Thoughts from
San Diego on Law, Politics, and Culture

 
Not Exactly Ethiopia
By Gail Heriot

Hmm. Maimon reports on the poverty in Ethiopia this weekend. I'm at the Ritz Carlton on Maui. We're not exactly leading parallel lives. I will do penance upon my return to the mainland.
posted by Gail at 7/31/2005 08:39:00 AM

 
Golf as racial profiling
By Tom Smith

This looks interesting, and plausible too.

posted by thomas at 7/30/2005 09:44:00 AM

 
Some brits have had enough
By Tom Smith

Amazing what a few bombs will do.

posted by thomas at 7/29/2005 05:12:00 PM

 
But where's my Martian colony
By Tom Smith

Some excitement over at Instapundit about this book.

I suppose I will buy the book, but for now I would just like to express some grumpy skepticism. As a religious person, I believe some weird shit, but I just don't believe that in 50 to 100 years, humans are going to fuse with machines and be a trillion times more intelligent. I. don't. think. so. If that were in the cards, I think we would have already developed a cure for back pain, lo-cal ice cream that tastes good, an automatic way to both write and grade exams, a cure for baldness, and television worth watching. And yet, no, we have not.

I was reading one of these "the singularity is coming" guys the other day, and he said in the future, we will have wireless modems planted in our heads so we can be plugged into the internet at all times. Bad idea. Driving is dangerous enough as it is. Also, look at how much trouble wireless networks already cause. They're up, they're down. I really don't want to have to reboot my brain twice a day. And then spam. Do I really want the thought planted in my brain every five minutes that my penis needs to be bigger or I need to tell some Nigerian my bank account and social security number?

I think if we could ask the great coming post-human intelligence whether the singularity is coming, It would say, uh, no, I don't think so. But do I have a low interest re-fi for you.

I'm not holding my breath for the great AI apotheosis, and I don't expect Jesus in the next couple of centuries either. I think technology is as cool as the next person, but I think it's not too soon to prepare ourselves for the notion that we're going to be human for a long time to come. It could be worse.
posted by thomas at 7/29/2005 02:24:00 PM

 
New planet discovered
By Tom Smith

Depending on what you mean by planet.

posted by thomas at 7/29/2005 11:55:00 AM

 
Waste your money, find a mate
By Tom Smith

Herein, wisdom.

posted by thomas at 7/28/2005 03:24:00 PM

 
SD hospitals inferior?
By Tom Smith

This is very troubling. I suspect there is some sort of statistical glitch, but maybe not. UCSD and Scripps Clinic hold themselves out as world class medical care. But this study suggests coronary care, and we all care about that don't we -- MI's are one of the great killers of middle aged, conservative men, RC's demographic! -- is markedly inferior in San Diego.
posted by thomas at 7/28/2005 01:13:00 PM

 
Shut up and drive
By Tom Smith

And this may also explain the extreme vapidity of so many cell phone conversations. And it was like . . . so totally cute!!!

posted by thomas at 7/28/2005 01:01:00 PM

 
Adventure tech
By Tom Smith

It's probably just one of those days (sick of Fitness 24, tired of smelling BO at the dojo, too hot to cycle, missing trees and such . . . ) but I am quickly approaching the point where I need to do something both financially and physically irresponsible. Maybe some high mountain thing. But there is also something magical about the Arctic. Great word "arctic." Anyway, this looks like totally awesome gear. Truely, one of the main reasons to travel to obscure places is the opportunity it affords to blow your stash on cool gear. Remember, it's a false economy to scrimp when your life could be at sake.

Oh. Find out about the paperwork you need for K2. But don't do it. Look at the stats. For some reason, women climbers seem almost guaranteed to die there. Some say statistical anamoly, some say curse.

Here's a good K2 story. I think this dying at high altitude stuff is so totally to be avoided, but it makes good reading. Read about the routes. When you read "400 meters of vertical or near vertical rock and ice; can be extremely cold and windy" think of climbing the side of the Empire State Building in mittens and heavy boots during the worst blizzard in NYC history, while really needing to pee.

And, to attempt to make all this relevant to the blog . . . the tech revolution is resulting in, you guessed it, adventure blogging! Two narcissistic activities are a match made if not in heaven, then in the Karakoram or the Drake Passage or the Pacific Crest Trail . . . I realize now I won't be able to make it down. Sorry, Suzie. Sorry, Mom. Please hug the kids for me. The insurance policy is in the file cabinet in the rec room, and the safety deposit box has the jewelry in it. Don't put Fang to sleep yet. He doesn't deserve it just because I dropped my ice ax. I'm not cold anymore. I just feel so . . . unfocused. The clouds are really pretty.
posted by thomas at 7/28/2005 11:47:00 AM

 
Not Hitler's Pope
By Tom Smith

A new book on Pius XII. (via instapundit.)

Reading Cornwell's book, Hitler's Pope, should be enough to convince anyone he's less than objective. The first chapter or two try to convince the reader Pius, as a Vatican diplomat before he became Pope, was insturmental in causing, or perhaps the most important cause of, World War I. Somehow, I doubt it.

Whether some evil old nun beat him up, or his Mommy made him pray too much, or it's just a way to suck up to the powers at Oxford, who knows, but Cornell has it out for the Church, and slandering Pius is his vehicle of choice. He has had the effect of provoking several well documented defenses of Pius, however.
posted by thomas at 7/28/2005 11:23:00 AM

 
Akaka Bill
By Gail Heriot

From what I understand, the Akaka Bill is stalled in the Senate and is probably losing support. But I can't resist the opportunity to kick it while it is down--or, better yet, kick the Republican Senators, like Norm Coleman and Lindsey Graham, who told Hawaii Governor Linda Lingle that they would support it.

Over thirty years ago, the Nixon Adminstration agreed to impose/permit an elaborate system of racial quotas known as the "Philadelphia Plan" on building trade unions engaged in federal projects. Why? Some say they were motivated in part by the belief that the plan would divide rank and file union members and hence ultimately weaken the unions as a political force. They had their eye on short-term partisan advantage, and failed to recognize the mischief that preferential racial policies could do in the long term.

With the Akaka bill, this history of short-sightedness threatens to repeat itself. Governor Lingle is the first Republican governor of the State of Hawaii. She believes her political future (and the future of the Hawaiian GOP) depends on the passage of the Akaka bill, and Republican members of the Senate would like to be able to help her. But if any Republican (or for that matter Democratic) Senator is still intending to support this bill, he or she needs to stop, take a deep breath, and think about the precedent that would be set.
posted by Gail at 7/27/2005 09:37:00 PM

 
Fed Soc bruhaha
By Tom Smith

TOP SECRET/NO NON-FED SOC CODE NAME MADISON

To decode the secret message in this op-ed, FedSoc members should set their decoder rings to M-7, repeat M-7.
posted by thomas at 7/27/2005 01:52:00 PM

 
Hope for the ugly
By Tom Smith

No longer will Mom have to tie a pork chop around your neck to get the dog to play with you.
posted by thomas at 7/26/2005 06:43:00 PM

 
Science news
By Tom Smith

Suddenly it said, I want sushi.

I always wondered how that worked.

And you thought you had mouse problems.

Cats are weird.

Sounds like a movie . . .
posted by thomas at 7/26/2005 06:33:00 PM

 
I walk a lonely road, blah blah blah
By Tom Smith

Calling these infants punk rockers dishonors those who were there. The Ramones were punk rockers. I wanna be sedated.
posted by thomas at 7/26/2005 06:33:00 PM

 
Islamic fascist sentenced in the Netherlands
By Tom Smith

Interesting story here.

posted by thomas at 7/26/2005 06:29:00 PM

 
Division of Labor
By Gail Heriot

It is interesting to compare the San Diego Union Tribune and the New York Times in their coverage of yesterday’s split in the AFL-CIO.

The Union-Tribune emphasized that the dissident unions–the Teamsters and the Service Employees International Union–were fed up with the AFL-CIO ‘s extravagant spending on political campaigns and causes and wanted to increase efforts at organizing non-union employees. It story read:

"At the core of the dispute is the rejected demand by the two breakaway unions and several allies that the federation shift resources from political action and devote them instead to organizing nonunion sectors of the economy.

"Speaking for 1.4 million Teamsters, Hoffa declared, ‘We must have more union members in order to change the political climate that is undermining workers' rights in this country. The AFL-CIO has chosen the opposite approach. . . . Their idea is to keep throwing money at politicians.’"

