The Right Coast

April 30, 2005
The Politics of the Judicial Filibuster
By Mike Rappaport

While I have tried to evaluate the constitutionality and the policy underlying the filibustering of judicial nominees in a nonpartisan manner, that does not mean I don't see the Democrats' strategy or find it deeply troubling. Steve Calabresi powerfully explains the damage done by these filibusters here. Consider this excerpt:

Why are Senate Democrats so afraid of conservative judicial nominees who are African Americans, Hispanics, Catholics, and women? Because these Clarence Thomas nominees threaten to split the Democratic base by aligning conservative Republicans with conservative voices in the minority community and appealing to suburban women. The Democrats need Bush to nominate conservatives to the Supreme Court whom they can caricature and vilify, and it is much harder for them to do that if Bush nominates the judicial equivalent of a Condi Rice rather than a John Ashcroft.

Conservative African-American, Hispanic, Catholic, and female judicial candidates also drive the left-wing legal groups crazy because they expose those groups as not really speaking for minorities or women. They thus undermine the moral legitimacy of those groups and drive a wedge between the left-wing leadership of those groups and the members they falsely claim to represent.

The filibuster of judges has crippled the Bush administration's efforts to appoint judges like Scalia and Thomas to the federal courts of appeals. Take the D.C. Circuit--a federal appeals court that all agree is second in importance only to the Supreme Court, and a grooming place for future Supreme Court nominees. In his eight years in office, Ronald Reagan appointed Robert Bork, Antonin Scalia, Kenneth Starr, Laurence Silberman, James Buckley, Stephen Williams, David Sentelle, and Douglas Ginsburg to this all-important court. Five years into his presidency, George W. Bush has appointed only a single judge to that court, John Roberts. The score on the D.C. Circuit is Reagan eight, Bush one--thanks to Senate Democrats and the filibuster.

Seeing with Sound
By Mike Rappaport

Our colleague, Adam Kolber, who has a great blog on Neuroethics and Law, reports:

Quirks & Quarks" a radio show on Canada's CBC has an interesting segment on technology that helps blind people to navigate the world by translating images into sounds. The program explains how images from portable, tiny video cameras can be translated into sounds by modifying pitch, volume, and the like to represent features of the visual world. Obviously, the technology is imperfect, but according to the program, it can enable a blind person to distinguish a soccer ball from a football using sound alone! Brain scanning suggests that people using the technology are activating parts of the brain that are associated with vision in sighted people.

April 28, 2005
Sixties Affirmative Action, Part II (Strange Career Paths)
By Gail Heriot

It truly is a crazy old world. In 1969, one of the leaders Cornell University's radical Afro-American Society, rifle in hand, bellowed to a crowd of about a thousand, "In the past it has been the black people who have done all the dying. Now the time has come when the pigs are going to die, too.… We are moving tonight. Cornell has until 9 o'clock to live." He and about eighty other armed students then took over Cornell's Straight Hall and held it until Cornell President James A. Perkins spinelessly capitulated to their demands.

The speaker was Thomas W. Jones. Do you know what Mr. Jones is doing these days? No, he's not in the pokey. He and his fellow terrorists never went to prison. C'mon guess.....

He's currently Chairman and CEO of Citigroup's Global Investment Management. Recently, he was President and Chief Operating Officer of the Teachers Insurance Annuity Association-College Retirement Equities Fund. It is the largest pension fund in the world with assets of $130 billion plus. That's a pretty extraordinary career path, no? When asked about his role in the armed incident on the 25th anniversary of the take over, he reportedly replied, "I did what I had to do."

Your correspondent's pathetic retirement savings are, like most academic's, in TIAA-CREF. I did not know until today that they had been managed by a hot-headed ex-felon. I suppose I ought to have worried about that a bit ....

For other interesting career paths for 1960s radicals, see here.

Vardis Fisher and such
By Tom Smith

Vardis Fisher is probably the most quintessentially Idahoan writer of the last century. Not Hemingway, who vacationed in Sun Valley, which does not make someone an Idahoan. Sun Valley is not actually part of Idaho, although it is located within the boundaries of the state. It's fine; I like it; it's just not Idaho. I also like Hemingway. He's from Minnesota or someplace equally flat that is said to have good fishing. He spent a lot of time in Paris with some lesbian writer who didn't like Oakland.

I am reminded of Fisher because there arrived from Amazon today a new copy of Fisher's novel Mountain Man, a fictionalized account of mountain man John Johnson. The novel was the basis of the movie Jerimiah Johnson, which starred Robert Redford in one of his better performances.

Vardis Fisher was an interesting character. His father was a Mormon bishop in a Mormon splinter sect. They lived in tiny place in southeastern Idaho I have never heard of, and I have heard of Soda Springs. He rejected his faith to become a militant atheist and is still something of a hero in the annals of American atheism. Fisher got a Ph.D. in something, anthropology? English?, from the University of Chicago. (An interesting history could be written about the influence of the University of Chicago in the mountain states. Norman McLean, another great western writer, was also a Chicago graduate and professor. The other university that most shaped the Western voice, if you will, was probably Stanford. Wallace Stegner, etc.) He returned to Idaho and wrote a series of novels, some of them extremely odd, but some of them pretty good.

There is a family connection for me. My favorite aunt, nee Camelia Coughlin, married a wealthy rancher in eastern Idaho, which was Vardis Fisher country. Lonely and bored with ranch life, Mugga, as we called her, became a drinking buddy of Fisher's. There were allegedly pretty tight, though I have no reason to suspect they were lovers. This was in the 1950's, and things were different then. For one thing, eveybody drank a lot more. Mugga died of throat cancer when I was about 12; she smoked like chimney and drank, well, a lot. She used to come and rescue me from fifth grade detention under the tyranny of Sister Ambrosia, a nun who had serious issues arising from the fact that she was a psychotic, evil bitch. Mugga would tell the most outrageous lies to get me out of detention, often revolving around my needing to go to the doctor for various alarming but fictional ailments. Having divorced one rancher, she married another, the widower of her older sister, Florence, who had died of cancer. Mugga's husband, Sandy, was a small, flinty Scotsman who was Old Army, as in cavalry. He served with Patton in World War II. The ash trays in his house were old spent tank rounds. In the interwar years, the Army was all about horses, or at least Patton was. Florence, who like her sister (and my mother of course) was a beauty, was allowed to ride the General's horses at Fort Benning (I think Benning-- somewhere in Georgia), I suspect because the General didn't mind beautiful women riding his horses. Sandy Laidlaw was one of those small, hard Scots. His ancestors were among the first settlers of Idaho, running sheep as Scots will do, with summer pastures in the Sawtooths, for those of you who know your Idaho geography. My father describes flying with Sandy back before the government took the ranch for inheritance taxes. You would circle the dirt airstrip, passing the bottle around until everyone felt ready to attempt a landing, then you would tilt the Piper Cub forward and pray like hell. The whole clan was intensely religious.

Anyway, Vardis Fisher is good because he at least tries to capture some of the gritty reality of the 19th century West. Even so, he cleans it up considerably. According to legend, the real Johnson was vengeance crazed serial killer who, after his family was slaughtered by Native Americans, vowed war against the Crow, and over the years killed some 300 warriors, and, uh, there's no nice way to put this, ate their livers. Hence his nickname, "Liver Eatin' Johnson." No sense wasting good meat, I guess. Or maybe it was a spiritual thing. I don't recall Robert Redford eating any livers. Not very Sundancey, I guess. On the other hand, this webmaster says Johnson was really Johnston, who was really Garrison, gave up mountain manning, died in a VA hospital in Los Angeles in 1899, and probably did not eat any livers. Me, I bet he ate a few, but not 300.

Non-lethal weapons for cops
By Tom Smith

In the future, cops will bake suspects instead of shoot them.

Self defense for women and others
By Tom Smith

I hate stories like this. The 32 year old bride to be will probably turn up dead somewhere, and forensics will indicate she was raped and then killed by strangulation or blunt trauma.

Many of these tragedies could be avoided by application of basic self defense principles, which surprisingly few people know. Rule number one. Never, ever get into a vehicle or otherwise go to a place directed by a bad guy, even if the bad guy has a gun or a knife. The reason why the bad guy wants you in the car is that is a better place for him to kill you. The street or parking lot is exposed; the car is better for him. If he has a gun, run. Chances are he won't shoot, and if he does shoot, chances are he will miss. It is difficult to hit a moving target with a pistol. Only the movies make it look easy. Even if you are hit, your chances of survival are much better than if you get into a car. If he has a knife, run away. If he has a hold on you, struggle. It is better to get cut than to be strangled in a car. Your chances of survival are better. Never, ever get into a car with a bad guy. Same for going with the bad guy to some place he has picked out to rape and kill his victim. Run before you get to the isolated spot he has chosen. Don't wait for your chance, unless you know you are truely a cool customer, like say, a military veteran. It is much better to do something than nothing.

