The Right Coast

October 31, 2005
Will Alito be Confirmed?
By Mike Rappaport

Tom reports Rick Hasen's prediction that Sam Alito will not be confirmed. Rick writes:

Judge Alito will not be confirmed, because Democrats will threaten to use the filibuster for a nominee they will strongly paint as anti-choice. Moderate Republicans, such as Olympia Snowe, won't vote to trigger the nuclear option, and Judge Alito will not get a vote on the floor of the Senate. My level of confidence in this prediction: not high.
Well, it is awfully early to be making these predictions, but given all the caveats about how things might change, I disagree with Rick.

While ideology is an important factor in determining whether a nominee will be confirmed, other factors are also significant. One such factor is qualifications, and Alito's are among the best. Another factor is how the nominee comes across in person -- perceived fairness, thoughtfulness and personability -- and Alito (who I knew a little in the Justice Department in the 1980s) does very well on that score as well. These other factors will make it hard for moderate Democrats to vote against him, and make it extremely hard for them to uphold a filibuster. My sense is that Alito does not have enough (any?) opinions that can be branded as far right to overcome these factors.

Moreover, the filibustering of a Supreme Court nominee will not be like the filibustering of circuit court nominees, which operated below the radar screen of most of the public. The filibusterers will be required to reaffirm their filibuster over and over again. There will be significant pressure on those who are filibustering and delaying the process to allow the nominee to go ahead.

While Hasen argues that the moderate Republicans will not be willing to vote for the nuclear option, I believe they won't need to. The moderate Democrats won't vote against cloture of the filibuster. But if for some reason the Democrats can get, say, 40 or 41 votes to support the filibuster, that small number will make it harder for the moderate Republicans to avoid voting for the nuclear option. In the end, it is likely that a compromise would be worked out that would allow the nominee to go forward, but would avoid the nuclear option -- the same resolution that happened last Spring and has happened over and over again when the nuclear option has been threatened.

Or so it seems to me now.

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

Here. Rick is an astute observer. I hope he's wrong.

Alitio song contest
By Tom Smith

You think you can do better?

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

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

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?

October 30, 2005
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.

Questioning the Environmental Dogma
By Mike Rappaport

Michael Crichton has unexpectedly turned out to be a great critic of the overwrought and damaging claims made by environmentalists. Here, he recommends 5 books that question the conventional wisdom on the environment. This is one of his recommendations:

"Future environmentalists will heed Dietrich Dörner's "The Logic of Failure." Mr. Dörner is a cognitive psychologist who invited academic experts to manage the computer simulations of various environments (an African herding society, a town in Maine). Most experts made things worse. Those managers who did well gathered information before acting, thought in terms of complex-systems interactions instead of simple linear cause and effect, reviewed their progress, looked for unanticipated consequences, and corrected course often. Those who did badly relied on a fixed theoretical approach, did not correct course and blamed others when things went wrong. Mr. Dörner concludes that our failure to manage complex systems such as the environment reflects bad habits of thought, overreliance on theory and lazy procedures. His book is brief, cheerful and profound."

October 29, 2005
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.

A man after me own heart
By Tom Smith

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

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.

October 28, 2005
It's Nominal
By Maimon Schwarzschild

An offhand reference to J. L. Austin, the Oxford philosopher, set me to wondering how many authors have written books or articles that make a play on their own names. Austin, the very model of a "linguistic analysis" philosopher at Oxford in the mid-twentieth century -- he died in 1960, still in his 40s -- is famously the author of a philosophical work called "Sense and Sensibilia". It's a book of essays on the philosophy of knowledge.

Austin was just wry -- and quirky -- enough that it's imaginable he chose philosophy as a career, then specialised in epistemology, purely so that he would be able to take advantage of his name's similarity to Jane's, and title his book accordingly.

Then there is the famous physics essay, "The Origin of Chemical Elements", which started out as a doctoral thesis by Ralph Alpher, and was going to be published as an article co-authored with Alpher's teacher, George Gamow. (The article is a classic in the development of the "Big Bang" theory.) The puckish Gamow asked his friend Hans Bethe to join as co-author. So now it was by Alpher, Bethe, and Gamow. Bethe's name had the odd parenthetical "(in absentia)" after it: the only acknowledgment that Bethe hadn't written, and might not have read, the work. The article appeared in the Physical Review, coincidentally (perhaps) dated April 1, 1948.

