Tuesday, February 28, 2006

"American Idol" -- a tasteless display.

Tonight's a bit of a horror, isn't it? The judges are very hard on the "girls," and this is a relief for me, so I don't have to supply all the negativity.

Katharine McPhee starts us off, and she's bad, but she's been so good in the past, so this is not auspicious. I'm blanking out on the next few performers. If I try to call them to mind, I'm just going to feel really bad.

Well, that last one was Brenna Gethers, who does "Last Dance," the song that doomed Ryan Starr in Season 1. And compared to Brenna, we feel an intense flow of nostalgic love for Ryan.

Next up is Paris Bennett, so good in the auditions. And she's wearing a jumper -- a jumper, people -- so I'm ready to love her. But now she's saying "I got favor" and pointing toward Heaven. And then I see that it's not a jumper. It's a camisole over a white shirt. Well, so, I'll have to be a little critical. She could have warded of my criticism by wearing a jumper. She's singing "Wind Beneath My Wings" -- in a pretentious, overblown way that exasperates us. Paula implies that she's lost her youth. Randy tells her to act 16. Be "the hot young one for me," he says, which sounds a tad icky. Simon says don't turn the show into "I'm 17 and I can sound 50." Ryan asks her why she picked that song, and she says it's her great grandmother's favorite song, which is so ridiculous, so over-the-top ridiculous, given that they all just said she was overly old, that we see her as a girl again and love her.

Kellie Pickler sings "Something to Talk About," which is exactly the kind of song I abhor, but she's cute. We're supposed to like cute? Simon tells us America likes cute. And the truth is that when they show the recaps in the end, she's the one that comes across the best.

We end with the very dramatic Mandisa. Well, she went last, so she must be good. To me, it's bombastic and forgettable.

I've got to say, I absolutely hated the music on the show tonight. Was there any taste? I think not.

"This is a national problem. It’s not just a Harvard problem."

Here's Camille Paglia talking about the Larry Summers affair on Open Source Radio:
The humanities have destroyed themselves over the past 30 years… Through an obsession with European jargon and a shallow politicization of discourse, the humanities have imploded… There’s hardly a campus you can name where the most exciting things that are happening on campus are coming from the humanities departments… I think the entire profession is in withdrawal at the moment. This is a national problem. It’s not just a Harvard problem.
Amusingly, Open Source did a general search for a creative commons photo of Camille Paglia and ended up using one that I took. I've appeared on Open Source Radio more than once -- here and here -- but this was just a coincidence. It's also funny because Paglia actually got mad at me for taking her picture (because I accidentally set off the flash). Here's my old post about Paglia's appearance in Madison.

"We like the sound of her voice, she uses really good phrases."

Said about me. "She's obviously a professional speaker and lecturer, and it was a cool way to use these words but not make it too forced."

Anna Nicole Smith goes to the Supreme Court.

First, the great picture:



Now, for the substance of the WaPo's report:
The justices are dealing with a technical question: When may federal courts hear claims that involve state probate proceedings? Smith lost in Texas state courts, which found that E. Pierce Marshall was the sole heir to his father's estate....

"Most people will do a double take," said Edward Morrison, a former Supreme Court clerk who specializes in bankruptcy law at Columbia University. "It raises the novelty level and makes a technical issue somewhat more entertaining."
What, you aren't entertained by diversity jurisdiction? Hey, I teach this subject, and, much as I would inject enthusiasm into the topic in class, I admit it's pretty technical. Law aside, I just can't help wanting Anna Nicole to get the money.

UPDATE: Here's a report on the oral argument:
A U.S. bankruptcy judge in California initially awarded Smith $474 million, but that was later reduced to about $90 million. A federal appeals court eventually tossed out the entire award, saying the bankruptcy judge should never have heard the case.

Several justices expressed sharp skepticism that only the Texas state court could settle the dispute over the estate.

"That's not the way our system works," said Justice Ruth Bader Ginsburg. "I've never heard a state probate court say you cannot bring a claim in another court."

The justices Tuesday seemed especially interested in several details of the dispute: whether documents were tampered with, whether Smith was kept from her husband's bedside as he was dying, and the amount of money she would receive if she were to win the case.

"'I just want some money from this guy.' That's all she's saying," Justice David Souter said. "Just give me the money I would have had."
I love when the justices paraphrase the argument in blunt terms! Anyway, they're only deciding the jurisdiction question, so these intimations about the substantive merits of the case don't mean much. It sounds as though she's going to win on the jurisdiction point, which is about whether a limitation that the Court has read into the diversity jurisdiction statute applies ought also to apply in a bankruptcy jurisdiction case.

What do women want?/What should women want?

Blogging about "The Apprentice" last night, I happened to write, "The Synergy folk are pushing manicures and massages -- you know, what women want." That prompted a commenter to ask:
Since you opened the door to this line of questioning, Ann, would you please tell us what women really DO want? And I don't mean at Sam's. Has anyone ever figured this out?
Today, John Tierney begins his column with the famous question. (TimesSelect link.)
Freud confessed that his "thirty years of research into the feminine soul" left him unable to answer one great question: "What does a woman want?" Modern feminists have been arguing for decades over a variation of it: What should a woman want?
What women should want is very different from what we do want, but what we do want is inevitably shaped by what we've come to think we should want, which is affected by what we're hearing we should want. Try disaggregating what you do want from what you think you should want, after first disaggregating what you think you should want from what other people seem to be saying you should want. It's damned hard! And it's not necessarily the way to happiness, but then, if you do manage to do all that, your skills at assessing your own happiness will be quite different from the skills of other people reporting to sociologists about whether they are happy.

Anyway, Tierney's column is really about a sociological study about what makes women happy in a marriage. So we're already dealing with the subset of women who have decided they want to be married, which probably means a greater concentration of individuals who are looking to another person to make them happy. But perhaps not. Do people marry because they want to be happy? There are many other reasons to marry!
[A]n equal division of labor didn't make husbands more affectionate or wives more fulfilled. The wives working outside the home reported less satisfaction with their husbands and their marriages than did the stay-at-home wives. And among those with outside jobs, the happiest wives, regardless of the family's overall income, were the ones whose husbands brought in at least two-thirds of the money.
Is it that women enjoy having a mate who outclasses them in earning power? Or is it just that it's better to have more money, and if I'm making X, I'd prefer to add 2X to my total than X? Where's the study of the men? Maybe the men making X also prefer a mate who brings in 2X?

Studies like this always seem hopelessly flawed to me. I never trust assertions married people make about how happy they are. When people are trying to make a marriage work, they try to keep their spirits up and believe in the enterprise. When the marriage is ending, they start realizing that they haven't been happy for a long time.

And then there's the way pundits latch onto these studies and run with them -- usually motivated by their own pre-existing policy preferences.

Of course, I don't have an answer to the question "What do women want?" other than to critique the tendency to ask the question in the first place. Frankly, I find it hard enough to discern what I want.

"I lived 13 years in New York, I see a lot of big cases on TV. I think the judges is fair."

Says Ehab Elmaghraby, an Egyptian man who the U.S. detained and then deported after 9/11. He's settling his lawsuit --for $300,000 -- only because he is ill he said. His preference? "I wish I come to New York, to stay in the court face to face with these people."

I suppose most people who settle cases say things like this, but I was touched by this man's expression of respect for American courts.
The government had argued that the lawsuits should be dismissed without testimony because the extraordinary circumstances of the terror attacks justified extraordinary measures to confine noncitizens who fell under suspicion, and because top officials need governmental immunity to combat future threats to national security without fear of being sued.

The federal judge, John Gleeson of the United States District Court for the Eastern District of New York, disagreed, writing in his decision last September, "Our nation's unique and complex law enforcement and security challenges in the wake of the Sept. 11, 2001, attacks do not warrant the elimination of remedies for the constitutional violations alleged here."

Blogs "have nothing to do with scholarship."

The National Law Journal has an article on lawprofs blogs:
An increasing number of law professors are using blogs... to break free from traditional modes of legal scholarship. With an immediacy and ability to reach millions of readers, blogs are proving an attractive vehicle among legal scholars for spouting and sharing ideas.

But they are also raising concerns that they may lead to a dumbing down of the profession.

"They have nothing to do with scholarship," said Katherine Litvak, a professor at the University of Texas School of Law.
Wow! Why feature that quote at the beginning and then have nothing to back it up? I'm sure Litvak must have made a more detailed statement, but here she is just hung out to dry with the absolutism of the word "nothing." And she's supposedly accusing us of "dumbing down... the profession"? Though Litvak pops up again later in the article, she's never given a chance to explain that overwrought pronouncement. She does slam law reviews as "fundamentally corrupt," however. That's interesting. She's not given a chance to explain that either.

Anyway, if you bother to keep reading after that offputting beginning, there's material on the upcoming conference "Bloggership: How Blogs Are Transforming Legal Scholarship," which will take place at Harvard this spring. I'll be at that conference, and I'm quoted in the article too, complaining about law reviews. The fact is, whatever you want to say about blogs, law reviews are a big problem:
Not only does the slow publishing cycle of law reviews trouble Althouse and others, but critics also point to the lengthy and heavily footnoted format of the articles, which make them difficult to read -- if in fact anyone actually is reading them.

