Thoughts from
San Diego on Law, Politics, and Culture

 
Rick Hansen predicts Alito won't be confirmed
By Tom Smith

Here. Rick is an astute observer. I hope he's wrong.
posted by thomas at 10/31/2005 03:10:00 PM

 
Alitio song contest
By Tom Smith

You think you can do better?

(to the tune of Maria, from West Side Story)

(spoken) Alito. . .
(sings)
The most beautiful sound I ever heard:
Alito, Alito, Alito . . .
All the beautiful sounds of the law in a single word . .
Alito, Alito, Alito . . .
Alito!
Bush just named a judge named Alito,
And suddenly I find
I'm feeling much more kind
To he!
Alito!
I've just read a case by Alito,
And suddenly I've found
a jurist who is sound, Hee Hee!
Alito!
Say it soft and it's school kids praying.
Say it loud and it's liberals braying!
Alito,
I'll rarely stop saying Alito!
The most beautiful sound I ever heard.
Alito.
posted by thomas at 10/31/2005 09:38:00 AM

 
A Catholic majority on the Supreme Court?
By Tom Smith

Very interesting. Does this mean fish on Friday in the Highest lunch room in the land? Should there be a Supreme Court chaplain? Will the Rehnquist Christmas parties go on?
posted by thomas at 10/31/2005 09:35:00 AM

 
Who invented Halloween?
By Tom Smith

Irish Catholics, of course. Well, Celts generally, including Scots and so forth. November 1 was their new year's day, and the day before that, the feast of Samhain, the Lord of the Dead, during which the dead, witches, goblins and others returned to earth for a while. Scary masks and bonfires were to scare them away. In 835, Pope Gregory IV moved all martyrs' day, later all saints', to November 1, cleverly co-opting the holiday. The day before it became known as All Hallows Eve, shortened to Halloween. The custom of going door to door asking for candy is Irish in origin, brought here my immigrants. The Irish custom was to go door to door collecting items for the village feast held on All Hallow's Eve.
posted by thomas at 10/30/2005 04:21:00 PM

 
Local TV star needs help
By Tom Smith

I am tentatively scheduled to talk on camera to a local Fox News reporter about blogging, the FEC, and the First Amendment on this coming Tuesday afternoon. I will try to work in the line about how I will stop blogging when they pry my keyboard from my cold, dead fingers. In the meantime, if anybody out there has some good links for things I can read beforehand, so I don't make me and bloggers generally look like complete idiots, I would be happy to receive them. While my general view is, the FEC will stop me from blogging on politics, like hell, I would like to have something more professorial to say. Maybe even a case or framer's sentiment to quote. Now I wish I had ordered that Navy Jack to hang in my office.
posted by thomas at 10/29/2005 05:14:00 PM

 
A man after me own heart
By Tom Smith

Just you, a small Scottish island, and a pub. You own the pub.

posted by thomas at 10/29/2005 05:13:00 PM

 
My feelings exactly
By Tom Smith

Judge Kozinski on bearing arms. I know an armed population is not a good thing per se. You have to have the social infrastructure as well.
posted by thomas at 10/29/2005 10:42:00 AM

 
Operation Call Home
By Tom Smith

North Coast Republicans are mounting Operation Call Home, a drive to collect calling cards and pre paid cell phones for service men and women in Iraq. Check it out.
posted by thomas at 10/27/2005 09:47:00 AM

 
Anatomy of offensiveness
By Tom Smith

Am I the only person wondering how exactly Coach DeBerry's remarks are "hurtful" and "offensive"? I don't deny that they are, since as I have proven in the past, I have no huge insight into what offends other people. DeBerry reportedly remarked:

On Tuesday, in discussing last weekend's 48-10 loss to TCU, DeBerry said it was clear TCU "had a lot more Afro-American players than we did and they ran a lot faster than we did."

"It just seems to me to be that way," he said. "Afro-American kids can run very well. That doesn't mean that Caucasian kids and other descents can't run, but it's very obvious to me that they run extremely well."

DeBerry appears to be saying that African-American athletes are predictably better, or at least faster, than those of other races. Or perhaps rather that a school that has trouble attracting African-American athletes is going to have trouble competing with schools that do not. Is that a false statement? Or true, but not mentionable in polite company? If an NBA team found itself in a city that was inhospitable to African-Americans, and so had trouble signing them, would it be surprizing, or just not discussable, that for that reason they lost most of their games? If anything, DeBerry seemed to be trying to put pressure, in his ham handed way, on the Air Force Academy administration to do a better job recruiting minorities. Does he need to apologize for that?

Or maybe it is everybody who is not African-American who should be offended? I'm really not sure. Is the idea that any racial stereotype, even a positive one, is not permitted? If I were to say, he was brilliant and hard working, as so many Jews are, do I owe Jews an apology, or all non Jews? There is something here I am not getting. Beautiful Philippina women, humorous Irish men, delightful Italians, trustworthy English . . . are all these just wrong? Does saying such things imply all other women are ugly or men dour? Or is it that I am somehow thought to be implying people with some virtues must not have any others? I say they are a handsome people, therefore I must be implying they are stupid? I am not, but is that what it is feared I am implying?

I am all for sensitivity. Some topics merit and demand it. But sometimes political correctness seems to demand a narrowness of vision that doesn't allow us to enjoy diversity, only to insist upon it.
posted by thomas at 10/27/2005 09:13:00 AM

 
Miers Withdraws
By Gail Heriot

CNN reports.
posted by Gail at 10/27/2005 06:26:00 AM

 
"Rosa Parks and History"
By Gail Heriot

Nice column by Thomas Sowell.
posted by Gail at 10/27/2005 06:05:00 AM

 
And furthermore
By Tom Smith

Another reason not to give W any slack is this. Remember how you felt about those Democrats who defended Clinton when he didn't deserve it? The feminists who suddenly thought sex was personal instead of political? The civil libertarians who saw nothing sinister in the way anybody who attacked the Bill and Hillary show were systematically demonized, as if there was nothing scary about an IRS or FBI as long as the Democrats were in the White House. One rightly thought they were hypocritical party hacks, not to be taken seriously. Well, I have no intention of being that kind of Republican. If you can't come out and call an unbelievably, surreally awful nomination exactly that, what good are you? Hugh Hewitt is just embarrassing himself, showing with every day he carries on that he does not understand what the last 25 years or so of conservative jurisprudence has been about.

And besides, the nomination of Professor Bernake as Fed Chairman shows W can make a good nomination if he wants to. He got some good advice there. So macroeconomics is serious stuff, but for constitutional law, a crash course will do. How would Wall Street and the rest of the world feel if W had nominated some personal banker friend from Texas to be chairman of the Fed and said, oh, don't worry, he can pick up everything he needs to know about inflation targets and credit channels on the job, ho ho. Everyone's hair would stand on end. But law, heck, anybody can do that. Economics is science, but law is just personal opinions, I guess. I actually think economics is a lot more scientific than law, but that's no reason to insult all the conservative lawyers in the country with his nomination. What did conservative lawyers ever do to hurt Bush?

I hope Miers withdraws before the hearings, because I can't bear to watch them. I only recently recovered from the Thomas hearings. Unbearably awful. My in-laws thought I was losing my mind, and they were probably right.
posted by thomas at 10/26/2005 07:52:00 PM

 
Google aka Skynet
By Tom Smith

I guess it's OK as long as they're not evil.

Speaking of Skynet, John Battelle argues AI will come from search. I didn't think it was much of an argument, but apparently some smart people think this is so.
posted by thomas at 10/26/2005 05:50:00 PM

 
Awesome Open Library
By Tom Smith

Check it out. Story here. It's going to be big, I tell you, big!

posted by thomas at 10/26/2005 05:41:00 PM

 
Miers mystery deepens
By Tom Smith

Some Republicans are expressing puzzlement over Harriet Miers 1993 speech favoring the right to choose to get an abortion, or not, depending on one's choice, presumably. Yet, as Ralph Emerson is said to have said, a foolish consistency is the hobgoblin of little minds. Either that, or opportunism or just a certain shallowness or stupidity. Or all of the above.
posted by thomas at 10/26/2005 05:13:00 PM

 
A new constitutional right?
By Tom Smith

A unique perspective. As a person with a bald spot and a mortgage, however, I resent one of the comments.
posted by thomas at 10/25/2005 03:55:00 PM

 
Opponents of the Miers Nomination Getting Organized
By Gail Heriot

Opponents of the Miers nomination shouldn't have had to go this far. But evidently the rumors that Bush is a stubborn guy are true. Anyway, over the weekend an organization called "Americans for Better Justice" was formed. Its web site states:

"Americans for Better Justice, Inc. ... is made up of grassroots conservatives from across the country who support President George W. Bush, but disagree with the nomination of Harriet Miers to the Supreme Court.

ABJ supports the nomination to the Supreme Court of candidates who are highly qualified and have demonstrated a proven commitment to the principles of judicial restraint and respect for the original intent of the authors of the Constitution. Through education and advocacy, we will respectfully urge the Bush Administration to withdraw this nomination."