Other examples?

A Good Thing
By Maimon Schwarzschild

Train wreck avoided. At least that train wreck.

This is a Good Thing. (Which of course is an allusion to Sellar and Yeatman, "1066 And All That", the mock history of England, originally published in 1930: a send-up of the old fashioned style of English school history lessons. The book has given joy to generations of English readers; a Good Thing has become a catch-phrase, even for people who have never read the book. But read the book. It will make you laugh -- even if you were never a schoolchild in England.)

October 27, 2005
Glorious, Glorious
By Mike Rappaport

Well, that was sweet. The withdrawel of the Harriet Miers nomination is an event that is both great and extremely satisfying. After a campaign waged by the "intellectual" side of the right wing, the White House was forced to correct its mistake and to save the country from someone who showed the promise of being not just a mediocre, but an absolutely horrible justice.

Yesterday, after the publication of her speech on abortion and judicial activism, I predicted that "Miers will be withdrawn quickly. Within a week,I would guess." I then watched several Senators and various pundits, including Fred Barnes, who is extremely irritating on this subject, state that Miers would only be withdrawn if she did badly at the hearings. Thank God they were wrong.

There will be time enough to worry about the next nominee tomorrow. But for today, I will just savor the victory.

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.

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.

Miers Withdraws
By Gail Heriot

CNN reports.

"Rosa Parks and History"
By Gail Heriot

Nice column by Thomas Sowell.

October 26, 2005
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.

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.

Awesome Open Library
By Tom Smith

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

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.

Miers is Through
By Mike Rappaport

After reading this article, I have now concluded that Miers will be withdrawn quickly. Within a week, I would guess. It might just be wishful thinking, but these statements casting doubt on her views of abortion strike me as likely to eliminate the last bit of support she retains from the right.

Is writing a necessary qualification for a Supreme Court Justice?
By Mike Rappaport

Orin Kerr quotes a few paragraphs written by Harriet Miers. Quite a stylist: "Legislating religion or morality we gave up on a long time ago." This is really embarrassing!

Postrel Against Miers
By Mike Rappaport

Virginia Postrel explains why she opposes Miers:

For whatever reason, the president has picked a woman who not only has no constitutional or judicial experience but even in her business practice has demonstrated no interest in the law as anything other than a source of billable hours. At 60 years old, she appears never to have had a substantive conversation about law or policy with any friend. She comes from a closed and cronyish legal and business culture and appears to have gotten ahead through a combination of networking, nose-to-the-grindstone diligence, and willingness to do her law firm's management, rather than legal, work.

Her selection is an insult to women, to evangelical Christians, and to corporate lawyers. Is this really the best these groups have to offer to U.S. Supreme Court?
I continue to be optimistic that this nominee will not be confirmed. But Bush needs to move quickly. While some claim otherwise, I believe he is coninuing to leak support from his base, where it really matters.

October 25, 2005
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.

October 24, 2005
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.

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.

October 23, 2005
Those darn Syrians
By Tom Smith

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

AND that darn UN, up to no good again!

Cool astro stuff
By Tom Smith

Center of the galaxy update.

King David
By Mike Rappaport

A nice review of what appears to be an interesting new "biography" of the biblical king.

October 22, 2005
"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.

October 21, 2005
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.

Dude, that's really weird!
By Tom Smith

This is genuinely weird. Justice Scalia showed it to me once when he was really stoned.

Harriet Miers' Blog
By Mike Rappaport

I am so annoyed about the nomination that I found this pretty amusing. In a way, it is devestating.

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.

The Video IPod
By Mike Rappaport

Once again, Steve Jobs is changing the world.

October 20, 2005
Is Miers Through?
By Mike Rappaport

Miers had been trading at Tradesport at a price that suggested a 60 to 70 percent chance of being confirmed. Now she has dropped significantly, with the bid at below 50 percent (I think for the first time). This is good news!

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?

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.

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?