Some random, useful self-defense advice, in addition to just run, and never get in a car. If you are facing your attacker, one of the best all purpose moves is to hit him under the chin, thrusting upward, with the heel of your hand. Pretend you are trying to launch his head over a goalpost. If you can, when his head comes back down, try to get your fingers into his eyes. When you sense his reaction to that (it really, really hurts) break off your attack and run. A knee to the groin is good, but women tend to overestimate its effectiveness. Better than nothing, however. Also, unless you are trained, forget about fists. Punching with fists is overrated. It's very hard to do properly. Use the heel of your hand and the edge of your hands to direct blows at the attacker's face, throat and where the sides of the neck meet the shoulders. Eyes jabs, biting, and hair pulling is good. Swing your head around like a cannon ball and try to smash his face with the back or top of your head. Head butts can be very, very effective. Try to inflict as much damage in as little time as possible, then run. Bad guys rely on intimidating victims into not resisting, then overcoming resistance by inflicting pain. Most of them aren't really up for a fight. But they will kill you to cover their crimes. When did you last hear of an abduction, rape, and release?

Gernerally, for breaking holds around the throat or on some other part of you, focus on peeling back the smallest finger you can reach. Peel it back in break it off, like you are trying to dismember a lobster. Fingers break easily and it really hurts. It's not allowed in UFC to do this, for example. If you are down on the ground with someone on top of you, try to get your knees up between you, buck to throw off his punches, protect your face with your forearms, but look for chances to attack his face with eye gouges, scratches and palm heel strikes.

If an attacker grabs your arm or wrist, pull your arm out with a twisting motion, moving against the attacker's thumb. This is very effective. For a two hands on one arm grip, you can use your free hand to eye poke him, then grab the hand of your trapped arm with your free hand and use the strength of both arms to wrench free.

I'm talking about abduction-rape-murders by strangers. Philosophies differ about what to do if attacked by someone you know, as in a date rape situation. Strangers who abduct and rape, however, are usually organized and plan to kill their victims. You have to fight.

This is a good book on self defense written by some cops/black belts. This book is full of sensible advice on self-protection by a bodyguard to the stars fellow.

April 27, 2005
Death of a landlord
By Tom Smith

I heard recently that my former landlord, whom I'll call George, is sick, and like to die. I met George some twelve years ago, when I came to San Diego to look for a house after I had accepted an offer from my present place of employment. I did not know what to expect of San Diego; I only knew I had had enough and more of DC and wanted to live some place rural, but not too far from the city. I know how to read a map, so I got out a topo map of San Diego and thought this place called Jamul looked horsey and not too far from town. I arrived in San Diego and took a cab to a resort on Mission Bay, picked at random from a guide book. As I walked to my cabana, I was met by six almost naked men sporting six pack abs, carrying another large man in tropical princess drag upon a litter, he complete with coconut shell brazzaire. I wondered what I was getting into with this San Diego thing.

Looking for a house to rent was discouraging. DC has lots of nice houses and condos to rent, it being a city of transients. I could find nothing where I was looking, till I responded to an ad placed by George. He owned five or six nice homes in the exurban development where we eventually bought a house and now live. I accepted the house he had to rent on the spot. It was right next to his tract mansion, where he had his swimming pool, volleyball court, tennis court, Rolls Royce, dilapidated RV, ancient Ford Mustang and about a dozen mongrel dogs. George spoke with an Okie twang and tended to walk around in gym shorts and nothing else, showing his hairy pot belly to the world. He fancied himself an athlete and a sport, and his property was often dotted with athletic young people, especially young women, playing volleyball and lounging about his pool. George was adamantly against drinking, smoking and drugs, but as to that other major vice, I got the feeling he was just fine.

George had made a small fortune in the rough world of promoting rock bands, nobody I had ever heard of. I don't think he could have cared less about music. He was a ruthless businessman through and through. Being a nosy sort, I did an asset search on him once, and found he owned a bunch of apartment buildings in South Pasadena, so I suppose the sorborquet slum lord would not be inappropriate. I have to admit I liked the guy; I suppose there is something about flinty SOB's that appeals to me, as long as they aren't my enemies. He was not a good landlord. Tight as the bark on a tree, he would not spend a dime to fix anything, and always found the cheapest way to do everything. Rather than put in a sprinkler system, he would hire Mexican day laborers to carry buckets of water to his plantings. He finally decided even that was too expensive and just let everything die. When I complained of rats in our garage, he said rats weren't so bad. He had rats in his garage too. In fact, whole families of rats had set up in the walls of his Rolls, the heavy insulation of which is apparently perfect for raising rat families. He said he had to banish his dogs from his garage because they were tearing apart his Rolls trying to get at the rats. I finally got him to do something about the rats when they ate through our phone line and ate the airbag in my car. He did us a favor by declining to fix a leak in the slab below the kitchen. When we wearied of walking through the puddles in the kitchen, we finally overcame our inertia and bought a house, just a couple of doors (but several acres) down, which we did before the steady rise in house prices in San Diego over the last six or seven years. We would have been sorry had we waited longer.

Over the years George's tenants have brought some excitment to the neighborhood. One was a surgeon whose troubled son held another couple in the neighborhood at gunpoint when they interrupted him in the course of a burglary. The couple managed to escape, and the sheriff responded by searching the area by helicopter. The Jamul Kid and his accomplice hid out for a while in the abandoned mine behind our rented house, which absolutely figured. I called the sheriff and carefully explained I did not know where the fugitive was presently, but that his father had been looking for him at the mine. Three black and whites responded urgently and were bitterly disappointed when they realized I was just telling them where the Kid had been, not where he was, and upon seeing that getting to the mine required walking about a hundred yards uphill. So they left and the detectives came, who looked just like what you would expect. They did not seem to mind walking uphill to the mine, which they did, confirming that someone had been holed up in there. The wild west lived on. The rumor went around the neighborhood that there had been a drug raid at George's new tenant's house, and our already marginal status in the neighborhood sank still lower.

George eventually left the State and moved to the Philipinnes, a place where I gathered he could more easily indulge his favorite hobbies. He gradually sold off his houses, which is all for the best as far as my property values are concerned. Before he sold off his big house, his tenants were the subject of an impressive raid by the DEA, complete with SWAT vans, as part of that big nation-wide crack down a while back on the sale of date rape drugs over the internet. It had some pretentious name like Operation Hammer of Justice. When I saw the SWAT van on George's property, and the half dozen or so officers in full combat gear surrounding the house, not to mention the dozen or so uni's, part of me thought that it just absolutely figured. Aliens could land in my neighborhood, and it would not surprize me. At least I no longer lived right next door to the weird karma sink that was George's house. Good citizen that I am, I walked down my driveway and told the DEA agents all I knew about the house, and to ask them how they liked their Glocks. Most law enforcement people hate avid cooperators like me, but one DEA agent seemed happy to chat with me. He sussed me out as someone who would be more that happy to narc out a meth lab if I came across one in my wanderings, and he is quite right about that. He tried to warn me as I blathered on that one of the residents of the house was within earshot, a non-felonious looking woman walking her dog, but I am not that easy to shut up, and besides, I didn't care. A couple weeks later as I was walking my dogs on the mountain behind the house that was raided, I heard a strange whistling/sucking noise as something whizzed past my ear, followed by a pop, and laughter from the good people on one of George's driveways. I inferred one of the narco-losers had taken a shot at me, probably with a .22. While my opinion of people who sell date rape drugs over the internet could hardly be lower, this incident made it sink lower still. Shooting at people in jest is the very worst sort of redneck, low life behavior. I suppose I should be grateful they had not set up a still. I thought about calling the DEA agent who had given me his card to tell him about it, but what good would that have done? I gathered from the laughter that it was more a drunken joke sort of shot, not even an earnest attempt to scare me. I am only too glad that that house has finally sold, however.

So now I have heard that George, who is a diabetic and took terrible care of himself, has a bad "flesh eating" infection in his leg and is likely to lose it, and quite possibly his life as well. He always said that when his health went he would just shoot himself, and I don't doubt it. I imagine the Philippines is no place to prosper after you lose a leg. It makes me sad, even though no one could say George was a nice guy. He was what he was, though, which is more than you can say for a lot of people. These days, you have to be a confirmed enemy for your death not to be regretted by me. Mortality seems to raise its ugly head everywhere. No one seems too rich or mean to die. I feel sorry for the poor rich bastard who dies without ever having had the joys of family, though I guess he traded that in for volleyball playing blondes. None of whom are going to hold his hand while he slides toward death a long way from the scrubby mountains of Jamul.

