"The most beautiful highway in America."

What is it? Is it this?

"Romney, like all Mormon politicians, usually tries to walk a thin line."

Gordon Smith analyzes Mitt Romney's presidential aspirations.

Diving for the light.

Another on-stage rock death. Goodbye to Patrick Sherry. May the arms of Johnny Ace, Tiny Tim, and Dimebag Darrell reach out to pull you into the glorious musical afterworld.

"The artist disconsolately conceded yesterday...."

Speaking of water-based art in the UK, remember that guy with the running tap? He's turned it off:

A water company has given notice to a work of art which has already shed enough water to sprinkle half the lawns in Surrey.

The artist disconsolately conceded yesterday that his installation, The Running Tap, has probably run its course after pouring an estimated 800,000 litres (1.4m pints) down the drain during one of the worst droughts in the south-east in decades.

"Well that's it, isn't it?" Mark McGowan said miserably....

Who drank that £42,500 bottle of water?

That bottle of melted ice from the Antarctic was on a damned plinth so it was pretty obvious it was art!

UPDATE (Backdate?): One of the commenters was reminded of something that had crossed my mind too: that time a janitor threw out a trash bag that was actually part of an art exhibit:

A bag of rubbish that was part of a Tate Britain work of art has been accidentally thrown away by a cleaner.

The bag filled with discarded paper and cardboard was part of a work by Gustav Metzger, said to demonstrate the "finite existence" of art....

The bag was part of Metzger's Recreation of First Public Demonstration of Auto-Destructive Art, a copy of a piece he produced in 1960...

Metzger, a German artist who lives in east London, invented "auto-destructive" art in 1959.

The work also features an "acid painting" - nylon covered in acid which slowly destroys it to illustrate the transient nature of paintings, sculptures and other artworks....

It is not the first time such a mistake has been made. In 2001 a cleaner at a London's Eyestorm Gallery gallery cleared away an installation by artist Damien Hirst, having mistaken it for a pile of rubbish.

The collection of beer bottles, coffee cups and overflowing ashtrays was said to represent the chaos of an artist's studio.

And in the 1980s the work of Joseph Beuys, which featured a very dirty bath, was scrubbed clean by a gallery worker in Germany.

I can't help suspecting that these are, if not deliberate publicity stunts, hoped for or welcomed opportunities for press coverage.

Did Jon Stewart do a lame interview with Rick Santorum?

Here's a New Republic piece about "The Daily Show," especially the interview Jon Stewart did with Rick Santorum last night (which I just watched):

With most political guests, Stewart sticks to harmless questions and gentle quips, and he seems unable to pursue an argument. Rarely have such flaws been more pronounced than last night, when Senator Rick Santorum appeared on the set.

It should have been great. Santorum, on the show to promote his new book It Takes a Family, isn't shy about sharing his views. He has blamed Boston's political liberalism for the Catholic Church's sexual abuse scandal; he has compared homosexuality to "man on dog"; and he has equated Democratic attempts to preserve the filibuster to "Adolf Hitler in 1942 saying, 'I'm in Paris. How dare you invade me? How dare you bomb my city? It's mine.'" Surely with material like this, Stewart could get a spirited debate going. Yet the only solid part of the interview was the start:

STEWART: [People] felt that we would not agree on a lot of things, so I'd like to start off on some common ground. I will throw the first salvo: I believe sir, that ice cream is a delicious treat. But too much, sir, will spoil the appetite. Your move, sir.

SANTORUM: I uh ... I would agree with that.

After that it was all downhill. Stewart simply began to think out loud...

Read the whole thing, which recounts the interview in detail and is very critical of Stewart. But I thought it was a decent interview. It was not the equivalent of the suck-up interview Stewart did with John Kerry during the campaign. Everyone knows how much Stewart disagrees with Santorum. The "Daily Show" audience booed last Thursday when Santorum was announced as the Monday guest. I felt that Stewart was trying to demostrate that a person that far from him politically could sit down at his table and be treated with respect.

Stewart made his points subtly, in the middle of the mushy niceness. Santorum kept talking about the "ideal" of the man-and-woman-with-children family, and Stewart accepted that ideal but asked why not include other people in that positive model even if it's a step away from ideal. He noted when Santorum equated heterosexuality with virtue and got Santorum to back away from that equation a tad.

I think Stewart was trying to make a connection and a lot of the blather was the kind of small talk that establishes that one can talk. It drew the audience in, and it drew Santorum into a relaxed dialogue. (Did you see Santorum smiling about Victoria's Secret?)

