The Right Coast

November 30, 2005
AP outdoes itself
By Tom Smith

Objective report on Bush's speech.

FAQ on opposition to the Solomon Amendment
By Tom Smith

Thoughtful post on the Solomon Amendment here.

I find it hard to take opposition to the don't ask- don't tell policy seriously, because I think most opponents know nothing and care less about the consequences of changing the policy would be. Making sure the military can fight and win wars just is not part of their calculus.

Robot turns evil
By Tom Smith

Skynet probe lodged deep in the control tower of Spaceship California. This is not so awesome. (Ahnold decides to go Democratic. Ugh.)

Must read on conservatives' progress at Harvard LS
By Tom Smith

Here. (via instapundit.)

Bias against conservatives is so last century.

November 29, 2005
Bush planning to call for withdrawl from Iraq
By Tom Smith

Fred Kaplan in Slate. I have no idea if he is insightful or just wrong. But even as he calls Bush cynical, he sets up the new Democratic cry. The withdrawl is irresponsible! This would really be ironic, if the Dems and Republicans switch places.

High school memories
By Tom Smith

Girl dies from kissing boyfriend. Really.

Canadian election coming
By Tom Smith

It's cold outside.

It pretty cold here in San Diego too. I almost had to put on a sweater.

Gay priest on recent Vatican letter on gay seminarians
By Tom Smith


I hardly know what to think on this issue. On the one hand, the whole pedophile scandal was and is a disaster for the Church, and it's naive to pretend it is not very largely a homosexual scandal. The argument that at least some US Catholic seminaries have become too tolerant of what one might call the actively gay lifestyle, strikes me as pretty obviously true. On the other hand, it also seems clear that at least some of the proponents of anti-gay measures in the Church are motivated by anti-gay animus of a kind that doesn't seem Christian, in addition to seeming stupid and pig headed. Of the various priests I have known and admired over the years, I would guess maybe one in three were celibate, gay men. Moreover, though it may be heretical or something to say so, if you look at the lives of the saints, some of them sure seem like their orientation, though not their practice, was more homosexual than otherwise. I know very little of St. Francis of Assisi, but if you had to guess, well, you see where I am heading. On yet another hand, you definitely want to prevent the RC priesthood from becoming a kind of club for gay men, as some say the Jesuits have become, though for all I know this is just more anti-Jesuit slander of the kind popular since the tyrant Elizabeth tortured and murdered them. I also think a married priesthood would be a mistake for the Church, not for theological reasons, on which I have no educated opinion, but because it would lead to a caste of priests, such as the Anglican Church in the UK has, with your father the bishop getting you placed in an influential post, and all of that. RC politics are Byzantine enough without introducing clans of priests. We have orders for that.

This is also interesting.

Shockingly, the NYT distorts the story.

November 28, 2005
Defending the Iraqi War
By Mike Rappaport

One of the benefits of President Bush's defense of the War is that many excellent commentators have also taken up the defense. In addition to the great piece by Normon Podhoretz, there are also these two by James Wilson and Victor Davis Hanson.

Krauthammer on Torture
By Mike Rappaport

As usual, Charles Krauthammer has written a powerful piece, this time on torture. On my own, I had come to something like the position he reached. Here is an excerpt:

What to do at this late date? Begin, as McCain does, by banning all forms of coercion or inhuman treatment by anyone serving in the military--an absolute ban on torture by all military personnel everywhere. We do not want a private somewhere making these fine distinctions about ticking and slow-fuse time bombs. We don't even want colonels or generals making them. It would be best for the morale, discipline, and honor of the Armed Forces for the United States to maintain an absolute prohibition, both to simplify their task in making decisions and to offer them whatever reciprocal treatment they might receive from those who capture them--although I have no illusion that any anti-torture provision will soften the heart of a single jihadist holding a knife to the throat of a captured American soldier. We would impose this restriction on ourselves for our own reasons of military discipline and military honor.

Outside the military, however, I would propose, contra McCain, a ban against all forms of torture, coercive interrogation, and inhuman treatment, except in two contingencies: (1) the ticking time bomb and (2) the slower-fuse high-level terrorist (such as KSM). Each contingency would have its own set of rules. In the case of the ticking time bomb, the rules would be relatively simple: Nothing rationally related to getting accurate information would be ruled out. The case of the high-value suspect with slow-fuse information is more complicated. The principle would be that the level of inhumanity of the measures used (moral honesty is essential here--we would be using measures that are by definition inhumane) would be proportional to the need and value of the information. Interrogators would be constrained to use the least inhumane treatment necessary relative to the magnitude and imminence of the evil being prevented and the importance of the knowledge being obtained.

These exceptions to the no-torture rule would not be granted to just any nonmilitary interrogators, or anyone with CIA credentials. They would be reserved for highly specialized agents who are experts and experienced in interrogation, and who are known not to abuse it for the satisfaction of a kind of sick sadomasochism Lynndie England and her cohorts indulged in at Abu Ghraib. Nor would they be acting on their own. They would be required to obtain written permission for such interrogations from the highest political authorities in the country (cabinet level) or from a quasi-judicial body modeled on the Foreign Intelligence Surveillance Court (which permits what would ordinarily be illegal searches and seizures in the war on terror). Or, if the bomb was truly ticking and there was no time, the interrogators would be allowed to act on their own, but would require post facto authorization within, say, 24 hours of their interrogation, so that they knew that whatever they did would be subject to review by others and be justified only under the most stringent terms.
In addition to keenly addressing the moral issues, Krauthammer also skewers John McCain and his hypocritical assertions of moral absolutism.

The Bankruptcy Urban Legend that Refuses to Die ....
By Gail Heriot

Loyal readers may recall the posts I did –here, here, here, and here–about a much-ballyhooed bankruptcy study that was announced earlier this year, just before Congress was scheduled to consider the Bankruptcy Abuse Prevention and Consumer Protection Act.

Some newspapers–unwisely relying on the authors’ inaccurate press releases–reported that crushing medicals bills had been found to cause half of all bankruptcies. Others–just as inaccurately-- reported the study had found illness or injury to be a major cause in half of all bankruptcies. Both statements were false.

The truth is that the study was not about bankruptcies caused by medical bills. It was not even about illness or injury as a major cause of bankruptcies. It was about bankruptcies that can–at least if you a willing to stretch things–be classified as medically related. Included as medically related were bankruptcies involving compulsive gambling or alcohol or drug addiction. And that’s just the tip of the iceberg. I’m sure that some debtors would have laughed themselves silly had they found out that their bankruptcies had been classified by the study as medically related. (See previous posts.)

What concerns me today is how thoroughly the meme that IT HAS NOW BEEN PROVEN THAT HALF OF ALL BANKRUPTCIES ARE CAUSED BY CRUSHING MEDICAL DEBT has now entered the world of public policy. As a USD faculty member, I have attended no less than two presentations on bankruptcy law this past semester by outside scholars. In each of them, the speaker let drop off his tongue the "fact" that half of all bankruptcies are caused by crushing medical debt. Evidently, these poor souls spend more time reading the MSM than they do the Right Coast (or more importantly, the actual studies they cite in faculty presentations). Let me say it one more time, perhaps a tad louder, just in case somebody wasn’t listening: NO, THAT’S NOT TRUE.

Congressman Randy "Duke" Cunningham Pleads Guilty and Resigns
By Gail Heriot

A few months ago, I asked whether Congressman Randy "Duke" Cunningham's conduct was a case of corruption, rock stupidity or both. I think we have the official answer.

November 27, 2005
Hollywood PC update
By Tom Smith

Incorrect cartoons.

I agree that movie fare is largely directed at the 14-25 or so set. Even a supposedly "serious" movie, such as The Interpreter, seemed calculated to appear sophisticated to the average 19 year old.

If ya can't beat 'em . . .
By Tom Smith

Strange goings on in the UK. Gigantic mosque planned; are UK taxpayers footing the bill for this one?

Iraq as reverse Vietnam
By Tom Smith

Or maybe that's Manteiv. Interesting, long post on Instapundit about the many role reversals in Iraq.

