Catblogging B-yatches

Justice Scalia's McCreary Dissent

I've been thinking about Justice Scalia's emphasis on monotheism in his McCreary dissent. Why monotheism? My conclusion is that the change in language is political, in the following sense. Conservatives used to talk about "Judeo-Christian" tradition when arguing for non-preferential and other non-separationist theories. In other words, conservatives used to argue that the Establishment Clause does not prohibit state-sponsored invocations of our Judeo-Christian tradition(s). Now, why did they previously invoke the term "Judeo-Christian"? Because it didn't exclude Jews. No more arguments that "we are a Christian nation." Instead, Judeo-Christian.

Well, some of you may have noticed that we are fighting with some folks right now who happen to be, well, Muslim. And one thing Muslim enemies of the U.S. like to say is that the U.S. is anti-Islam.

One way to address that kind of rhetoric is to stress the commonalities between Judaism, Christianity, and Islam. I'm sure you've heard this sort of thing by now.

Now, what's a good, overarching, one-word term for those commonalities? Monotheism. So Scalia's opinion uses monotheism to include Muslims under the Establishment Clause's non-prohibition of our monotheistic traditions. That's my take--it's "Judeo-Christian," one better.

But isn't this just ridiculous, on its face? Does any reader of this blog really believe that the then-living European white males in Philadelphia in the hot summer of 1787 meant to say that Jews, Christians, and Muslims share a common tradition of monotheism the recognition of which doesn't offend the Establishment Clause? That Gunning Bedford understood the term "God" to also mean Allah? That Gouvernor Morris considered "Musselmen" to be under the same general category as Presbyterians or Congregationalists? That Jemmy Madison believed that "the Turk" prayed to the same God as Virginia Baptists?

My sense is that, if one wants to argue for an originalist understanding of non-preferentialism, then Muslims are on the same side of the line as atheists and polytheists--the latter also being a group Scalia says can be excluded from consideration in public invocations of our monotheistic tradition (sorry Hindus). BTW, so are Jews, almost certainly (the Framers wouldn't have said "Christian nation" if they had been asked?). That's why a genuine original understanding of non-preferentialism isn't tenable, even for Justice Scalia. (Tenable in a political sense.)

To include Muslims under that umbrella, one must invoke--dear Lord!--the Living Constitution.

Shorter Ignatius

This morning's David Ignatius column says that the war in Iraq (which he still supports) has not made the U.S.'s terrorism problem better and that democracy in Iraq may not necessarily improve this situation, either. Moreover, he notes that oppressive Middle Eastern regimes (like Egypt) often succeed in controlling terrorism.

Now he tells us!

Jeebus. If you can get a Post column by spouting such obvious stuff, then sign me up. First column: "South most conservative region in the U.S." Second column: "People on tv are better looking than you and me." Third column: "If terrorists get their hands on nuclear weapons, we're screwed." Fourth column: "Congress likes that pork barrell." Fifth column: "Summers are hot in D.C.. And steamy!"

Experiment with Picture Posting

Some call the Court the "Storm Center," but not like this . . . .

Suspending Habeas II: The Suspension Clause and Justice Scalia

I apologize to readers of this blog for my persistent interest in suspending habeas corpus, but like I said, I am writing this paper . . . .

Anyway, one interesting question is whether the Suspension Clause, U.S. Const., Art. I, s. 9, means that, except when the privilege is suspended by Congress, some kind of habeas corpus must be available, at least in some courts, to some individuals. (I'm going to leave that last part vague for this post--maybe more details later on.)

(BTW, the Suspension Clause reads: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.)

In other words, is there some kind of constitutional minimum of habeas corpus that applies, even if Congress doesn't legislate a habeas statute? That last part of the sentence is the key point. Another way of getting into this is to ask whether the Suspension Clause mandates habeas corpus, in some form, unless specifically suspended by Congress.

In a 2001 case, INS v. St. Cyr, Justice Scalia argued, in dissent, that the Suspension Clause only limits Congress's power to suspend habeas corpus; it does not require some minimal "constitutional" level of habeas corpus review even in the absence of congressional enactments.

Now, there is a lot to be said for that view. Because there is very little "federal common law," in the federal system one must always look for a statutory basis for jurisdiction and a cause of action. So, generally speaking, if you can't point to a statute, you can't get into federal court. If Congress failed to enact a habeas statute--or, given that it already has enacted one, if it repealed the habeas statute altogether instead of suspending it--the argument goes that the Suspension Clause would not be relevant to the analysis. As Justice Scalia argues, whether Congress enacts or repeals a habeas statute is up to Congress. Congress could even remove whole categories of cases from habeas jurisdiction without raising a constitutional issue. But it could not temporarily suspend habeas, if enacted, except under the terms of the Suspension Clause.

The majority opinion in St. Cyr strongly suggests, however, that five justices on the contemporary court would not agree. Because that case was decided under the theory of "constitutional doubt," we can't say for certain; but my guess is that there is support on the Court today for the "constitutional minimum of habeas corpus" theory. The Rasul case also suggests this to me--the Guantanamo Bay detainees case. (Maybe more on that in a subsequent post.)

But I actually wanted to make a more specific argument here. In his St. Cyr dissent, Justice Scalia argues as follows:

In the present case . . . Congress has not temporarily withheld operation of the writ, but has permanently altered its content [removing certain classes of excludable aliens from habeas corpus review]. That is, to be sure, an act subject to majoritarian abuse, as is Congress's framing (or its determination not to frame) a habeas statute in the first place. But that is not the majoritarian abuse against which the Suspension Clause was directed. It is no more irrational to guard against the common and well known 'suspension' abuse, without guaranteeing any particular habeas right that enjoys immunity from suspension, than it is, in the Equal Protection Clause, to guard against unequal application of the laws, without guaranteeing any particular law which enjoys that protection. And it is no more acceptable for this Court to write a habeas law, in order that the Suspension Clause might have some effect, than it would be for this Court to write other laws, in order that the Equal Protection Clause might have some effect.

I'm sorry, but I don't buy this analogy. The problem is that the Suspension Clause is just not parallel to the Equal Protection Clause (EPC) in this way. The EPC is a general principle; it applies to all laws. Even though the EPC doesn't state what laws the States will enact that will in turn be subject to it, there is no reason to doubt that States will enact laws that will be subject to it. The Court would never find itself in the position of having to "write" laws, for the States, to which it could then apply the EPC. In terms of the EPC, State law-making is a solid background assumption. The Suspension Clause, by contrast, states an incredibly narrow rule applicable to one and only one kind of legislation--suspension legislation. Because it's so specific, the implication appears to be that there has to be habeas corpus, unless suspended.

Consider an alternative EPC: "No State shall deprive any person of equal protection of the laws regarding public education." I would argue that this clause clearly implies a State duty to provide public education, even though it doesn't say that in so many words.

I would add here--although this is turning into the longest post, ever--that the Framers were almost certainly thinking of habeas corpus as it existed under the common law writ and not about congressional enactments at all. That would support the view that there is some kind of constitutional, extra-statutory habeas corpus under the Suspension Clause.

Case Propaganda Post Boy

Is that the real Rossetta Stone?

If the folks in Adelbert Hall only knew, Paul. But I won't tell them.

Reaction to Kelo: Curiously Strong

I have been surprised by the negative reaction from both left and right to the Supreme Court's recent Kelo decision--the one dealing with eminent domain for redevelopment purposes in New London, Conn. The only people I've heard say good things about Kelo are representatives of state and local governments. No else seems to like it, one bit. I'm not surprised by the reaction itself, but at the intensity of it. Why such a curiously strong reaction?

As a few other bloggers have noted, some of the negative reaction is explained by hostility to the idea of eminent domain itself. Now, the latest decision doesn't change that. But just reminding people that the government can condemn private property taps some of that hostility.