Sure, Stewart could have shredded him with harsh questions, but that's not the only way to talk about politics.

What subjects are you interested in that I don't blog about?

And are there things that I don't blog about that you'd like to read about here? Basically, I'm seeking reader feedback to help me answer someone else's question, but I'm also generally interested in the answer myself.

MORE: People keep answering the second question and not the first. Seriously, my reason for this post is that I'm filling out a survey and one of the questions is about the interests of my readers! I can't just presume you must be interested in whatever I'm interested in. Presumably, there are big areas of interest that I don't touch on. That's what I'm trying to get. I'm not looking for new ideas of things to blog about and not setting out to revamp this blog or anything like that. I should never have thrown in that second question. I'm doing to do some striking to make this clear.

Monkey in the Middle.

What's in the monkey's mind when he looks in a mirror? Higher minds -- human beings, great apes, dolphins -- figure out, when they are looking in a mirror, that they are seeing themselves. Other animals, it's long been thought, think they're seeing a stranger. But a new study shows that the monkey occupies a middle position, where it doesn't see itself, but it doesn't see a stranger either. The monkey sees a "Puzzling Other."

And there's a sex difference. The males are disturbed by the Puzzling Other. The females try to flirt.

P.S. Did you use to play "Monkey in the Middle"? That was a very common kid's game when I was growing up. I suppose it would be considered too mean today. But it was a pretty fun game for three kids to play with just one small rubber ball. (There was also a similar game called "keep away.")

Getting worked up about Roberts, religion, and recusal.

Yesterday, there was a widely noted article about a statement made by Judge Roberts that some people interpreted to mean he'd said his religion would require him to recuse himself in abortion cases.

News reports today have people who heard the statement saying that he didn't really mean he'd have to recuse himself, which doesn't surprise me, since the misunderstanding was already apparent (to me) in yesterday's report.

"Does that mean we can take credit for ruining the Kerry-Edwards ticket, too?"

Wonkette weighs in on Plaidgate.

"N.Y.U. has an extraordinary and unique role in American legal education."

Jeffrey Toobin quotes NYU lawprof Sylvia Law saying:

“N.Y.U. has an extraordinary and unique role in American legal education,” Law said recently in her office, which is decorated with samples from her collection of homemade quilts. “We’ve been ahead of everyone in welcoming women and blacks to law schools and to the profession.”

Everyone? Here are the University of Wisconsin Law School's milestones:

1st African-American student, Charles Noland, 1875
1st Woman graduate, Belle Case LaFollette, 1885
1st African-American graduate, William Green, 1892

So would you please take that back, Professor Law?

ADDED: Nothing against N.Y.U. School of Law. It's my alma mater. I owe those folks a lot. They let me in, despite my appallingly inadequate background.

An end to "The War on Terror."

The term, that is.

The Bush administration is retooling its slogan for the fight against Al Qaeda and other terrorist groups, pushing the idea that the long-term struggle is as much an ideological battle as a military mission, senior administration and military officials said Monday.

In recent speeches and news conferences, Defense Secretary Donald H. Rumsfeld and the nation's senior military officer have spoken of "a global struggle against violent extremism" rather than "the global war on terror," which had been the catchphrase of choice. Administration officials say that phrase may have outlived its usefulness, because it focused attention solely, and incorrectly, on the military campaign.

It did? Because of the word "war"? So now we're supposed to switch to "global struggle"? Please. "Global struggle against violent extremism" is the new term? It's just a verbose translation.

Will it make some people feel better about the Administration's efforts? I see they are also trying to make moms feel better about boot camp. Is there some new Director of Soothed Feelings?

IN THE COMMENTS: The connotations of "struggle" are weighed.

The most beautiful skyscaper ever?

I say it is. The brilliant Santiago Calatrava has proposed a swirled point for Chicago -- to be the tallest building in America: the Fordham Spire. It's a residential building and, being very skinny, it will have full-floor units. Don't you want to live there? It would really be worth scraping together the $5 million it would take. How truly dramatic!

Donald Trump, who scaled back his own plan for a 150-story Chicago tower to a mere 90 stories after 9/11, is saying "Nobody in his right mind would build a building of that height in today's horrible world" and "I don't think this is a real project ... It's a total charade." Ha! Jealous!

Build it!

Roberts and the Solomon Amendment case.