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.
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,
Suzy Enthuso
Articles Magistrate
Big State Law School Law Review
Future Supreme Court Nominee

How High a Price Will Bush Pay for Miers?
By Mike Rappaport

He has paid a large one already, but if Robert Novack's column is true, it is going to get larger. Thought the National Guard story was dead? Well, maybe not:

Littwin's federal suit claimed Miers protected Gtech because its lobbyist, former Lt. Gov. Ben Barnes as Texas House speaker, had pushed Bush ahead of other applicants for the Texas Air National Guard during the Vietnam War. Democrat Barnes had been silent until a 1999 deposition by him said he had pushed young Bush to the head of the line. Barnes, who received from Gtech $3 million a year and $23 million in separation pay, told me that the Bush air national guard story has "absolutely nothing" to do with his settlement. Littwin is silent under terms of a $300,000 settlement ending his suit. Former Texas Chief Justice John Hill, a member of the Lottery Commission at the time, told me: ''There is no substance at all to these charges.'' Miers handled the case ''with care and judiciousness," Hill added.

The Miers Questionnaire
By Mike Rappaport

The Senate sends it back for a rewrite, since it is incomplete. And it contains errors about constitutional law.

Miers on Business Cases: The Charade Continues
By Mike Rappaport

Ron Cass and Ken Starr attempt to defend the Miers nomination in the Wall Street Journal by arguing that the Court has many business cases and Miers would decide these cases correctly. They write:

Business organizations such as the U.S. Chamber of Commerce, which alone represents over three million business enterprises, have praised Harriet Miers's nomination. They -- and we -- value her significant experience in business law. Certainly, this is not the only consideration in her confirmation process, but the inevitable attention to other, politically charged issues should not obscure the importance of business expertise to the court and ultimately to the nation.
Well, I certainly agree that business cases are important. I would even agree that critics of the nomination have focused excessively on constitutional law and the supposed need for a developed constitutional philosophy. Nonetheless, the criticisms of Miers stand: There is no good reason to think she has the right views about business cases. And there were far better choices available who do have expertise about business matters, including Mike McConnel and Edith Jones.

There is simply no good argument for this nomination.

Is Bush a Conservative?
By Mike Rappaport

Lots of debate about this question at the Corner and elsewhere. While Judge Bork claims that Bush is not really a conservative, Charles Krauthammer says on Fox News "of course he is."

There are, of course, different kinds of conservatives. I am a libertarian conservative or a conservative libertarian. Not sure which one; it seems to change each day, assuming I can figure out what the difference is.

The answer as to Bush seems clear. He is a kind of conservative. Certainly not a small government conservative; certainly not a fiscal conservative; but a kind of conservative. There is no point in arguing about the semantics, but one thing is clear: these days, at least, he is not my kind of conservative.

October 19, 2005
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.

Big brother is watching
By Tom Smith

Better redo that last batch of 20's.

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.

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.

Bork on Bush
By Mike Rappaport

I don't always agree with Judge Bork, but he nails it in the Wall Street Journal today. The first paragraph of the piece states:

With a single stroke--the nomination of Harriet Miers--the president has damaged the prospects for reform of a left-leaning and imperialistic Supreme Court, taken the heart out of a rising generation of constitutional scholars, and widened the fissures within the conservative movement. That's not a bad day's work--for liberals.
The last paragraph concludes:

Finally, this nomination has split the fragile conservative coalition on social issues into those appalled by the administration's cynicism and those still anxious, for a variety of reasons, to support or at least placate the president. Anger is growing between the two groups. The supporters should rethink. The wars in Afghanistan and Iraq aside, George W. Bush has not governed as a conservative (amnesty for illegal immigrants, reckless spending that will ultimately undo his tax cuts, signing a campaign finance bill even while maintaining its unconstitutionality). This George Bush, like his father, is showing himself to be indifferent, if not actively hostile, to conservative values. He appears embittered by conservative opposition to his nomination, which raises the possibility that if Ms. Miers is not confirmed, the next nominee will be even less acceptable to those asking for a restrained court. That, ironically, is the best argument for her confirmation. But it is not good enough.
It is just amazing how alienated I am from the Bush Administration these days. It is not just the insanity of the Miers nomination; it is also that Miers was the last straw.

That said, I am still optimistic about one thing. I think it is slightly more likely than not that Miers will not be confirmed. And if she is not confirmed, I think it is also slightly more likely than not that the reason is that she withdraws rather than she is rejected by the Senate.

