The Right Coast

May 31, 2005
Now both their music and their politics suck (explicit lyrics)
By Tom Smith

You put up with the nasty, ranty left wing politics for the music, but what happens when the drug-addled, self-indulgent thrashers let you down? You certainly have no reason not to say so. The new Audioslave album sounds like somebody said, you may be enraged against the machine, but it takes some serious bucks to live this lifestyle, so it's time for another album, boys! Sounds like Audioslave ground this thing out under an injunction. Yes, I know, you can't personally enforce, etc. etc., and this album is an argument for why. This is what art sounds like when it's forced. Or maybe it's just what your brain looks like on drugs. And yes, I'm just assuming they're drug addled slackers, as most rockers are. It is so sad.

Speaking of down, don't listen to these guys. I have a 13 year old son, so I listen to them all the time, and I can tell you, don't do it. The worst thing is, something about their lyrics and weird, little Armenian tunes gets into your head, and will not go away. What do you want to bet these revolutionaries grew up in splendor in Los Angeles before they became professional detractors of the American way of life? What a country. Where else can you make millions singing little ditties about the fascist oppression you labor under, to the undulations of scantily clad 16 year old groupies? Their video for whichever tune it is ("why don't Presidents fight the wars/ why do we always send the poor . . . where the fuck are you?") is particularly nauseating, as well. The reason we send the poor, by the way, is because most millionaire rock stars are too busy spending their money and their brain cells to fight for their country. Why fight for your country when you can make millions running it down? You put up with Audioslave because they (used to) rock. System of a Down is just a bunch of spoiled LA weenies. Maybe Homeland Security could deport them: they could write a song: "where the fuck are we? Where the fuck are we?" In some country that won't put up with you, that's where, you losers.

What's the French word for blog?
By Mike Rappaport

I suppose some of this is a joke, but how much?

Oh, No! Has the Wall Street Journal Become Impervious to Reason?
By Gail Heriot

Loyal readers may recall a three-part series I wrote a few months ago entitled "Don’t Blame Pete Wilson for Making California a Blue State." (If not, you can read it here, here and here.) In it, I tried to respond to the Wall Street Journal editorialist Brendan Miniter's accusation that former California Governor Pete Wilson had somehow transformed California from a toss-up state into a Democratic stronghold on account of his allegedly anti-immigration agenda.

Evidently what I said failed to get through, since in today’s Political Diary (no link available; it's a subscription service) Mr. Miniter repeats the slur that an anti-immigration agenda "cost Republicans control of California in the 1990s." I did e-mail him earlier. But evidently my message either went unread or was unpersuasive. (A third possibility is that aliens bent on destroying the WSJ’s credibility have entered Mr. Miniter’s body and are purposely causing him to make inappropriate accusations, but I am willing to leave this possibility aside for the moment at least...)

Let me try again.....

1. Pete Wilson’s so-called anti-immigration agenda consists of his strong support of Proposition 187–a 1994 initiative that prohibited the State of California from granting certain state benefits, including welfare benefits, to illegal immigrants. It's worth noting that 187 applied to illegal immigrants only and not to legal immigrants. For the record, I opposed Proposition 187. But I was very much in the minority. Proposition 187 passed overwhelmingly with 59% of the vote in 1994. Any argument that Proposition 187 supporters have been politically damaged as a result of their support for that extraordinarily popular measure should bear an enormous burden of proof.

2. It’s not just that supporters of the "Proposition 187 backlash" theory can’t overcome that burden of proof. They have no evidence of a backlash against Republicans at all. Latinos, for example, the group most likely to resent Proposition 187, do not appear to have changed their voting patterns as a result the 1994 initiative. Indeed Proposition 187 itself got a larger share of the Latino vote (23%) than George H.W. Bush had gotten back in 1992 (14%)(with 71% for Clinton and 15% for Perot and others). In 1996, Latinos gave Dole 22% (and 70% for Clinton, 7% for Perot). In 2000, 23% of California Latinos voted for George W. Bush and 75% voted for Gore. There does appear to have been some improvement in the 2004 election when it is estimated that 31% of the California Latino vote went to Bush and 68% to Kerry.

3. The real explanation for California’s switch from a toss-up state to a reliably Democratic state is far simpler. It’s not California’s immigration policy, it’s immigration itself. As I’ve said before, Pete Wilson could have met each and every immigrant at the border with a bottle of champagne and a brass band and the result would still be the same. Recent immigrants from Latin America and Asia tend to vote Democratic. And there are a lot more of them in California now than there used to be. Hispanics have gone from being 25.83% of the California population in 1990 to 32.38% in 2000. Asians have gone from 9.56% in 1990 to 10.92% in 2000. Non-Hispanics Whites, on the other hand, have decreased in absolute numbers due to out-migration and low birth rates and thus moved from being 57% of the California population in 1990 to only 46.7% in 2000. Again, there is no evidence that these individuals when they become voters are any more Democratic-leaning than they've ever been; the difference is only that there are more such voters than there used to be in the California electorate. And that difference is huge; it dwarfs any possible effect that Proposition 187 could be imagined to have.

4. The Left is full of folks who hate to let facts get in the way of their political fantasy world But I’d like to keep the feet of my fellow conservatives as close to the ground as possible. It’s fine to be pro-immigration. I’m moderately pro-immigration myself. But it’s important to at least recognize that it has its costs. Among those costs for Republicans is the fact that recent immigrants tend to vote for Democrats. At some point, that will cause a state (like California) to go from being politically contested to reliably Democratic at least in the Presidential election. ((In statewide elections, Schwarzenegger proved that a Republican can still win under certain circumstances, but Schwarzenegger is a special case for a lot of reasons, so it's not clear yet what those circumstances are.))

Does any of this mean that the immigrant vote should be conceded by the GOP? Of course not. It should (and must) fight for every vote it can get. But it’s important to be realistic and recognize that only so much progress can be made in the short run. It is only in the long run that one can move a lot of votes from one party to another.

5. Recent evidence on Asians voting patterns further confirms that immigrants from Asia tend to vote Democratic. A recent exit poll of 11,000 Asian voters (82% of them immigrants) in eight states east of the Mississippi showed that they went for Kerry over Bush 74% to 24%. This is obviously not the result of Proposition 187, since the polls didn’t even include California. ((The poll–conducted for the liberal Asian American Legal Defense and Education Fund–may nevertheless have overstated the Asian preference for Kerry. An L.A. Times national exit polls found Bush carrying 34% of the Asian vote. Either way Bush was trounced.))

6. I’ve been trying to figure out what might inspire Mr. Miniter to believe in the Proposition 187 backlash myth and I wonder if maybe somebody once showed him statistics on state by state Latino voting patterns. If so, they would probably show California Latinos leaning more Democratic than Latinos in many other states. From this, he might conclude that Proposition 187 was to blame. But again, demographics are the real explanation. Other states have more Cubans in their Latino electorate than California does. Cubans are more likely to vote for the party that they regard as the more anti-communist. That ordinarily is the GOP. Similarly, among Asian voters, Vietnamese voters, especially those with memories of the fall of Saigon, tend to vote in higher proportions for the GOP than other Asian voters. How a state's Asian electorate will vote will thus depend in part on the proportion of Vietnamese voters in the group.

Deep Throat is Revealed
By Mike Rappaport

It turns out to have been the No. 2 man at the FBI, Mark Felt. Felt comes across as pretty interesting in the articles about him.

Felt himself was mentioned several times over the years as a candidate for Deep Throat, but he regularly denied that he was the source. "I would have done better," Felt told The Hartford Courant in 1999. "I would have been more effective. Deep Throat didn't exactly bring the White House crashing down, did he?"

Felt had expressed reservations in the past about revealing his identity, and about whether his actions were appropriate for an FBI man, his grandson said. According to the article, Felt once told his son, Mark Jr., that he did not believe being Deep Throat "was anything to be proud of. ... You (should) not leak information to anyone."
The New York Times saves for the last paragraph of the story this interesting tidbit: "Felt was convicted in the 1970s for authorizing illegal break-ins at homes of people associated with the radical Weather Underground. He was pardoned by President Reagan in 1981."

It would be interesting to know more about him. I suppose we will find out quite a bit in the next few days.

May 29, 2005
Tribe's Decision
By Mike Rappaport

Larry Tribe has decided not to finish the third edition of his constitutional law treatise. Some view this as big news:

"It's like Michael Jordan leaving basketball at the top of his game," says Ross Davies of George Mason University School of Law. "This is like George Lucas announcing that he would not finish Episode III," adds Florida International University law professor Thomas Baker.
Yeah, right. I suppose I would think it a bigger deal if I ever read it any more. As a law student, I read the first treatise, but I found that it reflected Tribe's views, not the law or what I considered interesting. I have barely even glanced at it since then.

