Monday, June 30, 2003

Overrated: ESPN's Jeff Merron ranks the ten most overrated athletes of all time. He makes a decent argument for many of them, but I kept finding myself wondering who ever rated them so highly. Phil Rizzuto? Deion Sanders? The quickly forgotten (or barely noticed by most non-Olympics devotees last year) Appolo Ohno? Nobody really thought that much of these people. As for skewering Lynn Swann, I think he's hurt by the era he played in as well as the type of team he was on. It's tough to accumulate stats when Franco Harris is grinding out yards on the ground and Bradshaw has a host of receiving options. It was what Swann did at the most important moments that mattered so much to Steeler fans and all football fans.
One for the Razor: Four words -- "Bangles reunite for tour."
Volokh on Nike:: Eugene's piece in the WSJ today explains the court's decision not to render judgement. He also gives a prediction of how they might decide it in the future, based on arguments by justices O'Conner and Breyer.
Justice Stephen Breyer, joined by Justice Sandra Day O'Connor, however, disagreed with the others on this procedural point, and expressed a view on the substance as well: Because the commercial message (buy our shoes) was mixed with a political message (our political opponents are wrong), and was presented outside a traditional advertising medium, it should have been treated as fully protected.

Moreover, Justice Breyer suggested, the particular structure of the California false advertising law was unconstitutional as well. The law lets any citizen sue over allegedly false or misleading statements by a business. In this respect, the law differs from traditional false advertising laws used by government agencies, or by people who actually bought a company's products in reliance on the ads. This, Justice Breyer said, lets "a large and hostile crowd freely . . . bring prosecutions designed to vindicate their beliefs," without facing the practical constraints that keep prosecutors focused on genuinely economically harmful conduct -- and, he reasoned, the risk of such lawsuits may deter businesses from participating in public debates.
If the California court rules against Nike, it may still be overturned by the Supreme. that would be good news.
The Reverse Iconoclast: Can one be reactionary to a point of iconoclasm? Reason Kerry Howley has a good insight on Stanley Crouch's blowup with Jazz Times. Crouch was fired, and both parties faced off in a war of words. Crouch is a love-him-or-hate-him kind of guy; he rides a hobby horse on the history and canon of jazz, like his protege Wynton Marsalis, that is narrowly defined, to say the least. I have to say, I admire Crouch. I'm biased, since I share many of his beliefs, and because I met Wynton when I was 18 years old and was floored by his ability and confidence. At any rate, too much of the jazz press is willing to accept nearly any squonking as jazz. Crouch, I think, takes the other extreme out of a conceptual purity, but partly to be heard over the din.

Crouch would disagree with me, too, but jazz ended a few years after World War Two. Bebop was the death knell, as jazz became less about dancing and more about theory, chops, breaking boundaries. (This is not to say that it's all worthless after that, but it's not jazz, just as rock and roll is not blues -- related, common roots, an offspring of blues even, but not blues.) Some of it is related to jazz. The cool stuff that came from Gil Evans and Miles obviously owes a great deal to Ellington, but it is essentially chamber music for jazz instruments. For too much of the jazz press, jazz is an anything-you-want-it-to-be category. Any thing that's not explicitly not-jazz is jazz. Crouch is an antidote to that.

As for the racial aspects, jazz is, in Crouch's words, "Negro music." Whites have made great contributions, but it's not their music -- any more than Bossanova is North American music because Stan Getz played it so well.

Weekend at Thurmonds:Strom finally gave up the ghost last week, and here in the South everybody noticed. Most people I know either hated him passionately for his past or liked him but were afraid to say it. I'm a big believer that you have to judge people, at least in part, based on where/when they lived. You also have to expect them to help change their world for the better, even if that means giving up old views and traditions. For instance, I don't hold it against Thomas Jefferson that he was a slave owner. I've always been disappointed, though, that he never fought for emanciaption, despite his recognition of its illegitimacy. So I don't hate Strom for his racist past and I was pleased that he changed with the times, however imperfectly. I can understand those that had trouble accepting a politically correct Strom; I'm sure he had trouble accepting the way the world changed around him over 100 years. He wasn't a simple man to understand and I expect his will be a difficult biography to write. It will be difficult to read, too, for many. But I bet there would be lot to learn from it.
Hepburn: You hit the nail on the head with Kate, re looks. What always endeared me to her was that she could be so striking without being "beautiful." Most of what I saw of her were later roles, particlularly her roles with Spencer Tracy. The chemistry between them was magical, comedic or dramatic. Adam's Rib and Guess Who's Coming to Dinner exemplified both, in many ways. And I echo your thoughts on The African Queen. How many times has Hollywood tried to copy that tough guy/bossy woman, adventure-love story. Now that i think of it, I'm due for a Bogart fest and that would be a great one to watch. (Maybe Key Largo too).
Top ten things i'd rather do than move ever again:

10. Take a jacuzzi with Michael Moore

9. Watch an Elimidate marathon

8. Cut off Snoop Dogg in traffic

7. Wipe my ass with a rose bush

6. Play golf with Bill Clinton

5. Double date with Alec Baldwin and Kim Basinger

4. Lick every manhole cover in NYC

3. Towel boy at a Meatloaf concert

2. Convert the New York Stock Exchange from a decimal based system back to a fraction system with a pencil and paper

1. Pay somene whatever the fuck it costs to move my shit for me

Kate: For Hepburns, I've always been an Audrey man. (If you want to read something warm about Kate, go here.) No doubt Katherine was a fine actress, as long as you wanted a Katherine Hepburn role in your film. Thus, I'd dispute the claims of her versatility. In fact, I find the storied Bringing Up Baby nearly unwatchable. Nevertheless, she was great in The African Queen. An interesting pairing, Kate and Bogie (one of my favorite actors). I think of them as similar in many ways, and perhaps this will help clarify why I'm not putting down Hepburn. Neither of them was a great actor, a terribly versatile player, or a real innovator (although Hepburn's private life was quite in the vanguard). But both were, above all, screen presences in a very real, very palpable way. Both had odd features, not textbook good looks, but both were compellingly attractive in films. Is that an insult, to say that one was a screen presence -- a star by accident rather than talent? I don't think so.
Donuts: Via A&LD comes this article about the new power of Krispy Kreme. I knew Krispy Kreme from the South, so when I they had their IPO I was optimistic. But what happened surprised me anyway. As the article mentions, the chain still has fewer than a tenth the number of outlets as Dunkin' Donuts. But who has the buzz? And, honestly, when was the last time a trip to Dunkies got you excited? Pulling up to Krispy Kreme just as the light goes on is just one of those magic moments to savor. When the first New England outlet opened up in a suburb of Hartford, the roads in the neighborhood had to be closed down because of the crowds. The opening of the second outlet, also in Connecticut, was put on hold, some say because local authorities needed time to set up crowd contingency plans.
More from the Baseline: Who could deny that part of the appeal of watching Jimmy Connors or Bjorn Borg hit from the line was that they were passing folks like McEnroe, Ashe, Becker? Besides, Connors loved to charge the net at the right moment, something Hewitt rarely does. And Borg could pound from the baseline all day without being boring because he had a seemingly endless repertoire of shots, angles, and spins. Variety is what keeps the game fascinating -- which goes a long way toward explaining why the ladies' game is much more interesting than the blokes' these days. A final between Hewitt and Roddick? It will probably happen soon. Insomniacs, take note. TiVo the match.
Tennis, Anyone? Fine article in WSJ (here, if you subscribe) on the changes that the big serve has brought to Wimbledon. Grass used to be the serve-and-volley player's home court, but power serves and huge racquets have made the returns so powerful that a clean volley is difficult to pull off.
So grass-court tennis has become more like tennis on hard courts. Hit a big serve. Stay back. And wait to hit a short forehand for a winner.
Now, an alarming number of points still come from unreturnable serves, or from rallies in which the returner is never really in the point. The matches may be a bit longer, but not particularly more interesting. This is partly because, while power has increased in importance, strategy has not. (The exception her is the brief dominance of Martina Hingis on the ladies' side. That the petite Swiss could handle the Williamses and Davenport made things very interesting. Justine Henin has some of the same ability.) So two baseliners playing it out at Wimbledon can be nearly as much of a yawn as two big-hitting server-and-volley players going five sets with only a comparative handful of contested points. In any number of big men's matches, service breaks are quite rare.

