September 17, 2005

"They have decided that the culture doesn't reflect their values, and so they are going to use a law school to inculcate their values."

The Christian law school.

"'Blogs,' which is to say thoughts ... made available on the internet. "

Gordon Smith has fun reading some sentences, which is to say thoughts, written by the dean of the University of Chicago Law School. The dean, Saul Levmore, writes:
Our plan is to experiment with a faculty blog, perhaps by asking a different faculty member to post some thoughts for a one- or two-week period before turning over the lead to a colleague. This point-person would ensure that there is frequent new material on our Law School blog, but ideally other faculty members would regularly post as well, so that we might have a kind of public Roundtable.
Gordon asks:
If a University of Chicago Law School blog is a good idea, why doesn't it happen spontaneously? The costs of entry into blogging are very low, so experimentation is easy, and the faculty already includes a number of experienced bloggers.
It strikes me as weird to send out a letter to alumni saying the faculty is going to start a blog experiment. Since anyone, any minute, can start up a blog, it's not like planning a new law school building. Do the blog, and if it works our well, call attention to it. But saying hey, we're going to have a blog, is not just lame, it's risky.

And why capitalize "Roundtable"? That, in itself, bespeaks an unbloggish pomposity.

UPDATE: A commenter points out that the University of Chicago Law School has a journal called Roundtable and a long tradition of using the name Roundtable for various scholarly efforts.

"There's a fine line between doll and cool, between sugar plum fairy and rock-and-roll Ophelia."

Makeup. From "mere mortals into glossy goddesses." From Jennifer Lopez into "ultra-groomed Grace Kelly doppelgänger." From Christina Ricci into "the reincarnation of Jean Harlow." From "innocent-looking girl" into "slightly disheveled wood nymph." From "gorgeous into pure candy."

At an early age, the brilliant makeup artist Charlotte Tilbury saw the light:
[A]s a redhead with pale eyelashes, she never felt attractive until she tried mascara when she was 13. Suddenly people she had known for years started remarking on how pretty she was. "It traumatized me to instantly become more popular just because of the mascara," Ms. Tilbury said. "But then I realized that to achieve the power of beauty, sometimes you need a little makeup, darling."

Roberts goes all Al Gore.


The email you really don't want.

A new invention (at the end of the linked article):
Japan's Denso Corp. has developed a security system that not only honks the horn incessantly when disturbed but also snaps a digital photo of the vehicle's interior and e-mails it to the owner.

Nice evidence!


That's "legal language and not a reflection of Kenny's character."

Yeah, fair enough. Leave poor Renee Zellweger alone. On the other hand, you begged for our attention when you posed in that wedding dress on the beach. You used us when you wanted the good publicity. Ooh, look at me. I'm a bride!

"He did it with pride. And I'm glad my brother did it, with pride..."

So said the sister of Chai Vang, who now stands convicted of the murder of six hunters.
The 14 jurors - eight women and four men - who heard the case were chosen from Dane County after [Judge Norman] Yackel ordered the selection moved because of pretrial publicity and concern about anti- Hmong sentiment in the area. Some questioned the move, saying Madison liberals might be more likely to go easy on Vang, or wouldn't understand deer hunting issues.

J.B. Van Hollen, a Republican who in 2006 is challenging Attorney General Peg Lautenschlager, who prosecuted the case, tried to make those points an issue. Madison lawyers and judges, however, said such notions were simplistic and that evidence and proven facts usually sway the case.
Score one for the jury process.

Baby names.

The NYT reports:
In the last several years, New York City has had more baby girls named Fatoumata than Lisa, more Aaliyahs than Melissas, more Chayas than Christinas. There have been more baby boys named Moshe than Peter, more Miguels than Jeffreys, more Ahmeds than Stanleys.

Wait. I'm supposed to be surprised there aren't that many babies named Stanley? Who names a baby Stanley?

Anyway, it's especially interesting to see that while "foreign-sounding names" — as the NYT puts it — have gotten popular at the expense of "classic American" names, there is also a reverse trend:
Jose and Luis were the top two names for Hispanic baby boys in 1980. But today they have slipped out of the Top 10, behind names like Brandon, Kevin and Christopher. The top Hispanic baby name today is Justin.
This is an interesting cultural phenomenon:
White families often try to revive classic names that have fallen out of use like Olivia or Hannah, whereas blacks are more likely to improvise, Professor Lieberson said. But now improvisation is becoming more common across the board.
I haven't named a baby in a long time, but I have to admit that my strategy would be reviving the little used but well-established name — maybe something from an English novel. [ADDED: I would only do this for a girl. For a boy, I would do what I did at the time, pick one of the solid, current names, but not the most popular one.]

Popular baby name that isn't popular in New York City: Brooklyn.

Roberts hearings burnout.

Thursday night, I hit the wall sometime in the middle of Chuck Schumer's questioning of Judge Roberts. Last night, I went back to where I left off and watched for a little while, but I found I couldn't re-engage. I fast-forwarded ahead to the part where Roberts himself had gone and other witnesses appeared. The long camera shot showed the hearing room had cleared out. Enough for me.

September 16, 2005

Audible Althouse.

I just put my third podcast up: here. It's about 27 minutes long and is not entirely about the Roberts hearing. Added feature: you can hear the acorns falling on my roof.

What I inked on the paper in front of me while talking on the radio just now.


(Full size.)


I'll be on WIBA radio, talking about the Roberts nomination, at 9:05 CT. Live-streamable at the link.

"They will do what they think is in their interest, however they define it."

That's a quote from Hillary Clinton, in this piece about Democratic Senators trying to figure out how to vote on John Roberts.

Here's how Dianne Feinstein expressed herself after the hearings: "I'm sorting out what I feel now." Because, as she made it clear everytime she got her turn at the microphone, it's all about feelings.

And here's an icky quote:
"Part of the reason people are conflicted is because Roberts has shown just enough leg to get a second date," said one Democratic strategist, speaking on the condition of anonymity so as not to give away internal party deliberations. "No magic moment has occurred where you could say, 'Oh, we can't put this guy on the bench.'"
I love the idea that in private, the Democrats discuss politics in sexualized language. (No wonder Wonkette is so popular.)

Anyway, let's assume it is all about political interest, and there's not a fiber of principle in their decisions, or that any fibers of principle are interwoven with politics because it's politically advantageous to seem principled. On that assumption, what's a Democratic Senator to do? I'd say they should express their deep reservations, invoking issues that matter to their constituents, but still vote for him, and say that it's because of the agile mind their astute questioning enabled him to display at the hearings. This should be combined with a warning to Bush that he needs to nominate someone more moderate to replace O'Connor.

Voting against Roberts will make Democrats look as though they think the judiciary is a thoroughly polical institution. They would seem as though they are degrading the courts. Bush nominated a man who will appear to ordinary people to be scrupulously judicial, and their complaint about him will seem to be that they don't want a real judge, but a political ideologue. Yet they want their position to be against the ideological judge. How will that make sense to people? They need to vote yes. As someone said in the comments yesterday, if they vote no now and Bush nominates a very ideological conservative to replace O'Connor, no one will believe them when they cry wolf the second time. Roberts should go through, and the Democrats should position themselves to oppose the O'Connor replacement, especially if Bush goes hard right.

I wonder if the Bush people are sitting back with more than one potential nominee, and they're waiting to see what move the Democrats make. Which move do you think will make Bush's next move more right wing?

"Yes, I was angry and I was scared, not as much angry as scared."

Chai Soua Vang, accused of gunning down six hunters, takes the witness stand at his murder trial here in Wisconsin. He offers an explanation for beginning the shooting: he believed one of them shot at him and missed. But some of them were running away and were shot in the back.
Under cross-examination by Attorney General Peg Lautenschlager, Vang was asked if each victim deserved to die. She held up a photo of each person as she asked the question.

Vang answered "no" in some cases and "yes" in others, including when he was asked about Crotteau and his son.
How can he possibly avoid conviction if his explanation doesn't apply to all the victims? I haven't read all the testimony. I suppose it's possible to think that from his perspective at the time, all of the victims were threatening him, but that on reflection now, he knows they didn't deserve it.

86 or 90% heterosexual.

Here's a report on the results of a big survey by the National Center for Health Statistics. There's a lot to pick over and comment on, but I was especially interested in this:
Among men 18 to 44, 90 percent said they thought of themselves as heterosexual, 2 percent as homosexual, 2 percent as bisexual and 4 percent as "something else," findings similar to those in 1992.

