"If I thought that cameras in the Supreme Court would really educate the people, I would be all for it."

"But I think it would miseducate and misinform," said Justice Scalia -- in the same speech as I linked in the previous post:

"Most of the time the court is dealing with "bankruptcy code, the internal revenue code, [the labor law] ERISA -- stuff only a lawyer would love. Nobody's going to be watching that gavel-to-gavel except a few C-SPAN junkies," he said.

"For every one of them, there will be 100,000 people who will see maybe 15 second take-out on the network news, which I guarantee you will be uncharacteristic of what the Supreme Court does."

If this principle were seriously believed, you'd have to be in favor of suppressing all the news.

"My first response to that question always is, it's six years ago. Get over it!"

Justice Scalia responds to a question about Bush v. Gore. He adds: "It surely is not activist to apply the text of the Constitution, which is what the court did." Yes. But that's what they all say. It could be true, but asserting it doesn't make it so.

"Now he looks washed, rinsed, bleached, his flat smile an awful rictus; that upper lip has lost all its lift."

That's Martin Amis describing George Bush (in a review of Bob Woodward's "State of Denial"):

Until [9/11], “US hegemony” was largely a matter of facts and figures, of graphs and pie-charts. Thereafter it became a matter of options and capabilities, of war plans cracked out on the President’s desk. We can understand the afflatus, the rush of blood, in the White House: overnight, demonstrably and palpably, a tax-cutting dry drunk from West Texas became the most powerful man in human history. One wonders, nowadays, how it goes with Bush, in his glands and sinews. Post-September 11, he had the body language of the man in the bar who isn’t going anywhere till he has had his fistfight. Now he looks washed, rinsed, bleached, his flat smile an awful rictus; that upper lip has lost all its lift.

Understand the afflatus.

Is law really this exciting?

That's the statue of Justice on display at Saint Louis University School of Law (where I was last week). Quite something, no? All we have is "Blind Bucky":



And it's not even a statue.

I don't like the way Bucky is holding the sword by the blade. And I don't like the way the SLU Justice is waving the sword around while blindfolded. In the classic portrayal of Justicia/Themis, the blindfolded goddess holds the sword by the handle and in the "down" position. Then there's the federal government's Spirit of Justice, who doesn't bother holding any implements but just flings her arms up in the Evita position and lets the toga fall where it may, setting the stage for years of fun mocking Attorneys General.

Sorry.

About the double post. [UPDATE: Fixed!] I'm having some trouble getting Blogger to perceive that I deleted it... Maybe pushing through this post will get it to pay attention. (That's the way I think about computers.) Meanwhile, comment on the first one.

"The Bush administration will be unable to achieve its goal of a stable, democratic Iraq within a politically feasible time frame."

WaPo has a big article saying "[s]enior figures in both parties are coming to [that] conclusion."

And here's a quote from Joe Biden:

[I]f the Democrats win big in next month's elections, "You have a lot of Republicans who are going to openly join Democrats and will push back hard against the president."

Or perhaps you prefer Carl Levin:

Sen. Carl M. Levin (D-Mich.), who would take over the chairmanship of the Armed Services Committee, said he favors beginning a phased withdrawal of U.S. troops that "gives the Iraqis notice that they're going to be looking into the abyss" unless they make necessary changes.

So... feel like talking about the abyss today?

"I'm a P.R. office for the White House."

Said Texas Supreme Court justice Nathan L. Hecht about his active promotion of the nomination of Harriet E. Miers to the U.S. Supreme Court. Later, he said that was a joke. The state Special Court of Review will announce today whether it agrees with the State Commission on Judicial Conduct said that he "improperly lent the prestige of his office to advance someone else’s 'private interests,' illegally used his name to endorse 'another candidate' for 'public office,' and violated the State Constitution by conduct discrediting the judiciary." The Texas ACLU has taken the justice's side.

In testimony to the Special Court of Review in August, Justice Hecht traced the start of his involvement in Ms. Miers’s nomination to a call from President Bush’s senior adviser, Karl Rove, on Oct. 1, 2005, two days before Mr. Bush announced his choice to fill the Supreme Court seat being vacated by Justice Sandra Day O’Connor.

Justice Hecht told the court that Mr. Rove had asked him to talk to callers about Ms. Miers’s “faith, about her religious background,” and that the group included James C. Dobson, a conservative leader and founder of Focus on the Family.

Justice Hecht said he also answered news media queries, which he said were so numerous that he was asked to report back to a White House aide on the nature of the questions.

He conceded to the court that he told one reporter, “I’m a P.R. office for the White House,” but he later called that a joke.

Justice Hecht said he had considered the Code of Judicial Conduct during his campaign in support of Ms. Miers’s nomination but did not think he was in violation of it. That opinion, he said, was reinforced by two senior appellate judges with whom he conferred.

The evidence [Mark L. Greenwald, a special counsel for the commission] presented to the special review court included a television interview in which Justice Hecht vouched for Ms. Miers as an opponent of abortion, citing her attendance at “a church that is — takes an open pro-life stance.” He also said of Ms. Miers: “She is very charming, of course. Everybody says gracious, but also very determined.”

UPDATE: Hecht wins. Good.

"What a mighty man he turns out to be! He raped 10 women..."

"... I would never have expected this from him. He surprised us all - we all envy him!"

So said Vladimir Putin, who -- we're told -- was joking and didn't mean to be overheard. Plus, you're reading a translation, and Russian is a subtle language, "very sensitive from the point of view of phrasing."

"The proposed constitutional amendment really has nothing to do with marriage..."

"... it is a thinly veiled attack on gays and lesbians, part of a pattern of discrimination and institutionalized hatred. It is a strategy of power practiced by would-be tyrants throughout history."

Quakers assail the anti-same-sex-marriage amendnemt.

Photography.

I'm doing a photo session right now. Just trying to look like a normal blogger... Oh, let's just YouTube the experience:



The photographer is Bob Rashid.

UPDATE: Bob says he enjoyed this photo shoot, compared to other photo shoots, presumably. I'm sitting here now, kind of worrying about my car. I had a flat tire this morning, and I called my roadside service people who sent a guy out to change the tire, but it turned out he could just pump it up. I'm supposed to get it over to a repair place soon, but I had to run back over to the office to do the photo session. I'm hoping the tire isn't deflating too quickly. Anyway, I'm glad Bob had fun doing the photos, because I felt a little bad that my car repair incident was insufficiently fun for the car repair guy. I was all, "Sorry to be such a boring, routine call. You probably prefer more exciting problems. I mean, not where anyone gets hurt or anything, but not just a boring flat tire." He said he enjoyed rollovers, especially with large trucks, like a semi... not with anyone hurt or anything. I can't remember if I wished him luck, but I think I said something like "Well, I hope it's not me." I'm not that into irony.

ADDED: "Internets."

"The whole idea is . . . that I did something that he did not like, but at the time he did not say anything."

Says the priest who admits to what ex-Congressman Mark Foley said he did.

"We had some kind of friendship. I was very friendly with him and his family," said [Anthony] Mercieca. "Then almost forty years passed without him saying anything. . . . And now because he got caught he recited these things."

In Brazil "they skinny dip all the time and no one gets scandalized. It is part of the culture. It is natural," Mercieca said. "They don't make an issue out of a skinny dip in the park or a massage."

"It was not what you call intercourse. . . . There was no rape or anything. . . . Maybe light touches here or there," said Mercieca.

Oh, those priests, with their subtle reasoning.

Excuse me while I retreat into my detoxification room.

What do you think of “multiple chemical sensitivity syndrome"? And how much will you change your way of life to help out a neighbor who says she's got it?

Movie recommendation: "Safe."

Freakfest.

Here's the FAQ for Madison's Halloween party [a week from] Saturday. You need to pay $5 to enter State Street, at least if you show up after 7:30 p.m.

"Halloween this year is an experiment." Hope all goes well.

Just contemplating the day.

I'm amazed to finally have a morning where I'm not weighed down thinking about the obligations of the day. Classes for me this semester are crowded into the first three days of the week, now passed. Yesterday was also a writing deadline -- met. And last week's four-day end-of-the-week block of time was consumed with travel. So today feels great.

I have exactly two things scheduled:

1. A professional photograph in my office in the afternoon. (Yes, that's not hard, but I have to preserve my mind and body for the miniature ordeal.)

2. A new BloggingHeads episode. This is my fourth one, with a fourth new split-screen partner. We're recording at 8 o'clock at night. Lord knows what I look like by then and what shreds of intelligence I'll have left.

"I discovered the old Andrew Sullivan whose blog I once very much enjoyed."

Says Gaypatriot.

"It is not the presidency that 'won.' Instead, it is the judiciary that lost."

John Yoo has a new piece about the new military commission law, which Bush signed on Tuesday:

The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor "combatants" in an internal civil war under Article 3.

Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged. After all, it has gotten away with many broad assertions of judicial authority before. This has been because Congress is unwilling to take a clear position on controversial issues (like abortion, religion or race) and instead passes ambiguous laws which breed litigation and leave the power to decide to the federal courts....

This time, Congress and the president did not take the court's power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions...

The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.

Read the whole thing. I think Yoo overdoes it describing what a rebuke this is to the Supreme Court. The analysis in Hamdan relies heavily on the lack of congressional support for things the Executive was doing, so it makes sense to see the new legislation as providing the legislation the Court thought was needed -- responding to Hamdan, not slapping back at it. The question is: How will the Court respond now that the moderate ground for opposing the President is gone? To preserve the courts' role in the face of the new statute will take something more like what Yoo calls "cater[ing] to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations."

Rush Limbaugh is irked at Instapundit.

So what? He should be. He's clear that he likes bloggers who doggedly support the conservative cause. That's utterly unsurprising.

Here's Glenn's response, but, really, no response is needed. Glenn's blog is compulsively readable because it's not predictable and it's not partisan. I rarely look at the partisan blogs, which serve as gathering places and keep people enthused about predetermined goals. That's not how I want to spend my time. I'm looking for interesting things to read and talk about, not ways to keep excited about things I've already decided I want to be excited about.

"Project Runway," the finale, part 2.

Of course, you're watching the "Project Runway" finale, right?

My position right now, at the first commercial break: Anybody but Laura!

At the second break: We've seen Jeffrey's show and Uli's. Both very nice, but I'd give the edge to Jeffrey. What do I know? I thought there were nice details, interesting jackets. Uli had of lot of flowy, sheer things that had some nice color and print.

At the third break: I'm so annoyed at Laura for putting Jeffrey through the wringer, accusing him of cheating, that it's hard for me to be fair. But I will say I liked her first dress, or was it just that I loved the very long, straight red hair on the model? Anyway, too many ooky black feathers. Plus, did I say I don't like her? Michael. Everybody loves Michael, but that stuff looked kind of badly made and the styles seemed way too trashy. I didn't get the color at all.

At the fourth break: Based on the things the judges said, I think it's between Jeffrey and Uli, and I've got a feeling that the emphasis on Jeffrey's going $200 over budget means they're going to draw attention to that as a key deciding factor. I think Uli won it.

The home viewers picked Michael!

The judgment: Michael is eliminated first... and summarily. Second out is Laura: "too limited for us." So it is between Jeffrey and Uli. Jeffrey won!

"It's all just a bunch of vibrations." — Jeffrey.

Reflecting table.

Yesterday's photos were two chairs, so let today be two tables. The first was my office desk. Then there's this:



I liked the reflection in this glass-topped table in a beautiful, old room at the University of Saint Louis School of Law, where I was a week ago.

"The model of an eclectic, general interest blog is a less viable one."

Says Stephen Bainbridge who's cocooning into business law.

Perhaps more importantly, I'm just getting tired of the punditry style of blogging. I'm not enjoying writing that style as much; for that matter, I'm not enjoying reading other punditry blogs very much these days.

Gordon Smith approves:

I can understand Steve's decision. General interest blogging is hard work. Conglomerate has become more tightly focused on business and law over time, partly because we have expanded the number of bloggers and our common interest is business law. But I suspect that another explanation for this development is that those of us who blog here find that blogging about work is easier than blogging about all manner of other subjects.

And Steven Taylor says:

I wonder how much of it is a response to the general malaise that is settling over politics these days and how much has something to do with blogging burnout and the intermixture between academics and blogging and how such a person wishes to present themselves to the general public....

Of course, I disagree, guys. But there are different paths in blogging as in life. You go your way and I'll go mine.

ADDED: There's a matter of perspective here. Should you ask how can I have less work or how can I have more fun? If you'd approached your blogging as a pleasure all along, having more of it would seem good.

IN THE EMAIL: Stephen Bainbridge objects to that last sentence (about pleasure):

So you never burnt out on a hobby? Pardon me for expressing it in economic terms, but the basic point was that blogging in a partcular style had stopped being rewarding. I don't know why that would invite snark.

MORE: I should add that my post is not offhanded snark. It's a longstanding theme here and is, if fact, what I wrote my paper about for the Bloggership conference last spring. The theme of most of the other papers was that lawprof bloggers should find ways to make blogging more ostensibly like legal scholarship, and I passionately took the contrary position.

Are you one of those passengers who needs "spillover space"?

Or are you the person spilled over into? And what happens when two spillers over are seated next to each other? Or perhaps you're wondering if you count as a spiller. Southwest Airlines makes it clear for you:

“Customers who are unable to lower the armrests (the definitive boundary between seats) and/or who compromise any portion of adjacent seating should proactively book the number of seats needed.”

The Foley scandal didn't hurt the GOP but that's exactly why the GOP is hurt.

Follow the logic of the NYT's Andrew Kohut:

Surprisingly, after all the headlines and prurient melodrama over Mark Foley, national polls indicate that the scandal did not change voter opinion very much. Yes, some surveys found respondents saying it made them less likely to vote Republican, and others found that the G.O.P. leadership got low marks for the way it handled the problem. But the needle has not moved very much on the Congressional election’s bottom line – voting intentions.

If you are rooting for the G.O.P., you might find that comforting, but beware, because it suggests voter attitudes are so locked in that they are not likely to be easily swayed in any direction. And if the polls do not change, the Republican party is going to take it on the chin come Election Day.

Get it? The scandal didn't change things, which means things aren't changeable, and since the GOP needs some change to win, it's going to lose.

UPDATE: Meanwhile, Karl's confident.

Late October deskscape.

I've been working way too hard these last few weeks, and I finally feel some sense of space in the schedule, enough to take my old one-hour drive this morning to listen to "Theme Time Radio Hour with Bob Dylan" -- theme: guns! -- and enough to glance over to the part of the desk where things I eventually need to do accumulate... and enough to stop and photograph it and write a blog post about it.

Now, this is a bit of a test for you.



What did you focus on and think about?

I know all too well that some of you are all ooohhhh, the USNews survey, oh, noooo, Althouse is a USNews survey recipient, oh, pleeeeease, don't you think my school is "Outstanding" or at least "Strong"? Don't call me "Marginal"! Don't say you "Don't Know"!

But, my friends, how the hell am I supposed to know about all the schools? I'm supposed to judge based on my familiarity with "all the factors that contribute to or give evidence of the excellence of the school's J.D. program, for example, curriculum, record of scholarship, quality of faculty and graduates." How many schools do you think I have a properly based opinion about? How many people fill out this survey honestly? How many people are just drawing on what they have absorbed from reading USNews over the years? And, yes, I will fill it out honestly, which means the vast majority of ratings will be "Don't Know," and I'm not going to rate any schools based on my sense that they are competing with my school for rank. But I severely doubt that everyone else is doing this.

But maybe something else caught your eye. Was it "Blue Flame"? Was it the iClicker equipment? Was it the bronze sculpture? Was it -- boring! -- the "Expanding Knowledge and Serving Our Community" blue droplet brochure for the Association of American Law Schools meeting? Was it the tiny remote control sticking to the side of the iMac? Was it my CivPro notes? Are you trying to read my CivPro notes?

"Lefty Blogger Outs Senator As Gay."

Patterico notes. Captain Ed comments.

Kos is taking a poll. "Do you agree with outing Gay Republicans?" 70% say "yes. But don't you think this percentage would change if the strategy backfires? I think aggressive characters like our "lefty blogger" think that uncovering gay Republicans will disgust social conservatives and change their voting behavior. They might also believe that they are demonstrating hypocrisy and that doing so will motivate Republicans to abandon social conservatism. I would like to see Republicans abandon social conservatism, and I'm not cheering on these slimy outings. But, honestly, I think these creepy, gleeful efforts at outing will only make social conservatives more conservative, and they will continue to look to the Republican party to serve their needs.

"Just hip-hop drivel and godawful indie crap or whiny, lesbian complaint-rock."

Andrew Sullivan whines complains expresses displeasure about what's on the radio. He wants pop.

(Hey, just get satellite radio!)

(Personally, I wouldn't single out lesbians as perpetrators of some particular type of music. That's Sullivan's characterization, so don't get after me about it. I have no idea if there's a known category of music these days that's properly called "whiny, lesbian complaint-rock," but I thought it was interesting that Sullivan thinks there is.)

Collect as much bread as you can and slather on half an inch of butter.

That's the strategy kids use to concoct an adequate lunch at a school that's adopted a no-junk-food menu.

Stephen Colbert or Ann Coulter?

In this pretty cool article about Stephen Colbert, New York Magazine offers up these quotes, each by either Colbert or Coulter, to prove... well, what does it prove? Coulter is doing comedy part of the time, right?

