full faith and credit has never been applied to marriages that violate local public policy, says Lea. But Eugene makes the very good point that this is reassuring only in a world where judges are bound by precedent. If the US Supreme Court can overrule Hardwick in the recent Lawrence decision, why not go against a couple centuries of precedent and tradition in reading the full faith and credit clause? It certainly doesn't sound as controversial as saying homosexuality is protected by privacy rights. To this I would add one modest point. If it is true that the amendment is not necessary, then an amendment that only said full faith and credit would not apply to state marriage laws, would not do any harm either. But of course, we know that most opponents of the amendment oppose it in part because they fear it would foreclose exactly the possibility that they hope for--that the Supreme Court, perhaps with some new members, would declare that all states had to recognize gay marriages made in Massachusetts or, coming soon perhaps, California. Yet still even more on the Passion By Tom Smith Generally speaking, I think James Carroll has made a career out of misrepresenting himself as a Catholic to non-Catholic and lapsed Catholic audiences. You're right; I don't like him. But this piece of his on The Passion is interesting, especially in how it ties into Gibson's appetite for violence in his movies. But on the other hand, critics such as Carroll are not really confronting the uncomfortable and even embarrassing fact that at the core of Christian doctrine is the idea that the suffering of Jesus was extraordinary and was redemptive. Carroll's claim that in the Catholic tradition the suffering of Jesus is meant to heard about and read about only is a ridiculous falsehood. Hasn't this guy ever heard of the stations of the cross? Didn't he go to Catholic school? Hasn't he ever seen a bleeding Jesus on a crucifix in his many tours of Europe? As a rule of thumb, whenever Carroll says anything about Catholicism, you can assume roughly the opposite is true. Also, it starts to get hypocritical when those on the left strive to outdo each other in how much opprobrium they can pour on Gibson. It turns out, how could I ever guess, that somehow President Bush is responsible for the excesses of the movie, which are connected to our excesses in Iraq and Afghanistan, and blah blah blah. It is boring to listen to people just seething with hatred for America, and who by and large hate Israel too, and don't seem to get too upset if a few Jews get beaten up in France, either, blather on about how hateful we are all are because the movie is popular. As I have said here, I don't blame Jews for finding the movie offensive. If I were Jewish, I would find it offensive. I'm not Jewish, and I find its depiction of Jews problematic at best and at times downright offensive. I also think there are some beautiful moments in the movie. But I also think the violence is obscene, and wonder whether it serves any legitimate artistic or religious purpose. That being said, no children were blown up in making the movie. No Jews were murdered because they were Jews. No one connected with the movie that I know of is working secretly, ruthlessly and without mercy for the destruction of the Jewish state. Nobody connected with the movie is apologizing for terrorists who would leap for joy if every American were flayed alive as Jesus was, their being the sick bastards that they are. No one connected with the movie is finding every excuse they can for attacking Bush's attempts to keep the country safe from threats that would be even more frightening than they are if we knew all about them. On the other hand, support by the left for Israel had been, let us say, not as hearty as its willingness to pour scorn on Gibson. So when the American left goes off on the movie, you have to wonder, oh, please, when did you start caring about the Jews? More on blondes and marriage By Tom Smith Marriage is getting to be as rare in Sweden as warm, sunny weather. Via realclearpolitics.com What me worry? By Tom Smith Kristof, generally boring NYT columnist, has a point about dangers of a nuclear 9/11. March 09, 2004