Jonestown Ideals
By Maimon Schwarzschild

The Berkeley Repertory Theatre is staging a play about Jim Jones' "People's Temple" in San Francisco, and about Jonestown in Guyana, where more than 900 people died in 1978. The play is evidently sympathetic to the leftish climate in which Jones operated, if not to Jones himself. (The play's website offers queasy New Age language about how the show "emphasizes moving forward rather than looking back", with a "quest" to "find healing"...)

Last week the New York Times arts section ran a story on the production, headlined "Beyond Kool-Aid: Looking at Jonestown and Its Ideals".

Jones's radical rhetoric won him approval from prominent Democrats in the 1970s, including Rosalynn Carter, Jerry Brown, and then-Congressman Willie Brown. None seemed to notice that Jones, even then, was (a) crudely exploitative of the mostly poor people whom he recruited into his cult-like "church", and that he was (b) crazy. Jones' flock died horrible deaths in Guyana, but Jones' political patrons lived on comfortably, not in Guyana. The chic politicians in question never expressed any serious remorse, and presumably felt none. The Berkeley Repertory Theatre might do well to explore the radical chic that helped make Jones and the Guyana massacre possible. It's a very safe bet that this play will not do so. There has been little enough liberal introspection or remorse about the decades of "progressive" fellow-travelling with Communist regimes that massacred tens of millions. Think of Jonestown as the same sort of thing, in miniature.

UPDATE: Willie Brown was of course a California State Assemblyman in the 1970s, never a US Congressman. (Hat tip to Peter Connolly of Washington, DC.) Brown was one of many liberal Bay Area politicians to whom Jones provided busloads of his members whenever volunteers were wanted. As the New York Times noted last week,
When Willie Brown Jr, a former Mayor of San Francisco who was a powerful state legislator at the time, introduced Jones at an event, he called him a combination of Martin Luther King Jr, Angela Davis, Albert Einstein, and Chairman Mao.
Brown's references to Angela Davis, a grim Communist Party stalwart, and to Chairman Mao, were evidently intended as praise. (The Times now demands a fee for the full text of this story online, unfortunately.)

As for Rosalynn Carter, Jones brought a bus of supporters to an event at which she appeared, and was rewarded with a private telephone conversation with her. A Guyanese cabinet minister at the time of the massacre, Kit Nascimento, said that one reason the Guyanese government had approved the establishment of the Jonestown settlement was that Jones had submitted letters of reference, including one signed by Rosalynn Carter, that "complimented Jones and his followers for their activities in California".

Back to the Swamp from Whence She (Partly) Came
By Gail Heriot

I was in South Carolina back in February doing a little research for a book I have planned. While there I thought I should do a little ancestor hunting. My paternal grandfather was from the South Carolina Low Country, but since he died in about 1917 just after my father’s birth, no one in my immediate family knew a great deal about the Heriots. What little I knew came mostly from the internet.

Sandy Island ... I knew that was important. My great, great grandfather, Dr. Edward Thomas Heriot, had lived there prior to the Civil War on a plantation he called Mount Arena. The island is about five by three miles and located at the confluence of the Waccamaw and Pee Dee Rivers; it is the largest alluvial island in the East. Mount Arena, if there is anything left of it (and I doubt there is), would be towards the south end of the island. All I had to do was find it with the pathetically inadequate road map they’d given me at the car rental agency.

Luck appeared to be with me. Shortly after landing in South Carolina in the early morning, I was driving south on US 17, and I noticed a road marked “Sandy Island Road.” I figured I’d be standing on land once trodden by my great, great grandfather in no time. Hunting ancestors was turning out to be easy.

Alas, it was too easy. Sandy Island Road dead ends at the Waccamaw. There is no bridge, just a tiny dock. Sandy Island was so close I could have thrown a rock at it. But the eastern half of the island is a cypress swamp. Hundreds of partly-submerged mist-enshrouded bald cypress trees stood guard with their enormous lower trunks and roots like buttresses. Spanish moss. A great blue heron. Egrets. And if I’m not mistaken the smaller birds I saw were least bitterns. (I’m pretty good at identifying swamp birds; I hadn’t realized until that moment that it might be a Lamarckian genetic trait ....). It was an eerie but beautiful scene.

A few minutes after I arrived, a group of hunters with their Labrador Retrievers drove down the road. I asked them if I was indeed looking at Sandy Island and whether there was a bridge leading to it anywhere. They said it was, but that the only way to get there is by boat. According to these gentlemen, the island is mainly a nature preserve today, but there is a settlement on the island of about a hundred people. The residents are the descendants of slaves from the island and speak in the traditional Gullah dialect. A school boat picks up the children every weekday and takes them to a school on the mainland. Otherwise their contact with the mainland is somewhat limited.

The hunters were off in search of wild boar, which they said are common along the Waccamaw. They thought they might see alligator as well, but that was not what they were after. They offered to take me to the island, but they said it would be quite some time before they could bring me back. I was actually tempted, but I figured that, among other things, I wasn’t dressed for it. (The wrong shoes have prevented me from going on many an adventure. I am not sure whether on the whole this has been to my advantage or disadvantage.)

I didn’t make it to Sandy Island on that trip. I will go again in the winter. I want to be able to wear boots, since Sandy Island is home to both coral snakes and cottonmouths and I’m sure that wearing boots in the summer in the South Carolina Low Country is not pleasant. But I’ve learned a lot about Sandy Island since my first trip. It turns out that most of it is owned by the State of South Carolina and managed by the Nature Conservancy. And the folks at the Nature Conservancy have been kind enough to offer some advice and assistance.

One thing I’ve learned is that Mount Arena means “Mountain of Sand.” (The early Romans, from whom we get the word "arena" conducted their athletic competitions in sand pits.) But it is both a literal description of the island location and a metaphorical one. The rice plantations on Sandy Island were built on slavery, and they made their owners very, very wealthy. But eventually the foundation of sand gave way-- as sand is wont to do. No one is getting rich on Sandy Island anymore. And no one is a slave.

I can’t help thinking of it in contrast to the old farmhouse in Nobleboro, Maine where my mother was born (as well as her mother and probably her mother’s mother). Like everything in Maine, that house was built on rock–a huge shelf of granite that seems to stretch from one end of the state to the other. You could see it down in the cellar (or for that matter in the cow pasture). But again the foundation of rock is both literal and metaphorical. My mother’s ancestors were yeoman farmers there in Lincoln County going back to the early 18th century. They never got rich, but they never starved either, and they did the work themselves (with an occasional assist from a hired hand). Unlike Mount Arena, the house on East Neck still stands and has been continuously lived in since it was built. It's still solid almost two centuries later.

April 26, 2005
The Constitutional Option
By Mike Rappaport

Earlier in the week, I participated in a panel debate, hosted by the American Constitutional Society of Stanford Law School, on the nuclear or constitutional option. Other members of the panel included Judge Stephen Reinhardt, Jeff Berman (former Chief Counsel to Senator Schumer) and moderator, Professor Pam Karlan. I had a fun time going into the lions den.

I argued three main points: First, the constitutional option of changing the filibuster rule with a majority vote is constitutional. Second, it is extremely difficult to predict what the effects of a decision to use or to not use the constitutional option will be. Third, the ideal rule for confirming judges would be a supermajority rule for Supreme Court nominees, but only a majority rule for circuit and district court nominees. The supermajority rule for Supreme Court nominees, however, should only be adopted through a bipartisan agreement between the parties.

Here is an excerpt from the text of my talk about the possible effects of using or not using the constitutional option:

First, consider the effect of not using the constitutional option. Some people argue that the Republicans should not use it so that they can preserve the filibuster for use when they are in the minority. This argument might be right, but it also might be mistaken. After all, how do the Republicans know that if they refrain from using the constitutional option, the Democrats won't use it against Republican filibusters in the future?

Why would the Democrats use the constitutional option, when they now oppose it? One reason is that our current situation is the result of downward spiral of each side taking more extreme actions. First, the Democrats and Republicans refused to schedule hearings for the other party's nominees. Then, when the Democrats lost the Senate, they took the next step of filibustering. Now, the Republicans are considering yet a further step – the constitutional option. If the Democrats were willing to take the step of filibustering, isn't it possible that they would respond to a filibuster with the constitutional option?

One might think that the Democrats would be reluctant to use the constitutional option because they are now opposing it. But both parties switch positions on issues all the time. For example, the Democrats' present position is a change from the prior view of most Democrats (other than Southern ones) in favor of something like the constitutional option, which these Democrats endorsed and were prepared to use in 1975.

Now consider the effect of using the constitutional option. Some people argue that if the Republicans use the constitutional option, that will lead to divisiveness and a slow down in the Senate. Perhaps, but perhaps not. In the past, when something like the constitutional option was seriously threatened, the two sides worked out compromises that involved weakening the filibuster. That might happen this time, too.