From the left, the decision looks like dispossessing relatively poor people in favor of the wealthy and corporations. And those on the left don't like that. But why the intensity? My guess is that there is a lot of frustration on the left with government policy, in general, but especially community development policy. Think of the debates over sports stadiums in recent years. Private companies get cities to build them facilities at the taxpayers' expense. Communities offer tax abatements to get businesses to move in. From the left, it looks like corporations get very special treatment from the government--and that is, indeed, the case. And Kelo fits into that trend in a rather dramatic way. So, from the liberal side, this is a case of corporate power run amok.

From the right, the issue is property rights. Just as liberals worry about government-corporate linkages, conservatives are concerned with government power interfering with the prerogatives of property owners. Now, lots of times the property rights issue is tied into corporate interests, but not in this case. Indeed, I haven't heard anyone on the right say, "Hey, what's good for corporations is good for the community--jobs, tax revenue, etc." Instead, conservatives see this decision as government overreaching.

Not to put too fine a point on it, both liberals and conservatives can see one of their least favorite trends in Kelo, again, in a very dramatic fashion. That must be it. Because the decision itself seems to me to be pretty much in line with previous decisions--even if it moves that line a little further, still on the line.

More Thoughts on the Speech

I was interested to see that the media reaction to the speech was largely negative. My view has been, all along, that the media, especially the talking heads, have been reluctant to deal realistically with this war because they were beating the drum for it back in 2002 and 2003. In a way, it was their war as much as it was Bush's, and like Bush, they weren't going to admit making a mistakein invading Iraq.

But it looks like the media talking heads might be seeing an opening to extract themselves from the mess (and their responsibility for it) and to start criticizing the Administration's handling of the war--if not, ultimately, the Administration's bogus rationale for the war, which the media pushed so hard, post-9/11--you remember, WMD. This is also appears to be true of the editorial pages of the leading newspapers, including the bellicose Washington Post and even the Judith Miller'ed New York Times.

If this happens, then the Administration's kid glove treatment by the media will come to an end. Watch out.

On the substance of the speech, the most interesting line was the call to military service. I will only note that the call was limited to those considering the military, already. What kind of horsepucky is that? There should be a major push to get every last Republican under 30 to sign up and put their asses where their mouths are. And that push should come from the very top. Oh, wait--can draft "evaders" like Bush, Cheney, and the rest of the chickenhawks advocate military service? The kind of military service where the bad guys actually shoot at you?

If this wasn't so serious, it would be funny.

The Speech

OK, what was that? In sum: "September 11. Central battleground. Stay the course. Hurrah for the U.S. military. Thank you for your sacrifice. Repeat."

If we really have trained 150,000 Iraqis, then why do we keep our 135,000 troops there? Don't Republicans believe in personal accountability? If the Iraqis can't take care of themselves, isn't the occupation a kind of "welfare"? In the sense that we are doing for them what they can do for themselves, or could do for themselves if we didn't do it for them? Or, is this really about defending the U.S., and not exporting democracy? So, then, do we need the Iraqis, when trained, to defend the U.S. against terrorists training there? Do we want to rely on Iraqi defense forces to fight the war on terror for us? OK. Either way, don't we have a problem? Either the Iraqis can't defend themselves, or we can't rely on them to defend us.

Is Iraq sovereign? If so, then are the U.S. forces in country under Iraqi command? If not, then how is the Iraqi government sovereign?

The commanders on the ground say "we don't need more troops." Because if they say the opposite, they get fired. So let's stop pretending that they aren't asking for more troops because they don't want them. They can't ask for more troops.

Just some thoughts.

"Mr. Republican" Robert A. Taft, on the Role of the Opposition in Times of War

More great quotes from the Patterson book:

Two weeks after Pearl Harbor (page 255): "Criticism in time of war is essential to the maintenance of any kind of democratic government."

In response to a "moratorium" on politics during the war (ibid.): "To stifle criticism of the administration is very bad, because I see no other way in which the conduct of the war may be improved, and if it isn't improved, I don't know what may happen."

Occupying Iceland (1941)

Did you know that in July 1941 (i.e., months before Pearl Harbor) that U.S. forces occupied Iceland to protect north Atlantic shipping routes to Britain?

Now this was with the consent of Iceland. Not an invasion. But my question is, was this "deployment" made without congressional approval? And if so, what was the legal justification/basis for the president's order to do this? I'm sure this was commander-in-chief power, but this was 1940, not 1967 (or 2002). Before we usually think of presidents using this power so, well, expansively.

BTW, this comes up because I'm reading about the 1940 election and the main contenders for the GOP nomination--Wendell Willkie, Robert Alphonso Taft, Thomas Dewey, and so on, and I was just now reading about how the isolationist Taft reacted to the occupation of Iceland.

Taft (from James T. Patterson, Mr. Republican (1972, 245): "The people seem to regard Iceland as an island off the coast of Maine. What concerns me is that if the president can do that in Iceland, he can certainly do it with Ireland, and England itself."

Taft has a point. The commander-in-chief power is a dangerously expansive one, and opposition members of Congress are right to question its expansive uses by presidents.

Update: The U.S. Marine Corps put out a WWII commemorative series in the 1990s, and it includes a "pamphlet history" called Outpost in the North Atlantic: Marines in Defense of Iceland, by Col. James A. Donovan, U.S.M.C. (Ret.). There are some interesting details about the mission to Iceland, including that the U.S. flag was not flown over U.S. barracks in case German spy planes flew over, which they occasionally did. This was a joint U.S.-British-Canadian operation, and the U.S. didn't want it's participation to be that apparent. Iceland was within reach of German paratroopers, staging from bases in Nazi-occupied Norway (occupied early 1940). The Germans never did invade Iceland, though.

Suspending Habeas Corpus

So I'm working on a paper on, well, suspending habeas corpus, and to that end I've been reading After: How America Confronted the September 12 World, by Steven Brill (Simon & Schuster 2003). Brill reports that in the Justice Department's first draft of legislation after September 11 (we're talking the September 17 draft of what eventually became the USA PATRIOT Act), the suspension of habeas corpus was proposed as part of the government's "wish list."

Page 74: "Most shocking was that the bill suspended . . . habeas corpus . . . . Ashcroft was proposing that it just plain be eliminated during this undefined emergency that had no designated end date."

Chair of House Judiciary, James Sensenbrenner (R-Wisc.), quickly put the kaibosh on this proposal, calling it a nonstarter.

The interesting part is the footnote on page 74. Brill notes that neither Ashcroft nor Viet Dinh, his deputy at that time, would confirm this fact for the book, but that Sensenbrenner and White House officials recalled the suspension as part of the draft. (I guess Brill did not himself have access to the draft, because that would clear the matter up, right away.) Brill quotes Ashcroft as saying 'he could not 'reconstruct with any accuracy' whether the suspension of habeas corpus was proposed." What a weasel-ly answer that is. You don't remember proposing the suspension of habeas corpus? Really?

I'm not a very big fan of Sensenbrenner, but he got this one right, as did unnamed White House officials.

Bryce Canyon

Another experiment with posting photographs. This one is from Bryce Canyon National Park, in southwestern Utah.

Sunday's Brooks column: Stop the Inanity!

I hate to flog the dead Trojan horse, but David Brooks's column in yesterday's Times includes three passages that cry out for mockery. Here they are, in order of appearance:

"The Bush folks, at least when it comes to Africa policy, have learned from centuries of conservative teaching--from Burke to Oakeshott to Hayek--to be skeptical of . . . grand plans. Conservatives emphasize that it is a fatal conceit to think we can understand complex societies, or rescue them from above with technocratic planning."

I'm sure that the Times editors made Brooks insert that clause, "at least when it comes to Africa policy." Because the Bush folks have not learned anything "from Burke to Oakeshott to Hayek" when it comes to our Iraq policy. There the "fatal conceit" is on grand display. And Burke et al. seem to have been on to something. (BTW, the thought of the president sitting down and reading Oakeshott (or Hayek) strikes me as profoundly funny. I know Brooks doesn't say that, but still frigging hilarious.)

