Freedom from Blog

Don't call it a comeback . . . .

Friday, September 30, 2005

Diversity and the Court

One of the leading candidates at this point for "the O'Connor seat" is Judge Karen Williams, a Fourth Circuit judge from South Carolina. She's a woman, but would a white woman named Williams (her married name--her maiden name was Johnson) really add diversity to the Court?

This is not to say that diversity should be the number one goal, but if Bush's nominees are "the whitest guy ever," John Roberts, and Karen Williams (nee Johnson) . . . then let's just say that diversity didn't really factor in.

Apparently, Judge Alice M. Batchelder of the Sixth Circuit has been interviewed by the president. Even if you don't have any other reason to pull for Judge Batchelder, consider how much better it will be to say "Justice Batchelder," as opposed to "Justice Williams."

Any predictions? I think I'm going with . . .

Film Review: "High Plains Drifter" (dir. C. Eastwood, 1973)


I think that the Clint Eastwood Westerns film festival has just about run its course. But I had to finish up with this one, which is a favorite of mine because (1) it has such a tight narrative structure: rider rides into town, plot, rider rides back out; and (2) the plot device of painting the entire town red, transforming it into an earthly version of hell, is so great. The story tracks the "high plains drifter" as avenging angel, or vengeful spirit, returning to a town where Marshall Jim Duncan was killed because he had discovered the town's secret. The secret itself is not so interesting--the mine around which the town's economy is based is actually on government land. Ho hum. Would that matter? Aren't there plenty of privately operated mines on government land? The townspeople conspire with a band of outlaws to do the marshall in, but then double-cross the outlaws. Now the outlaws are being released from prison and are going to come back to get their revenge. The townspeople are afraid, but then the Stranger rides into town . . . after some acts of violence to prove his mettle, the townspeople promise him "anything he wants" if he will protect them.

Ah, there's the deal. Is it a deal with the Devil? The Stranger becomes a kind of Devil, but given the sins of the townspeople, this Devil is less the source of temptation than the dispenser of divine justice (Hell in a classically Christian sense).

Worth a look, if you haven't seen it in awhile.

Thursday, September 29, 2005

Day One of the Roberts Court

That would be, um, September 29, 2005. Today.

What will the Roberts Court bring? I don't know, and you don't either. Even though I'm not optimistic, from a jurisprudential point of view, I'm interested to see what happens.

Weren't we all bored before? I mean, no turnover since 1994.

We are living in interesting times . . . .

Tom DeLay on Television?

Last night Tom DeLay, newly indicted member of Congress and former House majority leader, appeared on at least two television programs, "Softball" and "Insanity and Colmes." And on both shows, he went right after the prosecutor, Ronnie Earle, accusing him of engaging in a partisan witchhunt, of conspiring with Nancy Pelosi to get him.

I can say one thing about these appearances: I sure hope that DeLay was on these shows against the advice of counsel. Because I'm pretty sure that his statements in his interview with Sean Insanity were (almost?) enough to support a conspiracy conviction. I don't have a transcript, but he essentially admitted that TRMPAC had engaged in laundering corporate funds, that he knew it was going to do that, and that he had helped set it up . . . to do that. He seemed to think that the fact that he had never participated directly in any of these transactions saved him, somehow, or that there was some loophole in the Texas law that made what he did technically legal. But this is a conspiracy case, and conspiracy is a very loose doctrine. He basically admitted that he was on that train. If the train was an agreement to break the law, he's screwed. By his own words. In fact, even if some Clintonesque loophole applies, he might still be guilty of conspiring to violate the law, even if the law was never violated.

Politics aside, I couldn't believe my eyes or ears last night. The judge in this case should issue a gag order, just to save DeLay from making Earle's case for him (any more than he already has).

In political terms, I guess that DeLay believed he had to aggressively attack the charge to undermine it. But not a wise legal maneuver.

Footnote: I haven't had time to study the issue, but it's possible that Texas law only criminalizes a knowing violation of campaign finance rules, which could create a possible defense where DeLay would say that he believed his actions to have been 100% legal. (The law doesn't usually allow mistake of law as a defense, for obvious reasons.) That seems to be the word coming out of the 'papers this morning. Even if such a defense exists, however, it's still a mistake to go on television and shoot your mouth off.

Office Pool

Yesterday I attended an American Constitution Society Supreme Court Preview luncheon, which was held over on 12th Street at the offices of Arnold & Porter. Very nice digs. But anyway, Walter Dellinger, who clerked for Hugo Black in Earl Warren's last year on the Court and was acting SG under Clinton for a year, was on the panel, and he made an interesting point. It went something like this:

The office pool this year is how many opinions will Justice O'Connor write? Since Justice O'Connor has retired, pending confirmation of her successor (Dellinger said Warren was the first person to do this), if there's a delay in confirming the president's second pick, then she might be there, even as long as a whole year. (That, btw, is what happened to Warren, with the Fortas mess.) So if she's there for a whole year, she might write eight or nine opinions. But if a successor is confirmed more quikly, she might not write any.

It's pretty clear that Justice O'Connor's vote cannot count in cases formally decided after her successor is confirmed. So that might mean some 4-4 decisions, if a successor is named relatively quickly. And those probably get put over for re-argument before the whole Court. (I add:) The contingency thing might also mean that Chief Justice Roberts (I don't think this is jumping the gun) and O'Connor herself might be reluctant to assign opinions to her. So even if she stays, she might not write a lot?

Anyway, something to think about.

Dellinger also voiced his concern that we might be headed for what he called a "train wreck" with this second nomination. If so, he said that a "nuclear option" showdown might result in a "legitimacy" debate over whether O'Connor's successor was legitimately confirmed.

Let's hope that that doesn't happen.

Wednesday, September 28, 2005

Film Review: Cry_Wolf (dir. J. Wadlow, 2005)

As some of you know, I'm a real fan of the cheesy horror movie. This slasher-style movie is not as bad as many of the reviews I've read made me think it would be. It's similar in some ways to April Fool's Day (1986), in that one is never sure if the killer is really a killer, or whether the whole plot is an elaborate prank. I won't spoil the ending, which includes quite a twist, but I will say that one is never sure what, exactly, is going on, or who it is wearing the orange ski mask. Plot in one sentence: Students at a boarding school create a serial killer rumor, in an email sent to the entire student body, only to find themselves stalked by "the Wolf" they have created.

The thing I liked about this movie was the use of new technologies to keep the genre lively (that's the underscore in the film title). For example, the characters and the killer communicate using instant messaging. The cell phone ringing at an inopportune moment . . . you can't hide from the killer if your ringer is on, people. Not if the killer has you on speed dial. Remember that. And I was wondering how long it would be before we saw a scene where a character about to get killed sends a picture message of herself on her camera phone with the killer standing right behind her. The scene in the library stacks, with the motion-control-sensor lights going on and off as the killer approaches (?), is pretty creative.

The cast is limited in the usual horror movie way. Young actors, hired mainly because they are good looking. But one of the actors, Lindy Booth ("Dodger"), has a future in B-movies, I think.

Best of all: Jon Bon Jovi is in this movie, people. And he plays . . . get this . . . a journalism teacher.

Not a great movie, but not that bad, if you like this sort of thing.

Tuesday, September 27, 2005

Shooting an Email


"I'll shoot you an email on it."

I've been thinking about this phrase for awhile now, and it came up at a meeting today. Why do people say, "I'll shoot you an email"? This seems to be pretty common usage today. Why would "shoot" be an appropriate verb for the action of emailing? I agree that "send" is pretty boring (as in, "I'll send you an email"), but "shoot" is just so aggressive and weird. Maybe it's that the phrase makes sending an email sound cooler. But really. How many "cool" emails have you ever sent? And even if the email's content is "cool," sending it is, well, just pushing a button.

Part of it must be because email is electronic. I mean, you'd never "shoot" someone a letter, now would you? But not just electronic. Because you'd never "shoot" someone a phone call. So part of it is the one-sided nature of an email. A single email is not interactive.

My one request: If you are going to continue (or start) using this phrase, every time you "shoot" someone an email, say "Fire" when you press the send button. Just like I'm doing right now. "Fire."

Monday, September 26, 2005

"Pit Bull" Kolata?

A well deserved promotion for Dave Kolata, one of a handful of people included in a certain blogger's wedding photos. The Trib article will only make sense, however, to those of us who know Dave from back in the day.

Link.

Btw, I have no doubt that DK can learn how to manage the organization. But if you'd asked me, years ago, which of my grad school colleagues would become executive director of a major public interest group before the age of 40 . . . let me just say, it probably wouldn't have been the Pit Bull. (Who would it have been? Among my friends, not an easy question.) But that's why friends are so interesting. You're never sure what they're going to do next, and where they're going to end up.

Update: After thinking about it, "Pit Bull" just doesn't work as a nickname for DK. I could live with "the Bull," but Pit Bull is not quite right.

Film Review: A Fistful of Dollars (dir. S. Leone, 1964)

Well, this is the one that started it all. If by "all," one means spaghetti Westerns. This film is much less ambitious than For a Few Dollars More and The Good, the Bad, and the Ugly. It is also a remarkable rip-off of Yojimbo.

This is a good movie, but I think I prefer Yojimbo. Clint is great, as always, and the other characters are well played. In terms of spaghetti Westerns, I would rank this third, behind (in order) For a Few Dollars More and The Good, the Bad, and the Ugly. Nothing against the movie, it's just not as good as the others.

Caption Contest

Sunday, September 25, 2005

I Hate to Go All Fuller Court on My Readers, But . . .