Sowell on Race and Redneck Culture
By Mike Rappaport

The Wall Street Journal publishes a powerful article by Thomas Sowell, attempting to explain black and white differences based on culture. He argues that that blacks have maintained a redneck culture that has retarded the growth of all those, black and white, in America and in England, who have followed it.

Sowell concludes:

The redneck culture proved to be a major handicap for both whites and blacks who absorbed it. Today, the last remnants of that culture can still be found in the worst of the black ghettos, whether in the North or the South, for the ghettos of the North were settled by blacks from the South. The counterproductive and self-destructive culture of black rednecks in today's ghettos is regarded by many as the only "authentic" black culture--and, for that reason, something not to be tampered with. Their talk, their attitudes, and their behavior are regarded as sacrosanct.

The people who take this view may think of themselves as friends of blacks. But they are the kinds of friends who can do more harm than enemies.

April 25, 2005
Cool blog on western issues
By Tom Smith

We've been neglecting rodeo on this blog, but that will stop.

Coastal commission update
By Tom Smith

California. What a concept.

Commit your next serious crime in Idaho
By Tom Smith

Why does it always have to be Idaho? If you are a weirdo, please consider another state. Some of us are from there, after all.

David Brooks is fat
By Tom Smith

Fisking Brooks.

My guess is that that new study out in the JAMA would look different if it looked at body fat percentage instead of BMI. And I doubt it would find packing around extra fat does you any good at all.

That study has caused just an eensy beetsy bit of tension around my household. My lovely wife Jeanne has it in for fat. She is an endocrinologist. Spurning my suggestion that she put the umlaut (that little sideways colon thing over some o's and u's in German) back over the o in her name, pull her blonde hair back tightly, wear a tight, starched white doctor coat, and set up as a sex doctor to the rich and horny in Palm Springs (talk about a cash machine!), she ministers to a couple thousand ordinary San Diegans, and sees the ravages of fat every day. Even a mere 15 or twenty pounds of fat makes you more vulnerable to diabetes; LWJ has lots of patients like that. And many more a lot heavier than that. Not to mention coronary complications, etc. etc. She's going to get bad journalistic summaries of this study quoted to her hundreds of times, I predict. And she is not going to like it. She especially resents the spin some journalists are putting on it -- "doctors are selling us a bill of goods again."

Whatever the bloggers are saying, the study really doesn't say you're better off being a little chunky. It could be picking up on a lot of things. First, the lameness of BMI's. Also, as the study itself notes, on the aggressive care you get in this country for various maladies of overweightitude, such as a bad lipid profile, high blood pressure, and so on and on. It may be folks in the slightly overweight class are getting better care for problems people in the upper end of the "not overweight" class ought to be getting. Also, if you have to take drugs (like I do!) for not great lipids, that's hardly an endorsement for fat (as that doughboy Brooks suggests). If you could lose weight, and lose the Lipitor, that would be better, and cheaper.

Fat is very hard to measure, as any Fitness 24 employee can fail to tell you in ten minutes of astonishingly inarticulate babble. The only reliable measure involves putting you in a big vat and seeing how much water you displace, then weighing you and finding your density. (BTW if you notice the water starting to boil, or any dancing going on around the vat, get out immediately.) A surprisingly good measure is waist size. If yours is getting bigger, that's a bad sign. No, gaining muscle will not do that. And yes, it is unfair. Very.

My guess is the JAMA study is picking up on a lot of Americans who get some exercise, at work or for recreation, and are carrying around a bit of muscle that pushes them over into the technically overweight BMI classification, when in terms of fat percentage, they actually are not. (I, for example, am right on the border in terms of fat percentage between acceptable and overweight, at least according to my probably unreliable electronic scale. In terms of BMI, however, I am way into obese, which I ain't.) That would give you the modest longevity advantage the slightly overweight have in the JAMA study, especially given that the actually overweight are getting 40 mg or whatever of statins dropped into their greasy bloodstreams every day, so that in the modestly overweight category, they don't bring their team down very much. That is a far, far cry from saying, being 20 or 30 or 40 pounds overweight is not that big a deal. So put that Big Mac down, you disgusting tub 'o' lard. And pick up a nice glass of red wine instead.

April 24, 2005
But can they kill you with their bare hands?
By Tom Smith

New elite military unit.

God bless science and pass the potatos
By Tom Smith

Gary Becker speaks out.

April 23, 2005
Law students can achieve this state spontaneously
By Tom Smith

Seriously, quite an intriguing development.

Environmental Changes
By Mike Rappaport

Steven Hayward argues that the environment is improving and the environmental movement is declining.

Blogging reduces IQ, study shows
By Tom Smith

Well, not exactly, but it's the same idea . . .

April 22, 2005
Sixties Affirmative Action
By Gail Heriot

A friend of mine was wondering recently how universities got started giving racial preferences to middle and upper-middle class minority students (as most beneficiaries of race-based admissions policies are these days). Why had colleges and universities allowed affirmative action to drift away from what she regarded as its original purpose of benefiting the disadvantaged?

Here's one perspective on the sequence of events: After witnessing the 1960s era affirmative action programs that were supposedly designed to benefit only truly disadvantaged minority students, many people, including many conservatives, welcomed the expansion of the programs to include middle and upper-middle class minority students. They figured that at least it couldn't be any worse.

These very early affirmative action programs were ...uh... very 1960s. Many of them sought the recruitment not of blacks generally but of “authentic” blacks (by which university administrators evidently meant not just impoverished youths, but impoverished youths with impressive criminal records). Several universities made it a point to recruit students from urban street gangs.

Take Cornell. In the late 1960s, administrators were not interested in reaching out to black students generally; they wanted instead to concentrate on black students from the most disadvantaged circumstances. And they went further: They made it a practice to reject students from impoverished circumstances precisely because they had excellent academic credentials, perversely viewing such credentials as evidence of privilege. In justifying the rejection of a Black candidate whose parents were laundry workers, a Cornell report stated:

“... her cultural and educational background doesn’t indicate deprivation to the extent necessary for qualification as a disadvantaged ... student. In spite of the fact that both her parents are laundry workers, she has been adequately motivated by them to a point where she has achieved academic success and some degree of cultural sophistication.”

What did Cornell get by employing such a strategy? Not scholarly types, that’s for sure. According to one internal report, the attrition rate was “phenomenal.” “[A]bout half of all students in the program have received at least a warning for poor performance. Several students have received a “warning” and a “final warning” and a “post-final warning.’”

And they weren't exactly happy campers. In the end, what Cornell ended up with was eighty gun-toting members of Cornell’s Afro-American Society forcibly taking over and holding Straight Hall in April of 1969. No, not all of them were these "specially disadvantaged" affirmative action admittees. Some of the leaders were middle class. But it's safe to say that the bulk of the partcipants in the take-over were from the special program. Fortunately, no one was killed at Cornell (unlike UCLA where a gun battle between rival gangs of UCLA students left two dead at Campbell Hall).

All this got people thinking that they needed a Plan B. In Black Education: Myths and Tragedies, Thomas Sowell (who had the misfortune to be teaching at both UCLA and Cornell during the crazy years) argued that the problem with these affirmative action programs was that they had admitted the wrong black students. There were, he argued, black students out there who would do well at Cornell if they were only given the chance. All Cornell had to do is go out and look in the right places, not out in the street.

He was, of course, right. But most of these potentially competitive students were middle class. And there were fewer of them than anyone would like, so if a university wanted a large number of black students, it would have to relax its entrance standards. Unfortunately, after 1969, any kind of affirmative action program that didn't produce Cornell-like results seemed reasonable and moderate. Before long racial preferences for the black middle class became the accepted practice.

April 21, 2005
Finally, some good news for the fat
By Tom Smith

Big new study suggests being somewhat overweight is good for you. Oh baby. Now I can get this.

Civil Rights Marches & The March of Time
By Gail Heriot

I went downtown yesterday to hear my friend Alex Acosta, Assistant Attorney General for the Civil Rights Division, give a talk on the Division's work. It occurred to me as he was speaking that he is the first head of the Civil Rights Division to have been born after the passage of the Civil Rights Act of 1964 and the fall of Jim Crow. It gave me a good feeling. In some ways at least, the world really is improving.

April 20, 2005
Ancient law
By Tom Smith

This would have been a cool course to take in law school.

The pathetic UFC show
By Tom Smith

I got interested in the world of "mixed martial arts" in the following way. My 13 year old Luke has long been interested ("obsessed" might be more accurate) in things Japanese, especially samurai warriors and the like. Looking for a place we could study Japanese weapons together, we came across a Christian martial arts dojo with which we have been pretty happy. For various reasons, such as its not being more expensive, we decided to take the Jujitsu class as well as the Kobujitsu (weapons) class.