The Journal points to Andy Roddick as the new Wimbledon player:

But Mr. Roddick's serve is not only blazingly fast, it's also remarkably effective, winning more than 70% of his service points. Even more importantly, that serve holds up under pressure. He plays the big points supremely well, fighting off 66.7% of break points. All this adds up to making Mr. Roddick the world's toughest player to break, with an incredible 89.1 hold percentage.
It's true that players like Lleyton Hewitt and Andy Roddick look to the style of, say, Ivan Lendl. (Amazingly, Lendl, the ice-master of the baseline, served and volleyed at SW19.) But it hasn't been that long since Sampras dominated SW19, with Pat Rafter and Richard Krajicek not far behind. It might be worth waiting to see if the trend holds up. Either way, a smaller racquet would put some life back into the game. But that won't happen soon. For better or worse, the ATP markets itself as a power sport now.
Semi-Vacation: No, I won't be going to an undisclosed location. But I'm going to take a break from the political landscape for a while. Maybe just for today, I don't know. The Palestine question is in firm wait-and see mode. I for one think that the "militants" will use the few months of relaxed Israeli pressure to regroup for a renewed intifada. Israel knows this and will come roaring back in with guns blazing when the truce is broken, which it surely will be. (Update: Already?) Iraq, too, is idling, possibly for a few years of low-level attacks by hopeful former Baathists. A nice clip of Saddam walking spanish on Al-Jazeera would help. I'm inclined to think that he'll be in "exile" for some time. Plenty of places to hide over yonder.

I'm going to talk about some other things for a while.

Friday, June 27, 2003

Nice Turn of Phrase: From Eugene Volokh:
A thought apropos Justice Scalia's dissent in Lawrence v. Texas: When constructing a parade of horribles, the possibility that "state laws against . . . masturbation" (pp. 5-6 of Scalia's dissent) would be "called into question" isn't a terribly persuasive float.
I bet a lot of us had thoughts along those lines yesterday, but none said it so well.
The Prohibition Vector: Now an extensive review of marijuana studies has concluded that while pot affects (they don't even use the word impairs) perception, it leaves no lasting brain damage. Will this have any real impact on policy, medical or otherwise? Maybe in Canada. In America, it may be the ship arriving too late. If it weren't for the Sagan-esque billions and billions of dollars flowing to the states from tobacco settlements, I think tobacco prohibition would be a real threat -- never mind decriminalizing pot. And once tobacco is illegal, the rubric under which a plant can be grown and smoked is put away.

Thursday, June 26, 2003

Death penalty: Just finished reading (most of) the opinion/dissent. Yes most of it went over my head, and I haven't found any great legal minds beaking it down yet, but it seems Scalia makes a pretty good argument. He seems to say that the court threw out the penalty because they disagreed with defense counsel's chosen strategy, but that there was no proof of incompetence. I'm not familiar with the case law, but I gathered the standards for what qualifies as incompetent defense are pretty vague and have changed over time, including from the time the case was first heard/appealed and now. Was the majority applying current standards to a defense that was made under a different circumstances? I don't know, but I'm looking forward to hearing more about this.
All right, I can understand the Pearl Jam: A Pennsylvania congregation held a Sunday service/bonfire at which church members burned Harry Potter books and other offensive media.
Animated videos such as Pinnochio and Hercules were also among the items thrown in the fire, which also included Pearl Jam and Black Sabbath CDs, and pamphlets from Jehovah's Witnesses.
The congregation's spokesman expressed concern that Harry Potter promotes "sorcery, witchcraft-type things, the paranormal, things that are against God."

How tough a job is Sorcery Promoter?

Thanks to Brooke, who also points out this site. Creepy funny.

Brit tennis players: Your point about Greg Rusedski is well taken. I'd be pretty ticked off. But let's face it. Nobody cares. And here's the reason:
Rusedski's defeat leaves Tim Henman as the lone hope to become the first Englishman to win Wimbledon since Fred Perry in 1936
This, sadly, is the story every year. Fortunately, there's always another, more meaningful story, that keeps men's tennis mildly interesting. Will there be another Sampras/Agassi showdown at a major. This year, sadly, that possibility didn't exist, and may never again, as Sampras has effectively retired. I guess that's why it's especially difficult to get up for the fortnight this year.
Domestic dispute: Gee, do you think?
Investigators say Helen Connor, 40, doused her husband with gasoline and set him on fire at their home on 2nd Avenue Thursday morning.
What's astonishing is that the man would sleep in the house after the first icident.
Wimbledon: I feel for poor Greg Rusedski, who burst into a welter of profanity on court yesterday:
As [Andy Roddick] floated a backhand down the court, a fan called "Out" from the crowd and Rusedski stopped playing the point. The umpire subsequently gave the point to Roddick and refused to allow a let for the interjection from the crowd.
I think I would have loudly demanded a f*cking let, too. Worse yet is the embarrassing opinion piece by Christine Brennan, who has the dubious distinction of being wrong every time she sets pen to paper, in USA Today. She begins by introducing Rusedski as "A Brit (actually a Canadian who became a Brit to try to become more rich and famous at Wimbledon, but that's another story)" who had "[o]ne of the silliest and most unwarranted temper tantrums in Centre Court history . . . that almost had [John] McEnroe blushing in the BBC booth." And she quotes McEnroe:
When a tennis player's behavior shocks McEnroe, you know it's pretty bad. "From someone who quite honestly has lost it - I'm speaking of myself - it doesn't make any sense," McEnroe said on the air. "It's an embarrassing way for him to walk off the court. "
Crap. McEnroe has done worse -- far worse -- and he knows it. McEnroe is, in my opinion, the most talented guy to ever pick up a racquet, but for him to play the voice of reason here is insulting beyond words. As for Brennan, who knows why she should choose to be so spiteful toward Rusedski, except, perhaps, that she knows she's full of shit and needs to play the scold to feel better.
It'll have to wait: I'm heading out shortly, and then, bright and early tomorrow, I'm on a plane for another undisclosed location. Back in the game on Tuesday. I'll try and tackle the death penalty case by then, but if you get to it first, have at it (assuming anyone's still interested). My family won't know where I am, as I need to get deep undercover. However, if you hear any murmurings from the Zapatistas, I assure you in advance, it's mere coincidence.
That's what I was getting at: When I said that O'Connor's concept (that you can't make a law just because you disapprove) was a bit off, I was trying to say what Scalia said much better-er. Just about every law we have is enacted in marked disapproval of a particular group or their activities. But, as Eno points out, he loses steam when he starts comparing homosexual marriage to homosexual sex (as we married folk know, sex has nothing to do with marriage). His point about rational basis is merited too, and as I had predicted, the Court took the easy way out: didn't give the homosexuals a protected class status, but found the law "irrational" anyway. I'm not sure the logic holds up. It's too bad the Court has to cut corners this way to get the plurality it needs, but c'est la guerre. Thomas' argument is so passe - that old chestnut about enumerated rights was hot back when Phillip Michael Thomas had a singing career.
Thomas could have concurred: Perhaps Justice Thomas would have been more amenable to an equal protection argument as well. In his dissent he calls the law in question "is...uncommonly silly, "and If I were a member of the Texas Legislature, I would vote to repeal it." However:
Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.' " Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 1.
The Lawrence Case: To return to the big case of the day, Scalia's dissent is withering. I can see why he's considered the big brain on the court. Whether you agree or not, his opinion is quite an admirable piece of jurisprudential work. In particular, his unpacking of the equal protection claim is compelling:
Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, §21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.
It's a great piece of reasoning, up to the end when Scalia uses the marriage restriction to, as Razor likes to say, put the rabbit in the hat. Likewise, when O'Connor makes the argument that the law affects homosexuals as a distinct group, Scalia is again on the ball:
Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely correlated with being a nudist," and hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.
Again, it's pretty reasonable, up to the end. I know that the court, particularly Scalia's side, is typically averse to the recognition of unenumerated rights (though I'm pretty certain that the 9th Amendment demands attention in that matter), but Reynolds has a good short summary of why the onus is, in this case, not on the individual to prove a new right. It's on the government to do more to prove the necessity of an incursion into the realm of liberty. The Constitutionalist argument cuts both ways in this case. Surely it's possible to argue that the Constitution mentions no specific right to privacy; just as surely can it be argued that the Constitution nowhere enumerates any powers that would be odious to the concept of privacy and, in fact, is in spirit quite contrary to such powers (as in the 4th and 5th Amendments). In combination with the 9th Amendment, the plain text would indicate that it is up to the government to make a compelling case that a law threatening privacy or liberty is warranted. I see no such argument.
Initial reaction: I haven't surfed the blogosphere yet, only caught the news on tv/radio (hey, I'm moving this week). I have to agree with Razor's argument, that the equal protection argument was a much more convincing reason for striking down the sodomy law. I don't know which was a better legal argument, only what had me sold. That said, I'm glad the decision went the way it did.
Nike: The court refused to intervene, so Nike will be forced to spend more money defending itself against a silly lawsuit. As the article points out, Nike will have another shot at appeal after the trial. Not much comfort there.

This decision went 6-3, even worse than I predicted. But I have nailed the outcome on all the cases so far.