[Discussing the administration's Millenium Challenge Accounts] "This program is built upon the assumption that aid works only where there is good governance and good governance exists only where the local folks originate and believe in the programs."

Like the Iraqis originated the U.S. rebuilding of their country . . . into a vibrant Middle Eastern beacon of democracy . . . or something.

"[I]f we pour aid into Africa [me: Iraq] without regard to local institutions, we will do little good, we will exhaust donors and we will discredit the aid enterprise for years to come."

Couldn't have said it better myself.

This column answers at least one question: Brooks is completely full of it.

Film Review: Laura (dir. Otto Preminger, 1944)

This is a new DVD release of a classic of film noir. As one expects in this genre, there are surprising twists--"things are not always as they seem"--a beautiful woman, a hard-boiled detective, and a few colorful characters just to make things interesting. It's always raining. Oh yeah, and there's a murder mystery. The movie is watchable, though, because of its high camp value. Waldo Lydecker, played by Clifton Webb, is supposed to be in love with Laura, played by the beautiful Gene Tierney. But his character is clearly, um, playing for the other team. I kept expecting someone to say to him: "Look, Waldo--you can't be in love with Laura, can you? I mean, aren't you . . . ?" But this was 1944, I guess.

Another highlight: Vincent Price plays Laura's playboy boyfriend. I'm serious. With a Southern accent. His character's name is "Shelby Campbell." Seriously. I kept expecting him to say: "Laura isn't dead. She's one of the . . . undead."

At under 90 minutes running time, this movie is a quick bit of B&W fun. You'll see the twist coming, and if you have seen one or two of these noir movies, you'll figure out where the murder weapon is before the detective, and thus the identity of the killer, too.

No Rehnquist Announcement Today

The Court announced its decisions in the remaining six cases of the Term (including the two ten Commandments cases) and recessed for the summer. No announcement that the Chief is stepping down, just as I suspected. I guess the announcement could still happen, through some other means, but nothing today.

BTW, the folks over at SCOTUSblog post interagreement scores for the justices, and just as I thought, the 5-4 voting alignments this Term were all over the place. The Texas Ten Commandments case has to be added in here--Breyer in a special concurrence makes a fifth vote to uphold the display on the state capitol grounds, with Stevens, O'Connor, Souter, and Ginsburg in dissent.

I'm curious to see what the reaction to the Ten Commandments cases will be. My educated guess is that the Christian Right will rail against the Kentucky decision while largely ignoring the Texas case. Justice Scalia's very readable--and, er, quotable--dissent in the Kentucky case will be referred to quite a bit. Quoted a great deal, even. But I am a little curious about Justice Scalia's focus on monotheism. Read the opinion and see if you don't agree . . . .

Film review: Goodbye Lenin (dir. W. Becker, 2003)

This is a German movie about reunification, sort-of. More precisely about what East Germans lost in re-unification--a subject I'll return to in just a sec. The story follows Alex, a young man whose very idealistic mother falls into a coma just as East Germany is crumbling and reunifying with the West. Because his mother cannot suffer any shocks, when she regains consciousness Alex works hard to maintain the illusion that the East is still the East. The humor of the plot is that Alex has to go to outrageous lengths to maintain this illusion--although he is aided through most of the movie by the fact that his mother is bedridden.

The interesting part of the plot is the idea that East Germans lived their lives in the East, and that when their world was washed away, all of a sudden, they lost much of what made them what they were. It's easy for those of us in the west to think that people living under oppressive regimes are unhappy, but we should remember that human beings are incredibly adaptable, and that if you grow up in the Young Pioneers, many of your childhood memories will be of the Young Pioneers. A group that is different from the Boy Scouts, but maybe not as much as we often think, at least in terms of lived experience--camping, hiking, etc. So, the songs are about Communist youth and not "Oh Susannah." Even if people in such places are oppressed, they grow up, have favorite tv shows and foods, fall in love, make their mark in the world. When that world disappears, it is sad, even if things do get better in other ways. That's the thing I liked best about this movie.

Definitely worth a watch.

Ho No Ho Chi Minh!

Listened to "Fox News Sunday" this afternoon on the satellite radio while driving home (temporarily home) from the new home in D.C. During Chris Wallace's excellent interview with Secretary of War Crimes Donald Runsaground, I heard a new GOP talking point twice. Rummy said twice that the Iraqi insurgency has no central leader, "no Ho Chi Minh or Mao."

I was wondering how, exactly, we know this, given that U.S. intelligence on the insurgency is so poor, at least, that is my opinion from what is publicly known. Couldn't there be a Mao that we don't know about? I mean, maybe we found this out when our military officers met with insurgency leaders. But Rummy was very reluctant to answer questions about that, that's for sure.

But on an even deeper level, isn't this evidence, yet again, that our leaders being stuck in the Cold War? Does every insurgency need an ideological leader? Maybe a Communist movement does, but . . . maybe local warlords, clerics, and assorted others are enough to start a Lebanon-style civil war? Just thinking in type, there.

BTW, Wallace asked Rummy some hard questions. Even a few follow-ups. It was an excellent interiew. Wallace deserves some kudos. But not Brit Hume. His comments in the panel discussion could have been typed up for him by Scott McClellan. And what's up with Bill Kristol, criticizing the administration twice in one panel discussion? Fault lines showing in the Republican monolith?

This Post Raises an Interesting Question

The Decembrist raises an interesting question: Why does the short list for Rehnquist's seat not include any "political" figures, but only court of appeals judges and (former) law professors?

This question deserves a longer answer, but I'll try to give it a brief one, largely speculative. The answer is largely political, in my view. With the confirmation fights of the Nixon and Reagan presidencies, a fundamental transformation took place in the confirmation process. Although opposition senators could no longer take on nominees for overtly political reasons (this is a hypothesis), the ground shifted to a discussion of a nominee's "qualifications." So an easy way to short-circuit a nominee was to argue that s/he had no "judicial experience." Of course, students of the Court know that many of the best justices never had judicial experience before their nomination; the idea that one has to have been a judge somewhere else before the Supreme Court should be a non-starter. But this becomes a "lack of qualification" with the shift to qualifications. So presidents look to the bench to prevent this argument from being made in the first place.

Moreover, political figures are more likely to have those "ethical problems" that serve as a disqualification than are judges (again, this is really a hypothesis). This is not to say that judges might not have some of these problems; but it seems that a judge who was formerly a law professor should be cleaner, all else being equal, than a senator. Amd senators will have a long record of votes, speeches, etc., whereas law professors and judges, even when they take controversial positions, do so in a much lower profile setting. (Who really reads law reviews? Court of appeals opinions?) The kicker is that the line between taking controversial opinions and lacking qualifications is blurred. Think of Bork's nomination, for example. (Now Bork seems like a bad example--he was a judge and former law prof--but remember that he first came to public attention during the Saturday Night Massacre during Watergate. Bork is really a hybrid case.) So too high profile, too controversial, and you're out of the "mainstream." Much easier if you have a Senate record--not a judicial example, but think how the Bush campaign used John Kerry's Senate record against him.

Finally, people in the executive branch formulating short lists may think like this: Judges on the federal courts of appeals have already been confirmed once, so if the Senate had objections to them they would have already been raised. Not good logic, but I think it's at least a rhetorical point to raise--the Bush administration has raised it both about Bolton and Chertoff, btw.

That's a short answer.

Here's a hypothetical. Bush decides against the profs and judges options and nominates Orrin Hatch to the Supreme Court. Now every speech, vote, and campaign contribution in Hatch's past becomes fodder for opponents of the administration. (One could say--but the Senate will defer to one of its own. Let's omit that for right now.)