When you start to take Jujitsu, you quickly learn the recent history of Brazilian Jujitsu (which they spell Jiu-Jitsu for purely idiosyncratic, historical reasons) in the US. Briefly, in 1993 a member of the famous Gracie grappling clan of Brazil helped organize a fighting tournament dubbed the Ultimate Fighting Championship, in which masters of various sorts of martial arts could face each other, and so empirically test which arts were most effective under fairly realistic conditions. Surprisingly, the Brazilian Jujitsu (or 'BJJ') practitioners dominated the fighting. This was because they could take strikers (people who punch and kick) to the ground, and there put them in various submission or finishing locks or chokes, forcing their opponents to "tap out," or concede defeat. Ground fighting is a world of its own, with its own skills, essentially a type of combat wrestling, with much less in the way of rules than NCAA or Olympic freestyle wrestling, though with many of the same physical skills involved.

In the following ten years, mixed martial art fighters trained in ground fighting, mostly BJJ, so that they could fight on the ground. Different types of fighters would have different strengths, but everyone had to have at least rudimentary ground fighting skills, if they wanted to survive. This book includes an excellent account of the history.

UFC evolved into a major commercial enterprize, which is where I take up the story. A week or so ago, the UFC finished its first season of a reality show in which young fighters from across the country were recruited, trained in Las Vegas, and then pitted against each other to see who would win professional fighting contracts. I, along with no doubt many others, watched the final fights on the Spike TV channel, and it is clear something has gone very wrong with the UFC.

The fights were bloody spectacles, but pathetic as displays of fighting skills. Very little in the way of grappling was in evidence. The fights looked like exactly what they were: Golden gloves level fighters, that is, decent amateurs, no more, put in the ring with only minimally padded grappling gloves on, who proceeded to spend three rounds pounding each others' faces into bloody pulp. It was just low level boxing without gloves. Of course there were lots of cuts and blood, and probably some serious brain injury besides. It was a disgrace.

I have nothing but admiration for boxers. If I want to watch boxing, however, I will watch professional contenders wearing gloves. The gloves not only protect against head injury (which occurs anyway) but makes possible a certain style of fighting, with repeated blows to the head.

What UFC rules now do is encourage striking over grappling, while still allowing the striking to result in lots of cuts and no doubt other injuries, mainly, I do not doubt, to produce the spectacular gore audiences want. This may be martial, but it's not very mixed and it's certainly not art.

"Reforming" UFC could involve going back to more "old school" rules. Grappling gloves paradoxically make the sport more dangerous, bloody and boring. Gloveless fighters cannot direct repeated blows at opponents' heads without breaking their hands. This forces the fight to go to a grappling mode, or at least limits blows to a few well chosen strikes. Alternatively, or in addition, the match should not be organized into several short rounds. This was another innovation made to accommodate strikers. The result is more spectacle, but less skill.

I realize it is naive to expect integrity out of a fight promotion business. Other aspects of the UFC show are frankly fraudulent. In the big event of the night, contender Rich Franklin TKO'ed legendary fighter Ken Shamrock of San Diego, but, and here's the part left out in their account, it happened because Shamrock slipped and fell down, at which point Franklin jumped on him and pummeled him. It was embarassing. It was the second time Shamrock slipped and fell in attempting to deliver high kicks. Whether this happened because the deck was still wet from wiping up the blood and sweat, or because Shamrock's knees are not as fully healed as advertized, I don't know.

The UFC says it wants respect from the mainstream media. If so, they should find a set of rules that will emphasize fighting skills across the different phases of combat instead of just amateur boxers with hardly any gloves and expendable brains and faces.

PROOF that UFC fans can engage in civilized dialogue. Schmidtty may well be right. I probably would like champion professional UFC bouts more, and I have never watched all of one through, mainly because of difficulty finding the right Pay Per View channel on Cox Cable. (Boy, if you are too dumb to figure out how to watch UFC, that is a bad sign.) I understand a lot of UFC fans just buy the DVD's so maybe that's what I'll do. However, I still think the Ultimate Fighter reality show does not bode well for the direction of the UFC, and that the organization ought to develop some norms about realism over spectacle. I also wonder if the current champions aren't strong grapplers partly because they came up in style that used to be more pro grappling than it is now. All I am saying is that if it evolves in the direction of striking without gloves, it is going to be "bad for the game."

By Tom Smith

Exercise is good for you, but is there too much of a good thing? Apparently so. The well-known (but not new) Harvard alumni study, which looked at some 17,000 graduates of Harvard, looked at the relationship of exercise and longevity. (But strangely not head size.) It turns out that even a little exercise is very good for you, so much so that as a rule of thumb, each hour spent exercising adds two to your life. But like most things, there are decreasing returns to scale, and after that even negative returns to scale. Above 3000 - 4000 calories per week, the returns start to be negative.

4000 calories is a lot, but not that much. You might reach that by running 40 miles a week. My own, my Step Mill tells me I expend more than 800 calories climbing somewhat more than 2000 feet (an hour of not slow climbing and very much feeling like a workout). Applying my lawyerly math skills tells me 5 such workouts in a week would put me above 4000 calories. I have had such weeks, but not in a couple of years. You have to log many such weeks I presume before your life expectancy goes down. Maximum benefit seems to be perhaps 2000 calories per week, though what I have read is not clear on that. 2000 cal/week is a wholesome 20 miles per week of running or its equivalent. More than I manage to do regularly, but not that much.

Yes, for some reason I am having a hard time today getting off my butt and onto the bike or into the gym.

Towards a History of Liberation Theology and the Papacy in Latin America: A Play in One Act
By Tom Smith

Liberation Theologian: Jesus wants us to be communists!
Church: No he doesn't.
LT: Yes he does!
Church: No he doesn't.
LT: Yes he does!
Church: Look, if you don't stop saying that, we're going to have to fire you. We've got responsibilities around here.
LT: Jesus wants us to be communists!
Church: No, he doesn't.
LT: Yes he does!
Church: OK, fine. You're fired.
LT: Waaaaaaahhhhhhhhhhhh!

A Bolton non-story
By Tom Smith

Just to warn you, this is a boring non-story. I became an associate at Covington & Burling, shortly after John Bolton, who had been a young partner there, left to join the State Department (I think it was State). As associates do, we were always gossiping about partners (including former partners now in government), their love affairs, their cruelties, their wealth . . . Bolton's name came up several times, but only to the effect that he was smart and a conservative. There were lots of bully stories going around, but not about him. C&B was not a comfortable place to be a conservative. There were plenty of people there who would have held it against Bolton that he was one. And yet, I never heard a peep about his being a bully, let alone a serial bully. It doesn't mean he wasn't obviously, it being difficult to prove a negative. But given the appetite for anything disparaging about our masters, it would be odd if he were, and I never heard about it. In fairness I should also say I didn't hear any legends either about what a genius or a saint he was, as one did about some other former C&B lawyers, such as now federal appeals judge Michael Boudin (genius).

Works for me
By Tom Smith

A pope who likes Acton, Madison and de Tocqueville. Works for me.

One of Cardinal Ratzinger's central, and most misunderstood, notions is his conception of liberty, and he is very jealous in thinking deeply about it, pointing often to Tocqueville. He is a strong foe of socialism, statism and authoritarianism, but he also worries that democracy, despite its great promise, is exceedingly vulnerable to the tyranny of the majority, to "the new soft despotism" of the all-mothering state, and to the common belief that liberty means doing whatever you please. Following Lord Acton and James Madison, Cardinal Ratzinger has written of the need of humans to practice self-government over their passions in private life.

Also interesting.

This just about sums it up.

Pretty good summary of the tedious left view.

John Bolton and the Story of O
By Maimon Schwarzschild

Mark Steyn is grimly funny about the latest pretext for opposing John Bolton as US representative to the UN: he once put his hands on his hips when talking to a bureaucrat he was displeased with:
As for the job Bolton's up for, what would make Barbara Boxer and Joe Biden put their hands on hips? Child sex rings run from U.N. peacekeeping operations? Sudan sitting on the Human Rights Commission while it licenses mass murder in Darfur? Kofi Annan's son doing a $30,000-a-year job but somehow having a spare quarter-million dollars to invest in a Swiss soccer club? There are tides in the affairs of men when someone has to put his hands on his hips... And, if the present depraved state of the U.N. isn't one of them, nothing is. Unlike most of the multilateral blatherers, John Bolton is hip to that.
But we law professors are more prone to worry than to laugh. In a Los Angeles Times op-ed (registration required) Eric Posner and John Yoo (law professors both, and exceptionally good ones)worry that Bolton might be co-opted by the UN and its cheerleaders:
'[I]n hearings last week, Bolton pledged to "forge a stronger relationship between the United States and the United Nations" and to take "important steps to restore confidence" in the international body.