Among women, 86 percent said they were attracted to only men and 10 percent "mostly to males." In the 1992 survey, only 3 percent said they were "mostly" attracted to males.
Wait, that's a hilarious misprint in the last sentence! Guys, are you in trouble!

But that wasn't what caught my eye. I think it's interesting that the proportion of those saying they felt hetereosexual was so low: 90% for men and 86% for women. It's especially interesting in light of the low number who feel homosexual or bisexual. (Why isn't the bisexual number for women in the article?) What is this "something else" category, anyway? Are these the people who feel nothing? Or are they homosexuals or bisexuals who just don't want to think of themselves that way?

September 15, 2005

Day 4 of the Roberts hearings.

I'm finally getting around to my TiVo of the 4th day of the hearings. I'm not going to be able to check everyone's work, so I think I'll concentrate on the Democrats. I expect them to repeat what they've already said, but the repetitions of the Republicans will be less remarkable. So let's go.

First up for me is Patrick Leahy, asking about the FISA court and the threat it might pose to liberty. John Roberts says it concerns him too, but doesn't make it too bluntly obvious that Congress created that court.

Next is Ted Kennedy. He asks about the "50 million Americans" with disabilities. That makes me wonder who is included to get to such a large number. He's concerned about inviting all these persons into the mainstream and thinks anti-discrimination law should be uniform, federal law. Roberts gently informs him that there are some difficult legal questions, and Kennedy garbles through a statement that we can get to these legalisms later, but these decisions have an "extraordinary effect on people's lives."

Kennedy asks about affirmative action, and Roberts gives an eloquent answer in which he talks, among other things, about his participation in a program preparing minority students for the rigors of law school. (The point is that admission to law school is not enough. Students must be helped to do well after they arrive at the school, and he has worked at that.) Kennedy rejects a portion of the answer that refers to work involving Native Hawaiians, which Kennedy says was not really about affirmative action. I know nothing about that case, but I observe that Kennedy looks red and sounds blustery. His hands are shaky. I'm thinking he's agonizing, feeling the power draining out of him, as Roberts coolly stands his ground.

Now he's blabbering about the need for a heart. He seems to like to think about himself as representing heart.

Dianne Feinstein is next, and I realize only the Democrats are participating in this round. She compliments him on his "staying power." I wish someone would apologize for putting him through such an ordeal. She pesters him about a study about nine of his cases, which assertedly prove he's going to favor corporations against workers. He points out the statistical invalidity of a study of a mere nine cases. She pursues him about the Iran-Contra matter, and he indicates that he knows little about it. She persists. We see him sipping some water and squaring his shoulders and setting his face into the I-am-concerned-about-what-you're-saying position. I try to imagine the exact wording of his thoughts. Since I believe John Roberts is a human being, I'm guessing: Look like you care, it will be over soon.

I love the way the Democratic Senators act irritated every time he frames an answer in legal terms. Like it's evasive.

Russ Feingold is next, reading his prepared statement very fast. He engages Roberts over questions about habeas corpus. Roberts does a good job of explaining the problems that used to exist about repetitive petitions by prisoners. Congress itself agreed that these were problems and reformed habeas corpus in 1996. It's hard to pillory Roberts for hostility to the rights of convicted persons when Congress itself reformed the process. Feingold clearly knows this and doesn't go too far here. Please know that I regard Feingold as far superior to most of the other Senators.

Should I mention that Jane Sullivan Roberts, after wearing pink and then black, is wearing ivory today?

Skipping Sessions, we're up to the most hotheaded Senator, Chuck Schumer. Actually, Schumer charms me by laying his cards on the table. He knows Roberts is a top-notch litigator, so what question would Roberts ask if Roberts were Schumer and trying to find out if Roberts is an ideologue? Roberts says you've asked all the questions he expected, which makes Schumer say, "So I guess we did a better job than we think we did."

Schumer ends by acknowledging that they've put Roberts through a "grueling" ordeal, and he wins my admiration by saying that he's woken up in the middle of the night wondering what he should do with his vote. I've been assuming that Schumer would vote against Roberts, but I think he's figuring out that he'll seem unreasonable, even incomprehensible, if he votes no. He goes on to make a statement about how impressed he is by Roberts' profession of judicial "modesty," which he finds "appealing," but also wonders about what might be included in it, considering that he called Brown v. Board of Education modest. Will he overturn Wickard and Roe and call it "modest"? He asks a long series of questions about what Roberts will do, and he fairly observes that he genuinely doesn't know. Roberts answer is to assert that he is not an ideologue.

Well, it's gotten awfully late, and I'd like to do more, but I think I'm going to sign off now. I'll try to fill in some of the gaps that I've left tomorrow.

Are you worrying about me and my poor extracted tooth? I'm okay. I haven't even taken any Advil since this morning. The whole after surgery pain issue was overstated, in my opinion. But I do miss my body part. I mourn the loss!

On keeping menstruating women in cow sheds.

Starting next month, this practice will have to stop.

Delayed Day 4 blogging.

I'll have some comments on the 4th day of the Roberts hearings later this evening. Right now, I've got to write something ... off-blog.

"Most public sculpture, especially in the Trafalgar Square and Whitehall areas is triumphant male statuary."

For balance: "Alison Lapper Pregnant." The 13-ton marble statue was unveiled today. Comments? Is the artist striking a blow for the rights of women and the disabled or is he exploiting women and the disabled for his own advantage? Does the intent to strike a blow for the rights of women and the disabled make it better art, worse art, or exactly the same level of art it would be if it were offered up purely for its form? And in a purely formal sense, is it good art?

MORE: I just heard a BBC News report on the sculpture, which included Robert Simon, editor of the British Art Journal, disparaging what he called "the thing":
I think it is horrible. Not because of the subject matter I hasten to add. [I have a] lot of time for Alison Lapper. I think she is very brave, very wonderful but it is just a rather repellent artefact - very shiny, slimy surface, machine-made, much too big...

He also noted — and I agree — that the head is especially badly done.

YET MORE: Who Alison Lapper is.

"Maybe the milk of human kindness will run through you and you will not be so technical.''

So said the Senator, claiming he was trying to "sensitize" the Supreme Court nominee who was perceived as lacking in human feeling. The Senator was Howard Metzenbaum and the nominee was Stephen Breyer.

"This is a time for justice tempered with mercy and understanding. There is no evidence of either in Judge Roberts’s career."

That's a line from Howard Dean's op-ed against Roberts, to be published in various papers tomorrow. The theme of the op-ed chimes with much of the questioning from the Democratic Senators. ("I'm trying to see your feelings as a man.") They seem to hope to plant in our minds a picture of the horrible Roberts the Robot.

We keep trying to talk about feelings and all he wants to talk about is — gasp! — law! How can we trust someone like that to be a judge?

The link to the op-ed came in an email that encouraged me to write an anti-Roberts letter using this link.

Here's how the encouragement goes:
John Roberts may have a sharp legal mind, but his record shows that he lacks a sense of justice.

The skills John Roberts displays are like those of White House Deputy Chief of Staff Karl Rove or House Republican Leader Tom DeLay. Both of those men have sharp political minds -- they are among the smartest in Washington. But they use those skills to push a narrow ideology and win at any cost. Roberts has spent a career using the law to protect corporate interests and roll back the rights that protect us all.

Roberts, Rove, DeLay and the rest of the extremist Republican leadership all have the same problem. They abuse their power by pursuing ideological crusades -- and they ignore the real problems we face as a country and as a community.

Thousands of letters appearing in papers across the country will reach every American with our message -- that the time for narrow ideology and protecting the rights of only a few is over.
Roberts — he's like Rove! Be very afraid!

"Something wrong with your eyes?" "Yes, they're sensitive to questions."

Now that we know "North by Northwest" is one of John Roberts' favorites, we can pick over the memorable quotes from that film for whatever seems applicable. (One of the commenters on the previous post gave me this idea.)

And here are the quotes for his other favorite film, "Doctor Zhivago."

Roberts loves "North by Northwest" — and his wife looks like Eva Marie Saint.

Prompted by a question from Senator Schumer, John Roberts let us know that two of his favorite movies were "Doctor Zhivago" and "North by Northwest." After he said that, it became strikingly clear to me how much his wife — Jane Sullivan Roberts — looks like Eva Marie Saint (not Julie Christie).

Yesterday, Jane Roberts wore a black suit, an interesting change from the pink suit worn on day one (when she was seated next to a woman in a green suit who was next to a woman in a blue suit, creating that row of Easter eggs look). What did it mean, going from pink to black?

Was she implicitly chiding the Senators? No more Mrs. Nice Wife. I'm pissed at you now for not giving my husband the respect he's going to get for the rest of his life once he gets done sitting through your demeaning ritual.