Jeffrey Toobin has a big piece in the new New Yorker about the Solomon Amendment case, FAIR v. Rumsfeld. He speculates about how John Roberts might view it:

Even though the FAIR case is rooted in the law schools’ attempt to address discrimination on the basis of sexual orientation, the case is not, strictly speaking, about gay rights. It is, rather, a First Amendment case, about whether the Solomon Amendment impinges on the right to freedom of speech at universities, and whether the government has the right to use the leverage of federal aid to insist that the military be treated like other employers....

Most observers regard the legal arguments of both sides in FAIR as at least plausible, but most of the current Justices would probably want to defer to the needs of the military. Roberts’s history suggests that he would do the same; the concept of judicial restraint means a reluctance to invalidate the actions of the other branches of government....

Is Roberts committed to some sort of across-the-board judicial restraint, such that he'd be unsympathic to First Amendment arguments raised against the government? Here's Toobin's evidence that he is:

Roberts believes in the concept of judicial restraint. In a recent opinion in the D.C. Circuit, he chided his conservative brethren in a case about the regulation of raw materials used in making drugs, admonishing them, in Justice Felix Frankfurter’s words, “to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.” In an answer to the senators about his judicial role models, he wrote, “I admire the judicial restraint of Holmes and Brandeis, the intellectual rigor of Frankfurter, the common sense and pragmatism of Jackson, the vision of John Marshall.”

That first part is about deciding questions on narrow grounds rather than enunciating broad rules, which is not relevant to which way he'll decide the FAIR case, only to how he'd frame the holding.

The list of favorite judges means something more, but Holmes and Brandeis don't represent judicial restraint across-the-board. Holmes is the key figure in the development of free speech rights against government. (And Brandeis joined him.) What Roberts served up is a list of luminaries there, standing for different things, with only Holmes and Brandeis representing restraint. Others he admires for other things -- intellectual rigor, pragmatism, the vision thing. Who's to know what this amorphous tribute means about how Roberts will actually decide cases?

I'm rather thinking Toobin had a big piece on the FAIR case ready to go, and he tacked on this speculation about Roberts. Good enough. But it doesn't take us very far. Still, the piece is well worth reading for an explanation of the FAIR case, especially the litigation strategies of the parties.

Did Judge Roberts just commit to recusing himself in abortion cases?

No, and here's why.

Lawprof Jonathan Turley notes that Roberts was caught off-guard by a question from Senator Durbin about what he would do if "if the law required a ruling that his church considers immoral":

Roberts appeared nonplused and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself...

Roberts could now face difficult questions of fitness raised not only by the Senate but by his possible colleague, Justice Antonin Scalia, one of the most conservative members of the court (and a devout Catholic). Last year, Scalia chastised Catholic judges who balk at imposing the death penalty — another immoral act according to the church: "The choice for a judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty."

I'm deeply impressed that Roberts answered the question and intrigued by its substance. I'd love to have a transcript of what went through his mind during that "long pause" before his answer. I would bet money that he thought about that Scalia speech about Catholic judges and the death penalty.

Let's look at a key part of that speech:

Capital cases are much different from the other life-and-death issues that my Court sometimes faces: abortion, for example, or legalized suicide. There it is not the state of which I am, in a sense, the last instrument that is decreeing death, but rather private individuals whom the state has decided not to restrain.

One may argue, as many do, that the society has a moral obligation to restrain them. That moral obligation may weigh heavily upon the voter and upon the legislator who enacts the laws, but a judge, I think, bears no moral guilt for the laws society has failed to enact.

My difficulty with Roe v. Wade is a legal rather than a moral one. I do not believe – and no one believed for 200 years – that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would and could in good conscience vote against an attempt to invalidate that law, for the same reason that I vote against invalidation of laws that contradict Roe v. Wade; namely, simply because the Constitution gives the federal government and, hence, me no power over the matter.

With the death penalty, on the other hand, I am part of the criminal law machinery that imposes death, which extends from the indictment to the jury conviction to rejection of the last appeal. I am aware of the ethical principle that one can give material cooperation to the immoral act of another when the evil that would attend failure to cooperate is even greater: for example, helping a burglar to tie up a householder where the alternative is that the burglar will kill the householder.

I doubt whether that doctrine is even applicable to the trial judges and jurors, who must themselves determine that the death sentence will be imposed. It seems to me those individuals are not merely engaged in material cooperation with someone else’s action, but are themselves decreeing, on behalf of the state, death.