I note that two freebloggers disagree with my post on forcing people to evacuate their homes in a natural disaster. This is my argument, in a nutshell:

Citizens have a right to their lives, liberty, and property, and cannot be deprived of these interests without due process of law. The fifth amendment protects these rights and interests against federal invasion; the fourteenth against state invasion. Now, I would agree that the due process clause is mostly procedural; but more than 100 years of precedent say that these clauses have substantive content, as well, and that citizens, at least, have rights that government cannot take away, even if the government follows procedures in keeping with "the law of the land." My take is that the right to remain in one's home, even in the face of a hurricane, is a combined liberty-property interest citizens have that, well, is not subject to ordinary legislation. If there were an overriding government interest, maybe. But just maintaining some vague sense of law and order, and the theoretical possibility of dead bodies causing disease . . . I say, not enough to override these protected liberty and property interests/rights.


But reasonable minds can disagree. Clearly. Just wanted to make my position clear on this.

Sad News, Case Alums

I know that some readers of this blog knew Alan Bargmeyer. Even though he marched to the beat of his own drummer, he was a likeable enough guy. This is sad news.

Dear Members of the Case Community:

It is with great sadness that I write to you about the death of one of our graduate students, Brian Alan Bargmeyer, who was a first-year graduate student in biochemistry. Alan, as he was known by his friends and colleagues, died last night.

We send our condolences to the people personally connected to him: his wife, who is also a student at the university, his other family members, friends, and to his colleagues in Dr. Paul Carey's lab and the Department of Biochemistry, where he studied.

Brian was an excellent student who had a first career as an attorney before embarking on his studies in biochemistry. He was committed to his work and very friendly to everyone in the lab. He had earned his bachelor's degree in biology in 1994 and a law degree in 2000, both from Case. His death is a sad loss for all of us on campus.

Counseling is available from the University Counseling Services, located in the Sears Building, Room 201, on the Case Quad. The phone number for the services is 368-5872. I urge anyone who feels the need for assistance during these difficult circumstances to use walk-in counseling services from 2:45 to 4:30 p.m. Monday through Friday. After 5 p.m. students, faculty, or staff with a particular need can call the emergency contact number at 844-8892 and ask for the university counselor on call.

Information about memorial services for Alan will be forthcoming.


Sincerely,

Ralph Horwitz, M.D.

Salad Days, Meaning of

I've been having this discussion with a few people lately, namely, what does "salad days" mean, and where does the phrase come from? The answer, as in so many cases, is that the phrase comes from Shakespeare, Antony and Cleopatra: "My salad days,/ When I was green in judgment, cold in blood."

This dictionary defines the term as "A time of youthful inexperience, innocence, or indiscretion." My theory has been that, from the perspective of an old(er) person, the best days of youth are those when one doesn't have a lot of money but is happy. I think of the first days of my married life, when I had so little (in terms of money) and yet so much (in terms of love, and friends). In those days, one is green, like salad, er, greens. But one is also poor, at least relatively speaking, so one . . . eats salads. Apparently, "salad" is more a reference to being "green" rather than (relative) poverty.

I'm not sure the cold-blooded angle fits in, though. I'm not sure I've ever been "cold in blood."

Btw, if you are thinking of starting your own blog, "Salad Days" is a great name for one.

People Are Weird

Smurf fan fiction?

Link.

Thursday, September 22, 2005

Light Posting Alert: Travel Weekend

We're on the road through Saturday night, so I don't know how often I'll be able to post. I'll be watching Hurricane Rita, the playoff races in the AL, and the big (?) peace march in D.C., which I won't be in town to see in person. Maybe I'll have some good pix from our trip to Colonial Williamsburg.

Do You Believe? (Indians Edition)

When Travis Hafner is being discussed as an MVP candidate, and the Tribe is only 2.5 games back in the AL Central, it's time to ask, "Do you believe?" I have to admit that I was not a believer, early in the season. I was wrong, oh so wrong.

The Tribe has four games at KC, three at home against Tampa Bay, and the last three games of the season at the Jake against the White Sox (oh, to have some tickets for that series). That's seven games against teams just waiting for the season to be over. The Chisox have a similar schedule, with the Twins at home, then the Tigers on the road before that big series in Cleveland. The Chisox have three fewer losses. So the schedule favors the Tribe, but the standings favor the Chisox.

My prediction: Indians make a good show and win the division.

Let's go Tribe.

Wednesday, September 21, 2005

Logan's Run

CL makes a funny Logan's Run reference to this post. What he may not know (?) is that is one of my favorite sci-fi movies. But I wasn't thinking of Peter Ustinov and his cats . . . let's hope that vision of the future is a bit off.

Four Names to Dread

Stan

Tammy

Vince

Wilma


Why? Those are the four remaining names for "named storms." After Rita, what Gulf cities will be left?

"It's Hard Work. Hard. Work. I think about my work . . . every day."

Too Good to Be True


So when we moved to D.C., I received a promotional offer from [a certain bank] of $ 100 just to open a checking account with them. Now, I needed a new checking account, sort of, so I thought that this sounded like free money. (Free money is my favorite kind of money.) I opened the account at the end of July, but I still have not seen a dime of that $ 100.

About two weeks ago, I called customer service, and they told me I had to contact the "incentive redemption hotline." But first, they had to mail me something--not email, not give me a number over the phone, but snail-mail me something. (I guess this is an anti-fraud device.) Then I waited, and finally received, not a check, but a letter telling me to call the incentive redemption hotline. So I did that. You know it's trouble when the woman on the incentive redemption hotline mocks the ineffectiveness of the customer service people. ("Oh, I bet you called customer service," she laughed. I can do without your inter-departmental rivalries, thank you.) Then the incentive-redemption woman gave me a code, which had to be called in--get this (!), in the age of the Internet and ATM's everywhere--by someone from the branch at which I opened the account (!!). So I trudged over there, on my lunch break today, and waited in line for customer service. The people there were sure I was working some kind of scam. ("A hundred dollars? Just to open an account?") But I had the documentation, so they . . . finally . . .  called the incentive redemption hotline and discovered that it was legit. So they eventually provided the incentive redemption people with the needed information. Or at least I guess they did. I was sitting right there, and there was little information tranferred at this time . . . .  They said I should receive the check in "about two weeks."

There's that old saying--if it sounds too good to be true, it probably is. Still waiting for my money.

"Forced to Leave"

The better half and I have been talking about this for a couple of weeks now. We're both convinced that the Government (federal, state, local) lacks the legal/constitutional power to actually force people out of their homes in a "mandatory" evacuation. The relevant comparison is the right to refuse life-saving medical care. The Government cannot force you to save your own life. People have certain privacy rights, and these privacy rights are very closely tied to their homes. Indeed, this is partly a property right, or mostly a property right, depending on how you want to frame it. So I think Government lacks the authority to force people out of their own homes; it can conduct a mandatory evacuation of Government property, but only because there the Government is the landlord.

Now, Government has the authority to say: "If you stay here, we can't come back and save you. You're on your own, starting at H-hour." Again, the analogy is refusing life-saving medical care. If you decline, then you're on your own. But people have a legal right to decline to be saved. I'm convinced of that.

The reason that has been bothering us is that news anchors seem absolutely fascinated by the possibility of police or soldiers forcibly removing people from their homes. Now, generally, Governments don't do this, because it would be very impractical, not to mention a poor use of resources. But I think that there's a good substantive due process argument against it, too.

Btw, Government could condemn the properties, in keeping with the Takings Clause (although there is that "public use" problem). But it can't just issue a "mandatory" evacuation order and then force people out of their homes.

Melancholy Post on the True Lesson of Katrina

The article on the destruction of Plaquemines parish in today's Post brought back to mind the lesson of Katrina that I've been thinking about.

Link.

The true lesson of Katrina is not political or bureaucratic or even scientific. It's historical. The devastation wrought by Katrina reminds us that everything that humankind builds and creates is doomed to destruction. This is a lesson that Americans, in particular, are loath to learn. Think of the buildings simply destroyed by Katrina, the artwork in the museums, the medical experiments at Tulane and elsewhere, the rare documents and irreplaceable records--all wiped out in one fell swoop. That fate awaits almost everything that exists today; eventually, it will befall everything when the dying sun expands to consume the earth in about five billion years. Not even the sturdiest ruins of human civilization will survive that inferno.

As most of you know, I work in downtown D.C., a "new" city barely 200 years old. In the last few weeks it's been hard not to think about the place in 500, 1000, 10,000 years. What will be left in thousands of years? What will be there, in the place of buildings that I know and love? Will D.C. be like Rome or London, with layer upon layer of history, or will it be ruins only? What will remain of the artwork, the records, the people that lived here? Not much.

Katrina demonstrated this lesson in a sudden destructive onslaught. Most of the time, the destruction is slower. But it is always ongoing. And the end is always, in a sense, in sight.

Now get back to work.

Tuesday, September 20, 2005

Weird Sights

So tonite, on my way home, there was a kid riding a bike through Union Station. I mean, pedalling the bike in the mall. Weird.

Constitutional Restoration?

So, have any of you checked out the proposed Constitutional Restoration Act (S. 520, H.R. 1070)? It provides that the federal courts, including the Supremes, do not have jurisdiction to hear cases seeking relief against any official concerning that official's acknowledgement of God as the sovereign source of law. But it gets even better. After stripping federal courts of subject matter jurisdiction, it states that state judges are no longer bound by Supreme Court precedents. Then, it states that federal judges who exercise jurisdiction, in violation of the Act, are subject to impeachment (in other words, doing so is not "good Behaviour").

Extra bonus: The Act also makes reliance on foreign law in interpreting the U.S. Constitution illegal.

OK. Now, some of you may agree, at least in part, with this Act. And I don't want to argue with the clearly un-constitutional parts of the Act. (Can you really make Supreme Court precedent non-binding, by statute? But enough.)

My query: Exactly what Constitution is this Act restoring? Help me out, People. Really.

I mean, if you want to bring the Stuarts back, with the divine right of kings, and all that, then just call it the Restoration Act.

Paging Jefferson. Thomas Jefferson. Come in, Jefferson . . . .