Update: Jack Balkin discusses some of the reasons for Tribe's decision:

For many years, Tribe has been a key exponent and defender of a liberal synthesis of the constitutional law created by the Warren and Burger Courts. Because Tribe has seen his job as synthesizing and reconstructing the larger themes of constitutional law as it actually exists, several of his positions have changed over the years as the Supreme Court (and existing doctrine) have become more conservative. Yet at the same time, the Rehnquist Court has pushed the liberal civil rights agenda in ways that the Warren and Burger Courts never did, for example, in the area of gay rights. Hence, until this moment, Tribe has worked on the assumption that the Supreme Court, even if it has not decided every issue in the ways he would prefer, has been working within the basic paradigms of reasoning established by the Warren and Burger Courts. Apparently, Tribe now believes that this may no longer be the case, and that a Supreme Court stocked with new Bush appointees will shift constitutional doctrine in important new directions. Perhaps equally important, Tribe appears to believe that the new Court will shift doctrine in directions that will make his synthesis of existing doctrine outmoded or irrelevant.

David Brooks Updates Karl Marx, Part 2
By Gail Heriot

My fellow Right Coaster points out David Brooks' NYT column for today. (For a link, go to Mike's post below, since when I blog from my antiquated home computer, as I am doing now, I cannot furnish links.) In it, Brooks' Karl Marx alter ago asserts that according to a study by the Educational Testing Service, only 3% of the students at elite colleges and universities are from households in the lowest-income quartile--a figure that he and others find troubling.

But if the ETS study is like the studies that have gone before it on this topic, then the 3% figure is exaggerated (although I've no doubt that a more accurate measure would still show significant disproportionality). Households that are in a plausible position to send a child to college are not by any means a cross-section of American households. For one thing, they all have a child around age 18. The parents, whether they are both present or not, have at least one thing in common: They are not spring chickens. Even the unwed mother who gives birth at age 15 will be 33 by the time her child is old enough for college. The older parents are, the more likely they have their act together, and the more money they are likely to make. As a result, households with children around age 18 are disproportionately from the higher income quartiles. I may be mistaken, but I believe that the effect I'm describing is rather large.

David Brooks updates Karl Marx
By Mike Rappaport

in this new column. Pretty powerful.

May 28, 2005
USD School of Law Graduation Today
By Gail Heriot

Congratulations to the Class of '05. (And my apologies to anyone whose name I mispronounced or otherwise inflicted harm upon during the Roll Call of Graduates at the ceremony this morning.) Special congratulations to valedictorian Sebastian Lucier, salutatorian Tonya Cross, and Ben Ammerman, winner of the Owen Stark Heriot Prize (named in honor of my late father and given each year to the outstanding student who is a present or former member of the armed forces).

Another victim of the vast RW conspiracy
By Tom Smith

Poor fellow.

Votez Non
By Maimon Schwarzschild

In Europe -- where I´ll be in the next few days for an urgent academic conference -- the European Union Constitution may go down in flames in the French referendum tomorrow. A London Times report suggests the French Establishment is losing hope and now expects a ¨No¨ vote. ¨It´s all over save the teeth-gnashing.¨ I´m not so sure. But the Noes do seem to have the edge.

The weekend Financial Times makes a plausible argument that a ¨No¨ vote in France will greatly weaken European supporters of freer markets, and strengthen the most reactionary socialist-minded throughout Europe.

On the other hand, a ¨Yes¨ vote might surely be an important step towards a French-flavoured anti-American Europe.

So perhaps any outcome will be bad. That appeals to my sense of life. (Only at bad moments; only at bad moments...)

Until a very few years ago, I would have been rooting for a stronger common-market Europe. But the last few years of often-frenzied European anti-Americanism, too often with anti-semitic overtones, has made me think again.

Votez ¨Non¨, les français!

May 27, 2005
The Wild Kingdom of Public Policy
By Gail Heriot

One of my favorite Monty Python skits was entitled "Life or Death Struggles"--a spoof of pompous nature shows. As the screen depicts men dressed up as horses fighting with each other, a German-accented voice intones:

"In the hard and unrelenting world of nature the ceaseless struggle for survival continues. This time one of the pantomime horses concedes defeat and so lives to fight another day"

After a few more shots of animals (or people pretending to be animals) involved in "life or death struggles." the narrator goes back to the pantomime horses:

"Here we see a pantomime horse. It is engaged in a life or death struggle for a job with a merchant bank. However, his rival employee, the huge bull pantomime horse, is lying in wait for him. [Smaller pantomime horse is killed.] Poor pantomime horse."

It didn't occur to me until much later in life that the guys at Monty Python were really onto something. Human beings will fight like animals to preserve their jobs. It's seldom a pretty sight. And it's surprising how many major public policy issues are driven by such considerations. A few years ago when I worked on the Proposition 209 campaign, I noticed the folks who argued in public against Proposition 209 were overwhelmingly employed as affirmative action officers and felt their jobs to be in jeopardy. And many of them were as scrupulously devoted to truth and accuracy in debate as ... well ... a pit bull ... or a pantomime horse.

This leads me to what I will call "Heriot’s Iron Law of Public Policy: No matter how silly, wasteful, wrongheaded and/or harmful a particular program might be, it will take an extraordinary exercise of political will to eliminate it once someone’s job or other substantial financial benefit depends on its continued existence." Please remember that, Gentle Reader, whenever you are in a position to make policy. Unless you are really sure that a policy is a good one, make sure no one is hired specially to execute it or it will be close to impossible to terminate the program.

There is, of course, a corollary to this rule that has been thoroughly grasped by the Left: If you want to entrench a policy that your opponents object to, the best way to do it is to make sure someone is specially hired to execute the policy. Even if the person you hire is not initially a true believer, he will be by the time his first paycheck arrives. And he will fight tooth and nail to preserve the program you love if it is ever threatened.

I thought of this today when I took a look at the proposed new "Five-Year Plan" for diversity at the University of Oregon. Among other things, it calls for aggressive hiring of up to 40 new faculty members in areas like "critical race studies, critical gender studies, queer studies; disabilities studies" who will be teaching in a variety "Cultural Competency" programs for faculty, students and staff. Yup, 40 new faculty members, that ought to just about do the trick....

Hillary in 2008?
By Tom Smith

New poll.

Politics and philanthropy
By Tom Smith

Interesting history of both liberal and conservative philanthropy. I did not know a lot of this stuff. It's really too bad McGeorge Bundy didn't decide to be a botanist or something.

May 26, 2005
How economic policy gets made
By Tom Smith

This is a nice interview of somebody who knows what he is talking about, unlike Paul Krugman, who has chosen to be ignorant.

Maybe those Catholics have a point . . .
By Tom Smith

Gentlemen, this concerns you too.

Soccor and Baseball
By Mike Rappaport

Interesting facts from Tyler Cowan.

Why they serve
By Tom Smith

This is a beautiful piece in USA Today by my former student and friend Kathryn Roth-Douquet. Kathy (as I called her) has a fascinating story. She was an assistant deputy in DOD, a quite responsible post, in the Clinton administration, when she met the handsome aviator who flew Marine One, the President's helicopter. Now Kathy is the CO's wife, has two lovely kids, and her husband, Greg, has just left for his second tour to Iraq, in command of (my military terminology fails me here) a large group of Marine choppers. Dangerous, important work. Kathy explains why Marine families do it.

I have learned a lot from Kathy. Whenever I am tempted to think that conservatives or Republicans have a monopoly on patriotism, I think of Kathy and Greg. I never have or will make a sacrifice like they have made for this country. The Marines may be mostly a pretty right wing lot, but there are still plenty of Marines, soldiers and airmen who vote on the Democratic side of the ballot. Another thing is something about patriotism, as transfigured through an organization like the Marines. Having had quite a few Marines (there really doesn't seem to be such a thing as a 'former Marine') as students over the years, I have seen the way they really are a band of brothers (and sisters) and a band of families. It helps give you a clue about what makes a nation a nation, what allows it to survive, and what makes it worth fighting for. It is something like love. Yet it is almost as if to be an academic, you have to prove that you are completely unaware or indifferent to this.

So add Kathy and Greg and their family to your list of people to pray for this Memorial Day. Family, in this context, covers a lot of ground.

HERE is the official website of Greg's unit. The official history makes interesting reading.

I AM advised by a former Marine USD Law grad that former Marines may refer to themselves as 'former Marines' but never 'ex-Marine.'

History Professors on George W. Bush
By Mike Rappaport

A history professor/blogger reports on the views of his colleagues concerning our current president. They don't like him. What a surprise. More than 80 percent regard his presidency as a failure.

One would think that historians would understand that a judgment of this kind requires us to wait many years. After all, certainly it is possible that George Bush has helped to launch a movement towards democracy throughout the world that would render his presidency a success. Apparently, these "experts" don't need the knowledge that time would provide.