Mostly, we don't care: My firm is pretty disinterested in these types of rulings from a business sense. We represent banks and corporations/partnerships, etc. in litigation to either get money or stop someone from getting money. So, a few of us talk about these decisions in depth, but most of the higher ups don't pay too much attention. This is mostly due to the fact that we almost never have cases that deal in constitutional issues. No t.v.s on here - only exception that I can remember was 9/11.
Cubicle Culture: What's this like in your office? I know you don't exactly specialize in con-law, but it's a legal story. Hell, in the firm I worked for we had the TV on for the OJ trial. Lawyers and clerks would pop in to catch a bit. Although, we had the TV on for Orioles games, too.
Equal Protection is the way to go: The Due Process argument, although more eloquent and perhaps more compassionate, is the tougher row to hoe. If you say the law violates due process, then you have to say the conduct is not illegal, which, as I love to say, puts the rabbit in the hat. Equal protection is better because many of these laws only go after homosexual conduct, and let the man/woman sodomy go all to speak. That is more compelling, because then, you are not just criminalizing the conduct, but the very "persuasion" of being homosexual. I think that stands up better than Kennedy's rationalizing that in the 1500s, buggery meant a crime against children. But, that's just one man's opinion.

P.S. O'Connor seems to hang her hat on the "moral disapproval" issue - that being it's not rational to create a law just because you disapprove of a class of people in general (as opposed just to their conduct). I'm not sure that's true exactly, but I get where she's going. She's objecting to a sort of thought police - where the government looks into your mind and heart before you do anything, and criminalizes your desires. It's important because it smacks the Santorum/Scalia logic back to the pool of stupid ideas where it belongs, i.e. "I have nothing against homosexuals, just everything they do and stand for."
Rulings: Supremes say no to post-hoc lifting of limitations statute, throw out death sentence due to incompetent defense. No real surprises here, although that capital case opinion will go over my legal head. You on that bitch, Razor?
I'm trying not to picture how this ruling will be celebrated on Christopher Street: I haven't found the opinion yet, but the news wires are excerpting bits of it. Here's some selected quotes from Scalia:
"The court has largely signed on to the so-called homosexual agenda," Scalia wrote for the three, according to the AP. He took the unusual step of reading his dissent from the bench. "The court has taken sides in the culture war," Scalia said, adding that he has "nothing against homosexuals."

That last bit is just a tad gratuitous. I don't understand how you can have "nothing against homosexuals," and yet still try to criminalize their behavior. Don't those two positions seem at odds with eachother. I understand that Scalia would say he's just upholding a state's right to govern its people, but his quote about the "homosexual agenda" reveals his true stripes. Comments like that do a disservice to his intelligence.

Opinions: Thanks to Reynolds for the quick links. O'Connor, in a separate concurrence, makes that "rational basis" argument you discussed, looking toward equal protection rather than due process.
Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental
interest of the promotion of morality. In Bowers, we held that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We rejected the argument that no rational basis existed to justify the law, pointing to the government's interest in promoting morality . . . This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy.
Meanwhile, Kennedy, writing for the majority, points to due process via Griswold:
In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom.
Which reasoning goes a long way toward explaining the GOP line that they'd like to see sodomy laws repealed, but not by the courts. They were loath to see someone like Kennedy affirm Griswold so clearly.
It's Official: Sodomy is legal. I haven't read the opinions yet, but I'm disappointed in Clarence Thomas. As I've mentioned before, since Thomas is married to a white woman, something that was illegal in a number of places not so long ago. I'm not suggesting that justices necessarily vote their emotions, but he must be able to see the idiocy of the government limiting a persons sexual freedom. He voted to uphold anyway.
Lying, For Fun and Profit: I'm interested to know where you think the court will hang its argument in the Nike case. This discussion won't, I suppose, go very far since we should hear the ruling soon. Anyway, I found this very persuasive.
More Supremes: On Nike, I agree, it will go badly for Phil Knight. As for the death penalty, the Court must take this opportunity to lay out clear guidelines on this issue and what "effective counsel"really means. It can't mean winning, but it has to be clarified. Right now, no one knows how to figure out these cases. I agree again that the Court gives this poor sap another chance, but it won't do anything substantive with capital punishment. This Court is not sticking its neck out that far. For the SOL, as heinous as child abuse is, the Judges simply cannot let someone go back 50 years all of a sudden. As sympathetic as we all are, the precedential value on this would be far-reaching and destructive if applied to other crimes. You know D.A.s around the country would be rushing into court for every burglary and arson case, and then SOL's become useless.
Fine Print: Hey, I did post the NRO analysis right afterwards! I pay no attention to statistics and charts. I just go by what I hear on NPR. In any event, there is no denying that Bush has not exactly made the government leaner or meaner. However, in light of 9/11, perhaps he had no choice. I just threw in the budget stuff to get you pissed. The real point is that the rush to canonize Reagan is misguided, if inevitable.
Riiiiight: Take another look at the table in that Citizens for Tax Justice link. Look at both tables. Read the fine print:
The year-by-year fluctations between surpluses and deficits are smoothed in the table for clarity.
This is a statisticians way of comparing apples and oranges. Smoothed averages of 8 years (or 4, on two occasions) of spending in previous administrations compared with one year of actual spending and one year of projected spending for W. Bush.

Now look at the larger table again. If you were to compare year for year, instead of some trumped-up comparision that looks good for your party, you see an entirely different story.

You come see me when you have numbers that don't have to be fudged.

Da Supremes: One of the most technically interesting points that will come from today's decision on the sodomy issue, is the standard the Court chooses to use in reviewing the law. The Court can use "rational basis", "strict scrutiny" (for a "suspect" classification) or "the one in the middle that doesn't have a cute name". The concept is that if there is any "rational basis" for a given law, then you'd be hard pressed to invalidate it. Conversely, where a law discriminates against a "discrete and insular minority," then the law has to be "narrowly tailored" to fit a particular "compelling government interest." Well, you can see that these "tests" put the rabbit in the hat. If you label the group affected as only deserving "rational basis" review, then the outcome is pretty much a given. So, the question is whether homosexuals are a "discrete and insular minority." There is no way on this Earth that this Court will, as a majority, put that label on gays (you could hear Santorum scream from where you are if that happens). More likely, however, is that they apply rational basis and then say that it's simply not "rational" anymore to stop consenting adults from engaging in sex (however you define it) in their homes. This is the most Solomonic way of making everyone happy and unhappy at the same time. I like a 6-3 (I forget what I predicted before). Scalia, Rhenny and Clarence go against, but I wouldn't fall over dead if Rhenny, in a last gasp attempt to rehab his image, throws the gays a bone (pun intended).
Coulter: Yeah, Reagan knew what he was doing. There's no way Reagan knew he would collapse the Soviet Union by forcing it into a fatal tailspin of spending. He did what he did as a sop to his benefactors in the oil and defense industries. Well, okay, I don't know that either, but to suggest that he was some mastermind, cleverly devising a strategy to end communism is a bit much. And, his deficit spending was the worst we ever saw...oh wait, I forgot. Or... maybe not. Anyway, let's not label Reagan's happy accident as something else.
Coulter: I'll give her this: She's funny.
John Hawkins: Do you think the left has largely gotten a pass for being so completely, utterly, and entirely wrong about the effects of Reagan's decision to abandon detente and challenge the Soviet Union?

Ann Coulter: The fact that there still is a Democratic Party proves that.

. . .

John Hawkins: Was the timing of the release of "Treason" related to when Hillary's book was coming out?

Ann Coulter: HILLARY'S GOT A BOOK COMING OUT? You're kidding - I didn't hear a thing about it. Actually I waited 2 extra weeks just to give Hillary a chance to read her own book.

Another good bag-of-softballs interview at RWN.
Tim's Having a Rough Time: Go post him some rowdy comments to cheer him up.
Big Day For the Supremes: I'm guessing that the rulings will fall mixed. Sodomy laws will go down (pardon me!) by 5-4 -- perhaps 6-3 if Clarence has any powers of self-analysis. I predicted 7-2 when the case was heard, but the Michigan case has turned me pessimistic.

The free speech (Nike) case will go against Nike, also 5-4, which will be the most stunning blow to the 1st Amendment in many, many years.

As for the death penalty case, I'm sympathetic, and I think the court will be too. There are a lot of kinks to be worked out of the legal system before I can support capital punishment (if I ever do) again. One of those is court-appointed lawyers who don't offer a vigorous defense. How pervasive is the problem? Who cares? Everyone deserves a competent defense, no less so in a capital case.

The other two cases I know little about. The statute of limitations case is tricky. I don't think there should be a limit for child abuse or molestation; but if there is one, and it is repealed to re-open a case, I start to smell ex post facto trouble. And with the redistricting case, god only knows these days. You'll know things are really bad when the 9th district in Ohio starts picking up voters in Indiana. Until then, it's the Supreme Court's Rorshach blot test, nothing more.

Okay, my bets are in.

Wednesday, June 25, 2003

Anti-Americanism: Read this reasoned and dispassionate history of anti-American thought in Public Interest. It takes no cheap shots at Europe, while sensibly explaining some of the fears and fallacies that have given rise to the popularity of blaming America for the shortcomings of Europe. (My linky thanks go to Lee Bockhorn.)
Whip Me, Beat Me, Regulate Me: Tim Blair says, "And these people worry about Ashcroft. Please."

Note the game proposed in the first comment under Tim's post: "Go to google and do a search on the words: 'EU', 'regulation', and a noun of your choice. It's right scary!"