Or is she just trying to fade into the background and become invisible?

Or does she want us to look at her face, not her clothes? In black, she's becomes a pure face, floating just behind him, giving him dimension and feeling.

The case the Senators don't want to talk about.

You know one Supreme Court case the Senators aren't grilling Roberts about? Despite all the talk about the Commerce Clause at the hearing, none of them wants to bring up Gonzales v. Raich, the medical marijuana case. Wouldn't you think the Democrats would want to champion the rights of the powerless, suffering cancer patient, oppressed by the government, with whom the heartless Supreme Court Justices could not empathize? (And I'm putting the question that way because that is the attitude many of the Democratic Senators are taking, such as yesterday when Dianne Feinstein mourned over all the victims of gun violence the Supreme Court didn't care about when it struck down the Gun-Free School Zones Act in Lopez.)

Angel Raich lost her case because the Court interpreted the Commerce Clause as broad enough to support the Controlled Substances Act, with its comprehensive ban on marijuana, which reaches even homegrown, home-consumed marijuana, even when it is used for medicinal purposes by severely ill persons according to a state regulatory program, a program adopted as the result of a democratic vote by the people of a state. If the Court was wrong, it was wrong because it found that Congress had too much power. The Senators don't want to push Roberts to say that they lack power. They only want to hear that the power is there for them to do everything they want and that their judgment about what is best is better than any court's judgment. Of course, the power to change the result in Raich lies entirely in their hands. The Senators are the source of the law that oppresses the powerless, suffering cancer patient. Why don't they amend it and add an exception?

Too bad John Roberts can't give back what he has to sit there and take. I would love to hear him grill them about the federal laws that demonstrate their lack of empathy for the oppressed.

September 14, 2005

Day 3 of the Roberts hearings.

Let's run through Day 3 of the Roberts hearings. I see we start with the tail end of the first round. Yesterday I thought I'd missed the last two, Sam Brownback and Cryin' Tom Coburn. But here they are, starting us off this morning.

Brownback asks Roberts about Kelo, the recent takings case, and Roberts shows his firm understanding of the issues, but, as one would expect, won't tell us if he thought the Court got it right. Brownback asks about Congress's power to remove particular issues from the Supreme Court's jurisdiction, and Roberts says what he said yesterday: it's a bad idea for Congress to use this power, which may or may not exist — he's not telling. Brownback moves to the topic of abortion, which he focused on in his opening statement: "Could you state your view as to whether the unborn child is a person or is a piece of property?" Roberts gives another short, noncommittal answer about abortion rights. Brownback then consumes a huge chunk of his time giving an anti-abortion speech, at the end of which Roberts can only say, "Well, Senator, I appreciate your thoughts on the subject very much."

Cryin' Tom Coburn bores me to tears except when he amuses me with: "Would you agree that the opposite of being dead is being alive?" And with his "medical" opinion — he's a doctor — that Roberts is a credible witness: "I will tell you that I am very pleased, both in my observational capabilities as a physician to know that your answers have been honest and forthright as I watch the rest of your body respond to the stress that you're under." I'm under some stress over here, listening to this nonsense.

Now we start the second round of questioning, with 20 minutes more from each of these 18 Senatorial characters. So it's back to Specter.

Arlen Specter gets Roberts to expand on the notion of a "living Constitution," which he brought up yesterday. Roberts says: "[The Framers] intended [the Constitution] to apply to changing conditions. And I think that, in that sense, it is a concept that is alive in the sense that it applies -- and they intended it to apply, in a particular way, but they intended it to apply -- down through the ages." That is not the "living Constitution," though. That sounds like a expression of belief that Framer intent governs, so the original conception of the right stays, but that the right applies to new situations — and that itself was intended by the Framers. On further questioning, Roberts restates his idea so that it falls somewhere between a fully evolving Constitution and commitment to original intent. Where the Framers have used a broad, abstract term like "liberty," the courts aren't bound to the particular details that they would have thought liberty comprised. "[W]e should hold them to their word" and interpret the term "consistent with their intent, which was to adopt a broad principle."

Patrick Leahy works through a set of questions mostly aimed at testing Roberts' sensitivity to the rights of the accused and the death penalty. Leahy is blabby and emotive. Roberts is crisp and intent on using legal analysis.

Orrin Hatch has a supportive interaction with the nominee that I'm not going to detail.

It seems more interesting to move on to Ted Kennedy. Toward the end of this exchange, Kennedy gets exasperated that Roberts won't answer more questions (which has become a very tiresome subject):
Well, this may eventually come on up before the court. But the fact is we know how every other justice has voted because they have all voted. And the American people would like to know where you stand on this very important public policy issue, particularly since Sandra Day O'Connor wrote such a compelling decision that was, I think, in the cause of fairness and justice.
Yes, we know the opinions of judges who have already made decisions as judges, but how could that possibly mean that the nominee has to give an opinion in advance?

I like this Q&A with Senator Grassley:
GRASSLEY: Are you against cameras in the courtroom like Justice Rehnquist was?

ROBERTS: Well, my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of.
"My new best friend" — that's a locution you don't expect to hear from a sober judge. I hope it means he's Hollywood enough to want those cameras on him, because I want to watch.

Joe Biden is hamming it up big time, dramatizing the frustration of not getting Roberts to say how he'll decide specific cases. We've been through this so many times, but Biden seems to think that, if he just emotes more than the others, the American public will finally see the outrage of a judge not committing his vote before hearing the case. Yet every time Roberts explains why he won't answer, he sounds so eloquent and even inspiring about the role of the judge, that it ends up making the Senator look childish.

Next, Jon Kyl begins to pose a question, " A very wise senator on this committee once said something. Let me quote it to you. And by the way, I contend that he is still wise," and Joe Biden — who just got done hogging the stage — blurts "I bet I'm the wise one." Kyl goes "I'm sorry?" And we see Biden grinning crinkily, beaming as though he thinks he's just adorable. He waves his hand in the "never mind" way and looks down, laughing somewhat maniacally, inexplicably pleased with himself. In fact, the quote turns out to be what Biden said at the Ginsburg hearing about a judicial nominee not answering questions. Well, why doesn't Biden take responsibility for his egregious contradiction? Somehow that old quote doesn't count and he can be all outraged that Roberts is doing what he supported Ginsburg's doing? Doesn't Biden want us to take him seriously if he's planning to run for President? He seems hopelessly out of touch with the impression he's making.

Interesting question from Herb Kohl that Roberts doesn't answer: "Do you believe that the Senate's rejection of Judge Bork in 1987 was a reasonable and respectable act, or instead do you view it as a period of unfair partisanship? What were your thoughts about that case as it unfolded?"

Senator DeWine blats out this cornball advice: "By becoming John Roberts the chief justice, don't ever forget to be John Roberts, the man." And then: "When you put on that black robe and assume your spot on the Supreme Court, you will surely bring with you your heart and your soul, the values you learned from your parents and others that you learned as you grew up in the wide, open fields of your youth."

Uh-oh. Dianne Feinstein is next. I've heard some of this in the car, so I know how bad it is. The Senators pretend not to understand law (or actually don't understand it), and what I heard in the car was the worst. But I kind of like something she says at the beginning:
I guess what has begun to concern me a little bit is Judge Roberts, the legal automaton, as opposed to Judge Roberts, the man, because I've heard so many times, I can't really say because it may come before me. And yet, I don't expect you to say what you would do with Roe one way or another.

But I do expect to know a little bit more about how you feel and how you think as a man, because you're a very young man to be chief justice. You could be chief justice for 40 years. That's a very long time.
That sounds genuine to me, not the usual pre-written material. Here's the part I heard in the car that lowered my opinion of Feinstein:
Commerce clause, the 14th Amendment, Lopez, which began a chain of about 36 cases, striking down major pieces of legislation. It's not easy to get a bill passed here. I mean, there are hearings, there are discussions, there are markups, there's one house, there's another house, there's a president.

It goes through most of the time scrubbed pretty good before it gets to the president.

Gun-free schools -- struck down in 1995, an impermissible use of the commerce clause.

'96, Moses Lake, Washington -- shooting in a school. '97, Bethel, Alaska, principal and one student killed. '97, Pearl, Mississippi, two students killed and seven wounded by a 16-year old. 1997, West Paducah, three students killed, five wounded.

Stamps, Arkansas, two students wounded. Jonesboro, '98, four students, one teacher killed; 10 others wounded outside West Side Middle School. Edinboro, Pennsylvania, one teacher killed, two students.