November 26, 2005
Books to Read
By Mike Rappaport

The New York Times has its 100 notable books for the year list. Some seem quite interesting. One is "1491: New Revelations of the Americas Before Columbus." Here is an excerpt from the Times review:

According to some estimates, as much as 95 percent of the Indians may have died almost immediately on contact with various European diseases, particularly smallpox. That would have amounted to about one-fifth of the world's total population at the time, a level of destruction unequaled before or since. The exact numbers, like everything else, are in dispute, but it is clear that these plagues wreaked havoc on traditional Indian societies. European misreadings of America should not be attributed wholly to ethnic arrogance. The "savages" most of the colonists saw, without ever realizing it, were usually the traumatized, destitute survivors of ancient and intricate civilizations that had collapsed almost overnight. Even the superabundant "nature" the Europeans inherited had been largely put in place by these now absent gardeners, and had run wild only after they had ceased to cull and harvest it.
And this one, Ladies and Gentlemen, The Bronx is Burning, about New York in 1977, is irresistable to me, since that was my senior year in high school and in many ways the nadir of the City's modern period. As the review describes it:

The book is peopled with rich characters and strange, striking juxtapositions. In the Bronx, doing battle with one another and, occasionally, with opposing teams, there are Martin, George Steinbrenner and Reggie Jackson. In politics, Bella Abzug, Abe Beame, Ed Koch and Mario Cuomo go to war for the mayor's office, though one wonders why anyone would have wanted the job. Still at large, wielding a .44 Magnum, the serial killer Son of Sam writes a letter to Jimmy Breslin of The Daily News: ''Hello from the gutters of N.Y.C. which are filled with dog manure, vomit, stale wine, urine and blood.''

Judicial inactivism
By Tom Smith

n an unbelievably narrow, mechanistic, wooden, unimaginative, and carpenter- rather than artist like opinion, a court finds that 1000 feet means 1000 feet, and so tramples on the rights of illegal drug merchants everywhere. The effect will undoubtedly be that drug pushers will have to sell drugs farther away from schools than Congress intended. I also note that the school in question in this case was a Catholic school. Using state power to protect Catholic school students from drugs is obviously a violation of the Separation of Church and State clause of the First Amendment. This is what comes from extreme right wings judges substituting their ideology for the law.

Former Canadian Defence Minister calls for better relations with ETs
By Tom Smith

This, I have to admit, caught me off guard. (via Powerline) I was not aware that the Canadians were so far ahead of us in attempts to form good relations with visiting alien civilizations, who fly here in their UFOs. I did not realize the US was working on advanced weapons to destroy these aliens. I admit to a little scepticism as to whether Canada ought to play a lead role in representing Earth, however. The ETs might get some misimpressions of humanity. They might, for example, think Earthlings are incredibly boring.

More to the point, I am sure other readers like me would like to know, is this Defence Minister guy known to be a few fries short of a happy meal? Does Canada know something we don't know, or is this just what happens if you spend too many long winter nights staring at the sky? I admit I find the whole UFO subculture sort of intriguing. It is like a post-modern version of ancient Irish beliefs in faeries. It may not tell us much about exobiology, but it does tell us something about human nature, not least human credulity.

Here's a possibility. We agree to let Canada take the lead in our relations with ETs, but in return they have to shut up about Iraq.

Just to be on the safe side, however, I say keep working on the giant ray guns. You can never tell when a really cool high tech weapon might come in handy.

November 25, 2005
The problem with reducing charitable deductions
By Tom Smith

Glen Reynolds gets on the bandwagon to get rid of charitable deductions. I am not so sure. If deductions were reduced, doesn't that mean the Feds would get more? I doubt taxes or spending would be decreased proportionately. At least charities, even if they are not really charitable, have to compete for contributions. I agree PBS is hardly a charity and probably not even a non-profit, but so what? At least I don't go to prison if I don't give to them. I also suspect if quasi- or pseudo- charities were not funded by deductible contributions, state provided serviced would tend to colonize the same space, and be even less accountable than 501(c)3's. Personally, I would like to see more deductions, for tuition, local wines, cable TV subscriptions, all the necessities. Yes, it would create "distortions." But at least the money would not be wasted on pork for pals.

Judicial Dynamics
By Mike Rappaport

Lee Epstein and Jeffrey Segal have an interesting op ed in the Washington Post on how justices change their views over time. Here is excerpt:

So, yes, Samuel Alito, in all likelihood, will be a conservative justice and will reach decisions in accord with that label. But there's a "but" -- actually several, all recent or current justices: David Souter, Harry Blackmun, John Paul Stevens, Anthony Kennedy and Sandra Day O'Connor, to name five justices for whom, to greater or lesser extent, ideological labels proved misleading. The "but" offers important insights into why some nominees, once they become justices, sometimes don't behave as predicted and how the court's dynamics can affect their views.

Then there's O'Connor, the swing justice during her last few terms on the court. Over time, this moderate-to-conservative Reagan appointee grew more liberal -- and with that movement came a change in her voting behavior. So, based on our calculations, the odds of the court upholding an affirmative action program just 10 years ago were no more than one out of three; but by the time the court heard a challenge to the University of Michigan law school's affirmative action plan in its 2002 term, the odds had increased to more than 50 percent -- largely because of O'Connor's move to the left. In the end, O'Connor did provide the key vote to uphold the law school's program (while also joining the 6-3 majority in striking down a different affirmative action plan governing Michigan's undergraduate admissions).
The piece concludes:

Where does this leave us with Judge, likely-to-be Justice, Alito? History provides little reason to question predictions that Alito will cast right-of-center votes, and reliably right-of-center votes at that. On the other hand, if that same history is any indication, even his thick judicial record may provide less insight into his future votes than we might imagine.
All this strikes me as another argument for Supreme Court term limits. That judges' views can change or operate in unpredictable ways over time is a reason to limit the length of time that they can serve on the Court. Except for introducing uncertainty and a peculiar kind of pluralism, there is little benefit to allowing them to serve long enough to modify their views.

University obsolete?
By Tom Smith

Food for thought.

BTW fellow blawgers, is there any reason we should not start recording our lectures, and making them available for iPod consumption? Or other downloadable format? I'm not sure it would take more than a digital videocamera. I'm certainly willing to raise it with my dean if you are. I will be teaching Corporations next semester, using the casebook by Bainbridge and those other two pre-Web guys. The popularity of the class varies from year to year, but if it were free, what's to complain about?

Or maybe even webcast it as well. Maybe you would get some feedback, like "that joke you told about Warren Buffet was really out of line," or whatever, from people not worried about grades. Or maybe even useful comments from lawyers out in the field. "You misunderstand X; it works like this . . ." If we are being rendered obsolete, we might as well enjoy it.

Put 60 movies on a single disc
By Tom Smith

Holographic memory discs coming in 2006.

Singing icebergs
By Tom Smith

Better than most pop music.

The wild, wild west (in China)
By Tom Smith

Real estate booms, new towns spring up. Don't drink the water.

Charitable deduction scepticism
By Tom Smith

Most 501(c)3's don't really provide public goods. But then, neither does the government.

November 24, 2005
Finally, a manly way to cook turkey
By Tom Smith

Yes, I would say that is dangerous. Be sure to check out the movie if you like big fires.

Thanksgiving in the blogosphere
By Tom Smith

Posts collected on the turkey related feast.

Suicide bombers target children
By Tom Smith

I'm having a hard time remembering why it is so important the Sunnis be included in the new Iraq.

If you own a popular blog, call 1-800-FOR-VIPS
By Tom Smith

Eugene Volokh finally gets some service from Dell by identifying himself as an uber-blogger.

Maybe we should give the terrorists free Dells, then after awhile they would all go insane. "If you are a terrorist, calling to threaten to blow us up, please push 8. If you need to reach the suicide hot-line, please push 9." At which point, you will be cut off.

Gateway is supposed to be even worse. Almost every year, when we read the Gateway box-top license case in contracts, some student will raise his hand to complain bitterly about his Gateway. My theory is that they are assembled by cows.

So far, so good with my Sony Vaio, but I have never needed any service. I bought the super-duper service package, because I have four boys.