Pushing a Story: Don't ask me why this shows up in the NYT International section, since it's obviously a domestic story; and don't ask me why it's the sub-line on the web to the story of attacks in Shia-dominated Iraq, since the story -- if you read it -- is about a spat in the State Department over Cuba policy. I have no idea why the NYT would place the story the way they did.

Oh, and the headline. Check it out: "Expert Said to Tell Legislators He Was Pressed to Distort Some Evidence." Remember, on the web this shows up directly under a bad-news Iraq story. And remember, the story isn't really about what the headline says. Now, why would the Times do all this? I can see two possibilities:

1) The Times knows less about the media and the effects of story placement and headline content than this dipshit non-professional.

2) The Times knows plenty about content and layout and did this on purpose.

I'll give you two guesses which is more likely.

Tuesday, June 24, 2003

Korean Kooks: I don't know that I agree with the "minor military challenge" part. Look how freaked out the U.S. politicos got, and the media amplified this feeling, when it took three whole weeks to subdue Iraq. Now, the North Koreans may be starving, and without much hope, but they have one large armed force that does nothing but train all day long (when they're not doing highly coordinated interpretive dance routines in Kim's honor). They also have had about 40 good years to absorb the propaganda machine re: the U.S. being the evil imperialists. Now, might the soldiers start lying down when they're getting pounded? Yes. But I dare say the Koreans would be more than willing to sacrifice a goodly number of their own as long as they take a bunch of us with them. We, on the other hand, lack such intestinal and political fortitude. They have nothing to lose which makes them so dangerous. While Kim Jong will want to hold onto his power, if he sees no way out, then there's no reason he won't start getting itchy on the big red button. The Korean dilemma fascinates me. What's more interesting, of course, is that Jong Il admits he's developing nuclear weapons (hell he throws it in our face every chance he gets) and all we do is send more ambassadors. Saddam was only suspected of having chemical weapons, and we went hog wild. Why? Well, say it with me: "Because we could." With N. Korea, it's not obvious that we can.
The Christ Brothers: I think that Roman historical "Christos" was actually a reference to the Greek guy that ran the gyro place on the corner of 14th and Via Appia. The confusion no doubt stems from the fact that he too was crucified, only in his case for false advertising. He claimed his souvlaki was the most tender and moist in the empire, hence his reputation as "King of the Juice."

Thank you, ladies and germs. I'll be here all week.

Discrimination: Scalia, for all his faults (those I perceive, admittedly) is one smart cookie, and has a razor (har, har) wit. To wit:
The "educational benefit" that the University of Michigan seeks to achieve by racial discrimination consists, according to the Court, of " 'cross-racial understanding,' " ante, at 18, and " 'better prepar[ation of] students for an increasingly diverse workforce and society,' " ibid., all of which is necessary not only for work, but also for good "citizenship," ante, at 19. This is not, of course, an "educational benefit" on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law--essentially the same lesson taught to (or rather learned by, for it cannot be "taught" in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens.

Now that is some motherf*cking jurisprudence. Here's the whole opinion (the law school one).
Jimmy Christ: I remember taking a course on Christian religion in college, as I was interested in the historical aspects of what the Bible had to say. The plagues of locusts are great fun, don't get me wrong, but I was more interested in the divergence of Christianity from Judiasm, how the Romans influenced our conception of Christianity, and whether there was any mention of Christ in the notoriously dense records of the Roman Empire. Funny how Christ was never mentioned outside of one possible reference to a "Christos". Now, one could imagine that he might have been purged by edict of the Emperor, but it still seems unlikely that more cotemporaneous reacords weren't found to reflect any of the Christ boys, divine or not. In the end, it really shouldn't be important whether Jesus was who the Bible says he was, or did the things he was said to have done. The teachings of Christianity certainly are stout enough to stand out without the back story of Jesus' birth, life, death and resurrection. But like any author, the authors of the New Testament knew that violence and special effects put people in the seats. Strangely, they did it without the sex part (which may explain why movie directors have been rushing in to fill the void - see Mel Gibson's latest project for a current example - in Aramic, no less!).
WMD: Departing from the recent Republican revisionism, George Will cuts no slack on the problem of missing weapons:
For the president, the missing weapons are not a political problem. Frank Luntz, a Republican pollster, says Americans are happily focused on Iraqis liberated rather than WMD not found, so we "feel good about ourselves."

But unless America's foreign policy is New Age therapy to make the public feel mellow, feeling good about the consequences of an action does not obviate the need to assess the original rationale for the action.

This is an important distinction that the Democrats aren't making, but should. The Bush Doctrine was explicitly non-humanitarian, and not about nation-building. To be fair, the administration did cite the tyranny of Saddam, the suffering of the Iraqi people, and the plight of the Kurds, all reasons that quite a few liberals were prepared to get behind. But Bush, in the end, did choose to hang his hat on the WMD peg. If nothing else, we once again have a host of questions to answer about the quality of our intel.
The Two Koreas: Den Beste has an extended meditation on the tension in Korea. His conclusions are, in roughly equal parts, optimistic and pessimistic. On the upside, North Korea presents a minor military challenge, at worst. The downside? They know it, and appear willing to use it to their advantage:
They're trying to make it clear that if they feel themselves to have been pushed too far, then they'll attack south. It's not that they think they'll win; they know they'll lose, and their regime will be obliterated (either with nuclear weapons or by conventional force of arms). It's that in doing so they will be able to inflict intolerable damage on South Korea directly, and on us indirectly through economic effect of having the SK economy collapse, as well as in other ways (e.g. direct military casualties).
It's worth reading the whole thing, though it is quite long. For my part, I think Den Beste is spot on. The absolute hollowness of the Northern economy, the starvation, and the utter backwardness of the populace (recall that this is a country that still views Kim Il Sung as divine and Kim Jong Il as his semi-divine essence) conspire to give North Korea no choice but brinkmanship. They're surely not going to lean toward reform. Kim's only choice is to push the west and hope that our reluctance to fight buys another 1994, another treaty (for him to ignore), another influx of aid, another few years for his bizarre and delusional regime.
The Ossuary: The brief swirl around an ossuary, said to be that of apostle (and reputed brother of Jesus) James, that turned up in the Middle East is over. It's a fake, they say. (The famous "They" having spoken, once again.) It was interesting while it lasted. Personally, I don't dispute that Jesus may have existed, that he was a sage, that he was an insightful and spiritual man. Such people do come along, though they're not typically as straightforward as they may appear -- the oddities of Gandhi, who is as close to ecumenical sainthood as is possible, being a good example. The Gospel of Thomas, in that vein, gives a more impressionistic portrait of an eccentric and mysterious Jesus, rather than the sanitized midwesterner-god-the-son with the hippie beard that the modern Jesus has become.

At any rate, actual proof of a historical Jesus would, I suspect, carry a bushel of disappointment and confusion for every grain of consolation.

Imperial Presidencies: This story's getting little play outside the blogs and Fox News (proving, I suppose, the silver lining of journalistic bias); Eugene has a good summary and analysis. It involves Dick Gephardt's statement regarding Grutter and Gratz/UMich:
When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day.
What was that Kinsley definition of a gaffe again? I think it's when you accidentally say what you really think ...

More: Gephardt's barbed non-retraction retraction to ABC. A Volokh/Gephardt smackdown? I'll put $10 on the prof.

On Standing on the Shoulders of Giants: "Bees ransack flowers here and flowers there: but then they make their own honey, which is entirely theirs and no longer thyme or marjoram." (Michel de Montaigne, On the Education of Children)
Gregory Peck: I mentioned Brinkley last week. I had to wait until after the weekend to mention Peck. Why? I needed to see To Kill a Mockingbird again. That film has always seemed to be one of the few films that approaches true profundity so closely that it almost (almost) cannot be discussed well, even though some of the scenes are ambiguous. (For example: When Atticus is at the jail, negotiating with the lynch mob that has come for Tom Robinson, he tells the mob that he won't step aside. In the next shot, we see the scene from further away, as Scout, Jem, and Dill approach the scene, and we hear a couple of the men in the mob speaking to Atticus, though it's not clear what they're saying. As we track closer, we hear Atticus say something like, "Well ... that changes things considerably." Do you remember how it was written in the novel? Is he about to buckle until he is reinforced by the children?)

Peck is brilliant in the role of Atticus, particularly the way in which he underplays the conflict he obviously feels in taking an unpopular case in a very small town. See the scene in which the judge arrives to ask him to take up the defense. There are no obvious christ-like, rolling-eyes, let-this-cup-pass theatrics. But it is still very clear that Atticus is a reluctant counsel. Great understatement -- a lost craft.

Libraries and Pornography: Why are we talking about access to top-tier schools via race categorization, when we should be talking about access to the naughty bits on Uncle Sam's dime? Hey, you tell me which one will affect your life more.