One pro-Bush historian nailed it: “I suspect that this poll will tell us nothing about President Bush’s performance vis-à-vis his peer group, but may confirm what we already know about the current crop of history professors.” Even the blogger acknowledges that "The liberal-left proclivities of much of the academic world are well documented, and some observers will dismiss the findings as the mere rantings of a disaffected professoriate. 'If historians were the only voters,' another pro-Bush historian noted, 'Mr. Gore would have carried 50 states.'"

To give you a flavor of the attitude toward Bush, here are the views of the blogger:

My assessment is that George W. Bush’s record on running up debt to burden our children is the worst since Ronald Reagan; his record on government surveillance of citizens is the worst since Richard Nixon; his record on foreign-military policy has gotten us into the worst foreign mess we’ve been in since Lyndon Johnson sank us into Vietnam; his economic record is the worst since Herbert Hoover; his record of tax favoritism for the rich is the worst since Calvin Coolidge; his record of trampling on civil liberties is the worst since Woodrow Wilson. How far back in our history would we need to go to find a presidency as disastrous for this country as that of George W. Bush has been thus far? My own vote went to the administration of James Buchanan, who warmed the president’s chair while the union disintegrated in 1860-61.
These could be talking points for Barbara Boxer. Yet, this historian tries to put it forward as the results of expertise. Sad. Very sad. No worse -- pathetic.

Update: This post is discussed over at the Madison Principles Blog, see here and here.

May 25, 2005
Embryonic Stem Cells and Therapeutic Cloning
By Mike Rappaport

With these issues making it to the front page, I decided that I needed to learn more about them. A good place to start is this article.

Eugene Volokh has some thoughts about the subject here.

I hope to have more to say in the future.

Update: Here are views of one of the Powerline bloggers.

Bainbridge on the Filibuster
By Mike Rappaport

Stephen Bainbridge has responded to my comments and those of other bloggers. See here. While many people have taken issue with his claims, let me just add my two cents. He basically has two arguments. First, in response to my questioning why he thinks "President Hillary Clinton, with a Democrat Senate, won't use the nuclear option when Republicans filibuster," Bainbridge writes that the Republicans should trust the Democrats more. Sorry. This issue is too important for the Democrats to trust that they will show restraint, especially given their largely unprecedented decision to use the filibuster. Moreover, only 7 Democrats signed on to the agreement and the agreement seems to apply only to the current Congress. So they can eliminate the filibuster in the future without violating the agreement.

Second, Bainbridge argues that he favors the filibuster as a matter of principle, not as a means of benefitting conservative nominees. I am in favor of following principle also, but it does not necessarily make sense to follow principle when the other side doesn't. When the Confederacy started hanging black soldiers during the Civil War, instead of treating them as prisoners of war, Abraham Lincoln abandoned the principle of treating a few Southern soldiers as POWs, hanging them in response. The Confederacy changed its tune quickly. Principle is fine, but reciprocity is fairer and can often help to sustain principle. If the Democrats are going to use the filibuster in an excessive way, then the Republicans should use the nuclear option -- or at least threaten it to get an acceptable deal, such as one that applies in 2009 when neither party knows who will be the President. A deal that applies only when the Republicans have the Presidency and the Senate, and says nothing about the future, is, well, a bad deal.

May 24, 2005
Harry Potter
By Mike Rappaport

Apparently, J. K. Rowling has said that one of the major characters will be killed in the next book. Chris Lynch has reported the betting odds, which I copy here:

Professor Dumbledore - 1/5
Neville Longbottom - 4/1
Hagrid - 4/1
Cho Chang - 11/2
Ron Weasley - 6/1
Fred and/or George - 6/1
Molly Weasley - 6/1
Arthur Weasley - 6/1
Severus Snape - 7/1
Professor McGonagall - 7/1
Ginny Weasley - 8/1
Hermione Granger - 10/1
Dobby - 10/1
Oliver Wood - 14/1
Harry Potter - 16/1
Draco - 22/1

Dumbledore at 1-5. Hmm. My son, a Harry Potter expert, has been predicting that Dumbledore would die in this book for a while. I am not so sure -- still he either needs to die (but perhaps in the seventh book) or be incapacitated for Harry to show his greatness. (Perhaps Harry will rescue Dumbledore.)

The Filibuster Deal: Was it a Bad Deal?
By Mike Rappaport

The key issue is: for whom? Was it a bad deal for conservative Republicans? Of course, and they never would have agreed to it. Was it a bad deal for Republicans in general? Yes, as well, but again the Republicans party leaders did not agree to it. Was it a good deal for liberal Republicans, like John McCain? Perhaps, in the sense that he doesn't really want conservatives to be confirmed, but it will cost him if he runs for President.

Was it a bad deal in general? In other words, did it lead to a bad result? Well, that turns in part on how the deal is supposed to work. Filibusters are supposed to occur only under extraordinary circumstances, but what are they? One might interpret that to mean very few filibusters. For example, one might argue the deal precludes filibustering of any judges who are no more conservative than Pryor, Brown and Owen -- after all, the deal seems to suggest that filibustering these three judges would be illegimate. On the other hand, information about the deal suggests that other nominees, like Saad, will be stopped (if not through a filibuster, how?), which suggests that filibusters will occur with some frequency.

I would probably have supported a deal allowing for a supermajority rule for confirmations of Supreme Court justices beginning in 2009, with the election of a new President and Senate -- although even that would probably work against Republicans, since they are likely to hold the Senate. See here. But this deal is much worse than that, since it applies not in 2009, but today, when Republicans control both the Presidency and the Senate. Unless the Democrats do not filibuster again, which is quite unlikely, this looks like a bad deal to me, perhaps a very bad deal.

One final word: Stephen Bainbridge argues that saving the filibuster was a good thing. Perhaps. But what makes him think that President Hillary Clinton, with a Democrat Senate, won't use the nuclear option when Republicans filibuster?

May 23, 2005
Peace in our time
By Tom Smith

Once again, the stupid party lives up to its name. In fairness, the Republicans have only the barest majority, and several of them are not really Republicans. A "deal" was probably inevitable. But here's the point the commentators seem to be missing. Who's to say if the deal will really stick? Toobin on CNN and other commentators are speaking as if, when W puts up a conservative for the Court, and 40 Democrats say that's "extraordinary," the Republicans will just sit back and take it, because that was the deal. But political deals fall apart all the time. It's just a matter of how much pressure the Republicans are under, and they will be under a lot. This deal just puts off a battle, and like most such delaying tactics, it will make the battle more ferocious when it actually comes. It might be different if the moderates believed in something more than moderation for the sake of moderation. But they don't. They are just the people who believe (in some cases, like Chafee's, accurately) that moderation is more politic, given their own circumstances. If Bush nominates a conservative for the Supreme Court, and he probably will, my prediction is this deal is going to blow up big time.

The Filibuster Deal: How it Happened
By Mike Rappaport

For the moment, I will postpone commenting on whether this deal is a bad one for the Republicans to focus on the separate issue as to how it could have happened. Why do these centrist Senators have all of this power?

The short answer is that they usually don't. The median voter theorem says that in legislatures, the centrist voters should have the power. But under the party system, there are strong forces causing the median voters to stick with their party. This occurs especially on issues where party cohesion is deemed important, which includes the appointment of appellate judges. As a result, something like the median voter of each party controls the party, and median voter of the majority party then controls the legislature.

But this system can always unravel, if the median voters decide to bolt, which is what they did in this case. The centrist voters of both parties joined, and pursued their own preferences.

Recognize anyone?
By Tom Smith

Honesty is still the funniest. Go Lileks.

Fat Hype
By Tom Smith

Our friend and frequent recruiting target Paul Campos at Colorado-Boulder gets a lot of play in this must-read (for people who follow this sort of thing) article on the obesity controversy. Paul's book The Obesity Myth, seems to be getting a lot of attention. Some sages criticized Paul for writing a book that is not really about Law, as in The Law. People who know Paul know he is not overly preoccupied with what other people think. He even has certain tendencies toward fearlessness, an extremely rare trait in academics, which makes you wonder what tenure is for . . . In any event, the book seems to be just the sort of thing a Public Intellectual should write. If medical mavens are spouting bad science in order to maximize grant money, somebody has to call them on it, and other scientists may be reluctant to do so. Good work, Professor. Now, for another helping of mashed potatoes.

Return of the Sith
By Mike Rappaport

Like most everyone, I caught the final Star Wars episode over the weekend. And my verdict was a strong thumbs up. The movie did pretty much what I thought it needed to do: finish the story from the first two episodes, show how Aniken turns to Vader, and explain in a believable way how the characters got from the end of episode 2 to where they were at the beginning of episode 4.