The same is true of appellate judges. In those states where they are charged with re-weighing the mitigating and aggravating factors and determining de novo whether the death penalty should be imposed, they are themselves decreeing death, whereas in the case of the federal system, the appellate judge merely determines that the sentence pronounced by the trial court is in accordance with law, perhaps the principle of material cooperation could be applied. But as I have said, that principle demands that the good deriving from the cooperation exceed the evil which is assisted. I find it hard to see how any appellate judge could find this condition to be met unless he believes retaining his seat on the bench, rather than resigning, is somehow essential to preservation of the society, which is of course absurd. As Charles de Gaulle is reported to have remarked when his aides told him he could not resign as president of France because he was the indispensable man: “Mon ami, the cemeteries are full of indispensable men.”

I pause at this point to call attention to the fact that, in my view, the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty. He has, after all, taken an oath to apply those laws, and has been given no power to supplant them with rules of his own. Of course, if he feels strongly enough, he can go beyond mere resignation and lead a political campaign to abolish the death penalty, and if that fails, lead a revolution. But rewrite the laws he cannot do....

This dilemma, of course, need not be faced by proponents of the living Constitution who believe that it means what it ought to mean. If the death penalty is immoral, then it is surely unconstitutional, and one can continue to sit while nullifying the death penalty. You can see why the living Constitution has such attraction for us judges.

It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable, and I want to say a few words about why I believe it is....

I think Roberts, during the pause, thought this through and fixed on the key point, which was Scalia's point: a ruling in favor of abortion rights is not an immoral ruling, even if abortions are immoral. It is only if he becomes "part of the machinery" -- as is the case with the death penalty -- that the immoral act of another is the judge's own immorality.

Thus, Roberts' answer will not mean that he will need to recuse himself in abortion cases.

Want to listen to Roberts' oral arguments before the Supreme Court?

Here they are!

"He later bought an electric saw, a bow saw and dust sheets, chopped the body into nine pieces and hid them in the fridge freezer in the kitchen."

And exactly why was he sentenced to five years? "Two years for the manslaughter and three years for preventing the burial." Seriously!

What becomes of a person who listens to "What Becomes of the Broken Hearted" while waiting on hold too long?

I have visions of many things ... I can't stand this pain much longer ... Cold and alone/No comfort in sight/Hoping and praying for someone to care...

"UnSouterble."

Amba coins a word.

Let's try shaming first.

John Fund has a Wall Street Journal editorial arguing for term limits for Supreme Court Justices:

A seat on the high court is now so powerful and so heady that many justices stay long past their prime. Legal scholars have concluded that half of the last 10 retirees have been too feeble or inattentive to fully participate in the work of the court.

The secrecy that shrouds the high court can also allow someone to turn his chamber into a nursing home, as William O. Douglas did in the 1970s. He was so determined to hang on until a new president could appoint someone philosophically compatible with him that he refused to leave after an incapacitating stroke. This is not only irresponsible, but for, say, a liberal justice hanging on through a series of Republican presidents, it is directly at odds with the preferences of the electorate. In Douglas's case, his colleagues were so concerned that they informally agreed that during the last year of his service none of the court's decisions would be valid if his was the deciding vote. They finally pressured him to resign in 1975. A weakened Thurgood Marshall often looked to his fellow octogenarian William Brennan on how to vote because he no longer could hear well enough to understand the arguments other justices made during their conferences.

Fund makes a strong argument. (Read the whole thing.) But he does not address how term limits would affect presidential campaigns. We'd know which Justices were slated to leave in the upcoming presidential term. As it is now, we just engage in a guessing game, saying things that are often ridiculously off-base. (In the 2000 campaign we were told the next President would probably get three appointments, but in fact, he got zero.) Maybe the people voting for President should know which Justices are coming up for replacement. And there is something unseemly about the Justices -- supposedly aloof from politics -- timing their retirements to try to control the ideology of the next occupant of their seat.

But I still resist changing the Constitution, and even if I didn't, I'm realistic enough to know how incredibly difficult it is to amend. A more moderate approach, which I want to recommend, is shaming.

While we do criticize Justices for their opinions, we hold back from criticizing them for clinging to their seats too long. I think we may be observing the general social norm that frowns on age discrimination and accommodates disability. But maybe we ought to set aside that generality and get specific about Supreme Court Justices: they wield immense power and they cling to it. Why don't we talk about that? Why don't we shame them for staying too long?

We don't spare the criticism for other persons who tighten their grip on power. Before we try to amend the Constitution, let's try shaming. I think the Justices are vulnerable to our criticism. Much as they may love their power, they must also love our good opinion. They must want to be remembered as great Justices. But insulated on the Court, surrounded by respectful admirers -- should I say sycophants? -- they may need to hear stronger voices from the rest of us. Why don't we put aside our stock politeness and say more clearly and more often that it is wrong to hold your seats too long and wrong to let too many years pass without giving the President a chance to appoint someone new.