The Board of Advisors includes such thoughtful conservative opinion leaders as Linda Chavez, Mona Charen, David Frum and Virginia Postrel. These guys don't oppose Harriet Miers. They really don't. They oppose her nomination to the Supreme Court. They understand a seat on the Supreme Court is far too important a thing to be given to a pal of the President who has none of the credentials Americans have a right to expect of a Supreme Court nominee. What's disturbing is that Bush does not seem to understand this yet.

Look for ads opposing the nomination to start airing soon.
posted by Gail at 10/24/2005 11:17:00 AM

 
Preppy update
By Tom Smith

State of preppiness report today here. Preppitity was a big deal in the eighties, when I was still in school. I married a young lady from New Canaan, Connecticut who was a sophomore at Bryn Mawr when I met her, so I have been exposed to a certain amount of the phenomenon. In fact, our nineteenth anniversary is tomorrow, so today I am off to Tiffany (n.b. not Tiffany's) for some money which will be very well spent. Lacoste shirts, go-to-hell pants and the cocktail are all fine by me, but especially that civilized moment when the sun just passes the yard arm. Ms. Wallace fails to mention some of the harsher facts about true preppiness and its decline, however. Perhaps the harshest is the inexorable operation of the bell curve. You can't get into Harvard or Yale any more just because your family has always gone there. It certainly helps, but if you are a dim bulb, Yale has better ways to spend its money. One of the thickest planks I ever met was descended on both sides (first and last names) from New England names you would recognize. He was tall and all my female friends said, drop dead gorgeous. In fact, one of the memorably nauseating memories of my undergraduate days was a group of his admirers actually weeping as they discussed his family having to let their servants go, and struggling mightily with such things as having to carve the dinner themselves. That many of these admirers were nice Jewish girls from Manhattan made it all that much more baffling. Old dense McPlank was too dumb to get into law school, but loved horses, and eventually ended up as a chiropractor in the South, where I'm sure the horses and society ladies are keeping him busy, though he may wonder from time to time why he is not secretary of state. So, meritocracy and regression to the mean -- very bad for the WASP elite. Cry if you want to.

Then there's the whole disfunctional WASP family thing. It's hard to hold the family together on stiff upper lips, squash, and post-Christian espiscopalianism. Should mummy stick with daddy even though he is drunk most the time just because it would be tacky to give him the heave-ho? Arguably not. Hard to keep up the dynasties when mummy and daddy are split. You need that whole family values thing to succeed generation after generation. That's part of why it's laughable for Samuel Huntington to worry about Mexican-American culture taking over the country. I will start worrying about it when Mexican-American dads are blitzed by 5.45 andcan't remember their kids names, and would like to forget their wives's.

Then there's the whole money thing. Going back to New Canaan over the last 24 years, I have seen it happen. Now the former throbbing heart of preppidom is crowded with Lexus SUVs and Mercedes, rather than four year old estate wagons. Idle-fit trophy wives say "fabulous" into their cell phones as they clip clop down the sidewalks in their god only knows how expensive heels. Investment bankers try to cut in front of you at Starbuck's, requiring you to give them that look that informs them you will break their arm if necessary. Service at local establishments has gone from the chilly rudeness of WASP matrons in financial distress to the phony friendliness of young persons in college somewhere (an improvement, yes, but definitely a change), and parking is impossible. There is still Christmas carols on God's Acre and fireworks at Waveny, but it's not the same. Now instead of assuming everybody is comfortable, you know everybody is rich, trying to recreate a past they themselves have wiped away. I do miss the old New Canaan in that respect, what what are you going to do?

Overall, though, how much is the passing of preppiness and the WASP ascendancy to be regretted? Not very much, in my view. Part of the reason I don't care is that I am a Catholic (though my father is a WASP), and the real WASP prejudice against Catholics (not to mention Jews, and any other minority you wish to mention) is pretty tiresome. Jeanne and I had our wedding reception not at the New Canaan Country Club, which has few Catholic members, and did not even admit Catholics until fairly recently, but at Spring something or other, a few miles out of town (but still quite nice). The NCCC makes the local monsignor an honorary member, and you may ask, would a Catholic priest play golf at a club that otherwise did not welcome Catholics very heartily, but only if you know little about priests and golf. So, if the WASP ascendancy is these days a declinacy, because Muffy is making jewelry in Aspen, and Chip is in rehab, and Daddy is living with his girlfriend in the Bahamas, and mummy is playing bridge in Greenwich, well, I just can't get too broken up about it. Love the clothes, though.
posted by thomas at 10/24/2005 09:36:00 AM

 
Those darn Syrians
By Tom Smith

By all means, let's not offend the Syrians.

AND that darn UN, up to no good again!
posted by thomas at 10/23/2005 05:57:00 PM

 
Cool astro stuff
By Tom Smith

Center of the galaxy update.

posted by thomas at 10/23/2005 05:20:00 PM

 
"Misunderestimating" Your Audience
By Gail Heriot

A year ago (or was it two?), White House Chief of Staff Andrew Card gave the keynote dinner speech to the Federalist Society's Annual Lawyers' Conference. Card was not the originally scheduled speaker that night. He was replacing someone of equal or greater celebrity, but quite honestly I can't recall who it was--Bush, Cheney, Ashcroft, Norton ... somebody. Whoever the original speaker was, he or she couldn't make it on account of some matter that trumped our banquet and had cancelled a few days before. It was extremely kind--even heroic--for Card to fill in.

The speech itself was not a raging success. Like many keynote speeches, it was long and dull. Most important, it was pitched too low for a room full of mostly politically sophisticated lawyers. But I was inclined to cut him a lot of slack given the circumstances. "Bless his little heart," I thought to myself, "He probably shouted to his assistant as he raced out the door, 'Quick! Get me the text of a speech that I can give to the Federalist Society!' And by mistake, the assistant gave him the speech that he had given last year at the Boy Scouts' Jamboree."

Some of my colleagues at the event were not as inclined to cut him that slack. Two of them independently remarked to me that Card's speech was the worst they'd ever heard. That struck me as an overreaction at the time (and it still does, though the fact that two people said it probably means something). I have heard much worse speeches in my time. But it's hard to deny that Card's speech suggested that he just might not have understood the group he was addressing.

Indeed, the Miers nomination is evidence of such a "misunderestimation." Card has been identified in the media as the driving force behind the ill-fated move. If so, I wonder if part of his problem isn't a serious underestimation of conservative organizations like the Federalist Society and of conservatives generally. Is it possible that when Card called out to his assistant he said something like, "Quick! Get me the text of a speech I can give to the Federalist Society! The one I gave last year to the National Association of Imbeciles will do!" ?

I have a difficult time understanding how the folks at the White House could have been taken surprise by the reaction they have gotten so far from conservative lawyers (and from conservative generally). And yet they apparently were. Did anyone there really believe that no one would look askance at this exercise in cronyism? Did they think no one would notice the thinness of her resume? If so, there has been a serious failure of communication over all these years. It's a real shame that it has taken a botched Supreme Court nomination to bring it to the Adminstration's attention.
posted by Gail at 10/22/2005 09:31:00 PM

 
Anscombe kerfuffle (or Brave, brave, brave, brave Sir Simon)
By Tom Smith

This is interesting, regarding Simon Blackburn's savaging of G.E.M Anscombe in a recent London Review of Us.

Couple of points. Check out this quotation: "Her world was Manichean, and, like others in her Church, she was quick to diagnose any hint of dissent as a symptom of darkness and corruption, and therefore to be treated as enmity or heresy." (Anscombe was famous for her uncompromising Catholicism.) It's good to know it's still OK to be an anti-Catholic bigot in the UK. Still, it sounds a little jarring. Compare: "Like other Jews, X thought . . . " "As a Muslim, Y held . . . " But let us get into the spirit of this! As a left-wing British academic, it may be of course impossible to embarrass Blackburn with mere accusations of bigotry against Catholics, and no doubt against Americans either, and quite probably against Jews for that matter. He is after all, a Brit! How am I doing? Am I evincing that rigor of thought and fineness of judgment to which we rightly hold philosophers?

Next, it is amusing to consider how long brave Sir Simon would last against Elizabeth Anscombe were she still alive. She was a controversialist for whom the word formidable doesn't begin to do justice. She would have, as is sometimes said, eaten poor, brave Sir Simon for lunch. And here is brave Sir Simon attacking Anscombe for being a Catholic -- now in contemporary Britain, that really takes courage. What a rock! What a veritable flint of integrity! And in passing, Blackburn does not miss the chance to attack Blair and Rumsfeld (please note, a Jewish name. Is he Jewish? I don't know! He doesn't look Jewish! Sorry -- just practicing!). Where does he get the courage? The daring? He doesn't need to do virtue ethics; we can just watch how he lives! A very model of the virtue of -- sorry, what is it we call that virtue that allows you to attack the reputations of your intellectual and moral superiors after they are dead, when they can't defend themselves, but if they were around to do so, it is perfectly obvious they would have cleaned your clock for you? Did the Greeks have a word for that? Is there a Greek phrase that means, "boy, things have really gone to shit"?