I once got such good service from Cox Internet it was uncanny. Somebody had installed Grokster on my notebook, and when I removed the spyware with Adaware, it messed up the registry file. I called Cox, and some guy there named "Max" emailed me some hack to fix it. It worked like a charm. When the same problem came up a few months later, I called back, and they said no one named Max had ever worked there, and they were not allowed to email programs to people to fix their unrelated computer problems, sensibly enough. Who was Max? Some itinerant internet angel?

That's What Litigation Costs, Judge Posner
By Gail Heriot

I believe that Ted Frank at has Posner's recent opinion pegged right. Saith he:

"In Budget Rent A Car System Inc. v. Consolidated Equity (7th Cir. Nov. 4, 2005), the defendant submitted a frivolous appeal, Budget filed a four-page jurisdictional brief that resulted in the successful dismissal of the appeal, and the Seventh Circuit awarded Budget its fees—but then changed its mind.

"Budget made the mistake of actually filing papers showing what its fees were—3.3 hours of partner time and 10.4 hours of associate time, for a total of $4626.50. The opinion, authored by Judge Posner, called this "exorbitant," and, combined with a similar request for fees for the preparation of the motion for sanctions, was deemed a frivolous request meriting the rejection of all fees entirely.

"The opinion exhibits a fundamental problem with much of the judiciary: a complete lack of understanding of how much litigation actually costs clients. (This problem is exhibited most frequently in discovery disputes, where judges weighing costs and benefits of permitting broad discovery to go forward regularly and consistently underestimate the side of the equation reflecting burdens.) There are, no doubt, attorneys out there who can generate a Seventh-Circuit-quality brief in less than 13.7 hours, especially if they have a client who does not wish to be consulted on such matters, especially if the associate working on the case is already a good writer who has knowledge of the underlying law and doesn't have to do much research because he or she knows, and is confident of, which cases to cite off the top of his or her head. But, in the messy reality of real life, ...."

Some of the blame for the judiciary's ignorance, of course, lies in the with the bar litself. I remember when I worked for Hogan & Hartson back in the 1980s, we would routinely understate the amount of our attorneys' fees when faced with a situation in which our clients were entitled to recover for those fees from their litigation opponents. We feared that exactly the thing that happened to Budget would happen to us: The Court might get annoyed. But the fees we charged were the market price for our services and our clients were going to end up paying them if they weren't reimbursed by someone else.

Litigation is frighteningly expensive, and it's about time that the judges who devise the rules that make it expensive know the truth.

November 23, 2005
Are Academically Gifted Black Students Penalized by Other Black Students for "Acting White"?
By Gail Heriot

This study--by Harvard economist Roland Fryer and Paul Torelli--has got to be busing advocates' worst nightmare. It suggests that high-performing black students are indeed stigmatized by their fellow black students for "acting white." While the better a white student's high school grades the more friends he or she will have, the same is not true for black or Hispanic students. For them, getting straight As will often mean fewer friends.

The surprsing twist is that Fryer and Torelli found the effect was most prevalent in racially integrated public schools. It is less prevalent, perhaps even non-existent, in private schools and in public schools in which black students predominate.

Red States More Generous than Blue, Part 2
By Gail Heriot

Tom links to Tax Prof Blog below, which talks about a new study that ranks the 50 states in terms of the charitable giving of their residents (adjusted for income). The results are pretty stark: Red States tend to be much more generous than Blue States.

I suspect that two things are going on here--one of which may support the notion of a real Red/Blue generosity gap and the other of which may not.

First of all, the Red States (at least the Southern Red States and possibily others) tend to have significantly higher church attendance than Blue States. Church membership can become a focal point of family life. Sunday services are something the family can go to each week as a family. Church activities help fill their calendar.

Otherwise similarly situated families end up giving less because their charitable interests are less likely to have weekly meetings. Those weekly church offerings add up. Moreover, many family activities that might be substituted for Sunday church attendance--Sunday brunch, Saturday night at the movies--are not charitable activities.

Second, the study does not adjust for cost of living. A family of four with an income of $150,000 in Massachusetts is doing fine, but they certainly aren't swimming in cash. A similar family living in Mississippi would have a lot more discretionary income. I may not be quite fair to call the Mississippi family more generous than the Massachusetts family. I'd be curious to see the rankings after some effort to adjust for cost of living is made.

Of course, taxes are part of cost of living. And that opens a whole new can of worms. High-tax states in theory are delivering services that low-tax states do not. Perhaps Blue-Staters are less generous, because their state governments already provide the social services that must be provided by charitable activity in Red States. Or perhaps Blue State governments provide these services only because they've learned that their own residents are too stingy to provide them through charitable giving....

There's a lot to untangle here.

Loony left on Thanksgiving
By Tom Smith

Journalism professor on the sins of our fathers. (via instapundit.)

One of my ancestors on my mother's (the Irish) side was an enlisted man in the U.S. Army who came out to Oregon in pioneer days, when the Army had various unfriendly encounters with the local indigenous population. As far as I know, however, he was, like nearly all of the Irish-Americans in the army in the late 1800's, extremely sensitive and caring in all his dealings with the "hostiles." He did not drink or swear, but instead set up counselling sessions for soldiers to deal with their feelings about such difficult topics as massacres of settlers and the like.

Red states more generous than blue
By Tom Smith

This is weird. Is it really that Republicans are more generous than Democrats? It would be interesting to see this broken down on an individual basis. It is possible it is the Democrats in Red States who are giving (though I doubt it).

November 22, 2005
Berman on French Anti-Americanism
By Tom Smith

Rather long and wordy, but interesting. (Reg. req'd.)

Atta in Prague
By Tom Smith

The story is murkier than the MSM thinks. Via Opinionjournal (reg. req'd).

November 21, 2005
Whaaaaa! Somebody is leaking!
By Tom Smith

Washington Post gets a taste of its own medicine, and it is too funny. (via opinionjournal)

The solution to the DRM copyright problem
By Tom Smith

It is a big, deep problem that try as they might, the music industry does not seem able to come up with a way to defeat the unauthorized copying of digitally recorded music.

With all due modesty, I would like to announce that I have a solution. First, one must just accept that a technological solution is impossible. I don't really know this, but it sounds profound, and as a law professor, I sometimes say things not because I know them to be true, but because they sound profound. Also, for all I know it may be true.

Second, this means there must be a non-technological solution. If we look at old-fashioned TV we see how freely available programming, which open access music would be, dealt with the problem. Advertising. You watched I Love Lucy, but then you also watched, at least sometimes, the ad for Ivory soap.

You see where this is going. You put ads on the music CDs. But, you say, this will not work because consumers will simply skip the ads with the FF button, or worse, make recordings that leave the ads out. This does seem likely. But this is where my solution becomes brilliant and elegant, if I say so myself. I call it "Artistically Integrated Product Placement" or AIPP for short. Like product placement in movies, where James Bond, for example, wears an Omega watch, the lyrics of the popular music would feature the advertized product. Thus, the lyrics of a recent hit by the LA Armenian influenced rock band System of a Down could go

Why don't Presidents fight the wars
Why do we always send the poor
I drive a Toyota and so should you
I drive a Toyota and so should you

The first two lines are in the original; the second two are an example of AIPP. Or consider a "gangsta rap" effort:

I shot the cop and he bled out in the street
Then I kicked my ho in the head
Then I ate a Certs and felt so fresh
Felt so fresh, etc.

I just made up those lyrics, but you get the idea. Artistically integrated product placement.

Some might argue that AIPP would compromise the artistic integrity of contemporary popular music. And they would be right. But would the music actually be any worse? That is a much more difficult question.

French sleepwalker attempts to leave airliner in midflight
By Tom Smith

Someone had to tell you.

Fred Barnes on Vietnam in Iraq via Washington
By Tom Smith

I guess if the Democratic party's strategy is disaster for US foreign policy, slaughter of Shiites in Iraq, setting up a new terrorist state, and who knows what else, it's worth it.

But it's Bush's fault. He never should have put our country in a position where the Democrats would see opportunity in its defeat.

Oh, well. Too bad for the Iraqis. If they can make it to their boats, I guess they can come over here and open convenience stores.

