July 23, 2005

"I'm glad we had Souter-phobia."

Fred Barnes writes about "Souter-phobia" in the White House and how Bush's key question to the five persons he interviewed was whether they'd be the same 25 years from now. Roberts made the right impression: he wasn't going to "grow in office." As Barnes tells it, the Bush folks turned their Souter-detection machinery on full blast:
Bush advisers studied how the nomination of Souter came about. It wasn't that Souter, who'd served on the New Hampshire Supreme Court and, briefly, as a federal appeals court judge, misled his interrogators on the staff of the elder Bush. The problem was that the White House "didn't ask, 'Are you a conservative, why, or when did you become one?'" an aide to the current president says. "They didn't ask any of those questions." Those questions were asked of Roberts. "I'm glad we had Souter-phobia. If we hadn't asked these questions about judicial philosophy and the view of the court's role, the nominee wouldn't have been John Roberts."

Roberts is not a "stealth" nominee in the Souter mold. "We know a lot more about Roberts than was known about Souter," a Bush aide says. Roberts went through the confirmation process before, when he became a judge on the U.S. Court of Appeals for the District of Columbia. He was endorsed by much of the Washington legal community and by colleagues from the Reagan and first Bush administrations. The president received messages through intermediaries that conservative Justice Antonin Scalia felt Roberts would be a great addition to the High Court....

Besides the Bush interview, Roberts had to pass another test, the Rove interview. Karl Rove, Bush's deputy chief of staff, and legal counsel Harriet Miers talked to the candidates for the court at length. Rove, too, was interested in finding out if Roberts was really a conservative and would remain one on the court. He came away convinced Roberts is no Souter.
So I guess Scalia will welcome his new colleague, and I wonder how all of this pains poor David Souter. Or is he completely aloof, distanced, and bemused?

The ugly last gurglings of a band.

There are three surviving members of the Doors: Ray Manzarek, Robby Krieger, and John Densmore. Manzarek and Krieger want to tour and play, and they asked Densmore to join them, but he can't, because his ears are too damaged. So Densmore sues to prevent Manzarek and Krieger from using the Doors' name, and he wins because the three have a contract providing that they must all agree (along with Jim Morrison's estate) to any use of the name.

Densmore's all "I'm just so happy that the legacy of the true Doors, and Jim Morrison in particular, has been preserved by this decision."

Quite aside from his apparent legal right to prevent Manzarek and Krieger from using the name, don't you think Densmore's being a jerk? Or are you buying this "legacy of the true Doors" business?

Set your TiVos.

If you're in Madison. I'm going to be on "For the Record" tomorrow. That's WISC-TV, at 10:00 a.m., right after "Face the Nation," (going head-to-head against "Meet the Press"). The topic is what you'd guess it would be.

"People will be afraid to walk the streets, or go on the tube, or carry anything in their hands."

The man the London police chased down and executed point blank with five shots had nothing to do with the terrorist bombings. I'm sure the real terrorists are delighted when things like this happen. Now everyone can be afraid of the terrorists and the police. More fear, more dispersed. What a shame!

UPDATE: I have a more positive outlook the next day.

Is Althouse planning to use her name in all future post titles?

And keep referring to herself in the third person? Has she gone not only liberal but stark raving mad?

Is Althouse having an unusually liberal day?

If you're marshalling the evidence, consider that she just bought this to read and this to watch.

Both are making me her laugh a lot today.

Althouse is having one of those mornings...

Where she links to all of her friends, seemingly. So let me include Tonya, who just had a birthday. Here's a photo of her beautiful cake into which, lacking candles, they stuck a lit match.

I've never seen that before, though it seems like something that must have been done before. Seems like a good metaphor. But for what?

"The Dread Pirate Roberts."

Oscar: "The only hope for us liberals is that Roberts has been cagily angling for this Supreme Court job his whole professional life."

UPDATE: Why isn't the best hope for liberals that a diligent, neutrally principled, brilliant, skilled judge would interpret the Constitution to mean what you think it does? Do you really think the liberal outcomes are produced only by liberal political leanings? I notice that the Justices who disappoint the Presidents who chose them were -- in recent times -- all appointed by conservatives, yet you liberals don't even bother to argue that the reason the drift goes to the left is because that's where honest, legitimate interpretation takes you. You would think we'd hear that argument all the time, and yet we don't! I mean, just as a political argument, it's good. But might it perhaps be true -- you know, that the Constitution really does guarantee our liberties?

Just not that into you.

Nina's got some nice pictures from Washington, D.C., including matched shots of two couples at the same fountain. One photo is labelled "he's just not into her" and the other "he's into her."

Yes. Body language. It's pretty readable, isn't it?

Showy lawprofs.

Todd Zywicki thinks Judge Roberts might have had a tough time getting respect as a lawprof -- for reasons that suggest something has gone seriously awry with this lawproffing game of ours.

Storming.

A thunderstorm rolls in and the kids across the street all start to squall.

"Look better. Feel better."

An old barbershop.

East Washington details

East Washington details

“Too yin. You need more yang.”

Richard doesn't want to go to a martial arts competition located in a suburb of Dallas, but he goes -- though it's contra tai chi principles as he understands them -- because his tai chi teacher requires it. At the link: description of tai chi and contemplation of life (and marriage) using tai chi-related ideas.

J.K. Rowling, not the "pimply loner freakazoid" compensating type.

Jeremy explains why the Harry Potter series is so appealing (even to adults):
[I]t's full of cleverness but doesn't start taking its world too seriously--you don't get the image of some creepy male author sitting in an attic typing out page after page of the fantasy world that he had first started conjuring as an adolescent as a way of coping with what a pimply loner freakazoid he was.
Hmm... how many authors is he slamming there?

The nominee's wife -- and conservative feminism.

The NYT looks at Jane Sullivan Roberts, the wife of the new Supreme Court nominee. Ms. Roberts is a lawyer who does pro bono work for a group called Feminists for Life. Interestingly, Senator Kennedy himself has said that the wife's activities "ought to be out of bounds" as a subject of inquiry. But, obviously, people are going to think about anything that might give insight into the fairly inscrutable Judge Roberts. And the concept of "Feminists for Life" is quite intriguing. The Times quotes their mission statement:
"Abortion is a reflection that our society has failed to meet the needs of women. Women deserve better than abortion."
Notice that you don't have to want Roe v. Wade overturned in order to say that. Doesn't that statement align fairly well with what many pro-choice Democrats -- such as Hillary Clinton -- say about abortion? Feminists for Life, do, however, want to see Roe overturned:
In previous years, the group weighed in on litigation seeking further restrictions on abortion, but [Feminists for Life president Serrin] Foster said that was before Mrs. Roberts joined the board.

"We're not a litigious institution now," Ms. Foster said. "We decided we were not a legal group; we were going to go after parenting resources and pregnancy resources, and Jane was part of that redefinition. She came on at that time."

Sensing the highly charged atmosphere around the issue, longtime friends and colleagues of Mrs. Roberts declined to speak this week about her views on abortion. But they characterized her political and social views much as her husband's friends have portrayed his in recent days: expressly conservative, but not dogmatic.

"Jane has very strong personal convictions, politically and with regard to her faith," said Christine Kearns, a friend and colleague who has worked with Mrs. Roberts for 18 years at a law firm now called Pillsbury Winthrop Shaw Pittman. "But as long as I've known her, I've never known her to impose them on others or to be unwilling to listen to other people's points of view."
I hope that strong liberal feminists see the value of feminism within conservative thinking. Partisan Democrats sometimes think they own the allegiance of feminists, even to the point where they think their offenses against feminism won't matter. I lost my allegiance to the Democratic Party over one of those offenses. I put feminism above partisan politics, and I look for connections among those who are concerned about women's issues. Maybe you'll consider doing that too.

Bonus info: Ms. Roberts used to drive a VW Beetle, and now she drives a PT Cruiser. Analyze that.

"Anatomy of a Rumor."