I was all set for a clear violation of the long-accepted "community standards" norm, but now I'll just shut up:

Four justices said the law was constitutional, and two others said it was allowable as long as libraries disable the filters for adult patrons who ask. The law does not specifically require the disabling.
The decision itself sounds fair to me. Since I'm not a big fan of federal funding for community resources anyway, I don't much care about libraries losing funding. (Although I think the federal-funds bullying that comes out of Washington is an example of the totalitarianism-with-a-smile mindset so common in congress.) In the end, you can still get your T&A fix at the public library, but you may have to ask the grandmotherly lady behind the counter to "switch on the dirty pictures, please." (Don't kid yourself. She knows all of the best sites, too.)

Monday, June 23, 2003

Quotas/Diversity: Break out the beer, Flyer had his first run-in with the Razor's edge. I have to admit that I'm surprised to find all of us agreeing that diversity is not enough skirt to cover the ass-crack of the 14th Amendment. I think Razor sums it up just right: What's the difference between reaching a "critical mass" of minorities and an actual quota? It would, at the very least, require a belief in an actual physical principle whereby learning starts a chain reaction when enough brown skin is gathered on campus. Otherwise, I suppose, the white kids sit around dully, like some unrefined uranium ore. (Note, of course, that an inverse principle is not in effect at places like Howard University, a storied institution that has managed to succeed without giving spots to whites, Jews, and Asians.)
Confession: Although I recommended "Dutch" some time ago, I never finished it. About two-thirds of the way through I put it down, fully intending to pick it back up. I just couldn't do it. Your review below pretty much covers what I couldn't put my finger on.
In case you hadn't heard: Howard Dean is running for president. Why politicians' "announcement of the announcement" silliness:
It's like when you get engaged," says Simmons of the Graham campaign. "You don't actually have the engagement party the day you get engaged."
Post writer Mark Leibovich helps extend the analogy:
In the case of his candidate, Simmons says, Graham proposed to the country in February, but he didn't hold his engagement party until May. Howard Dean's engagement party starts at noon. In lieu of presents, send satellite trucks.
Meanwhile: in the People's Republic of Massachusetts:
A police officer who was fired for violating an obscure state law banning smoking among public safety workers plans to fight his dismissal, which was based on an anonymous letter.
That's right, state officials, even off duty cops, are not allowed to smoke cigarettes (or presumably cigars or pipes). Not even on private property. I'm absolutely at a loss to understand this. My brain is overwhelmed with stupidity. My only question is how bad is this cop gonna kick the ass of the person who sold him out. (linkprops to David Kaufman)
Upon further review: it has been determined that your previous post is not guilty of quota-endorsment and its attendant evils. Sorry for the misinterpretation. Your commentary underscores another point of confunsion for me (admittedly, I'm not nearly as informed about the decisions or the specifics of the U.M. practices as many others) How can the Court say that diversity (as an end) is a worthwhile goal and yet not endorse methods to quantify that diversity (no quotas, no points). How else is it measured? I think this leads to more secrecy and confusion in the applications process at universities and graduate programs. The Court seems to be splitting the baby here, giving both sides a chance to claim victory, but doing nothing to answer the fundamental questions at issue.
It takes a make me eat my shoes: Tucker Carlson...gonna eat his footwear (but draws line at necktie). This, I gotta see. More evidence of Hillary's evil influence.
I'm no quota-monger: No, no, no. I don't think it's okay to have quotas. I don't think diversity itself is inherently a good thing or that having a greater mix of students of color will achieve it. This is the presumption that no one dares question anymore, including the majority of the Supreme Court. Diversity admittance was originally supposed to be simply one of the means of achieving the end of a more well-rounded student. However, it quickly snowballed into the only issue, and then supplanted the target goal altogether. I think universities should be open to everyone, and indeed, they pretty much are (except, one used to think, dumb people - but even they have colleges to go to - provided they can pay, of course). The problem is that there is such enormous pressure on educators to out-liberal themselves, that no one stops to question the efficacy and worthiness of their methods, much less the goal. They only care about their statistics to prop up their propaganda ("XXXXX University boasts a diverse campus, supportive of all special interest groups, and opposed to any Western European Male thought.") Where does this get us at the end of the day, however? Anyone, anyone?
Discrimination is okay with me: Your solution to the discrimination issue is difficult to accept, becauses it presumes that a)diversity in itself is inherently a good thing and b)ethnic mix is an effective way of producing this benefit. Neither of these issues is a slam dunk and sacrificing the 14th ammendment (no matter how vague academics makes it) is a high price to pay. I may be more willing to accept these practices by private universities. After all, we've had "historically black" colleges and women's colleges for years, and I have no problem with them. But it's a different ballgame with public institutions.
Re: "...a line around the building..." : Razor, I was sorry to hear you had to fight through the crowd at your building this morning. Here's hoping you won't have to make it through this one.
ACLU convert: Ronald Bailey explains why, this time, he didn't just throw away the solicitation letter. He argues that, despite areas where there is disagreement, support of an organization that is committed to defending civil liberties is a good thing.
Nevertheless, the ACLU is oh-so-right on the vital and timely constitutional issues of free speech and protection of people from unreasonable and intrusive government action.
I am sympathetic to this argument, but I'm still not sure of the ACLU. Their concern over government intrusion on civil liberties seems to rise and fall with the change of party in the White House. If they saw the transfer of power to a large, central government as an intrusion, even when it's done by a democrat, I'd be more supportive. Bailey does list many concerns regarding the Bush administration and its treatment of capturees in its post-9/11 war on terrorism. But he doesn't convince me that this is leading to a scenario where liberty is any more scarce than it was when he was still throwing away ACLU correspondance.
Con Law: Constitutional Law is everyone's favorite and most hated law school class - at the same time. It's a favorite, because it's the most historically interesting class, but more so because it's impossible to be wrong - meaning even if you never read Marbury v. Madison, you can at least argue your way to a "B" minimum - provided you throw in a few catchphrases which you can look up on your way into the exam ("penumbra", "trimester" and "similarly situated" to name just a few). It's the most hated for the same reason - how can you study for a class that has so many wishy-washy precepts? It's hardly like Property Law, where the rules are fixed, and have been so for the past millenium ("adverse possession is 20 years - next"). Con Law is nearly wholly dependent on a court's politics, and the three-part, six-part or ten-part tests they devise to figure out whether some law or act has violated some group's rights can become maddening. Hell, no one can even agree whether to interpret the Constitution as a living, breathing, growing document, or whether you have to go with the "Founders' Intent" -- whatever that means. Anyway, as you both point out very nicely in different ways, with the Michigan case, the discrimination is obvious, but the judges bend over backwards to say it's not, or if it is, then maybe it's okay because the end (it's clearly not the means anymore) is diversity. So then, why not straight quotas as a solution? Take the latest census, adjust upward 10% for hispanics and blacks, 20% for Native Americans (because the Census, too, is discriminatory and under-represents minorities), and 30% for those of the aforementioned minorities in wheelchairs, and just take flat figures of each group. Done, simple, stop your griping.
Preferences: Volokh is, as expected, covering the Supreme Court decisions on race based preferences. And in fine fashion, I'd say. This analysis of the term "discrimination" is important:
Incidentally, though some defenders of race preferences dislike the use of the term "discrimination" in this context, that's exactly what it is. As the Supreme Court has held, City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (opinion of Justice Stevens, joined by, among others, Justice Marshall), the "simple test" for what "constitutes discrimination" is whether a program "treats a person in a manner which but for that person's sex would be different" (in the context of sex discrimination), and the same, it seems to me, is equally true for race, religion, national origin, and so on. And "considering race as" even "one modest factor" in decisionmaking necessarily treats some people "in a manner which but for that person's [race] would be different."
There's so much more to read from him, especially now, as he's about to dig in to the ruling on the Child Internet Protection Act.
TRB: Peter Beinart's Bulletin this week, on the struggles of Liberia and its neighbors against factionalists, is nicely written, until the end. Beinart is correct that we owe something to, at least, Liberia -- which was founded, with less success, explicitly on American principles, and was populated, in part, by the voluntary "repatriating" of former American slaves. In addition, Beinart is well positioned to make the argument, since his magazine was one of the few fearless boosters of the Iraq war on general (and correct) Wilsonian and humanitarian principles and not just WMD stories. (His magazine, I believe, is now stopping citizens in the street to mention this.) There are, too, selfish reasons for playing a larger role in Africa: it's the China of the 21st century. It would be a shame for the GOP to intervene in Africa only on behalf of the next century's potential consumers, but if that's what it takes ...