The NVA and VC were a bunch of Stalinist thugs, but as far as I know they did not fantasize about setting off atomic bombs in Manhattan, or if they did, had no plans to do it. They just wanted to turn their little corner of the world into a fascist hell-hole, and succeeded quite thoroughly in that regard. Not a lot of PCs or VCRs coming out of Ho Chi Mihn City, last I checked. But at least they have good, universal medical care. Or not. Whatever. Interesting destination for the jaded traveller, at any rate.

Someone needs to tell the American left that just because some people want to overthrow their elected government, take power, slaughter their numerous enemies, and then try to impose their nightmare ideology on as much of the world as they can conquer or intimidate, that doesn't mean they're good guys.

Home front
By Tom Smith

This from Stephen Hayes, in the Weekly Standard, makes sense to me:

Besides, in the end, the notion that the Bush administration doesn't need to continue to make the case for war is shortsighted.

Talk to senior American diplomats and military officers in Iraq today and they will tell you that the insurgents closely monitor the debate here in the United States. As domestic support for the war dwindles, the insurgents increasingly believe they can win; they fight harder, they raise more money, they gain new recruits. If these U.S. officials are correct, then continuing to make the case for war in Iraq--to remind people with specifics, not platitudes, why we're fighting--is not a distraction but a central component of fighting to win.

Talk to Sen. John McCain, who urges "a renewed effort to win the homefront," lest we lose sight of this fact: "Success or failure in Iraq is the transcendent issue for our foreign policy and our national security, for now and years to come." Said McCain, speaking at the American Enterprise Institute last week, "A renewed effort at home starts with explaining precisely what is at stake in this war--not to alarm Americans, but so that they see the nature of this struggle for what it is. The president cannot do this alone."
* * *
And see this by Kagan and Kristol of the dire consequences of abandoning Iraq. And no, I can't get the italics to turn off for some reason. More Blogger lame-itude.

Politically incorrect suggestion of the week
By Tom Smith

Could we perhaps send these folks to fight the terrorists? I think they have some experience in that part of the world. (via ip).

Islamofascist terrorism is a tough gig
By Tom Smith

You go to Iraq, blow up men, women and children, and they start to hate you. Go to Jordan, blow up a wedding reception, next thing you know you're being denounced. So, back to Afghanistan, where maybe you will be appreciated more. Nobody said it was going to be easy.

Overlawyered blawg review
By Tom Smith

Quite a stew of blawgy goodness here, including a comprehensive update on the UTR incident (not that we know much more).

Sunstein on Originalism
By Mike Rappaport

Cass Sunstein blogs on his appearance at the Federalist Society debating originalism. He writes:

There was a persistent claim that seemed puzzling. The claim was this: Interpretation just IS a matter of attempting to elicit the speaker's intention. Hence originalism, understood as a search for the original intent, follows from the very nature of interpretation.

This claim seemed puzzling for two reasons. First, the most prominent originalists, including Justice Scalia, do not focus on the "speaker's intention"; they focus on the original public meaning.

Second, and more fundamentally, there is nothing that interpretation just IS. In interpreting the statements of our friends, of course, we probably do best to try to understand their intentions. But in law, interpretation can be more than one thing.
Curiously, I agree with Sunstein. Two of my colleagues who I greatly respect, Larry Alexander and Sai Prakash, take this position that interpretation simply is the quest to determine the intent of the author. Yet other originalists, who I similarly respect, like Gary Lawson, argue that the meaning of a statement simply is its original meaning. So both set of originalists argue that, as a matter of determining meaning, their position is the only correct one. Yet, both disagree with one another.

My view is that interpretation and meaning are contested concepts and we see varying practices followed with respect to them. Each side has strong arguments for its position, but it is not clear how we could resolve it and in any event little in the end turns on it.

The proper arguments for originalism are legal and normative. The legal arguments show that the Constitution is best read as requiring originalism. And the normative arguments show that we ought to interpret the Constitution in this manner. What the best philosophical view of interpretation is is largely beside the point.

November 20, 2005
Zarqawi is a psychopath
By Tom Smith

I seem to be in amateur psychologist mode lately, but it is not as if this is a wildly implausible claim. The evil Zaraqawi's backpedaling now that it turns out Jordanians are outraged at his blowing up of a wedding reception is (to my amateur eye) pretty classic psychopathological stuff. Psychopaths do not experience moral emotions like the rest of us. They are rather like the guy at the concert who pretends to be moved by the music, but is tone deaf and would just as soon be listening to a lawnmower. These leads them to make egregious moral faux pas from time to time, in this case, apparently, even in the strange world where there are moral and immoral suicide bombers. Unfortunately, I suspect there would be little outrage in Jordan if a Jewish wedding had been blown up in Israel (or Jordan, for that matter).

Zarqawi dead? Wouldn't that be nice.

Lithwick lays down gauntlet to conservative bloggers
By Tom Smith

This is interesting. It does raise the question, what should conservatives and Alito say about Roe v. Wade. It seems a bit like Lithwick wants conservatives to play the role of that big galoot in the famous knife fight scene in Butch Cassidy and the Sundance Kid. It's for us to stand up and say, "Rules? In a knife fight?" Liberals get to play Butch.

Here's a hard question. Suppose the Supreme Court invents some law in the most intensely fraught field imaginable, one that goes to the heart of issues such as the right to live and the right of a person to control her own body, and the occassional conflict of the two. Base the decision on reasoning that would get an F in a logic class and a mere "low pass" at the Yale Law School. Now let this legal terategen work its way into the fabric of constitutional law for three decades. Now ask a conservative what to do about it. What aspect of the rule of law is more important-- respect for constitutional law precedent or respect for the original meaning of the constitution? Or put another way, which of your children do you want to hand over to the Nazis, Sophie? But wait, we're not done yet. Let's have that discussion in front of, and under the good faith moderation of such giants as Senators Kennedy, Leahy and Biden. Not to mention the fair-minded press, and the calm, soothing balm of our constitutional law scholars.

I don't recall any conservatives saying the White House was dodging a debate in nominating Miers, so much as dodging a fight. There is a difference. Not that this fight should have no rules. So, for example, I now acknowledge no purpose is served by remarks, such as I wanted nominee Thomas to make, along the lines of, "Let me get this straight, Senator Kennedy -- you are saying I hit on my assistant, as opposed to say having sex with her on the beach, getting drunk, driving her off a bridge, leaving her in the ice cold water to drown, and then getting my family's lawyers to fix it up for me?" But I thought "high tech lynching" was fine, indeed, apt.

So, I think it is fair for the Democrats to use Alito's 1985 memo against him. It's also fair for Alito and the White House to play it down as best they can. It's not a knife fight. But neither is it beanbag.

Biden says chances of Alito filibuster greater
By Tom Smith


Profiles in couragelessness
By Tom Smith

We will fight them on the beaches, unless of course there is some danger of getting wet. That can ruin your shoes . . .

Should the American Republic last a thousand years, let them say, this was their, well, an hour that could have been worse, if you consider the politics of the matter . . .

It just doesn't sound the same. Powerline has a nice post and links on the latest Ve only voted zat vay because Bush lied to us! line.

I admit to being baffled. I credit politicians with being pretty cold blooded, rational creatures when it comes down to it. And in their own rather repulsive way, often very clever, like some organism on a PBS nature special that makes its living eating other animals' babies or whatever. From that perspective, I don't quite understand what the Democrats think they are doing.

Maybe they think acitivist Democrats, who are more left-wing, are more likely to vote in mid-term elections? Maybe they think by fanning the flames of anti-war discontent they can increase turn-out and maybe even get control of the Senate? Golly, that would be awfully cynical. What a way to support our troops.

Or is all just setting up for 2008?

Or is it just stupid, short-sighted herd survival instinct, with Democrats distancing themselves from a policy they voted for, now that that policy appears to be "in trouble"? Trouble mainly in the minds of the MSM and the Democrats, and of course, for the Iraqis who are having a tough time of it. This notwithstanding that as messy, dirty little wars go, it seems to be going pretty well. Are the Democrats really trying to snatch defeat from the jaws of victory? Maybe they think victory would be as bad for them as a defeat from which they have not disassociated themselves. Bush would get credit for the former, and they would get blamed for the latter. Could they really be that cynical? Perhaps they are, but don't quite realize it. So maybe the line of the Democrats is, let's lose this war -- it's the best thing for the the Party, that is, us. But we still support the troops. And if this is what the Democrats are doing, it is not for us to question their patriotism.