In preparation, I watched episode 4 (that is, the first Star Wars from 1977, A New Hope), which helped. Most of Sith was consistent with A New Hope.

And of course Sith had some great scenes, including two of the fights that everyone has wanted to see since the first two movies came out. If not for the weak acting of Hayden Christensen, the movie really would be quite excellent.

But I can't help ending with something of nit: When they are trying to hide Luke from the Emperor and Darth Vader, why do they give him the same last name that his father had -- Skywalker -- especially since they do not appear to place him in a family which had that last name?

Leiter on the Filibuster
By Mike Rappaport

You have to give Brian Leiter credit. While many commentators on the filibustering of judicial nominees make exaggerated claims, he takes the cake. Just sign me, "Evil"

The Law Deans and Judicial Independence
By Gary Lawson

On May 10, 2005, a gaggle of law deans sent a letter to Congress complaining about criticism of the judiciary. In particular, the deans were hot and bothered by intimations that judges might suffer consequences, and perhaps even impeachment proceedings, as a result of their decisions. The letter’s conclusion regarding the constitutional power of Congress to discipline rogue federal judges was that “[r]ecent threats of retaliation against federal judges by members of Congress and others harm the rule of law and the important constitutional principle of separation of powers . . . . [I]t is irresponsible and harmful to our constitutional system and to the value of a judiciary that is independent, in fact and appearance, when prominent individuals and members of Congress state or imply that judges may be impeached or otherwise punished because of their rulings.” The letter’s argument in support of this conclusion about the constitutional power of Congress to discipline rogue federal judges was that “[r]ecent threats of retaliation against federal judges by members of Congress and others harm the rule of law and the important constitutional principle of separation of powers . . . . [I]t is irresponsible and harmful to our constitutional system and to the value of a judiciary that is independent, in fact and appearance, when prominent individuals and members of Congress state or imply that judges may be impeached or otherwise punished because of their rulings.” No, wait -- that was the conclusion. No, wait -- that was the argument. No, wait -- that was the conclusion . . . .

Surely I must have left something out. Surely such a distinguished group of academic minds could not have neglected to include anything remotely resembling an argument for an important proposition of constitutional law in a well-publicized letter to Congress. Let’s look at the full text to see what I missed:

Recent threats of retaliation against federal judges by members of Congress and others harm the rule of law and the important constitutional principle of separation of powers. We strongly oppose these threats of retaliation. Regardless of whether we agree or disagree with their opinions, we express our full support for judges who properly discharge their constitutional responsibilities by deciding the cases before them as they believe the law requires.

We recognize that Americans will often disagree, as do we, with particular judicial opinions. But the legislative and executive branches have constitutional means available to them to seek to alter the law as declared by the judiciary. An effort to use those means is part of our tradition of separation of powers and is entirely proper. But it is irresponsible and harmful to our constitutional system and the value of a judiciary that is independent, in fact and appearance, when prominent individuals and members of Congress state or imply that judges may be impeached or otherwise punished because of their rulings. We urge them to stop.
Well, that certainly tells us what the law deans oppose, express, support, recognize, and urge. But there is nothing in this statement that communicates to any modestly intelligent creature why any reasonable person would oppose, express, support, recognize, and urge such things. This is not a minor omission. The Constitution permits impeachment and removal of “all civil Officers of the United States” for “Treason, Bribery, or other high Crimes and Misdemeanors,” and specifies that federal judges “shall hold their Offices during good Behaviour.” Do these provisions permit Congress to impeach and remove judges for issuing ludicrously bad decisions? One might expect a letter addressed to that subject to devote an odd sentence or two to the constitutional provisions involved; after all, if those provisions do indeed give Congress power to impeach and remove judges for mangling the law beyond recognition, then it is hard to see how mentioning such a power could “harm the rule of law and the important constitutional principle of separation of powers.”

Is it self-evident that judges cannot be impeached for rendering absurdly stupid decisions? Suppose that a judge decides cases based on the names of the parties by always ruling in favor the party with the largest number of letters in his or her last name (with appropriately imbecilic tiebreakers to handle the occasional Lawson v. Leiter dispute). Or suppose that a judge decides cases based on race. If it is not beyond the realm of conceivability that these could be impeachable offense, it is not a huge leap to conclude the same about a judge who decides cases based on the political platform of the liberal wing of the Democratic Party (or the conservative wing of the Republican Party) rather than on the law as it objectively exists.

My point here is not that it is permissible to impeach and remove federal judges for issuing ludicrously stupid decisions. (I do believe that it is permissible, but that is not my point here.) My point, rather, is that the law deans’ letter fails to make anything recognizable as an argument for its rather boldly proclaimed assertions of constitutional law. If this is what our deans regard as legal reasoning, it is no wonder that we have a generation of legal minds who think it obvious that the Constitution guarantees the right to suck out a baby’s brains.

Note: Our friend Gary Lawson is a law professor at Boston University.

May 22, 2005
ETS President Hurls Ill-Considered Insults
By Gail Heriot

American corporate leaders have never been known for their political courage. They generally try to keep their heads down when any sort of threat is in the air. Way down if possible. Unfortunately for conservatives, the result is usually corporate statements and activities with a distinctly politically correct flavor. Corporate leaders correctly recognize that it is far easier to get hurt by angering those on the left side of the political spectrum than it is by angering those on the right. Consequently, they make very sure that they give no cause for offense in the leftward direction even if it means occasionally rubbing everyone else the wrong way.

But the Educational Testing Service goes too far. Sure, ETS considers itself vulnerable to left-leaning political attacks on account of its products--the SAT, the LSAT, the MCAT, etc. On average (subject, of course, to significant individual variation), Blacks and Hispanics don't do as well on these tests as Asians and Whites. Here are the SAT I group averages from 1999 (the year for which I happen to have the statistics handy):

Asians: 499 Verbal/565 Math
African Americans: 431 Verbal/425 Math
Mexican Americans: 453 Verbal/460 Math
Whites: 528 Verbal/530 Math

These figures are disappointing to almost evryone. As a result, ETS has had to defend itself from attacks from the left. For example, the Clinton Administration's Secretary of Education for the Office of Civil Rights Norma Cantu went so far as to issue guidelines for the use of standardized tests, which, if implemented, would have wiped ETS off the face of the Earth--thus shooting the messenge rather than solving the problem.

But none of that excuses the full-page advertisement that ETS has taken out in the Weekly Standard (and I assume elsewhere)entitled "Making Diversity a Reality." Of course, it's a paean to diversity. But that doesn't bother me in the slightest. Every corporation in America sings that tune. What bothers me is Landgraf's reckless accusation concerning the motives of employers who find work place diversity difficult to achieve. In the ad, he states:

"[T]he response that 'We want to have a more diverse workforce, but we just can't find enough qualified candidates' doesn't cut it. Worse than an excuse, it's frequently code for something else entirely."

Say what? Landgraf doesn't specify what the "something else" is, but it's obvious from the context that he's talking about racism. It is evidently Mr. Landgraf's opinion that American employers are "frequently" covering over sinister racist motives when they complain of their difficulties.

Such an accusation trivializes the the genuine problems faced by employers seeking to hire qualified minority (or non-minority)employees. ETS, perhaps more than any corporation in America, is aware of those difficulties. Talented employees are hard enough to find when race and ethnicity don't matter. Finding them in just the right skin color is very difficult indeed.

Was this ridiculous statement written by Landgraf himself? Or one of the many diversity "experts" that ETS has hired in recent years in a mostly unsuccessful effort to appease ETS' critics. Either way Landgraf is way off base and should apologize.

May 21, 2005
Dr Jekyll I Presume
By Maimon Schwarzschild

Extremely interesting review in the (London) Times Literary Supplement of a "Dictionary of British Classicists" -- several volumes of short biographies of classical scholars. The reviewer skewers academic biographies in general for bloodlessness: a bland avoidance of what is often most interesting about the people in question.

One of the Dictionary entries, for example, is about a German Jewish refugee at Oxford from 1935 to 1953 named Eduard Fraenkel. The bio gives almost no information about Fraenkel's personal life. There have been other short biographies of him elsewhere, but they are almost as unrevealing. A typical one describes him as working hard at his desk all day, going back to work after dinner "unless a guest claimed his attention", and then walking home to his wife Ruth. "The other aspect of Fraenkel which completes the standard picture", says the review, "is his suicide, just a few hours after the death of Ruth. 'Fraenkel chose not to survive her and died at his home', as [one bio] elegantly puts it"; another, more "extravagant", says "We revere his suicide, for love".

In fact, says the reviewer, it was well known to everyone in the tight-knit world of Oxford classicists that Fraenkel was an insistent "groper" of female students, often in private after-dinner tutorials, a "predilection" well known to Ruth.