1. “Even Islamic terrorists don’t hate America like liberals do. They don’t have the energy. If they had that much energy, they’d have indoor plumbing by now.”

2. “There’s nothing wrong with being gay. I have plenty of friends who are going to hell.”

3. “I just think Rosa Parks was overrated. Last time I checked, she got famous for breaking the law.”

4. “Being nice to people is, in fact, one of the incidental tenets of Christianity, as opposed to other religions whose tenets are more along the lines of ‘Kill everyone who doesn’t smell bad and answer to the name Muhammad.’ ”

5. “I believe that everyone has the right to their own religion, be you Hindu, Muslim, or Jewish. I believe there are infinite paths to accepting Jesus Christ as your personal savior.”

6. “[North Korea] is a major threat. I just think it would be fun to nuke them and have it be a warning to the rest of the world.”

7. “Isn’t an agnostic just an atheist without balls?”

I easily got all these answers right, but not because I think only Colbert is trying to be funny. Coulter is trying to be funny too, as the NY Magazine guy seems to concede:

Of course, I’m not trying to equate Coulter with Colbert. For starters, Coulter is a shrill, abusive demagogue and Colbert just plays one on TV. But with Coulter, there’s always been a sturdy suspicion that she is playing a character (like Colbert) and amping up the obnoxious rhetoric for maximum effect (like Colbert). When I mention the comparison to Colbert, though, he seems surprised, even unnerved. “I don’t really think about her much,” he says. “She’s a self-generating bogeyman. She’s like someone who wants attention for having been bad.” Given that he’s hosted right-wing true believers like Joe Scarborough before, and has often said he’d love to have Bill O’Reilly on the show, would he ever invite Coulter as a guest? “My sense is that she’s playing a character,” he says. “I don’t need another character. There’s one character on my show, and that’s me.”

A sturdy suspicion? I should hope so. "I don’t need another character"? Ha, ha. He's right, and he knows his limits. He needs a willing straight man/woman on the other side of the table to do his act.

You know, when we first noticed Coulter doing various political shows -- I think it was back in the mid-90s -- we were always saying "Why is that woman laughing?," "She's always laughing," "There's that woman again who's always laughing," etc. No matter what she said, she'd be laughing, as though every damned thing that happened in politics was hilarious to her and everything comment she made completely cracked her up. You might not think what she is saying is funny, but I think she's motivated by comic energy, and the people who like her are picking up on the fun.

"Men will exhibit symmetrical facial features, look athletic, and have squarer jaws, deeper voices and bigger penises."

The BBC prints this report of a supposedly scientific theory that to me reads like some ridiculous racist fantasy:

Evolutionary theorist Oliver Curry of the London School of Economics expects a genetic upper class and a dim-witted underclass to emerge....

The descendants of the genetic upper class would be tall, slim, healthy, attractive, intelligent, and creative and a far cry from the "underclass" humans who would have evolved into dim-witted, ugly, squat goblin-like creatures.

But in the nearer future, humans will evolve in 1,000 years into giants between 6ft and 7ft tall, he predicts, while life-spans will have extended to 120 years, Dr Curry claims.

Physical appearance, driven by indicators of health, youth and fertility, will improve, he says, while men will exhibit symmetrical facial features, look athletic, and have squarer jaws, deeper voices and bigger penises.

Come on. He's just making this up, isn't he?

"The Dream" becomes the nightmare.

Steve Wynn had a deal to sell his Picasso painting "The Dream" for $139 million, and then he jabbed a hole in it with his elbow!

Mr Wynn, known for gesturing with hands while speaking, was showing the painting at his office at Wynn Las Vegas when he struck it with his right elbow...

Nora Ephron ... said Mr Wynn raised his hand then "at that moment, his elbow crashed backward right through the canvas. There was a terrible noise".

"Smack in the middle... was a black hole the size of a silver dollar. 'Look what I've done' he said. 'Thank goodness it was me.'"

Crazy! I'd laugh, but it's a great painting.

Empty chair.

A tribute.

Four legal stories.

1. Ken Lay's conviction was overturned. And don't think, oh, he's dead so he can't enjoy the victory. He won because he's dead.

2. Wesley Snipes was indicted for tax fraud -- failing to pay almost $12 million. He could face 16 years in prison, but the authorities don't know where he is. Perhaps we'll never see him again.

3. Madonna defends herself, saying she "acted according to the law." Ah, well, not good enough. Here you are trying to look like a beneficent humanitarian, and all you can say is you followed the law.

4. A man is accused of trying to kill his wife with a latex glove -- not by strangling her with it, but by putting his gloved hand in her mouth knowing she's allergic to latex. In thinking about whether he had the requisite murderous intent, please take into account that he shouted: "By the power of Grayskull!"

Looking into the court.

Just a picture I took a while back that I was inspired to pull out while writing this morning about what the Wisconsin Supreme Court might do if there were no anti-same-sex marriage amendment.

Bush shook his hand and then “turned to an aide nearby, who squirted a big dollop of hand sanitizer in the president’s hand.”

Writes Barack Obama (in his new book "The Audacity of Hope," which Michiko Kakutani loves).

"She pointed out that CBGB was expiring at thirty-three -- the same age as Jesus."

Was Patti Smith sanctimonious as she played the last show at CBGB? I don't know. She also said: "This is not a fucking temple -- it is what it is."

"It is what it is"? Is that a punk saying? Or has Patti been watching "Top Chef"?

Oliver Stone's new approach to making political movies.

Take a story that is fully surrounded by hot politics, but tell the story politics-free. Given his past work, the lack of politics is perceived as some kind of amazing accomplishment. And everyone, even those who used to hate him, can now enjoy him. But make no mistake: He's the ultimate political filmmaker. He's the one who devised a brilliant political strategy for his own success.

A "profoundly offensive" statement by Condoleezza Rice.

She referred to the mother of a gay man's partner as his mother in law:

Peter Sprigg, vice president for policy at the Family Research Council, says the secretary's comments were "profoundly offensive" and fly in the face of the Bush administration's endorsement of a federal marriage protection amendment, though that backing be less than enthusiastic.

"We have to face the fact that putting a homosexual in charge of AIDS policy is a bit like putting the fox in charge of the henhouse," says Sprigg. "But even beyond that, the deferential treatment that was given not only to him but his partner and his partner's family by the Secretary of State Condoleezza Rice is very distressing."

Hmmm... I thought the word had gone out that opponents of same sex marriage were supposed to deny any hostility to gay people.

More here:

"In the world of protocol, verbal miscues are anathema," the Family Research Council said in a message to conservatives.

"The question arises, what guidelines do the State Department and White House follow? Neither federal law (the Defense of Marriage Act) nor District of Columbia law recognizes a marriage between Dr. Dybul and his partner, and 'mother in law' is therefore both linguistically (and possibly legally) improper and morally provocative.

"Why did Secretary Rice deploy the term in the presence of the First Lady? We've written to ask her, and we'll let you know what we hear," said FRC President Tony Perkins.

In reporting on the swearing in ceremony last week, USA Today said the "celebratory moment for a gay couple was emblematic of the political identity crisis facing the Republican Party."

Is this a "political identity crisis," that must be worked through? I think Condoleezza Rice and President Bush think they can be entirely warm and supportive to gay people and still take the position that marriage is a special man-and-woman tradition. But there are lots of people on both sides of the question who view that position as impossibly contradictory.

Trying to predict what the state court will do with same-sex marriage.

The Wisconsin State Journal asks whether the Wisconsin's courts really would -- without the proposed state constitutional amendment -- override existing state law that limits marriage to opposite sex couples. This is a long piece, and you have to read quite far into it to get to the part where two former Wisconsin Supreme Court justices, Janine Geske and William Bablitch, are asked about the likelihood that the court would take the step the amendment is designed to prevent. This section of the article is also long, too long to copy in full, but the judges do not, I think, provide the kind of assurances that would undercut the argument proponents of the amendment make that it is needed to thwart some future state supreme court case finding a state law right to same-sex marriage:

[A]s Geske pointed out, [a 1994 case rejecting "a woman's request to adopt her lesbian partner's daughter" and a 1995 case "directing a trial court to consider granting a woman some visitation rights to the biological child of her former lesbian partner"] might not speak to the chances for a successful challenge to the state's marriage statute made on constitutional grounds, since the cases turned more on questions of state law and the Legislature's intent. Plus, she said, of the judges on the court at the time, only two are left - outgoing justice Jon Wilcox and Chief Justice Shirley Abrahamson, who wrote the majority opinion in the child visitation case.

"This court has not signaled anything on that (gay marriage) issue that I know of," Geske said of the current court.

For his part, Bablitch guessed that in a hypothetical marriage law challenge, of the court's seven members, Justices Abrahamson and Ann Walsh Bradley would likely vote to throw the current law out and Wilcox, appointed by former Republican Gov. Tommy Thompson, and Justice Pat Roggensack would likely vote to uphold it.