Sony anti-copy program kerfuffle
By Tom Smith

Did Sony steal its anti-piracy software?

November 19, 2005
Alter on Mapes
By Mike Rappaport

"We could have won the election, if Mary Mapes had not blown it." That is how Jonathan Alter's review of Mary Mapes' defense of her actions in Rathergate reads to me. Although Alter's review attempts to focus on the need for journalists to be professional, Alter's disappointment with the political effects of Mapes' reporting comes across clear:

The "60 Minutes" broadcast began with a legitimate scoop. For years, Ben Barnes, a former speaker of the House in Texas, had privately explained how a Bush family friend called him and asked that he help get young George into the Texas Air National Guard. But Rather's interview was the first time Barnes had gone on television to tell his story. If the second part of the "60 Minutes" report - on four photocopies of fresh but not particularly revealing documents from the office of Lt. Col. Jerry B. Killian, who died in 1984 - had been held or scrapped, there would have been no CBS scandal.
And one almost hears Alter say, "we would have won." There is much more of that in the review.

In a way, Alter is right. Kerry was not able to use what was probably his most effective weapon: the bias of the MSM. That was due in part to Rathergate, but also due to other factors such as the Swiftboat Veterans and ineptness of the Kerry campaign.

Good point
By Tom Smith

Powerline has a good point here. I have thought for a while that in terms of psychological profiling, Zarqawi and others don't get enough credit for being sadists ,at least not in the media; I'm sure the shrinks at the CIA have noticed it. No, I'm not a psychologist. I just bet the incidence of psychological/ sexual sadism among the terrorist elite is pretty high. Such nice people.

The next Nobel Prize in Literature?
By Tom Smith

Barbara Boxer has written a novel, or at least her ghost writer has, and the Senator has allowed her name to appear on the cover.

I heard her interviewed on XM Public Radio regarding the book, or at least I listened to as much of it as I could stand. It's about, well, here, from Amazon

From Booklist
On the eve of the nomination of an ultraconservative Hispanic female Supreme Court justice, liberal Senator Ellen Fischer of California is given the perfect weapon: sensitive documents that could wreck the nomination. With less than 24 hours to take action, Ellen is bombarded with advice from her aides. But she doesn't trust the source of the damning information, Greg Hunter, darling of the right-wing conservatives, a former lover, and a longtime friend of hers and her deceased husband, Joshua. It was Joshua's accidental death on the eve of his election to the U.S. Senate that propelled Ellen's reluctant career as a politician. Hunter's offer provokes memories of how the three became friends: Joshua and Greg were roommates at the University of California at Berkeley, destined for sterling careers in the law and journalism. She was a budding social activist for children's causes. They became fast friends until Josh's proposal redefined their relationships. The ensuing years brought challenges to youthful idealism and the lure of power and wealth as the three made lives and careers for themselves in the San Francisco Bay Area. Across the years and across the country, Ellen and Greg eventually come to a showdown in the nation's capital. Boxer, a U.S. senator, brings an insider's knowledge of politics to this compelling novel of friendship, idealism, and corruption and the behind-the-scenes machinations that go into political deals. Vanessa Bush
Copyright © American Library Association. All rights reserved

In other words, a real stinker. Like, too cheesey for even the most jaded, grizzled French peasant whose wife makes him eat his cheese outside. A four day old beached in high August dead seal of a book. You get the idea. Somebody needs to tow the poor thing out to open water before it gets any worse.

Now, it is true that my native state of Idaho produced a Senator Taylor in 1951, who used to sit on the steps of the Capitol and play cowboy songs on his guitar. After his utterly undistinguished career in the world's greatest deliberative body, he found his true calling in starting a high quality hair piece company called Taylor Toppers (google it if you don't believe me). So, perhaps I should not complain about insults to the dignity of the office. But, really:

Greg's naked body was long and elegant, his embrace enveloped her utterly, and they meshed with ease and grace. He smelled good too, faintly and astringently of aftershave. He was clinging to her as if he'd never let her go, it was all so easy and right.
Memo to the Senator. It would not be right, and it would not be easy. Then there is the horse sex scene.

A ton of finely tuned muscle, hide glistening, the crest of his mane risen in full sexual display, and his neck curved in an exaggerated arch that reminded Greg of a horse he'd seen in an old tapestry in some castle in Europe Jane had dragged him to. The stallion approached, nostrils flared, hooves lifting with delicate precision, the wranglers hanging on grimly. ... The stallion rubbed his nose against the mare's neck and nuzzled her withers. She promptly bit him on the shoulder and, when he attempted to mount, instantly became a plunging devil of teeth and hooves. ... Greg clutched the rails with white knuckles, wondering, as these two fierce animals were coerced into the majestic coupling by at least six people, how foals ever got born in the wild.

Well, of course we all know how foals get born in the wild. The US Department of Horse Reproduction is there to help out. They review which horses should mate with which, interview them; a complicated process, to be sure, but they know what they are doing.

True, the good Senator in all likelihood did not only not write this book, but probably has not even read it. At least I hope not. But even with regard to books one only allows one's name to appear on as author, it is a good rule of thumb, if one is a United States Senator, not to get all steamy about the sexiness of large animals. It is not a bright line rule. It is more of a standard. Thus, for example, if a US Senator of either sex has been on one of those whale encounter trips, and is tempted to write something like

As I straddled the massive, slick beast, I felt a tingling that began in my loins and spread, like the pulse of life itself, slowly, etc. etc.

then he or she should just stop writing, and immediately delete that and any similar passages. Call it decorum, call it "too much information," call it what you will, it just ain't rat.

I will just briefly mention the obvious point that the plot is an embarassingly dumb mash of liberal cliches. A conservative Hispanic woman in nominated to the Supreme Court! What to do! A knee jerks to support her; she is a minority woman, but she is a conservative! Oh dear, quell dilemma! The little dino brain in the head and the little dino brain at the other end of the spine are in conflict! But then, a devastating bit of dirt comes over the transome! Now what to do! And this edifying story, which one can only hope is not really a glimpse into the constitutional mind of Boxer at work, a mind that would seem to make Harriet Miers look like James Madison, comes out on the eve of a big and important confirmation fight Is this unbelievably tacky opportunism or just sheer, numbskulled stupidity? Or some uniquely Boxerorian combination of the two?

Didn't the Athenians select some high officials by lot? Maybe we should give that a try in California.

November 18, 2005
Guns for Gail
By Tom Smith

I see below that Gail is living a couple of doors away from a convicted rapist. I find this odd, because Gail lives in a beautifully restored, officially historically landmarked mission-style authentic California bungalow in a pricey neighborhood, as she is too modest to mention. You wouldn't think there would be a lot of rapists around.

But I think Gail needs to address the issue in a mature, sensitive manner. I have several suggestions.

First, there is this. Classic lines, reliable, point and shoot technology. When you just want to say it once.

If you wish to make a more discrete statement, consider this. This is one puppy where its bite (.40 caliber) is worse than its bark. It also comes in nice colors, appropriate for someone's with Gail's taste for lovely objects. You can get the laser sight, too. Why not. Something about the red spot on his chest says "get lost, buster" like nothing else can.

This is overdoing it. But it does the job. Don't forget the earplugs.

Glenn Reynolds would probably recommend this. Just between you and me, he's a bit of a gun snob. I think these are fine.

Then, there is the traditional approach.

Remember, shopping is half the fun!

WELCOME Instapunditeers! Please look around and stay awhile. In fact, please come back everyday several times. We specialize in timely, edifying posts, which often both witty and erudite. But now I have to go take the carseat out of the truck.

Harvard Law School meets US Army
By Tom Smith


I have not kept up with the whole Solomon Amendment issue. Last I heard some law schools, or faculty members and students, or something, were suing the United States perhaps, to get out from under the Amendment. I recall getting a smarmy letter from the law school from which I graduated that addressed itself to the subject, among other acts of self-congratulation. When I think about that letter, I still get all teary-eyed.

