"We finally killed him"

The blogging pace has been glacial because I have been mad busy. I did note, however, that you may now buy a coffin or urn for your cremains with the logo of your favorite major league baseball team. The memorial plaque recognizes the reposited as a life long fan of the team.

I can think of a more appropriate memorial statement for Brewers and Cubs fans.

It's not about the benefits

In the comments to some of my recent posts on the marriage amendment, a reader says that no one on the "yes" side ever answers the question of what rights gay couples should have. He or she throws out the following:

1. Health insurance for partner and/or children

2. Ability to take family medical leave if partner and/or child is sick or dying

3. Adoption

4. Ability to take funeral leave if partner or child dies

5. Right to receive medical records of partner (careful here, HCPOA does not allow this)

6. Right to view educational rrecords of child (assuming not the bio child)

7. Default position of medical decision-making (Rick, do you carry weith you at all times a HCPOA for your wife?)

8. Right to be considered "family" in Intensive Care Unit or other emergent health situations.

Here's my answer: If it's not done by creating something like marriage, all of them. Today, two people can accomplish much of this by simple agreement. If the law were changed to allow two people to "co-adopt" a child, that wouldn't make those two people "substantially married." If an employer decides to allow you to designate a co-beneficiary for your health insurance, that doesn't marry you either.

This is not about denying people benefits. It's about creating a thing - a legal relationship or status - that is substantially like marriage. The reason I oppose that is because I think it will inevitably contribute to a changed social understanding of what marriage is about, i.e., that it is merely about facilitating a sexual relationship that is chosen and defined by the parties. Marriage is what it is in our culture because it is an accommodation of the often differing interests of men and women in heterosexual relationships. Maybe you can change the definition of marriage and retain that meaning, but I think that the odds are against it. Maybe the left is right and gender is a social construct such that most (as opposed to some) relationships between two men or two women are just like a relationship between a man and women and would therefore be served by precisely the same rules and social norms and that mothers and fathers are interchangeable as long as they are loving and responsible. But that sounds implausible to me.

Because marriage is such a vital institution, I don't want to take the risk. If there is a social need to create legal avenues for same sex couples to make certain agreements or have access to certain benefits, then we should provide the right for two people to make those agreements or share those benefits. But what we shouldn't do that by creating a status that is almost like marriage.

That's my view and I cannot say that it is the view of the big bad Alliance Defense Fund. If it's not, then we just disagree. But since Fair Wisconsin seems to think that I - and supporters of the amendment - can't possibly have a view that differs from ADF, let me at least say what I understand that organization's view to be. It is my understanding that the Alliance Defense Fund essentially agrees with me. Not only have I been told by very senior people within that organization that "we don't care about benefits," they also seem to act that way in public.

For example, as opponents of the amendment have pointed out, they did sue to prevent Salt Lake City from extending domestic partner benefits. But, I am told, also took the position that the city could simply permit employees to designate a co-beneficiary (which it ultimately did.)They have publicly supported reciprocal benefits legislation. What they oppose is extension of benefits by the creation of a status. While I think that there is more room to proceed by using the concept of a domestic partner and I may have a different legal opinion on what the second sentence prohibits (in which case, of course, I would be right), it seems that, even for ADF, it's not about benefits.

I understand that many of the people associated with the Alliance Defense Fund are conservative Christians who believe that homosexual intimacy is wrong. I am, in many respects, a conservative Christian, but I am not convicted of that belief. I do not believe that the traditional Jewish, Christian and Islamic view is "bigoted" or "hateful." I think that Roman Catholic thought on the role of complementarity in human sexuality, in particular, deserves careful attention.

But, candidly, I just do not feel called to pass judgment. While I think that the notion that same sex intimacy is "just the same" as heterosexual intimacy is far too simple, I will not call gays and lesbians sinners. That other people have a different view on this than I do may lead them to take positions on some issues that are different than the ones that I would take. Just like those on the left, we who lean to the right are not monolithic.

But believing that the law ought to permit people to enter into intimate homosexual relationships, doesn't mean that the law should treat same sex couple the same way as it treats heterosexual couples. It does not mean that the desire or need for a very small group of people for certain legal arrangements should trump the social need to define and structure marriage in a certain way. Those needs and desires can be addressed in other ways.

I am not now nor have I ever been a member of ....