Or Bush can nominate Judge Alito from the Third Circuit. (I don't think that's likely, but I have my own (recent publication) reasons for wanting Alito elevated.) Now, Alito and Hatch are probably not that different in terms of policy preferences. But who has ever heard of Alito? Compared to Hatch, he's the man in the moon. The case against Hatch (or Gonzalez, or Ashcroft, or maybe even Chertoff) is so much easier to cast in terms of qualifications and public opinion. Why pick Hatch when the president can get the same thing with Alito?


Update: I don't mean to suggest that I think that Rehnquist will step down soon. My thinking on this may seem a little strange, but my guess is Rehnquist holds on at least another year. Here's why: If he didn't step down when he was in chemo, when he couldn't participate, couldn't function, why would he step down now that his condition is improved? To enjoy his retirement? Plus, consider that WHR is within two years of the all-time service record (WOD) on the Court. He may have a mind to make a go for it, now that he has lived this long.

We'll know if I'm wrong in a couple weeks.

Second Update: This recent Emily Bazelon piece discusses the Douglas scenario and WHR's physical condition. Worth a glance.

Finance One Week of the U.S. Occupation of Iraq!

So I was playing with a mortgage calculator today and decided that it would be fun to see how much it would cost to finance one week in Iraq using a standard mortgage arrangement. I entered in $1 B USD as the principal, four percent as the interest rate (a bargain), over 30 years (monthly payments). The monthly payment would be $4.8 M USD, and the total pay-off would be almost $1.8 B USD over the life of the loan.

I don't know if even Oprah could afford that kind of monthly payment.

Now, I know mortgages and government borrowing work differently (although I don't understand much more than that). But it seems to me that the financial costs of Mr. Bush's War are not receiving the attention they are due. Especially from "small government conservatives." How much of the U.S. GDP in the next three decades will be consumed by taxes to repay the money we are borrowing to fund this unnecessary war? If you want government to consume less of GDP, can you really support this kind of massive expenditure, seemingly without end?

The reason we can't discuss these costs--because if you bring it up, the issue changes to supporting the troops. But the point is that the troops wouldn't need so much support if they weren't blasting through so much ammo, fuel (which is very expensive over in the Middle East, for some reason, even though that's where most of it is (?)), armor, blood, treasure, body bags, sweat, tears, and so on.

Here's the page I generated:

Principal borrowed: $1000000000.00
Annual Payments: 12 Total Payments: 360
Annual interest rate: 4.00% Periodic interest rate: 0.3333%
Regular Payment amount: $4774152.95 Final Balloon Payment: $0.00
The following results are estimates which do not account for values being rounded to the nearest cent.
Total Repaid: $1718695062.00
Total Interest Paid: $718695062.00
Interest as percentage of Principal: 71.870%

Looks like the Pistons will not repeat . . .

Under two minutes, and things look bleak for the Pistons. Oh well, there's always next year.

But will this mean that "SuperClutch" Robert Horry will have as many rings as M.J.? Really?

On a completely different subject, while watching the game, I was flipping to C-SPAN during commercials. I saw a bit of the Rumsfeld-Senate hearing today, and I actually heard Rummy say, in (an angry) response to a Evan Bayh question that it doesn't take a genius to kill people, that it doesn't take a lot of people to kill people, and that "18 people" killed 3,000 Americans on 9/11. Whaaah?? Weren't there 19 hijackers? And shouldn't the friggin' Secretary of Defense, who was in the Pentagon when it was crashed into, know that?

J.H.C.

OK--The Pistons are down by seven with about 30 seconds. This is over. Emery Out.

OK, OK--Really over now. Am I the only person who thinks Tim Duncan always looks, well, "put upon"? Near tears, even. Like he's never been fouled before this time, and he is terribly bothered by the very thought of it. "How dare you!"

Is This Our Valley Forge Moment?

David Brooks has another silly column today. It starts: "There's a reason George Washington didn't take a poll at Valley Forge." Hmm. This is a strange analogy to our current situation. It seems to me that G.W. was not really in our current situation at all. Indeed, in terms of military power alone, we are in the position of Lord Cornwallis, not G.W. I mean, we are the Great Power like Great Britain was (er, we are actually a SUPERPOWER, Fuck Yeah!); we are fighting a war overseas, against indigenous, irregular forces who are able to live off the land. Even the assistance of the French to the colonials reminds one of clandestine aid the insurgency receives from our enemies in the Middle East.

But the real point here is that rebels/insurgents/guerrillas measure success differently from superpowers. If a rebel movement can just keep going, scoring occasional P.R. victories and making the occupying power do things that undermine its support with the broader indigenous population, then the rebels can afford to lose every (or almost every) military engagement. Things can often look pretty bad, while the insurgents' trajectory is "upward." But a superpower can kill hundreds, thousands--is anyone else bothered by the constant references to bodycounts!--and still be on a downward trajectory. The key is whether the superpower is merely expending its power, week after week, month after month, for little or no gain. Dead bodies are not progress, no matter how one inflates the counts.

Body Count Brooks writes: "On the one hand, there are signs of progress. U.S. forces have completed a series of successful operations, among them Operation Spear in western Iraq, where at least 60 insurgents were killed and 100 captured, and Operation Lightning in Baghdad, with over 500 arrests."

But here's the kicker: "Others will say we shouldn't be there in the first place. You may be right. Time will tell."

Isn't that, um, backward? If it's true that "we shouldn't be there in the first place," isn't that obvious now, with the Downing Street Memo, the evidence of distorted intelligence on WMD, and so on? Isn't it clear that many of those who supported this war were misled into it? That this is all a big lie? We don't need "time" to "tell" us that?

As I blog this, breaking news about four car bombs in Baghdad today. Yeah, it's too early to tell. It's only been two years since the fall of Baghdad--a few car bombings every day, things are going swimmingly.

Too Much Kool-Aid

Know when to say when.

From Eschaton.

Best Movie Line?

The AFI has posted its list of the 100 greatest movie lines of all time. We watched this on tv last night--I know, I know--and I generally agree with the list. But can it really be true that John Wayne never spoke a top-100 line, in all the movies that he did? Not that I can think of a John Wayne line, per se, off the top of my head, that deserves to be on the list. But Wayne did so many movies, so many great movies. Anyway.

No surprise that Casablanca dominates the list. In my opinion, the best movie of all time. Certainly the best speaking lines. (As Roger Ebert says on the DVD commentary track, the plot doesn't really make a lot of sense.) But Bogart movies dominate the list, even without Casablanca. Check it out.

Ronald Reagan makes the list: "win one for the Gipper." Charlton Heston is on twice, for Soylent Green, of course, and Planet of the Apes. But no Paul Newman (although Cool Hand Luke makes the list), no Robert Redford, and no William Shatner. The last, of course, spoke the immortal line:

Kha-a-a-a-a-a-a-a-a-a-a-a-a-n-n-n!!!!

Shoulda been on the list.

Also, no Jimmy Stewart. Really? And did they recognize Bill Murray's best line in Caddyshack? And no Chevy Chase in Fletch? Oh, the debate could rage all day.

Sad

It's sad that supporters of the Bush Administration's Iraq war are still unable to come to grips with the facts. As I see it, supporters of the war have never come to grips with the facts that there are no WMD in Iraq, and there were none. That the inspectors, who were so roundly criticized by the administration prior to the war, were finding no WMD because there were none. That the administration was hellbent on war before ever going to the UN, before ever agreeing to the inspectors going back in; and that the administration had the inspectors pulled because their failure to find WMD was increasingly undermining the rationale for the war that the administration had already decided would happen. That the admininistration thought little about the post-war problems of rebuilding Iraq; and so on.

A majority of the American people now believe the war was a mistake. It was. That much is clear. But supporters of the war will not admit as much, and that is just, well, sad.