I find this a thoroughly believable story. I’ve long been surprised at how much money and effort unions put into backing Democratic candidates and left-of-center political causes that their own members often oppose.

In contrast, the New York Times–with its headline, "Ambitions are Fueling Union Split"-- attributed the split mainly to a clash of egos. "[A]s much as anything," the Times explains, "the schism reflects the conflicting ambitions of two titans of labor, John J Sweeney, the president of the AFL-CIO, and his onetime protégé, Andrew L. Stern, the president of the Service Employees International Union, until now the largest union in the labor federation."

Both stories can be true, of course. But the way the New York Times reports it, the reader will be inclined to fault Stern and Hoffa destroying a once-great institution simply to further their individual ambitions. The reader of the Union Tribune story, on the other hand, will be inclined to sympathize with dissidents.
posted by Gail at 7/26/2005 03:00:00 PM

 
Michigan Civil Rights Initiative Dealt Set Back by State Board
By Gail Heriot

The proposed Michigan Civil Rights Initiative , which is modeled after California's Proposition 209, was dealt a blow by the highly-politicized Michigan Board of Canvassers last week. Initiative supporters had gathered 100,000 more valid signatures than they needed to put the measure on the ballot. Furthermore, the Michigan Attorney General had opined that the only basis on which the Board of Canvassers could refuse to certify an initiative for the ballot would be the failure to gather the requisite number of valid signatures. According to the Attorney General, it was not within the Board's power to consider why voters choose to sign the petitions. Nevertheless, the Board declined to certify the initiative.

It's unclear why it refused, but after a six-hour circus-like meeting (complete with lefty loonies from BAMN), one member of the board apppeared to be swayed by an argument that the signatories couldn't possibly have understood what they were signing, because some of the signatories were black and no black person could possibly oppose racial preferences.

Yes, there will be (more) litigation. Initiative supporters continue to be optimistic.
posted by Gail at 7/24/2005 04:15:00 PM

 
Did Justice O'Connor foul up her resignation?
By Tom Smith

This is a hoot. And I did wonder about this, since it is similar to an issue that can come up in corporate law. Anyway, O'Connor's letter says that she retires effective upon the confirmation of a successor. However, that implies, does it not, that there is no vacancy until a successor is confirmed. But, the relevant law seems to say the President cannot nominate a Justice until there is a vacancy. This recalls the famous (to some) Idaho law which provided that if two trains approach each other on the same track, both trains must stop, and neither shall proceed until the other has passed.

The post suggests the right way to deal with this little mess, entirely of the Justice's making, and perhaps the final manifestation of her famous moderation (why just resign? That's so absolute, so extreme!), is to treat the condition she imposes on her resignation as a nullity. This apparently follows from a principle I had not heard of before, that being that Justices cannot conditionally resign. I wonder where that legal principle comes from? But whatever. It's certainly convenient to have it around, and if it is not really around, now is a good time to invent it. It would mean the O'Connor legacy would conclude ever so appropriately, with the invention of a new legal rule necessary to get out of a mess entirely of her own making. I certainly concur that the power to make up rules as one goes along is very useful if one has a tendency to get confused with the ones we already have. Maybe we should call it the O'Connor Doctrine. It might be useful to formalize this rule in some case. Perhaps the Supreme Court could sue itself, or Justice O'Connor, assuming it would have standing to do so, in order to determine whether a Justice may resign conditionally and if so, whether the rule that one may not, may be, at least for the time being, imposed on itself, or her, so as to get itself out of this mess.

It also raises the question, how many other of O'Connor's acts may be treated as nullities? I believe there are many important cases where hers was the deciding vote. Could some of those votes be revisited under the O'Connor Doctrine? (That being, recall, that we can revisit silly things done by Justice O'Connor if taking them seriously would lead to constitutional conundra.) This is too deep for me. Best left to our constitutional scholars.

NOT directly relevant, but I remember reading somewhere that O.W. Holmes did not resign from the Mass. Supreme Judicial Court until immediately after his swearing into the U.S. Supreme Court. He was a very careful man (in some ways).
posted by thomas at 7/23/2005 05:32:00 PM

 
Microwave weapon
By Tom Smith

We could just forget about rioters and use it to cook terrorists.
posted by thomas at 7/22/2005 07:19:00 PM

 
Cool images from science
By Tom Smith

Time to change your wallpaper. (Hat tip Adam Kolber.)
posted by thomas at 7/21/2005 03:59:00 PM

 
Randy B on future Justice Roberts
By Tom Smith

RB sums up my reaction very well.

This makes me more nervous. Why isn't he? Too right wing for him, hmmm? Not just the thing for him? And if it weren't for the Federalist Society, no way people like him would be getting nominated today . . .

Profile in NYT. Is he the smart O'Connor? Can we call him O'Roberts?
posted by thomas at 7/20/2005 10:10:00 PM

 
I feel more normal now
By Tom Smith

You probably will too.
posted by thomas at 7/20/2005 05:56:00 PM

 
NY Times, great respector of National Security Secrets
By Tom Smith

It didn't seem to bother the NYT to "out" this genuinely secret operation, in a story that probably actually did harm the WOT on the margin.

And AP published pictures of Navy SEALs, even though doing so may have compromised their security.
(See also this interesting update on where some of these incidents ended up.)

I suppose you could distinguish Rove by saying, unlike the press, it is not his job to undermine the nation's security.
posted by thomas at 7/20/2005 01:44:00 PM

 
Note from former SEAL
By Tom Smith

This interesting note from a former Navy SEAL and student of mine, who is now a lawyer for the Navy.

Thanks for mentioning the memorial in Hawaii in RC. I thought you might also be interested in the ceremony that was held at the Naval Academy yesterday for LCDR Erik Kristensen, a classmate of mine. I haven't seen any reporting on it today; probably because Annapolis isn't the open campus it used to be. There wasn't a camera or reporter in sight thankfully. There were, however, thousands of mourners. It was the first time I have seen the chapel there filled to capacity. Erik's roommate made one of many moving eulogies, the content of which both encapsulated and transcended the ceremony. He emphasized what a truly outstanding person Erik was in every regard and, reverently, that it is just such men whom we require to lead our forces in combat. The term "special trust and confidence" is not a hollow phrase. It represents the profound significance we attach to protecting and taking life. The bitter irony is that because we value this responsibility so dearly, we lose some of our very best on the battlefield. In my own mind, I contrasted this to our current enemies; content to let exploitable minions blow themselves to bits along with the softest of targets. That is more than a difference of strength or tactics; it is a cultural difference as wide as the ocean.
posted by thomas at 7/20/2005 01:26:00 PM

 
Senator Leahy comes out againt those darn judicial activists, like Scalia
By Tom Smith

Laugh or cry.

posted by thomas at 7/20/2005 01:24:00 PM

 
Potentially worrisome plea deal
By Tom Smith

The Atlanta Olympics bomber got a good deal for himself with his last pile of explosives.
posted by thomas at 7/20/2005 11:47:00 AM

 
Real law
By Tom Smith

USD Law is very well represented on the new law reality TV show, "The Law Firm" on NBC. Real young lawyers will fight it out over real cases, or something like that. The winner gets enough money to stop practicing law. No. Just kidding. That was very negative, and I'm sorry. You will notice that all the young lawyers, male and female, are unusually good looking. It's TV and it's California. I think one of these kids might have been in one of my classes, but maybe not.

Maybe the law school can get some good publicity out of this. I hope one of them will say, I really loved my years at USD . . .
posted by thomas at 7/20/2005 11:38:00 AM

 
Is Roberts one of us?
By Tom Smith

Here's a view from a cite I regard as sorta red meat conservative, as opposed to the highly nuanced, subtle and downright smarty-pants conservatism familiar to readers of the RC. I admit that after my initial pleasure at the Roberts nomination, I am now having some qualms. Without doubting the guy is God's gift to oral advocacy, I wonder, is he or ain't he, conservative that is? Ann Coulter, who speaks her mind, notes that in a long career, he seems never to have said anything that could be considered controversially conservative. I noticed that on NPR last night, Doug Kmiec was very careful in his praise of Roberts. What he said was that Roberts was a very, very careful lawyer, and he said it with a worried voice. Well, that's nice. Carefulness is good. But is he, for example, an originalist? What does he think about the usual lineup of great acts of judicial legislation?

You don't have to be a cynic to see Herr Rove's handprints all over this one. Here is a blue chip nominee neither Bush's enemies nor his supporters will be able to suss out until it's too late. Very clever. Perhaps too clever.