Funny By Tom Smith I like to think I have a good sense of humor. This person, "The Rat," is funnier, however. (via eve tushnet. Surf over to the rat for more strange but funny stuff. But very strange.) Hubble space telescope By Tom Smith Big government spends a lot of money on big science and I bet of lot of it is wasted. But every once in a while, if only by virtue of the law of large numbers, they construct a magnificent instrument that actually changes our view of the universe. Then it decides, what, this is working too well? Not as politically sexy as sending hunky astro boys and girls to Mars? Sending teachers into low earth orbit? I hope they keep the Hubble working. Gay marrigage By Tom Smith The New York Times published this morning, presumably by accident, one of the most intelligent short pieces on the gay marriage issue I've seen yet. 9/11 Ad baloney By Tom Smith You probably saw this on instapundit already, but it bears repeating. Maybe I'm weird, but it just doesn't seem normal that if you lost a family member in 9/11, your reaction would be "let's make sure the Taliban don't get thrown out of power!" Sympathy for isalmo-fascists who make women wear parachutes seems odd to me in the best of times, but after they shelter the terrorists who killed a member of your family? ATTENTION all fat middle aged guys! By Tom Smith This study is a big deal. Just because the New York Times says it is a big deal, doesn't mean it's not. The secret is now out. Cardiologists have been quaffing statins like bikers at a beer bust, and now we know why. Those of us in the not that slim but still want to live forever class who follow this sort of thing, have been expecting this study for a while. And the results are impressive. I am not a doctor, but I am married to one. Granted, she thinks my health theories are nuts, but with that disclaimer, here's what I plan to do: first, double my dose of Lipitor from 20 to 40 miligrams (and I'm barely elevated -- you should probably be on the maximum dose of 80) (but keep an eye on those liver enzymes--if you are in the 3 percent or whatever who can't do this, you will die a slow horrible death. Better yet, stop reading now); second, be absolutely sure to have at least one drink a day, preferably red wine, but scotch will do in a pinch. Beer, you should be aware, makes you fat. I still drink it, but not for health reasons. Third, resist what I call the statin moral hazard problem. You know, you look at a big, well marbled piece of meat and think to yourself, "Oh, f#$% it, I'm on Lipitor" and proceed to eat it. This is like driving fast because you have an airbag. Normal, but stupid. Third, or forth (I forget), exercise more. Forth (or fifth). Eat less. Finally, where did I put my gingko biloba? And finally, baby aspirin, if you can find where you left it. March 08, 2004
Word is out; it's time for us to shut up! By Tom Smith Let me be the first to say that when I joined the chorus of people complaining about discrimination against conservatives in academia, I had no idea that it would go on so long that Kevin Drum would get tired of it. (Via instapundit. And a post well worth reading.) But I am sure he can understand that it's very easy for this to happen. You're getting stepped on (just a metaphor! I don't mean to say that getting discriminated against in employment is anything nearly as bad as actually getting stepped on!), you complain, and next thing you know you have annoyed the person stepping on you. What is there to do except say, so very sorry, maybe I could polish your boots while I'm down here? And please feel free to use my head as a place to put your drink. Herr Doktor Professor Drum suggests we "give some serious thought" as to why there aren't more conservatives in the academy. And do I have to go to my room and do it too, or is it OK if I stay downstairs and watch television during my time out? But let me guess. There are so few conservatives in the academy because: conservatives are stupid compared to liberals, conservatives are evil compared to liberals, liberals need those jobs to save the world and finally, please shut up, you are starting to annoy me. That wasn't too hard! Have I missed anything? It's easy to think like a self-satisfied liberal academic. All you have to do is decide what position is most in your own interests, puff yourself up with self-righteousness, posture as much more thoughtful and deeply informed than your rivals, put aside any remnants you may have of a temptation to consider both sides of an argument, and then gravely inform everyone that soon, very soon, you are going to stop listening to them as you have had just about enough. Yet there is a serious question here. What explains the astonishing stupidity of the "arguments" that liberal academics make to justify the facially deplorable fact that academic fields that have a lot to do with politics, such as history, economics, political philosophy, political science and law, tend to be dominated by persons to the left of the political spectrum of the country as a whole? Let me offer a hypothesis. My explanation is that liberal academics are so used to talking only among themselves, so used to simply eliminating opposition in hiring committee decisions rather than in anything like open debates, so used to confusing pomposity with responsiveness, that they have forgotten how to make a convincing