In her day, Anscombe campaigned fearlessly against the bombing of innocent civilians, even during WWII, practiced Catholicism in the heart of a University where Catholics could not even study a hundred years earlier (and where, I can tell you from my years there, were none too popular even in the 1970's), and later protested against abortion, even I believe to the point of going to jail at least once, and to the complete disapproval of nearly everyone in the British intellectual class, about which her indifference was complete. I don't agree with everything she said or did, but she was a large and fearsome intellect, and an utterly courageous soul. If she were alive, Blackburn would be hiding under his chair. And if she were alive, her inveighing against suicide bombing and no doubt killing of civilians in Iraq as well would be peeling the paint off walls.
posted by thomas at 10/21/2005 04:35:00 PM

 
Dude, that's really weird!
By Tom Smith

This is genuinely weird. Justice Scalia showed it to me once when he was really stoned.
posted by thomas at 10/21/2005 04:25:00 PM

 
Pull the Plug
By Gail Heriot

Whatever one thinks of Harriet Miers, her nomination to the Supreme Court appears to be doomed. Indeed, I suppose it's possible that the decision to do so has already been made. Tradesports suddenly dropped down to 20 this morning (from about 60 yesterday) before rebounding to about 37. Does somebody know something that I don't? Or was this simply a reaction to today's revelations about Miers' activities with the Texas Lottery Commission? Either way, things look very bad.
posted by Gail at 10/21/2005 09:15:00 AM

 
Other clauses she forgot
By Tom Smith

In addition to the Proportional Representation Clause, here some other clauses our next Associate Justice might have mentioned:

1. The Restive Commerce Clause
2. The Separation of Church and State Clause
3. The Privacy Clause
4. The Sharp Clause
5. The Equal Pay for Equal Work Clause
6. The Don't Mess With Texas Clause
7. The Frequent Flyer Clause
8. The Ladies First Clause
9. The Living Law Clause
10. The Go Along to Get Along Clause

This is all just surreal. If I were applying for a job as a Justice of the United States Supreme Court, I would let somebody who knew some constitutional law proof read my application. Wouldn't you? Don't they have people in the White House who can do that sort of thing? What is going on in there? Is there is crisis in the control tower of Spaceship America?
posted by thomas at 10/20/2005 05:03:00 PM

 
Miers mired?
By Tom Smith

Sorry. That was the best I could do, or as our next Justice would put it, the, best I, could; do. Tradesports now has her confirmation at around 60. Depressing, but it strikes me as about right.
posted by thomas at 10/20/2005 04:47:00 PM

 
Dear Professor Smith
By Tom Smith

We have read carefuly your submission [code>art title] to the South Arkansas Journal of Law and Husbandry. Each year we receive thousands of very good articles that we do not have room to publish. We regret that we are not able to publish your article at this time. Regret, yes, but implicit in this decision is our judgment that we would regret it even more if we were to publish your article, but we are trying to be polite here. Not at this time, true, but we do not mean to imply that there is actually any other time when we would be willing to publish your article. Again, it is just one of those things one says, apparently.

We hope that if in the future you are ever having a really difficult time finding a place that will publish your work, you will keep us in mind. We get a lot of submissions like that, and we even publish some of them.

Please keep in mind our upcoming symposium issue, The Law of Pigs: What's All the Squealing About?

Sincerely,
Delbert Sasquatch
Article Puhbah


Dear Professor Smith:

We are Harvard. We are not amused. We have received your article and assigned it tracking number H19249i6Q-000000-7649827649010-nonconlaw-xxx-notcrit-124307591-!!??-5. Please refer to this tracking number in any correspondence with Us. This is not intended to encourage any correspondence with Us. We may get back to you eventually. We are Harvard. We are not amused.
Sincerely,
H. Orbert Winston-Fishmonger
Senior Editor
Future Wall St. Weenie


Dear Professor Smith:

We have received your article about some rather technical law related stuff. None of us here at the Respectable Law Review were in the least qualified to read it, let alone judge its quality, but that's what we do, so what the heck! Having reviewed it, we decided if we didn't really understand it all that well, probably most of our readers would not either since, evidence to the contrary though there might be, we are probably smarter than most people. Anyway, we regret to say, etc. etc. You know the drill.

You may wonder how it comes to be that people with our resumes come to be judging the work of someone with your resume and past publications, and frankly, so do we! Life can be silly sometimes! But we do know our bluebook, and frankly, your footnotes need some work. In the first ten footnotes, we found no fewer than five violations of standard Bluebook format. Professor, really. F2nd?! Harv. L. R.?? Puu-leeeease! Also, you did not enclose a copy of your resume! How are we supposed to know if what you have written is any good if we can't see if other people think your other articles are good, which we can tell by where they have been published?! And, we note that you are a professor at a not-that-prestigious law school. How are we supposed to know if your article is any good if you don't come from a famous school?! It's not like we're experts! I don't even have time to do all the reading for my classes sometimes!!! Like I'm late for class now!!!! ( ; I do have some suggestions, however, that I think might really improve your article. You discuss the laws of inheritance in Part IV.B.i.1 (2) on page 234, but you never once discuss whether companion animals can inherit property! Why not? Animals are very important. I know my cat Fluffy is very important to me. You should really think about that professor. With best of luck for your future career,
Sincerely,
Suzy Enthuso
Articles Magistrate
Big State Law School Law Review
Future Supreme Court Nominee
posted by thomas at 10/20/2005 10:15:00 AM

 
Even worse
By Tom Smith

Not to beg the question, Gail (sorry) but I can beat that. Yesterday on CNN, I heard a news reporter use the word "efforting," as in "we're efforting that," meaning "we're trying to find out more about that." She wasn't kidding. The rest of her syntax was fine, even pompously so. How unbelievably dreadful. "Working an issue," meaning "working on a problem," was bad enough. I can tolerate a police officer "working an accident." Peace officers use lingo; they need to, and it can't be stopped. But bureaucrats "working issues" are just trying to make it sound like they are working, or rather, efforting. In any event, "efforting" is a word that must be stopped.
posted by thomas at 10/19/2005 09:44:00 PM

 
Big brother is watching
By Tom Smith

Better redo that last batch of 20's.

posted by thomas at 10/19/2005 09:42:00 PM

 
Begging for a Bruising
By Gail Heriot

Yes, I know that Right Coast readers are on the whole a pretty intelligent group and hence unlikely to be guilty of the sin of which I am about to complain. And yes, I know that I shouldn't really be using this blog to complain about other people's word choice. I risk boring everyone. But the problem is driving me mad.

I'll try to be brief: An argument that "begs the question" is a faulty argument that implicitly assumes the thing that was to be proven. A person who is "begging the question" is thus avoiding the question. It is not a good thing. It is a bad thing--a very specific bad thing. Recently, however, I've been hearing the term used to describe a speaker who has caused his listener to want to raise a question. That's wrong. An interesting storyteller does not "beg the question of when he will return."

Lord knows that I make mistakes too. So far, however, I've tried to avoid sucking the life out of a perfectly serviceable word or phrase without replacing it with something equally serviceable. I would appreciate it therefore if you would punch the daylights out of the next person who uses the term incorrectly. It's for the good of clarity in the English language. And he's begging for it anyway.
posted by Gail at 10/19/2005 05:42:00 PM

 
More elitism, about Miers
By Tom Smith

Once again, academics elitists are criticizing, Miers for writing that is not stylish and lacking flair. As if this, is the the most important thing in a person who has bursted so many barriers! For many times, the practical implications of lawyering in the real world, is not about just writing but negotiating, making deals practical matters. The Suprme "Court besides needs women who are its members. This lady was president of the Bar in Texas a traditionally all male organ. So for the Supreme Court to have her would be good.

Writing and sharp legal thinking are not necessarily always the same thing. But I wonder, could some pajama clad blogger get ahold of this future Justice's LSAT's? I know, it's not really relevant. I would just like to know.

In truth, however, there are some other pretty dreadful writers on the Court. Mr. Justice Souter, for example. His problem seems to be more periods than commas, though.
posted by thomas at 10/19/2005 05:17:00 PM

 
Bush's Off-Key Message
By Gail Heriot

The Bush administration continues to have a political tin ear when it comes to the Harriet Miers nomination. Senators Brownback and Allen, both presidential aspirants, have evidently been told that they will receive no help from Bush if they don't get in line behind the Miers nomination. Political arm twisting isn't pretty under the best of circumstances. But in this case it is made doubly disagreeable on account of the identity of person selected to deliver the message. The task has been given to Tom Rath--former New Hampshire Attorney General. The problem is that this is the same Tom Rath who "actively assisted" in the confirmation of another Supreme Court nominee a few years back--David Souter. Other sources call Rath a "close friend of Souter's since the 1970s." Whatever one thinks of the merits of the Miers nomination, it would seem prudent for the Bush administration to avoid such symbolic blunders.
posted by Gail at 10/17/2005 01:27:00 PM

 
Yet another case of everything you learned in college is wrong
By Tom Smith

Interesting review of an important book (it sounds like) on the history of civil liberties in the US.
posted by thomas at 10/17/2005 12:23:00 PM

 
John Fund column
By Tom Smith

Here's the link. Looks like scoop city for Fund and the WSJ.

What a mess. Fund's characterization of Miers as a "superstealth" candidate is fair. To all appearances, Miers looks exactly like a liberal pretending to be a conservative. If the assessment of the Texas judges is correct, she is a conservative who just looks like a liberal pretending to be a conservative. However, if the Texas judges are just covering for her, then she would be a liberal who friends just say she is a conservative who looks like a liberal pretending to be a conservative, when in fact, she either is a liberal pretending to be a conservative, or would shortly become one, before she became just a liberal, which is my best guess at this point.