I think I may have opined before on the dangers of nominating careerists to the Court. The danger is, once on the Court, the only way to go up, which is what careerists do, is to maximize your esteem in the eyes of the commentariat, and your power by putting yourself in the middle, in that ol' swing vote chair. As I have read more about Roberts, my fears have grown, not shrunk. But then, I'm a pretty paranoid sort of guy. (Do you have CBN suits in your garage? I do! Why not? They're cheap!) So what we may have here is just a really smart version of Kennedy or O'Connor, to the extent that is not a contradiction in terms.

OTH, maybe Roberts really is that rare bird, a stealth candidate who is really a conservative. It's possible. Fantastically unlikely, but possible.

I also agree with Coulter and Polipundit that being vouched for by true blue conservatives means less than nothing. Conservatives tend to be trusting. Conservatives stop and help people fix a flat (What would Jesus do?); liberals drive by and feel guilty about it; leftists drive by and explain the conspiracy among big rubber companies. If we had a vote for every conservative that vouched for Souter and Kennedy, we would be living in rule of law paradise by now.

A MORE cautiously optimistic view here. So maybe Roberts will be another Rehnquist? Maybe. But as I recall Rehnquist had made his bones in Arizona and there wasn't much doubt he was a committed Republican when he was nominated.

HAPPY conservatives here. I hope they're right. Though clerking for the late Judge Friendly is very prestigious, it's not a conservative credential. Not like clerking for, say, Scalia. To get a Friendly clerkship, you had to be annointed by former Friendly clerks turned professors at Harvard or Yale law school. My impression at Yale was that it was a case of Federalist Society members need not apply. Roberts was at Harvard before the birth of FedSoc. So . . . who knows. Conservatives would not be having these worries if Judges Luttig or McConnell had been chosen.
posted by thomas at 7/20/2005 08:06:00 AM

 
Roberts?
By Tom Smith

MSM sources are reporting Roberts will be W's SCOTUS pick. You would think NBC and AP would have to have a very solid source to run with this story; they quote a "senior administration official." Even so, it could be a ruse.

I must admit I would be surprized and pleased by this choice, based at least on second hand reports of Roberts's abilities and views. I do not know anything personally about him. I am not quite sure what the WHS is thinking. A Roberts nomination guarantees a big fight in the Senate, and a good chance of the nuclear (or "entirely justified as well as constitutional") option being invoked. I thought Bush wanted to avoid that. It is almost as if Bush said, just forget about the politics, who is the best judge for the job, and Roberts name came up. Not only is he a white guy; he really looks like a conservative Republican. I would love to have been there when W made the decision.
posted by thomas at 7/19/2005 05:13:00 PM

 
Avoid old fish
By Tom Smith

Stanley Fish has an op-ed piece in the NYT about originalism, sort of. Prof. Althouse pokes a hole in it here. As I understand Fish's position more generally, his view is something like, meaning comes from intention and you can't know what intentions are. Maybe his views have changed, but it was roughly that 20 years ago, and last time I checked. So for Fish, intentionalism is just a raft floating on a bottomless ocean of ignorance. This is one of many reasons English professors should not be allowed to practice philosophy without a license. It is reason law schools should hire PhD's in philosophy. If philosophy is going to corrupt law, at least it should be good philosophy.

The idea of objective meaning is pretty standard in contract law and has been since Holmes. You can believe in it without taking a position on what words really mean. This is law, not philosophical semantics. If I promise to pay you Tuesday for a hamburger today, my idiosyncratic subjective meaning for Tuesday (perhaps I don't use the Gregorian calendar! Perhaps I suffer from day of the week reversal! Perhaps I am a complete idiot!) just don't count. Maybe there's even a default rule that says Tuesday means, end of normal business hours Tuesday. You didn't know that? Tough shit. You will next time. It doesn't take a lot of imagination to see why contracts should be interpreted according to what the reasonable person would take the words in them to mean.

I think the significance of ratifying constitutional language comes from the fact that the Constitution had to communicate something from the Framers to the ratifiers (not to mention among the framers themselves, and not to mention subsequent generations). You can imagine other uses for language, but if the idea is to use it to get agreement on terms, as in a contract, or in a constitution, then taking it to mean what it communicates, seems pretty fair and reasonable. Of course, if you are an anti-liberal (as in anti- consent of the governed and all that) such as Fish seems to be, that's far too straightforward. Interpretation has to lead you into some inescapable quagmire from which only authority can extract you. So my guess is that's why Fish favors intention--because he thinks it leads to a paradox. Meaning must be intention, but it is unknowable, oh well, I guess you all will have to do as I say now. Thank goodness English graduate students don't make very good storm troopers. I think he's really more of a Hobbes fan or even an Augustine (compel them to come in) sort of guy, without the God part, of course. Very creepy stuff. Imagine Straussianism, but instead of a cult of the ancient philosophers and various Leo Strauss whisperers, your cult is around a mish mash of has been European lit crits and the Fish himself. Yuk-o-rama. And we're all supposed to be so dazzled by it that we can't see that it's a load of insincere, third-rate amateur philosophy pretending to be the latest and the deepest. He reminds me of the Grand Inquisitor (but the grandeur is pretty faded) or, better, that evil Jesuit in The Magic Mountain.
posted by thomas at 7/19/2005 01:05:00 PM

 
Thank you, Stuart
By Tom Smith

Here's a novel thought. Let's not appoint to the Supreme Court a not particularly distinguished lawyer who stands out really only because he is the close pal of W. Mediocre (by Supreme Court standards) and pal of the Prez should not a Supreme make. Stuart Taylor spells it out.

[Gonzales] has not shown outstanding qualities of mind or heart. Some of us might prefer a pragmatic nominee without a fixed ideology -- if he or she had displayed deep understanding of the law, outstanding intelligence, independent judgment, fair- mindedness, and wisdom.

But Gonzales has not. He was a journeyman partner in a big Houston law firm before meeting Bush. His Texas Supreme Court opinions are pedestrian and undistinguished. His public statements mix prefabricated talking points with vacuous platitudes. By many accounts, he typically says little or nothing during internal debates and discussions among administration lawyers. Colleagues speak well of his character. But their praise of his abilities is, in most cases, rather faint.

Independent judgment? Bush, who prizes loyalty and bristles when challenged, has said that Gonzales gives him good advice. Might it just be that Gonzales tells Bush what Bush wants to hear? The next time Gonzales testifies on Capitol Hill, senators should ask: Have you ever advised your boss against doing something he wanted to do?

posted by thomas at 7/18/2005 05:28:00 PM

 
Hillary ain't seen nothing yet
By Tom Smith

The future of internet porn is here. Hint: it's not really about chickens. At least I hope not.
posted by thomas at 7/18/2005 04:21:00 PM

 
Hawaii's Effort to Un-Melt the Melting Pot
By Gail Heriot

The proposed Native Hawaiian Government Reorganization Act is an appallingly ill-considered piece of legislation. And if something isn’t done to stop it, it will become the law of the land soon. See details here and here.

The Akaka bill (as the bill is known) would confer quasi-sovereign status on the "Native Hawaiian" minority living in Hawaii. Native Hawaiians (defined racially rather than by birth situs) would be free to create their own racially-exclusive governing bodies in much the same way that Indian tribes now do. In theory, this will allow Native Hawaiians to get around the Supreme Court of Rice v. Cayetano, which prohibited the State of Hawaii from holding elections in which only Native Hawaiians could vote for the Board of Trustees that administers Hawaii’s elaborate system of Native-Hawaiians-only benefits.

There is a difference between recognizing real Indian tribes and making Native Hawaiians into an Indian tribe. The former was a bow to political reality. These Indian tribes were not fully part of the United States at the time of their recognition. Most important, they had not been brought under (and have still not been brought under) the sovereignty of any state government. In some ways, they were and continue to be foreign nations. Native Hawaiians, on the other hand, are ordinary citizens of Hawaii, who are retroactively seeking this semi-foreign status.

It’s hard to imagine a worse precedent. If Native Hawaiians, who are currently full citizens of Hawaii and the United States, can un-melt the melting pot, what about other groups? The Amish in Pennsylvania? Cajuns in Louisiana? Cubans in Florida? Quite large groups could play at this game. What about Mexicans in the Southwest? Blacks in the Deep South?