"I don't need a think tank, I need advocacy," said Stanley Bernstein, senior partner with 45-attorney Bernstein Liebhard & Lifshitz, a securities litigation firm in New York.

Bernstein, who himself was an editor of the Journal of International Law and Politics at New York University School of Law, said that in his 25 years of practice, he has rarely used law review articles.

"By the time you need to use them, they are generally a year or two out of date," he said.

A prevailing concern about law reviews is that law students who have just two years of course work compose the editorial staff of typical law review journals and, so goes the criticism, often make selection decisions based upon the status of the professor's school, not the value of the work.

Douglas Berman, a law professor at Ohio State University, called the law review industry "incestuous." He added, "It's the marketplace of prestige. It's what you have to do to show off to law students."
Blogs at least offer an alternative to traditional legal scholarship, which everyone seems to agree has big problems. Of course, blogs have their own set of problems. Neither form is ideal. Blogging is much more fun, of course, and that alone has got to piss off the folks who are working in the traditional, ponderously long and pretentious mode. Instead of lashing out at us, though, why not take a lesson from us and write better, faster, pithier law review articles?

ADDED: Stephen Bainbridge is blogging the same NLJ article, which contains the factoid: "Among the top 20 schools, as ranked by U.S. News & World Report, there are 59 bloggers."
It's interesting that top 20 schools seem to dominate the blogosphere. Does that credential give the potential blogger a leg up? Or is it just that the kind of people who land jobs at top 20 schools are also the kind who would find blogging attractive? I don't know, but if I had to guess, I'd say it's both.
Shouldn't we first count the numbers of lawprof bloggers in the second 20 and the third 20 before we make assumptions about who's doing the most blogging? Also, just counting the numbers of bloggers is not very accurate. For example, Chicago has a high blogger count because it runs a group blog with a long list of faculty names. I'd like to see a weighted count -- if you're going to get into counting -- that reflects the actual amount of blogging that is going on. But then if you did that, you'd probably want to count the blogging that is specifically about law, as opposed to, say, "American Idol."

And speaking of U.S. News, wouldn't it be funny if it used faculty blogging as a factor? There would be all these blogs by lawprofs trying to move their school up the rankings. Oh, but maybe it already is a factor, affecting the "repuation" scores that are based on surveys of academics, lawyers, and judges. The question is which way blogs affect the school's reputation. That too would not be based on the sheer number of blogging lawprofs. Wisconsin, that's that school where they watch "American Idol" all the time.

UPDATE: Jim Lindgren expands on my point about how to count the significance of blogging at different school. He concludes that Chicago's significance "does not yet reach the influence in the blogosphere of UCLA, Tennessee, San Diego, GW, George Mason, or Wisconsin, among others."

Monday, February 27, 2006

"The Apprentice" is back again already.

Are you going to watch? Funny that they don't give you time to miss it, the way "American Idol" does. It seems the last season just ended, and last season was the one with two versions, the Donald and the Martha. "American Idol" actually did do something like that once, when it ran the "juniors" show, which was even more of a horrendous distortion of the original than Martha's show was.

Anyway, the new "Apprentice" has moved to Monday, which is a great place to stick it, since we're all watching "American Idol" on all those other days.

Donald is implying that he knows that the last season was too tame:
"We've got great new characters," he said, touting the addition of some foreign-born "Apprentice" applicants this time, including Lenny from Russia and Sean from Britain.

Then there's the inclusion of a couple of other characters, who had a certain in with the star. Ivanka Trump, Donald's daughter, will fill in for Mr. Trump's sometimes acerbic aide-de-camp, Carolyn Kepcher, for five episodes; and his son Don replaces the other assistant, the gently curmudgeonly George Ross, for two episodes.
No Carolyn?! Nooooo! Donald's daughter??? Right after we suffered through Martha's catatonic daughter! I am going to be hypercritical of the deserves-no-sympathy Ivanka. Ivanka must deliver or be rudely skewered!
[Trump] acknowledged, that the third edition of "The Apprentice," which concluded last spring, contained a cast "full of marshmallows," a result, he said, of his not taking a stronger hand in casting. For the fourth go-round, last fall, and the fifth, starting tonight, he said he had been extremely hands-on with casting....

He would not reveal how his consulting efforts turned out, only that "nobody's going to believe it."
Okay, this better be good. Now, go watch it, everyone. I will. Look for a quick update to this pose.

UPDATE: The contestants have to walk up the steps into his plane -- the plane that says TRUMP on the outside. They meet Trump, who mainly says I wanted you to meet me here so you can see how expensive my plane is as you begin your journey on this show which is all about how you can become rich and have a plane like this.

Then they get out of the plane and line up next to it, in extreme wind, where they must quickly summarize their bios, while their hair whips them in the face. Trump selects team leaders: the guy who says he's in Mensa (Tarek) and the girl who went to Harvard Business School (Allie). (What's with Mensa? People are proud to be in the top 2% of IQs, but not too proud to join an organization about just that?) The Harvard Business School girl is, in my mind, distinguished by the fact that she's the only person who chose to use her hand to grip her hair and keep it from whipping her in the face. Well, that's management!

The two who suddenly find out they are the leaders now need to pick their teams. Were they listening, in all that wind, to the bios of the other contestants? Neither leader remembers anyone's name, so they're both, I'll take the gentleman in the pink tie.... The fat guy is chosen last, and we see him interviewing about how he was always chosen last in high school. Oh, the team choosing ordeal! It's designed to dredge up all your old high school nightmares.

The fat guy, Brent, destroys our sympathy for him by pushing the team name "Killer Instinct." His team rebuffs him and chooses the dorky all-purpose business word "Synergy." The other team, someone Brentishly, calls itself "Gold Rush."

The task is dripping with product placement: Goodyear (the blimp) and Sam's Club (they have to promote it). We see the Gold Rush contestants laying into typical Sam's Club customers. Lots of high pressure sales talk. In interviews, they rave about what high energy go-getters they are. Lee wore a suit! What a creative idea -- we're told. What a way to command respect. The Synergy folk are pushing manicures and massages -- you know, what women want. Even though the teams aren't all-male and all-female this season, there's a masculine vibe to Gold Rush, and a feminine vibe to Synergy.

We get mercifully quickly to The Boardroom. The teams do almost exactly the same, but Gold Rush loses. We see the team conspiring to oust Summer, who does seem like a bit of an idiot. But Lee doesn't like this ganging up. He wants to blame Tarek, the team leader. And he's right. The team had no idea. All they had was a gift bag, but it was a gift bag with no gifts in it. The gift was the bag.

The firing scene unfolds brilliantly. We start by not wanting Summer to lose, because of the way the team plotted against her. But Carolyn pins her on the question: what did you do for the team? And then, when Trump is focusing on Tarek, getting ready to fire him for having no idea, Summer starts annoyingly butting in. So he fires her for being such an idiot as to keep interrupting when he's getting ready to fire someone else. Lots of big laughs here! She tries to spin her idiocy as truthfulness. And so, truthfulness is the joke of the night.

In the cab confession, Summer says she is happier with herself than she's ever been.

The gender mysteries of Don Knotts.

Virginia Heffernan has a nice piece about the late Don Knotts:
He was wonderfully unthreatening to other male comics, all of whom could think of themselves as one step closer to leading men than Mr. Knotts was. It's hard to think of an actor, in fact, who got more helping hands than Mr. Knotts in his early days. Male actors were forever offering him parts, trying to get him to join their acts. Sharing the stage with this skinny, spazzy guy could only make them look more commanding....

In the nervous man, he reveled in the discomfort that most comics tend to pass off as indignation or savoir-faire. As Barney, he satirized swagger and self-importance. Finally, on "Three's Company" in the late 70's and 80's, he sent up the comedian's hypersexuality, which is often his pride. Mr. Knotts, over and over, was willing to play the desperate, pathetic low-man-on-every-pole. He did it so well — never forsaking his persona and trying to seize the lead, as nearly all major comedians do these days — that his talent for abasement became a source, paradoxically, of great authority. By revealing but never indulging these pretenses, he enlightened everyone he worked with, and his audiences.
I like the way the man's extreme sexual unattractiveness opened up a portal for him. Not only did he receive opportunities from other men (who believed that he couldn't be more loved than them) but he accessed wisdom (about the ridiculousness of men who believe too much in their own masculine greatness). Come on! Someone needs to do a Gender Studies seminar on Don Knotts.

Trying to build the World Trade Center memorial.

It's been difficult raising the money for the World Trade Center Memorial. For one thing, the amount is $500 million. And there have been so many other disasters recently to claim the attention of donors. Don't those who are suffering in the aftermath of the tsunami, Katrina, the Pakistani earthquake, and the Philippine mudslide seem much more important than building two extravagant 176 foot square pools in lower Manhattan? And then there is the opposition by some of the victims' survivors:
Some family members argue that the site will be a target for new terrorist attacks, and that its underground location makes it difficult to escape in an emergency. "We know from 1993, and from 2001, that the terrorists love that site, and it will be a very attractive target again," said Debra Burlingame, a memorial foundation board member, whose brother, Charles F. Burlingame, was the captain of the plane that crashed into the Pentagon on Sept. 11.