AND Frum has this to say:
Fund reports that the White House arranged for surrogates to guarantee a group of prominent religious conservatives that Miers would vote to overturn Roe v. Wade.
Can we pause to absorb the full magnitude of this catastrophic misjudgment?
1) Conservatives have argued for years that it is utterly improper for senators to probe nominees' personal views on religion and abortion. With this stunt, the White House has not only invited but legitimated a line of questioning that conservatives have opposed for almost two decades.
2) If Fund is right, the White House was acting in such a way as to persuade a group of religious leaders that they were being given more information on a nomination than would be given to the US Senate. Congress - and yes Republicans in Congress - already feel that the White House treats them with contempt. Now congressional-executive relations have been damaged even further, with potentially lethal consequences for everything that remains of the president's legislative agenda.
3) The stunt also threatens Republican relations with religious conservatives. The assurances offered to the Arlington Group were almost certainly empty. Newsweek is reporting that the White House has also recruited New Hampshire politico Tom Rath to threaten to oppose the presidential bids of any senator who opposes Harriet Miers. But Rath is as responsible as anyone for putting David Souter on the court. What on earth did they say to him? And if those assurances were contradictory, why should anybody believe either?
This is a deeply troubled nomination and will only get worse. For his own sake, for the sake of the party, President Bush should withdraw it now. If you agree, I hope you will consider clicking on that tally button above and adding your name.
posted by thomas at 10/17/2005 11:22:00 AM

 
Roger Clegg is a Cutie
By Gail Heriot

Purr.
posted by Gail at 10/17/2005 09:39:00 AM

 
Steyn on Islamic terrorists in Russia
By Tom Smith

Good as usual.

I'm aware the very concept of "the enemy" is alien to the non-judgment multicultural mind: There are no enemies, just friends whose grievances we haven't yet accommodated. But the media's sensitivity police apparently want this to be the first war we lose without even knowing who it is we've lost to. C'mon, guys, next time something happens in the Caucasus, why not blame the "Caucasians"? At least that way, we'll figure it must have been right-wing buddies of Timothy McVeigh.
posted by thomas at 10/16/2005 09:49:00 AM

 
Iran working on long range missiles
By Tom Smith

With a 3500 km range, Europe is well within reach.
A map.
posted by thomas at 10/16/2005 09:11:00 AM

 
Sexual harrassment: not that funny
By Tom Smith

Friday afternoon was the compulsory one hour training session on sexual harrassment now required under California law for any employee who is in a supervisory capacity. Since professors sometimes have research assistants, that means us, because we sometimes supervise research assistants, though in my experience, it rarely does any good. I was expecting the session to be horribly boring, but it was actually somewhat interesting. It left me though with a vague sense of unease.

Universities are sufficiently vulnerable to litigation that any agent of the university is advised to report to the administration any activity that might be sexual harrassment, such as if one witnesses a hug that might be unwanted. I don't want anyone to hug me, outside of my family, least of all my students or colleagues, but what if I witness a hug that the hugee seems not to dig? Well, I suppose that won't be a problem because I will witness no such thing. In any event, I've been around my law school for a dozen years or so, and I don't recall ever seeing a hug, unwanted or not. Arguably, the scarcity of hugs is more of a problem in law schools than unwanted hugs, but then I am not the legislative branch of this great state. Why Arnie could not have volunteered himself to undergo sexual harrassment training of some pumped up sort, instead of subjecting the rest of us to this, I don't know.

Another possible area of concern (sorry, it's hard not to talk this way when you are discussing "sexual harrassment" rather than "acting like a pig") is that professors have to report to the administration any complaints made to them by, say, students, even if students would want to keep them confidential. In fairness to the students, it seems like someone should tell them that if a student tells a professor she is being sexually harrassed by another student, or staff, the professor must immediately inform the administration of the incident. If students know that, some of them at least are less likely to tell professors of the problem, which hardly seems like the best way to fix it. But since I am unsure whether questioning the wisdom of sexual harrassment laws might be, in some way that ultimately defies logic, itself sexual harrassment, perhaps I should leave the point right there.

Some other guidelines that I probably misunderstood would seem to suggest that one should just never have a candid conversation, or any conversation really, about some topic that is arguably sexual, with anyone who is either also an employee of the university or a student, either on campus or off, at any time. I suppose an exception to this rule might be if the opinion or observation you are expressing is that you are asexual, have no sexual feelings, and generally have no views on anything sexual. The problem with conversations is that they could later be discovered if somebody sues a university employee and the university. If you had a conversation with X about the relative attractiveness of short versus tall women (or men), then X is later named as a defendant by a short plaintiff in a sexual harrassment suit, when you are deposed, you will have to say that, yes, X said he found short women (or men) particularly attractive. If you are X, so much the worse for you. It is fortunate for us that law professors are so much less interested in sex than other academics, who may well find such restrictions difficult to abide.

I suppose the most troubling thing to me is that it was unclear how significant is the threat posed to professors by groundless claims of harrassment. I have a webcam in my office. Should I record all meetings with students, so I can vindicate my claim that I did not refer to him or her as a "hunk" or "babe"? Would it even be legal to do so (use the webcam; "babe" is clearly out)? The response is, just don't be paranoid, but it would be comforting to know that as long as you had not done anything wrong or even unseemly, you had nothing to worry about. Unfortunately, I did not see any slide to that effect. Republican or not, it made me wish I belonged to a union, and had a union rep with a lot of tattoos and a name like Eddie. In truth, I have so many other things to worry about, that this one will just have to languish at the bottom of the list, somewhere after whether my pool man is correct that my newish fiberglass pool lining has wear issues, which is no trivial matter, I can tell you, unless you consider ten grand trivial.

It reminds me that six or more years ago I had a student who had fallen of his motorcycle, suffered a severe head injury, and become insane. More technically, he suffered serious impulse control and anger management problems common to head injury victims. He was not a good student even before he fell on his head, and was angered at the low grade I gave him. He wanted to meet, and when I was late to the meeting, he confided to my secretary that it was a good thing he had not brought his gun, because if he had, he was not sure what he would do. My secretary proposed that he go powerwalking with her to calm down. (San Diego.) I found out several days later about the gun talk, and was rather alarmed. I talked to one of the academic advisers, and she told me about the head injury and impulse control problems, which was sad, but not reassuring. I thought about calling campus security, and realized that would be a good way to make the student mad enough to shoot me. The university I reasoned would not expel him, but give him counseling, after which he would shoot me. If they expelled him, he would just show up on campus one day and shoot me. I realized that I was on my own; that if the insane, gun-owning student got mad enough to shoot me he probably would, and that the university was not equipped to protect me, (and I am fair-minded enough to assume they would have wanted to do so). So he was a student who got a lot of attention after that, and I wasn't late to any more appointments with him. The time I spent with him turned out to be a complete pain, but much better than a fatal stomach wound. In the end, we did not become friends; in fact, he was a rather unpleasant person. I believe he ultimately failed the bar.
posted by thomas at 10/15/2005 04:48:00 PM

 
Criminalizing conservatives
By Tom Smith

Troubling essay by Bill Kristol et al. My vote is for "deep malady at the heart of American politics." I don't know what can be done about it. At least the Independent Prosecutor law was allowed to expire.
posted by thomas at 10/15/2005 04:44:00 PM

 
SF Gate on Miers
By Tom Smith

Some interesting quotations from players.

posted by thomas at 10/14/2005 06:51:00 AM

 
Conspiracy Theorist
By Gail Heriot

I had never heard of Catherine Crier up until this past weekend. But I was in Barnes & Noble then, and I saw her new book "Contempt: How the Right Is Wronging American Justice." Out of curiosity, I opened it up. The dust jacket notes pretty much summarize her theme:

"America's federal courts ... make up the last relatively independent branch of government. But, there is a committed and well-organized confederation of ultra-conservative politicians, reactionary interest groups, and fundamentalist religious sects working to change that once and for all. And they are succeeding.

How? They have a plan. The have money. And they have millions of 'believers.' A majority of Americans strongly oppose the dogmatic agenda of this extreme right-wing onslaught, but that majority has remained silent. Someday, you and your family may wake up in a very different country, a country re-made in their intolerant image, a nation governed by their inflexible laws."

Among her targets is the Federalist Society, which she associates for some reason with both the Religious Right and white collar criminals like Kenneth Lay and Bernard Ebbers. You'll learn a lot about the Federalist Society if you read the book. Unfortunately, little, if anything, will bear even the slightest resemblance to the truth.

But that's not what interests me. It doesn't take a well-informed reader to see that this is a silly book--so silly that I shouldn't even be reviewing it on this fine blog. It's obvious from the moment one cracks it open. What does interest me is the peculiar reaction I have been getting from my friends when I mention Catherine Crier's name. They say things like, "I thought she was a conservative."

I must be really out of it, because I have no idea who this woman is, though judging from the photo she's a tv personality of some sort. But I figure I am doing a public service to get it over with and tell all my friends, acquaintances and readers at the same time that, no, Catherine Crier, whoever she is, is not a conservative. She is a conspiracy-minded loon.