Monday, September 19, 2005

Constitutional Revolutions, Great and Small (Or, Sudden and Gradual)


I was thinking this morning of an email exchange I'd had with a friend and former colleague a few weeks ago. He was concerned that the Roberts nomination tied to another nomination could lead to a "Constitutionbal Revolution," comparable to the "constitutional revolution, limited" of the New Deal period. I am not so inclined, for the reason(s) that follow(s). (Setting aside, for the moment, whether a constitutional revolution may be a good idea at this point.)

The idea of a "constitutional revolution" is pretty vague, but it basically boils down to the Court overruling a bunch of its precedents and dramatically changing course, just as the Court did after 1937--permitting expansive congressional regulation of the economy, the whole Carolene Products footnote "thing," and so on. The reason I don't think that this will happen is that there just aren't that many precedents for the Court to overrule at this point. Almost the entire discussion here is about Roe, and from the choice perspective, that would be a big deal. But. I think the Court is exceedingly unlikely to flat-out overrule Roe, after Casey, and after chipping away at the foundations of Roe for the last decade-plus. I mean, Roe still stands, but states have a lot of power to regulate abortions today. That power might be expanded, but in practical terms, the anti-abortion forces have already won in broad terms. In many parts of the Union, it's just not possible to get a legal abortion. Little would be gained, in practical terms, in going the rest of the way. Sure, there are the life-absolutists, like Brownback, but the Court would take a huge hit in its prestige by going along with that crowd. And the fact is, you still have Stevens, Kennedy, Souter, Ginsburg and Breyer, even if the O'Connor seat goes to an ardent pro-lifer, willing to vote to overrule Roe. (The name of the game is five votes. If you're pro-choice, Stevens is the key vote. If you're anti-choice, then Stevens is the key vote. What I'm trying to say is that Stevens is the key vote, barring unforeseen events.)

Once we're past Roe, what other precedents are there to overrule? I have a hard time coming up with a list. Lawrence? OK, so the states can recriminalize same-sex sodomy. The capital punishment for minors case (Roper)? I guess it's possible, but any such case would be in an unusual procedural posture, which, if you're interested in such things, you can puzzle out for yourself.

The sad thing is that we've already lived through the constitutional revolution. It was just so gradual that we didn't notice. (Remember the one about the frog in the pot of water? As the temperature increased, he never noticed.) The courts and Congress have chipped away at older precedents; they've put a strangehold on access to the courts for all sorts of constitutional claims. At this point, what more could they realistically do?

Not much. Not really. The administrative state is a given. Plus, the Republicans have learned that the real way to undermine regulation is to control the executive branch (personnel) and Congress (budgets) rather than head-on through eliminating agencies. (Not to mention heightened standing requirements in the courts, which undermine public interest litigation.) Sure, we might get a few "property rights" decisions, undermining state regulations, but the battle is largely over at the federal level. (The air and water lost.) Conservatives might chip away, further, at civil rights, or, more properly, access to federal courts for civil rights claimants, but I can't see anything big there. All that First Amendment stuff? The wall between church and state is already pretty porous, with school vouchers and all. I guess they could restore prayer to the public schools, giving the religious Right something of a symbolic victory. But really, again, in practical terms the levels of non-compliance here are so high that this would be purely symbolic. New restrictions on speech would affect large corporations, so I don't expect much along those lines. Further restrictions on habeas petitioners? What would be the point?

The constitutional revolution has already happened. We might still teach the Warren Court precedents, with their expansive definitions of rights, but the law today is all about the Rehnquist (and Burger) era barriers to making claims based on those rights in court. You can have all the rights in the world, but so long as you can almost never prevail on the basis of those rights, in court, they don't really matter.

Even better, from a practical-conservative perspective: if you win on the access issues, but give way on the precedents, it doesn't look like you've actually won. It looks like Roe, Miranda, Mapp, etc., are all still on the books. And they are. Now, symbolically, you might still stew about those liberal precedents. But in terms of real-world impact, they are mostly a dead-letter.

How Bad Are the Packers?

So the Browns-Packers game was on DC tv yesterday afternoon. The Browns managed to score 26 points, including two big yards-after-the-catch passes to Heiden (62 yard TD) and Braylon Edwards (80 yard TD). It looked to me that both of these big plays were the result of breakdowns in the Packers secondary. Further evidence of that: QB Trent Dilfer had an OK day (336 yards) and didn't throw any picks. The Browns had to rely on Dilfer (and Dawson's leg), because they managed just 55 yards on the ground . . . despite being in the lead for most of the game.

Favre had an OK game, throwing for 342, but those two picks killed him, even though the first pick was a tipped ball. (I hate it when those things show up in the stats; I guess that these balance out all the times the QB hits a defensive back in the hands, but the defensive back drops the ball.) The Pack managed to rush for 116 yards against the Browns for a total of 452 offensive yards . . . and a loss.

Why? Well, just looking at the numbers above should demonstrate that the Pack is awful against the pass. Dilfer had lots of time to find receivers downfield, and the receivers were often open. Dilfer looked pretty good against the Pack, which should tell you all you need to know. The Browns have no ground game (let's face it, they don't), but they still beat the Pack.

The Pack lost its opener to the Lions, who got crushed 38-6 by the Kyle Orton led Bears. Then they lose their home opener to the Browns. So . . . just how bad are the Packers?

Btw, mentioning the Lions' loss yesterday: Lions QB Joey Harrington threw five interceptions. How? Why is he still in the game after his fourth pick? I didn't see the game, but I'd say that the coaching staff was trying to break Harrington.

Sunday, September 18, 2005

Insurance and Robots

Have you seen this Nationwide Insurance advertisement/television commercial where the proud parents beam as their tow-headed child/waif shows off the robot he's built in the garage? But then the robot starts shooting laser beams out of its eyes, eventually destroying the family's Ford Taurus.

The advertisement suggests that Nationwide would be there for you, were this to happen to you. But I think this is a seriously misleading advertisement. Is there any realistic possibility that damage caused to your motor vehicle, in the driveway, by a laser-eye-firing robot constructed by a family member, would be covered by your insurance? Not by your car insurance, certainly. This isn't collision or theft. Not by your homeowners' policy, either. This is like if you cut down a tree and it falls on your house. The insurer doesn't insure you against your own stupidity. (Not unless you pay a lot more for it. I'd love to draft one of these policies. "Whereas the party of the second part is a complete dumb-ass . . ." Oh, yeah.)

But, anyway, I smell a class action here. I really do.

Film Review (Combined): Napoleon Dynamite (d. J. Hess, 2004) and Garden State (dir. Z. Braff, 2004)

These are two of the most popular "quirky" comedies of the past year. I enjoyed both films, but I wasn't crazy about either. This review will sound rather negative, but it shouldn't be taken as too negative. Maybe I'm just too old. After all, I'm in my mid-thirties, and these films are about/for "the younger generation." This is really clear with Garden State, which emphasizes that the main characters are twentysomethings. It could be argued that Napoleon Dynamite is, in part, a "nostalgia for the 1980s movie," but if you're in the mood for that, I'd still recommend Sixteen Candles, the best movie about growing up in the 1980s (looking forward to some comments on that claim).

Things I liked: I loved the dance sequence at the end of ND, of course, and I love Natalie Portman in GS, as in almost everything (from Beautiful Girls to Closer. The soundtrack of GS was terrific. ND was funny, in lots of, er, quirky ways.

Complaints: Neither movie really has much of a plot, which means that both seem kind of, well, extended,despite running times under two hours. I wasn't sure where ND was going for most of the movie, and I'm not sure that it really gets anywhere, despite the absurdist dance number. GS is really rambling, despite dramatic conflict (esp. father-son), and really disorganized. It could be argued that the Zach Braff character "grows" at the end, but I'm not persuaded that his decision to stay with Natalie Portman is really a decision . . . that will stick. Why do I believe that he won't flake out tomorrow? Is it not supposed to matter that he might flake out tomorrow? If not, then what was the film about? Can anyone explain the "screaming into the abyss" scene to me, in non-cliched terms? Speaking of which, um, are we supposed to understand the final minutes' visit to the junkyard as a . . . metaphorical journey into hell? If so, is the Peter Skarsgaard "stoner" character some kind of spiritual guide? Based on his . . . drug use? Or his occupation (gravedigger)?

I'm thinking that I'm not really the target audience here.

ND: If you want to watch a humiliation movie, shouldn't you just pick a Ben Stiller flick? Is humilation in the form of the petty indigities visited on Napoleon really that funny? Really? Is it supposed to be funny that Kip has an affair with a tall black woman? Is it because . . . there's no plausible explanation for this relationship in the film . . . or outside of it, either? Is it "funny" when something completely unbelievable happens in a movie? Why is that?

Thin Line: Minimal Diversity Concluded

At least one person was interested in the conclusion of my thoughts on minimal diversity. OK, here it is.

We've all become very used to congressional criticisms of activist judges, and that almost always means activist federal judges, although there's always that pesky Massachusetts high court . . . .

In the wake of these criticisms, we see a lot of arguments about curbing the authority of federal courts; this almost always means depriving federal courts of jurisdiction over certain classes of cases, such as jurisdiction over DOMA cases or Pledge of Allegiance cases. So, on one hand, Congress--or certain members of Congress, er, Republican members of Congress--have spoken out against the federal judiciary, in an on-the-record way that is hard to disclaim.

But . . . but . . . at the same time the GOP Congress have worked to move lots of cases into the federal courts. The best example of this is the Class Action Fairness Act of 2005, which lowers the diversity bar to bringing class actions in federal court (or removing such cases to federal court). Congress has changed the rules, as interpreted by the Supreme Court, to permit cases to be brought in federal court even if the rule of complete diversity is not satisfied. Thus, minimal diversity.