Marty Schwimmer, a lawyer, has "An Anatomy of a Rumor" but characterizes a post of mine badly enough that it took me a while to absorb his whole analysis. He writes:
Ann Althouse a law professor, reads Wonkette's piece, notes that she had come to the same 'conclusion' that Wonkette did, and therefore she concludes that the NY Times had intentionally placed the bits about Peppermint Patty (and a photo of Roberts in a 'all-male wedding photograph' (as in photo of the groomsmen)) to plant the notion that Roberts was closeted.
Here's what I wrote in the linked post:
I read the same NYT piece Wonkette did.

And the same notion crossed my mind. I do think the NYT piece was subtly constructed to plant this idea. Just look at the series of photographs they chose: young John in plaid pants, young John with his boys' school pals, young John in a wrestling suit with his fellow wrestlers, John with footballers, and -- the final pic -- John smiling in an all-male wedding photograph. The article also says Roberts married his wife when both were in their forties and that that their children were adopted.
A notion crossing one's mind is not a "conclusion" -- in quotes or out of quotes. My point is that reading the NYT piece was making me think something. Once conscious of the notion arising in my head, I set out to track down what was making me think something that I had not directly read in the article. "Conclude" is even too strong a word for my suspicion that the Times had tried to make the nominee look gay.

But I am aware that my commenters and other blogs, including Powerline, have picked up the notion that "the left" is deliberately rumormongering and that my post is a link in the rumor chain and taken to mean that the NYT in fact tried to hurt the nominee by creating the rumor. Schwimmer makes the important point that many people will only read Powerline. And Powerline, notably, doesn't even link back to me, but only to Charmain Yoest, who writes that I "might have a point" about the NYT article.

Schwimmer writes:
Gordon Allport, in the 'The Psychology of Rumor' describes the manner in which rumors are transmitted (I'm using Malcolm Gladwell's summary of Allport from his book 'The Tipping Point'): The story is leveled - details essential for understanding (such as the fact that Wonkette is a humorist) are removed. The story is sharpened - the source of the 'facts' are no longer Wikipedia and the NY Times but 'the left' and 'Democrats.' The story is assimilated - the story is changed to make sense to those spreading the rumor. The Democrats are spreading a scandolous rumor about the innocent nominee for their own purposes.

That story will [make] more sense then that someone would make a not particularly funny joke about Roberts being on the wrestling team, at least to those who will link to the Powerline without checking the links back to Manhattan Offender and Wonkette.
This is decently analyzed, but it doesn't really get my role straight. I checked Wonkette after I read the Times piece and thought it made the nominee look gay. I figured if the article was really giving off that impression, Wonkette would probably have something to say about it -- and she did. So my thoughts didn't have an origin in Wonkettish japery. My thoughts had their origin -- as much of my blogging does -- in reading a newspaper article with an awareness of my own impressions. I wasn't passing along and transforming a rumor (though getting some confirmation of the impression from Wonkette did encourage me to blog the impression).

People should notice how strong a move Powerline made! John H. Hinderaker, a lawyer, wrote:
They Were Already Beneath Contempt...

...but now some Democrats have sunk lower. They are hinting that John Roberts is a homosexual because he was once photographed--more than thirty years ago--wearing plaid pants. You think I'm making this up?...
Now, I'm the only one who brought up the pants. Am I suddenly "some Democrats"? Or is the NYT "some Democrats"? Who's doing the hinting in Powerline's analysis? If you're going to hurl such contempt out into the world, shouldn't you get it straight whom you're talking about?

The fact is: not one person, let alone any "they," "hint[ed] that John Roberts is a homosexual because he was once photographed... wearing plaid paints." One person, me, thought that the NYT was trying to create the impression that the nominee is gay through (among other things) a photo layout that included the picture with the pants. Innumerable people have pointed out that the pants, while awful, are not the sort of thing a gay man would favor. But you have to see the sequence of photos of Roberts grouped with lots of men and not one woman. The overall picture of enthusiastic male camaraderie is quite strong. Yet, of course, the NYT has complete deniability. Shame on me, they can say, for reading anything into it. That's why I considered it "subtly constructed."

I started out writing this post irked at Schwimmer for making me look like the person who deviously extracted that satire from the observation that the NYT is making Roberts look gay, and I do want to correct that. But in the end, it's Powerline that I'm really irked at. Is this Powerline's modus operandi or just an isolated lapse?

July 22, 2005

Secretly hating ScarJo.

Too mean! Too True!

The Arguing Couple podcast genre.

Virginia Heffernan writes about podcasting in today's NYT and reveals that her favorite podcasts are just weird, interesting couples who fight each other. Nice voyeurism factor, and if the people are feisty and articulate and funny -- sure, why not listen in? Haven't we all had neighbor couples who argued all the time? At least this way you have your choice of whom to listen to and when you're in the mood for a listen. Podcasting as controlled eavesdropping.

Unbearably sad photo.

I saw this picture yesterday, and then again today when commenters said I should link to this blog. I haven't written anything about it. I can't begin to collect my thoughts. I will just say that is the saddest photograph I have ever seen. Unbearable. Unbelievable. The senseless execution of children.

"It was a close thing, but Benedict Arnold's bold plan to capture Canada for the Revolution fell short at the Battle of Quebec in early 1776."

That's the first line of one of John Roberts' Court of Appeals opinions. (I'm trying to read/skim them all.) I love the line. I especially love the use of the word "thing." That shows a depth of understanding about writing style. Less able writers would fuss about the word "thing" -- not formal enough? not specific enough? Law review editor types would probably agonize over the antecedentless "it" and the passive voice "was" and get a prudish editor's nausea before they even hit "thing." But Roberts has a surer hand. So, I have great hope that he will bring a fine writing style to the Supreme Court.

Of course, after the nice opening sentence we have to read this:
As a result, the Federal Energy Regulatory Commission must now decide when affiliates of Canadian utilities -- utilities not subject to FERC jurisdiction -- may sell power at market-based rates in the United States.

Jeez, D.C. Circuit Court cases are dull -- all that federal regulatory dreariness. Everyone keeps jabbering It's the second highest court in the land after the U.S. Supreme Court. What they fail to say is that it's the first most boring court in the land. What good fortune to be nominated to the Supreme Court, but what double good fortune to escape from the D.C. Circuit. All you Fifth Circuit judges who didn't get picked: at least you have an interesting case load where you are.

(The quoted case is boringly called Consumers Energy Company v. Federal Energy Commission, 367 F.3d 915 (2004).)

"The notion of a connection between physical and mental potency is, of course, silly."

Jonathan Chait frets about what he sees as President Bush's obsession with physical exercise. Bush seems to exercise an awful lot and also seems to want his associates to do the same. Why?
My guess is that Bush associates exercise with discipline, and associates a lack of discipline with his younger, boozehound days. "The president," said Fleischer, "finds [exercise] very healthy in terms of … keeping in shape. But it's also good for the mind." The notion of a connection between physical and mental potency is, of course, silly. (Consider all the perfectly toned airheads in Hollywood — or, perhaps, the president himself.) But Bush's apparent belief in it explains why he would demand well-conditioned economic advisors and Supreme Court justices.

Is it really "silly" to believe that physical exercise has mental benefits? I've heard plenty of very smart people profess that belief. Personally, I'm not interested in exercise. I'm happy to walk a lot and have good stamina, but I don't set aside time in my day just for the purpose of exercising. And all that strenuous, self-improvement stuff people do -- ugh! I'd rather improve my mind with the traditional intellectual efforts: reading, writing, stimulating conversation, and plain old thinking. (All of which I can do while walking, by the way.) So I'm not personally following the exercise-for-the-mind plan. But is it silly to think exercise is good for the mind?

I do think it's silly to think that exercise is necessary for the mind. (It would be bad news for the very old and the disabled!) Right? But perhaps it is justified to form a negative assessment about the judgment and diligence of a person who is overweight and flabby, as Bush seems to do. What do you think? Is it unfair prejudice in hiring to make inferences about the mental capacities of a person who is in bad physical shape?