Update: One of Crier's allegations against the Federalist Society is that it supports the so-called "Constitution-in-Exile movement." She has it wrong in two ways. First, the Federalist Society doesn't support any side of any issue. But if it did support movements, it probably wouldn't support the "Constitution-in-Exile movement" on the ground that, as PejmanYousefzadeh discusses at Tech Central Station, no such movement exists.
posted by Gail at 10/13/2005 05:07:00 PM

 
Al-Q in trouble in Iraq?
By Tom Smith

Intercepted letter suggests so.

posted by thomas at 10/13/2005 03:28:00 PM

 
Law School faculty diversity
By Tom Smith

Could be worse. You could be the lone Republican at Stanford. I wonder how many of these Republicans would actually admit to having voted, in mixed company, for Ronald Reagan?
posted by thomas at 10/13/2005 10:20:00 AM

 
Pinter wins Nobel Prize in Literature
By Tom Smith

Do you care? I don't care. All that existential yak yak bores me to tears. It's so boring, I'd rather watch a NASCAR race, and that's saying something. British lefty moral superiority also bores me senseless. I'm glad I don't live in the UK anymore, except I do miss the ale at lunch time and the sausage and eggs, even if it is a good way to get Mad Cow. I think we should just deal with the fact that sometimes life sucks, and spare ourselves the agony of sitting through a Pinter play. Sometimes life sucks. Now you know. That wasn't so bad, was it? And it didn't take the whole evening. Now there's time to go to the pub and have 2 or 4 pints of real ale. Then it turns out, life doesn't suck so much! And we should also just deal with the fact that the British left will never like us, and the left in general will never like us, because hating America is all that is left of the left. If the enemies of America advocated enslaving women and everybody else except a few pampered scholars under a wacko medieval theocracy, the left would suddenly see their point and support them. Oh, that's right, they do. They must really miss Uncle Joe. Poor things. Nothing to do but sit around giving awards to each other.

posted by thomas at 10/13/2005 09:40:00 AM

 
RNC blogger conference call
By Tom Smith

Interesting re blogo-influence. RC was invited but we had a previous engagement with the Pope.
posted by thomas at 10/13/2005 09:32:00 AM

 
Supreme Court Nominations News
By Gail Heriot

My friend John Fund has written a column entitled "How She Slipped Through: Harriet Mier's Nomination Resulted from a Failed Vetting Process." In it, he states that several large GOP donors have met to discuss running an ad campaign urging her withdrawal.
posted by Gail at 10/12/2005 09:37:00 PM

 
Arizona State University Says It Won't Allow Racially-Segregated Classes Anymore (and maybe this time it really means it).
By Gail Heriot

This is evidently ASU’s second offense. Back in 2002, the Foundation for Individual Rights in Education complained that ASU was scheduling history courses for which enrollment was "limited to Native Americans students." ASU promised to end the racially-exclusive classes.

Now it’s the English Department that is engaging in race discrimination. Certain English Composition courses were listed on ASU’s web site as being "for Native Americans only." The ASU administration apparently took the position that the practice was going on without its knowledge (which is certainly plausible but which does not exactly end the matter).
posted by Gail at 10/12/2005 01:07:00 PM

 
DDT: Don't It Always Seem to Go that You Don't Know What You've Got Till It's Gone?
By Gail Heriot

Yesterday, my fellow Right Coaster Tom linked to an article in the Washington Post that dealt in part with the terrible human cost of banning DDT. According to the article, a million people die from malaria each year, mainly in Africa, as a result of the DDT’s unavailability. It’s a tragic story of regulatory excess.

Last night I found I couldn’t get the old Joni Mitchell song "Big Yellow Taxi," out of my head. (According to my assistant Sarah, the song was sung more recently by Amy Grant.) Events seem to have come full circle. Joni Mitchell repeatedly asks in the song, "Don’t it always seem to go that you don’t know what you’ve got till it’s gone?" But she wasn't defending DDT in 1970, of course, she was attacking it:

Hey farmer, farmer
Put away that DDT now
Give me spots on my apples, but leave me the birds and the bees. Please!
Don’t it always seem to go that you don’t know what you’ve got till it’s gone
They paved paradise
And put up a parking lot

In view of world events since then, it’s clear that Joni was correct–sometimes you don’t know what you’ve got till it’s gone--but not quite in the way she thought at the time. Perhaps, therefore, a new version of the song should be written. I figure the rhythm needn’t be perfect, since this is, after all, a Joni Mitchell song. I offer the following as a start. Perhaps Joni herself has had a change of heart on DDT and would be willing to complete and polish it (or maybe one of our Gentle Readers would like to try it).

They Banned DDT
Then People Got Sick A Lot
With Yellow Fever, Typhus
And 500 million battles with malaria fought

Hey Joni, Joni,
Give us back our DDT now.
You can have your apples, but leave Ugandans free of disease. Please!
Don’t it always seem to go that you don’t know what you’ve got till it’s gone?
They banned DDT, then people got sick a lot

The last verse requires very little modification to fit the modern context:

Late last night I heard the screen door slam
And a big yellow ambulance took away a Tanzanian man
Don’t it always seem to go that you don’t know what you’ve got till it’s gone
They banned DDT, then people got sick a lot.

Hmmm ... not ready for Prime Time yet.
posted by Gail at 10/11/2005 12:56:00 PM

 
DDT and Africa
By Tom Smith

Dying is for the birds.

posted by thomas at 10/10/2005 04:23:00 PM

 
Fund on Miers
By Tom Smith

I like Fund's column -- interesting he is on Miers. But I think the O'Connor comparison is less plausible than meets the eye. I think she's more of a Souter in size six shoes.
posted by thomas at 10/10/2005 12:48:00 PM

 
Future markets future
By Tom Smith

Like many, I would like to see (more, bigger, more efficient) markets where small time punters can take positions (i.e. bet) on all kinds of things, weather, political events, scientific claims, and so on. It would be fun, and it would produce valuable new information. Tom Bell suggests the CFTC may be signalling that that's OK with them.

posted by thomas at 10/10/2005 12:22:00 PM

 
Corner sinned not
By Tom Smith

Ramesh at the Corner apologizes, but it turns out it is I who owe him an apology, since he was not criticizing me but someone else. So, sorry Ramesh, I should not have leapt to that conclusion. K-Lo on the other hand thinks I have exceeded the bounds of acceptable silliness, and would not read a blog on which something so silly (the Barney story) appeared. Fair enough. I am perhaps not her cuppa. I am sometimes silly on this blog; sometimes if you don't laugh, you cry. And it is just a blog, after all. I think silliness can serve a purpose. Political satire can make points other genres cannot, without being unbearably pompous, as say George Will is from time to time. Besides, professors have a tendency to take themselves too seriously. As long as I am making confessions, there's something I need to get off my chest. I fell asleep halfway through "March of the Penguins." It seemed too much like my own life, perhaps, always going back and forth, mostly for the kids. And now, it back on the freeway for me.
posted by thomas at 10/10/2005 10:06:00 AM

 
Elian Gonzalez on Sixty Minutes
By Gail Heriot

My friend Jeff Jacoby skewers CBS for its Elian Gonzalez interview.
posted by Gail at 10/09/2005 07:39:00 PM

 
Tenure woes
By Tom Smith

Like Professor Rappaport, I was dismayed to read that Daniel Dreszner was denied tenure at Chicago (political science). It's true that being denied tenure at Chicago is hardly a career ender. It seems likely he will still end up at some prestigious university and go on to have a distinguished career.

I'm certainly not in a position to judge whether Daniel 'deserved' tenure or not, but I regard his having been denied it as shedding no light on the issue. So many things can and do happen with tenure, it is hard to avoid the conclusion that it is a stupid institution. I've been told that in the past in the economics department at Chicago, for example, the cadre of aging Nobel prize winners regarded themselves as so brilliant that no young economist could possibly rise to the standard of deserving tenure at Chicago. And so nobody got it. Soon enough, they had trouble hiring economists, because no one would go there for fear of being denied tenure. So the geniuses decided maybe young economists weren't so non-brilliant after all, and modified their behavior accordingly. You might have thought with all that learning about rational expectations and the like, they would have figured it out earlier.

Sometimes senior professors vote against tenure precisely because a younger colleague is accomplished -- and threatening. Indeed, it is a little difficult to see just what the incentives are supposed to be for tenure decisions to be made in the best interests of the profession and the institution. Reputations of institutions change slowly. We can all think of departments that do not deserve their reputations any more, and ones that deserve better reps than they have. One junior colleague more or less does not have much impact on the margin. If reputation is supposed to be the incentive, it's a pretty blunt mechanism.

Tenure is an institution that seems just rife with agency costs and opportunism. Personality plays a big role, and and of course, ideology. The process is typically nothing like fair (except at my institution, of course). Note, for example, Daniel's apparently sincere shock at being denied tenure. Why would he be shocked if he had been told a year ago that his chances were far less than assured? Maybe he was, but I doubt it. Perhaps none of his colleagues wanted to go out on a limb and be critical when there would be time to actually respond. Did anyone say "He should stop blogging"? Especially if you don't like someone, it's better to hold your fire until it's too late to fix the problem. As I say, I don't know anything about his case in particular. I am just expressing skepticism about the tenure process, especially at those schools that hire outstanding people and then proclaim years later that the person doesn't quite come up to their lofty standards. Somewhat relatedly, I will just note I'm not a huge fan of life tenure for judges either.