Justice Louis Butler Jr., an appointee of Democratic Gov. Jim Doyle, might vote to throw out the law as well, Bablitch said. That would be 3-2 in favor of ending the ban on gay marriage, leaving Justice N. Patrick Crooks and Justice David Prosser Jr., another Thompson appointee, to decide which side would prevail.

Other experts like Geske said there was little to be gained by such guesswork about hypothetical cases. The issue is further clouded by the fact that Wilcox is retiring in July and this spring voters will choose between local attorney Linda Clifford or Washington County Judge Annette Ziegler to replace him.

Neither Clifford nor the sitting judges would discuss any aspect of a possible gay marriage case. Ziegler, appointed by Thompson to her current post, said through a spokesman only that if elected she would not in any case attempt "to legislate from the bench."

"That's a closely divided court," Bablitch said. "I learned long ago not to predict with complete confidence which way the court is going to go."

Any such marriage challenge would take at least a year to go through the courts, Bablitch said. That's not counting any time it might take gay-rights groups to put together a lawsuit, which took two years in the case of the New Jersey challenge, said David Buckel, who argued that case for the gay- rights group Lambda Legal.

Geske said she thought that a marriage challenge would take two to three years to make it through the Wisconsin courts. In some states, the process has taken even longer.

Geske opposes the Nov. 7 amendment proposal, she said, since she sees the possibility of unintended consequences in any constitutional proposal, and no urgent need for the measure.

"I don't think anyone can say the Supreme Court would never do that (strike down the law), but it's not imminent," she said.

Bablitch also opposes the amendment, but he disagrees with opponents who say there's no point to it.

"In terms of accuracy it is important to point out that the Supreme Court could reverse a law that's on the books," he said. "If you want to accomplish what these anti-gay (marriage) people want to accomplish, you've got to have a constitutional amendment."

Halloween tree.

"The American public has every right to demand answers and all too many reasons to lack confidence in the government."

"Sadly, in such a climate, the fantasies of 9/11 conspiracists provide a seductive alternative to facing the hard facts and difficult choices of our time."

Popular Mechanics now has the afterword to "Debunking 9/11 Myths" available on line.

"You might think that the favorite plant of the porcupine is the cactus..."

"But it's thinking like that that has almost ruined this country."

— Jack Handey, "The Lost Deep Thoughts: Don't Fight the Deepness."

"The world no longer believes rational thought will solve our problems."

That's novelist Caleb Carr's theory for why Yale lawprof Jed Rubenfel's novel "The Interpretation of Murder" is not selling well (despite the publisher's $500,000 publicity campaign and all the free PR reaped from the news that Rubenfeld got an $800,000 advance). In other news, Rubenfeld is trailing badly in the "America's hottest male law school dean" contest. I think these two stories are linked, though. He's already got the $800,000 advance, so no way we're voting for him as hottest dean. That's rational, right?

DIY Halloween.

Enough of that mother whining about the bad costumes on sale for Halloween. Make your own costume. With a little makeup and castoff clothing, you can always come up with cooler stuff than you can find in the store. Witness one of my old creations:

"They often play games among themselves. The young ones will throw a plastic bag up in the air and to each other..."

"... and the older ones will bully them in order to get it." Just a quote from John Roberts, for your amusement.

"The occasion was not itself academic; it was theatrical."

Stanley Fish scrutinizes the Columbia incident where students rushed the stage and shut down the speech of Minuteman leader Jim Gilchrist.

Any education that might have transpired had Mr. Gilchrist been allowed to give his talk would have been incidental to the shock value of his appearance before an audience known in advance to be hostile to his message. That was why he was invited, not to impart instruction but to provoke a response (and it is the response rather than the content that is always focused on in media reports), although in this instance those who brought him to campus got more than they bargained for. The spirit presiding over this occasion from the beginning was more Jerry Springer than Socrates. Jeers, catcalls, insults and (verbal) brickbats were not intrusions on the performance, but predictable ingredients of it; had they been absent, organizers and audience alike would have gone away disappointed because they would not have gotten their student-fees worth. It’s just that things got a little out of hand....

At most, the students are guilty of being impolite, bumptious and rowdy, but again, this is the kind of behavior that the event – more akin to a keg party than to a reasoned discussion – was designed to elicit.

Fish calls attention to "the distinction between curricular and extracurricular activities." The norms of the classroom do not apply -- even on campus -- outside the classroom. This is a message I'd like the perpetrators of the UW's "Think. Respect." program to take very seriously. (Too bad you have to subscribe to the NYT to read the whole thing!) When it comes to the extracurricular:

The question to be asked is not did it further free speech or contribute to a robust democratic culture or provide a genuine educational experience? Rather the questions to be asked are: Did it rock? Was it a blast? Was a good time had by all?

It's not going to rock if everyone's supposed to be classroom-polite. Worried about the First Amendment? Which way are you worried? The students aren't the government, Fish notes. They can't violate Free Speech rights. And they were speaking too, in a vigorous marketplace of ideas. Sure, they went too far. But not all that far.

The news from inside virtual reality.

How strange!

[Adam] Pasick, a Reuters technology reporter who was formerly earthbound with the news agency, is heading up Reuters’ first virtual news bureau inside the online role-playing game Second Life. While many independent journalists and bloggers have published inside such virtual worlds, Reuters is the first established news agency to dispatch a full-time reporter to do so....

“The fact that it’s in a virtual world doesn’t change things as much as you’d think,” said Mr. Pasick, 30, a Michigan native based in London. “It’s not any different than when Reuters opens up a bureau in a part of the world that has a fast-growing economy that we weren’t in before. The laws of supply and demand hold true, it has a currency exchange, people open businesses and get paid for goods and services.”...

“This is a very serious, old brand that stands for things and has principles, but that doesn’t take itself so seriously that it wouldn’t play in a gaming space,” Mr. Glocer said. “This appeals to a younger demographic. Even for people who don’t go in and play in Second Life, it shows Reuters has a certain with-it-ness.”

Having a news bureau inside of virtual reality is a branding device: Reuters is an it-getter. And they're getting the press. And I'm chipping in. But I do think it's kind of cool.

Halloween costumes for females...

... none of whom seem to want to indulge in the freedom to be ugly and horrifying anymore. Every single damned costume is about looking even sexier than ever:

A theme was emerging. And it wasn’t Halloween. Since when did Halloween costumes become marital aids? The hobo has turned into the Hillbilly Honey. The traditional vampire is now the Mistress of Darkness. I have nothing against playing erotic dress-up, or even mass-market fetishism. I’d just prefer it didn’t converge with a family holiday (and wasn’t sold next to the dryer sheets). If you want to play cheerleader at home, go team. But trick-or-treating with your children in anything featuring latex and cleavage seems like a little too much trick....

I noticed that on the outside of every package was a photo of a woman modeling not only the costume, but teetering heels and bras of the push-up variety. The First Lady costume was not, as one might expect, a red business suit, but a pink crepe mini-dress. At least it had the matching pillbox hat. The angel was dubbed “heaven’s hottie.” Even the witch had a slit up her tattered skirt.

My girls were confused. “Where are the monsters?” they asked. “Where are the superheroes?” I pointed weakly to Wonder Woman and her thigh-high boots. “She’s pretty,” said my 4-year-old. Before adding, “You can see her breasts.

It's pretty lame that young women feel they must use Halloween as another day in the endless pursuit of male love, but why are the guys free to amuse themselves in more manifold ways? Perhaps because women think that it's sexy for a guy to be funny. But I wonder what the men would wear if they -- like the women -- thought overwhelmingly about looking sexually appealing to women?

Gordon Baldwin.

I'm sad to report that my colleague Gordon Baldwin has died. The news comes over the email that Gordon, who we knew was ill, "died last night in his sleep in Italy after attending an opera." Gordon was a wonderful colleague, full of wit and kindness. It is hard to believe he will not always be sitting there in the faculty library, reading the newspaper by the window that looks out on the mall and ready to look up when you say "Hi, Gordon" and have another conversation about life, law, everything.

Audible Althouse #69.

Audible Althouse... this time, it's personal.

Stream it right through your computer here. But all my close personal friends subscribe on iTunes:

Hello.

Latvia.

Well, I don't speak dog, but...

This is picture #1:



And this is picture #2:



I'd say he was sincere but dubious, and then became intimidated and slightly pissed.

"The real question ... is whether she can put some great idea ahead of her own political upward mobility..."

"...whether there is a cause so important to her that she will risk her political security for it." The NYT wonders if Hillary Clinton will ever have a "a profile-in-courage moment." The answer is no, isn't it? Wouldn't she admit that to a confidante? She will probably some day have something that looks like a "a profile-in-courage moment," but when she does, it will be because never having one is perceived as more of a political risk than having just the right, precisely calculated one.