And on and on and on -- an impermissible use of the commerce clause to prohibit possession of a weapon in schools.

Now, at what point does crime influence commerce?
Why did I dislike that so much? Because there is a complete disconnect between the legal question, the scope of the Commerce Clause, and the rhetorical listing of victims of violence. Is the listener not supposed to notice that there are state laws against murder that don't prevent all murders? Why would a federal law against gun possession have been more effective? Or is one of Congress's enumerated powers the power to show it cares?

I'm skipping Sessions again. On to Feingold.

Actually, no. I'm hitting the wall for today — a tough day, with some grueling minutes at the hands of my kindly oral surgeon. Time for a glass of cognac. I've had my pint of Haagen Dazs. I've downed my Advil tablets (leaving my prescription for a Controlled Substance unfilled). Sorry I'm not getting to Schumer. I heard a bit of him in the car and thought he was awful. But I'm going to have to sign off for the day. I'm not in pain. Don't worry! But I'm just beyond the point where I can carve out spiffy comments. And my senator, Feingold, deserves a fresher eye than I have now. Good night, all!

So that's it for Day 3, as seen by your humble blogger.

UPDATE: I survived the night without Controlled Substances. Advil was perfectly adequate.

"What, if you are confirmed, would be your agenda, your plans, or your policy objectives to advance in connection with your head?"

We are hysterically laughing at Senator Kohl, who came out with that gaffe (which he corrected to: "with your role as the head of Judicial Conference?"). You know, Roberts has to keep it together all day long, while the Senators come and go and then do a relatively short set of questions. I'm constantly amazed at how many flubs the Senators make as they do their (obviously pre-written) questions. But Senator Kohl wins the prize with that one.

Why I'm so late getting to the Day 3 hearings.

Well, I just got a tooth pulled, with just novocaine and nitrous. It was pretty intense, involving sawing the tooth in pieces because it was too firmly attached to pull out all at once. I suppose if I'd known that would happen, I'd have gone with the IV sedation. But once you're in the middle of the procedure, you just have to keep going, no matter how crazy it gets! It didn't exactly hurt but it was harrowing, even with nitrous. The good part is, I feel fine now. But the novocaine hasn't worn off yet.

I'm contemplating getting the painkiller prescription filled, but probably won't. When they handed me the prescription, I said, "Is this the stuff Rush Limbaugh was addicted to?" I don't want to feel groggy or be forbidden to drive. And then they told me I couldn't go in and teach my class on those drugs. I didn't say, "But Rush did his radio show!" But I thought it.

I think I'm just going get by on Advil and vanilla Haagen Dazs — and cognac.

They told me to take it easy, which I'm assuming encompasses spending the rest of the day taking in the Roberts hearings. So if you're stopping by here looking for summaries of the Day 3 hijinks, you'll have to give me a little more lead time.

I did hear a little in the car: Dianne Feinstein listing the names of murder victims the Gun-Free School Zones Act would have saved (because, you know, murder isn't illegal), and Chuck Schumer freaking out about how Roberts won't answer the questions. Don't they care that they make themselves look like fools? Or do they just think we won't notice?

"If Katrina has laid bare the shortcomings of Bush-style conservatism, it has also exposed problems with contemporary urban liberalism."

That's a well-framed essay topic, from Joel Kotkin & David Friedman, writing in The New Republic.


We were talking about how Roberts looked terrified throughout the hearings yesterday. Didn't sound terrified, just looked it. Something about those eyes.

"Looking at foreign law for support is like looking out over a crowd and picking out your friends."

I TiVo-blogged the Roberts hearings (and will do the same today, starting in midafternoon after my trip to the oral surgeon), but I missed a few parts of it due to C-Span's cutting away sometimes. I'm looking at the transcript now and seeing that Roberts gave a nice, crisp answer rejecting the use of the decisions of foreign courts in the interpretation of the U.S. Constitution:
If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he's playing a role in shaping the law that binds the people in this country. I think that's a concern that has to be addressed. The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -- because they're finding precedent in foreign law -- and use that to determine the meaning of the Constitution. And I think that's a misuse of precedent, not a correct use of precedent.
Well put. How would Justice Breyer answer that? I think the defense of using foreign law is that you cite it for its persuasive power, not because you regard it as binding authority. So it's not different from quoting a passage from Shakespeare or a philosopher. Thus, the fact that you're "picking out your friends" isn't a problem. And a bonus is — as Breyer has said — that the foreign judges whose opinions are cited — and cited because they are good — gain status in their own countries by virtue of the citation in a United States Supreme Court opinion. That may help the development of democratic values, individual rights, and the rule of law in those countries. Why shouldn't the Supreme Court provide that encouragement? It's not as if judges rigidly follow a method of eliminating all extraneous material from their opinions. As long as they don't slip into the problem of imagining the opinions of foreign courts to be authoritative, why is it wrong?

What is the essence of blogging?

Steven Taylor is putting together a talk about blogging and wants readers to help him generate material. He's got a few questions, which you can go over and try to answer. One of the questions is:
If you are a blogger, do you have a post that either exemplifies blogging at its best (or worst) and/or do you have a post that helps explain blogging?
I have a special fondness for my post "Tattoos remind you of death." I think it's mostly that the article is the most bloggable thing I've ever run across.

I think the post of mine that's gotten the most attention is "How Kerry lost me." Did George Lakoff teach a "Language of Politics" class about it? I like the idea of a blog post becoming a text.

I'm fond of all the simulblogging (or TiVo-blogging) things I've tried to do — and will try to do again today. But I must teach a Civil Procedure class at 11. And I must get a tooth pulled at 2. I'll probably tooth-blog later today. Help! I've never had a tooth pulled and I'm terrified!

UPDATE: The link to Taylor's blog isn't working for me right now. I'm guessing he got some big links and things crashed over there. Here's some advice from me about blogging: Stay with Blogger! Do not scorn the BlogSpot! You never have to worry about too much traffic. You don't pay for it and things don't crash. You may have heard of various problems people have had with Blogger, like last spring, when there was once a day when you couldn't get your posts to appear, but there has not been a single problem since then. Think how many blogs they are managing! Why do you imagine that you'll be better off with some smaller scale outfit? Or do you just hate seeing "blogspot" in your URL? I say wear the "blogspot" with pride! Start with Blogger, stay with Blogger! Don't be a URL snob. Get a word you like in front of the "blogspot" and be happy to join the millions of well-served bloggers like me. And Duncan "Open Thread" Black.

MORE: The link is working for me now. But still: Go Blogger!

Roberts answered "just enough questions to be confirmed"?

Todd S. Purdum writes in the NYT:
On Monday, Mr. Specter, a veteran of such hearings, said it was his experience that nominees generally answered just enough questions to be confirmed, and Judge Roberts proved no exception.
You know, I was surprised at how much he said. He could have said a lot less. It seemed to me that he really did try to respond sincerely, but I'll concede that maybe all of that was a crafty strategy to play the role of a sincere nominee. And Purdum does support his thesis well (or should I say Purdum supports his thesis just enough to be considered a professional journalist?):
[Roberts] assured senators that he believed the Constitution embraced a right to privacy that has produced Supreme Court precedents protecting the right to contraceptives and abortion. But he declined to specify how such a right might apply to future cases on abortion or the right to die.

He agreed that the Supreme Court was right to outlaw public school segregation in Brown v. Board of Education and said there was new historical evidence to suggest that the framers of the 14th Amendment had envisioned just such a result. But he declined to say just what he thought of some more recent - and more controversial - civil rights rulings, on the ground that similar cases might come before him.

September 13, 2005

Two doodles.

These are recent. I was listening to something specific while doing each of these. Any guesses what?

The first one is not a picture of anything I was looking at. I was listening to someone else speak. I will leave it to you to say what I was thinking or feeling. Note the hatch marks at the top.


This one was a phone call. I was drawing while listening and while speaking. It's easy to guess the general topic, of course.


Day 2 of the Roberts hearings.

I'm getting a late start, but I will persevere, beginning at the beginning, with the help of my TiVo.

Arlen Specter starts off the questioning, asking about stare decisis in general and Roe v. Wade in particular. Roberts sticks to the general and avoids the particular. Specter pushes his term "super-stare decisis" for Roe and whips out a gigantic poster listing the 38 cases that "reaffirmed" Roe v. Wade and asks if Roberts would think "Roe might be a super-duper-precedent." Roberts emphasizes that it is Casey that really matters, because that is the case where the Court addressed Roe and stare decisis and genuinely reaffirmed it. The other cases, I add, didn't so much "re-affirm" as simply accept and apply.