Should untenured academics blog? I certainly would not advise it, at least not copiously and on controversial, political topics, at institutions that regularly deny tenure (which excludes most law schools). Of course elder professors who think the internet has something to do with computers will be appalled by it.

As to tenure generally, I find it hard to see it as anything but a relic that proves inefficient institutions can survive indefinitely. I think it originated as a kind of guild rule to insulate professors from dissatisfied students; it certainly looks like one. I wonder what a more market based arrangement would look like. Professors would have to be paid more to compensate for lack of security, but they would have to work harder too, to keep their jobs. Why retention decisions should be made by colleagues who have no direct stake in the scholar and/or teacher's product is unclear. Many academics seem to regard academic accomplishment as a zero sum game; it is not like a law partnership where partners share profits--not really. So why should they make the decision? The notion that the product tie-in between teaching and scholarship is efficient has always struck me as pretty unpersuasive as well. Sometimes good teachers are good scholars, and sometimes not. I suspect in my lifetime, technology driven changes will shake up institutions, and the long middle ages of the university may finally draw to a close. I hope I'm young enough to enjoy it, but old enough not to be harmed by it.
posted by thomas at 10/09/2005 03:55:00 PM

 
Steyn thinks sky is not falling
By Tom Smith

Steyn is less pessimistic than I on the enigmatic Miers.

Andrew Sullivan seems delighted at W's troubles. A new theory he has: Miers is his revenge for not being able to appoint Gonzales.
posted by thomas at 10/09/2005 10:50:00 AM

 
Shawcross on Iraq
By Tom Smith

Interesting.

posted by thomas at 10/09/2005 09:27:00 AM

 
Brownback Proposes Apology to Indians as an Amendment to the Akaka Bill
By Gail Heriot

Still never heard of the Akaka Bill? Well, you really must read my earlier post. This is a significant issue.

In my last installment on the subject, I mentioned that the proposed Native Hawaiian Government Reorganization Act (the Akaka Bill) was scheduled for a cloture vote in the Senate on September 6th. Well, that never happened. Instead, the Senate took up Katrina-related issues (as well as the Roberts nomination). The Akaka Bill, like a lot of other Senate business, is still on hold.

But a few days ago Senator Sam Brownback (R-Kansas) proposed an interesting amendment to the bill: An apology to all American Indians for all the wrongs their ancestors suffered at the hands of the United States government. Previously, Brownback had made this proposal as freestanding joint resolution.

Brownback is a conservative Republican who surely knows something about the legislative history of the Akaka Bill. It is the "sequel" to a 1993 joint resolution apologizing to Native Hawaiians. And he surely read or heard about the recent Wall Street Journal op-ed by former Senators Slade Gorton and Hank Brown opposing the Akaka Bill and pointing out that they voted for the 1993 apology resolution only because they had been assured the matter would end there--with no further demands. The Akaka Bill itself is proof that apologies--even apologies that are made on the understanding that they will settle the matter--sometimes do not settle things. Unfortunately, they sometimes serve only to make further demands more likely.

What is Brownback up to then? As far as I know, he hasn't said. But one possibility is that he is trying to make a point about the unworkability of the approach that Congress has been taking towards ethnic Hawaiians. A special deal for ethnic Hawaiians will just lead to more special deals. We live in an imperfect world. Lots of people have ground for complaint over how their ancestors were treated.

Whatever his motivation Brownback's proposal is an interesting twist of the saga of the Akaka Bill.
posted by Gail at 10/08/2005 07:22:00 PM

 
Bainbridge on Miers fight
By Tom Smith

Steve is exactly right about this.
posted by thomas at 10/08/2005 06:37:00 PM

 
NRO Corner refuses to link to RC
By Tom Smith

Is this fair? To allude to a post and not link to it? Can't Corner Readers judge for themselves if I am too harsh? Are they not adults?

I quote, since pin point linking to the corner doesn't seem to work:

HEARINGS [Ramesh Ponnuru]

Two thoughts on how they might go, which run somewhat counter to each other. First, the White House has dealt with discontent on the right by playing up Miers's evangelicalism and pro-life position. Doesn't that create a problem for her in the hearings? Especially when the administration flipped in one week from its view that a nominee's religion and stance on abortion are irrelevant? (There are plausible arguments for both the position the administration took on Roberts and the one it is taking on Miers, but it would at least be tricky to make a plausible argument for both positions at the same time.) She'll have to reassure the left without alienating the Right. It's possible, but it's a tougher assignment than Roberts faced.

Second: Miers's critics, by sometimes overplaying her lack of qualifications, have lowered the bar for her to seem impressive. When a critic compares her to a dog, it's at least as unhelpful for the critics' side as when a defender calls the critics sexists.

So the substance of her views may end up being a bigger problem at the hearings than her qualifications will be.

I think that's me, and I don't even get a link out of it. I'm not sure that's blogo-legitimate. LWJ says she thinks it was kind of mean as well. So Ramesh is saying if Miers comes across as smarter than Barney, she will seem qualified? Well, it beats me. I defend the Barney trope, however, because I think it was rather a clever and vivid way to stress the utter opacity of the nominee (who knows what she thinks?) and the cronyism of the nomination, as well as the lack of qualifications, among other points. In their much graver ways, as befits much bigger dogs, Will and Krauthammer were very harsh as well. As for me, I say, it's not the size of the blog in the fight, it's the size of the fight in the blog.
posted by thomas at 10/08/2005 04:46:00 PM

 
Hewitt on Miers critics
By Tom Smith

We should all stop worrying.

Trying to think positive, I do think there is a 50-50 chance Miers will end up as a weak justice who concurs with Roberts often, and whose clerks write respectable opinions for her. Unless this is right. Just. swell.

Does anyone think perhaps Laura Bush is partly responsible for this stupid choice of W's? I read somewhere she was pushing for woman person.

Frum is right IMHO. Among other good points -- the idiocy of the elitism charge is this. Elitism is bad, because as we all know, plenty of first class professionals come from Humdrum State, and plenty of ciphers come from Yale and Harvard. Probably more from Harvard, but still. We have all met scary smart and super-accomplished people who were educated far from the Ivy League. The point is, these people have accomplishments that demonstrate their outstanding merit. That ain't Miers. It is not an accomplishment to have not gone to an Ivy League law school. In what ought to be the elevated realm of Supreme Court nominees, she just doesn't seem qualified, let alone outstanding. I know it's the Stupid Party, but I think Bush may really be overdoing it with this one.

I am really going to try to stop ranting on this, but before I do: Look, anyone who has been around since RR and the founding of Fed Soc as I have, knows all about the difference between real conservatives or libertarians, and the various me-too Republican sorts who, it must be said, have long had a way of gathering around the Bushes. So here is W just frankly screwing the conservatives, and now we are being chided by Hugh Hewitt, who is not exactly the most steely-eyed guy on the planet, for complaining about the abuse. We supposed to say, oh, George, you're so wonderful. Well, I'm not in the mood. I have a headache. I have a headache from profligate spending, hacks at FEMA, and a God-help-us policy in Iraq, among other things, like, oh, I don't know, steel tariffs. People who care about the rule of law and the Supreme Court enough to write and read blogs about it should face the facts and see this for what it is: a betrayal, and one of a pretty profound sort. I will give W the benefit of the doubt by thinking he has done it more out of cluelessness than political amorality. I suspect he has been manipulated by aides and has not been clever and strong enough to appreciate the disastrousness of his choice, but that is not much of a defense of a president. No doubt someone like Rove has calculated that conservatives have nowhere to go, so W will be in the clear. And he may be right. But I prefer to think you win in the long run by sticking to what you believe in and not meekly accepting it when somebody says they agree with you, and turn out not to in the end. That's not 'winning'. That's being used.
posted by thomas at 10/08/2005 03:41:00 PM

 
But does she make all her own clothes?
By Tom Smith

After meeting with her on Friday, Sen. Conrad Burns, R-Mont., praised Miers' sense of humor, knowledge of the West and "great understanding of the importance of the legal arena in our nation." But he said he wouldn't be able to decide whether to support her until he can learn more through her confirmation hearings.

Can she get up on a horse without a stool? Tie a diamond hitch? Ride all day with the dusty wind in her teeth and still rustle up a kettle of grub for the boys? That's what I want to know.
posted by thomas at 10/08/2005 03:29:00 PM

 
Barney on the Federalist Society
By Tom Smith

Mostly braindead Senator whose questions are written by his staff: Mr. Barney, are you now, or have you ever been, a member of the Federalist Society?

Barney: Grrrrrrrrrr! Rrrrrrrrrr! Woof! Woof!

MBSWQWS: Good dog.
posted by thomas at 10/08/2005 03:21:00 PM

 
A Find
By Tom Smith

The real thing: pure grumpiness from Buckinghamshire. Not exactly GOP fare, but still chewy grumpy goodness.

posted by thomas at 10/08/2005 08:49:00 AM

 
Justice designate Barney asked which Justice he admires the most
By Tom Smith

Washington (AP) Justice-nominee Barney continues to make the rounds at Capitol Hill, introducing himself to important Senators. Asked which Justice he admired most by Senator Leahy (D : ( -V), Barney replied "Woof!"