"The moderate, sensible religious people... make the world safe for the extremists... by influencing society to respect faith."

Salon interviews Richard Dawkins, who is quite antagonistic toward religion:

My sense is that you don't just think religion is dishonest. There's something evil about it as well.

Well, yes. I think there's something very evil about faith, where faith means believing in something in the absence of evidence, and actually taking pride in believing in something in the absence of evidence. And the reason that's dangerous is that it justifies essentially anything. If you're taught in your holy book or by your priest that blasphemers should die or apostates should die -- anybody who once believed in the religion and no longer does needs to be killed -- that clearly is evil. And people don't have to justify it because it's their faith. They don't have to say, "Well, here's a very good reason for this." All they need to say is, "That's what my faith says." And we're all expected to back off and respect that. Whether or not we're actually faithful ourselves, we've been brought up to respect faith and to regard it as something that should not be challenged. And that can have extremely evil consequences. The consequences it's had historically -- the Crusades, the Inquisition, right up to the present time where you have suicide bombers and people flying planes into skyscrapers in New York -- all in the name of faith.

But don't you need to distinguish between religious extremists who kill people and moderate, peaceful religious believers?

You certainly need to distinguish them. They are very different. However, the moderate, sensible religious people you've cited make the world safe for the extremists by bringing up children -- sometimes even indoctrinating children -- to believe that faith trumps everything and by influencing society to respect faith. Now, the faith of these moderate people is in itself harmless. But the idea that faith needs to be respected is instilled into children sitting in rows in their madrasahs in the Muslim world. And they are told these things not by extremists but by decent, moderate teachers and mullahs. But when they grow up, a small minority of them remember what they were told. They remember reading their holy book, and they take it literally. They really do believe it. Now, the moderate ones don't really believe it, but they have taught children that faith is a virtue. And it only takes a minority to believe what it says in the holy book -- the Old Testament, the New Testament, the Quran, whatever it is. If you believe it's literally true, then there's scarcely any limit to the evil things you might do.

And yet most moderate religious people are appalled by the apocalyptic thinking of religious extremists.

Of course they're appalled. They're very decent, nice people. But they have no right to be appalled because, in a sense, they brought it on the world by teaching people, especially children, the virtues of unquestioned faith.

Read the whole thing. Dawkins, author of the wonderfully readable "Selfish Gene," has a new book, "The God Delusion."

ADDED: I edited the title to this one. It was hard to cut down the quote to fit the character limit Blogger imposes. I wish I could collect unused characters from all my many short titles to use for an occasional extra-long title. Or maybe Blogger could put in the equivalent of the old margin release buttons found on typewriters. The machine tells you not to go further, but you still have the power to override the machine. On a typewriter, you could keep typing right off the edge of the paper and onto the platen.

Party politics.

Here's a Week in Review piece by David Kirkpatrick about shifting partisan allegiance:

In recent Harris Interactive polls, the number of respondents who refuse to acknowledge a preference for either party has risen to about 25 percent of the electorate from about 12 percent for most of the last decade.

Much of this increase in independents, he said, is probably accounted for by former Republican voters not quite willing to say they lean Democratic, but also unlikely to turn out this year.

Probably? What about all the Democrats -- myself included -- who lost their party affiliation over 9/11. Does anyone even want to get out my vote? Actually, I'm contacted by the Democratic party constantly. They're desperately pushing me to vote. Governor Doyle's campaign just sent me a form to apply to vote by mail. ("Anyone in Wisconsin can vote by mail... No special reason required.") Actually, there's a good chance I won't vote!

Back to Kirkpatrick:

[P]olls showing Democrats poised for big gains this fall in both chambers of Congress are reigniting the debate: Can Democrats crack apart the Reagan coalition of white blue-collar workers, evangelical Protestants, Southerners and chambers of commerce? Or will shifts in population toward the outer suburbs, the South and the West combine with the Democrats’ secular, liberal Northeastern image to keep the party a minority in national elections for years to come?...

The Democrats’ hope is that the war changes the reputations of the two parties in a way that may ultimately lead to remaking their constituencies as well...

“Iraq is the squandering of the national security premium the Republicans have been living on,” [Democratic pollster Ruy] Teixeira said. The Republicans’ failure at “standing up” to foreign threats, he argued, had diminished their credibility on a whole cluster of “values” issues like “standing up for what is right” as well.

That, he contended, is vindicating his argument for a Democratic ascendance: if the Democrats can cut their margin of defeat among white workers, they can build a durable national majority from their coalition of professionals, women, African-Americans and the fast-growing Hispanic population. Although Mr. Bush’s popularity with Hispanics at one time threatened to dislodge them from the Democratic bloc, the Republican moves this year to build a wall along the Mexican border has effectively pushed them back.

“That is fatal,” Mr. Teixeira said.

It's a grisly business, this definition and manipulation of voting blocs.

We've got to talk about the election.

This is a big day for pre-election analysis, and I suppose the people who write this sort of thing really do get excited about it. Me, I'd be despairing. How can I make a story out of this? All these little elections. Perceive some pattern, some trend, some hovering spirit of things. This is the first time I've blogged through a non-presidential election season. Let me look at how the major newspapers handle the task.

One way to focus is to look at the President anyway, like The Washington Post with: "White House Upbeat About GOP Prospects: Self-Assurance of Bush, Rove and Others Is Not Shared by Many in the Party."

The official White House line of supreme self-assurance comes from the top down. Bush has publicly and privately banished any talk of losing the GOP majorities, in part to squelch any loss of nerve among his legions. Come January, he said last week, "We'll have a Republican speaker and a Republican leader of the Senate."

The question is whether this is a case of justified confidence -- based on Bush's and Rove's electoral record and knowledge of the money, technology and other assets at their command -- or of self-delusion. Even many Republicans suspect the latter. Three GOP strategists with close ties to the White House flatly predicted the loss of the House, though they would not do so on the record for fear of offending senior Bush aides.

Public expressions of confidence. Okay. Isn't that exactly what you'd expect? Or is this really another one of these occasions to get exercised about delusions? This is another boring article about the election. In a desperate attempt to spice it up, WaPo collects quotes from Chuck Schumer, who's always got something quotesy to say:

"The bottom line is that people are tired of the president and his policies, and he has been unable to escape it."...

"Most candidates don't want to show up in public with him, and those that do are embarrassed... If Bush were popular, these races would not be close."

All right, let's switch to the New York Times. Its main article is "Democrats Have Intensity, but G.O.P. Has Its Machine." (In the paper NYT, the word "Fervor" replaces "Intensity.") Here, the focusing concept is the party. When it's not a presidential year, you lack the big human personalities, but you can try to talk about the two parties as big personalities. I've been hearing this sort of talk in personal conversations, and I've found it stereotypical for Democrats to express the idea you see in that headline.

This article mainly uses quotes from some voters, like the angry 89-year-old Clif Kelley. I Google "Clif Kelley" and come up with this NYT article from the '04 election, by the same journalist, Robin Toner! Both articles begin with the words "Clif Kelley, a retired economist...."

Here's the gist of the article:

Two major factors drive the Democratic intensity, analysts say: anger about the war in Iraq and other Bush administration policies, and optimism about their chances this year....

The flip side to the Democrats’ optimism, of course, is that the prospect of Democratic control is a powerful motivator for many Republicans.

So the big question is which of these two aggregated personalities -- Democrat or Republican -- feels more like voting. The Democratic entity is motivated, but the Republican entity could rouse itself if it starts to think the Democratic entity might take over Congress.

There's a danger -- assuming you want the Democrats to win -- to writing about how passionate, angry, and energized the Democrats are, since the picture of passionate, angry, energized Democrats is one thing that gets Republicans passionate, angry, and energized. You want them to stay placid if not depressed and remorseful, don't you?

"How can you teach English to young children with a veil over your face?"

Firing a teacher for her religious garb. Do we believe the justification?

Aishah Azmi, 24, was asked to take it off in class after pupils said they found English lessons hard to understand because they could not see her lips move....

"The children themselves were complaining. It is about what's best for the children."

In most households, there is no marriage.

I don't think this means that "To Be Married Means to Be Outnumbered," as the NYT headline puts it.

The American Community Survey, released recently by the Census Bureau, found that 49.7 percent, or 55.2 million, of the nation’s 111.1 million households in 2005 were made up of married couples — with and without children — just shy of a majority and down from more than 52 percent five years earlier.

Are most individual adults married? If singles live alone, they create more households per capita. And the percentage is affected by all the widows who outlive their husbands and all the young people who delay getting married. Individuals in both those groups are still the marrying kind.

But how much should we worry about the trend? Would it be awful if too many people decided that being single is the better way to live? Personally, I like that other people embrace marriage. It gives a nice solidity to society. Is it bad of me not to help with that enterprise?