This kinder, gentler Bolton is exactly what the UN does not need. If the UN is going to stop being a major impediment to multilateral cooperation and international law, it needs the radical skepticism of the old Bolton, the kind of skepticism that will remake it from the top down.
How so?
In the past, the US accomplished its foreign policy goals by working around the UN, not through it. Washington's successful anti-Soviet containment policy, implemented with allies as diverse as France, Germany, Turkey and Japan, proceeded independently of the UN. US-led efforts to stop British and French seizure of the Suez Canal and to end the Israeli-Arab wars occurred with little help from the UN. NATO's intervention during the wars in the former Yugoslavia was, in large part, a violation of the UN Charter.

More recently, efforts to contain North Korea, to limit conflict between India and Pakistan, to keep the peace between Taiwan and China and to remove Saddam Hussein have owed little or nothing to the UN.

Historically, then, the UN has been mostly irrelevant. [But the UN actually] undermines the advance of international law. Its charter outlaws war except in self-defense or with the authorization of the Security Council — a quixotic, unenforceable rule. There have been dozens of wars since 1945 and the UN's birth. Pretending that nations will not engage in war, and that the UN can be the world's policeman, guaranteeing the safety of all, only breeds cynicism. It works against using international law realistically to prevent humanitarian disasters, eliminate threats to regional peace, and stop state supporters of terrorism.
Actually, Bolton is as clear-thinking, and as plainspoken, a representative as we are likely to get to the UN organisation. Hence the shrill opposition to him from the usual quarters. The more immediate concern is that the (now equally usual) campaign of character assassination against Bolton will succeed, not that it will fail and that he will succumb to the diminishing charms of the Kofi-ocracy.

Europeans, by the way, always used to refer to the UN as the UNO (for UN Organisation) -- which I certainly prefer. The connotations of calling it (just) an "organisation" are much less presumptuous than the quasi-world-government nimbus of calling it the "UN" without the "O"...

April 19, 2005
The wailing and gnashing of teeth begin
By Tom Smith

That didn't take long. I predicted if Ratzinger was elected pope, great would be the wailing and gnashing, but I am surprized at how quickly and how loudly the wailing and gnashing has come. Here is the hysterical Andrew Sullivan. Here's a roundup with lots of interesting stuff.

Steve Bainbridge responds to Sullivan, pretty persuasively if you ask me. Personally, I think Andrew has some ego issues. He reminds me of that sort of man who cheats on his wife, and wants to tell her about it so she can forgive him. He just wants to have it all. The thing is, Catholic doctrine is really quite clear that engaging in homosexual activity is wrong, a sin, bad-and-you-shouldn't-do-it. Most people who were commited homosexuals would just say, well, I guess I'm not going to be a Catholic then, or say, I'm going to be a Catholic as best I can, but I'm going to dissent from that. Just as the majority of Catholics in Ireland, for Pete's sake, use birth control. But not Andrew. He insists that the whole institution just reverse course to accomodate him, and that it is a historical catastophe if it does not. Everyone has to agree that Andrew Sullivan is not doing wrong, or else they are not allowed to have a church, or at least not a big one with lots of cool outfits, music, and history. Andrew should start his own church and declare himself Pope Andrew I, that way he could pontificate in the style he aspires to. In fact, from now on I think I will refer to him as Pope Andrew I. He could do that decadent Borgia pope thing pretty well, I bet. Sex for everyone and not a sin in sight! Hard to beat that. Hey I know! He could sell indulgences via PayPal at his website. That way all of us could be free of sin and his website would be even more remunerative. Seriously, somebody should tell Andrew it's a religion. It's not supposed to make his life easier. Well, anyway, God may not be done with Andrew, but I am.

Even Daily Kos, no font of moderation, seems taken aback at the cries of Nazi! to Ratzinger's election. (Ratzinger became a member of the Hitler Youth in 1941 at the age of 14 , after membership became compulsory, and between the ages of 14 and 18 was one of Germany's boy soldiers, manning (boying?) an AA gun outside a BMW factory until he deserted in 1944. He says he never actually fired his gun.) Kos should consider that when your allies start to embarass you, you might be in a bad place.

Catholic-haters should take note. It is now officially open season on Catholics for a while. So, if you're ABC, you can make fun of cardinal's outfits. If you're not a Catholic hater, this is your chance to let the "liberals" disenchant you of any remaining illusions you may have that they deserve the name. When my mom was growing up in Boise, Idaho in the 1930's, the Klan used to burn crosses on the front lawns of Catholics (very few blacks and Jews to pick on in Boise, I guess). It hasn't been that long. It's just good ol' fashioned Catholic hating. A long, proud tradition in this land of ours. Nothing to get upset about.

Curt Jester is, uh, pretty stoked.

Here's the text of the unbeliveably radical, right wing, reactionary and just generally awful talk Cardinal Ratzinger gave before the conclave. Be sure to sit down or your head might explode with the Christianity of it all. Just shocking. I mean, did they have to pick a pope who is so, so, religious?

Here is a hate pimple about to pop.

This is better. And this.

Interesting 1999 review of Ratzinger's career. Critical, but ends up making me like him more.


Big roundup.

For the Time Being
By Tom Smith

Actually, by W. H. Auden. The election of the new pope made me think of this (excerpt of a) poem for some reason, about the time after Christmas, but really about much more . . .

Well, so that is that.  Now we must dismantle the tree,
Putting the decorations back into their cardboard boxes --
Some have got broken -- and carrying them up to the attic.
The holly and the mistletoe must be taken down and burnt,
And the children got ready for school. There are enough
Left-overs to do, warmed-up, for the rest of the week --
Not that we have much appetite, having drunk such a lot,
Stayed up so late, attempted -- quite unsuccessfully --
To love all of our relatives, and in general
Grossly overestimated our powers. Once again
As in previous years we have seen the actual Vision and failed
To do more than entertain it as an agreeable
Possibility, once again we have sent Him away,
Begging though to remain His disobedient servant,
The promising child who cannot keep His word for long.
The Christmas Feast is already a fading memory,
And already the mind begins to be vaguely aware
Of an unpleasant whiff of apprehension at the thought
Of Lent and Good Friday which cannot, after all, now
Be very far off. But, for the time being, here we all are,
Back in the moderate Aristotelian city
Of darning and the Eight-Fifteen, where Euclid's geometry
And Newton's mechanics would account for our experience,
And the kitchen table exists because I scrub it.
It seems to have shrunk during the holidays. The streets
Are much narrower than we remembered; we had forgotten
The office was as depressing as this. To those who have seen
The Child, however dimly, however incredulously,
The Time Being is, in a sense, the most trying time of all.
For the innocent children who whispered so excitedly
Outside the locked door where they knew the presents to be
Grew up when it opened. Now, recollecting that moment
We can repress the joy, but the guilt remains conscious;
Remembering the stable where for once in our lives
Everything became a You and nothing was an It.
And craving the sensation but ignoring the cause,
We look round for something, no matter what, to inhibit
Our self-reflection, and the obvious thing for that purpose
Would be some great suffering. So, once we have met the Son,
We are tempted ever after to pray to the Father;
"Lead us into temptation and evil for our sake."
They will come, all right, don't worry; probably in a form
That we do not expect, and certainly with a force
More dreadful than we can imagine. In the meantime
There are bills to be paid, machines to keep in repair,
Irregular verbs to learn, the Time Being to redeem
From insignificance. The happy morning is over,
The night of agony still to come; the time is noon:
When the Spirit must practice his scales of rejoicing
Without even a hostile audience, and the Soul endure
A silence that is neither for nor against her faith
That God's Will will be done, That, in spite of her prayers,
God will cheat no one, not even the world of its triumph.

Pope Benedict XVI
By Tom Smith

So it is Ratzinger. That is very interesting. Expect to hear much bloviating in the American and British press about "missed opportunities" from reporters and commentators who don't know when to stand up and when to kneel, and don't know many Catholics, but got drunk with one once. Well, everyone is entitled to their opinion. But only cardinals get to vote.

Why Benedict I wonder? Benedict XV established the Code of Canon Law in 1917, but also relaxed discipline against liberal and modernist theologians thought to have been taken too far by his predecessor. Is the new pope's name a signal that discipline of dissenting voices will not go any or much further? Sort of "Don't worry!"? Benedict XV also had a special concern for the Eastern Churches. Is this a reaching out to the East? But B XV is not considered one of the "great popes." Also he was an Italian aristocrat, and not a particular scholar, while Ratzinger is from modest background and has written many books.