"I believe in the memorial and I support the memorial process, but right now I wouldn't go into the memorial," said Monica Iken, another memorial foundation board member, whose husband, Michael, died in the south tower. "Even if you have enough egress and exit points, it's so far below ground. If there is an emergency, most people will just run back the way they came in."
It's such a complex, expensive, and emotional enterprise. But I think Governor Pataki summed it up well: "The debates are over. Now it's time to build. It is a moral obligation."

Sunday, February 26, 2006

Audible Althouse #38.

Religion, chaos, iconoclasm, originalism, the Golden Mosque, what God wants, and "if it feels good do it."

Here. Live-stream here.

"The actor embodies his subject right down to the hesitant flare of his nostrils."

Nostril acting, praised!

(Nostrils and acting, an ongoing topic on a blog called Althouse.)

Listening to Supreme Court arguments.

A reader emails:
A few weeks back you mentioned in passing that audio of Supreme Court arguments are available at www.oyez.org In the context you seemed to imply that they would be of interest mainly to lawyers.

I went and downloaded one anyway. I picked one pretty much at random and listened to the pros and cons of whether executing a 17 years old was cruel and unusual.

I was hooked.

I have since listened to 10-12 cases including Kelo, the cases involving detainees in Cuba and SC, Grokster, Lessig on copyright, Barnett on medical marijuana and a few more. They are fascinating. I thought that they would be full of Latin and complex legal stuff but for the most part they are not. Even a layman like me can understand most of them.

For example, I was rabidly against the decision in Kelo (expropriation in New London) and still am. But now at least I understand the other side of the argument which I did not before. I can even see why it was decided the way it was.

I like the strict 30 minute per side format with each side having to give their best shot with no bloviating. I like the justices questioning each side and seeing what they are thinking. I've probably learned more about how the Supremes work than all the civics courses and books have taught me. It is so much more alive than just reading the transcripts.

The purpose of this note is twofold. First, to thank you for bringing this to my attention. Second, I think you should blog about it. There are probably others out there who might enjoy and profit from this.

If this question is too nosy please just ignore it. I have wondered whether you are a lawyer (in the sense of actually being admitted to the bar). I know that you are a law professor but does one need to be a lawyer to be a law professor? For example, I teach engineering but am not an engineer. I do not mean anything by the question, you certainly come across as knowlegable on the law. Just curiosity.
Great points. I think all sorts of people can benefit from listening to these arguments. People tend to react to the outcomes of cases, following their political preferences, and tend to assume that the Justices must just be voting politically. That's pretty much the way the press presents it. The arguments nicely demonstrate the legal dimension of the cases and can, as you say, make you appreciate the reasons that a case you don't like came out the way it did. And it is inspiring to hear a group of smart, intensely concentrating human beings discussing a difficult problem in such a precise and calm way.

To answer that question at the end: It's possible to be a law professor without going to law school, but I should think that any law professor that went to law school would have also taken the step of passing the bar, though perhaps not. In any case, I went to NYU School of Law and was admitted to the bar in New York, where I practiced law for two years (at Sullivan and Cromwell). I've been officially "retired from the practice of law" for many years.

ADDED: The reader is John R. Henry.

Karl Pilkington!

There's a little article about this hilarious man in today's NYT:
Karl Pilkington has debated the merits of eating a kangaroo's penis for breakfast, envisioned a wristwatch that counts down the time left in a person's life and proposed a new population control system in which elderly women give birth at the moment of their deaths. He has mused on topics ranging from caveman "bear pants" to dishwashers on Mars, and reported "news stories" about the triumphs of chimpanzees as bricklayers and television talk show hosts. In so doing, Mr. Pilkington, a 33-year-old unemployed radio producer from Manchester, England, has become the object of a global Internet cult, a Guinness world record-holder and the unlikely harbinger of a technological revolution.

Mr. Pilkington is the breakout star of "The Ricky Gervais Show," a podcast presided over by Mr. Gervais, the British comedian behind "The Office" and "Extras," and his co-writer and co-director, Stephen Merchant. In its brief, 12-episode run this winter, the program, available on the Web site of The Guardian (guardian.co.uk/rickygervais), has racked up nearly three million free downloads, the most ever for a podcast, according to the Guinness book. While these numbers reflect the international popularity of Mr. Gervais, the program's title is a bit misleading. The show is almost entirely devoted to the esoteric ramblings of Mr. Pilkington, whom Mr. Gervais has called both "the funniest man in Britain" and "that little bald-headed Manc idiot."
Of course, you've listened to these podcasts, haven't you? If not... you're so lucky! You have so much fun ahead of you. Gervais alone is great, but Gervais talking to Pilkington -- sublime!

I love the way the two are so completely dumb and smart at the same time. Like, in the 12th podcast, when they start talking about Wittgenstein's remark that if a lion could speak, we wouldn't be able to understand him. Gervais restates Wittgenstein's point so crisply that it's clear how smart Gervais is, and Pilkington starts down a thoroughly Pilkingtonesque line of thinking: it would depend on the lion, maybe you could understand a lion in the London zoo, better than a worm at least, what could a worm tell you, even if it is English, etc. It's so purely stupid, yet you'd have to be quite brilliant to be capable of saying it.

...

Somewhat related: I talk about that Wittgenstein quote, Koko the Gorilla, and Mardi Gras.

Business management lessons from the Larry Summers affair.

Patrick D. Healy writes:
If the board says it wants you to "shake things up" and "bring change," don't believe them....

Don't say you've changed or have high-powered surrogates say it for you....

Recognize the smartest person in the room rather than act like the smartest person in the room....

Troublesome friends may need to be sacrificed....

Don't give foes a martyr to rally around....
Details at the link.

Why do all those members of Congress agree to go on "The Colbert Report"...

... where they are subjected to all manner of foolery?
At a time when surveys show younger voters turning away from the mainstream media in favor of blogs and late-night television, politicians and their strategists recognize that "The Colbert Report" is a powerful way to reach a swath of Generation Y.
Yeah, it's because of blogs... (Or were you just trying to get me to link to this?)
"We really don't have a broadcast medium anymore; we have sort of a narrowcast," said Chaka Fattah, Democrat of Pennsylvania, another Colbert guest. "So you've got to look for opportunities."

Mr. Moran said 40 percent of his Northern Virginia district was composed of highly mobile, transient voters in their 20's and 30's. "They're very difficult to develop a relationship with," he said. "Now they see me on the Colbert show, they think at least he likes the same show we like."

Rich Galen, a Republican strategist, sees the youthful hand of hip Congressional aides at work. "The younger staffs of these folks are convincing their bosses that if you really want to be president of the United States some day, you've got to get in with the crowd on Comedy Central," he said.

Thus did David All, the 26-year-old press secretary to the 50-year-old Representative Kingston, persuade his boss, who is also the vice chairman of the House Republican Conference, to be Mr. Colbert's guinea pig, his first guest. Mr. All then sent an e-mail message to other House Republican aides urging their bosses to do the same, and arranged for a showing of Mr. Kingston's Colbert clip at a recent weekend Republican retreat.

"We're all about the new media," Mr. All said, adding, "It's good that Republicans can be humorous."

But so far only one other Republican representative, John L. Mica of Florida, has appeared, only to suffer as Mr. Colbert poked fun of his less than elegant hairpiece. Some Democrats say that the dearth of Republicans proves that Republicans have no sense of humor, while others say that no Republican in his right mind would agree to appear on such a blatantly liberal outlet....

Mr. Colbert's victims — er, guests — report that the interviews can last as long as two hours, all boiled down to a few minutes on air. Most, with the notable exception of Mr. Frank, said they would do it again. Mr. Moran said he thought Mr. Colbert "let me off kind of light," and Mr. Pascrell said that while the interview was "like going through water torture," he had "no complaints."
There's the real danger, that loss of control, as Colbert goes on and on, trying to produce something that will be really funny in the edit. It's the same with real reporters too, though. They talk and talk and talk to you, and then they use one sentence that might be entirely different from everything else you said. Later you read the paper, see the quote, and suspect that that's the thing they were hoping all along that you would say and that's what all the questions were designed to elicit. So you've got to keep your wits about you through the whole interview. But anyone who's going to be a member of Congress has got to know how to do that.

Should Republicans stay off the show because Colbert is obviously a liberal (playing the role of a conservative fool)? I think all the members of Congress are in danger of coming off badly. They key consideration shouldn't be whether a given representative is Democratic or Republican, but whether he's sharp enough to understand the situation and poised and good natured enough to let the humor flow around him.

It's not really a matter of who has the better sense of humor. The representative has to be a good straight man. Being good natured and relaxed is much more useful in this situation than being a good humorist yourself. Thus, Barney Frank seemed utterly humorless on the show, though, I think, when he has the floor, he can be pretty funny. But he did badly on the show, because he got pissed off.

"The split mirrors the rift among gay-rights advocates over the question of same-sex marriage."

What do anti-abortion advocates want right now, as they look to their next go-round in the Supreme Court?
Some, like Daniel McConchie of Americans United for Life, which did not take part in [South Dakota's effort to pass a law banning nearly all abortions], said they would have preferred to reduce abortions by continuing to press for restrictions like waiting periods, parental and spousal notification laws, and the prohibition of certain types of abortion — quieter measures that draw less attention and strike a less head-on blow to Roe.