Congratulations to everyone who has recently received good news!

Yay! Wow! Cool!

If you collect a lot of money for a cause, do you have to spend it?

Even if you'll look like a fool spending it? Here's an LA Times piece about the advocacy groups that just couldn't resist immediately crying out against the Roberts nomination (and the Senate Democrats who at least have the sense to see that instant opposition will make them look bad).

In the vicinity of the President, dress appropriately....

But not too appropriately. By all means, lose the flipflops, but if you go for perfection, we're going to have to slam you in the Washington Post.

July 21, 2005

"If you're going to waste some water, you might as well waste it for a year. It's always good to complete projects."

You could probably come up with some ideas for some other art projects in this mode.

And the fastest-selling download of all time is...

"Sergeant Pepper's Lonely Hearts Club Band."

"This is the sort of person who rises when a movement is mature and running things."

David Brooks is in love with the Roberts nomination. Really! He's trying to write poetry to it -- it, the nomination -- not to Roberts. The poetry comes out in a dorky, Brooksian way, but it's rather touching, nonetheless. What he loves so much about it that it shows "the face of today's governing conservatism." And it's such a charming face:
Roberts is a conservative practitioner, not a conservative theoretician. He is skilled in the technical aspects of the law, knowledgeable about business complexities (that's why he was hired to take on Microsoft) and rich in practical knowledge. He is principled and shares the conservative preference for judicial restraint, but doesn't think at the level of generality of, say, a Scalia. This is the sort of person who rises when a movement is mature and running things.

I read the same NYT piece Wonkette did.

And the same notion crossed my mind. I do think the NYT piece was subtly constructed to plant this idea. Just look at the series of photographs they chose: young John in plaid pants, young John with his boys' school pals, young John in a wrestling suit with his fellow wrestlers, John with footballers, and -- the final pic -- John smiling in an all-male wedding photograph. The article also says Roberts married his wife when both were in their forties and that that their children were adopted.

IN THE COMMENTS: A serious hypothetical about a religious conservative living the closeted life.

UPDATE: I discuss the role of this post in a rumor chain here. Please read that newer post before engaging in flights of fancy based on this one.

"Judge Roberts 'said to me a long time ago there was no case he had been on where he couldn't have done the other side.'"

That's a quote from Richard Lazarus, one of John Roberts' law school friends.

Is this man a litigator to the core?

"Always more focused more on the craftsmanship."

Here's another passage from that NYT article on Roberts. (It moderates that picture of Roberts' concern with style of substance, seen a couple posts ago.)
[Law school classmate] Galebach recalled that he was more politically outspoken than Judge Roberts ever was on campus. "From our time in law review, it wasn't like John was a gung-ho conservative," he said. "He wasn't active. He wasn't a gung-ho liberal on liberal causes. He was always more focused more on the craftsmanship" of the law.

Mr. Galebach said the fact that Judge Roberts's position at the law review was managing editor "tells a lot about John." He added: "Managing editor is the one who just makes sure everything is done to a high level of quality. It's the ultimate position of not injecting your own views, but allowing other people to reach high levels of scholarship."

Ah, yes! All you managing editor types! You know what that means.

(And I see that Roberts wrote a student piece in the Law Review on the Takings Clause. People concerned about Kelo might want to check that out.)

Goal I'm almost ashamed to admit.

I started to write a post with that title, but realized I was too ashamed to admit it.

"The English teacher used to talk about his papers after he had written them because they were outrageous but very well crafted."

Another interesting basis for insight into John Roberts from the NYT piece:
"The English teacher used to talk about his papers after he had written them because they were outrageous but very well crafted," remembered John Langley, an emergency room doctor in New Orleans who was a class below Judge Roberts at [the prive high school] La Lumiere. "He could take an argument that was borderline absurd and argue for it so well that you were almost at the point of having to accept his stance even though it was intuitively obvious that it was absurd."
Let me try to constrain my wild enthusiasm as a lawprof for beautifully constructed opinions that require hard work to discover the flaws. Most of the awful stuff I'm forced to assign to students is drudgery to read just for the most basic understanding of what this judicial character is trying to say.

How much more fun law school would be if the prose were crystalline! We could enjoy reading it, and get, right away, what the judge was saying. Then we could spend all our class time critiquing and questioning and devising arguments to the contrary. Heaven!

Ah, but I know the Supreme Court is not really about providing law school classroom pleasures. Still...

"He played Peppermint Patty in the production of 'You're A Good Man, Charlie Brown.'"

Just tweezing a fact out of the big NYT article on Supreme Court nominee John Roberts.

"Doublespeak."

That scratchpaper in the previous post contains the word "doublespeak," which a caller used in a question. Could everybody please reread "1984" and get the terminology straight?

There's no "doublespeak" in the Big Brother regime. There's "newspeak" and "doublethink." Here's a searchable text of "1984" to help you.

It matters! It means something! Don't muddle Orwell with the ordinary term "doubletalk."

What is Althouse doing with her hands during a radio interview?

Well, if I was doing the show from home -- or had an internet connection in the studio -- I'd probably be typing on my laptop, Googling for more information or blogging along with the show. In the studio, if there's no host in the room, like yesterday, I might be doing the NYT crossword, as I did yesterday. But, most likely, I'm jotting notes and doodling. I kept my scratch paper from today's show about the Roberts nomination. If you click on the image and then on "all sizes" you can get to the original size. Feel free to print it out and frame it for an Althouse original, made in real time while thinking about the Supreme Court.

Scratchpad

Radio styles: in the studio and on the phone.

It's 9:30 a.m. here in Madison, but it looks like 9:30 p.m. Quite a thunderstorm! Despite waking myself up a 6 -- the first time I've been woken by the alarm in a long time -- I'm only just now getting around to opening up the newspaper and attending to the morning's blogging.

As the last post shows, I was doing radio from 7 to 8. I decided to drive down to the studio instead of doing the show over the phone. The studio is on campus, a 5 minute drive away and right next to my parking spot. It's much nicer to do these shows in the studio. It's good to be in the room with the host as I was this morning, chatting about the show during the news and weather breaks. But it's worth being in the studio even when the host is in a different studio, as was the case for the show that I did yesterday on Minnesota Public Radio from the WPR studio. The sound quality is better and the environment focuses your mind on the reality of being on the radio.

Doing radio over the phone... well, you can do it naked, just like blogging. Or in your pajamas, if you prefer. Who knows what you might say?

More radio.

I talked about the Roberts nomination on Wisconsin Public Radio this morning. The host is Joy Cardin. Lots of great callers too. You can listen to the recording of the show here. (Click on "listen" at 7 a.m. today.) There's a lot of talk about whether Bush should have picked a woman and about Roe v. Wade. One caller makes a point of asking me whether I think Roe v. Wade should be overturned, which, of course, I wouldn't answer if I were the nominee. But I do answer. There's also a lot of talk about what the Democrats will or should do, with special attention to Senator Schumer.

Go ahead, listen!

July 20, 2005

Café.

Just a few stray moments were passed at the café today.

Café

The younger Bush distinguishing himself from the elder.

Here's the transcript of my chat on CourtTV.com last night. Let me focus on this exchange and expand on something (that I talked about on the radio this morning).
Professor Althouse, are you as a woman disappointed that President Bush did not nominate a woman to replace Justice O'Connor?

Ann Althouse: I want to see more women on the Court. But I don't mind that Bush avoided creating a "woman's seat" where O'Connor sat. I think it's good that Bush is giving the impression of picking the best person for the job. Roberts probably is stronger than the female candidates who came close. Clearly, Bush considered women, which is good.
It occurs to me that Bush has done a number of things during his presidency that show a specific choice to do things differently from his father. One thing the elder Bush did is to fill a Supreme Court seat occupied by a "first" as if that first person had transformed that seat into a designated seat.