Or is it this Benedict after whom Cardinal Ratzinger names himself? More likely, I think. Benedict XIV was a saint, and a highly cultured, scholarly and intellectual man, as is Ratzinger. Perhaps the most cultured and intellectual pope in the last few centuries, other than JP II. Also, Benedict XIV took office at a time (mid18th century) when Europe was turning against the Church and worked on the role of the Church in the modern world, also a concern of Ratzinger's.

Not choosing John Paul III, and instead choosing Benedict (I'm betting XIV is the patron) suggests the new Pope Benedict does not see himself as a merely transitional figure, 78 years old or not. It signals ambition. Not a John Paul, or a Paul, a John, or a Pius. But a Benedict. Already, he has the press and critics off balance. A good thing in a pope, to be smarter than the average reporter and op-ed writer. A minimal standard to be sure, but helpful nonetheless.

Ratzinger is no shrinking violet. This will be interesting. Read some of his stuff. It has the lucidity of the way smart.

The wisdom of the choice? Far be it from me to second guess the Holy Spirit. But personally, I don't see that the Church has much to gain by departing from orthodoxy to welcome new breezes and all that. It's a formula mainline Protestant churches have tried, resulting in endless controversy and embarassment, not to mention precipitous decline. Ratzinger has referred to the "dictatorship of relativism." Now that's an apt phrase. And it's a dictator that's never satisfied anyway. So if you were holding your breath for an encyclical "Killing Babies: Just Another Value Judgment," you can stop now. My deep cultural insight suggests anyway that we are past the "We must be free, free, free to be you and me!" stage and well into the "uh, so, who exactly are you and me?" stage. If Roman Catholicism has anything to say to that question, it is not by being Unitarianism in fancy dress.

And I'm telling you, read Salt of the Earth. This is an interesting, very intelligent man who has thought deeply about such topics as post-Christian culture and other stuff intellectualoids somehow think the Church doesn't ponder. Here's a quotation:

"The danger of a dictatorship of opinion is growing, and anyone who doesn't share the prevailing opinion is excluded, so that even good people no longer dare to stand by such nonconformists [i.e. Christians]. Any future anti-Christian dictatorship would probably be much more subtle than anything we have known until now. It will appear to be friendly to religion, but on the condition that its own models of behavior and thinking not be called into question."

Sound familiar? If you have spent any time around American universities, it sure as hell does.

IT LOOKS it was B15 not 14 that B16 in naming itself after. On the other hand . . .

Oklaholma City remembered
By Tom Smith

Here, and you can follow the links.

Early universe may have been blob-like
By Tom Smith

The liquid universe and so on.

Oh Canada update
By Tom Smith

Conservative Canadian David Frum.

I still think I would like Canada. Like Alaska without so much vice.

April 18, 2005
Embrace your inner nerd
By Tom Smith

I say again, New Scientist is the place to get all your latest cool science and tech news. Here's their nanotech link.

Surf news
By Tom Smith

What are you supposed to do, stop surfing?

I have not given up on surfing. I'm going to try again this summer. Unfortunately, it seems to be one of those sports that require skill or at least some talent. Always a bad thing in a sport, in my book. On the up side, it's pretty pleasant even if you're not doing well. More like fishing than golf in that respect.

The boys and I watched Riding Giants on Friday night. Even if you are not partial to surfing movies, this is pretty fascinating stuff. Laird Hamilton comes across as a guy deeply impressed by the ocean and giant waves, while Greg Noll comes across as someone deeply impressed by himself. I'm glad Hamilton is the more accomplished surfer, though of course Noll was a true great and pioneer. I just wouldn't want to sit next to him on a long plane ride. Hamilton comes across as one of nature's blessed, doing something incredibly fun and for him, remunerative as well. Of course, he could be killed any day by a giant wave, so everything has tradeoffs. I am going offer surfing lessons to the kids this summer, and see if I get any takers. I'm not going to go the camp route. It is important to preserve the illusion that one is doing well.

If you can suffer, you can cycle, or, Don't get hit by a truck
By Tom Smith

I have decided to take up cycling. This is a rational decision on my part. I was not moved by any overwhelming passion to join the lycra clad bodies I see on the roads by my house. I just figured, it must be very good exercise; it gives me the opportunity to spend lots of money on equipment; if I have to interact with another stone dumb employee at Fitness 24 I might go insane; and I can do it right outside my door, as I live right on a very popular cycling circuit in San Diego County (called the "Great Western"). Also, I should note that when I was in Peru, climbing the blah blah blah, I noted that quite a few climbers were also cyclists. Climbing and cycling have an affinity. They both involve pointless goings uphill in a way that produces much suffering, and yet gives participants an intense feeling of superiority to those who do not indulge in the pursuit. Relatedly, there are lots of opportunities for posing, only cycling is better in this respect, as there aren't many Starbucks above 9000 feet. Also, like alpine climbing, it really does not involve nearly as much skill as what is politely called "endurance." On the downside, I don't think anyone has ever suffered numbness in the male parts from climbing.

So far, I must say I really like it. It is actually kind of fun, compared to say the Step Mill, and in addition, you don't have to listen to any stupid cell phone conversations, or be ignored by the haughty, beautiful thirty something women having them.

I may be able to dispel certain misconceptions you may have. You may think you are too fat to cycle. Not so. I am a good 30 pounds overweight, and I think I zip around quite handily. I have seen people out cycling who for all the world most resemble lycra coated weather baloons perched atop tiny little bikes. Yet, they move. Fact is, they have a lot of courage. At the local cycling Starbucks, I saw this guy with some sort of severe spinal affliction, beaming with accomplishment from having completed, I presume, the Great Western, or some part thereof. That was the day I decided to stop putting it off and buy a bike. If that guy, who couldn't even stand up straight, could do it, so could I. Of course, may be cycling had caused his affliction, but that is another story. My goal is to do the Great Western. It is about 40 miles and has about 3000 feet of climbing, I have heard.

By far the scariest thing about cycling is the trucks, meaning cars and trucks, but mostly what I delicately refer to as Redneck Peckerwoods in Pickups, Who Hate You and Hate Life. I have only been out a half dozen times on my new bike, and already I have had probably four incidents where drivers obviously cut closer to me than they had to, just to be assholes. In one case, a pickup pulled up behind me on an otherwise empty two lane road, where he could easily have passed me, and laid on his horn, deliberately trying to startle me. I would have given him the finger, but he was the one with the 2 ton killing machine and long, greasy hair. I tell myself to think about it as a Christian, and remind myself that he is the guy who pumps out septic tanks, disposes of cattle offal, or whatever, for a living, while I am the academic on an expensive carbon fiber and titanium racing bike, and so really, I should pity him, unless he actually does kill me.

Here's a picture of my precious. I know it's more bike than I need or deserve, but you have your mid life crisis only once. I bought it at the Trek store in La Mesa, and while they don't seem to have a concept of "I'm in a hurry," I feel they did right by me. I bought the 2004 model at a deep discount; they were sold out of lesser models in my size, which is why I bought a bike so much above my cycling merits. However, the exchanges with my sales person went mostly like this:
Me: What do you ride?
Him: Well, I used to ride a [super duper expensive bike], then I was hit by a truck.
Me: Can you get up the hills [where I live] without a triple crank?
Him: Oh, yes. But I'm a professional cyclist, or I was, before I was hit by a truck.
Me: Where do you like to ride?
Him: Well, I used to ride out in the blah blah blah, but then I was . . .
Me: Hit by a . . .
Him: Truck, yes.

So watch out for those trucks.

April 17, 2005
Pope time
By Tom Smith

The cardinals are off to conclave tomorrow, which is Catholic for pick a new pope.

The liberals' least favorite candidate is probably Joseph Cardinal Ratzinger, who heads the Congregation of the Doctrine of the Faith, the institutional successor of the Holy Office of the Inquisition, a part of the church that, as my high school church history text book put it, has been greatly misunderstood. No, I am not really going to defend the Inquisition.

Catholic News Service reports

"I'm not the Grand Inquisitor," Cardinal Ratzinger once said in an interview. But to the outside world, he has been known as the Vatican's enforcer. He made the biggest headlines when his congregation silenced or excommunicated theologians, withdrew church approval of certain books, helped rewrite liturgical translations, set boundaries on ecumenical dialogues, took over the handling of clergy sex abuse cases against minors, curbed the role of bishops' conferences and pressured religious orders to suspend wayward members.

In 2003, Cardinal Ratzinger's congregation issued an important document that said Catholic politicians must not ignore essential church teachings, particularly on human life. That set the stage for a long debate during the 2004 U.S. election campaign on whether Democratic Sen. John F. Kerry, a Catholic who supports legalized abortion, should be given Communion.

Cardinal Ratzinger's congregation also published a document asking Catholic lawmakers to fight a growing movement to legalize same-sex marriage.