"He is my only child still living and I think of him as a gift from God."

"He is also the best memory I have left of my wife." Yohane Banda was too poor to take care of the child he says he loves and gave the child up to the "good lady," Madonna, who swept into Malawi to adopt a boy. If Madonna wanted to help, she could have simply given the man some money. Something tells me that in the end she will, but only after she tripped all over her own embarrassing desire to ooze with beneficence and maternal love. It's not so easy. Now, you look awful. The only way to extricate yourself is to leave the boy and a pile of money with Banda and fund some very substantial project to help a big group of children in Malawi.

I'm on the pavement, thinking about the government.

Question most often asked of a blogger.

In my long experience. Can you guess what it is?

Comics.

The "Masters of American Comics" exhibition is in NY now (split into two shows, in two museums). Michael Kimmelman reviews it:

[T]he show shouldn’t be missed. It spotlights artists like Chris Ware and Gary Panter, amazing state-of-the-art talents and endearing in the tradition of all those shy, gifted kids who drew endlessly in their rooms when other kids wouldn’t play with them, dreaming about someday telling the world, “I told you so."

It was at the Milwaukee Art Museum (in one piece) last spring. Here's my old post about it.

Ground Zero/the Amish schoolhouse.

Here's a sane observation in a letter to the NYT editor by Susan J. Behrens of Brooklyn:

A week after the violence, the Amish have cleared the site of the building and planted various grasses and clover to return the site to pastureland.

What a contrast to another site of violence, ground zero, where the bickering and gawking continue five years later.

Perhaps it’s as simple as the vast difference in the value of the two sites financially, but the Amish seem to have the right values about moving on.

IN THE COMMENTS: Is snark called for? If so, Jeff has it:

I'm sure we'll see another letter to the Times, postmarked Park Slope or the Upper West Side, stating that no healing can begin until the Amish understand the root causes of the murderers grudge against young schoolgirls!

Perhaps the field will need the addition of a Ford or Soros funded International Center for Learning showcasing the achievements of child murderers that have been shamefully hidden by the theocratic Amish culture.

"It was a private world. We dreamed it up. It flowered out of our imaginations."

Richard Hell has an op-ed in the NYT:

It makes me think of that Elvis Presley quotation: “When I was a child, ladies and gentlemen, I was a dreamer. I read comic books, and I was the hero of the comic book. I saw movies, and I was the hero in the movie. So every dream I ever dreamed has come true a hundred times.” We dreamed CBGB’s into existence.

Aw, the sweet, sentimental punk kids -- all grown old, and now their clubhouse has gone. Or... that is...

CBGB’s is going to be dismantled and reconstructed as an exhibit in Las Vegas, like Elvis. I like that. A lot. I really hope it happens as intended.

It's funny -- and another thing that makes my generation seem so old -- that he likes that CBGB's is going to Las Vegas. We all made fun of Elvis for relocating there back in the 70s. It's okay, Hell tells us, to be old and sentimental and nostalgic.

"They were not a broadcasting concern to begin with. ... They went into business to affect elections."

Gloats Rush Limbaugh, as Air America files for bankruptcy. The implication is that his show is "a broadcasting concern," but you've got to wonder: How is his show less about affecting elections than "Air America"?

I like the idea that listeners can tell what the radio guy is up to. We're sensitive to the voice. We can tell when what the speaker wants is to tell you to get in line politically. (I feel the same way about blogging.)

I'm not a big listener of either Limbaugh or Al Franken, but, driving in my car, I've spent some time with both of them.

I think Limbaugh clearly and constantly is trying to get you to agree with his opinions, but he's got a joy in the moment that captures the listener. You know, I am the same age as Limbaugh -- we were actually born on the same day -- and I get the distinct sense that he was influenced by the two great, great radio guys that I listened to every day back in the 60s: Jean Shepherd and Cousin Brucie. These were not political broadcasters as all, just extremely entertaining radio voices.

Al Franken, being a comedian, ought to bring entertainment value to his radio show, but I never got the feeling that he was into the moment, that he had a sense of what it means to be a voice on the radio. He always sounds exasperated, like he's dragged himself to the studio and it's a tough job but somebody's got to do it. Why, oh, why, don't people get it yet? How many times do I have to tell you...

Old pictures.

Dan Hoffman uses a picture of me to illustrate a post about the relationship between lawprofs and law students. That's me, back in the days when I was a law student, when big magenta glasses were an "Annie Hall"-inspired craze, and when I thought I was pretty good at cutting my own hair. Now my student-lawprof relationships can be affected by seeing what a serious/deranged law student I was.

And as long as we're doing old pictures, here's one I like of me -- and my older sister -- from back in 1953, when professional photographers took crisp black and white shots and then painted them for permanent color:



And, yes, of course, I would wear the larger-sized dress when I got older.

Least balanced panel ever?

What are the chances that someone who leans toward supporting the death penalty would even consider attending this?

Drive/fly.

Man, I could have driven home from St. Louis in the time it took me to fly, and I could have done it without spending any time fretting about whether I'd have to stay overnight in Chicago. I've got to stop connecting at O'Hare. Wind makes everything back up. My 6:25 flight didn't leave until after 9, and I was glad to hear -- at the end of that flight -- that my connecting flight was delayed until 10:35. But I still had to run through the airport -- not something that's good for a person my age, in those shoes -- and, fortunately, I made it, but then that flight was further delayed. It was after 1 a.m. by the time I got home. I'm not mad at any airline people. They all did everything right. We just need more direct flights... and less Chicago.

What the band did.

Stephen Bainbridge asked what the UW Marching Band did to rile the administration here. Gordon Smith answers. It really is quite bad, not the kind of vigorous but offensive speech we've been fretting about lately in the context of the "Think. Respect." program.

"Every single individual on earth has both the potential and the right to live a decent life."

"Across cultures and civilizations, Yunus and Grameen Bank have shown that even the poorest of the poor can work to bring about their own development," said the Nobel Committee, announcing its Peace Prize.

Lawprof "blog juice."

Apparently,"juice" is now measured. Paul Caron assembles ranking of lawprof juiciness. Please note that I'm very juicy!

What if Roe v. Wade were overturned?

I'm here in St. Louis at the St. Louis University School of Law, where I'm a panelist responding to a lecture given by lawprof Richard Fallon on the subject of what things would be like if Roe v. Wade were overturned. He's speaking now, so let me keep you informed.

Fallon says he's never taken a position on whether Roe should be overturned, and his point here is to examine the various legal problems that would arise if it were overturned. He identifies four fallacies about overruling Roe:

1. There's a belief that overruling Roe would wipe the slate clean. In fact, there are old statutes on the books of the various states outlawing abortion. Would these statutes spring back into effect? Could these statutes be enforced retroactively?

2. There's a belief that overruling Roe would necessarily return the question to the states, but there's "almost no doubt" that Congress has the power under the Commerce Clause to pass laws that trump whatever the states might want to do.

3. There's a belief that overruling Roe would extract courts from the abortion controversy -- "get out of the abortion umpiring business," as Justice Scalia once put it. But really, the courts will just have to deal with a new set of abortion-related questions. What if a state outlawed abortion even where it was needed to save a woman's life? Don't women have some right to defend themselves at the constitutional level, quite aside from whether there's a broader right to abortion? And then there would be all sorts of questions about the scope of that right that would haunt the courts endlessly. And what if some states tried to restrict their citizens as they sought to travel to other states to obtain abortions? Complicated legal questions would arise here too.

4. There's a belief that Roe v Wade could be overruled without having much effect on the rest of constitutional law. What would be the ground for overruling the case? Even if the Court took a "modest" approach to the overruling and merely found no fundamental right to abortion, it would represent a triumph of "popular constitutionalism," and this might inspire new political efforts to exert pressure on the Court to change things to respond to political pressure.

Now, the commenters. Panel 1 is up. I'm on Panel 2, after lunch. Susan Appleton of Washington University Law School is speaking now. Also on this panel: Stephen Gardbaum (UCLA School of Law), Michael Greve (American Enterprise Institute), and Mark Rosen (Chicago-Kent College of Law).

FINALLY FINISHING THIS POST: Panel 2 was Anthony J. Bellia, Jr. (Notre Dame Law School), Alan Howard (Saint Louis University School of Law), and me. I said I thought that to collect all the possible post-Roe legal troubles is, implicitly, to make an argument against overruling Roe. Overruling Roe would create a new set of problems, and it is natural (and conservative) to prefer to the known problems to the unknown, but I think those who like Roe have a motive to underestimate the problems we have now and to exaggerate what the new problems would be. I support preserving Roe myself, but I don't think those who support overruling it should or will be pushed back with hypertechnical legalistic puzzles that essentially say: this is all too complex for you to fathom, so you really aren't competent to have an opinion here.