At the end of his piece, though, Beinart wanders off with this musing:

Second, if the Bush administration isn't prepared to save countries like Liberia, perhaps its supporters could at least stop lecturing Europe about our morally superior foreign policy.
I seem to recall the moral lecturing as proceeding in exactly the opposite direction. If it has become more obvious that Bush sold the war to America on exaggerated claims of a threat, it has also become more obvious that "old" Europe passed an opportunity to depose a tyrant for reasons that were deeply self-serving, all the while congratulating themselves for their sophistication and moral superiority.
Having it both ways: John Kerry and Joe Lieberman were asked for their thoughts on any Supreme Court nominees the president offers up. Said Kerry:
"If this president tries to send us a nominee to the court who is determined to turn back the clock on the rights of women to choose or the constitutional rights of Americans, I will filibuster that nominee."
So it's ok if a nominee has decided, before ever hearing a case, how they would rule on an issue. Maybe not:
"If I feel that President Bush nominates to the Supreme Court a justice that I don't feel is independent or I feel is on an ideological mission or who has basically prejudged cases before they are heard," Lieberman said, "I will either join, or if necessary lead, a filibuster against that nomination."
These guys are just tripping over themselves to pick a fight. But how can a nominee be both independent (not on an ideological mission) and satisfy the candidates' pro-Roe determination?
Off With a Bang: Wimbledon fortnight begins with Lleyton Hewitt, the defending champ and top seed, out in the first round. I like Andre's chances, since his quick hand will help on the grasscourts. I like Grosjean for his determination in the face of superior fire power. Could it be Roddick's year to break out of the pack? He's a banger, but has always lacked discipline. Henman earns a 10 seed, which SW19 watchers understand to be his annual gift.

The girls' side should be plenty interesting, too, with Justine Henin-Heartbreaker coming off a great Roland Garros, beating Serena Williams, the most dominant woman since ... well, her sister. Henin could add some real solidity to the cred she picked up in France. And how about J.Cap? Is she allowed to have a comeback without a misdemeanor arrest intervening?

The best two weeks of the summer begin ...

This Sounds Abysmal: At best. The Supremes, Sandy Day presiding, give lukewarm support to a "narrowly tailored" preference program at UMich. Upside: The points system used for the undergrads was found wanting. Downside: The reaffirming of the idea that, as this article puts it, "student body diversity is a compelling state interest that can justify use of race in admissions decisions." Down the road of that reasoning lies all sorts of evil.
Bush's Lies: In NYT Magazine, David Rosenbaum says he didn't lie; like other presidents before him, he used aggresive salesmanship. I think somebedy around her made that argument on Friday.
Bitter's Back: And in a feisty mood.
Immigration: I was struck with an unusual emotion this morning: I was angered by a news story on the "plight of migrants" or something. Now, my brand of libertarianism includes the open-border deal. Aside from measures for national security, I see no problem with guest workers, immigrants, or other flavor of newcomer. The more, the merrier, as far as I'm concerned. But what angered me was the common notion that the "undocumented" (and what a euphemism that is) workers in America are exploited by capitalism, eaten up and spit out by a heartless system that treats workers as interchangeable parts. This is manifestly absurd to begin with. Why the hell would they continue to come otherwise? And in droves! But that's not entirely the point. Rather, my anger was that the real exploitation is in the other direction: illegal immigrants exploit us. They take advantage of a system that has built jobs, created benefits, endowed prosperity. They pay no taxes, are able to get schooling for their children, can get health care in clinics and emergency rooms, and can even get some welfare benefits, despite lacking citizenship. Dry your eyes, NPR listeners, and wake up to reality. They come because the "brutal" life of a migrant or illegal in America is a hell of a lot better than life back at home. And Republicans, you wake up, too. They will continue to come. A free country with closed borders is a contradiction. Make these people citizens. Tax them (but flatly, please). If Mexico empties, so be it. The strain will only be for a generation or two, rather than artificially attenuated by futile immigration policies. Besides, reform will come in Mexico about the time ... okay, no stupid metaphors. Reform will never come in Mexico. Let these people choose taxed guest worker status or full immigration. Better for them; better for us.
Biography Must Wait: Over the weekend, I read the first few chapters of Dutch, Edmund Morris's quasi-biography of Reagan (based on Flyer's recommendation, if not wholehearted endorsement). I gave up. It's tripe, and it sheds light on the trickiness of early, official biographies. As I'm sure you know, Morris's conceit is to insert himself as narrator, a narrator who, coincidentally, had many brushes with Reagan throughout his careers. The condescension is palpable, the opportunity for cheap psychoanalysis is never missed, and the (all too many) parts that focus on the "life" of the narrator are trite, distracting, and poor service to the reader.

I recall that Morris's apologia for the structure was that he found Reagan enigmatic, inscrutable, and felt that the false-memoir approach was the only way he could see to get at the character of Reagan. Hogwash. Reagan was a thoroughly documented man who lived in the public eye for a surprisingly large part of his life. Many of his closest associates and his bitterest rivals are still alive. A large book of Reagan's own writings has been published recently. Morris's helplessness in the face of all this, his admission that Reagan is essentially unknowable, is tantamount to surrender. But biographies have been written about presidents, some long dead, who were equally inscrutable. (Anyone familiar with the standard scholarly interpretation of the honorable, gentlemanly polymath Jefferson should have a look at the clumsily scheming dilettante who shows up in David McCullough's John Adams.) Further, Morris's surrender endorses the enduring belief that Reagan was an empty suit who smiled behind a desk that never gathered much paper. That he was an actor for whom the presidency was just another role -- one in which he spoke the lines and hit the marks and then went home to watch the rushes.

The book, I think, makes a compelling argument that good biography cannot be done quickly. Morris is too close to the prejudices and politics of Reagan's own time, lacking the benefit of more than 15 years of hindsight. Will history judge Reagan more favorably? Who knows? I think it's likely that he will be seen as a figure of complexity, rather than simplicity. (This change is already happening.) His administration will be remembered for its ideals, but also its many flaws. But, honestly, in the second half of the 20th century, who were the giants in the White House? Whatever your politics, whatever your opinion of either man, there were only two: Lyndon Johnson and Reagan. Of the two, I'd argue that, 50 years hence, Reagan will be seen as the more important of the two. Morris, I think, would never concede that possibility.

It takes a line around the building to piss me off coming into work: Sen. Clinton is signing "her" book this morning at the Borders which is in the lobby of my otherwise noble office building (restored19th century 20-story - right next to what used to be Wanamaker's). Anyway, at 7:50 a.m., the line to get in the front door was already wrapped around the building, and I estimate it to be at least three hundred people long. I've never stood in line to meet anyone that wasn't just married in front of me. I don't get what the "thrill" is of having an "author" make 1/3 of a second of eye contact, scribble his/her name down with the fourth Sharpie of the day, and then move me off to the part where the guy shoots me in the head with the bolt gun. Is this something you take the day off from work for? To stand in a line --- to buy a political memoir?? Anyway, Hillary is doing something right with this book signing. It's campaigning except she gets paid to do it. Now, will she win new support by this? No, because those who are waiting around for her are already slobbering fans, but this will keep her face in the newspapers for weeks to come, even after the initial round of talk shows and "exclusive" interviews fade away. I guess my point, if there must be one, is that I'm somewhat amazed by her drawing power. I just never figured it.

Friday, June 20, 2003

EU Constitutional Disharmony: I just finished reading your Connie links. Was it Fukuyama that said modern liberal democracies do not go to war against one another? Hold that thought. I may be in the minority, but I think full constitutional union, particularly if taxation and foreign policy worm their way in, will be an unmitigated disaster. Countries like Poland and the Czech Republic, who are now stable enough to really rev up the capitalism a bit, will find such behavior frowned upon -- grasping and materialistic, in a very [sneer]American[/sneer] way. Germany, under the weight of punitive labor laws and byzantine regulation, will find the (relatively) free-market approach of the post-Thatcher bulldog an unfair hindrance to economic equality. (See, on this matter, the complaints of the South against the North in the U.S., circa 1859. Suddenly the idea of "union" look a whole lot less attractive to the South. Gunplay followed.)

I don't know what to make of it all. I'm glad it's them and not us in this mess. But it affects us anyway. Just looking at some of the draft "rights" that they enumerate, it seems a ridiculous enterprise, a lemming-like March of the Bureaucrats to the Sea. Imagine if every seat in our congress were suddenly filled by trial lawyers, Ralph Nader, rain-forest activists, "womyn's studies" professors, and nut-fudges who think that the UN is a trustworthy body of well-meaning Gandhis and Schweitzers. Imagine, then, that these clowns drew up a draft "Expanded Bill of Rights," including the right not to be called sh*theads; the right to double park in front of the India Palace when your samosas are piping hot; the right to do tai chi in Riverside Park without people snickering; the right to tell fat people and smokers things that make them angry and make you feel superior.

I assure you, gunplay would follow.

Steyn on Water and Whine: I won't clip the best parts. Too many. Oh, okay, a taste:
[On Iraq's drinking water, supposedly polluted] the third day I was a dab hand, ostentatiously tasting the water and then sniffing to the sommelier: ‘Hmm. I was hoping for a soup├žon more coliform bacteria and a rather more playful parasitic worm. Oh, and stick a cocktail umbrella in the human faecal material....’ But everywhere I went I drank the water and, aside from mild side-effects like feeling even more right-wing than before, I’m fine and dandy.
Go now and read.
Deja Vu? When, you ask, when will I stop going after John Kerry? He's priceless, really. TNR's Primary has given close reading to the Boston Globe's continuing series on the Senator's life story. Today, Michael Crowley notes Kerry's odd relationship with the Grenada invasion:
Finally, Mooney seems to catch Kerry blurring his position on the U.S. invasion of Grenada. Speaking to a Cape Cod newspaper at the time, Kerry sounded appalled by the action. "The invasion of Grenada represents the Reagan policy of substituting public relations for diplomatic relations ... no substantial threat to U.S. interests existed and American lives were not endangered ... The invasion represented a bully's show of force against a weak Third World nation." These days, as Mooney writes, "Kerry often lists Grenada among the U.S. military incursions he says he has supported." Kerry told Mooney that his beef was with "the majesty of the invasion," and not the act itself. But that response doesn't really square with his earlier quote.
Sound familiar? His Iraq waffling, it would seem, has antecedents.