I'll leave you with this passage from Bill Maher's book "New Rules":

New Rule

Just because you have a job for life doesn't mean you have to do it for life. It's well and proper that we venerate our elders -- but give it a freakin' rest....

Now, I know it must be hard to give up your job when your job is literally sitting on a throne, or being on a "supreme" court, or keeping women out of the priesthood to make room for the gays -- but at some point it starts to look like you think of yourself as indispensible, and no one is indispensible, including you, the late Mr. Infallible...

[T]here's a reason that names like Cary Grant, Joe DiMaggio, and Johnny Carson inspire a special kind of awe: They all did something that made them more beloved than anyone else -- they left before we got sick of them.

Petite scandalette or nothing at all?

Are we so starved for a scandal that we're biting at anything? Or does Judge Roberts' professed inability to remember that he was on the Federalist Society steering committee in 1997-1998 actually matter?

Plaidgate, an update.

Law Dork -- who's studying for the bar, so give him a break! -- got swept up unwittingly into what I'm calling Plaidgate. I've been trapped in the Plaidgate foofaraw since Thursday, myself, so I appreciate his insight:

No, all public discussion of important issues shouldn't be on this level, but some, it seems to me, should -- and always has been. From Mark Twain to Chevy Chase to Chris Rock, not everyone will find humor about public figures to be funny. That does not, however, make it a gay-baiting whisper campaign.

UPDATE: Plaidgate is noticed by Instapundit ... and The Washington Post. I guess it's a loud plaid.

AND: Let me say, in case you're only reading this post, that I didn't write that the NYT is trying to tell us they believe Roberts is gay, only that they knew what they were doing when they called attention to "Peppermint Patty" and lined up the pictures they way they did. I think they found it amusing, just as newspaper editors found it amusing to frame photographs of John Ashcroft with that bare-breasted statue hovering over him. The NYT layout of photographs on any page is very well-thought-out -- and beautifully done, one of the best reasons to subscribe to the paper version, as I do. Most people reading my comment are just looking at the on-line slideshow. I was describing the way the top of a two-page spread looked. I stand by my opinion that they deliberately tried to make him look gay. Obviously, they also have total deniability, so you don't have to point that out to me again.

Did you watch "Six Feet Under"?

If so, go in the comments and talk about it!

UPDATE: Narm!

AUGUST 1ST UPDATE: Oh, noooooo! Go here to talk about the new episode.

"David Souter is not your standard hunka hunka burning love."

Believe it or not, that line appeared in the Washington Post back when he was awaiting confirmation in 1990. A commenter on my "lutte greco-romaine" post asks how the Souter nomination played in the press back then. Were there insinuations that he was gay? I turned up the Washington Post article, which is written by Roxanne Roberts. Here's a taste:

He's a bookworm who looks like Pat Paulsen. His idea of excitement is a long hike in the woods. He does impressions, for God's sake. He wears extremely bad ties.

David Souter is not your standard hunka hunka burning love. News that the 51-year-old judge had never married set off a flurry of speculation that the Supreme Court might be getting its first gay justice. When reporters unearthed three former girlfriends, it appeared instead that he is simply a scholarly workaholic too busy for romance.

Okay, so he's no [name deleted]. No matter. He's a bachelor; more important, now he's a confirmed one. That makes him a hot ticket, the catch of the day, a Power Date. In short, Washington's idea of Extremely Eligible.

"His position will make him handsome to a lot of people," says Washington hostess Buffy Cafritz. "I can hear the footsteps marching already."

"David Souter better fasten his seat belt because this ain't New Hampshire -- and it ain't like living with Mama," whooped Rep. Charlie Wilson of Texas, one of the Hill's legendary ladies' men. "They're going to burn his door down. I can't think of anyone -- except a single president -- who would be more of a prize."

Judge Souter's sudden appeal has nothing to do with the trappings typically associated with eligibility. It's not about looks, money or sex. Once you cross the Beltway, it's about power, influence and the ability to look presentable in a tuxedo.

"The trappings of their power are seductive to anyone," says tennis coach Kathy Kemper, who recently married an investment banker after years of dating high-profile bachelors. "It's very heady to be at a party with the person that everybody wants to talk to. You can get very spoiled if you're dating one of these guys."