"There is tension," Mr. McConchie said, between those who agree with him about abortion but not about strategy. "A lot of those people — what we tend to think of as the purists — in essence think that people who would push a more incremental approach are sellouts. I understand that type of zeal, but there is a severe penalty you can end up paying."

Those who pressed for the chance to overturn Roe said they had seen hints already that the new Supreme Court, with two recent appointments by President Bush, might be open to reconsidering Roe. One such hint, they said, came just last week, when the court announced it would review a challenge to a federal law prohibiting an abortion procedure, what these opponents call partial-birth abortion.

"It's the right thing," said Leslee Unruh, leader of the National Abstinence Clearinghouse. "It's like Martin Luther King's approach — it's never the wrong time to do what's right. South Dakota is in a unique position to do something for the 800 children aborted every year."

But these opponents are also counting on the retirement of Justice John Paul Stevens and the appointment by President Bush of another justice amenable to overturning Roe — all uncertain calculations, Mr. McConchie said. Think of what damage may be done, he said, if the court hears the case, but reaffirms Roe. And, should their forces devote money to this strategy, he asked, over all other efforts?
This problem is inherent in political activity that operates through the courts. Many different individuals and groups can move themselves into a position where they can file a case, which they then can structure and control. You may care about the issue that will be decided, but they will determine the strategies and arguments. It will be those who work most quickly, not those who gather the most political support, who have the most effect.

IN THE COMMENTS: Palladian writes:
By the way, does anyone else find the name "National Abstinence Clearinghouse" to be as absurd and hilarious as I do? I imagine getting a sweepstakes mailing from them with a picture of Pope Benedict on the envelope telling me that I may already be a sinner.

"Many do not realize that the schedule of the flaneur, it can be very demanding..."

"... what with the strolling of the boulevards, and the sipping of the Camparis and the cappuccinos, and the reading of the gossip rags."

Did you see that Manolo has a Normblog profile?

Saturday, February 25, 2006

"Next to the SEX PISTOLS rock and roll and that hall of fame is a piss stain."

The Sex Pistols decline to show up for their induction into the Rock and Roll Hall of Frame. "Were (sic) not your monkey and so what?" Entirely fitting. And shouldn't The Sex Pistols be entirely fitting?

Goodbye to Don Knotts.

Everyone loved the brilliant comic actor Don Knotts. He was 81.



As the bug-eyed deputy to Griffith, Knotts carried in his shirt pocket the one bullet he was allowed after shooting himself in the foot. The constant fumbling, a recurring sight gag, was typical of his self-deprecating humor.

Knotts, whose shy, soft-spoken manner was unlike his high-strung characters, once said he was most proud of the Fife character and doesn't mind being remembered that way.

His favorite episodes, he said, were "The Pickle Story," where Aunt Bea makes pickles no one can eat, and "Barney and the Choir," where no one can stop him from singing.

"I can't sing. It makes me sad that I can't sing or dance well enough to be in a musical, but I'm just not talented in that way," he lamented. "It's one of my weaknesses."
More here:
In Knotts' hands, Fife was a fully realized stooge, a hick-town Don Quixote who imagined himself braver, more sophisticated and more competent than he actually was. His utter lack of self-control led him into desperate jams that usually culminated with Fife at the end of his rope, bug-eyed and panting with anxiety. Sheriff Taylor allowed his deputy to carry just one bullet, which he was obliged to keep separate from his service revolver due to past trigger mishaps.

Asked how he developed his most famous character, Knotts replied in a 2000 interview: "Mainly, I thought of Barney as a kid. You can always look into the faces of kids and see what they're thinking, if they're happy or sad. That's what I tried to do with Barney. It's very identifiable."...

[T]he actor did not recall his childhood fondly.

"I felt like a loser," he recalled in a 1976 interview with the Los Angeles Times. "I was unhappy, I think, most of the time. We were terribly poor and I hated my size."
Thanks for making us happy, so many times!

UPDATE: The NYT runs a correction: it's "Aunt Bee, not Bea."

Upstairs and downstairs, at the Madison Borders.

I was just wandering around Borders today, sipping a large latte, glancing at the occasional book. I was certainly not looking to buy any books, because, in fact, I was taking a break from my house clearing project which, in the last few days, has been mostly about getting rid of books.

Upstairs, three perfectly vibrant young boys, aged perhaps 5 to 9, were sprawled out in the middle of the aisle next to the children's books section. They were completely excited about a book called "The Visual Dictionary of Special Military Forces," which was full of pictures of military weaponry:
"I want that gun."

"That's only for the military."

"Is that a machine gun?"

"It's a submachine gun."

"I love them!"
I've never seen kids in a bookstore reading a book so enthusiastically. Later, I saw the boys leaving with their father, and one of them was clutching a big illustrated "Star Wars" book.

Downstairs, there's a stooped, grizzled man at the information desk looking for books on American Communism. The clerk says the computer search system is "very literal," so unless those words are in the title of the book, it's going to be difficult.

Did you find everything you were looking for?

"Project Jay" -- what's really going on here?

I finally got around to watching "Project Jay," the reality show that follows around Jay McCarroll, the Season 1 winner of the reality show "Project Runway." I was surprised to see that he played a little role on "The Comeback," that fiction show about a reality show that follows around Valerie Cherish, the star of the fictional fiction show "I'm It." He played the designer whose red dress Valerie Cherish (Lisa Kudrow) accidentally wears backwards to the Emmys.

Well, so, how real is "Project Jay" anyway? We see him getting a call from "Project Runway's" Heidi Klum asking him to make her a red dress to wear to the Emmys, and this sets off a flurry of activity with him rushing around trying to complete an assigned task that isn't really what he wants to do -- just like on "Project Runway." The task takes him out to Los Angeles, where he seeks out Kara Saun (from Season 1) to help him and where Heidi inflicts extra surprises on him to create tension: he didn't have her correct measurements (and expresses on-camera amazement at the immensity of her breasts), so he must remake the dress (with some weird old guy sent in to do the actual work), and then she rejects it anyway (making him cry). I smell phony, phony, phony.

And how about the scene where he just happens to be shopping at Mood (the fabric store incessantly featured on "Project Runway") and -- ooh, look! -- there's Austin Scarlett! (Another Season 1 contestant, in case you don't know.) Austin just happens to have a fashion show soon! What a coincidence! Then Jay goes to Austin's show, and Wendy is there. (If you don't know why that's ridiculous.... just get the Season 1 DVDs and get up to speed, please.)

Okay, all of this is just too absurdly set up! And how about the beginning, where he's back in rural Pennsylvania living with his parents and whining about how isolated he is? But the cameras are there making a reality show about him! Are we supposed to be idiots, or is this a spoof of a reality show?

Well, maybe the tip off is "The Comeback." We're supposed to laugh and enjoy our inside knowledge of the phoniness of reality shows. It's deliberately over-the-top phony, right?

I found this interview with Jay, which kind of hints at the real situation. He has some sort of contractual dispute with the "Project Runway" people, where I think maybe they all hate each other but still want to use each other. He refused the two main prizes he won, and, in the interview, says he can't talk about it but "use your imagination." Apparently, they wanted to own too much of him. I'll bet the Season 2 contracts lock the contestants into the deal beforehand.
TIME OUT NEW YORK: Who do you think will win the new season?

JM: I would love Santino to win. He’s edgy and I’m sick of this one-trick-pony thing that the judges keep telling him. That’s his style. That’s why Calvin Klein makes f**king tunics and why Betsey Johnson makes f**king floral chiffons. Mixing shit up is what he does. He’s arrogant as f**k and people will put him in his place along the way but, once again, he’s covering up for his insecurity. Look at him! He is a gigantic weirdo, six foot five, voice like the devil, looks like Lurch. Would I want to see more of Chloe? Probably not. Would I want to see more of Daniel V.? Probably not.

TONY: Will it be weird for you when there’s another winner?

JM: Let it move on. I’m trying to distance myself from the show and to establish Jay McCarroll. Am I supposed to be more thankful for the process? I feel like I’ve given so much. You saw ten weeks of me. I showed you my family, my collection, my thought process, I cried, I laughed. And I didn’t receive a penny.
Some very hard feelings there. We also learn that "Project Jay" was originally an 8 episode series, but that it got edited down to that one hour we saw. Okay, so I no longer think it was some "Comeback"-like spoof of a reality show. I think it was a crazy manifestation of contractual hostilities and commercial exploitation.

Oh, the things that can entertain us these days!

"I didn't feel my inner peace, I didn't feel my aura."

The WaPo is giving out its own Olympic medals. Example:
Best Johnny Weir Quotes

Gold: "I never felt comfortable in this building. I didn't feel my inner peace, I didn't feel my aura. Inside I was black" (after finishing a disappointing fifth in men's figure skating).

Silver: "I could very likely wake up and feel horrible, like Nick Nolte's mug shot" (before skating his long program).

Bronze: "I dragged myself out of bed, had my Starbucks, put on my self-tanner and went from there" (after winning the national title last month).
Oh, and I love this one:
Things We Still Don't Understand

Gold: Curling rules.

Silver: New figure-skating scoring system.

Bronze: The Lenovo ThinkPad commercial.
Yeah, what's with that commercial? And, with all that time NBC spent on skating, they should have figured out a perfectly brilliant way to teach the new scoring system and make us care about it.