Apparently the guys at Fair Wisconsin are all over me because I take referrals from the Alliance Defense Fund and blog at their website (although I have been so busy lately that I have only done it once). Jay Bullock, who says nice things about me (things I would also - and have - said about him), issues the following challenge:

I think it is incumbent upon Rick to explain why ADF's history of pursuing cases based on the kind of weasel language our proposed amendment contains shouldn't make us wary of a "yes" vote.

Fair Wisconsin goes further saying "If our ban passes, is Esenberg saying that ADF won't sue here? Or that he won't take part in such a suit? Somehow, I doubt it."

Let me review the bidding. First, I do not work for ADF and I will not take upon myself the burden of agreeing with every position taken by every client they represent if for no other reason that I am not aware of them. What I do with ADF is consider referrals from them of pro bono work. I was asked to blog on a law blog they have created. This does not mean that I become involved in everything they do or that they consult with me on anything they do. I think ADF is a fine organization that provides excellent legal representation to religious conservatives (on lots of issues that have nothing to do with gays and lesbians), but Rick is not ADF and ADF is not Rick.

The thing about legal organizations - whether they are private firms or public interest firms - is that what the positions they take will be driven by the needs of their clients and will never be just what the lawyers might say if they spoke only for themselves. When I blog or write or appear at forums, I'm speaking for myself. It is highly unlikely that the array of positions I take will be perfectly consistent with those taken by anyone but myself.

As to what position ADF will take on domestic partner benefits, I don't know. I think the question is too imprecise to even hazard a guess. I do know that they have taken the position that reciprocal benefit schemes are OK. What they are hinky about (and, I think, rightly so) is in creating statuses that are "marriage lite." They don't mind people sharing benefits (as long as its not part of a status like marriage) or entering into agreements under which they may assume certain obligations toward another.

My opinion, after thinking a lot since I first blogged about it in March, is that the amendment would not prohibit an employer from saying that you can designate another person to share your health insurance. I can't tell you whether people employed by ADF would agree. They are smart guys and girls and form their own opinions.

But here's a question for all those people who say that an amendment is not necessary. Are they saying that the ACLU, or any one of a number of legal organizations that amendment opponents work with, won't sue claiming that same-sex marriage is compelled by the state or federal constitution?

Thoughts on the Jacoby incident

This story by Spivak & Bice, if true, is disgraceful. Essentially, a guy named Bob Jacoby is being pursued by someone who has threatened to kill him. Jacoby has called 911, but sees a police car and flags it down. Because the officer was not the one dispatched to answer the call, he blows Jacoby off and goes on his way. It takes 17 minutes to dispatch someone. Fortunately, Jacoby isn't hurt. The thrust of the Spiceboys' column is the outrageous behavior of the cop. And it does sound awful.

But I was struck by another aspect of the story. The incident started when the Jacoby was walking his dog. Cory Flenorl, an African-American man, sitting on the porch of a house he walks by, allegedly begins to verbally harass him. When he crosses the street and some kids stop to pet his dog, Flenorl allegedly shouts "Get the (expletive) away from that cracker - he's a pervert, and I'm going to kill him," and starts to follow him.

Let's start by flipping the races (although I want to consider more than that). If Jacoby was a black man walking through a predominantly white neighborhood and a white guy had started to harass him, yelled "Get the ___ away from that n_____ - he's a pervert and I'm going to kill him" and then proceeded to stalk this innocent black man who was just walking his dog, we'd have public figures contorted into spasms of condemnation. We'd have rallies against racism. We'd have calls for "hate crime" charges. The daily would assume the editorial position and sonorously regret on how little progress we have made since the days of Jim Crow.

But as it happened, no one has even noticed the racial nature of the offense.

On one level, I can understand that. We have a long history of racism that was directed against blacks and we are sensitive about that. We should be.

On the other hand, racial harmony is not served by payback and, if targeting people for the color of their skin is a specially odious thing to do (hate crime laws assume that it is), then condemnation is just as called for in the case as it happened as it would be in the "flipped" hypothetical.

So why doesn't it happen? The trope about black racism being "impossible" because blacks lack power seems inapposite here. Flenorl certainly had the power to threaten, stalk and, although he did not, assault Jacoby

Is it because we don't think that it'll do any good? That we assume that outrage can strengthen societal norms against white racism but not black racism? That strikes me as the worst kind of condescension.

I have always wondered how much good it does to engage in extended public condemnation of criminals. Are they subject to moral suasion? The answer to that question, I think, is that society needs to periodically reaffirm its values. It needs to underscore the messages sent by the law. We don't do things like this. If that's so, then ought we not be equally concerned with black as with white racism?