More on this topic later...
posted by Gail at 7/18/2005 01:17:00 PM

 
Not liking Cryptonomicon over at Crooked Timber
By Tom Smith

I promise not to tell anybody. Me, I liked it quite a bit, when I read it several years ago. Maybe that makes me a nerd fellow traveller or something. I liked a lot of things about it, and didn't dislike really anything, except I thought it had one of the more bizarre sex scenes towards the end. Too, ah, quantitative. All the cryptography stuff was interesting, the attack on PC academics was gratifying, the adventure story was adventurous; what's not to like? It's very much a libertarian book. Its take that liberty at the end of the day is all about being able to keep secrets is almost deep.
posted by thomas at 7/17/2005 08:33:00 PM

 
A long way from Afghanistan
By Tom Smith

Report on the memorial service at the Punchbowl for 8 Navy SEALs killed in Afghanistan.

Story of the mission here. Apparently, this is the largest loss of life for SEALs on a mission since WWII. The SEALs are a tightly knit community. Many SEALs and former SEALs live in San Diego, and a number of SEALs have come through USD law school over the years. They tend to be good students. Verna, who used to run the law school from her perch in the registrar's office for many years, had her retirement party recently, and I noticed a tiny gold trident hanging from her neck. It turned out that both her sons had been Master Chiefs in the SEALs, now both retired, but one now working as a bodyguard in Iraq. His mother didn't want him to go, but he said "that's where my buddies are."

This loss is going to hit them hard, but I doubt if it will do anything but increase their resolve.
posted by thomas at 7/17/2005 01:53:00 PM

 
Dutch tolerance
By Tom Smith

Here.
posted by thomas at 7/16/2005 05:49:00 PM

 
It's all your fault
By Tom Smith

British press self-blame sweepstakes.


posted by thomas at 7/16/2005 08:54:00 AM

 
Big Bang go bang?
By Tom Smith

I know our readers want to keep up with developments in cosmology, so they need to know the Big Bang ain't what it used to be. Science is strange; it's all about what scientists are willing to say, and now some of them are willing to come out and say It never happened. This recent conference was important, apparently. Not exactly beach volleyball in Baja, judging by the photos.

Perhaps the most disturbing thing is that, uh, well, here . . .

The homogeneity and isotropy of the Universe – also
known as the Copernican principle – is a major postulate
of modern cosmology. Obviously this assumption
does not imply exact homogeneity and isotropy, but
merely that the observed cosmological inhomogeneities
are random fluctuations around a uniform background,
extracted from a homogeneous and isotropic statistical
ensemble. One may expect that the ever improving observations
of CMB fluctuations should lead to the greatest
vindication of this principle. Yet, there have been a
number of disturbing claims of evidence for a preferred
direction in the Universe [1, 2, 3, 4, 5, 6, 7, 8, 9, 10],
making use of the state of the art WMAP first year results
[11]. These claims have potentially very damaging
implications for the standard model of cosmology.
It has been suggested that a preferred direction in
CMB fluctuations may signal a non-trivial cosmic topology
(e.g. [1, 12, 13, 14]), a matter currently far from
settled. The preferred axis could also be the result of
anisotropic expansion, possibly due to strings, walls or
magnetic fields [15], or even the result of an intrinsically
inhomogeneous Universe [16]. Such claims remain controversial;
more mundanely the observed “axis of evil”
could be the result of galactic foreground contamination
or large scale unsubtracted systematics (see [17, 18, 19,
20] for past examples). A closer inspection of the emergence
of this preferred axis is at any rate imperative.

So the cute cocktail party phrase (the level at which I operate I'm afraid) to drop is "axis of evil" -- an apparent inhomogenity in universe stuff that should not be there, if the Big Bang theory is true. So if someone is acting all smart about the Big Bang, you ask, what about the axis of evil? (Personally, I still like the Big Bang, but tastes differ.) Maybe it's only that important satellite whose initials I can't remember [oh yeah, it's WMAP] is just screwing up, but some smart people don't think so. If the inhomogenity turns out to be the edges of a giant fishtank, or the inside of a giant shoe, it will put the whole ID debate in a new light . . .
posted by thomas at 7/15/2005 04:55:00 PM

 
al Reuters update
By Tom Smith

Geez.
posted by thomas at 7/15/2005 04:49:00 PM

 
Hold Everything!! Orrin Hatch Has Written an Autobiography!!
By Gail Heriot

Just kidding. Actually, Senator Hatch’s autobiography, entitled "Square Peg: Confessions of a Citizen Senator," was published back in 2002. And judging from the fact that remaindered copies are available on the internet for one cent, I’d say it didn’t sell too well. Indeed, I’d never heard of it until I read about it on a blog earlier this week (and as a former staff member of the Committee on the Judiciary, I have greater reason than most to take note).

Evidently, however, someone thinks that I am morally deficient for not having read it. And this appears to have been written without irony (though perhaps not without the liberal application of alcohol.) The same blogger who drew my attention to the Hatch autobiography in the first place accuses me of a willful "sleight of hand" for concealing facts disclosed in the book (and as far as I can tell no where else). And though he acknowledges that it may be that I had no knowledge of the facts, such a state of ignorance in his view may be "worse" than willful concealment. Apparently, the Hatch autobiography is literally a "must read."

Naturally, that piqued my interest. But neither the library here at USD, Borders, Barnes & Noble nor any other local bookstore my assistant called had it. (The San Diego reading public is evidently morally deficient too.) We finally tracked it down at another university library (happily saving me the one cent plus shipping and handling through Amazon.com).

Let’s leave aside the accusation that I either knew or should have known about what’s contained in the Hatch autobiography, because that’s just plain silly. (Why do people insist on casting arguments in such terms?) Let’s look instead to see whether the information offers something new on the topic at issue.

That topic, by the way, is Presidential discretion in the nomination of judges. The blogger is concerned about my recent post comparing Sandra Day O’Connor’s retirement to Byron White’s. In it, I stated:

"At the time [of Byron White’s retirement from the Supreme Court], no one argued that Clinton was obligated to appoint a candidate who would continue in White's somewhat conservative tradition. And Clinton surely did not do so. He appointed Ruth Bader Ginsburg--a movement liberal who had served for many years as the ACLU's General Counsel. This is approximately equivalent to appointing the former general counsel of the National Right to Life Coalition to the Supreme Court. Or the former general counsel of the National Rifle Association. Nobody batted an eye. Somehow the members of the Senate got it in their heads that a President ought to be given substantial discretion in these matters. Go figure."

The blogger contrasts this with a passage in the Hatch autobiography recalling a telephone conversation concerning White’s replacement between Clinton and Hatch, who was then Chairman of the Senate Committee on the Judiciary:

"President Clinton indicated he was leaning toward nominating Bruce Babbitt, his Secretary of the Interior, a name that had been bouncing around in the press. Bruce, a well-known western Democrat, had been the governor of Arizona and a candidate for president in 1988. Although he had been a state attorney general back during the 1970s, he was known far more for his activities as a politician than as a jurist. Clinton asked for my reaction.

"I told him that confirmation would not be easy. At least one Democrat would probably vote against Bruce, and there would be a great deal of resistance from the Republican side. I explained to the President that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the Court.

"Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsberg [sic] of the District of Columbia Court of Appeals [sic]. President Clinton indicated he had heard Breyer’s name but had not thought about Judge Ginsberg [sic]."

We all know the rest of the story. Clinton went on to nominate Ginsburg (and later Breyer). The blogger apparently believes the Hatch autobiography proves that the driving force behind these nominations was not Clinton, but the Republican Senator from Utah. As the blogger put it, "in failing to note that Senate Republicans played a major role in the SCOTUS nomination process during Clinton’s presidency (indeed naming the justices)," I "omitted material facts." (Emphasis supplied.)

Well, Democrats can relax if they’re worried that this shows Hatch was naming justices for Clinton. Hatch made no claim that the initial idea for nominating Ginsburg or Breyer came from him. And if he had made such a claim, it would have been demonstrably false. Hatch says the telephone call took place after Bruce Babbitt’s name had been "bouncing around in the press." Judging from the Nexis database, that didn’t occur until June of 1993. According to the newspapers, Ginsburg and Breyer had been on the Clinton Administration’s short list from the beginning. Both names had been repeatedly mentioned as far back as March. Hatch was simply inquiring about names he already knew had been under consideration. It’s no surprise that Clinton would ultimately pick from that list.