The point, I guess, is that despite Congress's complaints about the federal courts, the Republican majorities in Congress actually prefer, in many cases, that cases be heard in federal court, as opposed to state court. The Republican majority can control the federal courts, at least when cases don't involve the Constitution. So, the Republicans want to shift tort and contract class actions brought against corporations to the federal courts, and away from the state courts, and to shift issues like gay marriage to the state courts . . . .

The punchline, I guess, is that there's a thin line between love and hate. The GOP loves federal courts, some of the time, when the alternative is state judges handling class actions, but they hate federal courts, when those courts are interpreting the Constitution.

Film Review: The Outlaw Josey Wales (dir. C. Eastwood, 1976)

Some readers of this blog have argued that this is the best Clint Eastwood movie. I apologize, in advance, for the following statement: This isn't even the second-best Clint Eastwood-directed movie. That would be Million-Dollar Baby (2004), behind Unforgiven (1992). Although this is a close question; Eastwood has directed a number of great movies. He may be the least appreciated director of his generation.

This is not to say that The Outlaw Josey Wales is not an excellent movie. My problem is that the screenplay is a bit heavy-handed in parts. For example, do we really need to see the slaughter of Josey Wales's family? Couldn't that have been achieved through flashbacks, rather than presented before the montage of Civil War battles? Think of the movie starting about ten or fifteen minutes into the movie. It's a better movie. Leave Josey's motivations a bit of a mystery, at least for a while. In this telling, Josey is not mysterious, at all. And do we really need quite so many hangers-on? I mean, Granny, Sandra Locke, the folks from Santo Rio, the Cherokee Chief, the Navajo woman . . . it seems like the screenplay really wants us to get that Josey has a heart. Um, I think you could do this with less. (Again, you could cut about ten minutes of the screenplay by omitting one of Josey's charity cases.

Plus, I think that, again, the screenplay disappoints in the final shoot out. Clearly, the film has to end with a shoot-out with Terrill, the leader of the "redlegs" who killed Josey Wales's family. But there isn't really a mano a mano shootout; instead, there's Josey Wales against, what, eight men? The film suffers from this one man against many conceit. Josey Wales defeats multiple assailants, time and time again. Again, I get it. He's got the skillz to out-shoot ten men. But do we have to be shown this, again and again?

Then, no shoot-out/showdown with former comrade (and turncoat) Fletcher, played very well by Dean Wormer, er, John Vernon. I guess this could be seen as a twist ending. Indeed, the film ends in a weird posture. Will Josey Wales survive his wounds? If so, then what? If he doesn't survive, what about his (off-screen) death?

Let me say what I like about this movie. Eastwood is great, both as an actor and as a director. Few false notes in the entire picture; the problems are more screenplay than director/acting. The film is shot very darkly. (Btw, the DVD version is amazing. A beautiful digital transfer that makes the movie look like it had a 2004 release date.) This is an interesting choice, emphasizing how dark the subject-matter of the film is. (Of course, one might argue that the film could be a little darker, in terms of story, but that's just my taste.) Plus, the movie has an interesting anti-war message, made pretty plain by Eastwood's introduction on the DVD.

I know that this wasn't a full review. No plot synopsis. Sorry. I guess you'll just have to watch the movie. Which you should do.

Friday, September 16, 2005

Never Let Them See You Sweat

When you're down, they kick you, man. Or something like that.

First Monday in October

With all the emphasis on the Roberts hearings, I haven't seen much on the upcoming term. So I started looking, and . . . I thought it might be fun to point out how boring a lot of Supreme Court cases are. Really? You mean it's not all abortion, abortion, and partial-birth abortion? Well, look at the first case on the term's argument calendar, I.B.P., Inc. v. Alvarez; Tum v. Barber Foods, Inc. (Nos. 03-1238; 04-66).

From the petitioners' brief:

Under Section 4(a)(1) of the Portal-to-Portal Act of 1947, an employer's obligation to pay wages under the Fair Labor Standards Act of 1938 does not include time an employee spends "walking . . . to and from the actual place of performance of the principal activity or activities which such employee is employed to perform." 29 U.S.C. ยง 254(a)(1).

The question presented is: (1) Whether walking that occurs between compensable pre- and post-shift clothes-changing and the time employees arrive at or depart from their actual work stations constitutes noncompensable "walking . . . to and from the actual place of performance of the principal activity or activities which such employee[s] [are] employed to perform" within the meaning of Section 4(a)(1).


Now while the Portal-to-Portal Act is important . . . I'm sure it is . . . really, not to make fun, but . . . let me just say, I'm glad I didn't have to read the rest of the brief.

Thursday, September 15, 2005

Book Review: Disgrace by J.M. Coetzee (1999)

This Booker Prize-winning novel is really a good read, even if the story is rather depressing and the main character is anything but a likeable guy. That character, David Lurie, is a 52-year-old professor of literature reduced to teaching communications at a former university downgraded to a technical college in modern South Africa. Feeling the decline of his romantic and scholarly abilities, David (foolishly) pursues an "affair" with a 20-year-old student, Melanie Isaacs, which leads, eventually, to his firing. I think quite a few readers will be put-off by David's refusal, at his administrative/disciplinary hearing, to try to save his job and his career from the ax. It would be easy to read David's refusal "to confess" as stubbornness. But I think there's much more to it than that. David holds onto the idea that Melanie lit a fire in his soul; that their "relationship," as limited and one-sided as it was, was somehow a Romantic adventure. This is a sign of David's self-delusion (his ex-wife describes him later in the novel as a master of self-delusion). Instead, he has imposed himself on Melanie and basically pressured her to have sex with him. She is generally passive during their encounters; there is no sign that she is really interested in him, at all.

Once he "resigns," David goes to the rural East Cape to stay with his only child, Lucy, on her five hectares, where she grows flowers and keeps a kennel. David and Lucy do not get on very well. To David, Lucy is an overweight lesbian; when he looks at her, he sees an unattractive woman cut off from men, from the existence that he has known. Lucy clearly has reservations about David, too. The plot takes its most dramatic turn when David and Lucy are attacked by three African men; Lucy is violently gang-raped, and David is beaten and set afire. (The attackers also kill the dogs in the kennel.) After the attack, David has a hard time dealing with what has happened, but Lucy seems to be in even worse shape. She seems to either deny what has happened or to see it as the price of living where (and when) she does, as a white woman in contemporary South Africa. This outrages David, but there is little he can do to reach Lucy, who appears to let herself go, more and more. Eventually we learn that Lucy is pregnant and plans to keep the baby. This really outrages David.

To make things worse, Lucy's African neighbor and occasional helper, Petrus, seems to have been involved in some way in the attack, although he was, conveniently, out of town on the day that it happened. It turns out later that one of his nephews was one of the attackers, and the nephew now stays with him. Lucy takes this in stride, as it were, but David, well, is more confrontational.

I've read a few reviews of the book, but I want offer my own theory here. The book can be read as a lengthy reflection of what happens to a creative person once the ability to create has been lost. The answer is "disgrace." "Creativity" figures in many ways in the book: art (David's interest in and work on the Romantic poets, his "chamber orchestra" on the life of Byron, Lucy's folk art and flowers); relationships and love; and procreation. David Lurie was once creative--once a scholar, and a father. His disgrace is not simply his fall, but his lack of creative power; the inability to complete his Byron project, to connect to his daughter. His inability to even connect, sexually, with Melanie. The loss of creativity includes the loss of the ability to see things from the Romantic viewpoint/the inability to romanticize his world. Once David comes to live in the cold, hard light of reality, he is really dead.

There are a number of sex acts in the novel; the interesting thing is that the only "productive" or procreative act in the novel is violent. In the beginning of the book, David is frequenting a prostitute, Soraya, every Thursday afternoon--that is sex as commerce, sex as bodily function. Then, with Melanie, sex he initially understands as romantic, but which the disciplanry committee understands as manipulative and exploitative and which Melanie finds unpleasant, or so we are led to believe. Then, the gang rape, which produces offspring. (BTW, I think the book requires us to compare the outrage of the university authorities and womens' rights groups over the Melanie affair to the violence of a "real" rape; but Lucy's strange acceptance of the violent rape makes this comparison difficult.) Then, David has sex with Bev, a friend of Lucy's who runs a veterinary clinic (more on that in a minute), but that is so Bev can comfort him; he is reduced to "pity sex" with a dumpy, middle-aged woman. Then, in the end, a prostitute gives him oral sex in his car. The ultimate non-procreative sex act, sex as bodily function, again.

To put the matter pretty bluntly, David believes he is engaged in a romance with Soraya, but it is just a bodily function/a business proposition. He believes he has a romance with Melanie, but he is simply imposing himself and his self-deceptions on a pliable post-adolescent. He knows he isn't having a romance with Bev, but this leads him to conclude (p. 150) that he is "bankrupt." And then there's the streetwalker--the first sexual relationship David has in the book without any illusions of romance, on his part or the imagined-by-David part of the lover. It is the thing, stripped of romantic illusions, which he discusses early in the book in a lecture to his poetry class.

The disgrace, in a sense, is living without those Romantic illusions/self-deceptions. Living without art, without creativity. In that sense, David has been living a disgrace for a long time before the novel begins.

But I don't see his redemption in the book, either. (This is a pretty dark book.) Indeed, David's role in helping Bev "put down" the unwanted dogs in her clinic/kennel every week, and then taking the dead bodies to the town's incinerator, stands in as a symbol of the loss of David's creativity. Interestingly, Coetzee writes that the dogs' misfortune is their overpopulation; in the end, David becomes a disposer of the surplus of creativity; but there is no creativity in that act itself--the act with which the book ends.

But that last chapter is haunting. David puts down a crippled dog he has come to love. It will eventually become necessary, he thinks. But why then? I find this final act of the novel as the final death of David's creativity. To love even an animal has become impossible for him. He cannot view anything, even the crippled dog, with romantic illusion. In a sense, at the end of the book David is dead as a creative, romantic being, and one has little hope that he will ever get back what he knows that he lost long ago.