As noted in an earlier post today, Roberts states that he recognizes the existence of a constitutional right of privacy, but he frames his answer in a way that should appeal to conservatives as he stresses the constitutional clauses that express privacy rights. As to the rights in the penumbra, he says nothing. Instead of pursuing Roberts about that, Specter tries to get him to say Roe is a locked-in precedent. Of course, he does not.

Asked about the "notion of a Living Constitution," Roberts makes the seemingly unRehnquistian statement: "I agree that the tradition of liberty is a living thing." I say "seemingly," because it is well known that Rehnquist (like Scalia and many conservatives) rejected the notion that the Constitution changes to keep up with the times, but Roberts didn't say that it did. He said that "tradition" is a living thing. Whether the ongoing, living tradition of liberty makes its way into the interpretation of constitutional clauses containing the word "liberty" is another question. If Specter were sharper, he would have done a follow-up question.

Patrick Leahy asks a series of questions about separation of powers. "Isn't this hornbook law?" he asks when Roberts can't answer a difficult question about whether Congress can vote to stop a war. Leahy seems peeved that the answer isn't an obvious consequence of the power to declare war. Roberts handles these questions well, even though Leahy frequently interrupts him.

Questioning Roberts about standing doctrine, Leahy misses the entire point by not recognizing that injuries to the environment are enough to give a person standing. He blurs them into the same category as no injury at all. Roberts sincerely sorts through basic doctrine — this really is "hornbook law" — and doesn't make it excessively obvious that Leahy doesn't understand what he's trying to talk about. Leahy mumbles his way into another interruption talking about — what? — tennis star? Oh, Kenneth Starr. Oh, lord, I wish Leahy's turn was up!

Orrin Hatch lays out the various methodologies of constitutional interpretation, taking categories from a Cass Sunstein book. Roberts doesn't like the labels and calls himself a "modest judge." He goes on to speak comfortably and fluently about how judges ought to behave, and it makes me think that Hatch lobbed him a nice nerf ball. The Hatch questioning makes a lovely resting point for Roberts — and yet he's saying a lot of basic things that are useful for people to hear. "It is emphatically the province and duty of the judicial department to say what the law is" — I try to say that at least once a week myself.

Roberts expresses confidence in the ability of judges to draw difficult lines. There is a difference between "making the law" and "finding the law," and judges know when they've crossed the line dividing the legislative from the judicial, he says. He thinks some judges go too far deferring to the legislature on the theory that they can't draw that line and can't say what the limit on Congress's power is, but deference to the legislature is also important, he elegantly adds.

Ted Kennedy invokes Katrina to bring up his themes of poverty and inequality. He outlines the history of civil rights cases and laws and asks Roberts to state that the progress that has been made is "irreversible." Kennedy becomes extremely antagonistic to Roberts over various issues — you can refer to the transcript for the details — interrupting Roberts repeatedly and looking quite angry. Several times, Arlen Specter has to tell Kennedy to let Roberts finish. At one point, when Roberts is just beginning an answer, Kennedy seems to snap "Roberts" at him, with no "Judge" or "Mr." in front of the name, and we rewind several times to try to figure out if Kennedy was indeed that rude. I still don't know, due to Kennedy's irritating garbling. Kennedy might have some good points to get out, but his anger and rudeness thoroughly undercut his presentation.

Chuck Grassley reads some legal material in a too-loud voice and asks Roberts to opine on it. The exchange with Grassley is very similar to the one with Hatch. Courts decide cases according to the law, you know. I'm trying to resist hitting the fast-forward button.

I succumb to temptation and fast-forward a bit. I stop at a point where I see Roberts' wife yawning. First laugh of the day, I think.

Joe Biden begins by saying "Hey, Judge. How are ya?" Then, "Look, Judge, uh, I'm gonna try to cut through some stuff if I can." What are the chances that Roberts is fooled into thinking he's facing an amiable, jovial pal? Biden goes on at length playing with yesterday's baseball metaphor and really gets on my nerves. When will he get to a question? Finally, he gets to the question whether Roberts thinks there is a right of privacy in the Fourteenth Amendment. Good! Roberts: "I do, Senator." But he can't extract much detail after that, as the two men get bogged down in how much Justice Ginsburg revealed when she endured her Senate hearings.

C-Span breaks away for its ritual of the opening of the House of Representatives, and Biden is ousted by those inconsequential 5 minute speeches. What an indignity! So, I must fast-forward.

It's time for Herb Kohl. Kohl gets Roberts to say that he believes in the right of privacy articulated in Griswold, as later framed in terms of substantive due process. That is to say, he doesn't endorse the notion of rights in the penumbra of the Constitutional clauses, as stated in the case. Roberts puts the right into the due process clause, as later cases did. But how big is this privacy right? Roberts will only say that it covers at least what Griswold spoke about — married persons' right to use contraceptives. The reason he would talk about that but not abortion is that he's sure that there would never be another case on that subject. That's a neatly framed position! It stops those who would try to destroy him for not believing in the right, but it commits him to nothing that he might actually decide.

Kohl is a mellow questioner.
Mike DeWine raises some interesting issues about FISA courts and then free speech. He doesn't so much seem to be testing John Roberts as publicizing legal issues of note. Now he's getting to a case I'm especially interested in, Garrett, which one of the Senators yesterday misrepresented as finding the Americans With Disabilities Act unconstitutional. (The Court merely found part of act not to be supported by the Fourteenth Amendment power, which meant that Congress could not abrogate state sovereign immunity. To put it simply, that limits plaintiffs to prospective relief when the defendant is one of the states.) DeWine's question is about judicial deference to congressional factfinding. The problem in Garrett was that Congress needed to find not just that persons with disabilities had suffered discrimination, but that their Fourteenth Amendment rights had been violated. There is a big discrepancy between these two things, however, because this kind of discrimination only needs to pass a minimal scrutiny test not to violate the Equal Protection Clause. So it's not really "factfinding" that was at stake in Garrett, but legal analysis about what rights are, which is the approprate role of the courts. But what Roberts talks about is how later cases — Hibbs and Lane — have been more deferential to Congress and how the the law in this area is still evolving. Basically, he is distancing himself from Garrett, which many people find distinctly unsympathetic. Roberts does not make any effort to explain the actual legal issue in Garrett. I'm sure that was a smart move, actually, rather than to try to explain the legal point I just did. No one would appreciate it.

Dianne Feinstein asks about several quotes that seem to reflect insufficient concern about women's rights. When he explains that the crack about encouraging homemakers to become lawyers was a joke, she chides him about his tone. Why isn't he modest and humble all the time? God forbid anyone should ever have a light moment and try to get on the Court. She moves on to ask about the Commerce Clause. He calls attention to the recent Raich case, emphasizing how broad the power the Court has recognized is and how minor Lopez and Morrison were. Feinstein brings up the separation of church and state and makes the blatantly untrue assertion that there is more divisiveness among religious groups now than ever before in our history. She tries to get him to state a belief in "the absolute separation of church and state." Of course, he doesn't. He says he doesn't know what the concept means, indicating that he sees Establishment Clause questions as complex, making me think he'll continue the trend of cutting the cases down the middle and offering up no clear answers.

Hey, it's grueling listening through all of this. It must be hard on John Roberts. It's just weird to have to sit there and be grilled all day long. Ah, but he'll have to work long and hard on the Court. Why not test his stamina?

Jeff Sessions. I'm skipping this one. Sorry.

Russ Feingold. First question: Why not televise the Court's arguments? Please say yes! Roberts talks way too much here, for some reason. Maybe he's trying to run out Feingold's time. Second question: How did September 11th affect your thinking about the law? Again, he gets weirdly chatty, telling the story of how he heard about the attacks unusually late, which was interesting but utterly irrelevant. Again, I'm thinking he's trying to eat up Feingold's time. Really strange! He hasn't done this to any of the other questioners. Feingold pushes him to focus on the question of undervaluing rights during wartime. This part is productive. Roberts is fairly noncommittal, but shows a somber concern about rights, as, of course, he must. He flatly rejects Korematsu.