Why then might Clinton have coyly replied that he had simply "heard of" Breyer and that he had not "thought of" Ginsburg? Well, it’s always possible that he’s fibbing (or that Hatch is fibbing about the whole conversation), but there is certainly no reason to jump to an ugly conclusion. Clinton the man should not be mixed up with the Clinton Administration. Administration aides may have been working overtime to consider thoroughly the names on the Administration’s short list. That doesn’t mean that Clinton himself was prepared to talk about their merits with Orrin Hatch. Under the circumstances, it would be perfectly appropriate and truthful for Clinton to make the statements Hatch says he made.

Would it have been better if Hatch had been more careful to make it clear that both Ginsburg and Breyer were already under consideration by the Clinton Administration? Well, that’s judgment call for the author. Given that Hatch managed to misspell Ginsburg’s name and mis-name the court on which she sat, it possible that between my blogger friend and me, we have already spent more time thinking about this passage in the book than Hatch himself ever did. In any event, trying to persuade the author of a political autobiography that he should take special care to ensure that his readers don’t overestimate his power and influence is a fool’s errand. The world may just have to be satisfied with the knowledge that the record clearly demonstrates that Hatch was not the first to suggest the names of Ginsburg and Breyer to the Clinton Administration. And it is naive to imagine otherwise.

Does the passage nevertheless prove that I was incorrect to suggest that members of the Senate thought "a President ought to be given substantial discretion" when it comes to judicial appointments? It does show that Hatch thought the some members of the Senate (apparently of both parties) would oppose the nomination of Bruce Babbitt. And although Hatch doesn’t clearly specify why, he leaves the impression that it was because Babbitt was a politician, without judicial or even much legal experience. But "substantial discretion" does not mean "infinite discretion," so the fact that one among many potential Clinton nominees (and a non-traditional one at that) would have faced opposition hardly seems like evidence that a Presdient ought to be put on a short leash.

As for Hatch’s support for Ginsburg, I can’t imagine an example that would better support my point. Hatch acknowledges that Ginsburg is a "liberal." And in case anyone has failed to notice, Hatch is not a liberal and has no reason to hope for liberals on the court. He nevertheless felt obligated to support her nomination, because, as he puts it, she was a "highly honest and capable jurist[]." No doubt he hoped that Democratic senators would the same for a highly honest and capable conservative jurist.
posted by Gail at 7/15/2005 01:24:00 PM

 
Name your baby, waste your time
By Tom Smith

Cool data visualization.
posted by thomas at 7/15/2005 12:06:00 PM

 
You're on notice, you can't complain
By Tom Smith

Blogger T-shirt.
posted by thomas at 7/15/2005 11:56:00 AM

 
It's true, Hugh Hewitt is good at what he does
By Tom Smith

HH is good as disassembling pompous fools. Like what's his name on CSPAN.
posted by thomas at 7/14/2005 05:05:00 PM

 
Interval training
By Tom Smith

This study made the mainstream news a couple of weeks ago. McMaster University (where a number of these higher end training studies seem to come from) researchers found that 20 minutes of interval training three times a week was more effective at building endurance than 5-6 hours per week of moderate exercise. Well alrighty then. Sounds perfect. Interval training here means 30 seconds of all out effort with 4 minutes of rest in between, repeated 4 to 7 times. It is said to be painful, but it sounds easier than slogging away for six hours.

The test subjects, however, were physically active students, but not athletes. If you are already in pretty good shape aerobicly, would you experience similar benefits? Also, you burn fewer calories, so it may not be the best way to lose fat. Several of the articles mention the "intense suffering" of interval training. I think that is overstated. It involves pain, yes, but boredom is a kind of pain too. Short, intense workouts make a lot of sense.

I TAKE back whatever I implied about it not being that painful. I don't understand how a mere five 30 second all out sprints (I did them up a longish flight on stairs on campus) can be that painful; yet it definitely gets to you. A reader sends the abstract and notes it was quite a small study, over a very short period, and not clear what the control group was doing, which is fair enough.
posted by thomas at 7/14/2005 03:07:00 PM

 
Not Gonzales
By Gail Heriot

For what it's worth, the report from Fred Barnes at the Weekly Standard is that Bush is now leaning away from nominating Alberto Gonzales for either O'Connor's slot or the next Supreme Court slot.
posted by Gail at 7/14/2005 02:32:00 PM

 
Note to readers
By Tom Smith

A reader, possibly loyal, persuaded me that the Marines praying post was based on an email story scam. So I deleted it. At least we here at the RC admit it when we are wrong. I told you it might not be true, and I guess it wasn't. I don't think I shall have to wait too long for the next ACLU excess, however.
posted by thomas at 7/14/2005 01:10:00 PM

 
Santorum says idiotic things
By Tom Smith

This senator needs a minder.

Boston's generally liberal climate has little or nothing to do with pedophile priest scandals. This book, which I found riveting, but that may just be me, explains the cultural background very well. It does have to do with a permissive culture within Catholic seminaries in the late sixties and seventies, but that's a very specific thing. (The book must be taken with some salt, but it does say things most in the Church won't say.) It is hardly the same as plain old working class Democrats in Boston thinking the Kennedys can do no wrong. For heaven's sake, many of the liberals Santorum is talking about just learned their politics from their ancestors, who had progressive politics, but fired Katie O'Mally the maid for stealing a pound of cheese so the little ones would have something special to eat on Christmas.
posted by thomas at 7/13/2005 10:02:00 PM

 
Interrogation techniques
By Tom Smith

Informative article.

Another.
posted by thomas at 7/13/2005 09:56:00 PM

 
A voice, crying in the wilderness, and then just crying
By Tom Smith

Please go to the bottom of this post; I have new numbers . . .

I would delete the old post, but that seems to violate some norm of the blogosphere, but I am retracting the numbers in the post between the brackets and substituting the new numbers below. My blog my rules!

[Do you sometimes feel, Professor, that no one is listening to you, that your articles are ignored? IS ANYBODY LISTENING?!! Well, the bad news is, you are probably right. That is, you probably are being ignored. I will try to make this point in forthcoming article(s), but probably no one will pay any attention to me, so this is your chance . . .

I just got some new data back from Lexis, with whom I am engaged in a massive citation study, but that's another story. This data concerns law review articles that are in their Shepard's database and how much they get cited. This data covers about 385,000 law review articles, notes, comments, etc. etc. that appear in 726 law reviews and journals, and looks at how often they are cited. Cited by other law reviews, or cases.

First of all, 43 percent of the articles are not cited . . . at all. Zero, nada, zilch. Almost 80 percent (i.e. 79 percent) of law review articles get ten or fewer citations. So where are all the citations going? Well, let's look at articles that get more than 100 citations. These are the elite. They make up less than 1 percent of all articles, .898 percent to be precise. They get, is anybody listening out there? 96 percent of all citations to law review articles. That's all. Only 96 percent. Talk about concentration of wealth.

Why, you ask, is it like this? You should read my paper here, into which this new lawrev data will be incorporated, though I think it may justify a little article on its own. Similar dynamics are probably at work. Possible titles: Why this article (and yours) is a waste of time. Or, Stop that law professor before he writes again. This distributions of cites to law review articles and to cases look the same. Your basic stretched exponential with a long tail, or some would say a power law distribution. On a log-log chart, close to a 45 degree line.

So stop that blogging, professors, and get back to writing those law review articles!

Some other thoughts:

If I got rid of self-citations, which is impractical for me to do, the numbers would be even more pathetic.

You can always tell yourself, maybe someday, someone will cite me. Maybe, but don't count on it. After four years or so, your odds of getting cited are less and less. But it never hurts to hope.

Just because your article has been cited a total of, oh, four times, does not mean it hasn't changed lives. It changed your life, didn't it? Maybe got tenure out of it! Who cares if no one ever cites it!

It's just the way things are. Citation distributions are similar in physics. The distribution is in the same family as income distribution. It's a rough old world.

Well, I've got to get back to work on that pathbreaking article . .]

WHAT about Canadian and European journals? . My data does not include those. But I am pretty certain it would not make any difference in the overall distribution.

I suppose you could also look at the bright side. If you manage to get cited 20 or 30 times, you are in fact doing very well. And if you get cited zero times, well, that's the fate of more than 40 percent.

SOMEONE made a good point in the comments to Todd Zwycki's link at VC. Lawyers (and law professors too) use law review articles, especially for background information and to plunder cites, and don't necessarily cite them. So an article could be significant and not cited. Just as some articles are no doubt cited much more often than they are read. This would seem almost impossible to measure, however.