More about that Federalist Society conference.

Rick Garnett was also at the "Rehnquist Legacy" conference on Thursday. Here's his post about it over on Prawfsblog. My post is here. Sorry for not mentioning Rick in my post! His talk, a personal reflection from the perspective of a former law clerk, got compressed into my point #1. This compression should not be taken to mean that I didn't enjoy meeting Rick. (I did!)

Rick writes:
No one asked Justice Scalia -- after his address in which he re-affirmed his view that original-meaning textualism is the best approach to constitutional interpretation -- about Professor Randy Barnett's charge that the Justice is a "faint-hearted originalist."
Doesn't Scalia call himself a "faint-hearted originalist"? I don't have my notes from the time Scalia gave a speech at the University of Wisconsin Law School, but I think he owned up to the term. I'll check the notes later.

Anyway, I'm not surprised that no one asked Scalia a challenging question. The Federalist Society provides a well-cushioned cocoon for him. Yet he does just great when confronted with a questioner who really hotly opposes him. You should have heard him tangle with some of my colleagues. It was quite cool. I prefer an event with more friction!

I mean, I see the point of The Federalist Society. It's a very effective political organization that supports and encourages young conservatives in the law. I appreciate the way it emboldens conservative students to express their opinions in the classroom. (When I went to law school, the classroom discussion was boringly one-sided.) But, intellectually, originalism, unchallenged, is tiresome.

That doesn't mean it's wrong. Maybe judges should work hard and selflessly at a job made boring by intellectual abstemiousness. But if they are going to talk about it to a nicely nodding group, well, for me, it's a strange environment.

"Suppose people picked hotels based on how intelligent they expected the other guests to be."

They'd be acting like someone who chooses to go to Harvard as an undergraduate, writes John Tierney -- TimesSelect link -- in his column about Lawrence Summers:
In most industries, a company would cater to customers paying $41,000 per year, but Harvard has been able to take its undergraduates for granted. (It was a radical innovation when Summers called attention to surveys measuring students' dissatisfaction.) Harvard has long known that the best students will keep coming, not for its classes but simply for its reputation. Smart students want to go where the other smart students go.
Tierney puts his finger on the real complaint against Summers:
He dared to suggest that professors teach survey courses geared to undergraduates' needs — an onerous idea to academics accustomed to teaching whatever's in their latest book....

Senior professors can shunt off the more tedious jobs, like teaching freshmen or grading papers, to low-caste graduate students or visiting lecturers. Or they just neglect the jobs that don't appeal to them....

You might expect the Harvard history department to devote a course or two to the American Revolution or the Constitution, but those topics are too mundane. Instead, there's a course on the diaries of ordinary citizens during the Revolution, and another, "American Revolutions," that considers the American and Haitian Revolutions as "a continuous sequence of radical challenges to established authority."

Summers had some allies in his reform efforts, especially in the professional schools. The professors in the business, law and medical schools know their schools' reputations depend on properly training students for jobs in the outside world. The opposition to Summers was concentrated among the college professors who aren't accustomed to being judged by anyone except fellow academics.
Interesting. I had a reporter call me for comments the other day when Summers resigned. But I really hadn't followed the Summers story, other than the very conspicuous controversy over what he said last year about women and science. I never went to Harvard, so I'm normally content to let the old institution -- which the NYT can't stop talking about -- stew in its own juices. The reporter had to prod me with questions about how professors behave, how perhaps they disregard the interests of students and seek only to teach highly specialized courses focused on their own scholarly interests and narrow perspectives. I found myself saying, repeatedly, but I'm in the law school. You couldn't run a law school like that!

Friday, February 24, 2006

Religion, free speech, books, quotes.

Andrew Sullivan has some nice photos from a rally in D.C. in support of Denmark and free speech. I like the H.L. Mencken quote on one of the placards: "The most curious social convention is that religious opinions should be respected." Checking that quote on the web, I found this website. Ooh, Mencken said a lot of crusty things about religion.

That reminds me. I spent some time hanging around at Half Price Books today while they counted up the value of the 15 or so shopping bags full of books and CDs and tapes that I lugged in. ($209!) Mostly, I just read the NYT and did the crossword, but then I finished all that and took to wandering about picking up books almost at random and reading a sentence or two, forming opinions about the quality of writers as quickly as possible. (One sentence from Jay McInerney's "Model Behavior" made me decide he was excruciatingly awful.)

One of the books I picked up was the Bhagavad Gita. I opened it at random -- this would be a good opportunity for God to communicate with me if He were so inclined -- and I get diet advice:
Foods dear to those in the mode of goodness increase the duration of life, purify one's existence and give strength, health, happiness and satisfaction. Such foods are juicy, fatty, wholesome, and pleasing to the heart.
Wow! Just like Dr. Atkins.

Sorry, no profundities here. Just go about your business. Have a cheeseburger or a porkburger or whatever juicy, fatty thing pleases your heart.

Twins rights.

Schools often have the policy of breaking up twins (and triplets, etc.), putting them in different classrooms. The schools think separating them will do them good, encouraging independence, but the other way to look at it is that their special bond is such that the separation causes a special anxiety. If there is some good and some bad in keeping them together and in separating them, who should make the final call, schools or parents? Should there be legislation to the parents the right to make this decision?
Many of [the] parents cite new research that challenges old assumptions. When Heather Beauchamp, an associate professor of psychology at the State University of New York at Potsdam, reviewed literature on twins three years ago, she found that opinions regarding the advantages of separating them were based on perception rather than data, of which there has been very little.

Since her review, two studies — one in the Netherlands and another, a joint project of the Institute of Psychiatry at King's College in London and the University of Wisconsin, that compared 878 pairs of twins from ages 5 to 7 — found that twins separated early were observed to be more anxious and emotionally distressed than those who remained in the same class....

Nancy Segal, director of the Twins Studies Center at California State University, Fullerton, has been a proponent of this new research, writing letters on behalf of parents fighting for legislation on classroom choice.

"In our culture we appreciate uniqueness," Dr. Segal said, "and people wrongly equate twin closeness with a lack of individuality." The insistence on separating twins, she added, flies in the face of what psychologists know about friendship.

"There's research that suggests that when friends are in the same class, they're more exploratory, they cling to the teacher less," she said. "So if we're worried about individuality, why do we let best friends go to school together?"

Psychologists and educators on the other side of the debate maintain that multiples can present themselves as a de facto clique, upsetting the social dynamic of a classroom. It is not uncommon, for instance, for identical twins at a young age to speak in their own private language. It is also not unusual for one twin to act as an ambassador for the pair.

"What we find a lot with twins," said Sandra Bridges, principal of Public School 234 in Manhattan, which has 10 sets of twins, "is that one is generally more verbally dominant; one will do the talking for the other."

Some see the wish of mothers and fathers to keep twins together as an extension of the trend toward parental micromanagement. "They can, in essence, be trophy children," said Bonnie Maslin, a psychologist in Manhattan. "And parents of trophy children are unusually focused on outcomes and the belief that they can control them."

"A huge part of education is not just developing individual difference but learning to be part of a group," Dr. Maslin added.
Lots of conflicting interests here! More in the article too. Parents can ask for too much, and trumping the teachers' judgment with legislation may be overkill. Why don't schools just become more sensitive to the other side of the argument and listen to the parents' requests, consult with them, and then exercise enlightened discretion?

Arakawa... and that unitard!

Despite spending most of the day separated from my beloved internet, I stayed off all the news sites and even blogs and my own comments sections because I did not want to have the results of the women's skating competition ruined for me. But then I was so worn out from a long day, which included 3+ hours of driving and 5 hours in the immune enclave of The Federalist Society, that I kept nodding off during the skating and just wishing it would end already. Once I saw Sasha Cohen fall on her ass, I crashed and slept through the night. This morning, I watched Cohen and the rest on TiVo.

Congratulations to Shizuka Arakawa, who did what's gotten really hard to do under the new system of scoring: not fall on her ass.

When Sasha Cohen finished skating, one of the announcers said something like, "Other girls skate to 'Romeo and Juliet,' Sasha is Juliet." And a million people must have made wisecracks along the lines of: you remember the part in the play when Juliet falls on her ass.

The announcers say some of the most awkward things. For example, when Kimmie Meissner was skating, they started raving about how long her arms were and said, "Other skaters would give their eye teeth for those long arms." So I'm picturing young women with missing teeth and ultra-long arms. You don't want that!

But let's discuss the costumes! It was one thing for Irina Slutskaya to fall on her ass and not win -- or even equal the on-ass-falling Cohen, but quite another for the pantie end of her garish red and black skating dress to ride all the way up into the crack of her ass until it looked like a thong. And she still had to spin with one big leg clutched in the straight upright position and skate backward with the skirt fluttering up and the ass coming straight at us at high speed.

I praised Slutskaya for wearing a unitard for her short program, but, as we discussed in the comments, it was not a pretty enough unitard. The lower end of it flared out into mannish pantlegs, losing the leotard effect, and the top was too enclosed. A commenter apty compared the outfit to a wetsuit.

But last night, one of the skaters had an exemplary unitard. Sorry, I've forgotten her name, and I'd like to find a picture. It was black leotard with some nice red swirly, glittery decoration, with a lot of illusion fabric used to make it look very naked at the top and all down one side of the torso. This is the unitard that must lead us into the future of ladies' skating fashion!