George H.W. Bush replaced the first black Justice, Thurgood Marshall, with the second black Justice, Clarence Thomas. He nevertheless insisted that he'd picked "the best person for the job" -- something few people believed. (And I'm not trying to disrespect Thomas. I think he's a fine Justice.) The elder Bush not only created a designated seat and resorted to making hard-to-believe assertions about his action, he also undermined his ability to oppose affirmative action, because the Thomas pick was so widely perceived as affirmative action.

The younger Bush has now chosen not to replace the first woman Justice with another woman. So unlike his father, he is not creating a designated seat on the Court. And in picking Roberts, he actually picked someone about whom it can be said convincingly: He was the best person for the job. And he has not limited what he can plausibly say about affirmative action.

I have no knowledge of whether George W. Bush actually thought through the Supreme Court pick using his father's experience as a negative example. (I don't even know whether he thought of the war in Iraq that way.) I'm just pointing out the pattern.

"Incredibly hot."

Is this a firing offense?
MASSACHUSETTS: teacher fired over web posting about student A former sports columnist for The Boston Herald was fired from a teaching job at Boston University after officials discovered he had posted comments about a female student on an Internet site. The former columnist, Michael Gee, who was hired to teach an introductory journalism class, was fired last Wednesday, the day officials learned of the posting, said Robert Zelnick, chairman of the university's journalism department. On July 5, Mr. Gee wrote on sportsjournalist.com, "of my six students, one (the smartest, wouldn't you know it) is incredibly hot" and, in another posting, wrote of the student's "to-die-for eyes," according to bostonsportsmedia.com.
It seems to me that "hot" has become a pretty tame, generic term for "attractive." But, in fact, I think that posting even lame little compliments singling out an individual student is wrong. I think just observing that one of your students is the smartest is wrong.

"A day of blogging is like an evening of strong cocktails and loud conversation."

This is Stephen Green's post about John Roberts, but I love this part about what blogging is like:
A day of blogging is like an evening of strong cocktails and loud conversation. Somebody says something that moves you; you say something back. There's a lot of good give and take, and there's some acrimony, sure – but oftentimes you reach a consensus and there are always a few laughs along the way. Blogging works much the same, only it's just me, my computer and whatever I happen to read on it. Blogging is cocktail party debate in the form of a website - the news hits, and I hit back. Fun.
And he has the nerve to say to the world what a lot of us were saying in private: the nominee's name is boring us! Okay, inspired by Green, I'll say what I said that made Chris laugh last night: "It's like he doesn't even have a name."

It's sort of like a name in Frank Capra title: "Meet John Roberts." "John Roberts Goes to the Supreme Court."

Chris says all the current Justices have interesting names. I say "Thomas" is a pretty boring name. He says "Clarence" is interesting. I say, "Yeah, like the angel in 'It's a Wonderful Life.'"

Radio.

I'll be on the Midday Show on Minnesota Public Radio, talking about guess what, at 11 Central. There will be live streaming here.

Roberts and federalism.

Here's the NYT editorial about the Supreme Court nominee:
If he is a mainstream conservative in the tradition of Justice O'Connor, he should be confirmed. But if on closer inspection he turns out to be an extreme ideologue with an agenda of stripping away important rights, he should not be.

I wonder how many people are buying the idea that O'Connor exemplifies "mainstream conservatism," which the Democrats spent the last few weeks promoting. But "extreme ideologue with an agenda of stripping away important rights" seems to be a relatively easy charge to refute. It doesn't seem to fit anyone with the stature to make make the short list. But I suspect we'll be hearing that overheated phrase again and again by those who want to defeat the nominee.
One of the most important areas for the Senate to explore is Judge Roberts's views on federalism - the issue of how much power the federal government should have. The far right is on a drive to resurrect ancient, and discredited, states' rights theories. If extremists take control of the Supreme Court, we will end up with an America in which the federal government is powerless to protect against air pollution, unsafe working conditions and child labor. There are reasons to be concerned about Judge Roberts on this score. He dissented in an Endangered Species Act case in a way that suggested he might hold an array of environmental laws, and other important federal protections, to be unconstitutional.
The NYT can be trusted to make federalism values sound pernicious -- that is, as long as we're not talking about some very particular case where a state is engaged in an attractive, progressive policy experiment.

I'm concerned that Roberts won't care enough about federalism. He's been very deeply grounded in Washington, D.C. for a long time, and he represented the federal government in lawsuits. Why should he feel allied to the interests of the states?

Looking back on yesterday.

I feel lucky that I was away from my computer between the hours of 9 and 4 yesterday. I might easily have spent the day reading and dissecting Edith Brown Clement opinions. Perhaps the folks who floated the fake rumor sat back and laughed at all the unnecessary work they made people do.

Roberts and reasoning.

Here's an interesting assessment, by Harvard lawprof William Stuntz, of Bush's Supreme Court nominee. (That link will work for nonsubscribers to TNR.)
Roberts is a career litigator used to winning cases, not advancing theories--by all accounts intelligent, but without a reputation for flights of abstraction. He is less creative than Michael McConnell, another name often mentioned for the Supreme Court, but also more predictable than someone like McConnell, less likely to change his mind about premises and so end up with different conclusions....

Roberts has spent the bulk of his career--17 of the 24 years since he finished clerking--as a litigator, either for private clients or for the federal government. Unlike Justices Scalia, Ginsburg, and Breyer, he isn't a career intellectual. Unlike Justices O'Connor and Thomas, his background isn't in making government policy. Roberts has spent his working life trying to win cases, getting the right bottom lines for his clients. Nothing wrong with that: It's what good lawyers do, and Roberts was apparently a very good lawyer....
Stuntz posits that as a litigator, Roberts will care about outcomes not reasons, a style of behavior he says Rehnquist follows and Scalia does not. I'm sure many familiar with opinions written by Rehnquist and Scalia would argue with that characterization of both justices, but Stuntz asserts that Rehnquist is "famous for taking law clerks' opinion drafts and cutting out all the reasoning." I'm sure Stuntz has his sources, but I suspect that's a subjective assessment by some clerks who went to the Court after cranking out overlong, laboriously footnoted law review articles and then felt wounded when the Chief didn't appreciate all the perseveration.

And as to Scalia, we're supposed to see him as a thorough intellectual, with a pure love of ideas?

Well, quite aside from those chacterizations, I'll agree with Stuntz that too much attention to outcomes is not proper judicial behavior. It is the mode of a politician, someone who's held accountable through democratic processes.
There isn't any comparable check on federal judges misusing their power. Which may be why federal judges, especially the ones who decide appeals, are supposed to give reasons for their bottom lines. The reasons are the check--they are the only thing that keeps judges from writing their own preferences into the law. Those theories that Justice Scalia loves so much are not just flights of fancy. They are the point of the exercise, the very reason the Court exists. The bottom lines should be an afterthought.

I'm not sure Roberts knows that; I am sure the confirmation process will do nothing to remind him. The politics of judicial selection and confirmation becomes more Rehnquistian--more about bottom lines--with every new appointment. Is he for abortion or against it? Does she like affirmative action or not? Results are everything. Reasons are an afterthought.
I agree with Stuntz that the Senate ought to probe into the nominee's theories of judicial interpretation and to try to detect whether there is a judicial mind in there. A nominee who is really a political actor doesn't belong on the Court. But a blatantly political actor, once on the Court, given his excellent skills and the support of diligent law clerks, can generate the written materials needed to make the opinions look the way Stuntz would like to see them. More reasons, more carefully and voluminously laid out do not prove that the reasons came first and merely led to the outcome.

Overlong, ponderously supported outcomes make me suspicious that the judge is trying to cover up how result-oriented a decision is. It makes him look guilty, like the husband who comes home late and tells an elaborately detailed story about what he was out doing.

July 19, 2005

I'm doing the CourtTV chatroom right now.

Come over and talk. Here.