argument. They are like a bunch of confused, old aristocrats burbling on about why they should be only ones allowed to wear swords or whatever. There are lots of things in this world that require "serious thought." The self-serving cant of liberal professors justifying discrimination against conservatives is not one of them. Interesting blog from Gordon Smith By Tom Smith I've long admired Gordon Smith's scholarship in my area, corporate law. Now he has a blog full of interesting stuff. His judgments on Martha Stewart are right on, as are Steve Bainbridge's. The whole thing with Martha is distressing, because her violation was at most hyper-technical, and she never, ever would have been prosecuted if she weren't, to use Tom Wolfe's phrase, "the great white defendant." This case was about prosecutorial self-promotion. Rudolph Giuliani and Michael Milken all over again. March 07, 2004
Legal help needed By Tom Smith The other day I asked some of my colleagues whether there was any reason that no court had been willing to enjoin San Francisco mayor what's-his-name from issuing marriage licenses to gay couples. I was assured that there was good reason to think that the statute forbidding gay marriage actually violated the state constitution and so on and so forth, and so it was not surprising that no court would issue an injunction to the effect of, please stop doing this patently illegal thing. I was pretty skeptical at the time, but didn't really feel like arguing about it, or even talking about it. Now comes this column by my former colleague and brother of my friend Ahkil Amar, to wit, Vik Amar, who I know knows a lot about California law, and is no conservative. In fact, I would call him a Bay area Democrat, but not, I suppose, really on the left. A moderate. He seems to think there is no serious case at all that the marriage licenses are not illegal. So what is a poor corporations scholar to think? Here's an excerpt: California Statutes Clearly Do Prohibit Same-Sex Marriage To begin with, it is quite clear that California statutes currently prohibit same-sex marriage. One provision of the Family Law Code says that "marriage" is a "personal relation arising out of a civil contract between a man and a woman." Another provision states that those capable of providing consent to marriage are an "unmarried male of the age of 18 years or older, and an unmarried female of the age of 18 years or older." Finally, and perhaps most importantly, section 308.5 of the Family Law Code -- , which was enacted by the voters themselves as an initiative (Proposition 22) in the 2000 election -- , says that "only marriage between a man and a woman is valid or recognized in California." The Constitutional Provision that Requires Enforcement Until a Court Says Otherwise Thus, the only imaginable defense for Mayor Newsom's actions is his belief that these statutes violate the California Constitution. And that, indeed, has been his defense - that the oath he swore to uphold the California Constitution when he took office permits (indeed, perhaps compels) him to disregard state statutes that conflict with the highest of California's laws. The problem for Mayor Newsom is a specific provision of the California Constitution. Article III, section 3.5 of the California Constitution says that an "administrative agency has no power to refuse to enforce a statute, on the basis of its being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional." In other words, the California Constitution itself says that when an agency thinks that a statute violates the Constitution, the agency should continue to obey the statute until appellate courts have resolved the matter. Section 3.5 thus sets up an orderly process to prevent each agency from going its own way and disregarding the will of the legislature in the name of constitutional conscience. Section 3.5 is the provision the Attorney General relied on heavily in making his request for an immediate cease-and-desist order, and to my mind, his argument is quite forceful. While I will of course be interested in seeing what Mayor Newsom's legal team says in the response it files today, my sense is that under Section 3.5, even if the Mayor is right in thinking that state statutes violate the Constitution, he was acting illegally in disregarding state statutes until the invalidity of those statutes had been made clear by the appellate courts. Harry Potter book to be translated into ancient Greek By Tom Smith Sing, muse, of the book about the magic boy Which will be out soon like the sun rising over the wine-dark sea and brave Harry dead, or not In any event, it's supposed to encourage young Brits and others to learn the language of philosophers, poets and so on. Middle class economic anxiety By Tom Smith I think Mort Zuckerman is