On August 7, 1990, The Orlando Sentinel had "It May Be Unjust, but Men Are Judged By Marital Status," by Susan M. Barbieri:

He lives in a New Hampshire cabin with only flannel shirts and firewood for company. He wields substantial power as a judge, and may get the promotion of a lifetime. But what intrigues many Americans about U.S. Supreme Court nominee David Souter is the fact that he is a 50-year-old bachelor. We wonder, "What's wrong with him? How does he feel about women? Is he anti-social, homosexual, mysogynistic, immature or just plain dweeby?"

He is an enigma. He is Spinster Man.

For the average, never-married, middle-aged man, perennial bachelorhood should not be an issue. Yet it is. It is hard to say which sex has it worse when it comes to stereotyping. Never-married women are assumed to be unattractive or otherwise undesirable. Never-married men are thought to be either womanizers (which carries a positive connotation), hermits or homosexuals.

On August 6, 1990, The San Francisco Chronicle had "Heading for 50 And Still Single Isn't That Odd" by Ruthe Stein:

I caught myself mid sentence. I was about to ask a 47-year-old friend who has never married if he thought it was weird that the new Supreme Court nominee has reached 50 without marrying.

My near faux pas illustrates what David Souter is up against: a stigma so pervasive it has clouded the thinking of those of us who should know better.

Some of my best friends are ''confirmed'' singles like Souter. They are perfectly normal, upstanding individuals whose opinions I count on and respect.

So why is it that on some level I still believe there is something wrong with a person who has arrived at a certain age and not acquired at least one spouse? Deep down, I'm convinced he or she has got to be an oddball.

Oddly enough, my friends who have never married also subscribe to the oddball theory. Not that they think they're odd. Each of them has a good reason why he or she hasn't marched down the aisle.

It doesn't seem to occur to them that other singles might also have their reasons -- such as not having met the right person or preferring to be alone -- and that they are not necessarily emotional basket cases.

My friend Debby won't go out with anyone over 45 who hasn't been married, overlooking the fact that she is only a few years shy of that category herself. She says such a man obviously isn't marriage material so why should she waste her time.

Yet Debby has no compunction about dating guys who have been divorced two or three times. Tattered goods though they be, in her mind at least they have what it takes to make a commitment to a woman.

From all accounts, David Souter has led a pretty rarefied life. Holed up with his law books, he may not have been stigmatized the way my friends have -- that is until the press began digging into his past.

An ex-fiancee has been unearthed. She has only nice things to say about her former suitor. Her assurances that he really is OK seemed to imply that was in doubt.

"I suppose I would have said I was a moderate conservative..."

"I wouldn't have put myself smack in the middle. But I would have put myself closer to the center than some but still on the right side." Justice Souter said that -- two days after he was confirmed in 1990, in response to a question from a Boston Globe reporter. He was never asked that prior to confirmation, but if he had been asked, that was his answer.

So consider that, as you contemplate Judge Roberts.

"Il a fait la lutte gréco-romaine au lycée catholique unisexe..."

I can read French up to a point. I find that phrase easy enough to read, but the surrounding material, which links to this blog -- in the last paragraph -- gets too complicated for me. I guess I'll never hear the end of it after writing about that NYT article that made Roberts look gay (in my view). I did hesitate before writing it and carefully framed what I thought it was appropriate to say. I mean, I made la lutte gréco-romaine with my conscience. (Don't worry! No lettuce was involved!) I wasn't trying to stir up or help the right or the left. I was just reading an article in the NYT and became aware of a new idea that had formed in my head and tried to trace it down. I'm not crazy, just reading and observing my own mind, being honest about what I find and somewhat circumspect but somewhat daring about what I'm willing to put in writing.

UPDATE: A reader provides a translation. Here's that last paragraph:

Over here some troublemakers on the left are having fun trying to spike the gay-meter in regards to Bush’s Supreme Court nominee, [John] Roberts -- he wrestled Graeco-Roman style at a boys-only Catholic high school, he married late, he’s definitely not ugly (noted several times on TV by John Stewart with the most ironic smile imaginable) – which all in all is driving the right crazy and has got them hollering ‘scandal’ and ‘invasion of privacy’ and so on. Thanks to Sideshow for sending me the link.

The link to me is on "troublemakers." So, in France, apparently, I'm a "troublemaker on the left." Just "having fun"! And those cranky old right wingers can't take a joke. Now, I'm going to go back to my TiVo to see if Jon Stewart was "trying to spike the gay-meter" with that "ironic smile."