ADDED: The photo of the unitard that will lead us:

Thursday, February 23, 2006

"American Idol" -- the results.

How they fill out a whole hour is a big TV mystery. They're eliminating two girls and two guys.

First, it's Becky who must go. Here's what I said about her performance:
I find her intolerably phony. But she's doing "Because the Night." That's something. Let's listen. Yikes! She's doing Patti Smith, cornball style. She's gesticulating in a way that says: you must find me sexy. Patti would never do that!
She's still pretty. They ask her to sing her (losing!) song again, and she takes the mike and does a damned pageant speech about the opportunity "American Idol" has provided... blah blah. She sings. I block it out. Who cares? She lost! She was bad! She's still young and pretty. You'd be an idiot to feel sorry for Becky. Extra question: what's with wearing jeans under a knee-length dress?

Now, cut a guy. I'm hoping it's someone other than Bobby, just to make things interesting. But it is Bobby. And it should be. He talks a lot, all about how cool it was for him to make it to the final 24.

Now, they cut Stevie Scott, who really was weak last night. I like her, but, what the hell? She was never going to win.

And, now, they cut Patrick! Oh, he wasn't bad. That hurts a little. But let this be a warning: quit singing "Come to My Window."

Afraid?

Are you like me: afraid to click on anything, lest you read who won in women's skating? I guess this is your big chance to muck up the comments, because I'm afraid to look. Won't some mean bastard reveal the outcome? So you might as well go in there and denounce me about all manner of things. Because I'm not looking at anything until it's over!

At the Rehnquist conference.

I'm back from Milwaukee. I got there on time, despite some bad traffic and the fact that the ramp listed on my Mapquest instructions was closed and I didn't have street map in the car. Travel tip: don't do that.

Here are some notes on the Federalist Society-sponsored conference, "The Legacy of the Rehnquist Court."

1. There was plenty of talk about what a smart person, what a good person, what an interesting person, what a tennis-playing person, what a family-loving person, what a geography-loving person, what a time-limit-enforcing person, etc., etc., Chief Justice Rehnquist was. He exercised "remarkable command over the courtroom," per Solicitor General Paul Clement.

2. Solicitors General pretty much have to speak well of the Court, don't they? I love being a law professor.

3. Rehnquist "never lost his characteristics as a Wisconsinite." (Clement again.) Evidence: He liked the Badgers, he kept the courtroom open even when it snowed, and he rigidly enforced the time limits on oral argument.

4. If you want to read the key Rehnquist opinion of all time -- according to former Solicitor General Walter Dellinger -- it's the dissent in Fry.

5. According to former Solicitor General Theodore Olson, "the best opinion of the modern era" is Justice Scalia's dissenting opinion in Morrison v. Olson, and he wasn't just saying that because he was a party and only Scalia sided with him.

6. Dellinger recounts that a few days after the 9/11 attacks he was asked how it would change the way the Court would balance security and liberty, and he said the Court would tilt the balance more toward liberty security [what a slip!!], but it would nevertheless retain the judicial role in saying where the balance was.

7. Lawprof John O. McGinnis said the most important federalism case of the Rehnquist era was the school vouchers case.

8. I didn't take many notes while I was on the dais. Sorry! C-Span recorded the panels though, so maybe you can watch it sometime.

9. When Justice Scalia rose to give his speech after lunch, he got an instant and long standing ovation. He got another standing ovation when he finished. (By the way, a lot of free lunches were served!)

10. Scalia honored his "former leader" for achieving three important things: producing majority opinions (fewer than 10% of the cases lack a majority opinion), preserving the public's esteem for the Court (I'm impressed!), and seeing that all the Justices remained friends with each other (during the entire period, every Justice was always friends with every other Justice).

11. Per Scalia, we shouldn't refer to the eras of the Court by the names of the Chief Justices. It would be better to use the names of the Presidents, but then he wondered if John Roberts would be pleased to have the current Court called the Bush Court. I try to hear if he's really saying that he's sad that there's no Scalia Court.

12. Scalia sets out to refute the accusation that the Court is a "conservative activist" court. He says that if you calculate the average annual number of statutes invalidated by the Warren, Burger, and Rehnquist Courts, you'd find the numbers are, respectively, 1.44, 1.76, and 2.16; but that the Rehnquist Court was much less likely to strike down state laws. He says that state law is a more important reflection of democratic will than federal law. But that sounds conservative to me, for two reasons: 1. the preference for state law, and 2. the likelihood that many of these were cases where the Court decided against constitutional rights claims.

13. His best argument was that what really makes the Court look activist is that Congress is activist. He marvels at Congress's "sheer inventiveness" in thinking up new ways to test the limits of its power: it's "a legislative Thomas Edison." Cases that reveal this: Plaut, Boerne, Printz. He says that any Court would have to respond to these affronts to constitutional law.

13. A better test of activism is how often the Court overrules a case, he says, because it's here that the Court is never forced to act. And the Burger and Warren Courts overruled cases about twice as often as the Rehnquist Court.

14. Accusations of activism, he says, are a "thinly veiled" way of saying you don't like the outcome.

15. He thinks the notion that the Constitution's meaning evolves doesn't work because it's too undefinable -- unlike originalism, which is neutral, he says (in what I judge to be his least believable assertion). He likes that originalism is catching on across the whole spectrum of the Court and says: "Bad originalism is better than no originalism at all."

16. He gets stuck trying to remember the name of that Commerce Clause case last term or even what it was about. The audience cues him: Raich, medical marijuana. Strange to forget that.

17. He mispronounces the word "desuetude." He mispronounces it the same way I did for a long time: de-SUE-i-tude. It's a lawyerish thing -- isn't it? -- to fixate on "sue."

18. Thanks to the Federalist Society (and the Bradley Foundation) for hosting a nice event.

Conference..

Today is the Federalist Society conference, "The Legacy of the Rehnquist Court." I'm on the second panel, but I certainly don't want to miss the Solicitors General roundtable on the structural Constitution, which starts at 9. It's a bit of a drive to Milwaukee, so blogging will be light for now. Whether I'll have a chance to blog from the conference, I'm not sure. But I'll take notes and have something to say about it all at some point.

Wednesday, February 22, 2006

"Why the cutthroat thing?

Says Daniel Franco to Santino on the "Project Runway" reunion show. Santino: "It's just straight shit talking. There's a part of this competition that's like a basketball game. It's like: you suck... It didn't come from an evil place... I doesn't matter." Did Santino justify himself enough? Did he verbosely excuse enough bad behavior?

Anyway, great show. I mean, it was a relaxing interlude in the competition, but it was nice. I especially liked the montage of Andrae's expressiveness. And of all the singing, especially about Daniel -- he's straight! -- Franco, with the suggestion that he'll come back again for Season 3. Yeah, he should! We never quite get enough of DF.

"American Idol" -- the guys!

Oh, yeah, I am here, ready to blog the guys. Sorry, I had to talk on the telephone. Now, to the TiVo.

Patrick Hall. "Come to My Window." Relaxed and elegant, I think. But Randy accuses him of being nervous, and he concedes it. Paula says something incoherent. Then we see a shot of a man and a woman in the audience. I assume these are his parents. But, oh my lord, the woman has the largest artificially inflated lips I have ever seen! I rewind and pause. I'm looking at them now. I'm shocked and appalled.... and yet, I cannot look away!

David Radford. He's trying to be Frank Sinatra. And he's 17. "A Crazy Little Thing Called Love." He's a kid, acting the role of an adult. Is there something wrong with that? It's a crazy little thing. But I'm sympathetic. Is there some other way to become a man? Randy thinks it's phony and terrible: "This is like some kind of act." Paula feels the womanly feeling. We like him! Simon sees it as "a bit of a joke," but he thinks "the audience at home" -- my translation: women! -- will like him.

Woozy and southern, it's Bucky Covington. We here in Wisconsin kinda like your first name. Ooh! He's the new Bo! He sings Skynyrd. But it's so cheesy and gutteral. I don't see how a guy can do this out in the bright lights, without a band all around him. Randy: "Cool." Paula: "You're growing. It's like a whole journey for you." Simon: "I like the fact that you're just very raw... Having said that..." Ryan: "This is a real guy right here."

Will Makar. He's 16. I love this boy. Don't hurt him! He's singing a Jackson 5 song, "I Want You Back." Great song! Very karaoke. You feel the intense voice of Michael Jackson that is missing here. Randy: "I was like, yeah, all right." Paula: "You remind me of Bobby Brady. It was Bobby Brady." Simon: "Okay. The reality check.... Unfortunately, vocally, it was completely and utterly average."

Can we accept a bald contestant? It's Sway (Jose Penala). He's singing the Earth, Wind and Fire song that his parents fell in love to. We see his parents grooving. It's all falsetto, horrifyingly so, then mellow, and I almost want to like him. Randy: "Dude!" Paula: "Amazing!" They like the falsetto. Simon: "We're really on a different page tonight. I thought it was a really pimpy..." Paula screams.