UPDATE: That was fun. Lots of good questions. It's funny the way it's a chatroom with everybody posting like mad, then they cut off the access and only put up selected, quality questions, which I answer as fast as I can type (and hoping I'm not making typos). If you go over there now, you'll have to scroll way up to find the part with me, because the chatroom has been rechattified and a torrent of talk has pushed my typings way into the past.

There will be a transcript later, though.

The big announcement.

I'm watching the announcement on FoxNews.

Fred Barnes calls Roberts "a safe pick," and says he'll be easily confirmed.

Mort Kondrake points to Roberts' stellar credentials.

Bill Kristol says it's not a safe pick but a "bold" choice. A woman or a member of a minority group would have been safe.

Now here's Bush, striding out with Roberts. Bush speaks of Roberts' "superb credentials" and his "highest integrity."

(Roberts looks a lot like Bush, doesn't he?)

MORE: It's "stunning," says Bill Kristol after the announcemnt, that Bush picked one of the top conservatives. He says Roberts is "a little more incremental" than Scalia and Thomas and less of a "movement conservative" than Luttig.

Senator Leahy: "No one's entitled to a free pass to the Supreme Court."

Senator Schumer -- who sounds much angrier than Leahy -- talks about voting against Roberts for the Court of Appeals, supposedly because he didn't answer questions. Per Brit Hume, only three Senators voted against Robert then, the other two being Durbin and Kennedy.

Chatting about the nominee.

I'll be doing a CourtTV.com on-line chat about the new nominee here shortly after the announcement.

Free speech in Madison: was that a "no-Ovadal-on-overpasses" rule?

A Seventh Circuit panel, consisting of Judges Easterbrook, Kanne, and Sykes, reversed Judge Shabaz’s decision granting summary judgment to the City of Madison in a case brought by a Christian minister who (along with some fellow protesters) stood on the overpass over the busiest highway in Madison holding banners that read “Homosexuality is sin” and “Christ can set you free.” (Link via How Appealing.) The police cited the disorderly conduct statute in banning them from the overpass, and the minister, Ralph Ovadal, sued, saying his First Amendment rights had been violated.

Disorderly conduct under the Wisconsin statute is engaging in “violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance . . . .” The police saw Ovadal’s peaceful protest as “otherwise disorderly conduct.” Is it not “disorderly” to protest with conspicuous signs from a bridge over a busy highway? But how do we know the police didn’t pick on Ovadal’s group because of their message? Would a pro-gay group have been banned? We don’t know, because no other groups have protested like this. If the city had had a neutral law banning all protests on the overpasses, it would have been different. In fact, the city didn’t even commit to an intent to invoke the “disorderly conduct” statute whenever anyone protested on a Beltline overpass. It wants to allow the police to make ad hoc decisions based on the reactions of the drivers. And in this case, Madison drivers were getting really steamed, slamming on their brakes, making hand gestures, and even coming up out of the sunroof to yell at Ovadal. That is, Ovadal's disorderliness was measured by how angry it made the drivers.

Judge Kanne wrote:
“Listeners’ reaction to speech is not a content-neutral basis for regulation.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992). “Speech cannot . . . be punished or banned, simply because it might offend” those who hear it. Id. at 134-35. It cannot be denied that drivers who yelled, gestured, and slammed on their brakes when they saw Ovadal’s signs created a safety hazard on the Beltline. However, it is the reckless drivers, not Ovadal, who should have been dealt with by the police, perhaps in conjunction with an appropriate time, place, and manner restriction on Ovadal. The police must preserve order when unpopular speech disrupts it; “[d]oes it follow that the police may silence the rabble-rousing speaker? Not at all. The police must permit the speech and control the crowd; there is no heckler’s veto.” Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1299 (7th Cir. 1993).
Thus, the defendants were not entitled to a summary judgment; the case must go on, remanded to Judge Shabaz to determine “whether the city’s rule that no protests may take place on overpasses when those protests cause a traffic hazard is capable of content-neutral application, or whether the city has imposed a content-based and impermissible ‘no-Ovadal-on-overpasses’ rule.”

UPDATE: One of my colleagues writes:
I just drove west on University from downtown, and there are protesters on the footpath overpass over University between the Humanities building and Vilas right now. They're protesting the Olympics being in Beijing in 2008. I know it's not the Beltline, but still ...
Ah, this brings back an old memory about the police confronting my son Chris about a sign interfering with traffic. I call him to get a completely accurate version of the story: It was Election Day, 2000. Chris, along with other sixteen-year-olds, was holding up a "Gore" sign on the Beltline overpass. A man with a Bush sticker on his car stopped to yell at them and then called the police. The police then showed up as a result of the driver's complaint and told the kids they couldn't hold their signs like that, and when Chris asked why, he was told sharply that if he kept asking questions he'd be taken down to the station. The kids weren't forced to leave, however. They were allowed to stay as long as they changed the angle at which they were pointing the signs so that they didn't aim down at cars going under the overpass but faced more straight ahead.

MORE: I'm guessing one or more of the students pointed or shook the Gore sign at the Bush-sticker guy in a taunting way. Chris said this didn't happen, but it was a group of kids and he may not have seen it. This would seem to explain the strange business of dictating the angle of holding the sign.

Anything happening?

Sorry, I've been away from my computer.

I guess I need to jump back in this. Bush is announcing the new nominee tonight. Apparently, her name is Edith. We're just not sure what her last name is...

I did a lunch talk today at the law school about the recent 10 Commandments cases. It was fun revisiting them knowing a new Justice will be coming on the Court and might possibly tip the Establishment Clause analysis one way or the other after so many years of mystic balancing within the mind of Sandra Day O'Connor. I'm picturing a vortex in the center of the Court that will always drag another one in no matter who is removed. Breyer has already offered his services as the mystic mind balancing the Multitudinous Factors of the Complex Context.

After the "lunch talk" at which I didn't eat, I talked, I went out to lunch and ate Insalata Caprese and chatted about any number of things, before coming home to find that the Supreme Court nomination is more up in the air than I'd thought.

Exciting times.

UPDATE: Of course, now everyone's saying it's Roberts. And his first name isn't Edith. It's John. Looks like a very solid pick.

Stanley Fish's bad analogy about Scalia's constitutional interpretation.

Stanley Fish has a NYT op-ed that's supposed to wise us up to the rhetoric of constitutional interpretation that's about to flow all around us:
NOW that the speculation about who will replace Justice Sandra Day O'Connor on the Supreme Court is in full frenzy, we can look forward to debates in which words and phrases like "originalist," "strict constructionist," "textualist," "judicial activist" and "intentionalist" will figure prominently, because these labels are thought by many to stand for different styles of interpreting the Constitution. Those who think so are wrong.
Fish tries to debunk the conventional terminology, and reaches a conclusion that I think most legal academics would agree with: it's not the interpretative methodology you say you're following that matters, but where that methodology really takes you in particular cases. We shall know you by your outcomes.

But Fish's discussion of Justice Scalia's "original understanding" approach to interpretation is quite inadequate (albeit long):
If interpreting the Constitution - as opposed to rewriting it - is what you want to do, you are necessarily an "intentionalist," someone who is trying to figure out what the framers had in mind. Intentionalism is not a style of interpretation, it is another name for interpretation itself.

Think about it: if interpreting a document is to be a rational act, if its exercise is to have a goal and a way of assessing progress toward that goal, then it must have an object to aim at, and the only candidate for that object is the author's intention. What other candidate could there be?

One answer to this question has been given by Justice Antonin Scalia and others under the rubric of "textualism." Textualists insist that what an interpreter seeks to establish is the meaning of the text as it exists apart from anyone's intention. According to Justice Scalia, it is what is "said," not what is "meant," that is "the object of our inquiry."

The problem is that there is no such object. Suppose you're looking at a rock formation and see in it what seems to be the word "help." You look more closely and decide that, no, what you are seeing is an effect of erosion, random marks that just happen to resemble an English word. The moment you decide that nature caused the effect, you will have lost all interest in interpreting the formation, because you no longer believe that it has been produced intentionally, and therefore you no longer believe that it's a word, a bearer of meaning.