Lindsey Graham wants to talk to Roberts "about life." He circles around a bit and hits on the question: what was Rehnquist's legacy? Roberts' answer is too generic for Graham, so Graham blurts out what he cares about: you're going to be like Rehnquist, aren't you? He follows up by asking what Bush meant by introducing him as a "strict constructionist" and then what is meant by the Reagan Revolution. Graham makes no secret of his goal of establishing that Roberts is conservative. Then he blasts all the Democrats in the room for thinking Bush would or should do anything other than nominate a conservative. Moving to particular substantive questions, he throws out the best-phrased question of the day: "I think it stinks that somebody can burn the flag, and that's called speech. Whaddya think about that?" Another Grahamism (about the ACLU): "In the conservative world, how does that rank on the food chain?" I'm amused again, but what is Roberts supposed to say about that? Graham rants about Justice Ginsburg, who, among other things, wants to do away with Mother's Day and Father's Day. I think I hear a gasp from the audience. You know, Graham is amusing me — more than anyone else today — but I think his tone is a bit clownish for the occasion. Still, he works his way to the bottom line deftly. The Republicans voted for Ginsburg, though she was clearly liberal: "They deferred to President Clinton because he won the election."

Sitting behind Roberts are three women (one of whom is his wife) dressed in neat, pastel colored suits. All have tasteful jewelry, sleekly nyloned legs, and the absolute obligation to sit still on stiff chairs. I'm starting to feel really sorry for them!

Uh-oh. It's Schumer. He says, "So you will be Chief Justice." Okaaaay. If Schumer's saying that, then can we all just please go home? Schumer admits to being "pleasantly surprised" by some of his answers. He sounds bored by his own disquisition. The Constitution is supported by "three legs"? I expected Schumer to be more of an attack dog. But he knows this is pointless. The cameras pick up Leahy and Specter, who seem to be finding this all very tedious. Or am I projecting? It's 10:43 here now and I've been trying to get through this since 2:30. Schumer introduces the topic of Wickard v. Filburn, then goes "ummm," in a tone that — to me — says, oh f**k, who's going to care about Wickard v. Filburn?

John Cornyn. Sorry, I'm skipping this one too. I expect him to support Roberts, so nothing much can happen here.

Dick Durbin is blabbing about Justice Blackmun, who, according to the Dictionary of Received Ideas, stands for the infusion of human emotion into judicial decisionmaking. One must quote the phrase "Poor Joshua!"

My C-Span recording shifts over to covering some vote on the House floor, where it stays until the end. So I've won a reprieve! There's nothing left for me to TiVo-blog. So there will be no Sam Brownback for me. (I don't care. He was boring.) And no Tom Coburn. No Cryin' Tom. Damn! Not really. I've had enough. I can't believe these characters are going to dribble on for another day.

I wonder what John Roberts will do tonight. I suppose he has to spend the whole evening going over the details of today's performance with his various advisors. But I'd like to think he didn't. I'd like to think he went home and had a nice dinner and a glass of wine with his wife, spent the evening playing Uno with his kids, went to bed early, and is now sleeping soundly. Dreaming — of what? Gloriously striped robes.

Roberts affirms a belief in a constitutional right of privacy.

I just caught a few minutes of the Roberts hearings, with Arlen Specter questioning Roberts about the right of privacy. Roberts is giving really short, crisp answers, and Specter seems really nervous as he struggles to get out his questions. Perhaps he's surprised by the brevity of the answers and is worrying about running out of material. Asked about his reference to "the so-called right of privacy," Roberts clearly explains, with references to the First, Third, Fourth, and Fifth Amendments, that there is a constitutional right of privacy. He doesn't hedge at all, and Specter seems to be at something of a loss for follow-up questions.

I don't have time to keep watching, but I'll be back this afternoon with more.

About that baseball analogy.

John Roberts gave us little to work with in his nice little seven-minute opening statement, so everyone's talking about the baseball analogy.

One thing is to say that umpires have enough room to maneuver that it really matters who does the umpiring. That's the Democrats' rhetorical move on the metaphor, but it's an exactly correct reminder that it does matter who decides, even when the judges are doing their utmost to be modest and neutral and principled.

Some people think the baseball metaphor was a wonderfully folksy touch that will reach out to ordinary Americans.

You know what my first reaction was? Great, a sports metaphor. The man is accused over and over of not caring about women's rights and the first thing that comes out of him is a sports metaphor. For decades, I have negatively judged men who, speaking to a general audience, fall back on a sports metaphor. It says: I come from the world of men. My reference points are men's things. I will speak in a way that will make men feel welcome and at home, and women can come along if they've taken an interest in the same things.

And you needn't tell me about all the women who care about sports or how important sports are. Sports are exactly as important and sex-related as fashion. And think how you would have felt if John Roberts had built his little homily around a fashion metaphor.

"If we only kept the things we truly loved in our homes, we'd have so much space."

A life lesson, offered up by a man scavenging for things to take out by boat from his swamped house in New Orleans.

In another vein, there's this, from a photographer who has been riding along on the boat and who has worked in Iraq:
"There are more guns here than in Baghdad!"

Blogging the Roberts hearing.

It was fun drudgery blogging the Roberts hearings yesterday, when it was wall-to-wall senatorial blather — with a dot of Roberts. The balance will be better today, and I'm eager to TiVo-blog as close to real time as I can get. But I won't be able to start until about 2:30 in the afternoon.

"I believe we have to go to the sources of it, where terrorists are trained, where terrorists are prompted up."

Hamid Karzai thinks big.
"We and the international community and the coalition must sit down and reconsider and rethink whether the approach to the defeat of terrorism that we have taken is the right one."...

President Karzai denied his comment on the "sources of terrorism" was a reference to Pakistan, but his officials have said as much in the past.

Katrina quotes.

Last night, I read an About columnist's list of "25 Mind-Numbingly Stupid Quotes About Hurricane Katrina And Its Aftermath" (via Throwing Things). Funny that the blog that openly calls itself Right Wing News has a much more varied selection of quotes. One quote that makes both lists is the astoundingly bad "this is working very well for them" that came out of former First Lady Barbara Bush.

September 12, 2005

Audible Althouse.

I just put up a new podcast. It's 25 minutes long and largely about the Roberts hearing.

The Roberts confirmation hearing.

[NOTE: If you've just arrived here from Slate and are looking for the reference to crying, scroll down to the comments on Tom Coburn.]

I'm going to try to TiVo-blog the Senate Judiciary Committee hearing. I detest listening to Senators speaking, but maybe by blogging along I can force myself to tolerate it.

Arlen Specter. Sorry, I was making a grilled cheese sandwich while he was talking. The one thing that struck me enough to remember until I got back to my keyboard was how wounded he sounded about the way the Supreme Court didn't didn't defer to Congress in the Violence Against Women Act case.

Patrick Leahy. I got my first out-loud laugh when Leahy just started reading the whole Preamble of the Constitution to Roberts. Then he kept saying "We the People" as many times as he could. Roberts has a really intense expression on his face — shots of him are making me think of some of the closeups of Maria Falconetti.

Orrin Hatch. He begins with a paean to William Rehnquist, and now, when the camera shows Roberts, he's looking truly joyful. Either he loved WR or he's just really glad not to have to listen to We-the-People Leahy anymore. I'd never noticed Hatch's accent before, but now I hear him say: "You've had two herrings before this committee." (Actually, I think it's not Hatch's accent. He's just garbling some of the speech he's reading.)

Ted Kennedy. He drags in Katrina. (So did Leahy.) The hurricane revealed poverty and inequity. "There are real and serious reasons to be deeply concerned about Judge Roberts' writings." The hearing are his "interview with the American people." The burden on him is "especially heavy." Why? Because they didn't get all the documents they asked for.

Chuck Grassley. The hearing to confirm Justice White only took 15 minutes. Why are the hearings so long now? TV! And now we've got the internet. Grassley mentions BLOGS! Sound the alarm! He tells Roberts that his experience arguing before the Court "bodes very well in terms of your smoodly transitioning into the Court." Smoodly? You know, if they can't even bother to pay attention to what they are saying, why should we listen?

Joe Biden. My, is he tan! He launches into an intense harangue about the how much the Constitution protects "human dignity and human liberty" and how great is the "consensus" about the right of privacy. Roberts has that passionate Falconetti look about him again. It was Biden who most deeply wounded Judge Bork, years ago, with the same sort of statements he's making now about police in the bedroom and the like. First mention of the dreaded "Constitution in Exile."

Jon Kyl. Looks and sounds good. Repeats themes I've heard too many times — Roberts doesn't need to answer all the questions, etc.

Herb Kohl. My son Chris (age 22) just came home. He looks at the TV and says, "Hey, that's our Senator." He watches for about eight seconds, then bursts out laughing and says: "What is the point of them lecturing him like this?" I just say, "Yeah, I know." Kohl says his standard for voting on a judicial nominee is "judicial excellence," which he proceeds to define as containing four elements. Chris says, "'Judicial excellence.' What bullsh*t." Kohl says: "Justice, after all, may be blind, but it should not be deaf." Me: groan.