Oddly, in the very next piece on the page, Spencer Ackerman calls Kerry's stand on the missing WMD "brave" and says, "... Kerry is proving that he will not take the easy road when it comes to a matter of war and peace, which is downright presidential." This sounds just a little too puffy to be true, particularly given Kerry's obvious straddling on the war. Check back to that TNR analysis on WMD propaganda, noted below. See who co-authored it? Spence Ackerman. Give it about two weeks; this is about to become the DNC's wall-to-wall push issue.

WMD Propaganda: TNR has the most comprehensive, and compelling, political analysis yet of the Where's Waldo of Mass Destruction flap. It's particularly damning in light of TNR's hawkishness in the run up to the war (though TNR argued in favor of the war on more general grounds to begin with, and never put all its stock into the WMD argument). I think the criticism is fair, and I wouldn't oppose a hearing on the matter. But TNR and the Democrat establishment can be trusted to paint this in the bleakest terms. I think the administration, at the very least, took liberties with inconclusive intel data. I also think they marketed the war well. I'm not convinced they crossed the line into outright fabrication, even though TNR's analysis clearly lobbies for that conclusion.

I'm not going to play the "everyone does it" game, since that's an excuse and not a defense, but I do think you have to admit that this kind of policy marketing happens all the time. It was done with the "genocide" in Kosovo, which, after the inflated figures and comparisons to Nazi Germany passed, was toned down to "ethnic cleansing" and turned out in fact to be rather brutal, if incompetent, forced deportation with awful human rights violations -- but not genocide. (Coincidentally, Daniel Pearl was the point-man, with Robert Block, for the WSJ on Kosovo and investigating the genocide claims. Their work is constantly cited by those, left and right, who opposed Clinton's Balkan policy.) More recently, the international community and the major media colluded to sell us the story of 170,000 missing artifacts in Iraq (actual count came in around 30-ish). This isn't the big deal Bush's critics want it to be, but it could be a real distraction, particularly if the Dems can spin out the hearings into 2004.

More: Stephen Hayes's reply at the Weekly Standard is equally worth reading. With two biased sources, I would guess the truth falls somewhere between.

No shades of grey: Sully links to this WaPo piece on "White Studies". Liberal guilt over slavery has now reached its logical near-conclusion (the conclusion will be when we agree to impose slavery on ourselves to make up for what people did 100-200 years ago), as we devote an entire curriculum to whipping ourselves for our skin color. Listen, equality should be promoted; blind racial discrimination is not helpful to our country's progress in any sector, and is simply wrong. But, to suggest that we need to see white people as oppressors in order to function as a society is ludicrous.
Gaydar: Thanks to Arts & Letters Daily...again. Many people believe they can "tell" when someone is gay. The leather crowd and the dykes stuffing the front of their pants certainly pose no problem to even the most naive among us. But, what about someone who you've only just met, and for all outward appearance purposes, is indistinguishable? Well, a certain academic would say, ask three questions (of a man anyway): 1) Do you like football? 2) Are your best friends women? and 3) Did you play with dolls growing up? No, Yes and Yes means he's gay. If he answers with a lisp, then there's the backup. J. MIchael Baily, a professor at Northwestern, is the one challenging the gay rights crowd by saying that in fact, homosexuals are different, and you can stereotype them. The backlash has been predictable and immediate. Just like Johnny Cochran who tore apart his witness who dared say he could tell if someone was black merely by their mode of speech, the academic community has shouted from its ivory tower that Baily must be stopped. His retort is that just because I say something unpopular, doesn't mean it doesn't have merit. Of course we know that those fighting against discrimination are the worst hypocrites when someone contradicts their cause. Importantly, Baily makes no judgments about homosexuality - in fact, he immerses himself in the culture and counts thousands of homosexuals and transsexuals as supporters. The important question is why is he getting so much flack? If you're not ashamed of who you are, then why would you care if someone simply confirms it?
Feeling Confident? Reading Victor Hanson today, I am (slightly) cheered:
If on the evening of September 11th, an outside observer had predicted that the following would transpire in two years, he would have been considered unhinged: Saddam Hussein gone with the wind; democratic birth pangs in Iraq; the Taliban finished and Mr. Karzai attempting to create constitutional government; Yasser Arafat ostracized by the American government and lord of a dilapidated compound; bin Laden either dead or leading a troglodyte existence; all troops slated to leave Saudi Arabia — and by our own volition, not theirs; Iran and Syria apprehensive rather than boastful about their own promotion of terror; and the Middle East worried that the United States is both unpredictable in its righteous anger and masterful in its use of arms, rather than customarily irresolute and reactive.
Very true. It has been a whirlwind two years, and I expect a fairly convincing mandate for Bush in 2004 based on this.

But really, in the near future, the best we can hope for out of Afghanistan is an African-style quasi-democracy, tempered by a large dose of local kleptocracy. In Iraq, I suppose we can hope for Turkish parliamentarianism, but will probably get the Egyptian variety instead: aid-addicted dictatorship with some occasional elections -- the kind that take place all over the world with Jimmy Carter "observing" from the nice suite in the capital city Hyatt Regency. In Jerusalem, can we do better than Belfast? The debate over the future of Hamas right now (political party vs. terrorist organization) is a fairly obvious replay of what Sinn Fein went through -- i.e., if you want to play in the political sandbox we're building, you'll tell your friends with the bombs to dangle.

My concern, then, is that we're not on the brink of a new paradigm in the mideast; rather, that we're remaking the mideast in a cold war mold. In the cold war, a crummy anti-communist dictator was better than a check mark in the Soviets' Latin American column. I fail to see how our bargain with, say, Pervez Musharraf -- or whatever regime appears in Iraq -- is different in kind, only with Wahabbism replacing the Marxism as the ideological soup du generation for guerillas.

Tell me what you really think: To see what the Connie's opinion is about said EU Constitution, read here. Note: It ain't pretty.
Talk about a consti-tuuuutionnnn: The Connie, as always, doing a fine job in boiling down a highly complex issue into understandable snippets. I'm talking about the EU Constitution of course. The basic concept is easy enough to grasp: replace each EU member-country with the original 13 colony/states, and 2003 with 1787, and you get the picture. However, it was, I dare say, a bit easier to federalize 13 nascent states than it is to unify under an umbrella document, 15 (currently) long-established nations, who, not that long ago, were shelling one another. Nonetheless, if one is to make a go of the EU, then a constitution is essential. Some telling points are worth mentioning:
On the other hand, in some respects the constitution is creating the form of state institutions without providing the substance. Thus the so-called foreign minister has no power to make policy over the heads of national governments, who retain vetoes over the making of EU foreign policy and control of their own armed forces. The EU will not be able to raise taxes nor, probably, harmonise them either. Thus two of the central features of a state—the power to raise taxes and to go to war—remain outside the grip of “Brussels”.

So, from the get-go one wonders if this document is worth its ink, but reading on, one can appreciate the complexity of the issue at stake. It's not just taxes and defense. It's economic union, legal precedence, and even whether a president will govern the whole mess. Of singular importance is the EU version of the Bill of Rights, called, in typical bureaucratese "The Charter of Fundamental Rights." Hmmm, what kind of rights might a European be interested in?
The charter mentions wide-sounding social rights—the right to strike, the right to a job, the right of workers to be informed and consulted, even “the right to a free [job] placement service”.

Aha! Now the dirt is being pulled away from the root. As much as the Euros want to show their progress with this modified Bill of Rights, they can't help themselves with all this economic tinkering in what ought to be about basic human rights. But there's the rub. To a European, the right to strike is as essential to them as the right to free speech is to us. Vive la Revolution!
Fire-Breather: I don't much care for Ann Coulter; I disagree with her about so many things. But I will say this: she is brilliant. She and David Horowitz are about the only two conservatives (to be fair, Horowitz is quite socially liberal) to recognize the rhetorical "missile gap" in the culture war. Back in the 1960s, back when Horowitz was on the Maoist side, the left significantly stepped up the rhetoric against the right: they were pigs and fascists, cold-hearted social darwinists who wanted to gas the poor, rape the environment, take away civil rights, throw the geezers off medicare, and retire to their smoke-filled parlors to have a chuckle about it all. Simply put, the message on the right was that the left was wrong; the message on the left was that the right was evil.