October 18, 2005
By Maimon Schwarzschild

Christopher Hitchens is aptly withering about the Nobel Prize to Harold Pinter. He has a substantial piece on the absurd outrageousness of it in the weekend Wall Street Journal, available online, alas, only to subscribers. But Hitchens sums it up in a sentence for the left wing readers of Britain's Guardian newspaper:
The award to someone who gave up literature for politics decades ago, and whose politics are primitive and hysterically anti-American and pro-dictatorial, is part of the almost complete degradation of the Nobel racket.
(Hat tip to our colleague David McGowan about Hitch's WSJ piece. There is a very interesting post by David, by the way -- about legal ethics, not about Nobel lack of ethics -- at the Legal Ethics Forum, where David is guest blogging this week.)

Roger Kimball was also given a sentence or two by the Guardian to sum up about Harold Pinter:
The Nobel committee has for some time demonstrated that its prizes are ridiculous but the award going to Harold Pinter is not only ridiculous but repellent. His anti-American rantings have been saved from being merely outrageous by their insanity. He can't take any public platform without a mad raving about the evils of the American empire - although he can't make up his mind if George Bush is a moron or a mad genius.
Apart from Pinter's emetic politics -- precisely what the Nobel people, degradingly, wanted to honour -- there is, or used to be decades ago, Pinter's literary work. Kimball has it right about that too:
The essence of Pinter's drama is adolescent Samuel Beckett - it's warmed-over and second-hand.
Has anyone ever said, with any pleasure, "Let's go see a Pinter play"?

October 17, 2005
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.

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.

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.

Roger Clegg is a Cutie
By Gail Heriot


October 16, 2005
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.

Iran working on long range missiles
By Tom Smith

With a 3500 km range, Europe is well within reach.
A map.

October 15, 2005
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.

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.

October 14, 2005
By Mike Rappaport

As any reader of this blog will know, I too have a bit of "Miers Mental Dementia Obsessive Hysteria." But unlike Jonah Golberg, I am not sure I want to stop writing about Miers. Of course, I could stop anytime; I just choose not to. Really.

National Review on Miers
By Mike Rappaport

National Review summarizes the case for Harriet Miers to withdraw. To my mind, it is unanswerable.

A Justice with Class
By Mike Rappaport

Mathew Scully, a former speech writer for President Bush, attempts to defend Miers in the New York Times. He is no doubt a good speech writer, but the substantive arguments are well, pathetic. Much of the piece follows the tactic that the best defense is a good offense: attack the critics. When it comes to defending Miers, he has this argument:

Overlooked in all this caviling is the actual ability and character of the person in question. Indeed, about the best quality to recommend Harriet Miers just now is that she is not at all the sort of person who goes about readily and confidently dismissing other people as third-raters, hacks and mediocrities. She has too much class for that.
Look, if we want class or personability, then we might want William Brennan. By all accounts, the man was extremely likeable; someone you would meet and walk away thinking, this is a great guy. But Brennan was a disaster for the Constitution. I know the White House doesn't want to speak to the issue of whether she has the qualifications to be an excellent conservative nominee, but that is the issue, isn't it?

SF Gate on Miers
By Tom Smith

Some interesting quotations from players.

By Maimon Schwarzschild

This feline passage is from a review in the (London) Times Literary Supplement of some recent books about Admiral Lord Nelson -- hero, of course, of the Battle of Trafalgar in 1805:
A man who has already received roughly one biography for every year which has elapsed since his death is obviously in need of some more. This is not a cynical remark, for the Nelson biographical canon, though very large, is very unsatisfactory. All too many of the biographers belonged to one or both of two classes: those who knew nothing about naval warfare, and those who knew nothing about anything else.
There is almost a delayed action from that deadly word "both".

TLS may now be the best general intellectual review in the English speaking world. TLS's politics are mostly the usual sneers about Bush and America, but not always, and not unanimously. Even Edward Luttwak gets a fairly regular look-in as contributor.