Says the reviewer:
Any academic woman older than her mid forties is likely to have an ambivalent reaction to this. On the one hand, it is impossible not to feel sisterly outrage at what would now be deemed a straightforward case of persistent sexual harassment and the abuse of (male) power. On the other hand, it is also hard to repress a certain wistful nostalgia for that academic era before about 1980 when the erotic dimension of pedagogy – which had flourished, after all, since Plato – was firmly stamped out. Mary Warnock [a distinguished former student of Fraenkel's] herself shares that ambivalence, weighing the damage done - to Fraenkel’s wife no less than to some of his “girls” - against the inspirational teaching which came with, and was inextricable from, the “pawing”. In more than one newspaper interview she has singled Fraenkel out as the best teacher she ever had.
As for Fraenkel's suicide,
It would be foolish to imagine that love for one’s wife is necessarily incompatible with “pawing” one’s female students. But Fraenkel’s uxoriousness does look rather different in the light of the experiences of Mary Warnock (who refers directly to Ruth’s unhappiness at Fraenkel’s “predilections”). At the very least, the authorized version of Fraenkel's career and character fails to do justice to what was obviously a much more complicated and interesting reality.
This is an exceptionally intelligent and humane review. It is light years away from any sort of crude "political correctness". Far from picking on Fraenkel, the reviewer evinces sympathy toward the Jewish refugees in Oxford who had fled the Nazis, "many of whom, whatever we like to think, found acceptance here difficult".

Who is the reviewer? It is Mary Beard, the Oxford classicist. Beard was the most egregious participant in the notorious "Symposium" in the London Review of Books a few weeks after the 9/11 terrorist attacks on the United States. The Symposium offered dozens of short essays on the attacks by regular LRB contributors, almost all of them extraordinarily ugly: seething with anti-Americanism, paranoid, and obsessive in expressing hatred for the State of Israel, whose existence -- in the clear opinion of many of the contributors -- was the reason if not the justification for the attacks. But the ugliest of all was Mary Beard, whose explicit view about Americans under attack was "They had it coming". (The LRB has never posted the Symposium online. I won't speculate why...)

Does Beard's very impressive review in TLS soften my feelings toward her? It would if anything could. Nothing can, I'm afraid. She has all but formally announced, after all, that she would rejoice if I and everyone like me were murdered. But perhaps there is something here, as Mary Beard says of Eduard Fraenkel, along the lines of "a complicated and interesting reality".

May 20, 2005
Is Harvard Unconstitutional ....?
By Gail Heriot

John Eastman recently drew my attention to the Massachusetts Constitution, which contains the following provision on Harvard University:

Chapter V, Section I, Article I. Whereas our wise and pious ancestors, so early as the year [1636], laid the foundation of Harvard College, in which university many persons of great prominence have, by the blessing of God, been initiated in those arts and sciences which qualified them for the public employments, both in church and State; and whereas the encouragement of arts and sciences, and all good literature, tends to the honor of God, the advantage of the Christian religion, and the great benefit of this and the other United States of America, it is declared, that the president and fellows of Harvard College, in their corporate capacity, and their successors in that capacity, their officers and servants, shall have, hold, use, exercise, and enjoy all the powers, authorities, rights, liberties, privileges, immunities, and franchises which they now have, or are entitled to have, hold, use, exercise, and enjoy; and
the same are hereby ratifiedand confirmed unto them, the said president and fellows of Harvard College, and to their successors, and to their officers and servants, respectively, forever.

The document justifies giving Harvard special privileges and immunities (although it isn't clear exactly what those privileges and immunitie are) on the ground that the encouragement of arts and sciences "tends to the honor of God" and "the advantage of the Christian religion."

This raises an amusing question. If the Commonwealth of Massachusetts chose to ratify and confirm Harvard's status in order to confer honor on God and advantage on the Christian religion, shouldn't that make the grant (or the re-grant) of Harvard's charter "unconstitutional" under some popular interpretations of the Establishment Clause? I suppose Harvard could argue that the Massachusetts Constitution was adopted on 1780 and hence the grant was already complete by the time the First Amendment to the United States
Constitution was adopted. But I doubt anyone would argue that if the Commonwealth had granted any official status to the Unitarian Church that it would be "grandfathered" in simply because the grant had occurred before 1788. Maybe the ACLU can be persuaded to look into this.....

Coulter on Newsweek
By Mike Rappaport

Ann Coulter takes a lot of flak, not only from the MSM but also from many of those on the right. Most of it is undeserved. But whatever you say about her, she often writes with power and insight that others lack. As an example, take a look at her most recent column on the Newsweek story. This is by far the best criticism of Newsweek and MSM attitudes that I have seen.

May 19, 2005
The Federalist Society Has an Heir
By Gail Heriot

Congratulations to my friends Gene and Lori Meyer on the birth of their first child. The as-yet-unnamed son entered the world at 10:43 a.m. Tuesday. May 17, 2005, weighing 7 pounds, 3 ounces. Mother and child are doing fine at Fairfax Hospital.

May 18, 2005
Now we know why Stanford and USC win
By Tom Smith

This is weird -- on psychology of sports.

The most boring nuclear event ever
By Tom Smith

There's something weird in the zeitgeist surrounding the confrontation in the Senate over judicial nominees. I can't quite figure it out. For one thing, the MSM doesn't seem quite as hysterical as they should over it. They are somewhat hysterical yes, but it is certainly not the "Satan himself has been nominated to the Court" that we had with both Bork the Infidel and Clarence the Unbeliever. Is the story too complicated? Are the liberals holding fire? Or are they just outnumbered and exhausted? Or are they just rightly embarassed by the position that the President and the majority of the Senate should not together be able to select federal judges, if 41 democratic Senators disagree? I know extremely distinguished constitutional scholars have taken both sides in this debate, in some cases first the one side, and then the other. So it is hard to know what to think. But to me, the fillibuster seems an odd constitutional principle to take a stand on. And in the event, not a very good tactical choice either, as it seems the Senate rules probably will allow the majority to force debate to end and a vote to be taken. In any event, what puzzles me is why the end of the world talk has been relatively muted. If I had to guess I would say, they're saving themselves for the Supreme Court fight. Remember, when you say "right to choose," you're not taking about Republican Presidents.

LA Times shocks with sensible editorial
By Tom Smith

I am agog.

The Church of Chess
By Tom Smith

Eugene has a link to a nice law professor authored chess site. It is not exactly what the doctor ordered -- more on that later. My problems are more basic. The following exchange from this morning explains.

My 13 year old Luke: Dad, did you really call chess club "The Church of Chess"?
Me: Yes, Luke. I was trying to get everybody to shut up. They wouldn't talk in church, so I was telling them it was the church of chess, where they should just be quiet and play chess. I thought it was a pretty good analogy.
Luke: Well, everybody is making fun of you now for saying that.
Patrick (11): Yeah, Dad. Everybody is making fun of you.
Me: Well, it was just a joke. To try to get people to quiet down.
Patrick: They didn't know it was a joke. They thought you were weird.

They have no idea.

The problem I see with teaching chess is to get the little demons to play plausible openings (e4 or d4) and not do STUPID THINGS (a4 is an ever popular stupid first move). Another big problem is the transition between the first few moves of the opening and what you might call the later opening. It seems very hard to convince kids they really should think about things like establishing a position or even getting control of the center of the board. Too boring, I guess. Instead they go off on these bizarre lines that would make smoke come out of Deep Blue's cooling vents.

There's only one more meeting this year. Next year, I think I'm going the Supernanny route. There will be tables, assigned games, scores kept, tournaments, clocks and scorecards kept. By God. The whole, we're just getting together to have fun playing chess, is a recipe for chaos and ennui. Structure! Order! Of course, they may find some other dad who is less weird.

"Deep Blue Campuses"
By Gail Heriot

These figures are from the Leadership Institute's study of political giving by employees of elite universities. I've included the most extreme schools (both pro-Kerry and pro-Bush)--Dartmouth, which was 100% for Kerry and Vanderbilt, which was only 64% for Kerry. I've also included some of the schools that are nearest and dearest to the hearts of Right Coasters. The actual study includes more schools.