At the end of the first panel, a woman asked: If there really are all these problems without Roe, why didn't we see them before Roe? Afterwards, I said to one of the other law professors, that was a great question, do you know who that woman was? Answer: Phyllis Schafly's daughter.

"But let's reserve the word 'anti-feminist' for our real enemies."

So says Erin Matson, the co-chair of that National Organization for Women Young Feminist Task Force, commenting on the on the breastblogging controversy I caused a few weeks ago. This quote appears in a piece written by Liz Funk (over at Huffington Post). Funk is fairly balanced in her analysis -- although I find it rather unfair that there is no link to my blog. (The other blog, Feministing, is linked twice.)

Funk seems to confirm my observation that Feministing uses breast imagery to attract an audience:

If Feministing is in fact using sex to attract readers, they aren't alone. From female celebrities sporting minidresses on the cover of Cosmopolitan, to risqué perfume ads, to commercials for tampons, many media outlets geared towards women (and many of which are intended to empower women) use women's sexuality to attract women readers. Sex sells... and women buy it.

Sex is almost always needed to market to younger people. As young feminist interest seems to be dwindling in traditional women's organizations, Feministing lures readers with politics and social commentary-made palatable. Putting the term "subverting the dominant paradigm" as a blog post title would not draw Gen Y readers; "'Cause calling girls slut is always funny" relates the same message of gender equality, with more sparkle.

Yes, of course, but if you're going to be a feminist, you need to do a feminist analysis of that move! So you want to get your message across? But you have to ask yourself whether you've changed the message. This is such a glaring question that it's mindboggling that you think you'd escape this critique.

But feminists aren't what they used to be. They shrink from an intense debate with each other. Here's Matson's point in context:

"This controversy is a rehashing of a very old debate within the feminist community: is public sexuality empowering or harmful to women? It's a complex issue and it's good to keep the discussion going... some feminists may disagree with the stance taken by many of Feministing's writers, but let's reserve the word 'anti-feminist' for our real enemies. To slap the same label on Jessica Valenti and Anne [sic] Coulter is completely ridiculous."

"Our real enemies"? Oh, yes, feminism has gotten rolled up into the conventional left-right of American politics. Ever since feminists chose to subordinate themselves to the interests of the Democratic party to help Bill Clinton with his problems, the feminist discourse in this country has been lame. It's a means to a political end, and so you always know who your "enemies" are. Fifteen years ago, feminists critiquing each other was an important part of feminism. Now, doggedly serving liberal partisan politics squelches everything that could become vital.

Maybe if feminists had the nerve to engage in real debate about feminism they could get some young people excited about real ideas. But go ahead, tart up your website with boobies for now. It's helpful that you make your desperation so clear.

UPDATE: Thanks to Andrew Sullivan for linking. If you're not familiar with the original controversy, here is my key post touching things off, and here and here are later posts responding to it.

Ooh. It's a little early for this.

It was a crisp morning:



It can't be snow!

The dreaded bias report!

From Java Zen.

Album cover mayhem.

"It was entertaining if strange to see all these people gyrating to their own beat."

A huge flashmob -- each individual plugged into his own iPod -- dances in what the observer perceives as silence. I like it, and I'm waiting for the video on YouTube.

UPDATE: The YouTubage:

"But mostly he just wants to be a professor."

Wow! I've never read a more impressive reinforcement of the belief that it's great to be a professor.

Orhan Pamuk!

Orhan Pamuk wins the Nobel Prize for literature. Pamuk was charged with the crime of "insulting Turkishness," charges that were dropped after outcry from Westerners.

Pamuk, 54, who gained international acclaim for books including ''Snow,'' ''Istanbul,'' and ''My Name is Red,'' went on trial last year for telling a Swiss newspaper in February 2005 that Turkey was unwilling to deal with the massacre of Armenians during World War I, which Turkey insists was not a planned genocide, and recent guerrilla fighting in Turkey's overwhelmingly Kurdish southeast.

''Thirty-thousand Kurds and 1 million Armenians were killed in these lands, and nobody but me dares to talk about it,'' he said in the interview.

Hoarse Engdahl, the head of the Swedish Academy that awards the prize, said the controversy had nothing to do with the decision to award him the prize.

''It could of course lead to some political turbulence but we are not interested in that,'' Engdahl said. ''He is a controversial person in his own country, but on the other hand so are almost all of our prizewinners.''

Which is why we don't believe you when you say it has no effect on the decision... But, anyway, I like the support for Pamuk.

If you want to read something of his, read his New Yorker piece about his trial:

My detractors were not motivated just by personal animosity, nor were they expressing hostility to me alone; I already knew that my case was a matter worthy of discussion in both Turkey and the outside world. This was partly because I believed that what stained a country’s “honor” was not the discussion of the black spots in its history but the impossibility of any discussion at all. But it was also because I believed that in today’s Turkey the prohibition against discussing the Ottoman Armenians was a prohibition against freedom of expression, and that the two matters were inextricably linked. Comforted as I was by the interest in my predicament and by the generous gestures of support, there were also times when I felt uneasy about finding myself caught between my country and the rest of the world....

As tomorrow’s novelists prepare to narrate the private lives of the new élites, they are no doubt expecting the West to criticize the limits that their states place on freedom of expression. But these days the lies about the war in Iraq and the reports of secret C.I.A. prisons have so damaged the West’s credibility in Turkey and in other nations that it is more and more difficult for people like me to make the case for true Western democracy in my part of the world.

ADDED: Jeff Weintraub observes that the prize "seems like a happy ending for [Pamuk], at least for the moment. But the larger issues remain, both for Turkey and for the rest of us."

Sandra Day O'Connor heard appeals yesterday.

The Daily News reports:

O'Connor heard a criminal case and four civil disputes, including a time-honored New York favorite - the landlord-tenant dispute - while sitting on a panel with two other judges from the 2nd Circuit U.S. Court of Appeals.

She challenged a tenant lawyer, asking him how he'd react if a landlord said, "Look, I'm entitled to rent at the end of the day."

"A typical jury will understand that the victim is going to have a family, and they're going to be sorry he's dead..."

"... and they might be there at the trial. The buttons don't seem to add much to what the jury will derive from seeing the family seated behind the prosecution bench."

So said Chief Justice John Roberts at oral argument yesterday. The question was whether a federal court on habeas should overturn a murder conviction because during the trial, members of the victim's family sat in the courtroom wearing buttons showing a picture of the victim. The standard on habeas -- after the revisions in the Antiterrorism and Effective Death Penalty Act -- is whether the state trial judge's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” The 9th Circuit overturned the conviction of Matthew Musladin, and I think we know how the Supreme Court will decide this, given the difficulty of meeting the standard.

The linked article is David Savage's piece in the L.A. Times, but you can read the whole transcript here. I found it interesting that Justice Kennedy toyed with the idea of using the case to "clearly establish" the law for future cases:

Supposing we all thought that this practice in this particular case deprived the defendant of a fair trial, but we also agreed with you that AEDPA prevents us from announcing such a judgment. What if we wrote an opinion saying it is perfectly clear there was a constitutional violation here, but Congress has taken away our power to reverse it. Then a year from now, the same case arises. Could we follow -- could the district court follow our dicta or could it -- would it be constrained to say we don't know what the Supreme Court might do?

The lawyer for the state quickly reminded him that the Court in Williams v. Taylor (second link, above) said that only holdings count toward clearly establishing the law for habeas purposes and that Musladin will only win this case if the law was already clearly established. Perhaps Kennedy can find some way to extract the Court from this bind, which severely undercuts the role of the Court in saying what the law is at precisely the point where the statute -- AEDPA -- makes the Court's articulation of the law crucial.

ADDED: Linda Greenhouse's report on the argument is much better than what is at the first link. She explains the federalism problem extremely well:

The Supreme Court has had various things to say over the years about the unduly prejudicial impact of such practices as placing a defendant in shackles or in prison garb in the presence of the jury. But it has never said a word about a murder victim’s relatives wearing buttons.

So, did the federal appeals court in this case, the United States Court of Appeals for the Ninth Circuit, have the authority to extrapolate from the old Supreme Court precedents to the new situation? Did it have the authority to apply one of its own cases, a 1990 ruling that overturned a rape conviction because female spectators at the trial had worn buttons declaring “Women Against Rape”?...

Suppose, Justice Anthony M. Kennedy asked Mr. Ott, that there was no Supreme Court ruling on a particular issue, but that the courts of five federal appellate circuits had looked at the issue and had all reached the same conclusion. “And they all say, ‘We think the general rule of the Supreme Court is as follows,’ ” Justice Kennedy said, asking: “Isn’t that entitled to some weight? You’re not supposed to cite that when you go to the Sixth Circuit court or you go to the state court?”