Wednesday, September 14, 2005

Return of Wednesday Koan

I started a gimmick feature when this blog was new, the Wednesday koan, but sort of quit doing it. But I thought of a new koan today, for your meditation and reflection.

Here it is:

A two-way street only goes in two directions.


Think about that.

"Minimal Diversity"

As some of you know, the diversity jurisdiction of the federal courts (jurisdiction to hear purely state-law cases when there are parties from different states) is limited by an amount in controversy limitation as well as a complete diversity rule. Now, for those of you still reading this post, let me say that the interesting thing here is that neither of these limits is imposed by the Constitution; instead, they are statutorily imposed. Really, it means that the Supreme Court has interpreted the diversity statute as imposing this requirement, but that's a lengthy John Marshall story for another day.) This means that Congress can choose to do away with the amount in controversy limitation for diersity cases. Indeed, there used to be one for federal question cases, too, but Congress eliminated it. It also means that Congress can eliminate the complete diversity requirement. In other words, Congress can permit the federal courts to hear cases where there are plaintiffs and defendants from the same State, so long as there is one plaintiff from State A and one defendant from State B.

This latter rule is called minimal diversity and is part of the class action reform bill passed by Congress in February (the Class Action Fairness Act of 2005).

I won't go into the technical change this effects in class action law. But I just wanted to point out that the class action bill actually takes purely state-law cases and . . .

Oh, I have to go. There's actually a point to be made here. But it has to wait.

Blackberries


One thing I've noticed in D.C. is that "almost everyone" has a BlackBerry. You see these things everywhere: at meetings, on the Metro, in the grand hall at Union Station, at the Roberts hearings. Everywhere, people are reading and writing emails. The sheer volume of such communications boggles the mind.

I'm not sure I ever saw anyone using a BlackBerry in Cleveland. I'm sure that people downtown were using them, but not around CWRU.

Tuesday, September 13, 2005

Roberts Hearings Q & A


So I was able to attend about two hours of the hearing today around lunchtime. The hearings today are not being held in the Caucus Room in Russell, but instead in Hart 216, much more modern, much less ornate.  I was seated near the beginning of Hatch's question time (each senator gets a half hour, per round, and two rounds). Nothing really stands out about Hatch's questioning; Hatch talked a lot and asked Roberts to comment on some of his lengthy diatribes. Then it was Kennedy's time. Kennedy clearly wanted to get into it with roberts and mix it up. He asked a bunch of questions about civil rights, starting with whether Roberts agreed that Brown was correctly decided and moving on to memos Roberts had written during his time in the Reagan administration. In the end, this discussion got into pretty technical details; no points scored, either way. Then came Grassley. Grassley asked a lot of softballs, but it was during this time that Roberts said the most interesting thing he's said so far. In answer to a question on his lack of an overarching judicial philosophy, Roberts basically dissected the claims of originalism as a school of interpretation. Really, it was a great answer, one that I will fish out of the transcripts and post at some later time.

It's interesting that Roberts is now arguing that he doesn't have an overarching judicial philosophy, given that President Bush has said that judicial philosophy would be the dominant factor in his selection. I guess that means that the "correct" judicial philosophy, in Bush's eyes, is none at all. Curious. (Not that "Mr. No Nation-Building 2000" has ever been a paragon of consistency on his talking points.)

Finally, it was Biden's turn. Biden was really grand-standing here. Indeed, if you wanted an example of a senator giving free rein to his senatorial urges, this was it. He started out, "Hi (Hey) Judge," and spoke down to Judge Roberts (i.e., he did not take a very respectful tone). He wanted to argue with Roberts that Justice Ginsburg had answered questions about cases, and that under that same standard, Roberts should answer questions about the scope of the right to privacy. Roberts refused. It got uglier from there. Biden made a few good points, but he wasn't really trying to get answers, I don't think. I think he wanted to show off that he could be tough with Roberts, and that Roberts would refuse to answer questions, if pressed. (Roberts pretty much refused, point-blank, to answer the "does the right to privacy reach abortion" question.)

In other words, typical Biden behavior: "Hey, look at me! I'm a senator. A kick-ass senator!"

Then it was time for lunch.

"Celebrity" sightings: former SG Ted Olson was three rows in front of me, and former presidential candidate and all-around whack job Gary Bauer was two rows in front of me (sitting with Jay Sekulow). I saw Stuart Taylor, again--it was even less fun the second time.

Roberts insisted on pronouncing Mobile the same way as in "going mobile." It's mo-BEEL, judge. It's from the French. (There's an important civil/voting rights case arising out of Mobile, so this came up a few times.) Oh, well.

There seemed to be more anti-abortion folks today than yesterday around the area, in general.

Maybe a few more reflections in a bit.

Roberts Confirmation Hearing (Monday Post Recovered)


So I just back from sitting in on about 45 minutes of the opening day of the Roberts confirmation hearings. The Senate Judiciary Committee is actually pretty organized on this one; there were timed tickets, and the times given out were not that far off. The hearing room is amazing, as you will all see on television. The room is absolutely packed with the press. I was able to pick out Stuart Taylor, who was about ten feet from me, and Joan Crawford Greenberg, my personal favorite among journalists covering the Court. I was also sitting about six feet from Ralph Neas, of People for the American Way, so that tells you how bad the seats they gave the liberal public interest group representatives. Actually, my general public pass provided a little better view than his; he was behind a column, kind of like at old Tiger Stadium. (In fairness, I noticed that Jay Sekulow, of the conservative ACLJ, was in an equally bad seat on the other side of the chamber. So all the interest group folks got bad seats.)

I got to hear most of Senator Schumer's opening statement and the statements of Senators Cornyn, Durbin, Brownback, and Coburn. The strangest moment was when Coburn actually became emotional. He appeared to be, literally, close to tears when he spoke about political polarization and his desire for "one America." I saw a number of people in the room give a bit of a start at this curious display of emotion; it was really strange. Everyone else was just grand-standing, and Coburn almost got weepy. Just how stable is Coburn, anyway? I remember reading about him during the campaign, but I thought only his views were crazy. Maybe he's the whole package.

It was an interesting group of people waiting to get in. There were "Confirm Roberts," "Roberts Rules," and "[Blank] for Roberts" stickers (and a few buttons), and a lot of "No on Roberts" stickers, which kind of look like they see "Noon Roberts." (Again, the feckless left; even our stickers are weak.) There were a few protesters with signs, the most obvious one saying "IMPEACH ALL DEMOCRATS." (I guess he wants to impeach Democratic judges? Oh, wait, maybe he's just crazy. His hygiene suggested that.)  Plus, there was a woman dressed in colonial garb, carrying a Betsy Ross flag and copy of the Holy Bible. Really. No idea what that was about. Flag burning? (Or maybe she was just crazy, too.) I had a couple of interesting conversations with people in line. First, I talked for about fifteen minutes with three young women from the Feminist Majority, based out in Arlington. They were all in the early twenties and very concerned about Roberts and the direction of the Court. One of them commented that she wanted to get a look at the guy who was going to take away her rights. Then I had about a ten minute conversation from an older woman from Stockton, California, a retired schoolteacher. We didn't exactly talk politics, but her daughter works at Fox News in D.C., so I'm guessing she was rightwing. Very friendly, though. Then I talked to a junior at GW who is currently interning on the House side with a certain liberal member. I think he was more of a tourist at this hearing than anything else--kind of like me. He seemed more interested in international relations than the courts.

I had to leave before Roberts got to talk; indeed, I had to leave just about the time that Lugar was coming on to introduce the man of the hour. Maybe I'll find tomorrow to go for a bit of the question and answer.

Film Review: "The Good, the Bad, and the Ugly" (dir. S. Leone, 1966)


So I've continued with the Clint Eastwood film festival, following up "For a Few Dollars More" with this classic, probably the most ambitious of the Leone spaghetti Westerns. By way of explaining "ambitious," think three hour running time, three "main" characters (the eponymous Good, Bad, and Ugly), and an elaborate plot involving shifting front lines during the civil war. The film is not only a masterpiece of the Western genre, ending in a three-way stand-off, but a masterpiece of the anti-war genre, as well. But really, this film is a long meditation of how important trust is, even among thieves.

I won't try to summarize the plot in any detail. Suffice it to say that "Angel Eyes" ("the Bad," played by Lee Van Cleef) is on the track of $200,000 in gold coins, stolen and hidden by Confederate soldiers. The problem: It's hidden. Angel Eyes (I'm not able to check imdb.com at work; his character's name might be "Angeline"?) tracks down the name/alias of the last of the thieves, Bill Carson. Meanwhile, the Good (Clint Eastwood as the man with no name, here called "Blondie," which is a funny name for a tough guy, don't you think?) and the Ugly (Tuco, played by Eli Wallach, who is, really, pretty ugly) play out a scam where Eastwood turns Wallach in, collects the reward, and then rescues Tuco from the noose at just the last minute. (This is, needless to say, an operation that requires a great deal of trust between the principals.) Well, after a series of twists and turns, Tuco and Blondie find the dying Carson, who tells each of them exactly half of the secret of the hidden treasure. At that point, the pair dress up like Confederate soldiers and go in search of the loot, each with his half of the secret. They don'ty trust one another, at this point, enough to share the secret. They are then captured by the Union calvary, at which point Angel Eyes, disguised as a Union sergeant, hears that "Bill Carson" (Tuco now) has been captured. Now Angel Eyes can get the secret . . . .

Eventually, we end up at the graveyard where the loot is buried, cue the showdown music. I won't ruin the ending if you haven't seen the movie, but I will add that there's a "Kobayashi Maru" moment, if you follow my drift. (And I know you "Wrath of Khan" fans do.) Let's just say that the final showdown illustrates how trust (and the lack thereof) is, once again, key to the whole film. One of the three in the showdown knows something that the others don't.