It is difficult, nuanced issue. On the one hand are these people who get paid barely enough to stay off food stamps, spend months and years away from their families and comforts such as edible food and air conditioning, and do a job that involves the risk of getting your limbs blown off, the flesh seared from your body, your sight and/or hearing permanently destroyed, and your psychic peace forever shattered, among other things worth mentioning. They do it so people like yours truly can live in beautiful San Diego and worry only slightly about some deranged fascist from some rathole in Butwhuckistan setting off a radiological bomb at a Padres game in the service of some bizarre religious fantasy. If you encounter one of these our protectors in a cafeteria and buy them lunch, as I am proud to say I did the other day, they will say "thank you, sir. We really appreciate it, sir." Appreciate it, hell. I appreciate not having to go over to the last place on earth where some holy nazi would try to blow me into nine pieces. They do all this for the rest of us out of a sense of duty, of service, of adventure and a desire to protect their country, which are all things they believe in.

That's on the one hand. On the other we have various law students and faculty who believe it is wrong for the military only to admit gays on the condition that they not be openly gay while in the military. The various law students and professors believe in this so strongly that they do not want military officers recruiting on their campuses, which they probably would not want in any event, because they don't like the military. In general, they find the military icky. This is something they believe. So then Congress said, fine, if you don't want the US Army, Marines, Navy, Air Force or Coast Guard recruiting on your campus, then you don't have to take any money from the US government either. But wait. The law school people do not believe it that strongly. Let's be reasonable here. You are talking about taking away a lot of money now. Millions, even. This is unfair, shocking! There must be a way, they apparently think, they can defend their beliefs at a lower cost than that! Much lower! Yes, they are made of stern stuff, these advocates, these heros. Imagine for a moment that all that stood between the Islamo-nutcases and us were these stalwarts. "Oh, you mean you are actually going to shoot at us? But that's so insensitive! Couldn't we just workshop it and find out the issues around your concerns?" Then they would be dead, and soon thereafter so would we.

And another thing. Do any of these people who are involved in this effort to keep the US military off campuses have any desire to join the armed services themselves? Do they even know anybody who would like to, or has? Would any of them be caught dead with an American flag or a "I support our troops" sticker on their 10 year old Volvo? I doubt it very much. They could care less about any effects its policy regarding homosexuality could have on the military. If it hurt the military or our national security, they could care less. Could anyone seriously believe otherwise? If these people could ban the military from recruiting on campus just because they are the military, they would do that, too. And they're not overly fond of Christians, Republicans, Federalist Society members, Jews who support Israel, let alone Israelis, anyone who opposes abortion, and lots of other people besides. This set of attitudes is called tolerance, and they just can't stand anybody who does not possess it.

But remember, while these brave fighters for tolerance are doing what they see as their duty, for as long as it may not be too expensive to do so, the rest of us must stand in awe of their fierce conviction to do the right thing, no matter what, provided that the what involved is not too much trouble.

I'm not a professor at Harvard Law School, just this law school, but when at our graduation, as is frequently the case, some of the students are wearing the dress uniforms of the US Navy or Marine Corps underneath their black gowns of soon to be Juris Doctors, it makes me feel humble, yet at the same time, proud.

Megan's Law and the Problem of Statutory Rape
By Gail Heriot

I got an e-mail from a good friend of mine a couple of weeks ago. He had just run across the California web site for registered sex offenders and found that I have been living a couple of doors down from a convicted rapist. Good grief, I thought. I checked it out and found another one a couple of blocks away. It’s always something, isn’t it? But life goes on....

On the whole, I approve of "Megan’s Law." Yes, I understand that there are significant problems. Some people go overboard when they hear that they live near a registered sex offender. A harmless ex-offender gets hounded out of the neighborhood (and sometimes out of his job too). No doubt there are lots of ex-offenders out there who have paid their debt and are now trying hard to be responsible and productive citizens. Megan’s Law makes its harder for them to succeed.

But the fact is that (at least for certain sex offenses) those who have committed the offense in the past are much more likely to do so in the future than are those who have not. And all the wishful thinking in the world won’t change that. A very dear childhood friend of mine learned this the hard way a year or so ago. She married a man with a history of child molestation. He told her that he had the problem under control and that he would never do such a terrible thing again. And I’m confident he was sincere when he said it. But after a few years of good behavior, my friend made the mistake of allowing her husband occasionally to pick up her son’s step-daughter at the elementary school and drive her home. The temptation proved too great for him. As a result, a primary school child has been through an ugly trauma that may or may not have long-term effects, and the child’s tormentor has been sent to prison for a very long time.

Given the seriousness of the recidivism problem, it seems wrong to me for a state to withhold information that could be so useful in protecting the public. No one is entitled to escape the reputation he has earned simply because he has served his time. Megan’s Law isn’t about heaping further punishment on offenders. It’s about giving people the information they need to protect themselves and their children. That seems only just to me. The fact that some ex-offenders will be treated more harshly than I would like is the price we pay for that useful information.

But there are limits. Not all sex offenses are equally serious, and not all are as likely to lead to repeat offenses. The little injustices wrought by Megan’s Law are very real. It therefore makes sense to limit its application to the kinds of offenses that are more serious or more likely to be repeated. Evidently, however, some states have not done so.

I received another e-mail a day or so ago, this time from a stranger. I suspect half the bloggers in the country got a similar message. It seems the author–a college student in Georgia–had gone to a Christmas party and a young female who was smoking and drinking had "come on" to him. One thing led to another and they ended up in bed together. So far, the story is pretty ordinary. Bless those little hormones; they make the world go ‘round (even though they occasionally get us in a mess of trouble).

A few days later it unfolded that the female was the host’s sister and that she was only 14 years old. When her police officer father found out, the college student (age 25) was charged with statutory rape and child molestation. The child molestation charge was ultimately dropped in exchange for a guilty plea on the statutory rape change, which he evidently agreed to at a time when statutory rape offenders were not covered by Georgia’s version of Megan’s Law. That later changed, much to the student’s horror, and his name, address and photo went up on the Georgia Bureau of Investigation’s web site. He lost his job. And that was just the beginning of his problems, which I will not detail here.

The student claims that he honestly believed that she was an adult. I have no idea if he is telling the truth or if the incident occurred in the manner described at all. I did verify from the Georgia Bureau of Investigation web site that a someone with the same name and age as the purported author of the e-mail was indeed convicted of statutory rape. But even if he is making the story up, I suspect that similar stories have occurred in those states, including Georgia, where statutory rape is among the offenses reportable under the applicable version of Megan’s Law.

Statutory rape, of course, isn’t rape as that term is commonly understood. It is a terrible shame that they are given the same name. Traditional rape is all about non-consensual sex. Statutory rape is about consensual sex where one of the parties is below the age of consent (which in Georgia is 16). While there is good reason to criminalize such conduct, it’s a mistake to treat statutory rape as if it is as depraved as rape, especially in view of the fact that as to the issue of the victim’s age it is a strict liability crime. In other words, even an adult who reasonably believes that he is having sex with another adult is guilty of statutory rape if his partner in fact turns out to be below the age of consent. "Officer, I didn’t know," is no excuse no matter how reasonable the error.

Back in the days before statutory rape’s inclusion under Megan’s Law, a strict liability rule might have made some sense. It tells potential defendants that they had better be right about the age of their potential sexual partners, because the law will show them no mercy for error. That’s a harsh rule that will occasionally ensnare a complete innocent. Imagine the elderly gentleman who takes up with what he thinks is an elderly woman he met at the AARP meeting. She’s grey-haired and wrinkly, but appears to be young at heart. It turns out she’s a fourteen year old suffering from Hutchinson-Gilford Syndrome (Pre-Mature Aging Disease). He’s guilty. But for him (and for the many adults whose situations are less compelling, but nevertheless somewhat understandable), the penalty is likely to be low.

With Megan’s law, at least in those jurisdictions that include statutory rape as a reportable offense, all this has changed. After he has served time or (more likely) served his probation) an ex-offender can be hounded out of the neighborhood and lose his job all because he may have reasonably mistaken a girl for a woman. There but for the grace of God go half the young men in America. Do we really want to go that far?