BTW, Hitchens may be the worst. The only thing worse than a person who is unable to admit that they were wrong is, well, an angry, bitter person unable to admit that they were wrong.

BBTW, a nice point on the Dick Durbin flap in today's Post.

Performance-Enhancing Drugs and Sports

Reading a new piece in Outside magazine, I was interested to find that one of the long-time leaders in the drug-testing field thinks that the cheaters will always beat the tesing regime, always staying one step ahead of the tests available.

My sense is that this will undermine elite sports, more and more over time. But in my view, this is a positive development. If people would stop watching sports and start participating in physical activity, we would all be better off. The correct response here is to emphasize that athletic endeavor is something that we can all do, and thus the emphasis our culture puts on being the fastest, the strongest, etc., is wrong-headed. If we re-focus on participation and away from Barry Bonds's inflated homerun numbers, we might start to address problems like childhood obesity.

Strange Juxtaposition

In today's New York Times, there are two interesting stories--actually at least three, but I'll get to the third in a sec. What's really interesting is how the article on jellyfish contrasts with the article on the Kansas school board and evolution. In the latter, the point is that scientists are "opting out" of the debate on creationism because the debate is really one of politics, not science--because you can't have a scientific debate with non-scientific creationists, whatever they call it today (i.e., "intelligent design"). But the Times reports the scientific work on " cnidarians," i.e., jellyfish, which is all about evolutionary theory. In other words, while scientists have become increasingly despondent about the politics of creationism, the elite consensus on eolutionary theory seems to be unaffected . . . . I would say that the "Two Americas" is alive and well.

The third interesting story was on the solar sail. Oh, my dreams of sailing the stars may some day come true. The best part, however, was that the satellite was launched from a Russian ballastic submarine! A peaceful use for military technology, at last.

Framing Torture

This Kos post makes the point that supporters of the Bush Administration's rather lax attitue toward human rights try to frame the issue of torture of detainees as critics caring more about "terrorists" than "our own." That is indeed the frame (or spin) that Bush supporters are trying to use.

The strange thing about this spin is that it is so dissonant with other conservative frames. One could argue, for example, that official or semi-official policies such as those that we know about undermine the value or dignity of life. Clearly, if the Right wants to apply some kind of inherent dignity of life argument to frozen embryos and permanently vegetative patients, the same kind of dignity should apply to suspected terrorists, too. Now, I know that the rightwing logic always excludes alleged criminals from the dignity frame, not to mention death-row inmates and the like. (Here's where the Bush Administration and the Catholic Church divurge, for example.) But supporters of torture of detainees--and maybe one should really say torture deniers as opposed to supporters--should think about this. The evil of totalitarian regimes is the willing (and willed) violation of human dignity in the name, ultimately, of power alone. The U.S. does not fit that description, but when our operatives willfully violate human rights in a way that is, at best, marginally related to protecting U.S. lives, we are moving in that direction.

Just to be clear: I don't give a flying fig for terrorists who actually attack the U.S. or other legitimate governments. But that doesn't mean that everyone who happens to come into our custody is a terrorist. My conservative friends should think about their own experiences with government bureaucracy for a minute, here. Unless the error rate is zero, abusing detainees will lead to violations of the inherent dignity of life. Now maybe you're comfortable with an error rate, if there is some value to the intelligence gained through abuse or torture of others. But do you really think that there is?

One final point on government. Policies are made at a pretty high level, but they are always implemented by operatives at a much lower level. So when we talk about what U.S. policy is, let's remember that whatever we think Rumsfeld, Sanchez, or even W. mean by the policy, they have to keep in mind (they are responsible) that those policies are ultimately in the hands of people who become government interrogators. And what are those people like, do you think? It is no good to say, the policy stops just short of x, when x is foreseeable and, really, inevitable, given the policy in place.

Hope This Is Not True

Link.

But who knows, with this group.

Home Again

Well, we made it home without any real hassles. I had a pretty good time out in Fort Collins, which is a nice college town. Met a lot of people and got reacquainted with some old friends. There are so many funny, smart people out there, and it really improves your quality of life to associate with them.

Now back to business . . . .

1960 Was a Long, Long Time Ago

Reading Before the Storm, Rick Perlstein's book on the 1964 Goldwater campaign. Perlstein describes (p. 106) the founding meeting of Young Americans for Freedom in September 1960. The most contentious issue at that meeting was whether the group's manifesto should mention God. The attendees split, 44-40 on that point (in favor of mentioning God). The 40 on the short end were largely atheists and agnostics.

Read that again. At a conservative meeting, almost half of the attendees were non-believers! I wonder what the ratio is today?

Now almost certainly, those atheists were hardcore Randians. Are those people still atheists? Do they still consider themselves conservatives? Maybe Wilson can shed some light on this question?

Would I? Really? (Religious Right Edition)

Today's New York Times Magazine cover piece on the anti-gay rights movement, p. 40: "Later, Racer was working for a greenhouse and got to know a lot of florists. 'You'd be amazed how many people in the floral industry are homosexuals,' he said."

Fort Collins Update

Last night, we went by car to Rocky Mountain National Park and drove to the Alpine Visitor Center. Then we hiked up to the 12,000-foot level, just as the sun was setting. The last light--very reddish--on the peaks was just beautiful. I wish I could post a picture (or that I had time to post a picture).

Other than that, not much going on except reading AP exam responses and hanging out with other readers.

Supreme Court and Public Opinion

High school students have some weird ideas about the Supreme Court. Let's just say that they're not altogether sure about the number of justices, the length of the term, and how justices can be removed from office. Many students appear to believe that the president can remove justices at will. Others think there are more than 9 justices, with 12 (confusion with juries?) the most common alternative. One student thought justices serve 14-year terms, and one student, clearly confusing the Supreme Court with the Senate, stated that there was a representative of every state on the Court! These sorts of mistakes don't occur that often, but they do occur often enough that one is not overly optimistic about the future of the country . . . .

Fort Collins Report

So things at the GoPo AP Reading are going swimmingly. My table is already reading, so we are free from round robins and all that rot. The question I am on is, unfortunately, a Supreme Court and public opinion question--one of my least favorite topics. And there's an argumentative reader at my table, which makes the experience less enjoyable and more stressful.

The weather is clearing up, and promises to get warmer.

The food is the same as always--dorm food.

I'll check out some other blogs and see what's going on in the wider world . . . .

Film Review: The Weather Underground (Dir. Sam Green, 2004)

This is a fascinating documentary about American revolutionaries who hoped to join a worldwide revolution but only ended up in total irrelevance once the war in Vietnam came to an end. The documentary shows footage of the principals--Bernedine Dohrn, Mark Rudd, and so on--both in the day and today, and includes lots of contemporary reflections by the principals on their actions--not a lot of regrets, though. It is interesting to think that U.S. college students could become violent revolutionaries. None of my students really seem to be likely candidates . . . .

But seriously, definitely worth a look if you're interested in the period in question. The few reflections of Todd Gitlin, SDS president for 1963-64, on how the Weathermen took over SDS and changed the organization, are probably worth the rental price.

Letter to the Editor, Utah-Style, or Burn Baby Burn!

Just packing my suitcase and found this, which I meant to post awhile back. This is a real-live letter to the editor, Salt Lake Tribune, Thursday, March 26, 2005:

Another burning bush?

In the annals of the Old Testament, where the Children of Israel are to escape their bondage, we find their leader, Moses, being spoken to by God in a burning 'bush.'

Is it today that again God may be speaking to us through another 'Bush,' where perhaps, once more only half the people are accepting the message?

Oren A. Nelson
Salt Lake City

Gee, Oren, is God really that awkward with language? I mean, I've always wondered about "I am that I am," but thinking of Bushspeak, that's downright eloquent.

But I guess in Utah, the idea that God speaks through living people is not so strange . . . .