Harvard: Kerry/Bush Dollar Ratio--25 to 1
Kerry/Bush Dollar%--97% to 3% //Number of Donations--406 to 13

Princeton: Kerry/Bush Dollar Ratio--302 to 1
Kerry/Bush Dollar%--99.7% to 0.3 //Number of Donation--114 to 1

Yale: Kerry/Bush Dollar Ratio--20 to 1
Kerry/Bush Dollar %--95% to 5% //Number of Donations--150 to 3

Duke: Kerry/Bush Dollar Ratio--9 to 1
Kerry/Bush Dollar %--90% to 10% //Number of Donations--98 to 7

MIT: Kerry/Bush Dollar Ratio--43 to 1
Kerry/Bush Dollar %--98% to 2% //Number of Donations--121 to 2

Stanford: Kerry/Bush Dollar Ratio--6 to 1
Kerry/Bush Dollar %--86% to 14% //Number of Donations--257 to 28

Columbia: Kerry/Bush Dollar Ratio--8 to 1
Kerry/Bush Dollar %--89% to 11% //Number of Donations--197 to 14

Dartmouth: Kerry/Bush Dollar Ratio--Infinity
Kerry/Bush Dollar %--100% to 0% //Number of Donations--39 to 0

Northwestern: Kerry/Bush Dollar Ratio--11 to 1
Kerry/Bush Dollar %--92% to 8% //Number of Donations--100 to 6

Washington U.: Kerry/Bush Dollar Ratio--2 to 1
Kerry/Bush Dollar %--65% to 35% //Number of Donations--56 to 14

Cornell: Kerry/Bush Dollar Ratio--29 to 1
Kerry/Bush Dollar %--97% to 3% //Number of Donations--142 to 7

Chicago: Kerry/Bush Dollar Ratio--3 to 1
Kerry/Bush Dollar %--73% to 27% //Number of Donations--77 to 15

Rice: Kerry/Bush Dollar Ratio--3 to 1
Kerry/Bush Dollar %--72% to 28% //Number of Donations--21 to 6

Notre Dame: Kerry/Bush Dollar Ratio--3 to 1
Kerry/Bush Dollar %--75% to 25% //Number of Donations--18 to 8

Vanderbilt: Kerry/Bush Dollar Ratio--2 to 1
Kerry/Bush Dollar %--64% to 36% //Number of Donations--76 to 26

Univ. of California: Kerry/Bush Dollar Ratio--21 to 1
Kerry/Bush Dollar %--95% to 5% //Number of Donations--694 to 28

Michigan: Kerry/Bush Dollar Ratio--10 to 1
Kerry/Bush Dollar %--91% to 9% //Number of Donations--159 to 7

So you'd like to . . . know all about the constitutional/nuclear option
By Tom Smith

Here it is boys and girls: the alleged script for how it will go, or might go.

May 17, 2005
But is it art
By Tom Smith

I really miss the NYC art scene.

I think it's important that this sort of thing be federally supported.

New Affirmative Action Study
By Gail Heriot

After the passage of Proposition 209, many argued that even highly qualified minority students had ceased to apply, because they felt "unwelcome" at the University of California. This argument was used to justify a massive increase in the UC's spending on outreach (as well as to show that Proposition 209 was a bad idea in the first place). If this new study is correct, it may have been a false alarm. The study finds that the number of highly qualified minority students who chose to send their SAT scores to the UC did not drop off following the adoption of color blind admissions policies. As Gilda Radner might have put it, "Never mind...."

Cola comments
By Tom Smith

I liked "I'd like to teach the world to sing" better. Anyway, I'm diet Coke person myself. Now I can not drink Pepsi and feel like I'm making a political statement.

Which reminds me, at my alma mater, Cornell, there is a tradition -- no honorary degrees, no commencement speakers. It just isn't done. Think about it: With all the graduation addresses you have heard, have you ever heard one that was memorable for something other than being bad? The commencement address at Yale Law School when I graduated was an offensive left wing rant. (I remember the studly Tony Kronman remained in his seat, refusing to join the standing ovation, even though he is hardly a conservative.)

UN has new anthem
By Tom Smith

This is funny.

Hands Across the Aisle Against the Boycott
By Maimon Schwarzschild

US academics, including many on the political left, are condemning the boycott of Israeli scholars and universities that left-wing academic unions are fomenting in Britain. Here is a post on one anti-boycott petition now circulating: there are already more than 4,200 academic signatures, including Todd Gitlin (whom I admire very much), Juan Cole (whom, otherwise, I don't), Richard Rorty, and many others.

As the post notes, the British boycott had been condemned by the American Association of University Professors; and also by the Middle East Studies Association, which is not a Zionist front, to put it mildly.

Full credit, and all honour, to each of these individuals and groups.

May 15, 2005
Powerline on Newsweek's Blunder
By Mike Rappaport

It is hard to believe just how bad the MSM is these days. This Powerline post also has the interesting comments of John Steele Gordon (whose book on American Economic History I recently finished and will strongly recommend in a post later this week).

"Revisionism" Revised
By Maimon Schwarzschild

Victor Davis Hanson has it right about Second World War "revisionism", which is now routine in American elementary schools and high schools, as well as on college campuses (of course) and on the usual newspaper op-ed pages:
Revisionism holds a strange attraction for the winners of World War II. American textbooks discuss World War II as if a Patton, Le May, or Nimitz did not exist, as if the war was essentially the Japanese internment and Hiroshima. That blinkered and politically correct focus explains why so many Americans under 30 are simply ignorant about the nature and course of World War II itself. Similarly, the British have monthly debates on the immorality of their bombing Hamburg and Dresden.

In dire contrast, even the post-Soviet Russian government will not speak of the Stalin-Hitler non-aggression pact, the absorption of the Baltic states, the murder of millions of German citizens in April through June 1945 in Eastern Europe, and the mass execution of Polish officers.
Read the whole thing.

May 14, 2005
On This Day in Constitutional Non-History...
By Gail Heriot

The Constitutional Convention in Philadelphia was scheduled to get underway on May 14, 1787. But things did not get off to a good start. When the appointed day came around there was no quorum. Nor was there a quorum on May 15th, 16th, 17th or for many days thereafter. Some began to worry that the convention would be a bust as a similar meeting in Annapolis, Maryland had been the year before.

I would tell you how the story ended, but I have a feeling that you know.

May 13, 2005
Ironic Accidents
By Mike Rappaport

When I moved to California from the East Coast, people often noted the additional risk of earthquakes. Of course, though, earthquakes and accidents are hard to predict. This collapse of a retaining wall in northern Manhattan occurred in the neighborhood where I grew up and where my mother still lives. If memory serves, I used to play football on the portion which collapsed. Good thing I no longer play football.

Dartmouth Coup d'Etat
By Gail Heriot

Congratulations to renegade candidates Todd Zywicki and Peter Robinson for being elected to the Dartmouth Board of Trustees. Powerline and Inside HIgher Education have more.

The first thing I'm going to do when I finish this post is try to find out what other colleges and universities have alumni-elected trustees. Perhaps we can make this a trend ....

Serial killer Michael Ross executed in Connecticut
By Tom Smith

Ross was a graduate of Cornell University (my alma mater). The history of the investigation, convictions and appeals is particularly circuitous. I'm of two minds about the death penalty, but he certainly seems like a good candidate for it.

Some interesting questions raised, including, should "sexual sadism" qualify as a mental illness that mitigates the penalty for murder? And, to what extent should the convicted murderer's desire to be executed to attone for his crimes be taken into account? Curiously, as Ross arguably become more sane on medication, his sense of guilt and desire to be executed increased.

Also note, the one woman who survived one of Ross's attack put up a fight.

Famous All Over Town
By Maimon Schwarzschild

Fascinating review in the New Criterion by "Theodore Dalrymple" of a novel by Rahila Khan, or rather "Rahila Khan". The novel is called "Down The Road, Worlds Away".

The novel is about Muslim immigrant girls growing up in Britain, "down the road, but worlds away" from their often-loutish white underclass neighbours and schoolmates. Says Dalrymple:
The girls are vastly superior, morally and intellectually, to their white counterparts. Their problem is precisely the opposite of that of the white youths: far from nihilism, it is [their parents'] belief in a code of ethics and conduct so rigid that it makes no allowances for the fact that the girls have grown up and must live in a country with a very different culture from that of the country in which their parents grew up. In the eyes of their parents, the girls are easily infected with, or corrupted by, the dream of personal freedom, and since the only result of such personal freedom that the parents see around them is the utter disintegration of the white working class into fecklessness and slovenly criminality, where every child is a bastard and families are kaleidoscopic in their swiftly changing composition, [the parents] become even more rigidly conservative than they might otherwise have been.
Rahila Khan's novel was published by Virago Press, a feminist publishing house in England. But it soon emerged that "Rahila Khan" is actually a Church of England vicar, the Reverend Toby Forward. Male. White.

("Toby Forward" sounds invented too, but it's apparently not.) (When Eric Blair in the 1930s suggested possible pen-names to his publisher, he offered "the Reverend Blewberry Jones" as well as "George Orwell". Would the Berlin Wall still be standing if Orwell's publisher had made the wrong choice...?)

As for "Down the Road, Worlds Away", Virago Press -- true to its name -- was outraged when the Rev Forward came forward, and promptly pulped the book. You will not be able to find it.