It may look like a word - it may even seem to be more regularly formed as such than the scratchings of someone who is lost - but in the absence of the assumption that what you're looking at is a vehicle of an intention, you will not regard it as language. It is not until you change your mind and become convinced that the formation was, in fact, designed, that the marks will become language and it will be appropriate to interpret them.

Even then you are not home free; just because you're now sure that the marks spell the word "help," you still don't know what it means. It could be a message from a person in distress. It could be a direction like those on a computer screen ("Need help? Look here."). It could be a petition to God. It could be a reference to a Beatles song. Scrutinizing the word won't tell you which of these things it means.

This is why Justice Scalia has it backwards: if you're not looking for what is meant, the notion of something being said or written is incoherent. Intention is not something added to language; it is what must already be assumed if what are otherwise mere physical phenomena (rocks or scratch marks) are to be experienced as language. Intention comes first; language, and with it the possibility of meaning, second. And this means that there can be no "textualist" method, because there is no object - no text without writerly intention - to which would-be textualists could be faithful.

And if there is no object - no plain and lucid text to which interpreters could be faithful - neither is there an object to which interpreters could be unfaithful. Consequently, "judicial activism," usually defined as substituting one's preferred meaning in place of the meaning the text clearly encodes, becomes the name of a crime no one could possibly commit. After all, you can't override a meaning that isn't there.
The comparison to the rock formation is ridiculous, because no one ratified the rock formation. If a group of persons discovered a rock formation, believed it said something, and agreed that what it said was their law, then there would be an object to discover: what the people who made the agreement to be bound thought the rock formation said. Even if we knew that some people before them had arranged the rocks deliberately meaning to say something entirely different, the object of our inquiry would still be what the people who agreed to be bound thought it meant. That's Scalia's theory of interpretation: it doesn't matter what the particular individuals who wrote the words hoped to say or secretly meant to sneak in there, it's what the people who agreed to the text understood it to mean when they voted to ratify.

UPDATE: Thanks to Ramesh Ponnuru for linking to this. Here's his discussion of the Fish piece.

The Court and the real world.

Stuart Taylor argues in the September Atlantic that lack of any real world legal experience has led the Supreme Court to make head-in-the-clouds decisions that make trying cases, doing business, and running the government terribly difficult for the rest of us. (The link is for subscribers, but for the next three days you can get to it here.)
Now that Sandra Day O'Connor has announced her retirement, how many remaining justices have ever held elected office? How many have previously served at the highest levels of the executive branch of government? How many have argued big-time commercial lawsuits within the past thirty-five years? How many have ever been either criminal defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial? The answers are zero, zero, zero, one, and one, respectively. (David Souter was a New Hampshire prosecutor once upon a time, and later served as a trial judge.)
The Court fusses around producing ten opinions and 140 pages of inconclusive nattering about a couple of Ten Commandments displays. Meanwhile:
[A]ccording to Michael Greve, the head of the American Enterprise Institute's Federalism Project, this Court has "resolutely refused to tackle the inconsistencies and absurdities that, after decades of neglect, afflict nearly every area of commercial litigation." One reason, Greve argues, is that with the exception of Justice Breyer, "the Court has absolutely no idea what business litigation in America now looks like."
I'm not convinced the background of the Justice is what would make a difference. After all, as Greve notes, it's Breyer, not Souter, who brings practical common sense to the table. (Though, ironically, it's Breyer's vote that made the two 10 Commandments cases go in opposite directions.) I realize there's a push in some quarters to get President Bush to pick a person with political experience to replace Justice O'Connor, but I'm very wary about that. You're not just importing political experience into the Court, you're introducing one individual politician, with the particular set of political commitments that got him (or her) elected.

Stop that cameo.

Matt Drudge managed to get John McCain to talk about him on the Leno show by calling the movie he did a cameo in a "boob raunch fest." McCain even went to the trouble to have a dorky joke written to defend against the boob barb. ("In Washington, I work with boobs every day.") Now, I suppose, McCain looks cool.

Just last week, Entertainment Weekly slammed nonactor celebrities -- including Leno -- for doing all those vanity cameos:
In Bewitched, James Lipton makes a cameo appearance as an oily interviewer of movie stars with his own infotainment television show -- which is to say, as himself, fawning host of Bravo's Inside the Actors Studio. Only in this case, instead of coaxing deep thoughts about craft from real thespians, he urges a fictional, shallow movie star, played by Will Ferrell, to relive past flops.

This must stop. Lipton's show is its own mesmerizing bonfire of the vanities, but the gimmick of casting pop-cultural celebs as themselves in fictional situations has become the lazy filmmaker's shortcut to meta chuckles; it's also a depressing index of who's willing to shill his reputation. Regis Philbin plays Regis Philbin in Miss Congeniality 2, Jay Leno plays Jay Leno in Mr. 3000, James Carville plays James Carville in Old School, and it's the rare plot involving media coverage that doesn't include Larry King. For the love of self- respect! Quizmasters, ringmasters, and moguls (I'm talking to you, Alex Trebek, Al Sharpton, and Donald Trump), keep it real!
And now Drudge had to go and say "boob raunch fest" and make those things seem exciting again.

July 18, 2005

"My Favorite Word."

This is a charming, engaging website where people contribute their favorite words. It's nice to read the choices people have made and to think about what it is that makes a word your favorite -- some combination of meaning or sound or some personal connection to the word (like, the way your husband laughed when you called the garden hose a "hosepipe"). And here's the Metafilter discussion, with lots of comments, including one that links to what might be the greatest Dave Letterman list: Top Ten Words That Sound Great When Spoken By James Earl Jones. Oh, I guess I should pick a favorite word. I'll go with "squeeze."

The timid householder.

If you hire someone to do some work around your house and they don't do it right, do you call them up and tell them about it and try to get them to come back and fix it, or do you just resolve never to hire them to do anything else for you? Assume the work left undone is the equivalent of $100 or less.

IN THE COMMENTS: Some excellent advice from people who know how this problem looks to the contractor who did the work.

UPDATE: Spurred on by help from the commenters, the timid householder did call the contractors and had a a completely pleasant conversation in which her view of what still needed to be done was never questioned. The needed work will be done next week.

This post is for "Six Feet Under" fans only.

With five episodes left to go in this, the last, season of "Six Feet Under," it's time to get serious about predicting deaths. I hate to say it, Durrell, but I think you're doomed. In the newest episode, you played an elm tree in the school "biodiversity" play, with some lines about Dutch Elm Disease killing off elms that are planted together. So unless you run away from home, you're high on the list of most likely to die.

Even more likely to die is Brenda's fetus. First, Nate is going astray, attracted to Maggie, so he's going to need to be punished. He's pushing Brenda to get amniocentesis after a test came back bad, and she doesn't want the test because of the risk of miscarriage. Nates's very callous about expressing hostility about having to take care of a disabled child. Either Brenda will have the amniocentesis, which will cause a miscarriage of what will surely then turn out not to be a defective fetus. Or maybe Brenda will have some sort of terrible accident on the way to having the test, and the baby will be saved, and Nate -- with Maggie's help -- will turn altruistic and dedicate himself to taking care of Maya and the new baby. In this scenario, the baby will surely be seriously disabled.

Claire, I think, was flirting with her murderer last night. The creepy lawyer guy -- he's going to go "American Psycho" on her, right? If not, Ruth had better double lock the doors, as George is likely to show up to bang on them again in a big rage. But I think Ruth will survive. We need her around in the last frames of the show to look on with her inimitable pained expression.

Am I forgetting anything? Yes, something must tie up the Rico-Vanessa story. I think it would be hard to manipulate these characters into a position where either kills the other, but what else can happen? Maybe all the Fishers need to die so Rico can inherit the whole business, which would at least give him something substantial to do. But I don't believe David will die. I think David and Keith will be given a happy ending, as a family of three, with the good son Anthony. Again, Durrell, sorry. It's an omen I read in the tree.