Hard Uphill Climb of a Day

Today was a taxing day of home repair/improvement/maintenance with some committee work thrown into the mix--a Law and Courts section (of A.P.S.A.) awards panel that I was chairing. But that's done, and the house is in good enough shape for our trip to Colorado tomorrow morning.

Not to mention that this is the fourth (fifth?) day in a row of 90º-plus temperatures, so mowing the lawn, doing some things around the house--without air conditioning--was brutal. I've already showered twice, and I'm thinking that another shower would do me good.

I've noticed that no one has labeled this a heat wave yet, maybe because it's not in the mid- or upper-90's, only in the low 90's. But low 90's in mid-June is very unusual for Cleveland.

The Wrong Way to Read Raich, or, Defending Scalia

I've been meaning to criticize this Kos post for a day or so. In it, Kos points to Justice Scalia's vote in the medicinal marijuana case, Gonzalez v. Raich, as a sign of Scalia's political hackery. Kos apparently interprets Scalia's vote in favor of federal power in this case as hypocritical, given Scalia's pro-states' rights votes in federalism cases in the past. He seems to think that Scalia's vote was based solely on his views re: medicinal marijuana.

That seems like a really uncharitable reading of Scalia here. I mean, this case has always seemed to me to be an "easy case," governed by commerce clause precedents. Now a few members of the Court (ahem, Thomas, ahem) appear to have been willing to revisit those precedents, but Justice Scalia, like 5 other members of the Court, weren't. Is that hackery? I mean, haven't we all read Wickard v. Filburn?

As one of my students said in an email, he thought Justice Stevens's lead opinion was boring. How wouldn't it be, given that this case was governed by sixty year-old precedents that undergraduates read? And, solely as a matter of law, Scalia's vote was the right one in this case; Congress clearly has the right to legislate here.

Now one could criticize a particular justice's selective use of stare decisis, in theory. But one would have to look at more than one vote in one case to do that, and I'm not sure that any of the justices stand out, particularly, in this context.

(Disclaimer: I haven't read the opinions in Raich, yet.)

The Amish Are Different from You and Me

Yesterday, the better half and I made a quick trip out to Amish country (Middlefield Twp in Geauga County) to buy some Amish furniture. We're both big fans of Amish furniture especially Mission-style in a light oak finish (living room) and rustic cherry finish (dining room).

The Amish are a puzzle, though. They have businesses, chiefly for outsiders, that have electricity, even air conditioning (which was necessary yesterday), and phones, even cell phones on some construction sites. Amish work in factories, on construction jobs. They use computers at work.

But then they go home to homes without modern conveniences, and a real horse-and-buggy existence.

My query is why is it OK to use modern conveniences at work, but not at home? That seems like a rather convenient compromise with modernity--it's OK to use "electric" to make money, but not for lighting your house or running a washing machine or dryer? (There's always clothes drying on the line somewhere in Amish country.)

The better half also wondered about Amish economics (see, she is smarter than me). She points out that it can't be economically viable for an Amish farmer to plow his fields with a team of horses, when everyone else is doing it with a diesel tractor; or that it can't be viable to thresh your hay (or whatever it's called) with a horse, when other farmers are using a machine hat bales the hay for you. We speculated that the Amish must do farm business with each other (?). But in Middlefield Twp, they're not isolated in any obvious way. I'm sure that they're not that interested in profit, but how do they sustain themselves?

You Can't Parody This

David Broder's column in today's Post is titled "Proving the Value of Consensus." This could be the title of almost every Broder column. It's like a MoDo column entitled "More Shrill Harping on the President" or George F. Will calling his latest "I'm Smarter Than You (and the People I'm Writing About, Too)." A little obvious, no?

BTW, Broder praises a new bipartisan report on sentencing guidelines, which apparently recommended the following: "It suggests the creation of a sentencing commission to assess what is happening in courts around the country and recommend modifications as needed."

Don't we already have a Sentencing Commission?

Broder's main point, column after column . . . just publish this paragraph twice a week and get a new columnist:

"Consensus is not sexy or exciting, but it has its uses, as two reports issued this week remind us. When people who are smart and experienced and willing to engage honestly with each other address a problem, they can really move toward a solution."

No more. Please. Stop.

Clarification: I'm not against consensus, of course. But Broder seems to regard consensus as the end-all, be-all of existence. The fact is that there are important disagreements in U.S. politics today; the consensus that existed in Broder's youth has broken down. But he doesn't seem to get that. He seems to think that if elites just were "willing to engage honestly with each other to address . . . problem[s]," we could move toward a solution.

But one could argue that there isn't even an agreement on what the problems that need a solution are. If we can't agree on what the problems are, then how can we "move toward a solution"?

Shorter version of my view: Consensus has broken down, for a lot of reasons. Just praising the idea of consensus won't do anything to fix it. And that's all Broder has been doing for years.

Light Posting Alert

The next week or so will see some light posting activity here at FFB (I'm sorry to inform all four readers of the blog). The next two days are going to be packed with house-selling program-related activities plus preparations for the annual AP Reading in Colorado, which runs June 11-19. I will have some Internet access from there, but probably not a post every day.

Speaking of the AP Reading, one sad note is that I won't be able to share really stupid (or funny) student responses, because all the answers are copyrighted by ETS. We are strictly forbidden from even writing them down for our own amusement, and they will fire you for violating this rule (or so they say). This rule strikes me as ridiculous, but that's life.

A New First

I noticed today that Celine at Supra! has posted a link to FFB, just as I have a link to Supra! How exciting--cross-linked at last.

Celine has some interesting new posts at Supra (Im dropping the exclamation point now), BTW, including one on the evils of collective bathing. Really. Worth a look.

Movie Review: Friday Night Lights (dir. Peter Berg, 2004)

This is an enjoyable and well-made movie about the 1988 season of the Odessa (Tx.)-Permian High School Panthers football team, based on real events. (How much if "real," I don't know. I remember reading that people in Odessa didn't like the way the movie (or the book on which its based) portrayed them, and I can see that.) The team's rollercoaster ride of a season, from high pre-season expectations (and pressure), to struggles once the team's star player is hurt, to a little good luck, and so on, all the way to the final seconds of the state championship game against the dominating Dallas Carter Cowboys, is told through the perspectives of a few major characters, but especially the coach (Billy Bob Thornton), the quarterback, and the star tail back. The end is not a surprise, but it will keep you interested all the way.

First, let me say that Billy Bob Thornton is an underrated actor. Think of his range--from Slingblade to Bad Santa, from Primary Colors where he plays the James Carville character to this movie, where he plays a Texas football coach. Has he ever had a role in which he was not believable in that role? How often, when watching him act, do you say--that's Billy Bob Thornton, and not the character he's playing?

Second, let me say that it's been awhile since I've seen a movie that commented on so many elements of life in these United States. A commentary on that class of people for whom senior year in high school is the best year of their lives. A commentary on class and on differing expectations of high school friends--Chavez "has the grades" and thus is going to get out of Odessa, but Mike needs a football scholarship to escape, even to a program like Kansas Wesleyan. Then there's the heartbreaking story of "Boobie" Miles, the cocky superstar brought low by a cheap hit in a meaningless play in a blow-out game, his life prospects radically reconfigured in a split second. One minute, he's a blue-chip recruit. The next he's just a 17-year-old with a third-grade reading level.

Plus, a great commentary on the rabid fan's lack of accountability and respect for the people with the tough job--like coaching. And the difficult decisions a coach has to make, in the heat of the moment--put Boobie into a game, knowing that his knee is badly injured? Or take the heat on talk radio the next day for not doing so? The coach gets lots of advice, but no one else has to stand in his shoes when things go wrong.

In a surprise turn, Tim McGraw puts in a good performance as the jock dad of one of the players. Maybe Tim knows a little about that, seeing that he's the late Tug McGraw's son. And if you don't know who Tug McGraw is, you may be too young to read this blog, son. I found the reconciliation scene between father and son really touching, at the end of the movie.