What more is there to say? Probably a little behind "For a Few Dollars More," in my book, but not by much. Still a great film. And, again, great music.

Btw, CL has complained that "The Outlaw Josie Wales" is the best Clint Eastwood film. It's next in my queue, so I'll chime in on that soon. (I haven't seen it in probably twenty years. And I'm old enough now where that can be true.) And it's "A Fistful of Dollars" that is based on "Yojimbo," not this film.

Monday, September 12, 2005

Roberts's "Umpire" Analogy

The problem with Roberts's umpire analogy is that it completely rejects the idea that the judiciary is a co-equal branch of government (with Congress and the executive branch). It's just specious, completely specious. A baseball game is a competition, played for entertainment purposes, between two teams. Our system of government consists of three, co-equal branches of government, at the national/federal level, and two levels of government, federal and states, with the Supreme Court as "umpire" between state and federal power. So Roberts is half right. I would think that a guy as smart as Roberts would want a higher mark than 50 %.

What's Up with Blogger?

I wrote two long-ish posts today and emailed them to Blogger. But I see that they do not appear tonite. (I can't check the blog during the day because of Internet filters.) I hope that I can recover those posts tomorrow.

I went to the Roberts hearing today and wrote a lengthy entry on that. Too tired right now. Hope to recover those posts.

Pentagon March

Yesterday, on the fourth anniversary of 9/11, the Pentagon sponsored a so-called "Freedom March" to . . . well, what exactly was the march for?

If you read this article, you'll see that lots of people had lots of reasons to attend. Some had lost loved ones in the Pentagon attack, and thus attended to remember them. But you'd have to be pretty brain-dead not to see that this was another effort to tie the Iraq War to the 9/11 attacks. The article makes that clear, but so does the following personal anecdote.

Yesterday morning, we want for our Sunday long run along the Potomac, and we chose a route that would take us near the site of the march. As the papers have reported, this was anything but a "free" Freedom March. You had to register (and be screened) in advance, and the entire route of the march was enclosed in Jersey barriers topped with orange crowd-control fencing. The west side of the Tidal Basin was completely closed off, even to joggers. (I don't know why this area was closed off, btw. It wasn't near the concert site.) There were so many cops and rent-a-cops around, probably getting time-and-a-half to secure the event. (I actually hope they were getting time-and-a-half, because they were otherwise being made to waste their time on a Sunday morning.) When we reached the end of the "free" area, we were informed by one cop/rent-a-cop that the area was closed off, for "the Iraq thing."

"The Iraq thing." That's what he said.

BTW, the Pentagon hasn't released numbers despite the pre-screening requirement and the fact that they passed out t-shirts; so the Pentagon hasn't released numbers because they aren't pleased with the attendance. The Metro says that about 4,000 people used the Pentagon Metro stop Sunday morning, which would place the crowd at about 4,000. Earlier in the week, the attendance projection was "estimated" at between 3,000 and 10,000. Looks like the Pentagon was only able to hit the low end of that range . . . .

Sunday, September 11, 2005

Browns Lose (0-1)

It's going to be a lo-o-o-ong season by Lake Erie. As much as I miss watching the Brown and Orange, I'm not going to miss games like today's 27-13 defeat at the hands of the Bengals.

But the stats (I didn't actually see the game) don't look completely awful. One highlight: my reading of the stats here indicates that the Browns O-line didn't give up a sack today (hear that, Tim Couch, wherever you are?); Dilfer threw for 278 yards (given the score, they were probably throwing every down in the second half); and WR Frisman Jackson had a pretty good game.

Yes, Frisman Jackson, not a household name. Before this season, 16 receptions in three seasons.

But the Browns defense gave up 27 points, 280 yards passing for Carson Palmer, 126 yards on the ground for Rudy Johnson. The Browns won't win many games giving up that many points. But, then again, that last sentence could have ended after the word "games." It's going to be a long season, as I said.

Government Abandons Press Censorship Policy

Link.

See my earlier comments here.

Unenumerated Rights

Linda Greenhouse says that Roberts will be asked whether he believes that there are unenumerated rights in his confirmation hearings. The theory is that this question is about the "so-called" right to privacy.

But if the question is asked this way, i.e., "unenumerated rights," then it's really a stupid question. Because the Constitution itself says that we have unenumerated rights, in the Ninth Amendment. (It just doesn't say what they are, because, er, they're unenumerated.)

Plus, even if there wasn't a Ninth Amendment (and, let's be honest, it's pretty much a useless amendment), there would still be unenumerated rights. Here's an example: nothing in the Constitution specifically says that you have a right against prosecutorial misconduct, or a right against jury tampering (or even juror intimidation). Check it out, it's not in there. But I don't think even CL would say that it wouldn't raise serious due process concerns for a prosecutor to state, repeatedly before the jury, his conviction of the defendant's guilt; for a prosecutor to comment on inadmisible evidence before the jury; for a prosecutor to make ex parte communications with jurors during a criminal case, or to threaten jurors will criminal sanctions if they failed to return a guilty verdict.

Why would such things raise constitutional questions? They're not listed in the bill of rights. But these are clearly unenumerated rights, implicit in the idea of due process as a system of "fair play," of "ordered liberty."

Here's another example. Let's say that a state government decided that, because of overpopulation and the burdens imposed on the public education and health care systems, each family would be limited to one child. Period. Such an act would clearly be unconstitutional, although Roberts and those who deny the existence of a right to privacy, implicit in the idea of ordered liberty, would have a hard time saying why.

The issue really isn't whether there are unenumerated rights, or really even whether the due process clause, as it exists today, has substantive as well as procedural aspects. No one is arguing that Griswold or Rochin was wrongly decided. The issue is abortion, whether substantive due process rights to privacy are broad enough to protect a women's right to terminate her pregnancy. The issue is not "unenumerated rights," or even, again, judicial philosophy. The issue is a particular policy.

But again, people get confused by the fancy rhetoric that they throw up in response to a particular decision of the Court. Instead of just focusing on the policy outcomes that they disagree about, they construct elaborate theories of the meaning of the Constitution, and then we conduct a second-order argument about that nonsense as opposed to the first-order issue driving the debate.

Comparing Roberts and Scalia

Here's my pre-confirmation hearings rant on a point I've heard any number of people make, both on tv and in person, over the past few weeks. The point is that while Roberts is conservative, he's something of a squish, not really an originalist like Scalia (Thomas is usually not mentioned here). The point seems to be that, unlike Scalia, Roberts will be less doctrinaire in his conservativism because he doesn't have an overarching judicial philosophy (i.e., originalism).

This point confuses two things: (1) judicial philosophy and (2) policy preferences as to case outcomes. These two are not really that related. I mean, Roberts could have no judicial philosophy at all and still be a consistent conservative vote on the Court. Or, he could have the "right" judicial philosophy and not be a consistent conservative vote. And there's almost nothing in Roberts's record that suggests that he isn't a down-the-line, true-blue, hardcore conservative, as that term is understood today, and a loyal Republican as well. So the issue of judicial philosophy is really a non-starter here; or, really, it's misleading.

My theory is that Republicans have gotten confused by their own talking points. They'e spent so many years discussing something called "judicial philosophy" that they forget that what really matters (from a political, as opposed to a strictly legal perspective) are the decisions the Court reaches in particular cases and not how the Court gets there.

Here's an example. Let's say that the Court is deciding an Establishment Clause case. The state of Ohio wants to provide vouchers to students attending parochial schools, for example. Now, the reasoning in the majority opinion can go through all the standard things cited, on either side, about which presidents declared national days of Thanksgiving and which did not, how long Congress has had a chaplain, and so on. Or, it can just cite a few precedents, maybe correctly, maybe not. Or, the opinion could talk about what the word "respecting" meant in eighteenth-century dictionaries. Or, it could talk about international law. Or, it could talk about the policy consequences of particular choices, even. Or, about evolving standards of religious freedom since 1791. Really, it doesn't matter where the rubber hits the road: does the state of Ohio policy stay in place, or doesn't it?

Roberts is almost certainly a consistent conservative vote on the Court until I retire from the workforce. Doesn't matter if he has a consistent judicial philosophy. Indeed, as Justice Scalia sometimes shows, having a judicial philosophy means that sometimes your vote is less than predictable (Hamdi discussed yesterday is an example). My guess is that Roberts's votes will be pretty predictable.

Saturday, September 10, 2005

Padilla v. Hafnt (Sept. 9, 2005)

Link.

Judge Luttig's opinion for the Fourth Circuit sticks pretty close to Justice O'Connor's plurality in Hamdi, although it leaves one question unanswered. There were six votes in Hamdi for the proposition that Hamdi was entitled to some due process, even if it was not a full-blown constitutional proceeding. (I mean here exactly what Justices Scalia and Stevens emphasized in their opinion: the Constitution says how the federal government may deprive citizens of freedom; if Congress and the president cooperate to establish some "new way," with the assistance of the reliable "Mr. Fix-Its" on the Supreme Court . . . that's not a constitutional proceeding.) I don't see anything about due process in the Padilla opinion.

That's probably because of the procedural posture of the case, but to be honest, I haven't been keeping up with this the way that I was last year.

Also, I think it's strange how judges are reading the "AUMF," the Authorization for Use of Military Force passed by Congress in the wake of the 9/11 attacks. They're reading it as though it says: "The president may do as he wills." But Congress used specific words, one of which was "appropriate," as in "[T]he President is authorized to use all necessary and
appropriate force" against terrorists and their allies. But isn't that like the elastic clause, which says Congress has the power to make all laws that are "necessary and proper" for the carrying out of its other powers? I mean, Congress can't suspend due process because it would be useful in collecting taxes, for example. So why can the president suspend due process in the war on terror?