Theodore Dalrymple thinks very highly of the book. Read the review. Dalrymple, a prison psychiatrist in England, reveals much -- as he always does -- about life, especially underclass life, in Britain.

The "Rahila Khan" story is reminiscent of the great Chicano novel "Famous All Over Town", by an unknown young Danny Santiago: in fact a very good novel. "Famous" turned out to have been written by an elderly WASP named Dan James. A Hollywood scriptwriter in the 1930s, later blacklisted for his Communist connections, Dan James was luckier than "Rahila Khan". His novel was not pulped, despite James' having been a Yalie and no Chicano. The book is still very much in print.

"Theodore Dalrymple", meanwhile, is really Anthony Daniels, who sometimes also publishes under his own name.

I, by the way, am really Fyodor Dostoyevsky. I am hoping my books won't be pulped if my true, not very Russian, identity is ever discovered.

May 12, 2005
Creative Lawyering
By Gail Heriot

When a death row serial killer says he is tired of the appeals process and wants to die, what does a good attorney acting in the public interest do? How about bring a lawsuit arguing that the execution should be enjoined because it constitutes state-assisted suicide and will encourage other prison inmates to kill themselves too? "Suicide contagion" they call it. "These prisoners will try to kill themselves in the hours, days and weeks following Michael's death,'' the suit states. Hmm.

Stop Us Before We Lie Again
By Mike Rappaport

CBS is at it again. Do they realize they are lying? Either way, they are either knaves or fools.

Silly Statute Struck Down
By Gail Heriot

Loyal readers with incredibly good memories may recall a post I did back on September 29, 2003 while the Davis Recall was pending. If not, I re-produce it:

Karl Marx isn't one of my favorites, but he nailed one thing: History
repeats itself--first as tragedy and then as farce. The continuing battles over affirmative action and California's Proposition 209 are a case in point.

The original tragedy occurred when the Civil Rights Act of 1964, which offered so much hope for racial reconciliation, was transformed in part into an instrument for discrimination. All too quickly after it became law, its clear ban on race discrimination was interpreted to apply only to members of certain races. The country was forced to be satisfied with only half a measure. Discrimination against whites and Asians was fine, even encouraged.

It took almost three decades for Californians to draw the line, but they finally did. Crystal clear language was drafted: No race discrimination may be practiced by the State of California or its subdivisions, not against any person, no matter what his or her race, not even for superficially well-meaning reasons. With the passage of Proposition 209 in 1996, voters put a stop to preferential treatment based on race (or sex or ethnicity).

Or at least they thought they did. Members of California's Legislature have frequently voiced dissatisfaction with Proposition 209's requirement of race neutrality. And recently with Gray Davis's blessing, they took action. They passed a statute that purports to interpret, but that in reality twists, Proposition 209 into somethings more to their liking. If the courts accept this new law as an authoritative interpretation of Proposition 209, it will "interpret" the initiative right into oblivion.

A.B. 703--taken from the U.N.'s International Convention on the Elimination of All Forms of Racial Discrimination--exempts from the definition of race discrimination "measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups." In other words, it exempts precisely the kind of case voters were thinking of when they passed Proposition 209 in the first place. Proposition 209's opponents could not ask for a more complete and dramatic back-from-the-grave victory.

Fortunately for the strong majority of voters who cast their ballots for Proposition 209, the whole enterprise is a fool's errand. California's comically out-of-control legislature has no power to bind the courts to an interpretation of a voter initiative, particularly when, as here, the interpretation is so obviously contrary to the voter's understanding of the initiative.

No one can argue that Proposition 209 was a stealth initiative. It was debated in newspapers and magazines, on radio and television, in churches and meeting halls and over breakfast room tables all over California. Its basic purpose was well known. If Proposition 209 doesn't apply to the kind of affirmative action measures described in the new law, then the Migratory Birds Act doesn't apply to creatures with feathers. The courts are unlikely to view this legislative escapade as anything more than another reason to be embarrassed for their state government--though I suppose anything is possible.

Gray Davis was never a friend to Proposition 209. But at least in the past he could be counted upon to veto the more ridiculous excesses of the Legislature. These days, however, Davis evidently thinks he cannot afford to antagonize any Democratic constituency. The result has been a feast of special interest legislation of which A.B. 703, which Davis signed into law, is just one one example. For some Californians unsure of how to vote on the recall, it may be one example too many.
Anyway, the statute was struck down in the California Superior Court today. I can't say that this was a great victory, since if the forces of truth and reason couldn't win this one, then they probably couldn't win anything. But it is a victory, and sometimes you have to take your victories where you find them.

Filibustering Judges
By Mike Rappaport

At the Conspiracy, Orin Kerr asks whether anyone has written about "the structural and systematic effect of filibustering judicial nominees." It just so happens that John McGinnis and I have looked at this question in a recent article. As readers of this blog will know, our conclusion is that the ideal rule for confirming judges "would be a supermajority rule for Supreme Court nominees, but only a majority rule for circuit and district court nominees."

The Supreme Court has substantial power to entrench new norms under the Constitution. Many of the same reasons that support requiring a supermajority to enact new norms through a constitutional amendment also support requiring a supermajority before confirming officials who will have the power to entrench new norms. In particular, a supermajority rule would have the effect in this area of making it harder to confirm justices whose views significantly depart from the political center.

By contrast, a supermajority rule is needed much less for circuit court judges, because they lack the power to establish new norms. Moreover, a supermajority rule would tend to reduce the diversity of views among circuit court judges -- a diversity which contributes to the quality of judicial decisionmaking.

The supermajority rule for Supreme Court nominees, however, should only be adopted through a bipartisan agreement between the political parties. (For example, it could be applied prospectively beginning in January 2009). If one party applied it unilaterally, the rule would be likely to lead to high decisionmaking costs -- that is long delays in confirming nominees -- because the President would be reluctant to compromise with the Senate minority and instead would attempt to fight what he would regard as an improper decisionmaking process.

You know you're doing something right when . . .
By Tom Smith

Daily Kos is upset. Enjoy.

Actually, I feel bad. In the interest of building bridges, pouring oil on the waters, and making sure we don't hurt anybody's feewings over saying hurtful things about the enslavement of half of Europe for half a century, which was, after all, inevitable, not that bad, necessary to make the world-historical omelette, better than Hitler at least, and maybe not the product of a first class mind, but certainly the product of a first class temperment (which is, after all, the thing, you know, temperment, that and the cut of your jib), I ofter this little morsel. Just a little Yalta memory.

What! Will no one speak up for the sainted FDR?! I call the first witness!

Besides, there was no way to know Stalin was that bad.

May 11, 2005
You are not the lightning
By Tom Smith

But the problem is, the tracks released so far on the new Audioslave album are incredibly lame. Chris Cornell prating about how you have to "be yourself" -- that's original -- instead of telling his former lover "when you asked for light I set myself on fire." The latter, we know exactly what he is talking about, if we've ever been the bottom in a relationship, and a lot of us have. But "be yourself"? Who is this, a guidance counsellor? The first Audioslave album is, by rock and roll standards, something of an astonishment. Musically interesting, emotionally compelling, and addicting to listen to. A hard act to follow. And I fear they will not. Nothing would please me more than to be wrong about this.

Some American crimes may not be named
By Tom Smith

What an extraordinary thing that Bush actually apologized for Yalta. Nothing can have shown more clearly that he is miles ahead of the dunderheads at the Times and the Post, who still think it is 1962. Some habits die hard, I guess. Yalta was a profound disgrace. It never would have happened but for FDR's illusions about Stalin. If FDR had made a deal with Hitler, I like to think we would have no problem seeing it as evil, but for mysterious reasons, the illusion of Uncle Joe refuses to die, or dies only very slowly. W just put another stake in that stubbornly animate corpse. Arthur Schlesinger may never figure it out, but in Latvia, Poland, Hungary and everywhere else in the former Soviet empire, they know what Bush acknowledged, that they were betrayed by what Eisenhower called a crusade for freedom. Their freedom was sold cheaply, far more cheaply than we sold the British, Italians or the French. And the French had a lot more to answer for than the Poles.

Nothing could show more clearly than Bush's apology how far he has moved away from the realist camp of his father, Kissinger, Nixon, and the rest of them. It's hard to imagine Reagan making those remarks about Yalta. He may have thought it, but it would have been too radical for him to say. There is still apparently some need to apologize for the Evil Empire in aging Democratic circles, but nobody will hear it in Warsaw or Budapest. What a bracing thing it is to see new democracies forcing old democracies to speak the truth. This is Bush's evil empire moment. Yalta was necessary, Yalta was justified, Yalta was just realistic -- more filler for history's unmarked grave of discarded lies.

Treating pain
By tom smith

this is interesting.