Remember, if you want to say "spike the gaymeter" in French, it's: "relever du compteur gaiomètre." And if you want to spike the gaymeter with the most ironic smile, it's "relever du compteur gaiomètre avec un sourire des plus ironiques."

YET ANOTHER UPDATE: I got an email from Sale Bete, the French blogger who linked to me:

Unfortunately I wrote what I feel was a good explanation of the reasons why I linked to you (via Sideshow) in a comment that has now disappeared, but the gist is that I thought it was curious that other people had noticed "something gay" — vaguely, non-specifically, about Mr Roberts, as I had myself upon reading the New York Times article. But my gaydar frequently misfires or is simply wrong (and I am myself gay). So it was interesting to discover that others had also picked up on "something". Of course it may be totally nother, and I did point out in a reply to a comment that I was being somewhat nasty and mean-spirited in passing along this very likely unfounded gossip — but that's the risk of being in the public eye. I referred to "malins de la gauche" which to me translates as "clever types" or "smarty-pants of the left" rather than troublemakers (fauteurs in French). So I did not intend to be rude or disparaging of you or of anyone else.

Well, I feel confirmed to hear someone else say they got the same vibe from the NYT article that I did. And I'm glad I'm a "clever type" and not a "troublemaker." "Malins de la Gauche" sounds like a good blog name.

"This American Life" -- the TV show.

I love "This American Life." Often, when it's on, I get in the car and go for an hour-long drive, just to enjoy the pleasures of radio. Isn't radio best in the car, merging the music or the words with the landscape?

But now, Ira Glass is working on making his radio show into a TV show. And why not? Everyone assumes TV is a step up from radio. And don't we bloggers all really think it's better to be on the radio and still better to be on TV? It shouldn't be, should it? But we can't help feeling that TV is the best place to be, where everyone sees you!

Hmmm... oh so that's what Ira Glass looks like. He's quite a bit handsomer than his nerdy voice makes him "look" on the radio. Most radio folk have beautiful, sonorous voices that make actually seeing them quite a letdown.

Ah... the article talks about the difference seeing things makes:

Both the stories featured in the pilot were also produced for the radio show. One is about a couple who cloned their prized bull; the other is about a good-natured prank that goes awry. In comparing the two formats, Mr. Glass discovered the effect of seeing people otherwise left to a listener's imagination. One man's face time in the television segment had to be cut down because he came off as much more insincere on screen than on the radio. The narrative, which had been so finely balanced on radio, was suddenly thrown off kilter.

"On the radio, you become the character," Mr. Glass explained. "But when you see someone on TV, you come to all sorts of conclusions about who they are, based on their hair and what they are wearing."

Teflon.

Here's a big lawsuit.

IN THE COMMENTS: Teflon or no Teflon, if you have a pet bird, keep it out of the kitchen.

An easy lesson about criticizing Hillary.

Naomi Wolf, riffing on Edward Klein's "The Truth About Hillary," makes an extended comparison of Hillary Clinton to the 19th century feminist Mary Wollstonecraft. Basically, there's a standard underhanded way to attack women, which was around in the 19th century and is still around today. There's an easy lesson here, and most respected writers have already learned it: if you want to attack a woman, don't taint your legitimate criticism with crap about how she's not feminine enough.

Idea for a blog.

You pick a single word, and you run it through Google News every day, and you only blog the stories that come up.

What would your word be?

IN THE COMMENTS: A reader points to Literally, A Web Log, which is tracking the word "literally." Very nicely done!

Arlen Specter makes up the term "superprecedent" ...

And uses it in a NYT op-ed to hint that Judge Roberts might need to reveal whether he would overrule Roe v. Wade. Beldar skewers him as thoroughly and painfully as can be done in this age of Google and Westlaw.

So what's worse: Specter making up a term and claiming "legal scholars" use it? Or Specter being dumb enough not to realize there's a such thing as computer research and that scores of lawyers and lawprofs are monitoring the nomination process and blogging about it?

IN THE COMMENTS: A commenter brings up a 1976 use of the term in a law review article, and I respond, noting that old usage -- which I don't remember ever seeing -- was not anything close to what Specter is using it for.

MORE: Redstate notes a Court of Appeals decision by Judge Luttig that uses the term "super-stare decisis" to refer to Casey:

I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992), to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy. See Casey, 505 U.S. at 844-46 ("Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973), that definition of liberty is still questioned. . . . After considering the funda-mental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed."). And I believe this understanding to have been not merely confirmed, but reinforced, by the Court's recent decision in Stenberg v. Carhart, 2000 WL 825889, at *4 (June 28, 2000) ("[T]his Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L.Ed.2d 674 (1992). We shall not revisit those legal principles.").