Mike DeWine. First mention (I think) of using international law in constitutional interpretation.

Dianne Feinstein. The only woman on the committee begins by addressing Roberts' family, soothing their feelings: Don't feel bad if we really push this family member of yours, of whom you are justly proud. Why does the one woman on the committee have to be the one that talks to the wife? It's got to be the woman who takes care of feelings, doesn't it? Yet all the guys are pontificating as much as possible about women's rights. She reads her speech too slowly, and Specter ends up calling time on her just as she's in the middle of an elaborate description of a monument she saw recently in Budapest.

Jeff Sessions. He comes out against post-modernism. Words have meaning, he informs us.

Russ Feingold. I don't know why Wisconsin gets two Senators on the committee, but we do. Feingold gets the first laugh I hear from the assembled crowd, when he comments that Roberts looks "healthy," after pointing out that Roberts is up for a lifetime appointment. Roberts and his wife both look like they think it's highly amusing. Of course, Feingold's setting up his statement about how intense the scrutiny ought to be. Of all the Senators, Feingold makes the most articulate argument for why Roberts should answer detailed questions. He's the best speaker on the committee — probably the smartest too.

Lindsey Graham. "Elections matter," Graham says, making what is, I would say, the key point. George Bush won the election, and he won saying quite clearly what sort of judges he would appoint. Bush has now nominated someone with stellar professional qualifications, and the only grounds to oppose him would seem to be ideological. And that's simply not enough. "We shouldn't invalidate elections."

Charles Schumer. This Chief Justiceship would bring Roberts "awesome responsibility, awesome not in the way my teenage daughter would use the word, but in the Biblical sense of the angels trembling in the presence of God." I wonder if his daughter actually does go around saying "awesome" and if she approved of that line. Chances are someone on the staff wrote that and thought it was good comedy, though that "angels trembling/presence of God" part was a real laugh-killer. Or do you think someone thought that was good comedy too? Schumer says his vote is going to depend on whether Roberts turns out to be in the "mainstream." This is, I think, the first invocation of the term "mainstream." And, of course, we all know that this is a set-up for his closing speech, where he informs us that he came to the hearings with an open mind but has been deeply disturbed to discover over the course of the hearings that John Roberts is not in the mainstream and, therefore, sadly, he must vote no. Schumer sternly warns Roberts that he must answer specific questions and flatly tells him he will vote no if Roberts does not. I think we know very well that Schumer will vote no.

John Cornyn. "Everything's been said, but not everyone has said it yet," he jokes about his late appearance in the order of speaking. Of all the Senators, Cornyn makes the most articulate argument for why Roberts should not answer detailed questions. So he's Feingold's counterpart. He tells Cornyn, "Don't take the bait." Don't give them what they insist you must.

Dick Durbin. A judge ought to expand freedom and be courageous about it.

Sam Brownback. Hey, the person next to him has the NYT crossword there on the table. A Monday puzzle — can't while away too many minutes with a mere Monday puzzle. Brownback makes what is by far the strongest anti-abortion statement.

Tom Coburn. "When I ponder our country and its greatness, its weaknesses, its potential, my heart aches for less divisiveness," he says and pauses a long time, choking back tears. "He's crying?!" I exclaim. We rewind the TiVo and play it again and, I'm sorry to say, laugh a lot. After the long pause, he goes on: "...less polarization, less fingerpointing, less bitterness, less mindless partisanship." You know, I agree! I feel very strongly about all of those things. But crying in a Senate hearing speech, moving yourself to tears? I'm sorry. I laughed a lot.

Finally, the opening statements are over. Now, Richard Lugar, sitting next to Roberts, presents Roberts to the committee. It's Lugar because he's from Indiana, like Roberts. Following on is Evan Bayh, also of Indiana (and very nice looking!). Then John Warner takes a stern tone with the committee, telling them that they need to watch how they conduct themselves.

And at last! It's Roberts! He raises his right hand to take the oath and huge waves of camera shutters fire off.

John Roberts. "Nobody ever went to a ballgame to see the umpire." Judges are umpires. They need to be "modest" about what their role is. The rule of law. "A government of laws and not of men." Beautifully said. "I come to the committee with no agenda... I have no agenda, but I do have a commitment." He's saying exactly what a judge should say. "It's my job to call balls and strikes and not to pitch or bat." The fields of Indiana represented for him "the limitless possibilities of our great land." You know if I were stranded in the cornfields of Indiana, I would not have perceived limitless hope. And who knows if he really did, as opposed to thinking get me the hell out of this mindnumbing flatland? But it's a pretty (albeit dubious) image. Hey! Suddenly, he's done! The coolest thing about that is how short he made it!

And the committee shuts down until tomorrow.

ADDED: For Day 2 TiVo-blogging, go here.


There's too much of it — the political trickery of scoring points off Katrina.

Questions for John Roberts.

The NYT op-ed page has five persons each writing five questions for John Roberts.

Glenn Reynolds is one of the five. He asks, among other things, "Could a human-like artificial intelligence constitute a 'person' for purposes of protection under the 14th Amendment...?"

Another lawprof, Kathleen Sullivan, wants to know "What are three constitutional issues you think will be more important by 2020 than any on which we are focusing now?" Probably those human-like artificially intelligent thingies, I'm thinking, picturing Haley Joel Osment.

Jean Edward Smith, a professor who's written a book about John Marshall, wants to know if Roberts will wear the Rehnquistian stripes on the robe — because, you know, Chief Justice John Marshall started the whole no-fancy-robes style for the Court.

Ron Klain, who was chief counsel to the Senate Judiciary Committee during the highly unusual Clarence Thomas hearings, asks:
Over the past 50 years, 20 different men and women have been appointed to the Supreme Court. Recognizing that political labels are of limited value, and generalizations are generalizations, I wonder if you can identify one of these 20 jurists - just one - who you think has a view of constitutional rights that is "to the right" of your view, as that label is commonly used by legal commentators?
Duh... Clarence Thomas? That's what Klain is — absurdly — trying to make Roberts say. That'll happen.

Finally, there's Dick Thornburgh, who served as Attorney General under Reagan and elder Bush and who gets the prize for shortest questions (and you know damned well the Senators aren't going to ask any short questions). I get the feeling, though, that his questions aren't short because he tried to make them pithy. I think he just didn't work as hard on the assignment as the other op-editorialists. He's got stuff like "How do you envision the role of a chief justice?" on the list.

"That's a critical question for Judge Roberts: Can he unite America for the future?"

What a bizarre thing to say. Said by Senator Kennedy.

Google indignities.

You'd like the name of your institution to come up first in a Google search for its name, but how terrible it is for something embarrassing to dominate the whole first page. I really didn't mean to take the top spot on that one. Sorry, Brazilian Institute for Oriental Studies.

"Committee members see a chance to polish their images and push their agendas."

That's a subheadline that appears in the paper version of this New York Times article about the confirmation hearings for John Roberts, which begin today. I think that says it all.
The hearings are to begin at noon, with opening statements from each senator and then from Judge Roberts. The formal questioning will not begin until Tuesday.

I heard on the radio that those opening statements are going to be a half hour each. There are 18 Senators on the committee. I know it's easy to do the math, but I've got to scream out it pain:

That's nine hours!

Oh, but the Senators really need to burnish their image!

Well, good luck, guys and Dianne. Do you seriously think anyone will watch? I'm about as interested in the Supreme Court as a sane person can be and have been eagerly awaiting a new appointment for years, plus I've got this blog and this TiVo. Yet I have a hard time picturing myself putting up with all that crap.

The Judiciary Committee hearings are this horrible, hulking, bloated mass of blather. And here's John Roberts, who's honed his style in half hour arguments before the Supreme Court, where your opening lasts — what? — a minute before they challenge you with questions, to which you must supply perfect, crisp answers to make your points as your few precious minutes run out. And he'll have to sit there, controlling his facial expressions and not fidgeting before those Senators who have no rational conception of time. They'll fill up the entire day with political speeches, which no one wants to hear. A few journalists will wade through to find some passage to use in the news reports. Or do they even bother? Surely, they get paper copies of the speeches in advance. Presumably, the quotable lines are highlighted. And then we'll just listen to whatever the newsfolk extract from the morass for normal people to sample.

Sorry I'm so jaded already. But I am excited about the fact that this is the first time there is a Supreme Court confirmation hearing with bloggers around to cut through the crap. So I'm going to do my part. I'm setting the TiVo. Maybe we bloggers can find a way to do something different. We really must.