Such a decision, even if widely shared among the appeals courts, could not be considered “clearly established” law, Mr. Ott replied. “To redefine or shape this court’s holdings beyond the face of those holdings, our position is that cannot be done with state or circuit law,” he said.

Read the whole thing, especially if you haven't thought about AEDPA before and need to get a grip on it.

"Project Runway," the finale, part 1.

Had you already picked a favorite, or did you, like me, bond with someone just tonight, as we saw each contestant at home? I loved Laura's loft living space and her exuberance with her four, soon to be five, boys and nice husband. But it was Uli who touched me. How odd that for the first time we hear that she's from East Germany, as if they only now decided to let us sympathize with her. Her attachment to Miami and to America felt beautiful, in fact, it made me dream of transplanting myself to some new place that would inspire me in some new way. (But where?)

Laura love dropped sharply as we traveled the narrative arc of tonight's show. She saw how Tim praised Jeffrey's collection, saw that he was going to win, so she made the one move that was available: She accused him of receiving outside help. She had absolutely no evidence other than the fact that his work was well done. At the end of tonight's show, we saw previews of next week, and it was cut to make us guess that Jeffrey would be disqualified. Tim says "Unfortunately..." and then we see Jeffrey collapsing in Uli's arms. I'm willing to bet that Tim said something like "Unfortunately, there is no way that the accusation could be substantiated," and Jeffrey collapses in relief.

"It is deeply troubling that a prestigious public university would choose to offer a class that provides fodder to extremists."

The Anti-Defamation League on UW teacher Kevin Barrett:

"While we respect academic freedom, ADL is deeply concerned that the students in Barrett's class are receiving a taxpayer-funded indoctrination into the instructor's personal political views that the U.S. government perpetrated the 9/11 attacks, that America is equivalent to Nazi Germany and that Israel is a racist state," said Lonnie Nasatir, Regional Director of ADL's Upper Midwest office and a University of Wisconsin alumnus. "Students who have signed up for a class purportedly about Islam are being ill-served by this content, which has little to do with that great religion."...

"These 9/11 conspiracies are used to demonize Jews, Israel and America, and have become part of the core belief systems of anti-Semites and millions of others around the world," said Nasatir. "It is deeply troubling that a prestigious public university would choose to offer a class that provides fodder to extremists, rather than seek to debunk these myths."

Think. Respect....

If you don't know what this is about read this. And remember: It makes a great armband.

UPDATE: Ooh! It's a competition. New entry:

The official logo we're spoofing is in the linked old post. But, for reference, here it is again:

MORE: The "Inform" version is by Steve White of Rantburg.

YET MORE: Paul Denton offers this, which highlights the "inform" (as a commenter recommended) and improves the font and the kerning (and don't you love typography geekery? I do!):

Sippican Cottage has this:

Plane crashes into a NYC building.

NYT report.

"With Republicans, it's sex."

"With Democrats, it's money."

Colloquy + weather + shoes.

Down in the comments to the "Think.Respect." post, Tim says:

Good morning! Nice weather we're having! Are those new shoes? Anyway, gotta go - I'm late for my "Think. Respect. re-education class."

Have a nice day!

I respond:

I'm sorry, Tim. I'm going to have to report you for calling attention to my shoes, which seems sexist to me. Also, I'm feeling that "Good morning! Nice weather" might be some sort of sly anti-WASP mockery.

MadisonMan responds to me:

It's also patently false.

Fenrisulven's all:

Then you get to go before some board or cmte on hate crimes and prove your innocence. When it's all over, the only thing people will recall is that you were somehow involved in some kind of despicable bigotry.

MadisonMan comes back with:

fenris, I'd go before the board and show the statement "Nice weather we're having" was made on a day in October with rain and temperatures in the 40s. And they'd all agree with me.

And I'm:

Yeah, I took your comment to be about the actual weather here this morning...

And Tim's back with:

Sucks for you all, with promises it will only get worse before the end of March. As for me, it's 52 degrees at 9:45 a.m., with an anticipated high of 82, sunny, humidity at 62% and no wind. It is beautiful.

And, not that I'm tracking this, but I don't recall Ann taking any recent photos of her shoes lately...

So I'll just say...

Here's the weather (from my office window):



And here are the shoes (against my office carpeting):

"Are you threatening me?"

That "Think.Respect." post got me thinking about students perceiving threats everywhere and sent me looking for that classic perceiver of threats:



Here's the original Cornholio episode. Don't miss the teacher, who seems very Madison, Wisconsin to me. Love his "Human Rights. Capitalism" diagram (which Beavis walks out on). And that quivering administrator... how apt.

"Do you know the best service anyone could render to art? Destroy all biographies."

"Only art can explain the life of a man—and not the contrary." Orson Welles, quoted by Simon Callow ("Orson Welles: The Road to Xanadu"), quoted by Terry Teachout.

I'm trying to start a serious conversation about art, but I'm guessing there's a hearty subsection of readers whose minds are now going "Xanadu, Xanadu, (now we are here) in Xanadu, Xanadu, Xanadu, (now we are here) in Xanadu, Xanadu, your neon lights will shine for you, Xanadu." But that's art too, isn't it? And that might very well explain the life of a man. But if you see that man coming, run.

"Wisconsin’s latest speech code, the 'Think. Respect.' program."

Here's an opinion piece in the Badger Herald by Robert Phansalkar, a UW student (majoring in political science and languages and cultures of Asia):

The [“Think. Respect.”] program calls for university students to search for forms of discrimination and harassment on campus, and when present, to download a “bias incident report form” to be submitted to the Student Advocacy and Judicial Affairs unit of the Dean of Students for a potential investigation. Implicit in this reporting scheme is that students who harass will be punished or reprimanded in some way....

Ironically enough, the university’s protection of students against bias includes political affiliation...

Here's a letter in response to that article by UW polisci prof Donald Downs (who wrote this book about campus speech codes):

It was good to finally see that a student journalist has grasped the fact that the program, as presently conceived, poses a threat to honest discourse and privacy on campus. The program encourages campus citizens to report not only acts of harassment or discrimination that constitute official misconduct, but all forms of “bias,” verbal and non-verbal, without that term being defined in a manner that is consistent with First Amendment principles. In other words, the present policy amounts to a speech code, as it encourages people to file reports on other people’s attitudes and speech that informants deem insufficiently senstive.

Here's the University's announcement of the "Think. Respect." program, explaining the logo, which looks like this:

[IN THE COMMENTS: Pastor Jeff says: "It would look great on an armband. "]

Included in that announcement;

Chancellor John D. Wiley says the campus has seen improvements in climate during the past few years. However, an anti-gay incident in University Housing last spring — one of the driving factors behind the campaign — demonstrated that the campus community still has more work to do.

"We are committed to creating and sustaining a campus community that is open, diverse and inclusive," Wiley says. "We want a campus that embraces difference and where respect is rampant. We will not tolerate bias, racism, disrespect or hate."

To counter racism in any of its forms, Berquam is launching a bias reporting mechanism through the Offices of the Dean of Students Web site.

Here's that website:

A bias incident is a threat or act of bigotry, harassment or intimidation - verbal, written or physical - that is personally directed against or targets a University of Wisconsin-Madison student because of that student's race, age, gender identity or expression, disability, national or ethnic origin, political affiliation, religion, sex (including pregnancy), sexual orientation, veteran status, or other actual or perceived characteristic.

What is a verbal "act of bigotry, harassment or intimidation" aimed at someone's "political affiliation"? What does "other actual or perceived characteristic" refer to? Students who "have witnessed or experienced a bias-related incident" are told to click to this form (PDF) to submit a report. Back to the website:

Students can report anything, from a hate crime to graffiti to verbal harassment. SAJA will attempt to follow up in every instance, contingent on the information provided, to investigate possible misconduct and to provide resources to the victim.

Berquam says that many hate or bias incidents are relayed anecdotally to ODOS staff. The reporting form is one way to quantify how many incidents take place on campus and provide a method for following up.

Students can report anything? And remember Wiley's statement: "We will not tolerate bias, racism, disrespect or hate." We will not tolerate disrespect? You know, I want students to feel good about campus life, but isn't part of campus life having rowdy debates and vigorous arguments? I know from running this blog that there are people who firmly believe that opposition to gay marriage is bigotry. This program should make students worry that anything other than bland pleasantries is going to get them in trouble with the administration. I wonder if you can report feeling threatened if someone made you feel threatened that they were going to report you for making them feel threatened. And what's the good of encouraging students feel entitled to a cushioned speech environment? How does this equip them to live in the real world?

Why doesn't the university have a program that promotes debate about tough issues and teaches students how to express themselves forcefully? No, no, when someone mocks your political ideas, you ought to slink away and go back to your little room and download a report form.

(And, yes, it's incredibly ironic that the university also went to the wall for free speech values when it dealt with Kevin Barrett.)

AND: Don't miss the new post, with the new logo!