There's something to this. Let's see if this notion is used to require Roberts to commit to leaving Roe alone.

AND: Luttig's use of the term "super-stare decisis" is unique in the case law, but I did find three uses of the term in the law review file on LEXIS, including one referring to Casey, written by Lawprof Earl Maltz. All three use the term only in the context of being critical that a precedent is regarded as especially invulnerable. Here's Maltz:

The theoretical problems with the Court's opinion [in Casey] are even more troubling. The implications of the argument are breathtaking. The analysis reverses the accepted view that interventionist constitutional decisions should be granted less protection under the doctrine of stare decisis because they cannot be corrected by other branches of government. In essence, the opinion asserts that if one side can take control of the Court on an issue of major national importance, it can not only use the Constitution to bind other branches of government to its position, but also have that position protected from later judicial action by a kind of super-stare decisis.

The article is Abortion, Precedent, and the Constitution: A Comment on Planned Parenthood of Southeastern Pennsylvania v. Casey, 68 Notre Dame L. Rev. 11 (1992).

And let's be clear that Luttig's use of the term "super-stare decisis" is also critical of the idea. Even if we translate Spector's "superprecedent" to "super-stare decisis," there's still no accepted legal concept here. Yet, clearly, it is well-understood that the Casey Court purported to make a final decision about the permanence of abortion rights.

How dangerous is that shoot-to-kill policy of the London police?

WARNING ADDED: If you've come here from another website and think you already know what this post says, I would recommend that you calm down and read what I've actually written. Some really foolish, hotheaded remarks have been made about this post. Don't let yourself be manipulated.

ORIGINAL POST: It's terrible that the poor man was shot to death yesterday by the London police who had reason to think he was a terrorist. But should we worry that the shoot-to-kill policy will result in more deaths?

Really, it should be quite unlikely for the same sort of thing to happen again, just as it's very unlikely that anyone will ever again hijack an airplane with a small knife. That method of hijacking an airplane ended on the morning of September 11, 2001, when everyone who might in the future ride on an airplane received an unforgettable lesson that they must respond actively and rush the hijackers and restrain them at any cost to themselves. Similarly, everyone -- at least in London -- now knows not to run from the police, especially not onto a train and while wearing bulky clothing.

Is it not true that yesterday's sad mistake has already solved the problem it represents? In fact, a further good has been created: as ordinary persons change their behavior and drop the bulky clothing and unnecessary running, the real terrorists will stand out more. Indeed, if anyone ever behaves like Jean Charles de Menezes again, the presumption that he is a terrorist will be so overwhelmingly strong that the police really must kill him.

UPDATE (8/18/05): Leaked information from independent investigation indicates that Menezes himself didn't "behave like Jean Charles de Menezes," so the shoot-to-kill policy was not what it seemed and is in fact something that we should worry about. Who knows what policy the police were following the day they killed Menezes? Fortunately, there hasn't been another incident like it, at least not yet. I would think the incident itself has forced them to change whatever that policy was.

ANOTHER UPDATE: After ranting near incoherence all day, one of the commenters finally expressed himself in a way that gave me a clue what was pissing him off so bad. He read the phrase "a further good has been created" to mean that I thought that it's worth it that the man died, because a higher good had been created, offsetting the death, as a sort of crude utilitarian observation. The phrase "a further good" just means there is a second good thing that has resulted, not that the good made it worth killing an innocent man, as if I would have, if I knew in advance what was happening, authorized shooting the man in order to produce the good! That's quite a bizarre misreading, but I'm spelling it out in case you happen to be reading it that way. Why would I say such a thing? Before posting and ranting based on such a misreading, you ought to stop and consider whether I would say something so absurd. Or do you think making a hasty judgment and acting with hostility is good way to act? Because that would be a tad hypocritical.

IN THE COMMENTS: As I wrote in comments to the post about this post on 8/18, what I'm seeing in the comments to this post is a deep-seated hostility to the police. People are taking advantage of one bad incident to push a big generalized position they have, and have probably had for a long time. There's a sad lack of rationality here, and it's become pointless to try to reason with the ranters. I'm a law professor and I always assume that some of commenters are my students, so I try to talk to everyone in the comments as if you were my students. But office hours are over for me on this post.

"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.

“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 comradery 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?

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.

"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.

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!

Café.

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

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.

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.