On the other hand my renewal notice has just arrived for the New York Review of Books. I dropped my subscription a few years ago -- after being a faithful subscriber for more than twenty years -- as the number of hate-Bush screeds mounted with every issue. But after the election last year, I thought I'd try again. They'll have to move on to other topics now, right? where they will have more interesting things to say. Wrong. No doubt the NYRB has a shrewd marketing sense of what its readership wants: namely, relentless Bush Derangement Syndrome. There is still the occasional worthwhile, non-political piece. But it's buried under the liberal-orthodoxy-enraged stuff. A little sadly, I won't be re-enlisting. I'm sure they'll get along fine without me.

October 13, 2005
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.

Al-Q in trouble in Iraq?
By Tom Smith

Intercepted letter suggests so.

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?

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.

RNC blogger conference call
By Tom Smith

Interesting re blogo-influence. RC was invited but we had a previous engagement with the Pope.

October 12, 2005
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.

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).

October 11, 2005
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.

October 10, 2005
Go, Donna, Go
By Mike Rappaport

Donna Frye, the liberal surfer who is running for mayor, has called for a cutback in the pension benefits of government employees that has put the city at the brink of bankruptcy. Her opponent opposes the measure. I never expected to be voting for Frye, but stranger things have happened.

It is Time to Withdraw Miers' Nomination
By Mike Rappaport

It is now time for a group of senior Republican statesmen to travel to the White House and explain to the President that for the good of the country, for the good of the conservative movement, and for the good of his presidency, Harriet Miers' nomination must be withdrawn.

There are three possibilities at this point. Harriet Miers can be confirmed by the Senate; she can be rejected by the Senate; or her name can be withdrawn. It is clear that the last possibility is by far the best.

Confirming Harriets Miers would be a disaster for those who believed that the Republicans would attempt to promote a Supreme Court that treated the Constitution as law. The new information about Harriet Miers’ views is quite damning. Even apart from her lack of excellence, her unwillingness to fight for conservative principles makes her a time bomb waiting to explode. We have here an O’Connor or a Souter. John Fund’s report is exactly what conservatives had feared. Moreover, if Gruter disqualified Gonzalez, it also disqualifies Miers.

Rejecting Harriet Miers, while not as bad as confirming her, would also be a calamity for the Republicans and this presidency. If Senate Republicans joined in an effort to defeat Miers, this would split the Republican Party and leave the President in a seriously weakened state.

The best alternative is for Miers to withdraw or for the President to withdraw her name. The President should then replace her with someone with impeccable credentials and who has the broad support of his party – someone like Michael McConnell. If this is done soon, the President’s credibility may not take too much of a hit and the political effects will hopefully be short term.

There are times in a presidency when a tactical retreat is necessary. This is one of those times. Unfortunately, most leaders do not recognize when these retreats are necessary until too late. My guess is that President Bush is especially unlikely to see the need for such a retreat. And therefore a group of Republican statesmen need to communicate to him the proper course. The sooner, the better.

Update: David Frum has more information supporting the need for withdrawel.

DDT and Africa
By Tom Smith

Dying is for the birds.

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.

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.

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.

October 09, 2005
Loyalty and its Betrayal
By Mike Rappaport

It is said that the President's nomination of Harriet Miers was done out of loyalty -- that the President is loyal man, who rewards loyalty.

Sorry, I don't think so.

The President's nomination of Harriet Miers is about betrayal -- betrayal of those who have worked hard for him and who have supported his principles. The President promised nominees like Scalia and Thomas. He has broken that promise.

It is ironic that President Bush has done this. By all accounts, he has labored hard to avoid the mistakes of his father. Yet, here he appears to commit the two great mistakes of his father in a single act. First, George H. W. Bush broke his promise not to raise taxes, doing so out of a failure to appreciate how important it was for him to fight for his stated principles. Second, George H. W. Bush appointed David Souter, even though there were other nominees who were clearly better at the time.

George W. Bush has broken his promise to appoint justices like Scalia and Thomas, and we may just end up with a justice like Souter or O'Connor.

Miers on Affirmative Action
By Mike Rappaport

Now it appears we have the smoking gun. Harriet Miers apparently supported and influenced the Administration's effort to approve affirmative action in the Gruter case! While Powerline explains that Bush approves of this position, that is not a justification. Bush is (mis)representing her as a solid conservative, but the Administration's position on Gruter is not a conservative (or libertarian) position.

Perhaps the concern is not that Miers will grow in office. Perhaps the concern is that she simply votes her views.