Do we think that black racism is somehow "understandable" and thus less morally problematic? You could argue that, in some grand scheme of things, that there is a case to be made for this, but it too has troubling implications. If Flenorl's racist threats against Jacoby (assuming that he made them) are justified by white racism that Flenorl has experienced in the past, would Jacoby now be justified in expressing racist feelings of his own?

Maybe this angle of the story isn't as engaging because Jacoby wasn't hurt.

The Regents and the Marriage Amendment

Did the UW Board of Regents "play politics" in passing a resolution opposing the marriage amendment? I guess it depends on what you think that the role of the Regents is supposed to be. Should they take positions on issues that are outside of their authority but which they think will have an impact on the university? Apart from whether it is politically smart to do so, that they may weigh in on things that they think will affect the system does not shock me.

Having said that, however, it strikes me as inappropriate and foolish for them to put a partisan spin on it. Board President David Walsh statement that "Mark Green and others will say we're out of step with the mainstream." I suppose that he will (actually, he has) but it's inappropriate for Walsh to involve himself in the gubernatorial race in his capacity as a Regent. It's also ill advised. Green may be (probably will be)Governor in January. We know Walsh is a Democrat, but why go out of your way to make an enemy?

As to the merits, the idea that the amendment would prohibit the university from extending benefits to an employee's designated domestic partner seems to be weak. It is inconsistent with the amendment's language (giving someone health insurance does not create or recognize a status substantially similar to marriage) and is contrary to the expressed intent of the amendment's author. I know that some people take the opposing view, but it strikes me as a stretch.

As for the supposed value of domestic partner benefits is attracting employees, strike me as skeptical. Organizations that have made these benefits available find that they are rarely used. They may be a good idea but I doubt that they have any substantial impact on recruiting. Universities offer them because the kind of people who run universities tend to favor them. There's nothing wrong with that but the absence (or presence) of such benefits is not going to make or break the UW.

If they don't do that voodoo that they do so well, I'll get you your money

I think I've got a new practice area - voodoo malpractice. It seems like a no-lose deal. So if someone has put a spell on you - or hasn't - just make the call.

Grown-ups are still AWOL on Foley

The Foley scandal continues to illustrate the way in which overweening partisanship makes people who are otherwise capable of critical thought act like a bunch of quarrelling children. In this case, it's the Dems who, seeing a little blood in the water, just can't control themselves. We are told that the GOP leadership protected a sexual predator "for years." Campaign contributions from those leaders to other Republican candidates has suddenly become "dirty money."

The first proposition is light years beyond the evidence. Maybe we will learn that someone in the GOP leadership knew Foley was a sexual predator for years and covered it up, but we don't know that yet. What we know is that the guy had a reputation for being very outgoing and friendly with the pages but, to date, we aren't aware that anyone in authority knew there were any sexual overtones to this "for years" or even "months." We know that, last fall, they did find out that he had asked a page for a picture and he was told to knock it off. Would anyone - could anyone - have done more? We know that when sexually explicit IMs came to light, he resigned.

There may turn out to be more there, but what we see now is people who want to gain partisan advantage from this ignoring critical distinctions and overhyping the evidence. Thus, we see folks like local liberal blogger Jay Bullock (who knows better)stating that the claim of former Foley chief of staff Kirk Fordham that he complained of Foley's "inappropriate behavior" in 2003 somehow proves that the House leadership "protected a sexual predator" for "years, people." But when we read beyond the headline, we see that Fordham had no knowledge of - and did not complain of - any sexual behavior or advances. Some pages merely thought Foley was being "more friendly" than he should have been.

In hindsight, I guess he was, but how does one decide that and, more importantly, what does one do about it? Pages are already heavily chaperoned and monitored (which is why, I suspect, Foley probably never had sex with any of them.) In addition, unless 17 year old boys have changed since I was one, that perception of being "overly friendly" was undoubtedly fueled by the common knowledge that Foley was gay. What was the House leadership supposed to do with that?

Maybe the GOP leadership did protect a sexual predator for years, but the evidence for that is yet to be found.

I understand the desire to see your side win, but I'd like to think intellectual integrity counts for something.

The second proposition (the money is dirty) is just nonsense. It amounts to an argument that the money was given in exchange for silence about something that there is no evidence that either the donor or the donee knew about. Even if it turns out that John Boehner knew something more incriminating about Foley, there is no evidence that John Gard (who received a lawful campaign contribution from Foley) knew any thing to be silent about.