Debate continues as to what this meant. "Woof!" could be taken as an evasion, suggesting that Barney is a stealth candidate. The White House, however, has issued a statement, clarifying that by "Woof!" Barney meant to say he admired the late Chief Justice Warren Burger, for his really nice hair.

"Nice hair is an important trait in a Supreme Court Justice. Many of us were alarmed by the state of Chief Justice Rehnquist's hair in his last days, I know, though of course it was not his fault. All these critics who are saying hair is not important in a Justice are just fancy-pants, Ivy League, effeminate snobs." The White House later clarified its clarification, saying that by "effeminate," it meant no offense to women or to men who just happen to be somewhat girly.

Reaction from the Ivy League was swift. The President of Princeton University promised to issue a statement as soon as he stopped crying. Larry Summers, President of Harvard, said he was girly and proud of it, and asked if anyone he had offended wanted any money.

Conservative columnists continued to pillory the Barney nomination. The White House responded by accusing their erstwhile supporters of speciesist animus. Ed Gillespie, a spokesman for the White House, stated "I know a lot of these critics, and a lot of them are, frankly, cat people, if you know what I mean." Asked to name a critic who was in fact a cat person on Fox News Live, however, Mr. Gillespie demurred, saying "they know who they are, and a lot of the rest of us do as well."

Representing what increasingly appears to be the minority position in the conservative "blogosphere," YankeeDoodleDandy at It'sAGrandOldFlag.com remarked "This is a time to be loyal to our President. He knows this dog, and he's a fine dog, and if our President thinks he is the right dog for the Supreme Court, well, by gum, that's good enough for me. He's a cute dog, and a sweet dog, and knows a lot of law for a dog. And I've had just about enough from all these smarty pants, elitist, top of their la dee dah class at oh pardon me while I play my grahhhnd piahhhno law school, saying Barney is not good enough for the high court. Dogs are really smart. You try finding a rat hiding in a giant barn, which terriers can do, you know. They're smart. Trust me. Or better, trust our President. When has he let us down before? Now let's all sing. Oh, by the way, Jesus appeared to me yesterday, and he said he supported the Barney nomination too, and if he's good enough for Jesus, he's good enough for me. And for the President, which obviously, he was."

In the meantime, scholars are pouring over Barney's previous legal writings for clues of what his jurisprudence would be like. These writings are quite sparse, though unusually copious, considering he is a dog. The most substantial piece is reprinted in its entirety below.

The Law
by Barney

I am glad we have law. Without law, we would be in trouble. The law says dogs can't bite people. I think I get one free bite. I am saving it. Humans make law, but dogs have to obey it, sort of. Is this fair? I don't know.
The End.
Thank you
Barney

Most scholars admit it is difficult to say what Barney's position would be on such questions as the relationship of state and federal authority in (so-called) dormant commerce clause contexts, or the accommodation of religious exercise in public settings, let alone whether Barney would admit of a robust substantive due process clause jurisprudence. However, others note that Barney says he likes law, and that that is a positive thing in a Justice. Some bloggers are claiming Barney did not actually write the brief piece, but that it is a hoax. The White House has issued a statement saying that that is ridiculous, and merely more "anti-dog snobbery by snippy professors just trying to become famous at the expense of the most decent dog you could ever hope to know."

In a surprising development, Senator Sam Brownback (NRLC-Kan) stated that he was not satisfied with Barney's answers to his questions about privacy rights in the Constitution. "I could not get him to shed any light on his view of the line of cases following Griswold. I was also disturbed that when I used the phrase 'reproductive freedom,' Barney wagged his tail."

posted by thomas at 10/07/2005 01:07:00 PM

 
Academic blogging
By Tom Smith

This is interesting. (yeah yeah I got it here.)

Just one little point to add. The blog format is just so perfect for allowing you to say what you want to say, the way you want to say it. MBMR! Unlike tedious list serves, you have your own little soapbox, where you can make your points the way you want, no moderator to say tsk tsk, no tedious interlopers. Plus the thrill of addressing the public. Emails back from sometimes almost famous people, to folks who need to get their meds adjusted. Amusing, I call it.

And for academics, it's a way to get a word in edgewise. You don't have to wait for young Professor Noodlewort of Prestigious U, former Supreme Court Clerk and complete idiot, to finish talking before you make your point. You just post it. Let Noodlewort get his own blog. Things can get rude and harsh, but neither do you have to sit through the obligatory roll over and expose your neck's and puffings and counter-puffings by alpha leaders, that academics engage in as they sort out their hierarchies when they congregate. This is good if you find humans in groups rather discouraging, but you are sincerely interested in other people's ideas.

Another reason it's good for academics is that blogging is a well-deserved lesson in humility. Whatever you choose to opine on, somebody out there knows more about it than you do. It keeps you (somewhat) careful and alert.

Finally, for me and lots of people, it demystifies in a healthy way the process of writing. It may take time away from more serious scholarship, a fair amount of which I might add is serious only in that it is a serious waste of time, but just writing in a mode that is closer to thinking out loud, is good for the brain, and teaches one to take oneself a little less seriously -- usually: some bloggers are unbearably pompous and for them there is probably little hope. And really finally, it is an outlet, an opportunity to rant and rage the sheer stupidity and anonymity of it all. But that probably just me.
posted by thomas at 10/06/2005 04:35:00 PM

 
It's a Republican thing
By Tom Smith

This discussion is interesting. I think there is a certain cultural tendency in the Republican party, which comes and goes, toward the sort of line up and be quiet crowd. You know, the straight but nasty fraternity boys who were the villians in Animal House. The very non-libertarian Republicans. Under Reagan, conservative ideas were important; The GOP was the opposition in power. Maybe being the majority party has brought the goody-goodies and boot polishers to the fore. In any event, there is a deep cultural conflict between the spirit of the blogosphere, which is is freedom par excelence, and the there's-a-piece-of-lint-on-your-blue-blazer spirit of at least some of the republican leadership.

Not to go off on a complete tangent, but, the GOP desperately needs some new leadership, some new blood, somebody who is not a Bush or a Bush crony, almost as much as the Democrats need somebody not connected with the Clintons, but who is not a certain New England lunatic. Somebody who did not move to Texas from Whichatopsiderbunkport, but was born in Nevada or Nebraska, has a very high IQ, and thinks skull and bones is what's left if a beef critter dies in the winter snows. Or something. Maybe then some of the spirit and energy that is in the people who support the party could get past the fuddy duddies who apparently control it from the Bush Whitehouse.
posted by thomas at 10/06/2005 04:12:00 PM

 
Runaway DA
By Tom Smith

Ronnie is one scary dude. I'm not a huge DeLay fan. For all I know, he may be dirty. But his prosecution looks like it's way outside the bounds. Imagine if he were a Republican, and going after a Democrat.
posted by thomas at 10/06/2005 04:08:00 PM

 
You go, George
By Tom Smith

I hereby take back all the mean things I have said about George Will. A massively gonadal column.
posted by thomas at 10/05/2005 01:42:00 PM

 
Miers pro-life says somebody or other
By Tom Smith

This sort of thing is going around.

Underwhelming. I knew this guy whose tennis coach also coached the woman who cleaned the house of Mier's mechanic, and he said, the mechanic, not the guy, that she (the house cleaner) said that the tennis coach said that Miers said to the guy, that she thought she was probably, when it came right down to it, pro-life, and least that's what she (the tennis coach) thought he (the guy) said she said. So I support the nomination. Pathetic. To call this sort of "evidence" lame insults the lame.

Moreover, who cares what anyone said? You know a guy who says he thinks courage under fire is the most important trait a person can have. He wrote a book about courage. He says he would be courageous under fire, that's how important he thinks it is. Now this guy is getting shot at by people who want to kill him. Question: Will this guy fight back, or throw down his weapon and run away, waving his arms and screaming shrillly? Clue: You have no idea. Nobody does. This is why it would have been a good idea to nominate some judge who has walked the walk.

This is all rather nostalgic for me. I remember like it was yesterday telling certain persons who shall remain nameless that Judge Souter really looked just like someone who would be a liberal Supreme Court Justice. But oh, no, I was ill-informed. I had not had access to all the super-secret, deep and probing discussions with the mind of Souter, so that I could not know that deep down in that New Hampshire lad was a man of granite, a flinty conservative, as rocky and harsh and wintry as the New England landscape in February. Which all turned out to be, as we say in the heartland, a complete crock.

Hugh Hewitt asks, rhetorically, whether I trust the President or not. Well, do you trust him? Let me answer that this way: No. Actually, No, I don't. Big negativo on that one. As long as we are talking trust, let's talk background and character. I always thought the Bushes were an extraordinarily clannish lot. Bush the Elder surrounded himself with buddies and loyalists and anyone who cared about conservative ideas was suspect. They all had to go work for Danny Q, who may not have been as stupid as he was portrayed in the press, but still. Bush the Younger seems to have grafted Texas good ol' boyism on to Yale Bulldoggery, and come up with something even worse. I mean really. I think even Bill Clinton, sociopath that he was, would have been too embarrassed to nominate his buddy-lawyer to the Supreme Court. I object strenously to their politics, but Clinton nominated highly qualified people to the Court. Ruth Ginsburg is as smart as they come, even if she is a threat to the Republic, and so is Breyer. So what if LBJ nominated Fortas to CJ. LBJ used to make his aides brief him while he was moving his bowels; he was impossible to embarass.