The evidence in this case comes from recollections from former Administration insiders, and so it is less reliable than something written. But in the case of Miers, we never have anything written.

This is very disturbing. It does appear that we are now once again facing a nomination of a David Souter or a Sandra Day O'Connor. The appropriate right wing response to this nomination seems clear.

Sullivan on Why Bush did it?
By Mike Rappaport

Tom linked to Andrew Sullivan's speculatation about why Bush nominated Miers. Here are Sullivan's words:

Why did Bush do it? Why, when he is already reeling after Katrina, soaring oil prices, out-of-control spending and chaos in Iraq, would he pick a fight with his base?

Bush is a proud and stubborn man. He’d been told by every right-wing pundit that he couldn’t put his favourite Hispanic crony, Alberto Gonzales, on the court. Over a week ago the Republican pundit John Podhoretz exclaimed: “Nobody on earth aside from Bush would actually consider Gonzales or Miers a suitable Supreme Court nominee.” Bush is not one to be cowed by right-wing hacks. So he gave them the proverbial finger.
Not a particularly flattering explanation. The problem is that I can't think of a flattering one.

Elian Gonzalez on Sixty Minutes
By Gail Heriot

My friend Jeff Jacoby skewers CBS for its Elian Gonzalez interview.

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.

By Mike Rappaport

Daniel Drezner has been denied tenure at the University of Chicago, the second such denial to an academic blogger. This is sad. Is it blogging or is it the University of Chicago, which in law and in other areas is known as an extremely tough place to get tenure. In both cases, neither person realized that there was a real chance of this happening.

Powerline Nods
By Mike Rappaport

The Miers nomination has really split the right. I was surprised by this claim made by Powerline:

I think that Bush is acutely aware that the Souter nomination was his father's worst and most avoidable mistake. I think that, as was widely reported, he liked John Roberts and was impressed by him during their relatively brief interview. But what grounds, really, does Bush have to trust Roberts? How does he know he won't "grow in office"? It seems pretty obvious to me that Bush selected Miers to make damn sure that at least one of his nominees won't drift to the left. He knows Miers well enough to know that she won't be seduced by Washington Post editorials and Georgetown dinner parties, as a number of Republican appointees have been. He doesn't think Roberts will be seduced, either, but he can't know for sure. Isn't it obvious that the reason Bush chose Miers instead of a better known, objectively better qualified nominee, is that he wanted to be absolutely sure of appointing a staunch and unwavering conservative?
Well, I am willing to agree that Roberts could grow in office, although I have my doubts. But how is that an argument for Miers? As I suggested below, Harriet--never express an opinion in public--Miers may also grow. The best way to avoid such growth is to select someone who has taken public positions on matters and who therefore is likely to continue with those positions. One can nominate someone of this sort and still reasonably believe them to be confirmable -- for example, Michael McConnell.

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.

Shawcross on Iraq
By Tom Smith


The Future of Harriet Miers
By Mike Rappaport

There are two primary complaints against the Miers nomination. First, President Bush could have nominated a giant but instead nominated an unknown who is not terribly qualified for the Court. The second complaint, though, would affect me more if I were Senator pondering how to vote: Miers may turn out not to be the Justice President Bush envisions and instead move towards the center over time.

While President Bush promises it won't happen, it is easy to imagine. In the early years, my guess is that Harriet Miers, who is not terribly experienced in the constitutional area, will tend to follow John Roberts. He is probably less ideological than Scalia and Thomas and he is greatly admired for his skills.

But after a couple of years, what will she do? My fear is that she becomes more liberal -- that she grows in office. Harriet Miers has spent her professional life being ambitious, doing what was necessary to rise to the top, and not staking out political or legal positions that would cause her to be criticized. On the Supreme Court, this type of person will worry about her reputation, and the best way to secure a good reputation is to move to the center and seem moderate. She will not want to stay in the shadow of Roberts forever. Miers will also have seen the accolades accorded her predecessor, Sandra Day O'Connor, for being moderate. The only reason for Miers to remain a conservative is if she is true believer and is willing to sacrifice reputation for the sake of what she believes is right. That, however, is not how Harriet Miers has acted throughout her career. There is little reason to believe she will start acting that way on the Supreme Court.

October 08, 2005
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.