right on in this essay (via realclearpolitics.com). What would help two-income middle class workers (in particular lower middle class workers--those struggling to stay in the middle class) is deep tax cuts for everyone with joint incomes below $200 or $150K, policies to improve public schools, and privatizing social security. But of course, politicians of both parties get very nervous when letting people keep the money they've earned means they will have less to play with. Then they revert to type. Democrats define two teachers or an insurance salesman and a grocery clerk with three kids, living in a house with one bathroom and 2 five-year old cars, as "rich." Republicans explain that some some tax break tailored for helium refiners in North Texas will put people to work and promote growth, when it just some lobbyists' scam. Gertrude Himmelfarb on the Passion movie By Tom Smith I think she is right, as usual. However, that doesn't change the fact that many of the critics of the movie just hate Christianity. Should I start taking folic acid? By Tom Smith I think we've got folic acid pills floating around the house. Should I start taking it? I find these public health interventions in the macro food supply chain interesting. Now I'm confused By Tom Smith It's so hard to keep up with the news when you read the New York Times. I read it yesterday, and the front page was all about, oh, what a disaster it was that the Shiites weren't going to sign the new constitution. An enormous setback for the administration. A disaster. An embarassment. And so and so on. But now, it looks like the constitution will be signed after all. UPDATE: But the NYT is not ready to give up the hope that we will fail. So I guess this gives the Times and Al Queda something in common. Both are pulling for a failure in this peace process. But John Burns is still worth reading. Sweden eden By Tom Smith This interesting article from googling "Sweden sex." And yes, I was looking for this sort of thing--I didn't google "Swedish blondes," which gets what you would expect. I gather that to get babies in Sweden, you have to import them. Why not make them at home? Perhaps because Sweden enforces child support laws against men, and so men don't want to help make them. Some delicate discussion of the apparent tendency of these imported kids to commit suicide at a disproportionately high rate. And Swedes already off themselves at an alarmingly high rate, and drink a lot too. Some of that must be the miserable climate. And maybe some Swen the Horrible, he of the large sword and self-destructive tendencies, got into the gene pool a few centuries ago and hasn't been diluted out yet, since it's not that diverse a country. Who knows. I wonder whether it's gay marriage and the like that underminies traditional family structures in the great North Whiteland, or just socialism? Maybe gay marriage would be just fine, if the government didn't subsidize it or problems it might create. I tend to think the reason traditional nuclear families have prospered is that they make more economic sense than the alternatives. But if you subsidize various not-very-independently-viable family forms, you will get more of them. So then the question becomes, not whether gay marriage should be allowed in some robust libertarian society, where the answer may well be yes, but what it effect it would have in this one where social pathologies have a way drawing down government support. So if we end up with even more single moms with kids, the product of temporary lesbian marriages, then there will be even more pressure for state provided child care, which will in turn reduce the incentives to form an economically viable family in the first place. In my nightmares, the state says, well, we're paying for them, so we should get to determine their design features. But nothing like that could ever happen, I suppose, since we don't intend it to. Hard to believe By Tom Smith Justice Kennedy getting cold feet? I don't believe it! That warrior, that hero, that man among men, that flinty individualist waffling at the last minute?! How could it be?! March 06, 2004