A Man of Integrity
By Mike Rappaport

Our colleague, David McGowan defends Sam Alito in the Chicago Tribune. Here is an excerpt:

Supreme Court nominee Samuel Alito Jr. did not play fast and loose with judicial ethics rules in a 2002 appeal involving the Vanguard Group mutual fund company, as some reports suggest.

The truly important question is not whether the judge made an error, but how he responded when it was pointed out to him. You do not need to be a fan of Alito's jurisprudence (and one of us definitely is not) to recognize that he is a man of integrity.

In the final analysis, Alito showed admirable sensitivity to the question of recusal, agreeing to disqualify himself "in any case in which any possible question may arise." Other judges--and justices--would do well to follow that example.

November 17, 2005
The logic of history
By Tom Smith

1. Democrats force the Republican administration to withdraw from Iraq, inflicting a humiliating defeat on them and incidentally on the US and its arms.

2. Chaos and civil war erupt in Iraq. Shiites slaughter the outnumbered Sunnis in far greater numbers than the US ever did. This slaughter is blamed on the misguided policies of the Republicans.

3. Democrats win White House in 2008. New President announces that America will never again be lied into war. Syrian entrepreneurs acquire bio and nuclear weapon technology from former Iraqi stockpiles in eastern Syria. Iran tests its first nuclear weapon, called "the wrath of Allah." Democrats blame Republican administration for having failed to take adequate steps to stop Iranian weapons program.

4. Independent Kurdistan created. Sunnis flee to refugee camps in western Iraq and Syria. Humanitarian relief is provided by the UN. Terrorist training camps set up. Terrorists acquire bioweapons technology from entrepreneurs, who are paid by Saudi associates of Al Qaida.

5. Weaponized flu virus released in five major US and European cities. In the US, FEMA coordinates the response. Democrats blame Republicans for having failed to take adequate steps to keep WMDs out of hands of terrorists.

6. But don't worry. Everything will be fine.

Luther clarified
By Tom Smith

Looks like just about the end of that argument.

House Democrat calls for withdrawl from Iraq
By Tom Smith

Here. I'm finding the politics of this rather baffling.

I am Juan Non-Volokh
By Tom Smith

Just kidding. But he has this interesting post and link on anonymous blogging.

UN believable
By Tom Smith

Check this out, seriously. Just when you thought you couldn't depise the UN any more than you already do. It's not enough to send in peacekeepers who won't shoot bad guys but have no trouble sexually exploiting women and children; not enough to turn a program that is supposed to feed starving children in the biggest graft-o-rama in history, which BTW would probably have funded major WMD development had it gone on much longer. Nope. That is just so retro, so almost medieval. What is the UN doing to expand its malignant idiocy into the wacky world of the future? I know! There must be some way to really mess up the internet! To undermine its potential to promote liberty across the land! But remember, you cannot even aspire to being perfectly evil unless you combine all this with that special, sneering, and condescending attitude toward America, commerce, people who actually do shoot bad guys instead of raping the people they were sent to protect, and anyone who does not have a Swiss bank account and an Armani suit.

It begins
By Tom Smith

The Alito battle heats up. The 1985 memo makes it inevitable.

Interestingly, some of the conservative groups are attacking the organizations running the attack ads on Alito, rather than defending Alito. I wonder if they know what they're doing.

Law professor and media commentator Jonathan Turley opined this morning on XM public radio that Alito had now to answer questions about how he would rule on abortion cases, since he had opened the door with the 1985 memo. At least, that seemed to be what he was saying. Perhaps one should assume that it was not, since it seems so obviously wrong. Can it really be that Justice GinsbUrg had expressed no controversial views before she became an appellate judge when she invoked the now so-called Ginsburg rule? I recall something about bizarre views on marriage and the age of sexual consent. But whatever. I think Alito should stick to the line that the 1985 memo reflected his views 15 years ago, and that in any event his job as a judge is far different from what it would have been and was as a legal advocate in the Reagan administration, that Roe v. Wade is much more settled law now than it was then, that his record shows what his attitude is toward settled law, and that in any event, it would be improper to discuss how he would rule on any particular issue, including whether to overrule a case that was based on entirely fabricated grounds when decided, but has since become part of the very fabric of the law, such as it is, which raises the difficult if not impossible question of what to do with it now, and thus is a very good case in point for not making things up on the bench, lest you do something as unbelievably stupid as Roe. But so very well intentioned, of course, that one can only regard Justice Blackmun et al as virtual latter day saints. Alito should never say again I vas only applying for zee job! I am relieved to see Alito is not perfect; I am only recently getting over my depression at not being Roberts.

I hope Frist is not bluffing that he is willing to use the nuclear aka entirely Constitutional even downright patriotic option. At least the left wing of the Democratic Party has staked out the position that conservatives simply are not allowed on the Supreme Court, relying on risable arguments. It is the O'Connor seat; Alito might not follow settled law; Alito is a radical. But they all boil down to, liberals (or what ever you want to call them) should be able to exercise a veto power over Supreme Court nominations. It is past time to get that issue settled. It is not going be settled by arguments. It will only be settled by votes, for Presidents and Senators and judicial nominees, respectively. I still put the Miers nomination down to a boneheaded blunder, but it's an ill wind that blows no good, and the good in Miers case may be that it sent a strong signal not only to the WH but also Republican presidential aspirants that a big part of the people who vote GOP are not kidding about the Supreme Court. This ups the chances that Frist and the Senate leadership will hold firm. And though I am no expert vote counter, I think they will have to. I don't see how RINOs such as Snowe and Chafee can do anything but vote against confirmation; they come from liberal states and are called RINOs for a reason. Unfortunately, much will depend on Specter and other moderates. Bearing in mind I am always wrong about these things, I predict a close vote. Tradesports today has Alito getting over 60 votes at 63/70 bid/ask, and confirmation at 82, which strikes me as a bit optimistic. But that's why we have markets, at least in free countries such as Ireland.

Where are those WMDs?
By Mike Rappaport

Bill Tierney, a former military intelligence officer, "was an inspector (1996-1998) for the United Nations Special Commission (UNSCOM) for overseeing the elimination of weapons of mass destruction and ballistic missiles in Iraq." Here is an excerpt from Tierney's interview with FrontPageMag:

FP: Let’s talk a little bit more about how the WMDs disappeared.

Tierney: In Iraq’s case, the lakes and rivers were the toilet, and Syria was the back door. Even though there was imagery showing an inordinate amount of traffic into Syria prior to the inspections, and there were other indicators of government control of commercial trucking that could be used to ship the weapons to Syria, from the ICs point of view, if there is no positive evidence that the movement occurred, it never happened. This conclusion is the consequence of confusing litigation with intelligence. Litigation depends on evidence, intelligence depends on indicators. Picture yourself as a German intelligence officer in Northern France in April 1944. When asked where will the Allies land, you reply “I would be happy to tell you when I have solid, legal proof, sir. We will have to wait until they actually land.” You won’t last very long. That officer would have to take in all the indicators, factor in deception, and make an assessment (this is a fancy intelligence word for an educated guess).

Could the assessments of Iraq’s weapons program been off? I am sure there were some marginal details that were incorrect, but on the matter of whether Iraq had a program, the error was not with the pre-war assessment, the error was with the weapons hunt. I could speak at length about the problems with the weapons hunt.

November 16, 2005
Ninth Circuit split
By Tom Smith

I don't know enough to know whether I favor it or not.

The Chosen People -- and I don't mean the Jews
By Tom Smith

I heard the author of this book interviewed today on XM Public Radio, and he was very interesting indeed. The book is a social history of admissions policy at Harvard, Yale, and Princeton. Among many other interesting points is how much effort went into keeping Jews out.

My interview at Princeton was a disaster. Only after the interview did I notice I still had the tags on my suit. Before my interview at Georgetown, I stepped in a mound of dog poop that must have been left by a mutant St. Benard, it was so huge. I ended up applying early decision to Cornell, where I had spent the summer after my junior year in HS in a program for over-achievers.

The whole topic of college makes me queasy now. I have a 14 year old, and three more after that. I'm sure parents out there know what I mean.