BTW, I also find it incredible that judges sign off on this argument: The Government wants to prevent Padilla from rejoining al Qaeda, so they have to keep him out of the criminal justice system. Now, that may be the case now, because Lord knows how little un-tainted evidence the Government has to present at a trial (in the sense of evidence not obtained by the violation of Padilla's Fifth and Sixth Amendment rights). But do these lawyers at the DOJ and DOD know nothing about criminal law and sentencing in this country? There was a Sixth Circuit terrorism case back in pre-9/11 2001, Graham. Dumb rednecks playing militia; they planned to attack a National Guard armory and seize weapons. They were completely hapless; neer got close to carrying this out. And Graham gets . . . fifty-five years in the federal penitentiary, all told. There's a little something called the terrorism sentencing enhancement . . . plus, federal conspiracy law is pretty serious business.

So you can put Padilla away for a long time, even with a trial. And a jury is going to return a guilty verdict here, folks. OK? The dumbest DOJ lawyer could try this case and win.

That is all.

Friday, September 09, 2005

Othello by William Shakespeare, at the Shakespeare Theater

Starring Avery Brooks (Captain Benjamin Sisko from Star Trek: Deep Space Nine).

This was probably the best production of Othello I've ever seen. Brooks's performance is solid, but the real stand-outs were Iago (Patrick Page) and Emilia, Iago's wife (Lise Bruneau). Page's Iago is less cerebral and more visceral than most of the Iago's I've seen. Iago is often played as a cold, calculating character with inscrutable motives. In this production, one almost believes his stated motivations. Bruneau's Emilia is given a much fuller characterization here than in many productions.

Of course, there's always a downside to making Iago so interesting: the character of Othello shrinks, to a large extent, when Iago grows. Because if Iago is the focus of a production, then Othello comes off just as a victim of Iago's scheme, just one more pawn to be manipulated by Iago. Othello's downfall is caused both by his own faults and by Iago; but when Iago is this smart and engaging, Othello's faults tend to swamp his virtues on stage.

Book Review: War Trash by Ha Jin (2004)

This Pulitzer-Prize finalist won the PEN/Faulkner Award for 2004. It's a very readable and, ultimately, moving fictional memoir of the Korean War from the perspective of a Chinese prisoner of war. The narrator, Yu Yuan, is a young student at a Nationalist military academy when the Communists seize power. As such, he's always under suspicion of counterrevolutionary sentiments. With the Korean War, Yuan is moved to the "volunteer" army and sent into the conflict. After his PLA unit is mostly wiped out, and after months of hiding out in the mountains, Yuan becomes a POW. The POW camps are divided into pro-Nationalist and pro-Communist factions. Yuan never really fits in with either side, but his knowledge of English (learned from a Christian missionary while he was a youth) makes him a valuable asset for both sides. Most of the novel recounts Yuan's experiences in the POW camps and the cruelties inflicted on the POW's, mostly by other POW's.

The issue for Chinese (and North Korean) POW's was repatriation. Yuan is pretty typical. He's not a Communist (neither in party membership nor in sympathies). But his elderly mother and fiance live in mainland China, and he has no reason to go to Taiwan. The Nationalists and the U.S. put pressure on the Chinese POW's to not repatriate. Meanwhile, the Communists fear that they will lose face if many POW's refuse to repatriate. What's interesting here is how these large-scale ideological conflicts put real (and also fictional) individuals under great pressure. Yuan goes from camp to camp, sometimes thrown in with the Nationalists, sometimes with the Communists, and must somehow find a way to survive and make it back to his mother and fiance . . . plot spoilers in the next paragraph.

The irony, of course, is at the end that Yuan's mother dies while he's in the camps, although he doesn't know that. And, because the Chinese Communist party treats repatriated POW's as traitors, his fiance will not marry him (or even see him again) once he returns. So what he's wanted for so long no longer exists. But, also ironically, Yuan's equivocations in the past do not harm him, either. The fact that he's not a member of the Communist party means that he's not treated as harshly as the party members who were captured.

This is one of those novels that really gets you in the last few pages. But this is also a pretty ambitious novel, a fictional war memoir, with many characters and a lot of thick description. The character Yuan starts, according to his account, as a naive young man; in early chapters, he cannot understand the motivations of those around him. His narrative ends with a great deal of wisdom and insight.

Definitely worth a read.

Check Out Celine's Blog

Great stuff over at Supra! Worth a visit today.

He Said It, Not Me

Lasting Blot. Indeed.

Thursday, September 08, 2005

What Does This Mean?

The blogosphere is up in arms over FEMA efforts to prevent photography of dead bodies in New Orleans. Now, I'm not sure how to read this: "We have requested that no photographs of the deceased be made by the media," the [FEMA] spokeswoman said in an e-mailed response to a Reuters inquiry.

Now, if FEMA is simply requesting this, that's OK. Indeed, there's a good argument to be made that pictures of the dead are disrespectful, and in poor taste, if not ghoulish. That's not to say that such photos might not have real news value, and not to say that such photos might not inform public sentiments in ways that statistics and print reports cannot.

But if FEMA is taking active steps to prohibit the taking (or "making," if you're Southern) of such pictures by the media, in public places, and even blocking media access from certain locations, which are not government property, for the sole purpose of content-based restrictions on the media, then that's a First Amendment violation. I would go further and say that the government cannot prevent journalists from entering the area, in general; only from entering areas in which their presence will disrupt relief efforts or seriously endanger the journalists' lives. Now I now that's not the administration's position; but with their track record . . . .

Wednesday, September 07, 2005

"Most Powerful Man in Washington"

That's how David Gregory just referred to Vice President Dick Cheney on Hardball. Did he mean that as a joke, a half-joke, a quarter-joke, or perfectly seriously?

Forty Years


OK, so I'm reading about the "Lochner" period, from Allgeyer v. Louisiana in 1897 up to the constitutional revolution of 1937, in which conservative courts struck down various state regulations under the theory of substantive due process. And I was thinking--1897 to 1937 is forty years. Contemporary substantive due process debates center around the idea of a right to privacy, which was first enunciated in Griswold v. Connecticut in 1965 . . . forty years ago.

Just something I noticed.

Tuesday, September 06, 2005

Interesting Blog

Here's an interesting blog by an emergency room doctor in New Orleans last week. Worth a look. He even gets bitten by an alligator.

Plus, check this out.

Just for Fun



I know other blogs have posted this, maybe even ad nauseum, but really, ain't it worth it? One . . . more . . . time . . . on the presidential gee-tar. Yeehah, y'all.

Cut to the Balladeer: Buckle up, folks. It's going to be quite a ride . . .

Btw--I realize that this post and the previous one are vastly different in tone. So don't point that out in comments.

The Chief in Repose in the Great Hall

I went to pay my respects today. A friend and I waited in line for about 45 minutes to get inside the building. They were only letting a small group in at a time, which makes sense. The flag-draped coffin in the Great Hall, surrounded by the busts of the fifteen previous Chiefs; the honor guard; the mourners. The official portrait, with gold stripes nonetheless. Quite a scene.

Plus the same catafalque as Lincoln's casket sat upon in 1865.

It was an eerily solemn event. We even got to see the changing of the honor guard.

Film Review: The Ghost Breakers (dir. G. Marshall, 1940)

This Bob Hope-Paulette Goddard pairing is mildly amusing, in that 1930s comedy kind of way. Hope is famous for his comic timing, which basically consists of the responsive, quick one-liner and his ability to twist a sentence at the very end to say something different from what you thought he was going to say. So one character says something like, "A zombie has no will of its own; it can only follow commands," and Hope quips, "Of, you mean like Democrats." (1940 was a long time ago, eh?) Or Hope says (something like), "I don't mind dying, it's the preliminaries." But the movie is much more interesting in a sociological sense.

First, let me note that Hope's character, Lawrence Lawrence, has an African-American valet. This character serves mainly as comic relief; the actor playing him is probably as funny as Bob Hope, but because he's black, he's the valet, not the lead. And there are black jokes, too. Such as in the black-out, the joke is made that Bob Hope can't see his valet, even though the valet is standing right next to him. Egad.

Second, this movie exploits Paulett Goddard's sex appeal to the maximum extent possible in 1940. For one thing, there's a gratuitous scene of her in only her slip (and heels, of course, because we men know how much women like to prance around in lingerie and heels). For another, there's a scene of her in a one-piece bathing suit (one-piece, of course), but again, completely unnecessary for plot or character reasons. Remember the rules back then, particularly no cleavage (that's why there was such an emphasis on legs and tight sweaters). Here we get a long shot of Goddard's backless dress in one scene. I wouldn't say that this movie "pushes the envelope," but it is clearly designed to exploit Goddard's (fairly limited) sex appeal.

Third, the plot involves a haunted house in Cuba (really), and the story involves both voodoo and a zombie. The interesting thing is that the zombie is recognizably a zombie. If he was never identified as such, anyone familiar with movie portrayals of zombies would have no problem saying, with confidence, "That is a zombie." (Of course, this is a voodoo zombie rather than a flesh-eating, George Romero zombie.) So it's interesting how once a "creature" is defined, visually, that definition stays with us for a very long time.

I rented this because I was interested in getting a sense for Bob Hope's screen work. It's basically what I expected. Not that funny, but mildly amusing and entertaining, from a sociological point of view. There's a complex plot, a mystery, a number of shady characters, and a ghost. But I doubt anyone out there would be interested in any of that.

Friend's House in Biloxi, MS


This is my friend Jeff 's house in Biloxi, Mississippi. He and his mother are OK--they evacuated when the authorities said the hurricane was "like Camille." Jeff's mom remembered what Camille was like, and that was motivation enough. He was fortunate that his house survived with only minor damage to the structure. They did lose what looks like a beautiful old tree, which is completely lost. (Note: I'm not sure how far from the beach the house is.) But he was less fortunate in that he worked in a casino on the Coast, and there's no way he has a job in the next few months, at least. The casinos were completely shredded.