Nor does the receipt of that money obligate the recipients to vote for the present GOP leadership. A campaign contribution is, at most, an endorsement of the donee by the donor. People who get contributions are not obligated to stand by those who make them and, in this case, if the GOP leadership needs to go, there will be new leadership candidates whose campaign money will spend just as well.

I don't claim that lots of Republicans wouldn't do the same thing and many are getting suckered into playing the game now. We'll see your Mark Foley and raise you Gerry Studds or Mel Reynolds.

I know it can't be stopped, but it's all boring and unbecoming. It has nothing to do with who should win the elections. I'm not going to play.

"We're going in another direction"

So says Mike McCarthy on the release of Ahmad Carroll. I guess the team has decided on a new strategic direction. They are now going to cover guys on the other team who go out for passes. I like it.

Fred Phelps Mocks God

Fred Phelps and the rest of his inbred family members at the Westboro "Baptist" "Church" are planning to picket the funerals of the Amish girls. (I won't link to their press release; too many of you may have just had breakfast.) Phelps thinks that God had those little girls killed because Penn. Governor Ed Rendell made fun of him and his "congregation."

I don't believe that God just reaches out and smites those who displease God. If God did, then Fred Phelps and the knobs at the Westboro "Baptist" "Church" would have been vaporized a long time ago. I suspect that Fred's judgment day will be decidedly unpleasant.

I know that the Amish are nonviolent, but maybe a few longshoremen from Philly might want to picket too. In their own special way.

Seriously, I'm a first amendment absolutist but, in this case, I think a reasonable place, time and manner restriction would put them somehere in Jersey.

Who loves oversimplification now?

I have to say that the arguments behind the Mark Foley disclosure confound me. People who ought to know better say that Republicans who have taken contributions from Foley's funds or those of GOP leaders are somehow compromised. What's the rationale behind that? Were the checks supposed to come with a note that said "Hey, look the other way while Mark cruises hot pages?."

Folks are in high dungeon that Foley's non-sexual e-mail to a male page asking that he send a picture should have been enough to put him in irons. Personally, I think that it would have been unreasonable to think that a gay guy writing that to a male page was probably going to do more dirt, just as, if I am a teacher in Cedarburg, I probably shouldn't keep pictures of teenage girls in bikinis on my computer. But I also suspect that, had the GOP leadership attempted to do be more aggressive than they were, they'd have been accused of homophobia.

There is going to be all sorts of silliness behind this and the only way to avoid that is to insist that people make relevant distinctions and not fall into the political game of avoiding them "because no one will understand." It may well be that the GOP hierarchy has acted ignobly, but the Dems are served by ignorance and are acting accordingly.

I think he's still looking for Greg Lewis

The Packers have released Ahmad Carroll. I guess they'll tell him as soon as he finds the locker room. This leaves them with a couple of rookies at nickel back but its hard to see how they could be any worse.

Good result

Although for somewhat narrow reasons. District Judge John Shabaz ruled today in Association of Faith-Based Organizations v. Bablitch that Wisconsin can't exclude faith-based groups from a combined charity appeal to its employees merely because the groups discriminate on the basis of creed or religion in choosing their governing boards or employees. I wrote about the case in my Journal-Sentinel column.

Judge Shabaz decided the case on somewhat narrow grounds, refusing to find that exclusion from the appeal was a direct restriction on the organizations' associational rights that could be justified only by a compelling state interest. Rather, he analyzed it as a restriction on a nonpublic forum which must be both reasonable and viewpoint neutral. Excluding these faith-based groups, he concluded, was not reasonable in light of the what he found was a more general state policy permitted religious discrimination by religious groups. Although the law still requires restrictions on nonpublic forums to be viewpoint neutral (a question that Judge Shabaz did not need to reach here), this all suggests that if Wisconsin adopted a rigorous policy against aid to religious groups that engage in religious discrimination, he might have reached a different result.

Kudos to Waukesha lawyer Michael Dean who served as local counsel in the case.

Be fair on Foley

I have no idea what the GOP leadership knew about Mark Foley and when they knew it. If anyone sat on information that the guy was sexually stalking kids, they were acting like a political moron and moral cretin. If that includes Denny Haestert, so be it.