I also liked the "period piece" nature of the movie--it's set in 1988. Boobie wears a Public Enemy jacket. I especially liked that.

If you haven't seen this movie, it's worth a rental.

Capsule Reviews

In the last week or so, I've read three books that deserve capsule reviews (or longer reviews, if I had time).

James Hynes, Kings of Infinite Space (St. Martin's, 2004). An interesting take on "cubeland" that makes the movie Office Space seem rather tame by comparison. The protagonist, Paul, is a failed academic (a term I despise) forced to work in a Texas state bureaucracy with an odd assortment of characters. There's a ghost story, a number of Hamlet allusions, including the title, a love story, and action, along with a lot of dark humor. There are actually a lot of literary references here, from Faulkner to H.G. Wells (indeed, a good part of the plot could be a spoof on sections of The Time Machine). Not the best book I've read, but certainly a fun read.

Dominic Sandbrook, Eugene McCarthy: The Rise and Fall of Postwar Liberalism (Knopf, 2004). Already mentioned in the blog, an interesting if highly critical account of McCarthy's political career. After reading this book, you won't hae many good things to say about McCarthy. Worth a look if you're interested in the 1968 election.

Marilynne Robinson, Gilead (F.S.G., 2004), winner of the 2005 Pulitzer Prize for fiction. This is a great book, captivating, even hypnotic to read. The narrator, John Ames, is dying of a heart condition in a dusty Iowa town, Gilead. The book takes the form of a long letter written by Ames to his young son, born late in Ames's life. The letter tells the story of three generations of John Ameses, all preachers, from the pre-Civil War violence in Kansas to 1952 (the year in which the novel is set). The story is really one of fathers and sons, including Ames's friend, Boughton, and his son, John Ames Boughton, the narrator's godson (and symbolic prodigal son). The novel includes very interesting discussions of Protestant theology and moving images of a dying man describing the wonder of the world he has known. Probably the best book I've read in a very long time, and a worthy Pulitzer winner.

Pistons in the Finals, Again

Well, I had my doubts down the stretch during last night's game, but the Pistons managed to shut down the Heat for enough of the fourth quarter to make it to the Finals yet again. I'm not sure what I think of their chances against the Spurs, since I haven't watched a Spurs game all year.

Barry Bonds's Attitude

In Bill Livingston's column in the Plain Dealer today, he notes that in Ron Kittle's new book, Kittle claims that back in 1993, when Kittie asked Bonds to sign a jersey for charity, Bonds replied, "I don't sign for white people." Kittie insists that that is what Bonds said, and the Giants and Bonds have simply said, "No comment."

I've never been one to beat up on Bonds, but this, coupled with the steroids allegations, makes me think that maybe it's time to join the Bonds Bashing Bandwagon.

My Favorite What If?

As everyone knows, Harry S. Truman defeated Thomas Dewey in the famous "Dewey Defeats Truman" election.

Now, few realize that Dewey's running mate in 1948 was the governor of California, Earl Warren. Yes, that Earl Warren. The Earl Warren who was nominated to be Chief Justice by Eisenhower after he took office in 1953. (I can't remember off the top of my head whether it's 1953 or 1954 for the appointment; it was a recess appointment.)

But if Dewey is elected in 1948, I don't see any way that Eisenhower is the Republican nominee in 1952; and even so, Eisenhower would not have owed Warren a favor from the GOP convention, a favor that resulted in a promise to Warren of "the first vacancy on the Court." Even if Dewey lost in 1952, former V.P. Warren would not have been nominated Chief Justice by the incoming Democratic president . . . .

So if Truman loses in 1948, no "Super Chief," which probably means Brown v. Board of Education has a different outcome. Who knows what happens in the field of civil rights, with separate but equal probably surviving at least another decade as the law of the land. Even if Brown had little immediate impact on the ground, the decision still struck down the legal basis for segregation. The due process revolution probably doesn't take place, or, at least, not to the extent that it did. (In this context, I will add here that Eisenhower also appointed William Brennan. I doubt that would have happened, either.)

I have a lot to do today, but someone remind me sometime to write my Richard Russell elected president in 1952 "what if?" It's a real hoot. It ends with President Nelson Rockefeller sending the 101st Airborne into Mississippi.

K Street Korruption

Read.

Update: I've read the Elizabeth Drew piece in the New York Review of Books now, and it's also a must-read.

Is This Really One of the Leading Stories of the Weekend?

If you click on the link in the title of this post, you will see that CNN, along with other major media organizations, is devoting extensive coverage to DNC Chair Howard Dean's recent remarks about Republicans. Now it's not my intent to defend those statements. But I do want to ask whether Dean's statements about Republicans are really one of the leading stories of the weekend.

Reality check time, people. The Republicans control the White House, the Senate, and the House. Seven of nine Supreme Court justices were nominated by Republican presidents (not that you'd know that from GOP criticisms of "judicial activism"). A majority of lower court judges were appointed by Republican presidents. And I think that a majority of governors are also Republicans.

At this point in time, the Democrats are not news. Especially not the head of the DNC, this far out from a national election. Dean just doesn't have that much power . . . .

There was a time when the media allegedly played a "watchdog" role, keeping in check the powerful. Now, apparently, their role is to keep tabs on what the relatively powerless say, to rooms full of partisan supporters, and then to ask--as I saw on a morning talk show--whether those statements are good for the Democratic party. Oh. Is that why they're so concerned?

Update (June 6, 8 am): Still a story Monday morning . . . .

Update update: The ever gutless Joe Biden's criticisms of Dean were covered on the NBC Nightly News tonite, June 6. Good work, folks (Andrea Mitchell, that centerfold of liberal media bias). I'm sure all the real news of the day was covered in the rest of the telecast--the Aruba disappearing blonde girl, the Michael Jackson trial, and maybe one last story on the runaway bride, and, of course, the damage that Howard Dean is doing to the gutless party of Joe Biden, John Kerry, and Joe-mentum . . . .

What If? Eugene McCarthy Version

According to the Sandbrook biography, McCarthy's independent run for the White House in 1976 could have shifted the election to Ford had McCarthy been able to get himself on the New York ballot--where his polling numbers suggested that he would have drawn enough liberal support from Carter to give the state's electoral votes to Ford.

If Ford wins in 1976, then a Republican is in the White House for those "malaise" years in the late 1970s, post-Watergate, post-Vietnam. Ford has to deal with the Soviet invasion of Afghanistan and the Iranian hostage crisis--assuming, as I think one should, that these events would have occurred under Ford's watch. If that was the case, then could the Republican Reagan have ever been elected in 1980? Or would the country have looked to a Democrat after 12 years of G.O.P. presidents? And if Reagan isn't elected in 1980, who is? Not Jimmy Carter. My guess: Teddy Kennedy. Given his support in the Democratic primaries in 1980, I think he would have been a strong candidate in the alternate universe primaries, and the Democratic nominee in alternate-1980.

The strange thing here is that McCarthy hated the Kennedys, and this would have been an ironic outcome, had it come out that way.

I hate to speculate any further, but one should ask whether Paul Volker becomes head of the Fed under Ford (nominated by Carter in 1979). It was Volker, of course, who raised interest rates to (I think) 18% to short-circuit inflation, causing economic pain in the short-run but triggering, with other factors (of course), the 1980's boom. If Volker isn't at the Fed, who is? If the Fed is not as counter-inflationary in that period (esp. 1979-1981), what happens to the U.S. economy? Runaway inflation? If so, then where are we today?

I'll let Curat Lex ponder the international, Cold War consequences of a Ford victory in 1976.