FAQ for persons about to delve into the Blackmun Tapes By Tom Smith Q: Is there really such a thing as "permanent boredom injury"? A: The existence of PBI is still controversial among neurologists and psychiatrists. Toll booth operators, security guards in quiet neighborhoods, and of course, some lawyers have experienced symptoms of what some experts refer to as PBI. Inability to concentrate, sobbing, hysterical laughter and various kinds of substance abuse are all possible symptoms. Others regard PBI as merely a special case of post traumatic stress syndrome. Q: Is there any relationship between PBI and Justice Blackmun? A: Whether coincidentally or not, reported incidence of PBI is much higher than expected among groups that have been exposed to a Blackmun speech, especially one in which the topic of Roe v. Wade comes up, which includes every known speech given by the late justice after his emergence from obscurity after the famous decision permitting the non-killing killing of non-person persons. Q: Is there any hard evidence that listening to Blackmun causes PBI? A: No. However, this answer should be qualified by noting that some promising cases (in the research sense) were unable to respond to queries because they had been institutionalized. And of course, there is the well-known and sad case of the suicide mid-way through a speech by Justice Blackmun. Q: Is there anything I can do to take precautions against PBI if I am determined to listen to the Blackmun Tapes? A: Yes. First, you should consider your own risk factors to determine what level of precautions is advisable. Persons from the mid-West, especially Minnesota, persons who think Justice Blackmun was a hero, and persons who can honestly say "I enjoyed that summary of the consolidated return regulations of the Internal Revenue Code" may get by with lower levels of precaution. However, persons who know that they often say (or think to themselves) phrases such as "rubbish," "self-serving cant," "what an idiot" or cognate phrases, are particularly at risk. Second, if you are a high risk person, you should consider exposure only after appropriate pre-medication. A dose of Valium or similar benzodiazapine, sufficient so you could say on a commercial flight "we're going to crash and I don't care" is a reasonable rule of thumb. By combining this with a caffeine dose equivalent to about 5 shots of espresso, PBI is likely to be avoided. Third, however, and this must be borne in mind, there are no guarantees. Q: Do you believe persons about to have to listen to a Blackmun speech, or to the Blackmun tapes, should have the right to commit suicide? A: This question is much debated within the "right-to-life", anti-so-called-"abortion"-(but only of non-person persons) community. Some believe that self-euthanasia is morally justified given the grave threat of PBI and similar injuries. Other, especially religious, pro- so-called "life" activists see this view as inconsistent with valuing life, even when it has been reduced to a pathetic, slavering shell of its former self, that can only mumble "how can that man . . . he couldn't think his way out of a . . . why do we bother having a constitution if . . . " Ultimately, this is decision that can only be made for us by second rate minds who stumbled into history by weird quirks of fate. Please violate my human rights again By Tom Smith Life in American prison was great, says former resident of Club Med/Guantanamo Bay. Maybe we should contract this out to the Cubans. I bet they know how to run a prision. (via memeorandum.com). The Missing; weird drugs By Tom Smith Jeanne and I watched The Missing last night, which was a treat from me as I usually have to watch Westerns alone. (But a man is alone in the world, except for his horse, of course.) As many reviewers have noted, the movie is a bit of a disappointment, given the originality and richness of the themes it explored. As you probably know, Kate Blanchette (spelling is a guess) is a rugged yet very full lipped healer woman making her own rugged way in the world, healing the occasional Injun and having non-too-hygienic looking sex with her hired man. Tommy Lee Jones, her estranged, gone-Native American, daddy appears. Jones looks the part very well. Too bad he's not a more versatile actor. I liked the story. Maggy's (that's Kate's) daughter is kidnapped by a convincingly evil gang of white slavers (no doubt an a term we're not supposed to use any more) led by a superbly nasty and evil Brouhah (sp?), an Apache medicine man, whose wicked spells nearly kill Maggy. The chase and counter-chase are all pretty standard Western stuff, and reasonably well done. I thought the medicine man's frequent use of home-brewed or ground poisons and drugs was an interesting twist-- I can't think of another Western in which American Indian botanicals are so featured -- but more could have been made of it. A western has to pretty bad before I won't enjoy it, and I enjoyed this one--I would give it a solid "B". The best human performance was put in by the Apache witch doctor. (The best overall performance by the spectacular New Mexican scenery). In one horrifying scene, the villian glowers at Maggy's daughter, who has tried to escape. "You won't hit me," she says, "because then you'll get fewer pesos for me, and you know it." The brouhah scoops up a handful of sandy dirt, forces it into her mouth, and as she gags, says to her "that is what the rest of your life will