AS LONG AS I HAVE YOUR ATTENTION, I would like to point out that these results do not seem very consistent with Glenn Reynolds's hopeful assertion that Lexis and Westlaw- type legal search engines are flattening the hierarchy of legal scholarship. His point is more about law journals, not individual articles, but I would be willing to bet that the elite articles are very likely to appear in the elite journals. But I have another, I hope more provocative point. The effect Glenn points to, that Lexis and Westlaw searches mix in articles from obscure journals along with those in top journals, is in fact a consequence of the fact that they use search engines that are primitive compared to what we are now used to from Google. It is not, as he suggests in his article, a sign of things to come, but a symptom of technology that has now been superceded. A sign of things one hopes will soon be improved upon. The obscure journal articles are mostly the equivalent of the "junk results", the elimination of which by Google's PageRank algorithm made so many Google billionaires and millionaires, and for the rest of us makes the WWW so much more useful. Legal search engines, as I explain in my article, ought to exploit the structure in the network of legal citations, just as Google exploits the hypertextual structure of the Web! That's why I call it The Web of Law. Then we would get result rankings that correspond (more) to the hierarchy that is inevitably woven into the citation network. It would negate the (not very desirable in my view) hierarchy flattening effect that comes from mixing in so many less relevant results from less prestigious journals (along with, I concede, perhaps some overlooked diamonds in the mud) into search results, but it would save lawyers and scholars a lot of time.

DAVE HOFFMAN at the Conglomerate worries that the Lexis database is too small. My larger point is that these stretched-exponential-with-power law-tail or power law distributions or whatever they are (physicists, mathematicians, and others are still fighting about these, and boy, lawyers have nothing on them in the fighting department, I have learned) are deeply embedded in the enterprize. The lawrev distribution is very like the distribution for Second Circuit cases, which is very like that for the Alabama Supreme Court, which is very like the distribution for papers in physics, and so on. So it is very unlikely anything would change by increasing the number of journals.

Dave also asked some interesting questions I would love to answer, but for which I do not have the data. Someday, maybe. All I have right now is what I call citation frequency distribution. How many law review articles are there that are cited cited 0 times, 1 time, 2 times etc. Now, I also have that data for every U.S. jurisdiction on virtually all U.S. state and federal cases, so I have a lot of data. But there is much, much more data one could have, and yes, I really hope someday it will all be in an analyzable form. The big thing would be to have in some readily analyzable form, the whole citation network. Imagine a giant matrix, 4 million cells on a side, with the cite of every case on the X and on the Y axis. X is case citing, Y is case cited. If case X cites case Y, there would be a 1 in the (x,y) cell, otherwise a 0. Something like that. You also need the date of the cite. If you had that, you could discover an enormous, and I mean enormous amount about how the legal system is structured, evolves and so on.

OK, IT TURNS OUT I am some good news and some bad news, and the good news is also bad news and the bad news is also good news. In a sense. Anyway, it turns out that I made some miscalculations and the numbers are not nearly as bad as I thought. However they are still really bad. So the good news is that they are not as bad as I thought, and the bad news is that I made a miscalculation. Which, by the way, is why I said the numbers were preliminary. And they still are! And I will keep making corrections until I get it right! Or until I give up! Anyway, here are the revised, but still very preliminary numbers.

So, what I have now is that the top .5% of law review articles gets 18% of all citations (yes, I know that is very different from what I said before, but it is still a very skewed distribution); the top 5.2% gets about 50% of all citations; and the top 17% of articles gets 79% of all citations. And about 40% of articles never get cited at all.

I like these numbers better. They are much closer to a classic "scale free" distribution, even though I am not saying they are a scale free distribution. They are also much closer to the distribution in physics articles, which is kind of interesting in itself.

These numbers are still very preliminary. Not only might they be changed, they almost certainly will be changed. For one thing, there is a big chunk of citations unaccounted for, and while I doubt they will end up on the low citation end of the distribution, when they are tracked down, they are bound to change the numbers somewhat. But at any rate, these numbers are much closer to being sound than my first try. This just goes to show you, you should never do any permanent harm to yourself on the basis of a blog post.
posted by thomas at 7/13/2005 02:52:00 PM

 
Thank God that's over
By Tom Smith

I mentioned in an earlier post that I was reading the Merrily Watkins mystery series by Phil Rickman. I have finished all but one and so I can stop now. The books should come with a warning label. They are good the way a giant bag of potato chips is good. You feel ill, your mouth is raw, you have consumed 1500 calories, yet you can't stop eating. The books are of no great literary merit. The characters are somewhat likable, but annoyingly PC. All the good men are weak and the strong ones evil, with perhaps one partial exception. The plots vary between unbearably slow and unbearably suspenseful. This last one made me stay up till 1.30 last night, and I feel awful today.

The genre is English procedural mystery with an overlay of supernatural thriller, where the supernatural element usually preserves its deniability. Was there really a ghost, or was Merrily just sleeping poorly? You usually never find out, though some events do not have any plausible explanation except a supernatural one, if that makes sense. You learn a lot about the underside of English village life and Herefordshire. Sounds like Appalachia has nothing on parts of old England.

The inspiration for the novels is partly that the Church of England has apparently recently decreed that every diocese shall have an official exorcist or deliverance minister to deal with the sorts of paranormal events that come up, you know, hauntings, curses, poltergeist activity, the usual sort of thing. Demonic possession as well, though that is very rare. I'm not kidding. Check out this web page from the official website of the Anglican Diocese of Worcester. They have this to say.

The purpose of deliverance ministry is to make real to those who feel possessed, oppressed or afraid, the victory of our Lord Jesus Christ over all that is evil, so that his living presence may bring peace.

Many who seek deliverance ministry are afraid of being ridiculed; that their strange experiences won't be believed. It takes courage to overcome this fear. This web site may help those who are not yet ready to share their experiences.

Help is available and you are entitled to be understood. There is a real sense of relief once you have talked to someone who recognises that what you have experienced is real to you. Jesus is a friend to those who feel afraid or oppressed. In raising him from the dead God has given us a sign that our Lord Jesus Christ has overcome all that is evil. He is the source of healing and peace.

Maybe hauntings do happen more often in England. I had problems in my attic, but it turned out to be a family of skunks, and I would have much preferred ghosts. I did learn that skunks are the spawn of the devil. Story in a future post. I checked out the website of the Catholic Archdiocese of Chicago, rumored to have three exorcists at work, but could find nothing. Possibly just RC secrecy, however. But now, at least if you're in the UK, you have an answer to that question-- who ya gonna call?

I warn you, however. The Merrily Watkins mysteries are evil.
posted by thomas at 7/13/2005 11:24:00 AM

 
Serious legal scholar mentioned by important blogger
By Tom Smith

Yes, that's me mentioned a few lines down in this post. Brian may know that by linking to me, he assures that I will fail to be objective, but still. Just as he knows I will be forever grateful for his attempt to get Texas to hire me, years after I was stricken from their short (ish) list when the lovely Penny Rostow confessed to Professor Wright that I was, well, the c word, and even the f word. That's federalist. And I haven't paid my Federalist Society dues in years, in case anybody wants to hire me.

I somehow missed most of the blogoversy on Leiter, civility in blogging, connected with, I gather, evolution and so on. I have been out of town, and since then my life is captured by the following true incident. Yesterday my second youngest (9) walked in the back door carrying my youngest, a plucky 1.5 year old. Both of them were covered in shit, in the most literal sense. My lovely wife Jeanne took a quick look and said, well, the good news is the poop is human, not animal. In my neighborhood, either was possible. It had been a catastrophic, capacity-related diaper failure. I was in charge of the bath. Serious legal scholarship, and even blogging, had to wait.

I suspect Brian and I would find little to agree about regarding sociobiology and evolutionary psychology. About the latter, I think it ain't particle physics, but it's progress. If Brian's party takes control of the country, New Zealand here I come. I also think civility is of prime importance in many contexts, such as the classroom, in a marriage, and in interactions with Highway Patrol officers. I also think the lack of civility in pro basketball and boxing is regretable. About civility in blogging, I am less concerned.