Summer Is Officially Over

Well, yesterday marked the (semi-)official end of summer. The weather here has changed, cooled off a little, and the light is taking on the look of the fall.

It was a very eventful summer for us. We sold the house on Ashurst Road and moved to D.C. I resigned my old job, finished up there, and started a new job. We did a little (Mormon history-related) travel, to Utah and Palmyra, N.Y. But I've blogged a great deal of that experience, so you can read about much of it right here.

To be honest, fall may be my favorite time of the year. The pennant chases, play-offs and Series; football season. Cooler weather for running, which is always a relief. I used to always like the beginning of the school year; now I can look forward to the start of the Court's term next month.

So let's close the books on an eventful summer and look forward to . . . the holidays. They'll be on us before you know it.

Monday, September 05, 2005

Spam Comments

Some of you, especially Wilson, have already noted the infestation of spam comments in the last 48 hours. I was out most of the day, but I will see if Blogger has a solution. It seems that the spammers have a program that tracks "most recently updated" and just posts spam to those posts. If I weren't already so jaded and cynical, I'd be outraged.

And odds are (at least 10:1) that the first comment posted here will be spam.

Btw, highlights for next week: a couple of movie reviews and an account of my (upcoming) visit to view the Chief's body lying in state in the Supreme Court building.

Update: The spam comments problem should be fixed, now. Those of you who leave comments will notice an additional step needed to verify that you are not an automated system. Sorry, HAL.

Since I'm on the Language Beat, Anyway

Two very similar words in the English language: "jibe" and "jive." But they are not interchangeable.

The HyperDictionary defines "jive" primarily as a form of music. I would add a third definition, meaning roughly "bullshit." As in, "Don't give me that jive." Now, this usage would date you pretty quick as either Starsky or Hutch, but it seems Ok to me.

The HyperDictionary defines "jibe" in three ways, with the third one relevant for our purposes: "be compatible, similar or consistent; coincide in their characteristics." So you say, "These poll numbers don't jibe with [X theory]." Not "these numbers don't jive."

See an example of this easy mistake to make.

Prime Numbers, Gestation, and Will

This George F. Will column, Questions for Sen. Schumer, ends with a question: On another matter, in Roe v. Wade, the court said that a privacy right -- an "emanation" of a "penumbra" of other rights -- guarantees a right to abortion, but also said that right changes with each trimester of a pregnancy. Does it seem at all odd to you that the meaning of the Constitution, or at least of its emanating penumbras, would be different if the number of months in the gestation of a human infant were a prime number?

I've been puzzled by this question for 24 hours. Prime number? I take it here that Will is saying something like this: "the gestation of a human infant" takes approximately nine months, so each trimester is three months. But if the "gestation period" was eleven months (and eleven is a prime number), then no one would talk about trimesters and thus Justice Blackmun would have reached a different conclusion in Roe. Is that it?

Now, I'm no mathematician, but . . . can't a prime number be divided by three? Now, granted, the result won't be a whole number or an integer, like three. Let me try this on my calculator, just to make sure. Hmm. Eleven (a prime number) divided by three equals . . . 3.6667. That's three and two-thirds for the decimally challenged. So even if the period of "gestation of a human infant" were eleven months, a prime number, someone might still talk about "trimesters."

In fact, isn't nine months really an approximate length? I've also heard that the "gestation period" (egad--is Will some kind of amateur zoologist now?) is really 40 weeks. But that doesn't divide evenly by three (13.333).

So I'm puzzled by the question. What does the prime number thing have to do with it? Is Will just trying to show off his "erudition"? Wow, is he smart, or what?

Roberts for Chief

Well, NBC and other news outlets are reporting that the president will pull the Roberts nomination for associate justice and nominate Roberts for Chief. So, as I said yesterday, the stakes in the Roberts nomination are altogether different today.

Does this indicate that the administration was less than thrilled with the rest of the list of potential Chief Justices?

Celine Has Returned

Celine has posted again, finally, at Supra!, after a summer of travel and fun. But maybe her light posting is kind, given that the kind of travel schedule she maintains might make some people, er, jealous.

Sunday, September 04, 2005

Chief Justice Rehnquist Dead

The Chief passed away in the night.

What now? The hearings on the Roberts nomination were set to start next week. That's all changed now--not the schedule, but the issues to be addressed. Because the Rehnquist Court is over, as of now.

Update: This is a short post, because I can't think of anything particularly profound to say. Also: The Chief had a major impact on the Court, but in many ways I think that, in terms of doctrine, his impact has been largely negative. Take the issue of the death penalty. Now, I'm not opposed to the death penalty in principle. I don't think that it's unconstitutional, in principle. But the dead Chief's strident opposition to robust federal court review of state capital convictions should give one at least a little pause. Especially given what we've learned about wrongful convictions from Project Innocence in recent years.

But I try to follow the rule, do not speak ill of the dead, and its corollary, if you don't have anything nice to say, don't say anything at all.

Saturday, September 03, 2005

"Buffalo Sky"

Film Review: For a Few Dollars More (dir. S. Leone, 1965)

Where life had no value, death, sometimes, had its price. That is why the bounty killers appeared.

I'm sorry to have to say this, but Clint Eastwood is simply the coolest person who has ever lived. Now, like many stars with such distinctive film personae, his later career consists largely of self-parodies of his coolest roles (Pacino is really the worst of the lot on this score, but de Niro has been challenging him lately). But in his prime--the spaghetti Westerns, Dirty Harry, a few other films--wow. Eastwood is the man.

But equally good here is Lee van Cleef, probably the funniest looking actor ever--including Steve Buscemi. I mean, his nose makes mine seem small and non-pointy, and his overbite? His teeth? But as Col. Mortimer, a real stand-out performance.

Eastwood and Van Cleef play two bounty hunters--or "bounty killers," the term often used here (must be translated from the Italian?), and more appropriate in the days of "wanted dead or alive." They are rivals, but they team up (Eastwood rather reluctantly) to go after El Indio, a ruthless gangleader and bank robber. When Eastwood and Van Cleef meet up in El Paso, home of the biggest bank jackpot in the area, they join forces. Eastwood goes "under cover" to join El Indio's band. (The band includes a young Klaus Kinski as an evil gun-slinging hunchback. Really.) There are lots of plot twists, but the film gets us to the point where Van Cleef and Eastwood get caught but then get away with the loot, based on a scheme by El Indio . . . to stage a massive gun battle, where El Indio plans his own men to get gunned down by the bounty killers . . . so El Indio and his number two get away with all the money, no sharing. (The film leaves no question that El Indio is a psychopathic madman but something of an evil genius. I guess the phrase, "he's quite mad," comes to mind. But given the rape-suicide flashback . . . egad.)

Like most plots, El Indio's is too clever by half. El Indio gets a good whatfor, and he's double-crossed. But then the loot is missing . . . Van Cleef and Eastwood return to get the loot, where El Indio and the double-crosser wait.

This section of the film is almost dialogue-free acting. An example of the challenging dialogue:

Van Cleef: "Leave Indio to me." [Expression says "this is non-negotiable."]

Eastwood: "Alright." [Expression says "OK."]

El Indio gets the drop on Mortimer, and they square off for the shoot-out. "Try to shoot me, Colonel. Just try." It's at this point that El Indio has clearly lost it; but Mortimer has lost it too, for reasons suggested in the picture, which I will omit here. And then Eastwood comes out . . . and El Indio is stuck, with Cint's rifle bearing down on him . . . "Now we start." Cue the music . . . and the final quick-draw. Can there be any doubt what happens when the good bounty killer faces off against the evil psycho?

"Bravo."

It turns out in the end that van Cleef is after more than money, or at least something other than the money, in this case. Clint takes El Indio, and his dead men, loaded in a wagon, in for the bounties. (Clint counts the "cash" in the wagon . . .) Plus the loot from the El Paso robbery. Cue the theme music. I should also note: The music in the film is truly great, including the musical watch . . . if you don't know what I'm talking about, rent the movie. The musical watch is very important to the plot.

Btw, this is not the one based on Yojimbo. Or, if it is, it's loosely based. I think that the one based on Yojimbo is The Good, the Bad, and the Ugly.

New Blog; and "What is Blogging?"

Friends Sam and Rebecca have a new blog, which will soon be added to the blogroll (update: done). But I wanted to point to this post, on
""What is blogging?"

See, Sam is one of my political theorist friends, but unlike many of us, who have somewhat lost the faith, Sam is hardcore. I really respect that, and look forward to more posts on heteronormativity. But I also like the posts on art (Rebecca) and washclothes (same).

But I wanted to also post on the question, "What is blogging?," which Sam asks. My blogging philosophy, or blogophy, is that blogging should be (1) informal; (2) lightly edited, at most; and (3) reactive.

(1) A good blog is informal. A blog post is not an article, an essay, or even a column. It's like a sentence. When I was taught to write, I was taught that a sentence is "a single thought." I think a blog post is the same--one thought, idea, point. It should take more than one sentence, usually, to convey, but it should be simple. If you want to do more, write a series of simple posts.

(2) A good blog post is lightly edited. Don't sweat the post. Write it, read it over, make some changes, and post. You can edit it later (update: like I'm doing now). If you break rules (1) and (2), you won't post enough and you'll stop doing it. The key is to post, regularly. Don't let the great (post) be the enemy of the good (post).

I got a million cliches, kids.

(3) A good post is reactive. By this I mean post on something that just happened, that you just read, or saw. Don't try to have deep thoughts. Stay in the moment, in the fray. React, but use the post to think about your reaction and go all second-order on the shit. Try it. You might have a deep thought, in the process.

Some of you have received parts of this advice before. Remember the first rule of blogging: If you don't post, you aren't doing it. So post, even if your posts suck. That sounds like the rule to me; at least, I post enough posts that suck for this to be my rule.

That is all.