Chris Daughtrey. He's bald too. They use the fire background for him, which is always bad luck. "Wanted, Dead or Alive." He belts it with a nice raspiness. Paula gives him a standing O. Randy: "Great recording voice." Paula: "I've been wowed by you from day one." Simon: "Now, I'm hearing somebody with potential." Ryan: "Simon's starting to go to the happy place."

Kevin Corvais. He's 16. And nerdy. Really, really nerdy. Maybe this is what Karl Maulden looked like when he was a boy. Singing, he looks 5. We see his mother. I know exactly how she feels: an intense, deep joy. "I guess I'm down to my last cry." Randy: "You're such an honest, real kid." Paula: "You know how I feel about you: squish." His response: a Gomer smile and a readjustment of his glasses. Simon: "I apologize America. Kevin, I like you, but..."

Gedeon McKinney. He announces the song, "Shout," in a weirdly theatrical way. "Come on now. Don't forget to say you will." Hey, he's great, with great pop feeling. "You've been good, better than I've been to myself." The way he sings that, I interpret the lyric in a way that I never did before. Randy: "Good.... I was absolutely entertained." Paula: "I totally was thrown for a loop." Simon: "It was as if I was watching the warm-up for the Chippendales."

Elliot Yamin. I'm sorry. Beard without a mustache? No, no, no, no, no. Is that belt buckle an audio cassette? He admits he's karaoke, doing the Stevie Wonder song that the karaoke kids back home request. But he's clean and good. Still, he's the least attractive of the guys. And that's including Kevin! Randy: "Another hot one." Paula: "Effortless. You just have fun." Simon: "Potentially, you are the best male voalist we've ever had."

Bobby Bennett. He's singing "Copa Cabana." No, it's not possible. No. Look away!

Ace Young. He's singing "Father Figure." He likes George Michael. Apparently, this man sees something sacred in my eyes! I will be your father figure ≈ I will be your Constantine. Randy: "Star. And can sing." Paula: "All of the girls, and a lot of my guy friends too..." Simon: "Really, really good."

And for last, they've saved Taylor Hicks. He's singing "Levon." Beautiful! "He calls his child Jesus, because he likes the name." Paula: "Everything just exudes from you." Paula's all passionate, professing her love. Randy chimes in: "There's never been anyone on the show in five years like you." Simon: "I said in the beginning.. that I didn't think you should make the finals. I was wrong." Can I go back to the lyrics? "Alvin Tostig has a son today." What's with that name? Tostig? My grandmother's maiden name was Tausig, so I always heard Tausig. But Tausig/Tostig -- it's such a specific name, in a song where Jesus is highlighted as a good name. What's with that? I've been wondering for decades!

But back to generalities: The guys!

Mutual mosque destruction.

After the bombing of the Golden Mosque in Samarra:
Shiite militia members flooded the streets of Baghdad, firing rocket-propelled grenades and machine guns at Sunni mosques as Iraqi Army soldiers — called out to stop the violence — stood helpless nearby. By the day's end, mobs had struck 27 Sunni mosques in the capital, killing three imams and kidnapping a fourth, Interior Ministry officials said.

In the southern Shiite city of Basra, Shiite militia members destroyed at least two Sunni mosques, killing an imam, and launched an attack on the headquarters of Iraq's best-known Sunni Arab political party. In Samarra, thousands of people crowded the courtyard of the Golden Mosque, some weeping and kissing the stones, others angrily chanting "Our blood and souls we sacrifice for you imams!"

The violence of one religious sect against another: is there a lower manifestation of the human mind?

Photo.

By Christopher Althouse Cohen:

Russ and Richard

"When it's a pool day, we ask people to put in five bucks. So if you wasn't there, or you didn't put five bucks in, sorry."

The 8 meat packing workers who pooled their money for a lottery ticket won $365 million.
At least three of the winners Wednesday are immigrants.

Quang Dao, 56, who like Dung Tran, 34, came to the U.S. from Vietnam about 16 years ago, said he was looking for freedom when he headed for America.

"After I hit the lottery, it also changed my family's life in Vietnam," he said.

Alain Maboussou, a 26-year-old who fled his war-torn homeland in Central Africa, said he planned to earn a degree in accounting now.

"It's too early for me to retire, but I did four days ago. I'm going to be working for myself now," Maboussou said. He said of his three-month-old daughter, Katherine, "she's going to be happy for the rest of her life."
Nice! And be careful!

A powerful implicit argument against the death penalty.

A judge orders anesthesia for an execution by lethal injection, but anesthesiologists decline to participate.
[The judge] then said officials could go forward later in the day with a lethal dose of the sedative alone — administered by a licensed medical professional stationed within the execution chamber rather than by the usual "unseen hand" delivering the fatal drugs from another room.

But just two hours before the new, 7:30 p.m. time for the execution, a deputy attorney general told court officials that it had been called off.

San Quentin spokesman Crittendon said the state "was not able to find any medical professionals willing to inject medication intravenously, ending the life of a human being."
The doctors' behavior makes a powerful implicit argument against the death penalty.

Slutskaya wore pants!



And Sasha Cohen?



As they say on "Project Runway,"
"too much tootie." Quit aiming that thing at me.

Seriously, I love the Slutskaya unitard approach. It creates an unbroken line and feels coherent with the winter setting, unlike naked-looking legs. And with those flesh-tone tights, you've always got that contrasting strip of fabric across the crotch -- like a sanitary napkin! And it is repeatedly displayed, and we can't help staring at it! Why is that not considered grossly vulgar? The unbroken black line of the great Irina Slutskaya speaks of grace and taste.

How will blogging affect legal scholarship?

For the better! That's what I've been saying. Here's an article in the Wall Street Journal on the subject:
[A]ccording to Daniel Solove of the George Washington University Law School, professors shoulder much of the blame for the plodding prose of many law review articles. "We academics," he recently blogged, "like to dress up our ideas to make them sound more elaborate, complex, and obtuse." When it comes to article length, tenure committees often don't help matters, says a junior professor at a law school in California. "It's a self-perpetuating process," he explains. "Senior faculty had to produce massive articles in their own bids for tenure, so now we're expected to do the same thing."
Yeah, I wrote a law review article saying this -- "Who's to Blame for Law Reviews?" That was over 10 years ago. I really thought we could switch over to a livelier essay form, but somehow that didn't happen. The damned things just got more bloated. Law reviews let lawprofs get away with writing what are (essentially) unpublishable books. Law reviews are our own vast vanity press!
The focus of much current scholarship -- theoretical work with no real application for judges, practitioners, or policymakers -- has reduced the audience for it outside the legal academy.
Even in the academy, lawprofs rarely read these things, unless they're trying to help out a colleague. And even then, I think they skim.

But I think blogging is a powerful force that can change things, certainly more that my old, heartfelt essay. We blogging lawprofs have a demonstrable readership, and we interact with each other and with the mainstream press about legal issues. This is all in plain view. That has to provide some motivation to the lawrevs to adapt.
Twenty years ago, little outside of the occasional book or magazine article deflected attention from law reviews. Today, legal blogs are siphoning away the attention of law professors and lawyers on issues of the day. Blogs such as The Volokh Conspiracy, Opinio Juris, and SCOTUSBlog attract tens of thousands of readers and feature informed discussion on everything from constitutional theory to law-related television shows. Blogs now occupy so many professors, in fact, that at the American Association of Law Schools annual conference, a panel was held to debate the influence of blogs in the legal academic community.
Oh my! Imagine something so important that there was a panel on it at the AALS meeting! The mind boggles!

The Court will consider the "partial-birth" abortion law.

Yesterday, the Supreme Court agreed to hear the case about the federal Partial-Birth Abortion Ban Act, which makes it a crime to kill when the "entire fetal head" or "any part of the fetal trunk past the navel" is outside of the womb, except when the woman's life is at risk. There is no exception made where the procedure is needed to preserve the woman's health, but Congress made findings that "partial-birth abortion is never medically indicated to preserve the health of the mother" and that "there is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures."

The doctors challenging the law disagree with that second finding and say that the alternative method involves breaking up the fetus inside the woman, creating bone fragments that can puncture the uterus. That is, Congress is forcing some women, who need a late-term abortion to preserve their health, to destroy the fetus with a method that is at least as brutal to the fetus and more harmful to the woman.
Ever since Roe v. Wade and its companion case, Doe v. Bolton, in 1973, the court has required exceptions for health as well as life in any regulation of abortion. But the vote in the [Court's earlier "partial-birth" abortion] case, Stenberg v. Carhart, was 5 to 4, with Justice Sandra Day O'Connor in the majority. It is highly likely, therefore, that her successor, Justice Alito, will be in the position to cast the deciding vote. The dissenters in the Nebraska case were Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy, along with Chief Justice William H. Rehnquist, who has since been replaced by Chief Justice John G. Roberts Jr.

After the court's announcement, groups on both sides of the abortion debate tried to attach some significance to the decision to accept the case. In fact, it would have been highly unusual for the court to turn down the appeal. A lower court's invalidation of a federal statute has an almost automatic claim on the justices' attention, even those justices who may view the decision as correct or those who may not necessarily agree in this instance with the administration's description of the case as "extraordinarily important."
The difference between this case and Carhart, other than the change in the Court's personnel and the fact that this is a federal, not a state law, is that Congress made those findings. In that light, this becomes a case about how much the Court ought to defer to a legislature when it acts in an area of individual constitutional rights and makes assertions about facts in order to define away those rights. I do not think that is territory the Court should cede to the legislative branch. It is the Court's duty to say what rights are, and if rights are to be rights, a legislature seeking to work its will should not also have the power to structure the factual setting to make it look as though rights it wants to preclude do not exist.