"I guess I would have to go to the 'underworld' if I want to get any more after today."

The British are only just now getting around to outlawing psychedelic mushrooms (in their fresh, raw state).

The temptation to cover nudity.

BBC reports on another one of those mass nudity art happenings. You can scarcely blame artists for doing things like this when the media can't resist the temptation to cover it:
To be surrounded by hundreds of naked people is an awesome, overwhelming sight. So many different shapes and sizes, in varying hues, blending into a uniform mass.
Sounds appalling.

"Be prepared for a nomination this week."

According to the WaPo, the Supreme Court nomination will come this week.

"A drab and embarrassing display of emotional exhibitionism masquerading as entertainment."

Ooh, is Charles Isherwood ever mean to Suzanne Somers in this review of her Broadway show "The Blonde in the Thunderbird."
Attired in a cruelly clingy black tights-and-tunic ensemble, Ms. Somers re-enacts or describes triumphs and traumas from her personal and professional life for a grinding 95 minutes, on a stage adorned only by a pair of video screens, an armchair, a prop phone and a coat rack. (It is curious, and telling, that Ms. Somers's magnified, two-dimensional presence on the video screens continually draws the focus away from the woman herself.)...

"I believe that everything that happened to me in my life is a blessing," Ms. Somers says in the show's waning moments, offering implicit comfort to those in the audience dogged by ill fortune. This is a simplistic and solipsistic philosophy to espouse, but it comforts me to know that Ms. Somers still believes this bromide, because, as even she would have to admit, the blessing I have hereby administered is unusually well disguised.
Hilarious!

"This feature is not to be used for advertising or excessive self-promotion."

Blogger seems to have introduced a new feature just now. Immediately after publishing that last post, but not the previous post, I got a window saying "Email Post to a Friend" -- all set up with the text of the new post, my email address, and a place to type in the "friend's" email address. There's also this warning:
The information you provide on this form will not be used for anything other than sending the email to your friend. This feature is not to be used for advertising or excessive self-promotion.
I love the phrase "excessive self-promotion," which so clearly suggests that a little self-promotion is in order. I think certain people can expect to start receiving a lot more email.

Laura Bush's role in the nomination process.

I was struck by this dialogue, on Fox News Sunday, about Bush's plans in picking a new Supreme Court justice:
Bill Kristol: Mrs. Bush said this week that she hoped her husband would name a woman. I think that was her way of gently letting down Attorney General Gonzales, signaling that he probably wasn't going to get the pick.

Brit Hume: So the President suggested she do this?

Bill Krisol: I think... well... The President afterwards: Gee, she said that? I wasn't aware of that. I talked to her on the phone yesterday, but I didn't know she was going to say it in public. She's pretty careful, and they're pretty close. I think he wants to pick a conservative woman. There are plenty of conservative women -- on the federal appeals court, at distinguished law schools, on state supreme courts...
Interesting that he mentioned law schools second, before state courts. How stunning it would be to pick a lawprof. Who are the female constitutional law professors who are not only "at distinguished law schools," with the highest level credentials, but whose writings will stand up to the intense political scrutiny that all sorts of people will subject it to? I think it's much easier to find judicial candidates among judges, because judges behave like judges. Lawprofs don't seem judgely enough. There's too much personal freedom in the lawprof game. One plays with ideas and enjoys intellectual exercises too much not to lay the basis for a formidable attack by your opponents.

But what's really interesting in that dialogue is the notion that this seemingly off-the-cuff statement by Laura Bush was deliberately planned. I'd assumed Laura really had influence with her husband about the substance of the choice, but Kristol portrays her as a brilliantly useful mouthpiece. I wrote that Laura's influence would be in favor of Gonzales, based on what I presumed was her concern about preserving abortion rights. But that doesn't conflict with what Kristol said: her behind-the-scenes influence and her public statements are two different things.

In the NYT, Elisabeth Bumiller confirms Kristol's take:
When Laura Bush said in a television interview last week that she hoped her husband would name a woman to succeed Justice Sandra Day O'Connor on the Supreme Court, a lot of people saw it as a top item on the first lady's "honey-do" list. But Republicans close to the White House said that people had it reversed. Mrs. Bush, they said, was not so much nudging her husband as reflecting his thinking.

The current consensus among Republicans with close access to the White House is that President Bush is interested in picking a conservative woman for the court. Mrs. Bush's words, they said, were the most powerful evidence so far.

"It says that they're looking very carefully at a woman," said a Republican with longtime ties to the White House. "I don't think she would have said it without knowing something." This Republican, like a number of others interviewed, asked not to be identified because the White House had ordered its allies not to talk about a Supreme Court selection process that it is trying to keep confidential.
Kristol didn't seem to mind blabbing.

By the way, Bumiller's article includes the name of one woman lawprof: Mary Ann Glendon.

How concerned should we be about about the new justice's obedience to precedent?

Replacing Justice O'Connor, the Court's key swing voter, is making people fret that we are headed into a period of drastic, unsettling overruling of cases. Are there not four votes already on the Court just waiting for that fifth vote, with which they can flip numerous precedents to the other side? So attitudes about overruling cases are going to be extremely important, aren't they? The Christian Science Monitor has this:
As Justice Potter Stewart wrote in a 1974 dissent: "A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the government."

He added, "No misconception could do more lasting injury to this court."...

Suzanna Sherry, a constitutional law professor at Vanderbilt University Law School in Nashville, Tenn., says it can be difficult to predict how a new justice may vote when legal precedents are on the line. The justice's personal views regarding a case may not control the final outcome, she says.

"A judge who thinks affirmative action is unconstitutional but who is also strongly influenced by principles of stare decisis might decide not to overrule the earlier case, but to limit it, and not extend it in the next case," Professor Sherry says.
In the affirmative action cases, as in many, many cases, O'Connor took positions based on her idiosyncratic balancing of multiple factors. That makes it easy, in the next case, to reach a different result without needing to overrule anything. If in the process of deciding the new case the Court crispens and clarifies the doctrine, it won't need to portray what it's doing as overruling.

Though we will always remember Justice O'Connor as the first woman on the Court and the person who defined the Court's balance point for a quarter century, the impression she made on constitutional law doctrine is likely to dissipate quickly -- and without the sort of dramatic overrulings that ordinary people notice.

Nonetheless, there will be lots of jabber about posturing about the value of precedent at the Senate hearings.

July 17, 2005

Where you are, does everyone assume you like jazz?

Read Oscar's post. My comment is over there. Then come back here and answer my question. Or stay over there and answer Oscar's question. Or answer his question here and mine there. Whatever you like. Your call.

So, in the end, did Depp's Wonka remind me of Michael Jackson?

A while back, based on the preview for "Charlie and the Chocolate Factory," I wrote that Johnny Depp seems to have based his Willie Wonka on Michael Jackson.

In fact, try Googling "michael jackson" "willie wonka" -- my post comes up #1! Jeez, maybe Johnny's read my post.... Hi, Johnny!

Anyway, today I actually saw the movie, and my final take on it is that Johnny Depp did not base his character on Michael Jackson. The hair and makeup may have been modeled to some degree on Jackson, but the voice was not at all like his. Jackson's voice is much higher and has a sweet, ethereal quality. The two voices I heard, intermittently, in Depp's characterization were Tommy Smothers and Carol Channing. There was a certain light slurring -- especially saying the word "little" -- that seemed both childish and a bit tipsy. Depp's Wonka is clearly cracked, but he's not abstracted and frail like Jackson. He's weird and confused, but still much more grounded than poor Michael. Depp had a ton of comical and psychological ideas that he deploys in this film. To have imitated Michael Jackson would have been a one-dimensional stunt. Why would this brilliant, brilliant actor do that? The answer is: he didn't!