St. Kristof the Ignorant speaks
By Tom Smith

This has got to be my least favorite canard. This is the claim, close to absurd on its face, that the Catholic Church is encouraging the spread of AIDS by not promoting the use of condoms in the Third World, especially Africa.

Notice how innocent of anything like statistics Kristof's opinion piece is. It is called opinion, and boy, that's what it is.

The spread of AIDS in Africa has a lot of causes, none of them pretty. Not having condoms is the least of their problems. For one, many southern Africans favor dry sex. You haven't heard that? Well, maybe you don't know a hell of a lot about African sexual practices, just like Kristof. I heard about it from an infectious diseases expert in Peru, who mentioned several reasons for the AIDS epidemic in Africa, Catholics not being one of them. If Africans are averse even to natural or artifical lubrication, because they don't like the way it feels, just how are condoms going to save the day? Kristof makes it sound like all these happy innocents just want to have nice, sex with a condom, but darn it, Sister Chastity told them no condom, so boo hoo, I guess we will just have to risk AIDS. What rubbish. The huge cultural barriers against condoms in Africa don't need any help from the Church. It's just a convenient way to bash the Catholics. How sad for the New York Times that abortion doesn't cure AIDS.

Oh, here's a fact. Catholicism is small, minority religion in the African countries where incidence of AIDS is highest. However, maybe the Vatican is somehow controlling behavior remotely.

Here's another thing. All kinds of extra- marital or extra-stable relationship sex is common in Africa. Prostitution is rife. So is sex with children, "sugar daddy sex," promiscuity and various other practices that help spread AIDS. Lots of discussions of AIDS downplay this, but it is extremely important. Yes, it doesn't help that so many Africans choose not to use condoms, but the deeper problem is that so many choose to frequent prostitutes, keep multiple sexual partners, and infect their young mistresses. The idea that if the Church would just support condoms, this would all change, is ridiculous. What needs to change is behavior. Prostitution is a horrific industry in Africa that exploits women and children mercilessly. In many instances, it is simply sexual slavery. If Kristof wants to help the victims of the world, maybe he should say something about that, instead of criticizing the dedicated people who actually work to help the victims in these places, rather than getting paid top dollar to recycle tired lefty bromides.

And yes, AIDS is also a disease of poverty in Africa. It has more to do with lack of jobs than lack of condoms. What African women need is a place to work besides a brothel, not a brothel with plenty of condoms. What African children need is schools, not truck drivers with plenty of rubbers. Kristof may think he is just indulging in a little innocent Catholic bashing, but what he is really doing is showing his typical American liberal ignorance about the plight of the people his moral betters -- I refer to the priests, nuns and lay people who are actually working in Africa -- are trying to help. Catholic charities are doing a lot more to fight AIDS in Africa than Kristof and the New York Times are. All he is saying in effect is, Let's make sexual exploitation more hygenic! The Congo isn't some Manhattan day academy, and theTimes is not helping by not telling lies about the Church.

Some info.

Catholic Relief Services in Africa.

Another example.

By Mike Rappaport

In response to outrageous columns like this one by Jacob Heilbrunn, Jonah Golberg explains why Yalta was a travesty.

Fate of the academy
By Tom Smith

This at opinionjournal is a must read, if not the best written thing in the world.

Some observations and quibbles. I simply do not believe that the University of California will, or is anywhere close to deciding to, provide sex change operations to "transgender" students on the California taxpayers' dime. I don't have any evidence for not believing it; I just don't believe it. California taxpayers would go insane. There may be some committee talking about it somewhere, but they may as well be talking about our ethical obligations to extra terrestrial visitors.

I do think that the quotation from Marcuse is well taken. The enemy of many on the sexual left really is the family. Just because you're a paranoid right wing nut doesn't mean there really are not people who want to kick the legs out from under ordered liberty. Why they want to do so is a job for a psycharitrist. One hopes someday there will be a medication that works for this problem. I must say, it is the hard core anti-family people that give me pause about gay marriage. Every time I meet some nice gay couple that seems more married than, oh, say, some people in my parish I could name, I think, of course gay marriage should be legitimized. Just about then you read something that makes you realize there really is a campaign against the family (you may have to decipher a lot of jargon to realize that, however).

Kimball is also correct that a lot of the zaniest left wing claptrap has been institutionalized in universities. Maybe Catholic universities will be like Irish monasteries of old, preserving civilization while the rest of the country slides into the PC Dark Ages. Or, maybe they'll just all become "universities in the faith tradition formerly known as Catholic, but please don't hate us!"

One note of cautious optimism. Students seem increasingly sensible to me. (Granted, I am at a Catholic university, and at a law school known as conservative because we have a half dozen conservatives out of 40 or so faculty members.) The looney academic left must have difficulties gaining converts. It must be graying. When Smith or Wesleyean goes all PC weird, that creates opportunities for other institutions. The marketplace for ideas works slowly and imperfectly, but I think it still works. But who knows. Look at France.

The New Intelligence
By Mike Rappaport

From a review by John Leo in the Wall Street Journal (not available online without a subscription):

Steven Johnson, the author of last year's "Mind Wide Open: Your Brain and the Neuroscience of Everyday Life," is now determined to topple the reigning clichés about pop culture. Not to worry about all those sarcastic sitcoms, humiliating reality shows and murderous video games, he says in "Everything Bad Is Good for You" (Riverhead Books, 238 pages, $23.95). Throughout the vast wasteland a kind of education is taking place: Electronic culture and movies are teaching us how to grapple with an ever more complex society.

Following Marshall McLuhan, Mr. Johnson argues that most of us pay too much attention to the content of pop culture and not enough to how the culture alters our minds and frames what we learn. Video games may be obsessed with shooting aliens and rescuing princesses, but they build cognitive muscle by dangling rewards and forcing decision-making. They develop "visual intelligence" and "coping skills."

It is true that at least since the Mario Brothers game hit the console in the 1980s, parents have been quietly amazed that very young children can negotiate video worlds where the rules are unclear. Picking up rules on the fly is a decisive advantage in life, Mr. Johnson notes. So is the ability to persist long enough to penetrate a complicated world. The average video game takes 40 hours to complete, yet millions of young people who would be sure to fall asleep after five sentences of Hemingway are willing to play to the end.
I sure hope Johnson is right, for my kid's sake. John Leo, the author of the review, is skeptical, though.

May 10, 2005
Do You Mean Extremely Moderate?
By Gail Heriot

My friend Roger Clegg posted an item on the NRO Corner yesterday:

"The AP story today on the Bush judicial nominees being filibustered says that they are being targeted because of what Democrats call their “extreme views” on affirmative action, among other issues. I would submit that it is not possible to have an “extreme view” opposing affirmative action. The furthest to the right you can be is to want racial preferences in college admissions, employment, and contracting completely eliminated—but that is actually the mainstream position, if by mainstream we mean what most Americans favor. It is possible to be an extremist in the other direction—favoring, say, mandatory quotas for every classroom in every university in every state in the country—but not on the right."

Roger has a point. How can opposition to racial preferences be out of the mainstream? In the two states that have had voter initiatives on the ballot prohibiting racial preferences, both passed by substantial margins--California (54.6%) and Washington State (58.22%). Moreover, Drs. Paul Snideman and Thomas Piazza, co-authors of The Scar of Race (which I recommend) and leading experts on public opinion, state that the racial preference agenda "is controversial precisely because most Americans do not disagree about it. Over the past decades, their opposition has been consistent, unyielding and from all corners of society. For example, a poll conducted by the Washington Post a couple of years ago showed that 94% of whites and 86% of African Americans agreed that hiring, promotions,and college admissions should be based "strictly on merit and qualifications other than race/ethnicity."

Supporters of racial-based admissions policies argue that public opinion is malleable on this issue and that results vary according to the way the question is asked. The point about results varying is true: But they vary only to the extent that they go from bad news for supporters of race-based admissions policies to very, very, very bad news. For example, the Gallup poll released just a day before the Supreme Court's decision in the Michigan cases was touted by some as evidence of public support for race-base admissions, because a plurality (49%) expressed support for the abstract concept of "affirmative action." But respondents made a clear distinction between affirmative action and preferential standards. A full 69% said that college applicants "should be admitted solely on the basis of merit, even if that results in few minority students being admitted." Only 27% took the position that an applicant's race should be taken into consideration "even if that means admitting some minority students who otherwise would not be admitted."

It is laughable to argue that Bush nominees are out of the maintream on this issue.

May 09, 2005
Hitchens nails it
By Tom Smith

CH may be an anti-Catholic bigot, but he nails it with this one.

Judging while Black
By Tom Smith

Democrats have invented a new kind of racial profiling. If you are judging while Black, you had better mind your p's and q's. Ditto for Hispanic jurists. See Hentoff.

That's funny, you don't smell gay
By Tom Smith

Those darn scientists are at it again.