Meanwhile, the South Dakota legislature is about to ban all abortions unless the woman's life is in danger:
"I'm convinced that the timing is right for this," said State Representative Roger Hunt, a Republican who has sponsored the bill, noting the appointments of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. to the court.

"The strong possibility of a third appointee sometime soon makes this all very real and very viable," Mr. Hunt added, a reference to conjecture that Justice John Paul Stevens, 85, might soon retire. "I think it will all culminate at the right time."

Dome.



Done.

Tuesday, February 21, 2006

"American Idol" -- the first 12 ladies.

Now we can finally vote, and we see the females, two of whom will be eliminated this week.

Mandisa sings Heart's "Never." I thought it was tasteless and ugly, but Randy and Paula rave. Simon? Oh, he's raving too. What nonsense! They are lavishing praise on her, it seems, to suck up to all the many plus size "American Idol" fans.

Kellie Pickler: "I don't really have a love life." But she's going to do this song -- "How Far," a sexual song -- for her dad. Kind of icky. But we're reminded again that her dad is in prison, and she is a woman of sorrow. It's atrocious, and she's doing that "American Idol" pose I so detest, planting her feet wide apart and doing shallow knee bends. It's so crotchy -- but sexless! They tell her she has the likeability factor. "You're a nice girl," Simon says.

Becky O'Donohue, she's the girl with the miming twin. I detest her. Much as I feel for her muted twin, I find her intolerably phony. But she's doing "Because the Night." That's something. Let's listen. Yikes! She's doing Patti Smith, cornball style. She's gesticulating in a way that says: you must find me sexy. Patti would never do that! I'm horribly nauseated! Simon: "Visually, you are a 10, but..."

Ayla Brown, the beautiful basketballer. She motivates herself by thinking about how Simon called her "robotic" and "empty." She's singing some cheesy song in a horribly cheesy style. Oh, it's something like "Reflection." It's harsh and abominable. She puts that pop-groan into it, but I'm not embarrassed for her, because she's so pretty and so tall. When she's done, she says, "I just feel so complete," as if she'd just had sex with herself. Appalling! But will the judges complain? Again with the praise. Is there no relenting? Simon calls her a "hard worker" with "a limit." But he credits her with "some emotion." Disgusting overpraise!

Paris Bennett: she's one of the very best from the auditions, and she's going to sing "Midnight Train to Georgia." Great! But the song seems to be in the wrong key, and the singing is so unmusical compared to the audition. Judges? Randy: "Whoa!" Paula: "You're my idol!" Simon: "It's a performance everyone's going to remember."

Stevie Scott, a special favorite of mine. She's the one who's studied opera. And quite aside from that, I'm getting a nice "Joan of Arcadia" vibe from her. She's singing an opera song, "From Where You Are." Ooh! She does the Kelly Clarkson stomach grab! She's breathy and sweet. Randy: "Dude, I found myself daydreaming." Paula: "Very intimate." Simon: "You completely and utterly messed that up... It was like being at some Sunday lunch and some child gets up to sing." Whoops! Afterwards, she apologies and indicates she can do what they want. Crash! And now she's desperately acting sexy with Ryan. Noooooooo!

Brenna Gethers, the biggest ham. Ooh, she's squirming her body up against Ryan Seacrest! You don't want to see that. Aw, but she's singing "You Are the Sunshine of My Life." She has five different voices, and she specializes in sticking out her ass and slapping it. Simon: "That was horrible, completely and utterly..." The problem is the safe song, when she's supposed to be a wild cat.

Heather Cox is singing some damned "American Idol" song. Apparently, she wants to pull the stars down from the sky. Despite her lovely chest, she's horribly unmusical and off-key. Please, make her go away. Randy only calls her boring. Paula says it's not great. Simon only calls it "forgettable," but then redeems himself with an honest word: "horrible."

Melissa McGhee. She's weak and dull. "When the Lights Go Down." This is so ugly that I have to ignore it. Somehow, Paula thinks it was a "shining moment."

Lisa Tucker. She's adorably 16. I love her. The audience is screaming. She sings in a beautifully mature style -- "I'm changing" -- that makes all the other girls seem lightweight and ordinary. Lisa!

Kinnik Sky. "Get Here," a song I associate with Justin Guarini. She has a heavy, overbearing voice. Paula: "Sharp notes? A few. So what!" Simon sneers, "Very cabaret."

Only one more. They usually save the best one for last, and it's the one I remember as the best from the auditions:

Katharine McPhee! She sings "Since I Fell For You," which she imagines was originally sung by Barbra Streisand. "I get the blues most every night." Randy: "Wow, wow." Paula: "Fantastic. I think you're going to go all the way." Simon: "There were four very, very good vocalists tonight, and you were the best."

Just[ices] say yes to hallucinogenic tea.

The Supreme Court is back from a long break today, with Samuel Alito on the bench for the first time. There's a new opinion, in the hallucinogenic tea case:
Justices, in their first religious freedom decision under Chief Justice John Roberts, moved decisively to keep the government out of a church's religious practice. Federal drug agents should have been barred from confiscating the hoasca tea of the Brazil-based church, Roberts wrote in the decision.

The tea, which contains an illegal drug known as DMT, is considered sacred to members of O Centro Espirita Beneficiente Uniao do Vegetal, which has a blend of Christian beliefs and South American traditions. Members believe they can understand God only by drinking the tea, which is consumed twice a month at four-hour ceremonies.

I'll read the case and have more later. Here is my earlier post on the oral argument in the case:
A religious group wants to use a drug -- hoasca -- and argues that the Religious Freedom Restoration Act entitles it to an exemption from the Controlled Sustances Act. Under RFRA, the federal government must have a compelling state interest to impose a substantial burden on the free exercise of religion. The government claims an interest in preventing the drug from being diverted into other uses:
"Your approach is totally categorical,'' Roberts told government lawyer Edwin Kneedler during a one-hour argument session in Washington. If a religious group used only one drop of the drug a year, : "your position would still be the same,'' Roberts said....

Justice Antonin Scalia, who wrote the 1990 decision, pointed to an exception Congress made for peyote in American Indian religious ceremonies.

"It's a demonstration you can make exceptions without the sky falling,'' Scalia said.

Justice John Paul Stevens followed up by asking whether the use of peyote indicated that "maybe it's not all that compelling.''

Of the nine justices, Anthony Kennedy offered the strongest support for the government's position.

"It seems to me at the very least there should be a presumption that there is a compelling interest,'' Kennedy told Nancy Hollander, the church's lawyer....

Several justices, including Scalia and Roberts, questioned Hollander's contention that hoasca is exempted under the 1971 United Nations Convention on Psychotropic Substances, which aims to bar trade in illicit drugs. The U.S. is among more than 160 signatories to that treaty.

Both Scalia and Roberts, however, said Congress has the authority to override a treaty through domestic law.

"Isn't it well established that statutes trump treaties?'' Scalia asked.
Interesting! I suppose people will compare this to last term's medical marijuana case, Raich, in which the Court (including Scalia) was quite deferential to the claim that the government needs to be able to pervasively regulate a drug. But Raich was about the scope of Congress's power as against the power of the states. Today's case is about two different federal statutes, one coming after the other and capable of limiting it. The question isn't how much constitutional power Congress has, but what Congress actually did in its two statutes. If it didn't want to cut special exemptions to religious groups, it shouldn't have passed the Religious Freedom Restoration Act. If it didn't want RFRA to apply to drugs, it could have written an exception into it. But in fact, RFRA was enacted in response to a Supreme Court case that was about the failure to give special treatment to the religious use of a drug, so it's especially apt that it should apply here.
Today's opinion is unanimous (with, Alito, of course, not participating). It's written by the new Chief Justice, so I'm especially interested in reading it. I so devoutly hope to find his opinions sublimely crisp.

UPDATE: I’ve read the case, which is called Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal. The government said it has a compelling interest in the uniform application of the federal law, but Roberts slapped that down:
The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.” Congress determined that the legislated test “is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”…

We do not doubt that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA. But it would have been surprising to find that this was such a case, given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance.
There was also an argument that the government has a compelling interest in complying with the international Convention on Psychotropic Substances, which, the Court held, did in fact cover hoasca. But the government failed to present any evidence of what detriment would occur if this small group were given an exemption.

The Court tweaks the government for relying so heavily on interests represented by the Controlled Substances Act:
Congress had a reason for enacting RFRA, too. Congress recognized that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,” and legislated the compelling interest test as the means for the courts to “strik[e] sensible balances between religious liberty and competing prior governmental interests.”

We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.
I must say that I find this case quite amusing! Congress catered to religious interest groups by passing RFRA and thereby disagreeing with the way the Smith Court had read exemptions out of the Constitution's Free Exercise Clause. The Court had tried to constrain the judicial role, but Congress then forced that role on the courts with a statute. And now the Court is taking the statute seriously. They are deferring to Congress by accepting the old activist role of making case-by-case accommodations. How deliciously ironic.