To this day it continues, with few exceptions. One of the exceptions, Horowitz, is dismissed as a right-wing demagogue, which he essentially is. But he learned his trade and tactics on the left, and now only practices the same craft on the right. That is one of the most subtle bits of media bias. Horowitz, who is taken very seriously on the right, is dismissed as mainly a crank by the mainstream media because his rhetoric is, objectively, over the top. But no more so than the rhetoric of Jesse Jackson, who until a few years ago was thought of as a serious American statesman.

Another exception, as her success shows, is Coulter -- who learned, mainly from the likes of Horowitz, that telling the truth will get you zero attention. Exaggeration, dramatics, bold accusations, and hot-button words are a publicity hound's best friends. So why is she suddenly getting the mainstream attention Horowitz never got? She's got nicer legs.

Anyhoo, my point is that Drudge has the scoop on her book, Treason, which has already pushed Hillary down the charts on Amazon. Here's an example of what I'm saying -- Coulter on Tailgunner Joe:

Despite the left’s creation of a myth to defeat legitimate charges of treason, McCarthy had so badly stigmatized Communism, his victory survived him. In his brief fiery ride across the landscape, Joe McCarthy bought America another thirty years. For this, he sacrificed his life, his reputation, his name. The left cut down a brave man, but not before the American people heard the truth.
Honestly, who really believes this? The honest right repudiated McCarthy; Buckley, who saw the actual Pinko threat from his CIA time, still thought McCarthy was doing more harm than good; even his protege, Nixon, moved well to the left and went to the ChiComs with hat in hand. So why does Coulter make him the hero? Because it gets headlines, makes a splash, and offers a chance to use the leftist tactic against the left: be loud, outrageous, and totally confident -- and the public will follow.

Thursday, June 19, 2003

More Marriage: My turn. Kurtz's argument puts the rabbit in the hat, so to speak. Monogamy is not inherently healthy; adultery (strictly defined) is not inherently evil. If marriage is an agreement, than it depends on the terms the two parties agreed to. If the agreement is to have wild flings every month, then that union is successful (and unlikely to result in divorce). If the parties agree to remain faithful (the traditional view), then one getting some on the side is in material breach. The government simply cannot regulate marriage any more than it can tell you what color to choose as your favorite - the government recognizes this because adultery is not a crime. The church, which arguably can regulate marital norms, has no enforcement arm (aside from that pesky threat of damnation), and thus, its merely guilt that keeps one "faithful". If the goal of marriage is to keep them whole, then the agreement between the parties as to how should be irrelevant. If, as Kurtz suggests, the goal is to keep them "moral", then you have to assume everyone buys into your moral construct, which simply cannot be tenable. Gender of the marrying couple would seem entirely beyond the point - unless you are to say that "gays are all alike." Is Kurtz saying that??
Marriage II: Enobarbus, I broke my vow (no pun intended) to avoid NRO during their over the top beg-a-thon to read Kurtz's latest argument for disallowing marriages to gays. He reasons that gays will not take seriously their vows.
Indeed, a substantial number of gay couples openly reject such expectations and declare that their interest in marriage is confined to its economic and legal benefits.
Oh right, and gays don't want marriages, they want weddings. Isn't that what we used to hear. In fact, they may be openly hostile to the values a "good" marriage is based on. Kurtz continues:
More than this, many homosexuals look to same-sex marriage as an opportunity to intentionally subvert the ethic of sexual fidelity and ethos of sexual complementarity that they consider keys to the "oppressiveness" of marriage itself.
As you already pointed out, heterosexual couples can be just as cavalier in their faithfullness, yet the presumption at every new couples' nuptials is that their marriage will last. It's this confidence (or optimism) that makes marriage still meaningful to members of a generation that has seen this and other institutions shredded by those before us. Bad marriages will always do some harm to the institution and good marriages will continue to lift it up, no matter the sexual orientation. I'm in favor of giving the same optimistic support to gays as I would to any straight couple. Kurtz is not.
Marriage: I'll stop after this -- unless I don't. The claim by Stanley Kurtz et al that allowing gay marriage would change the institution of marriage as we know it is technically correct. But this is no different than claiming that allowing women the ballot in 1920 "changed the institution of voting." It's not a logical argument against anything. Kurtz may go on to argue that marriage, as an institution, would be changed in ways he dislikes, but this too is not an argument of reason; it is simply a statement of preference. Would gay marriage, as Kurtz argues, lead to a breakdown of monogamy within marriage? Perhaps, but so what? Adultery is an individual choice, and however much we may frown upon it morally or accept it as a transgression of the marriage contract, it is most certainly not against the law in any real way. And what of infidelity in general, among heterosexual couples? Doesn't that add to the stress on the traditional definition of marriage? On the contrary, one could even argue that the traditional definition of marriage comprises infidelity, to a greater or lesser extent, in different cultures. Even in America, various studies have shown that a minority of married couples are monogamous throughout the life of their marriage. This is not to say that the definition of marriage suggests or even condones extra-marital affairs, but the institution is at least flexible enough that it has withstood infidelity, arguably, for as long as it has existed.

Most importantly, fidelity, like any aspect of a marriage relationship, is a choice. Thus, Kurtz can still have a monogamous marriage (and be proud of it) while the couple down the street (let's call them Hillary and Bill) have a different arrangement. It takes nothing from Kurtz's marriage (in fact, one could argue it makes his marriage all the more exemplary, by his criteria), just as nothing in his marriage would be lost if the married couple down the street, whatever their views on monogamy, were gay. But the conservative position turns suddenly very deterministic at this turn of argument, as is plain in the argument of David Frum today:

People’s behavior is affected by the legal regime that governs their behavior. Change the rules, and they change their behavior. Gay marriage advocates are able to grasp the point that new rules mean new behaviors when they are explaining why marriage would be good for gays. It’s disingenuous then to turn around and look baffled when opponents of gay marriage point out that new rules will mean new behaviors for straights as well - and that these new behaviors are very likely to be undesireable.
Undesireable to whom? And why? Again, how is it Frum's business what sort of arrangement Dick and Jane (or Dick and Harry) have? This is nonsense, really, like the argument that liberalizing drug laws will cause otherwise stable members of society to bolt for the seamy side of town to smoke some rock. And that, if one white-shoe lawyer, succesful CPA, or renowned surgeon does decide to do so, it sullies us all somehow.

What concerns me more is that fellows like Kurtz (who is otherwise rather moderate, socially) take such a strong, invasive position on this subject. They seem overly concerned that what amounts to a private arrangement between two people conform rather strictly to what amounts to an arbitrary standard. They may argue (from a biological standpoint) that a man-woman union is anything but arbitrary, but that would be missing the point entirely. Marriage is a socially created institution, not a biological one. It therefore adapts to society, and anyone who claims otherwise must account for the way that marriage adapted to egalitarian society out of a stricter, more feudally stratified institution -- such as is still to be found in caste societies. Thus, the overreaction of the marriage-protection crowd, on this issue, comes out smelling a whole lot more like homophobia than they might care to admit. I'm not a fan of the word homophobia; I think it is usually fairly inaccurate in its use against people who view homosexuality as immoral (as is their right). But on the issue of gay marriage, there does seem to be some fear at work -- fear that sharing the institution of marriage with homosexuals will degrade or denigrate straight marriage. (This is why, I think, the most common strategy of the marriage-defense movement is to define homosexuals as "other," particularly in the area of promiscuity.) It will change marriage, but it will not denigrate the institution, any more than Dick and Jane's swinging weekend in the Poconos will.

Tell me how you really feel: Stephen Green vents on HRC.
Sticks and stones: OpinionJournal reports more about the Miami dj's who prank called Castro on Tuesday. After one of the dj's let Fidel in on the joke The Beard went off:
The Washington Times gets a bit more specific: "The Cuban leader hurled profanities at Mr. Santos and his mother and questioned her marital status at the time of Mr. Santos' birth. Mr. Castro also questioned the disc jockey's sexual orientation."
Maybe the Hollywood left will decide it's okay to cozy up to a murderous dictator, but not a homphobe.

Charter schools mixed results: The Washington Post today reports on the good, the bad, and the ugly among D.C. charter schools. The most important lesson is that just because some new age goofball or racial hate monger wants to try out their idea of education doesn't mean they should be allowed. At the New School for Enterprise and Development:
In a history class down the hall, students were talking as a teacher sat behind his desk listening to rap music blaring from a boombox.

Rap was playing in the neighboring classroom, too. The teacher said she was filling in for another instructor and was letting the students spend the period just listening to music because it was Friday and "they have to have one day where they can mellow out."
The sad thing is that the worst examples of charter schools seem to be an improvement over the D.C. public school system.
Phonshanta Franklin said friends told her to avoid the regular schools after she moved from Maryland to Southeast Washington. She picked her four children's charter schools based largely on which ones had space and were closest to her home. "It was just charter schools, period," she said. "It was not which one."
However bad any individual school is, though, the fact that competition has entered the market is a positive. Studies have shown that both charters and voucher programs increase parental involvement which will hold schools accountable in the long run. The market will weed out the idiots.