People blog for different reasons. Some do it to promote themselves, while others are merely engaged in self-promotion. Self-promotion is also big. Please read all my articles. For me, and I suspect for Brian, an important motivation is simply expression, to get things off one's chest. It can be addicting. One hopes it is therapeutic. Implicit is the judgment that it is more important to me to tell the world how deluded you are, than is the fact that I might hurt your feelings. Thus I infer that when Brian calls Glenn Reynolds InstaIgnorance and the Rush Limbaugh of the internet, he is saying both that he holds Glenn or at least the avatar of Glenn in low regard, and doesn't care who knows it, including the target of his barbs. For my part, I would gladly mow Reynolds's lawn or polish his digital camera lenses if he would only link to us once in awhile, but that's just me. Witness my pathetic nanotechnology posts.

I have said things about people, held them up to ridicule, when I thought it was somewhat risky, for two reasons, first for the sheer joy of puncturing, or trying to, pernicious pomposity, and second, because I think some views and people are genuine threats to the commonweal. What better place to do all that than a blog? Imagine the good that would be done by the perfect post deflating all the unbearable nonsense of Justice O'Connor, the Sage of the Purple Sage. There are people who read that rubbish in Newsweek and really do think, in their basic way, O'Connor --- gooood. Moderate---gooood. Maybe you can nudge the zeitgeist just a little bit against it . . . and even if not, maybe you'll feel a little better if you try.

Finally, the blogosphere is unique as a venue for the downright ferocious exchange of views. Far superior to those bitchy, tedious listserves. Maybe like 18th century pamphlets, which pulled few punches. (On the other hand, we don't have dueling to act as a check.)

UPON reading this post (and check out this blog generally, lots of interesting stuff) I realized that Brian was saying bad things about me in the post linked to above. Thus, I was mistaken to feel flattered. How embarassing. He seems to be saying, somewhat awkwardly, what's the point of making calm, carefully reasoned arguments (for example against the morality of the war in Iraq), because someone like Tom Smith will come along and say mean, stupid things about you. As soon as I stop crying, I plan to come up with a really killing response. I take back all the nice things I implied. Still, I suppose it is flattering in a way to be held up as proof of why there is no point trying to reason with the Right. In any event, the important thing is figure out whether something is flattering or not.

Actually, without rereading it, I believe I would stand by my "fisking" of Jeff McMahan's paper on the Iraq war. It still seems like a plausible part of the war on terror to me.

. . . OH dear. This seems to be my month and certainly my post for colossal f ups. Upon actually reading the post I linked to above ("this post") I decided to, uhm, redirect it. I confess I only skimmed the post before, and since it mentioned me, decided it deserved a wider readership. I had not realized I was blundering into a very personal fight between former friends. That's me, sliding out the door on this one. My bad.
posted by thomas at 7/11/2005 06:23:00 PM

 
Evolutionary psychology
By Tom Smith

Bit of a pissing match going on over the topic of evolutionary psychology and related subjects, including intelligent design. (Follow the links.) Safe in the knowledge I will probably be igonored, I offer the following comments.


posted by thomas at 7/11/2005 03:10:00 PM

 
Hitchens on the terroists
By Tom Smith

By George Galloway's logic, British squaddies in Iraq are the root cause of dead bodies at home. How can anyone bear to be so wicked and stupid? How can anyone bear to act as a megaphone for psychotic killers?

The grievances I listed above are unappeasable, one of many reasons why the jihadists will lose.

They demand the impossible - the cessation of all life in favour of prostration before a totalitarian vision. Plainly, we cannot surrender. There is no one with whom to negotiate, let alone capitulate.

We shall track down those responsible. States that shelter them will know no peace. Communities that shelter them do not take forever to discover their mistake. And their sordid love of death is as nothing compared to our love of London, which we will defend as always, and which will survive this with ease.

Well put.
posted by thomas at 7/11/2005 02:36:00 PM

 
The Equality State's 115th Anniversary
By Gail Heriot

Wyoming is called the "Equality State" for good reason. Wyoming woman have been voting in elections there since before statehood.

Indeed, when it came time for Wyoming to apply for statehood, some in Congress initially balked at the idea, fearing that such a move would give women from other states dangerous ideas. Repeal women's suffrage and then we'll make you a state, they said, figuring that Wyoming men wanted statehood badly enough to sell out their own grandmothers for it.

But the Wyoming Legislature didn't blink. "We may stay out of the Union for a hundred years, " its dispatch read, "but we will come in with our women." In the end, it was Congress and not the Equality State that surrendered, admitting Wyoming on July 10, 1890.

Happy 115th, Wyoming. If there's a heaven, then there are a lot of Wyoming grandmothers up there smoking corncob pipes and smiling.
posted by Gail at 7/10/2005 12:11:00 PM

 
Enlightenment at last
By Tom Smith

George Will, who likes baseball more than probably anybody, weighs in on who our next Supreme lawmaker should be. I think I see his point. He suggests, as Squire Hortence Squiggly used to say in his unpublished letters, that from the center of moderation emerges the soul of prudence, in which we must ever look for the heart of compassion, in a democratic process governed by men who should first of all be wise, and least of all trapped in the disconcerting but false light of an overweening theoretical construct. Or words to that effect.

For my money, nothing is more tedious than this pompous hunt country pseudo-conservatism. I will try to be fair and not hold Professor Will's endorsement against Judge Wilkinson. I liked the line at the Corner, though: one Lewis Powell was enough. Besides, within one hundred miles of Richmond there is so much self esteem that adding to it with a Supreme Court appointment might cause some sort of explosion, and many innocent horses would be killed.

We should all know by now that ordination by Will is no longer ecclesiastically valid. It's not 1980 anymore. Conservatives no longer have to try to impress liberals by pretending to be the really top drawer sorts, don't chew know. What we really need is a justice who will follow the law; any number of reasonable judicial philosophies will do. About this Will is just utterly wrong. He says conservatives think there is some sort of interpretive holy Grail -- I guess he's talking about originalism. From this we can infer Will thinks Scalia doesn't throw a lot of weight around the Washington social swirl. Maybe he should try to less Italian or something. In fact, conservatives are not looking for mystical certainty, just judges who won't make things up. It may be too late to change Roe, but what a good example. With apologies to Nike, the idea is, just do law. Just try to get the easy cases right. If Will had spent any time around courts, he would know this.

But the last thing we need is someone who cares about the benedictions that DC's various druids care to bestow. Give me somebody on the young side who has proven they don't give a damn what the establishment thinks of them. It's a court, not a country club. There must be at least a dozen experienced judges and scholars of the first rank who fit that bill. I know there are. Their blue blazers may be too new or gotten at the wrong place, but as they wear black robes, who cares.
posted by thomas at 7/10/2005 08:35:00 AM

 
Creationism update
By Tom Smith

Short article from New Scientist on creationism controversies.

I was back East last week for my father-in-law's 80th and my 12 year old son's 12th. For his birthday, we treked to NYC's Natural History Museum. For the first time in nearly 20 years, I rode the NYC subways, one day before London. Some sort of irony there. I can only say, don't ride the subways on a warm summer day. It's far, far better than in the 1980's, but still. I insisted we take a cab back from the Museum to Grand Central, even though we didn't have a car seat for the toddler. Subways have their risks, too, I insisted. I wonder how much more risky holding a toddler without a seatbelt in a Manhattan cab is than holding one in a Manhattan subway. And how to weigh that against 45 minutes of, if not hell, at least a sweaty purgatory.

Anyway, while I didn't like the crowds, the Natural History Museum is a wonder. It struck me that most of it conflicts with creationism. The IMAX film on the scale of the universe was an unbelievable display of projection technology. They said it was the most sophisticated planetarium projector in the world, and I believe it. But no way was the show consistent with the universe popping into being 10 thousand instead of 15 billion years ago. Ditto for the dinos. I thought it was interesting how the Museum refused to show any (that I saw) mock ups of dinos with the colorful skin now standard post Jurassic Park. A plaque noted that we really don't know what they looked like, and stressed how much more research had to be done. If you care about dinos, that is. They don't do it for me; I'm more into mammals. The big North American mammal displays were stupendous, even if they are probably 75 years old or something. Incredible care obviously went into them. Indeed, they made wish I was in the Rockies chasing big horn sheep, instead of in the City, chasing my children. (But I often feel that way. I can't watch A River Runs Through It without crippling homesickness, even though I couldn't cast a fly to save my life. I just like the trees and stuff.) The collection of stuffed primates was astonishing. Dozens of apes and monkeys; I had no idea half of them existed, and I have read a fair bit about primates. Many of them creepy looking little fellows; some reminded me of former colleagues back at the firm. Highly intelligent no doubt, but scary. The descriptions of chimpanzee social life struck me as either extremely outdated or else, I am. I am under the impression chimps do indeed form social groups, that males do have a part in it, and that they are indeed territorial, at least in some senses, like attacking other chimp groups that get too close. It did make me wonder when the wall plaques had last been revised. The whole museum is set up to follow the phylogenetic tree. You walk forward in time as it were. Yet I suppose that would be out too under some versions of creationism.