Any time you have to say "I'm not the Grand Inquisitor," you've probably got PR issues. I would sort of like to see Ratzinger picked just to hear the wailing and gnashing of teeth that would ensue, but I have my doubts as to how well the Holy Spirit speaks through me. Here are the betting lines at tradesports. Ratzinger is the favorite, with odds of twenty some percent, but cumulatively someone besides him obviously has the advantage. Ratzinger is German, from a modest upbringing in Bavaria.

But I bought this book about Ratzinger's views, and it's actually pretty good. It doesn't seem radically conservative to me, but what do I know.

One scary house
By Tom Smith

The grossest movie this weekend (in terms of revenues) was The Amityville Horror. Reportedly a bad remake of a bad movie based on a bad book about an allegedly evil house. I plan to give it a miss, and maybe watch the DVD when it's out.

I knew a guy who knew the people who lived in the house in the 1970s, and he said the people who lived there thought it was . . . a perfectly nice house (except for the curiosity seekers).

Difficult as it may be to believe, there is reason to think the haunted house tale is a big hoax.

But you want to see a good haunted house flick? The best of them all is probably the original of The Haunting, based on Shirley Jackson's thoroughly creepy and satisfying novel, The Haunting of Hill House. The remake is IMHO dreadful, and not in the good sense. A pretty good haunting flick is The Uninvited, a tasty Hollywood British confection. "Best ghost movie of all time" is hyperbole, but it's still full of chewy, scary goodness.

The Others was a welcome revival of the honorable traditions of spook movies. It has an old house, children who see things, fog, war dead, plumby accents, nannies, furniture with sheets over it, locked rooms and terribly odd noises. If that doesn't entertain you, you're hopeless. It's about atmosphere, not FX. The Innocents, the movie based on Henry James ghostly classic, The Turn of the Screw, is even better, and scared the bejesus outta me as a child. (Some say it's Deborah Kerr's best performance.) Share these movies with your children! They'll never forget the experience.

While it's not a ghost story, for genuine atmospheric creepiness, it's hard to beat Night of the Hunter, with Robert Mitchum and Shelley Winters. Mitchum plays a very, very bad man. This is American Gothic on the high plains to a tee. Robert Mitchum's little sermon on love and hate creeps me out when I think of it to this day.

High court sex acts
By Tom Smith

The impertinent question by an NYU law student / gay activist to Justice Scalia regarding his marital sexual practices has excited a certain amount of commentary in the blawgosphere. For most of us, I am sure, there are certain things we prefer not to think about, not to imagine, and in my case, for one, the sex lives of Supreme Court justices are certainly among them. To that NYU student whose name will live only very briefly in infamy, one can only say "thanks for the visual." It's like imagining your parents having sex. Presumably they did, but you just don't want to think about it.

It's hard to see also how this incident is going to make NYU an even more popular venue for speakers who fall outside the intelligensia PC mainstream. Since I am fairly cynical about the possibility of fair, honest, and open debate of topic such as gay rights on university campuses anyway, this may not be much of a loss, but Mr. whatshisname hasn't done the NYU student body any favors. But that was probably not his intention.

It goes without saying that it is extremely rude to query a speaker about his marital relations, but sometimes rudeness is justified. It would be very rude for a grieving mother to throw the blood soaked clothes of her murdered son into the face of some miscreant, bemedaled third world dictator, but her rage might well be justified, and the pompous tyrant deserve to internalize some little bit of the pain he had caused others. Attempting to do something similar to Justice Scalia, however, just shows how clueless the Scalia haters in the gay rights movement can be. There is no reason to doubt that Scalia is quite sincere in thinking that he is just in the business of applying the constitutional law as he finds it, rather than imposing his ethical intuitions on an unsuspecting public. As Scalia has said in the several speeches of his I have heard, he is just a lawyer in the end, and doesn't have any unique insights about the best ultimate policy on any topic or other. So what the activist is really punishing Scalia for is his refusal to go along with the program of imposing their preferred policy from the bench. Scalia ends up taking the heat for doing his job, which is trying to hold as much as possible to the rule of law. The idea is, he has to do what is necessary to legalize homosexual sodomy because the legislature of Texas refuses to do so. And if he won't, well, he had better watch out.

Something that makes the incident worse, of course, it that it took place at a law school. The whole idea of a law school is that it is a place where reasoned argument is supposed to be the currency of the realm, not emotional pleas and certainly not the kind of coercion implicit in a very rude question. A law professor who asked an insulting question to a student about his sexual practices should certainly get in trouble, and probably would. Somehow I doubt the NYU student in question need worry about any disciplinary consequences. Call me old-fashioned, but I don't see anything wrong with a rule which would require students to treat visitors with courtesy and respect, upon fear of expulsion if they did otherwise. It's a law school, not a street corner. I'm not holding my breath.

A final point may be worth mentioning. The insult of the NYU student's question is really just a more brazen form of the sort of social pressure put on judges all the time in an attempt to influence them in one direction or another. Your social life in liberal Washington will be much more pleasant if you are a liberal justice. My pet theory about Justice Souter, for example, is that as someone who lived in an isolated house with his mother, he was particularly suseptible to the dazzle and flattery of Washington's liberal salons.

It's a difficult problem, for many of the people who are motivated to do all the things you have to do to become judges, especially Supreme Court Justices, are also the sort of people who crave approval from their peers and social "betters." For all that he was in many ways a repellant character, you have to admire at some level someone like Oliver Wendell Holmes Jr., who deep in his heart, truly did not give a damn what you thought of him. The Civil War and being a stony hearted bastard to begin with will do that to you. You would not want to have been poor, long suffering Fanny Holmes, but it sure helps keep the judiciary independent. But not many judges are Holmes's.

The funny thing about our less than clever NYU activist's insult of Scalia and his wife is that nothing could be more calculated than such an insult to make Scalia bear a grudge against the activist's tribe. Scalia is an honest enough jurist to resist such an emotion, but generally speaking, it is a bad idea to bring in the wives, mothers, or children of those who are in position to hurt your cause. It's not personal; it's business. Gay activists might just want to keep that in mind.

April 15, 2005
Chez Mom
By Gail Heriot

I'm visiting my mother in Virginia this weekend. And, at least if you're like my mother and her friends, the cool thing to do around here on a Friday night is to go to the American Legion Hall for dinner. The two of us therefore trooped over at six o'clock; early is necessary if you want a good table. "You'll notice that almost everyone here is old like me," she whispered in my ear a bit regretfully. Well, yes, but rather than regretting it, it's a fact to be celebrated. The United States hasn't had to engage in total war since WWII. Not every country has been so lucky. And, as a result, the veterans who join the American Legion are disproportionately (although by no means exclusively) a bit long in the tooth.

The figures from the New York Times World Almanac (2005 edition) really drive the point home. It gives the number serving in the United States military for each war: 16,353,659 (WWII), 5,764,143 (Korea), 8,752,000 (Vietnam), 467,939 (Persian Gulf) and 269,363 (Iraq as of September 2004).

Here's hoping our luck holds up. (By the way, Mom and her friends are right. The food was pretty darn good and for $10 you can't beat it.)

The horror. The horror.
By Tom Smith

Waste time.

April 13, 2005
The Man Who Wrote 900 Books
By Maimon Schwarzschild

Jacob Neusner is a phenomenon in academic Jewish studies. He is the author of well over 900 books, and lots more than that if you include his many, many volumes of translations. Meet him in this NY Times interview/profile. The Times doesn't like Neusner's politics -- he is conservative, and his son works in the Bush White House -- but the profile is pretty respectful, if somewhat bemused. Neusner famously doesn't suffer fools gladly, if at all:
Mr. Neusner's sharp tongue has also made him enemies among his colleagues. He has been known to sign letters to opponents, "Drop Dead." Did he really do that? "Not very often," he said dryly. Can he explain? "I'm too old to remember what the occasion was."
But over many decades, Neusner has been immensely influential in helping to make Jewish studies a serious academic discipline. He is 72 now. "Ad meah ve-esrim!", in the Hebrew expression: "May he live to 120!"

No kidding
By Tom Smith

These guys are too nice to cast aspersions, but I alas am not. It is my distinct impression that Justice Kennedy, in spite of no doubt many virtues, is too much of a dunderhead to be an ideal Supreme Court justice. On the other hand, Hon. Douglas Ginsburg would probably have been one of the smartest Justices in the last few decades, and a libertarian besides. That was one bad bone.

Personally, I would support some of our Justices smoking or otherwise indulging in that evil weed before rendering decisions, in the interests of psychotherapy. Who knows. Maybe they would make more sense that way. "I mean, I see it now! The constitution has, like, words! And they, like, mean what they say! It's so, so deep!" It's worth a try.

I was a law professor at UC Davis when Kennedy was nominated. My liberal colleagues were just thrilled to pieces with the nomination. That was my first clue something was terribly, horribly wrong . . .