UPDATE: Well, the radio either got it wrong or I heard it wrong, but per Senator Specter, starting off the hearings, each of the 18 committee members will have 10 minutes to do an opening. So a mere THREE HOURS of Senatorial wind. Whew! What a relief!

September 11, 2005

The one fall movie I suddenly care about.

When I went to the movies today, I was irritated by all the trailers for the coming Oscar Season movies — that thing with Scarlett Johansson and Helen Hunt, and then that one with Emma Thompson and Ian McKellan. Actors acting in that I-deserve-an-award mode, swathed in Cinematography. They finally got to the last trailer, with me in a thoroughly negative mode. But I loved it: "Everything Is Illuminated."

CORRECTION: That wasn't Emma Thompson, it was Natasha Richardson. But who gives a damn?

MORE: Manohla Dargis writes:
As Stella, the 1950's bored wife, inattentive mother and unhinged adulteress at the center of this story, Ms. Richardson initially affects the vacant mien of cinema's classically oppressed women. Like the lonely wives and widows of untold Hollywood melodramas, Stella is a martyr in heels and pearls. She burns from within; we, in turn, wait for her to be consumed in flames.
Ha, ha. I'll just get out my old copy of "Beyond the Forest."

"Grizzly Man."

I finally got the chance to see "Grizzly Man," the one current movie that I really cared about. I loved it. Timothy Treadwell — now there is a character! He'd have been a terrible character in a work of fiction, though, I think, because he was just too strange to believe, too multidimensional, and too silly for his tragedy.

And the story would have been worse as fiction, because things that had to be left mysterious would have been dramatized in a fiction movie. The difficulty in seeing who Amie Huguenard was gave the movie a deep poignancy. How entirely different it would have been if we had seen Amie and Timothy expressing their emotions to each other! How did he get her to go there with him and why did she stay, even when she had one last chance to run?

Like Amie, the grizzly bears are mysterious and unknowable, as the material is ultimately presented by the director, Werner Herzog (who says in the voiceover "I believe the common character of the universe is not harmony, but hostility, chaos and murder"). But Treadwell thought he understood the bears and that they could understand him too.

Our wonderful, thrilling central character lived a wild life, figured out how to do some amazing things, but got some things dramatically wrong. Who was he? Was he mostly a frustrated actor, who took to making his own insanely grandiose movie after he came in second in the casting for the "Cheers" role they gave to Woody Harrelson? Did he go back in the end to die out there?


I'm quite absorbed in my little podcasting project, Audible Althouse. I was thinking of doing one a week and thinking the ideal length was 25 minutes. But a week is too long to wait to do another one, because, as I said, I'm quite absorbed in it. And 25 minutes isn't long enough if it's only going to be one a week. So I'm thinking maybe two a week, going 25 minutes (or one a week, going an hour). Which days are best for a two-a-week schedule? Tuesday and Thursday? Wednesday and Saturday? Are people listening to podcasts during their work/school commutes or what? And should a podcaster try to stick to a particular length — like the way a professor hits 55 minutes on the dot or like a regular MSM radio show? Or are varying lengths good, depending on how you feel and what you've got to say, like a real-world conversation?

I would have thought having a set length was better, but then I thought about why we have set lengths for things like radio shows and classes: it's because they need to fit into a schedule. Things that are not slotted into schedules tend not to have set lengths: songs, plays, movies, books. Isn't variable length the norm when you don't need to be slotted in? The main reason to make a podcast a set length is if you want to maximize the "radio" feel of it. A factor to consider is that I'm not podcasting in my radio voice. On the radio, you have to stay on topic and sound on and crisp and professional. On the podcast, I'm thinking out loud and free associating and using an intimate, personal tone. Still, I think having an end point in mind has a good effect, both on the speaker and the listener.

UPDATE: You can subscribe to my podcast through iTunes. Just go to the iTunes Music Store and search for "Althouse," then hit subscribe.

"You gave me a sense of humor because you are so absurd."

So wrote Spalding Gray, the brilliant monologuist, who (so sadly) killed himself last year:
For 34 years I lived with you and came to love you. I came to you because I loved theater and found theater everywhere I looked. I fled New England and came to Manhattan, that island off the coast of America, where human nature was king and everyone exuded character and had big attitude. You gave me a sense of humor because you are so absurd.

Post-Katrina 9/11 editorializing.

Every newspaper must have a lead editorial today marking the anniversary of the 9/11 attacks, but will every newspaper find a way to connect the 9/11 attacks with Katrina? Here is the New York Times version of the seemingly inevitable Katrina-focused 9/11 editorial:
It took a day or two after Hurricane Katrina hit the Gulf Coast to understand that it could affect our feelings about what happened at the World Trade Center, at the Pentagon and in rural Pennsylvania....

Given the area it affected and its potential death toll, Katrina perfectly simulated a much larger terrorist attack than the one that hit New York. It was nearly nuclear in scale....

We felt that 9/11 had changed our lives in an instant, that we had been jerked out of a pleasant dream. The difference in the blow that Katrina struck was not merely that we could see it coming. It was that, as a nation, we thought we were already fully awake.
Fair enough. Actually, it's pretty mild: "Katrina perfectly simulated a much larger terrorist attack than the one that hit New York." No, in fact, it didn't. (The second to the last sentence concedes the simulation was not perfect.) You see a hurricane forming, strengthening, and heading for shore for days. A terrorist attack — one that succeeds — comes out of the blue. And only parts of the country are especially vulnerable to hurricanes, with New Orleans being a unique case of vulnerability for which special precautions should have been made. So the lack of preparation exposed by Katrina is far less than the real lack of preparation.

Here is a piece about what it would take to evacuate New York City after an attack:
Just imagine trying to move more than eight million New Yorkers - including the high number of people without cars - through streets that are clogged on an ordinary day and then through the tunnels and over the bridges that connect New York's islands to the mainland and to one another. "It would not be easy and it would not be pretty," said Jerome M. Hauer, the city's former emergency management director.
Who has not tried to picture what would happen in Manhattan if the island suddenly became uninihabitable?

I wonder what the 9/11 editorials would have said if Katrina had not knocked our heads into a different position? I think they would have talked about Iraq. What would they have said?

(A more interesting question to me is what difference has it made — will it make — that we've turned our attention away from Iraq?)

September 11th.

A personal ritual for me on September 11th is to take out my collection of newspapers and magazines, saved from the first week or so after the attacks. The multiples are not there because of an attempt to amass collector's items, but because there were three family members saving things (one of whom was in San Francisco).

September 11th news

September 11th news

September 11th news

ADDED: High-quality enlargements of these three pictures: here, here, and here. And here's a fourth one where you can see the whole Onion front page, including the classic headline: "Hijackers Surprised to Find Selves in Hell."

"My god, I can't wait for Mardi Gras. I am so homesick. Hearing about these holdouts gives me so much hope."

I just wanted to break out one of the comments from yesterday's post about the holdouts in New Orleans. The post is written by one of our regular commenters, Elizabeth. She's an English and Women's Studies instructor from New Orleans, who left before the storm:
Ann, a message posted late Saturday night by one of the holdouts who has been helping organize rescuers and information, said she was "sitting in Johnny White's drinking a COLD Abita Amber [a favorite local brew any Wisconsite would enjoy], thanks to Eddie Compass!!" Compass is our Chief of Police, so that tells me there is some negotiating going on.

...[T]he corrupt cops are the exceptions. The NOPD ranks have worked this storm, and the days after, away from the families, in sometimes terrifying and frequently sorrowful circumstances, and they keep showing up, day after day. I've heard this from people on the ground, nurses still in the city, and others who owe their lives to the cops.

Those of us who left are going through cycles of what we can think about and talk about. We're starting to talk about how the rebuilding will happen. For many, there's a feeling of distrust; we don't want the type of help the government gave in the storm--let's not debate that here, the point is to understand that New Orleanians are very suspect of outside planners. We want to guard our historic homes, and not have developers with U.S. contracts come in and slap up pre-fab, cookie cutter houses. We want to plan how we can make use of this awful event to sweep away some of the poverty and corruption, to fix our schools from the ground up, not piecemeal. And we want our people, our contractors and bricklayers and ironworkers and trash haulers, to do this work, not just contractors with big connections. We have to be part of this; we're getting very tired of waiting to be let in to our homes.

So, my answer to Ann is yes, resoundingly, the government needs to work with the Red Shirts, with the holdouts, and with all of us who are ready to return. My god, I can't wait for Mardi Gras. I am so homesick. Hearing about these holdouts gives me so much hope.