Of course, some of our greatest justices have not been judges or academics, but fairly obscure practicing lawyers who hitched their wagons to rising political stars until they could importune him with their desire to sit on the most powerful judicial tribunal in the history of law. Oh, except that's not true. Maybe Justice White falls into the category of Presidential buddy, but he was not a great Justice, just a great football player. The important justices who had no judicial experience were US Senators or Governors or legendary professors at Harvard, or leaders of their generations (I'm thinking Brandeis, assuming you think he was an important justice). None of them I can think of were just the usual sort of supporting staff anyone who gets to be President has. Why not Hamilton Jordan as Justice? He was a lawyer, wasn't he? Give credit to Rush Limbaugh; he was saying this morning quite rightly (someone is writing good scripts for him lately) that we live in a time that requires that Supreme Court Justices be better than ever before, that they be really committed to the science and culture of law (a nice phrase). And he is absolutely right. Maybe there are times of peace and consensus when any competent lawyer would do, but that's not now. We need somebody who can inspire, impress, persuade, and really lead the troubled herd of lawyers, someone who can be an honest to God leading light in the profession. The times demand it, surely. But instead. I do think there is a decent chance that Justice Miers will turn out not to be a disaster, but merely a missed opportunity, but still, that is much to be regretted. This nomination is so bad, it makes me wonder if Bush isn't disintegrating or decompensating or something. I almost prefer to think that to thinking he has been this much of a doofus all along.
posted by thomas at 10/05/2005 12:40:00 PM

 
More on the secret Miers
By Tom Smith

This little tidbit from the middle of the A section of the NYT today:

In each call and in a series of teleconferences throughout the day, representatives of the White House promised their conservative supporters that as White House counsel, Ms. Miers had played a central role in picking the many exemplars of conservatism among Mr. Bush's previous nominees. . . . Some of the efforts evidently bore fruit. By day's end, Mr. Dobson, one of the most influential evangelical conservatives, welcomed the nomination. "Some of what I know I am not at liberty to talk about," he said in an interview, explaining his decision to speak out in support of Ms. Miers. He declined to discuss his conversations with the White House.

What I think this means is that the WH is telling evangelical leaders that Miers is one of them, perhaps relaying what they heard from her pastor in Texas. She's been "under the water," or whatever the appropriate code would be. Or maybe she had some heart to heart with somebody and she said Jesus told her to vote to overturn Roe if she got the chance.

Even if Miers is a religiously conservative evangelical Christian, that does not reassure me much. True, if she were an Episcopalian, I would be that much more nervous, but in the end I don't think her religious commitments mean all that much as far as how she would decide cases.

The more I think about this nomination, the worse it seems. But then, I am so frequently wrong, perhaps that bodes well. Worst to me is that it is redolent of weakness. It is the sort of decision a President who feels weak would make. It is also completely conflicted. When Ms. Miers put her hat in the ring, who in the WH was supposed to say, "but, Mr. President, she's not qualified"? Anybody who torpedoed her would have to work with her in the future, which would not be fun. So the people closest to the process are immediately in a position of not being able to give candid advice -- a reason not to pick close cronies in the first place. Relatedly, the WH counsel's office traditionally is the place judicial candidates are vetted. So this is like your marriage counsellor telling you you should get divorced and marry her, or something. Total conflict of interest. Bush needs a lawyer or something to advise him on how to make decisions consistently with his duties of office. Oh that's right! His lawyer's the one getting nominated! Well, I'm sure her sense of law and propriety will dramatically improve once she is making unreviewable law for the whole country. Also, it looks like a weak president captured by his staff. Maybe this is too cynical, but I fear, utterly lovely in every conceivable respect though she may be, Ms. Miers may have sensed that when W was at his most embattled was the perfect time to cash in her big chip with the guy. And with threats from the Dems on one side, and your staff using that to help themselves on the other, what are you supposed to do? And don't imagine there was a soul in the WH saying, uh, maybe we should pick someone who is, like, really qualified? I don't know if there is a species in which the babies eat the parents, some spiders maybe, but if so, they should be called creepycrawly Whitehousestaffiensis. This has that look to me. It also looks very much like a deal with the Senate Democrats, a pick off their list of acceptable candidates, which makes one wonder why Bush and Rove thought that was necessary, unless they think things are going really badly, which maybe they are. Miers and Rove probably get along famously. How very nice for them.

I have been a critic of the Yale-Harvard-Supreme Court Clerk- etc. etc. mystique before, and I do think being overly impressed by liberal establishment credentials plays into the hands of the dark side. But really. I can't help but think W's not being a lawyer makes him a bit clueless about what a Supreme Court Justice should be. It's a very demanding job, both intellectually and morally. You put someone not up to the job up there and bad things happen. Bad things happen to prose -- read a Souter opinion (if you dare); bad things happen to philosophy (Kennedy) and bad things happen to law (O'Connor).

I fear that a year or two from now, we will be reading treakly pieces in the NYT about how Justice Miers grew in office, and law review articles will begin to appear on "The Emerging Jurisprudence of Justice Miers," the moderate, pragmatic, yet essentially conservative (in the true sense) (i.e., liberal), and deeply Christian, in the original sense of the word (i.e., liberal).

Well, it's not like W said he was going to appoint conservatives to the Court.

posted by thomas at 10/04/2005 03:06:00 PM

 
School for super smart kids
By Tom Smith

New academy for the really smart kids. In Reno. My guess it's because the software zillionaire who founded it is a Nevada tax refugee (which is fine -- I'm all for tax havens). I tried to get my kids interested in some of their programs, but the conversation went roughly like this.

Me: Patrick, look at these programs!
Patrick: [examines website] You mean, I could interact over the internet with other really smart kids and talk about math, and literature and stuff like that?!
Me: Yes!
Patrick: I can't imagine anything more boring.

So, like any parent, I gave up. Still, maybe your smart kid has not been corrupted yet by irony. Good luck.
posted by thomas at 10/04/2005 11:39:00 AM

 
Miers a stealth candidate?
By Tom Smith

One theory floating around is that Miers was on the list Senate Democrats gave to W of "acceptable" candidates, and that W seized the chance to put an evangelical Christian on the highest bench. According to this view, Miers interprets the Bible and the Constitution the same way, literally and by what she sees as the original meaning. The Dems would not know this, not being tied into the Bible club. So by this clever Bush account, he is hoodwinking them into buying a strong religiously-motivated conservative. I'm skeptical.
posted by thomas at 10/04/2005 08:55:00 AM

 
Stunz on Miers
By Tom Smith

This sounds about right. (You may have to register at TNR.)
posted by thomas at 10/04/2005 08:37:00 AM

 
Bush makes surprise nomination
By Tom Smith

(AP) Washington. President Bush, in a surprise move, has nominated his Scottish Terrier, Barney, to the United States Supreme Court.

"Through years of faithful service, Justice designate Barney has shown he is one of the team. He will also bring a unique perspective to this important office. In a sense, he is my best friend."

Early reactions have been mixed. The National Organization of Ungendered Persons reacted cautionously. "While we welcome the nomination of a neuter to high office, we must point out that Barney is, to put it bluntly, a dog."

The Scottish Alliance was ecstatic. "Auld inna wee doggie an' for a that an' a that dinna be naught for a that!" commented the High Laird of the Inner High Temple, a Scottish thing.

"This is obviously a stealth candidate," complained Senator Charles "Chuck" Schumer (D!-NY). "Barney has no paper trail, and has never expressed an opinion on Roe v. Wade."

PETA reacted with outrage. "This is inconsistent with the dignity of non-human companion animals," said Starbeam Moonrider, a spokeshuman. "Will they make him wear a little black robe? Play basketball? That's no life for a dog."

Elite law students seemed less preturbed. Prime Minister of the Harvard Law Review, Q. Prufrock Citemonger III remarked, "Hell, yes, I would apply for a clerkship. A Supreme Court Justice is a Supreme Court Justice. Sounds like this one will need some help writing opinions."

Constitutional law scholars suggested how a new Justice Barney would vote was difficult to predict. One scholar at a small but undeniably cute law school in Southern California, who preferred to remain obscure, opined "It's really hard to say. However, I would not be surprized if he became a swing voter, going with whatever side offered him the best treats."
posted by thomas at 10/03/2005 06:54:00 AM

 
Math joke
By Tom Smith

Prime time.
posted by thomas at 10/02/2005 06:50:00 PM

 
Patrick goes public
By Tom Smith

My 12 year old son, Patrick, has decided to start his own blog, which includes some of his stories and story fragments. The genre he works in is mostly horror. If he is the next Stephen King, and buys me a ranch in Sun Valley, that's fine with me.
posted by thomas at 10/01/2005 05:22:00 PM

 
Let's bring back the IFC
By Tom Smith

This is really enjoyable. You wonder whether the IFC should be revived just it can be squished again. What a great story.
posted by thomas at 10/01/2005 03:28:00 PM

 
Citizen journalism
By Tom Smith

Check this out. Very funny.

In the interests of a free press, we may need to ban digital cameras in the hands of people who do not work for official members of the MSM.
posted by thomas at 10/01/2005 03:19:00 PM