taste like." The use of drugs and potions in the movie reminded me of something I have been thinking about lately a little, given the troubles in Haiti, which with voodoo (or Voodun) is a kind of capitol of bad medicine. Wade Davis's fascinating book, The Serpent and the Rainbow (nothing like the ridiculous movie) is a anthropological adventure story of the yummiest sort. Yes, they really do turn unfortunate people into zombies in Haiti, and at the risk of making one of those awful, value laden, ethnocentric judgments, it seems to be a thoroughly evil practice. But then pharmaceutically lobotomizing someone, burying them alive, digging them up and then enslaving them is not something I do in my culture, so perhaps I do not fully understand its contextual hermeneutics. An even better book is Davis's One River. If you have ever wanted to explore the rain forests of South and Central America and discover where all the various botanical intoxicants, hallucinogens and healing drugs come from, this is the book for you. It would be perfect for a rainy day inside a tent or next to a warm fire. Last summer in Peru, I drank a little bit of a truly disgusting potion made out of tapioca root that had been chewed by Indian women and then spat out into pot and fermented for a while. This was part of a ceremony that was put on for the eco-tourists at the lodge we were staying it. The ceremony involved lots of drums, young scantily clad male and female dancers and a large snake. I was the only tourist to drink any of the home brew, probably because I was the most adventurous, or alternatively, the most drunk, having already had some indeterminate number of gin and tonics, which I do recommend in the jungle. If I ever get another opportunity to drink this spit spirit, or whatever you call it, I think I will pass it up. It tasted horribly like what it was, and I can confidently say that the oral hygiene among Peruvian rainforest Indians could stand some improvement. The idea that people drink enough of this stuff to get drunk is truly appalling. The other native remedy I tried was chewing cocoa leaf for altitude sickness. This is the leaf out of which cocaine is made, but the refined product is much, much more potent. Chewing the leaf is like sipping a strong cup of coffee continuously. It does suppress appetite and make it easier to carry loads uphill at altitude, too easy in fact. I stopped using it because I felt it made me exhaust myself, since I think it makes you less aware of how hard you are working. But it sure takes the edge off hiking up a steep trail with 50 lbs. on your pack at an hour when God wants you back in your warm sleeping bag. On the down side, it makes you produce copious quantities of bright green spit and is quite bitter. You need to make sure you don't inadvertently pack any back to the States, as they are notoriously humorless about the stuff at the border. Folks down there also make tea out of it. March 05, 2004
Good poll analysis By Tom Smith Good analysis of polling data by Barone, via realclearpolitics.com. As I said to anyone who would listen in 2000, it is going to be a close election. In 2000 (I know it's easy to say) I said I was worried that the election was so close, that election fraud could make a difference. I was right, as is so often the case. I am not ready to make a prediction yet, except to say that as of now, it looks close to me. Of course, this could change for any number of reasons, including a successful campaign by W to brand Kerry as the Mass. liberal he actually is. But Kerry and old media both will be working hard to re-brand him as some sort of centrist. You can't make up the LA Times By Tom Smith A good reason not to be PC is how stupid you often have to appear. It's too hard to explain this story about the LA Times. Just read. Via opinionjournal.com. What Martha should have done By Tom Smith If I were Martha, I would have bought a ton of put options on Martha Stewart Omnimedia before the jury came back. I feel sorry for her. She would never have been a target but for her fame and wealth, and they got her for covering up something that turns out not to have been a prosecutable crime anyway. SUV haters -- read at your own risk By Tom Smith You may have missed this little gem in today's NYT. There's a lot going on here. FAQ for middle aged guys By Tom Smith Q: Was she hitting on me or just being friendly? A: Just being friendly. Q: Lately I have noticed in combing my hair, lots is coming out. I have gone from having a receding hairline to being actually bald. Is there anything I can do to restore that youthful, vigorous look that comes from having a full head of hair? A: No. To be continued . . . March 04, 2004