By the way, the some of the best scenes don't have Depp in them at all. Charlie's house and family, with the four grandparents in one bed, made for some of the nicest scenes. Am I the only one who looked at the grandparents and thought of Hamm and Nagg in "Endgame"? And I adore Helena Bonham Carter, who plays Charlie's mother. There's the beautiful Helena, wearing grimy poverty-teeth for this role. And Freddie Highmore as Charlie is just perfect. Perhaps he is the greatest child actor of all time.

But the greatest actor of our time... that's Johnny Depp!

"Justice Scalia would answer hardly anything... He gave his name and rank and not even his serial number."

That was Senate Judiciary Committee Chairman Specter's nonwitticism in response to Brit Hume (on Fox News Sunday), who was pressuring him about what would happen if the new Supreme Court nominee followed the pattern of Ruth Bader Ginsburg and declined to answer many questions on substantive issues. Hume's question was clear, and Specter wouldn't answer it directly. Specter kept saying that he accepted a nominee's not answering questions about how a specific case should be decided, but Hume's question was about rejecting a much broader category of questions, the way Justice Ginsburg did.

I think Specter said whatever he could think of to run out the time until Hume gave up on trying to nail down a point. Hume wanted Specter to commit in advance to the proposition that a nominee's being only as uncommunicative as Ginsburg cannot justify a filibuster or even a "no" vote.

But why bring up Scalia (and exaggerate his evasiveness)? It seems like something a Democrat would do. It makes me wonder which side Specter is on. Later in the interview, Specter made it clear that he supported "judicial restraint" -- but only when it comes to judging the work of Congress. This might make some viewers and seemed to make Brit Hume think he was expressing favor for conservative judges. But it seemed rather clear to me that he was rejecting the sort of judge that enforces federalism-based limits on Congress's power. In which case, he was revealing that he would like to see more justices like Ginburg (and Breyer).

Allusion sought.

I'm trying to think of a play or movie where there is a character who has two identities and then comically (or dramatically) gets mixed up and says or does something in the style of Identity A while presenting himself (or herself) as Identity B. An example would be if Superman forgot he had his outfit on and acted nerdy and ineffectual like Clark Kent. It seems like something that ought to happen as a plot device all the time, but I can't think of a single example. Try to come up with something specific, not just something like one time Don Diego acted like Zorro...

"Framing."

Matt Bai has a new article in the NYT Magazine about Democratic Party politics. He wrote a terrific article in the magazine last October called "Kerry's Undeclared War." (The article can be read for a fee here, and my post about it here contains some substantial quotes.)

The new piece is called "The Framing Wars." Lots of Democrats these days trace their problems not to ideas or agendas but to "framing."
Exactly what it means to ''frame'' issues seems to depend on which Democrat you are talking to, but everyone agrees that it has to do with choosing the language to define a debate and, more important, with fitting individual issues into the contexts of broader story lines. In the months after the election, Democratic consultants and elected officials came to sound like creative-writing teachers, holding forth on the importance of metaphor and narrative.

Republicans, of course, were the ones who had always excelled at framing controversial issues, having invented and popularized loaded phrases like ''tax relief'' and ''partial-birth abortion'' and having achieved a kind of Pravda-esque discipline for disseminating them. But now Democrats said that they had learned to fight back. ''The Democrats have finally reached a level of outrage with what Republicans were doing to them with language,'' Geoff Garin, a leading Democratic pollster....

In January, Geoff Garin conducted a confidential poll on judicial nominations, paid for by a coalition of liberal advocacy groups. He was looking for a story -- a frame -- for the filibuster that would persuade voters that it should be preserved, and he tested four possible narratives. Democratic politicians assumed that voters saw the filibuster fight primarily as a campaign to stop radically conservative judges, as they themselves did. But to their surprise, Garin found that making the case on ideological grounds -- that is, that the filibuster prevented the appointment of judges who would roll back civil rights -- was the least effective approach. When, however, you told voters that the filibuster had been around for over 200 years, that Republicans were ''changing rules in the middle of the game'' and dismantling the ''checks and balances'' that protected us against one-party rule, almost half the voters strongly agreed, and 7 out of 10 were basically persuaded. It became, for them, an issue of fairness.
The amusing thing about that to a conlaw professor is that the sort of judges the Democrats try to appoint are the ones who don't bother to enforce structural safeguards (like checks and balances) and don't care whether something's been around a long time or not. So the successful framing, ironically, was to package the argument for liberal judges in the rhetoric of conservative judges.

Read the whole article. Most of it is about George Lakoff and his trendy book about political rhetoric called "Don't Think of an Elephant." I haven't read that book, but I've glanced at it long enough to see that it's a remix of his material from "Metaphors We Live By," -- an excellent book, which I have read -- and "Moral Politics" -- an okay book that classifies the rhetoric of the two parties (Democrats speak Mommy, and Republicans speak Daddy).
According to Lakoff, Democrats have been wrong to assume that people are rational actors who make their decisions based on facts; in reality, he says, cognitive science has proved that all of us are programmed to respond to the frames that have been embedded deep in our unconscious minds, and if the facts don't fit the frame, our brains simply reject them. Lakoff explained to me that the frames in our brains can be ''activated'' by the right combination of words and imagery, and only then, once the brain has been unlocked, can we process the facts being thrown at us.
Lakoff taps some subtle truths about how the mind works, but how do those minds taking in Lakoff's rhetoric work?
When I asked Senator Richard Durbin of Illinois, the minority whip and one of Lakoff's strongest supporters, whether Lakoff had talked to the caucus about this void of new ideas in the party, Durbin didn't hesitate. ''He doesn't ask us to change our views or change our philosophy,'' Durbin said. ''He tells us that we have to recommunicate.'' In fact, Durbin said he now understood, as a result of Lakoff's work, that the Republicans have triumphed ''by repackaging old ideas in all new wrapping,'' the implication being that this was not a war of ideas at all, but a contest of language.
Apparently, there are frames deeply embedded in the minds of Democratic politicos that "simply reject" the parts of Lakoff's message that don't fit.

And what of all the Americans who sit around watching the politicians on TV? I think their most basic frame is the one my father used in response to nearly any political argument: "It's all semantics!"

Nic, Frick, and bick... -ering.

Fans of ongoing dialogue between me and my ex-husband should keep an eye on the comments section of this post, which is actually a quite good post -- comparing the looks and manners of the women of Connecticut and the women of NYC. Nicole Kidman makes a cameo appearance. But I'm not sure if that part is a work of fiction or not. If Nicole were really swanning around the Frick Collection, wouldn't we have some Gawker Stalker items about it by now?

"The Rove Must Resign blog swarm is gathering momentum quickly."

I was just trying to get a picture of the blog swarm around Karl Rove. Googling, I found this, from the Swing State Project, from back on June 23, predating the connection of Rove's name to the Plame story. What was happening back then? Rove said something that supposedly "us[ed] September 11th as a political wedge issue." The Hotline Barometer thought this was going to be really big. The Swing State Project enthused: "The Rove Must Resign blog swarm is gathering momentum quickly."

Way back in February, Polipundit wondered "Will a Blog Swarm Follow?" a Little Green Footballs story about the theory that "the fake CBS memos were planted by Karl Rove to discredit Dan Rather, and divert attention from President Bush’s 'draft dodging.'" Since bloggers of the right formed a successful swarm that brought down Rather, it's understandable that the left would want to do a good swarm of its own. How elegant it would have been if the swarm-worthy evidence had come from the fake CBS memos.

Then there was an actual physical "swarm" of people -- WaPo used that word in a headline -- around Rove's house back in March, 2004. Remember that? People were banging on his windows and chanting "Karl Rove ain't got no soul." What was that about? Not Valerie Plame, of course.

What comes first, the evidence warranting swarming, or the person you want to swarm? And how many times can you try to get up a swarm that fails and then believably call for a swarm when some entirely new story breaks? At some point, you're the boy who cried "wolf" -- or should I say the blog-hemisphere that cried "swarm"?