John Tieney on Homeowners Associations
By Mike Rappaport

The only New York Times' columnists that I regret not being able to read because of "the Wall" is John Tierney, both because Tierney is something of a thoughtful libertarian and because his views are new to me. But this Tierney column appears to be available on the Web. (Hat tip: Marginal Revolution) His balanced view on autonomy and homeowners associations seems right to me. He writes:

More than 50 million Americans are now ruled by these associations, which regulate things like the size of the house, the architectural style, the color and the landscaping. The rules have always sounded creepy to me, but after my town's fight, I'm starting to see why people buy into these communities — and why some economists suggest that traditional towns like ours be allowed to turn themselves into private homeowners associations.

The fury in our town was triggered by people's powerlessness to control what their neighborhood looks like. They couldn't shape the zoning rules, which are dictated at the county level, and they couldn't stop newcomers from cutting down trees or building homes that looked out of place.
We have a homeowners association where I live. It has rules like "don't park your cars in the driveway or on the street, but only in your garage." No one follows it (except us, of course, not out of respect for the rules but to protect our cars).

Employee Health Insurance
By Mike Rappaport

Its open enrollment season for health care plans. But does employee health insurance make sense? Health insurance expert Mark Pauley and Bradley Herring argue that it is not the optimal system. We would be better off with individual health insurance, especially if government induced distortions were eliminated from the system. I have long shared this view. (Hat tip: Econlog).

They're back!
By Tom Smith

One of my favorite animals, the grizzly bear, in now about to be put on the unendangered list in Idaho.

Some folks want to hunt them, which I think would be fine, as long as you use one of these.

Alitio's "smoking gun"
By Tom Smith

We will hear a lot more like this.

November 15, 2005
Pomona potties
By Tom Smith

There is something here I'm not getting. To begin with, I am not sure I grasp the whole "normatively gendered" concept. Is that when "society" wants you to be a boy, but really you are a girl? Or is it that "society" wants to be either a boy or a girl, but you believe you are really neither? And whichever it is, why does that entitle you to your own toilet?

Judicial ethics and pre-commitment
By Tom Smith

This is interesting. Is it ethical for judge's to signal how they would rule on forthcoming cases? If not, why do people keep asking them to do so?

Does Enrollment Diversity Improve University Education? The Data Suggest Not.
By Gail Heriot

Opinion polls are not always useful. Too many people answer the questions the way they think they are expected to. Doing so is a lot less likely to get them in trouble than answering truthfully or thoughtfully. It's the easy way out.

No one should be surprised, therefore, that when students are directly asked if they believe "diversity" has improved the quality of their education, they frequently answer "yes" even when they actually think "no" or have no particular basis for answering either "yes" or "no." Their teachers have been singing diversity hosannas to them since kindergarten. If the students are remotely well-socialized, they know exactly what answer is desired from them. And they dutifully give it.

The best way to get the truth may therefore be indirection. And that is exactly the strategy employed by my friend Stan Rothman (and his co-authors Seymour Martin Lipset and Neil Nevitte) in their 2002 study entitled, "Does Enrollment Diversity Improve University Education?". Their results, which Stan discussed at the Federalist Society's Lawyers' Conference on Saturday, contradicted the simple opinion polls.

Rather than ask students what they think of diversity, the authors asked students how satisfied they were with their overall university experience on a seven-point scale with 1 meaning "very dissatisfied" and 7 meaning "very satisfied." Students, faculty, and administrators were also asked (1) to rate their institution’s job of educating students as excellent, good, fair or poor; (2) to estimate the proportion of students at their institution who are academically ready prepared to be there-- almost all, most, only some, or almost none; and (3) to rate student work effort on a seven-point scale from "very lazy" to "very hardworking."

Contrary to what the "diversity" model would predict, students tend to be less satisfied with the their overall university experience the more racially diverse the student body. Students, faculty and adminstrators similarly were less impressed with the more "diverse" universities and their students. All this was done controlling for a host of factors concerning the kind and quality of the institution at issue as well as socio-economic and academic factors about the respondents.

Is the Rothman study the final word on the educational value of diversity? Of course not. The study doesn't show (or even purport to show) that diversity in the abstract is valueless. Perhaps it is only valueless when it is achieved through preferential treatment of minority applicants. Moreover, it's difficult to know for sure whether all relevant factors have been controlled for or what's causing what. But the study is a tremendous advance over the simple-minded opinion polls that were presented as "evidence" of diversity's value in the Grutter and Gratz cases two years ago. So far, the serious empirical evidence contradicts the diversity model.

A3G saga continues
By Tom Smith


I have no idea what will happen to Mr. Lat. I hope everything turns out well for him. But, I do think the DOJ is one of the most humorless institutions that has ever evolved. I think it is highly probable they will not see the humor in one of their AUSA's anonymously running a campy gay (?) blog on judges as objects of fascination. As for judges, well, with apologies to any friends and relatives of the judicial ilk who might be reading this, they might as well call it The Least Humorous Branch.

Science news
By Tom Smith

Meditation is good for your brain.

But the drug Ecstasy does something really nasty to it.

Meanwhile, bird flu gets scarier.

For an even bigger worry, consider that the entire universe may be swallowed by a wormhole.

Dying beetles make the best of it.

Anti-cholesterol drugs make some people less stupid.

Wrong answer
By Tom Smith

I think this may have been a bit of a misstep by Alito. If he was just "seeking a job," what is he doing now? An unfriendly observer could infer he tailors what he says to try to get the job he is seeking. Which of course no one should ever do, and hardly any of us has ever done. Better would have been to say, he was conservative then, but imply without saying that now that he is older, he is more moderate, and secondly, what he did say, that is that his personal political views are in any event beside the point, since as a judge his job is to apply the law, not his personal views.

On a different, but related point, it is interesting that Feinstein does not seem to be taking the line that Alito is out of the mainstream, which is what we are hearing from some at Yale Law School, for instance. Ackerman says Alito is a "radical," Gordon says he is "too . . . conservative." But that does not seem to be the line coming out of Senate Democrats, at least not so much. It is as if they realize the attempt to portray plain old conservatives as exotic, bizarre, out of step kooks just won't work the way it did back when Borking was just being invented. 1987 was a long time ago. People know what judical conservatism is, in fact, even the left now pays lip service to judges' "applying the law, not making it on the bench." In fact, the attack on Alito seems largely to come from the angle that he would try to unsettle the law by overturning Roe, as if to say, he is not really a conservative. Yet, that does not seem a very promising line of attack, given that Alito's record does seem to bespeak a lot of little "c" conservatism, and his personality seems modest and unassuming, like he is one of Nature's conservatives. It's hard to credit Bush with a brilliant nomination after Miers, but it may turn out to be one. Of course, we shall have to wait and see.

Justice GinsbUrg not GinsbErg
By Tom Smith

It is with a "u" -- see. Yes, I spelled it wrong below. But I spelled it right before I spelled it wrong. But then to make sure, I googled it with an "e" and got this. And jumped to the conclusion it must be "e", since I have a genius for spelling things incorrectly. Which I proved once again. I can do this with stocks, too.

But I'm not the only one. Even the Washington Post quotes it as "Ginsberg" without a [sic], although they do manage to spell it correctly outside the quotation marks.

Yet another reason to support Alito. Easy to spell. Much easier than Rehnquist, with that tricky "h". In the future, nannites will take care of all this for us.

By Tom Smith

I love this catalog. It comes from the land where money is so plentiful and so new. Want a monogrammed indoor waterfall? This is the place for you. Or a little sofa for your dog? And why not? He's such a good boy, aren't you Sebastian, schmoochy schmoochy schmoo. Or one of those chair bed cushiony things that will actually massage you while you read. With a chair like this, who need to read?

And then, every catalog has its own featured home! This month, Tuscany meets Las Vegas in Huntington Beach. What can you say? What is there left to say? This is not house pride. This is house euphoria. House nirvana. House apotheosis. That the owner (scroll down) bears a passing resemblance to the Prince of Darkness is merely coincidental. If Mrs. Owner were any happier, she'd explode. Who cares if they're real?

Now we know what to aspire to. I yearn for my own vacuum powered, 8 foot, extendable spider disposal wand. My pool pillow. My giant, inflatable, outdoor theatre system. My burlwood jewelry armoire.

In the distance, faintly, you can hear the cars rushing on the freeway.