For SoCal readers only By Tom Smith I guess it was a nice day in Tennessee so Glen Reynolds decided to blog about it. We've have had a lot of rain recently but yesterday was nice. So was today. Tomorrow looks pretty good too. In general, March is lovely here. April is really nice. May is beautiful, in a warm, sunny sort of way. June is pretty warm. You have to wear shorts and a T-shirt. If you can stand high 70's and breezy it's good though. Oh, right. "June gloom" It's cloudy on the coast in the mornings. But then there's July. Watch out for July. It's warm and sunny. September is really hot here. Good thing we have that pool. Oh, well. You get the idea. It may be boring, but it's the kind of bored I like to be. If I never have to suffer through another summer in DC it will be too soon. I'm a San Diego weather snob. But we have firestorms and earthquakes, so I guess it evens out. One more thing to worry about By Tom Smith The odds that we'll all die from an asteroid strike are better (worse) than you think. Certainly much greater than winning the California lottery, and much less fun. Via VC. I like to stand under the stars and drink scotch while my computerized telescope finds obscure objects for me. I'm probably not going see anything before it hits us. Here's a picture of my telescope. I'll let you know if I see any big rocks coming our way. I've often wondered what I would do if I saw something big land in the Pacific to my west, and a giant wave coming my way. I think it's another reason I need an SUV. Gay marriage in Scandanavia By Tom Smith This article suggests gay marriage doesn't promote marriage, at least in Scandinavia. Here's an excerpt from the conclusion, but the whole thing bears reading: Developments in the last half-century have surely weakened the links between American marriage and parenthood. Yet to a remarkable degree, Americans still take it for granted that parents should marry. Scandinavia shocks us. Still, who can deny that gay marriage will accustom us to a more Scandinavian-style separation of marriage and parenthood? And with our underclass, the social pathologies this produces in America are bound to be more severe than they already are in wealthy and socially homogeneous Scandinavia. All of these considerations suggest that the gay marriage debate in America is too important to duck. Kiernan maintains that as societies progressively detach marriage from parenthood, stage reversal is impossible. That makes sense. The association between marriage and parenthood is partly a mystique. Disenchanted mystiques cannot be restored on demand. What about a patchwork in which some American states have gay marriage while others do not? A state-by-state patchwork would practically guarantee a shift toward the Nordic family system. Movies and television, which do not respect state borders, would embrace gay marriage. The cultural effects would be national. What about Vermont-style civil unions? Would that be a workable compromise? Clearly not. Scandinavian registered partnerships are Vermont-style civil unions. They are not called marriage, yet resemble marriage in almost every other respect. The key differences are that registered partnerships do not permit adoption or artificial insemination, and cannot be celebrated in state-affiliated churches. These limitations are gradually being repealed. The lesson of the Scandinavian experience is that even de facto same-sex marriage undermines marriage. The Scandinavian example also proves that gay marriage is not interracial marriage in a new guise. The miscegenation analogy was never convincing. There are plenty of reasons to think that, in contrast to race, sexual orientation will have profound effects on marriage. But with Scandinavia, we are well beyond the realm of even educated speculation. The post-gay marriage changes in the Scandinavian family are significant. This is not like the fantasy about interracial birth defects. There is a serious scholarly debate about the spread of the Nordic family pattern. Since gay marriage is a part of that pattern, it needs to be part of that debate. Conservative advocates of gay marriage want to test it in a few states. The implication is that, should the experiment go bad, we can call it off. Yet the effects, even in a few American states, will be neither containable nor revocable. It took about 15 years after the change hit Sweden and Denmark for Norway's out-of-wedlock birthrate to begin to move from "European" to "Nordic" levels. It took another 15 years (and the advent of gay marriage) for Norway's out-of-wedlock birthrate to shoot past even Denmark's. By the time we see the effects of gay marriage in America, it will be too late to do anything about it. Yet we needn't wait that long. In effect, Scandinavia has run our experiment for us. The results are in. I must say, this is exactly what I am afraid of. |