As my religion is an insufficiently theorized version of Catholicism, I have no problem with evolution; indeed, I like it. But I have more contact with creationism than I ever thought I would through my martial arts instructor who is, it seems, a "young earth" creationist. He is highly intelligent and could kill me with his bare hands, something I sense when grappling with him deep in my chimpy brain. It is an extremely unpleasant feeling, for reasons I tend to think are evolutionary.
posted by thomas at 7/09/2005 02:13:00 PM

 
Gulags
By Tom Smith

Definitions.

Those darn communists.

Marx the genius.
posted by thomas at 7/08/2005 03:33:00 PM

 
Enemies of all humankind
By Tom Smith

Exactly.

This is interesting.

You can be one too.

WHERE they come from.
posted by thomas at 7/08/2005 03:03:00 PM

 
Oh is that all
By Tom Smith

Every so often what the British call a sad git indulges in this sort of behaviour. Over a public utility charge or more likely, a child custody dispute, he gets his shotgun, takes over an office, and demands to be heard. Often he ends up shooting himself when the police arrive. One tends to think, well, the sad git was insane. But, one realizes, billing or custody disputes can drive even a good, if weak, man crazy.

But this is the exception to the rule. The rule is, if you are the sort of people who blow up as many innocents as you can, in order to get what you want, chances are what you want is very unreasonable. It is not just that your methods are flawed. You probably want something you cannot get by persuasion or purchase.

So now we have al Qeada and associated nutcases telling us, either you and the rest of the worlds billions convert to our extremely funny version of Islam or else we'll blow up dozens of you here and thousands of you there. It raises a question just what sort of fundamental life style change one would be willing to roll over for. If pre-liberation Afghanistan or "modern" day Saudi Arabia were some sort of science fiction wonderland, where everyone just ran around in their bathrobes all day having fun and the robots did all the work, you might think, well, maybe they have a point. But instead, what one sees is darkest ignorance and poverty, combined with slavery, and the masters having to go to church God knows how often and spend the rest of their time listening to debates about why God created the mosquito. And ladies have to wear those parachute thingies. I don't think so. Before that, I would become a Unitarian or something.

These fruitcakes may know their Koran, but they need to get a clue about Americans, and they don't know the British too well either. After we clear out of the Middle East, so they can settle down to selling oil and building nuclear weapons, these nutters want to get to work on the rest of the world. Not only freedom of religion and speech, but beer and cable TV would be among the first things they'd get rid of. It makes you wonder who they think they're dealing with. Most Americans would gladly see most of their towns and cities reduced to smoking rubble before they would accept going back to only five channels. All that good stuff in the Constitution, we'd never even get to. And the British? They are not as loud as Americans, but there is a hard core to them, and of them, that would charge into machine guns before they would let anyone tell them they couldn't have a pint.

The sooner the American and British left realize this, the sooner they could stop wasting everyone's time. Oddly enough, however, the gruesome Gollaway has a point. Terrorist attacks are the price we pay for not giving in to this particular insane ideological outbreak. Just like WWII was the price we paid for electing not to live in the unbelievably creepy fantasy world of a metastisizing German death cult. Or the Cold War was the price of going elsewhere than according to the bizarre maunderings of a deeply confused late Victorian economist, as interpreted by various Russian sociopaths. People just want to watch the telly, have a pint, do their bit at work, but, oh no, it's we'll blow your limbs off unless you roll over for the rantings of some guy who lives in a cave in his bathrobe. Like that's going to happen. At least the Communists promised a utopia. These Islamic horrors turn whole countries into gulags and say, no, really, this gulag is how God wants you to live. One supposes God must feel rather insulted at the implication. I know I do.

But to get to my point. London shows what we already knew. These are evil, crazy people seeking evil, crazy goals. They do that, and it happens a lot more than one would wish in history. We don't have a lot of options except to crush them, and even if we had, we're doing the world a favor when we do.

AND this seems exactly right to me. (via instapundit)
posted by thomas at 7/08/2005 08:27:00 AM

 
Al Gonzales, Abe Fortas and Cronyism
By Gail Heriot

"‘Al Gonzales is a great friend of mine,’" Bush recently said in a USA Today telephone interview. "‘When a friend gets attacked, I don't like it.’''

Precisely. And that is one of the reasons that appointing close friends to critical governmental positions is not the best Presidential practice when it can be avoided. It gets emotional. It’s easy to lose one’s judgment. And that’s part of what Robert Novak suggests in his latest column, entitled, "Bush Is Biggest Obstacle to a Conservative Court." (See my earlier post on the same topic and Novak’s earlier column on Gonzales.)

It’s not that a President should never appoint a friend to high office. Presidents tend to have a lot of talented friends. If you excluded them all from Presidential appointment, the country would be poorer for it. But it does mean that the fact that a potential appointee is a "great friend" of the President is not an argument in favor of his appointment.

And I think it goes further than that. A gentle thumb on the scale should go against anyone who is the President’s friend as a counterweight to the deference the Senate should normally accord the President. The closer the friend, the less gentle the thumb. When the President appoints a close friend, he should be prepared to demonstrate that the nominee is indeed the best person for the job.

That’s impossible to do with Gonzales. For one thing, even if Gonzales were the best person in the abstract (and he does not appear to be), a Justice Gonzales might have to recuse himself from crucial decisions on the lawfulness of Bush’s War on Terror. As former White House Counsel and Attorney General, he has had a major hand in formulating these policies. He cannot now be their judge. A court that is short one Republican-appointed justice is the last thing President Bush should want.

Does my argument against appointing friends mean that Bush should never have appointed Gonzales to be Attorney General? I don’t think so. The Attorney General is part of the President’s Cabinet. The ability to get along with the President and do his bidding are important assets there. And the President had every right to take into consideration his knowledge that Gonzales has that ability for the Attorney General's position.

Sure, it’s true that friendship with the President and ability to get along with the President are very similar things. But they are not the same thing. Most of us have known someone who was very pleasant and easy to work with and yet with whom we did not share any kind of relationship that extended beyond the work we were doing together. Often they were potential friends, but for one reason or another it never happened. Similarly, most of us have had close friends with whom we just could not work without tempers flaring and misunderstandings occurring. A President may take into account his ability to work well with a potential Attorney General. It is therefore sensible for the Senate to give him wide latitude in making appointments to that office.

It’s worth pointing out that the only filibuster in Senate history over a judicial nomination prior to present times was over LBJ’s nomination of his long-time friend Abe Fortas as Chief Justice. (Fortas was already an Associate Justice on the Court appointed by LBJ.)

Fortas’ long-term friendship with LBJ was not the only reason for the bi-partisan filibuster against him. Some Senators were concerned about Fortas’ integrity. Others were concerned about what they regarded as a liberal judicial philosophy. But the group–24 Republicans and 19 Democrats–all considered Fortas’s close relationship to Johnson to be troubling and a reason not to accord Johnson the usual deference granted to Presidents in these matters. The leader of the opposition to Fortas was Senator Robert Griffin of Michigan–a moderate to liberal Republican, who explicitly argued that it is "highly unusual for a President to subject himself to the charge of cronyism with a nomination to the Supreme Court."

Alas, the good Senators turned out the be right to refuse to defer to LBJ’s judgment. Fortas’s integrity (or at least his ability to avoid the appearance of impropriety) left something to be desired. Fortas had been one of the founding partners of Arnold and Fortas (now Arnold & Porter) in Washington and was used to living quite well. When he was initially considering whether to accept the nomination as Associate Justice, he was concerned about the effect it would have on his income. Financier Louis Wolfson (later convicted of securities fraud) offered to pay him $20,000 for life in return for unspecified services. Fortas initially accepted, but later changed his mind. When this information was made public, however, it was enough to shock the nation (and rightly so in my opinion). Fortas became the first and only Supreme Court Justice to resign in disgrace.

No one questions Alberto Gonzales’ integrity. What they question is whether he is the kind of legal and constitutional heavyweight that is demanded by the office and which most of the other potential nominees on Bush's short list are. Let’s hope Bush doesn’t let his friendship with Gonzales cloud his judgment.
posted by Gail at 7/07/2005 06:16:00 PM