Tigers at .500

I just wanted to post to note that the Detroit Tigers are 26-26, .500, on June 4. Despite being swept by the Yankees last week. So things are looking up in "Hockeytown." "Hard luck" pitcher Nate Robertson (2-3), Jason Johnson (4-4), and "staff ace" Jeremy (Jeromy?) Bonderman (6-3) all have E.R.A.'s under 4. Surprising Brandon Inge is still batting .312 (.874 O.P.S., 33 R.B.I.), although no one except Rondell White (.314 B.A.) is still batting over .300. Dmitri Young (.261 B.A.) has 9 HR, 26 RBI, and Craig Monroe (.217 B.A.) has 7 HR, 33 RBI.

Another Westbrook Rant

There hasn't been a lot of baseball posting lately, mainly because I have been either traveling or too busy to really watch much baseball yet this year. But I did get to see a couple innings of the Tribe at White Sox last night, and my old friend Jake Westbrook was on the bump. The FSN Ohio play-by-play and color guy kept up a steady "Jake is a real hard-luck pitcher" dialogue during the time I watched.

Now, it's true that Westbrook has not received a lot of support from his teammates. Only 2.7 runs, on average, scored in his 12 starts.

But let's be clear--his E.R.A. is 5.30 (with a 2-8 record).

So even if, say, the Indians scored 3.7 runs a game behind Westbrook, he'd still be struggling. There is no such thing as a hard-luck pitcher with an E.R.A. over five.

It's Friday Afternoon, So There Must Be News from the Pentagon

This sounds like B.S. to me. But maybe some readers of this blog "inadvertantly spray" their urine around more than I do?

The most recent, and perhaps strangest, case of mishandling was documented on March 25, 2005, when a detainee complained to the guards that urine came through an air vent in his cell and "splashed on him and his Koran while he laid near the air vent." According to Hood's investigation, the guard who was responsible reported himself to his superiors and was reassigned to gate duty. The detainee was given a new uniform and Koran.

"The guard had left his observation area post and went outside to urinate," according to a summary of the incident. "He urinated near an air vent and the wind blew his urine through the vent into the block."

If that doesn't sound like a made-up story--"the wind blew my urine!"--then I don't know, well, urine.

Link.

Beware the Straws of Zion

Here's a quick anecdote (of the humorous variety) from the trip out west.

We were having lunch at the Castle Rock Diner in Zion N.P. It was Memorial Day weekend, and the park was packed with families, etc. While I was waiting in line at the soda machine to fill up our drink cups, there was a young boy in front of me, at the counter, with a handfull of straws from the straw dispenser. It was the kind of straw dispenser where you push down the lever and a straw slides down out of the dispenser (a very common design). Well, this young boy was trying to put his handful of straws back into the dispenser. I mean, his hands were all over those straws! After trying to force the straws back up into the dispenser, he lifted the lid of the dispenser and put them all back into it at once. At just about this point, his mother spotted him and yelled at him; but the straws were back in the dispenser.

Word to the wise: Don't use the straws if there are kids around.

Ten Most Harmful Books of the 19th and 20th Centuries

Human Events Online has posted a list of the Ten Most Harmful Books of the 19th and 20th Centuries. It's quite a hoot. I find it hard to believe that the Kinsey Report was really the fourth most harmful book of the last 200 years.

But instead of making fun of the list, I want to mock the idea of the list itself. Are books really harmful? Take an example from the list: Mein Kampf. Does anyone really believe that this book caused the Second World War and the Holocaust? That it was even a contributory cause? How many Nazis even read Mein Kampf? (I don't know if Albert Speer ever read it, for example.)

I have a copy of MK in my office, and it has never harmed me. Not so much as a paper cut.

Or to take another example: The Communist Manifesto. Did Marx and Engel's turgid critique of competing forms of socialism cause the Russian Revolution? Did reading this book ever make anyone a Communist?

Conservatives like to say that "Ideas have consequences." I agree with that, in a sense. But books? I think that these folks are giving books a little too much credit. The best case that could be made would be that, in the opinion of these people, the ideas expressed in these books, when put into practice in the real world, were harmful. But books?

BTW, Comte made the list. Has anyone out there actually ever read Comte? (I haven't.)

Just to be clear: A more useful exercise would be The Most Harmful Ideas of the 19th and 20th Centuries.

Thoughts on Eugene McCarthy

OK, so I'm reading this new political biography of Eugene McCarthy called Eugene McCarthy: The Rise and Fall of Postwar American Liberalism, by Dominic Sandbrook. I may write a more formal review later on, but I just wanted to share one thought on McCarthy's personality.

Eugene McCarthy (not to be confused, as primary voters sometimes did, with "Tailgunner" Joe McCarthy) was a seriously intellectual guy; in fact, as a young man he was kicked out of the novitiate (for the priesthood) because the headmaster thought he liked to read too much. He was not a people person, and he was not a terribly good campaigner. He was an awful stump speaker, even in his 1968 primary run. His issue positions were usually right in line with Democratic liberal positions at any given time; he was not particularly courageous in taking positions (prior to his 1968 primary run), and he could be downright convoluted in explaining his positions when he wanted to be.

McCarthy was in the Senate for quite awhile but did not amass an impressive record of legislative achievement; indeed, observers often suggested that he was bored with life in the Senate.

Does that sound like anyone else you might know?


Hint: This other person also ran for president (and lost).


Hint: This other person's name is John Kerry.


Just a thought.

First Issue of Seton Hall Circuit Review

Sometime last fall, an old grad school friend contacted me and asked if I'd be interested in submitting to a new journal that students at Seton Hall law school were putting together, called Circuit Review. The idea was that there was not a journal dedicated to scholarly research on the courts of appeals. Since that is mainly what I've been studying for the last few years, I talked to the EIC about a few pieces I was working on, and he expressed interest in a follow-up piece on horizontal stare decisis that I had intentions of writing. So I wrote the paper and submitted it. The first issue of the new journal came by UPS yesterday, and my piece was the lead article in the new journal!

OK, so not a terribly big deal. It wasn't the lead article in Harvard Law Review or anything. But not too shabby.

BTW, Judge Alito of the Third Circuit wrote the issue introduction. He's frequently mentioned as a possible Supreme Court nominee (he's also known as Scalito).

New Keegan Book: Crack Pipe?

While in the Phoenix airport today ("Sky Harbor"), I noticed that John Keegan has a new book out on the Iraq war. The back cover blurb suggests that one of the questions addressed is how the U.S. forces (I believe the copy says U.S. and not Coalition forces, but I could be wrong) defeated an Iraqi army twice its size. Huh? First, the superiority in firepower and airpower should be obvious; not sure how much more detail would help me understand the conflict better (?). But second, isn't it the case that the Iraqi army largely--not entirely, but largely--just faded away?

But on a deeper level, isn't this book, well, a little early? I mean, aren't we still fighting the Iraq war? Seems like there are U.S. casualties every day, and just in the last week-10 days we had Operations Matador and Lightning. Isn't this like "The Great War," publication date 1916, or, maybe (?) more appropriately, a treatise on the Vietnam war published in 1967 (or 1971?). Not to prejudge the outcome of the current conflict--and, as John Kerry used to say, we can't fail in Iraq--but can we write the post-mortem while the body is still warm?

Which raises the question(s): Is Keegan cashing in? Selling out? Hitting the crack pipe? A little of all three?

OK, maybe it's the sherry and not the crack pipe.

Escape from Utah

Well, we're back from our vacation. We had a great time, managing to hit five national parks--Arches, Canyonlands, Capitol Reef, Zion, and Bryce Canyon--as well as a few other sites and Salt Lake City, including Temple Square and other Mormon sites. We did some very strenuous hikes--Fairyland Loop Trail in Bryce, Angel's Landing in Zion, Landscape Arch with the primitive trail return in Arches, and the 1.5 mile hike straight up a mountain of slick rock to see Delicate Arch at sunset. It's hard to say what my faorite part was--maybe a few more thoughts on that later.