But I think a few rules should govern the feeding frenzy that we're in. First, we should be careful about ascertaining just what was supposedly known. It would be one thing to know that Foley sent and "overly friendly" e-mail (without sexual language or innuendo). That might concern someone (50-something year old guys are not usually big buddies with 16 year old kids), but not constitute anything that could be really be acted upon. I have no hope that this distinction will be respected, since we conduct our political dialogue in bad faith these days.

Second, the question of "knowledge" is not just for Republicans. If Dems knew about Foley's more troubling communications and said nothing. Or waited until the most politically propitious moment, they are just as culpable. The GOP may be running the House, but if a Democrat knew about Foley and sat on it, he or she may not the as much of a political moron, but is just as much a moral cretin.

S & S recommends

My son thinks that his father has a thing for, as he puts it, "quirky, chick singers." I am afraid that he is right. Beyond all reason, I am a fan of Rickie Lee Jones, Dolores O'Riordan of the Cranberries, and, the Queen, Chrissie Hynde of the Pretenders (her politics suck but the Shark is all about the music.) My latest is Shannon McNally. Definitely worth a listen.

Islamofascism revisited

A while back, I addressed the question of whether "Islamism" can be properly characterized as fascist, something which the most overrated Senator in America thinks is beyond the pale. (Here and here. I think so. Lefty blogger David Neiwert thought I had not done my homework and no serious scholar would think such a thing, but I argued that Whatever It is That Motivates Terrorist lines up awfully well with scholarly definitions of fascism.

But I hadn't done my homework because I was unable to point to that body of scholarly opinion that has made precisely the point that is supposed to show that W. is just too dumb to live. You can read about it here.

Shark Held Hostage - Day 8

I have been down for a week with the Islamofascist flu, but the amoxicillin seems, finally, to be kicking in.

Xoff and the Journal-Sentinel don't like Mark Green's claim that the paper reported that Doyle's lawyer tried to secretly rig an election board in order to steal the election.

They are right in that the paper didn't characterize it that way but, as political ads go, that's a minor offense. Can the facts that they did report be characterized that way?

"Steal the election" is a bit of hyperbole. Most people would assume that has something to do with vote totals, although Doyle was certainly not motivated by anything other than gaining an advantage in the election. I wouldn't have put it that way (but, then again, no one would hire me as a political consultant), but still a minor infraction.

Did Doyle's lawyer "secretly rig" the vote? Yes and no. What he did was done in secret. But I don't know that he could have rigged the vote since the fix was in as soon as the Dems knew what would favor Doyle and harm Green. He was just confirming the tank job.

Green denied

I have read Judge Niess' decision denying Mark Green's motion for an injunction blocking enforcement of the State Election Board's decision requiring him to divest certain money that had been converted from his federal to his state account.

To begin with, I do not discount what the judge had to say because he is a Doyle appointee. Judges, in general, struggle to get beyond that and his opinion should be judged by the strength of his legal reasoning and not by the provenance of his place on the bench. There is no reason to think that Judge Niess did anything other than try to call it as he sees it.

Having said that the conclusion he reaches is far from obvious.

It is painful to read the mischaracterization of it in the blogoshere. Xoff, for example, says the judge ruled that the conversion was illegal. Close, but not quite. He ruled that Green had not demonstrated a reasonable likelihood of success which was the only issue before him on a motion for preliminary relief. The merits of Green's claim are, strictly speaking, still before him.

But Bill's misstatement is not so bad given that I think it's likely that the judge will ultimately rule that the SEB was right. This is so because he bought into the argument that, even thought this may have been a change in state law - in other words, Green was not permitted to do something that (four years earlier) Tom Barrett (over Xoff's objection) had been allowed to do - the reason is because of a subsequent change in federal law.

The lefty blogosphere acts as if this change was obvious. It's not. In fact, I think it may be a fairly weak argument. The claim is that a 2004 amendment in the BCRA (the Orwellian-named "Bipartisan Campaign Reform Act"), listing permitted uses for federal campaign contributions, prohibited the type of conversions that Wisconsin had always permitted. This is so, the Court reasoned, because the amended BCRA permits donations to state and local candidates only in conformity with state law.

There are two problems with this. One is that when we speak of "what is permitted by state law" might that not include the fact that the SEB in Wisconsin had, in the few cases which it came up, permitted conversion of federal contributions to state accounts? How can we carve out only some state law (those on regulation of PACs making in-contributions)and not the law permitting conversions?

The second is that a conversion is not obviously the same as a donation to a state and local candidate. The latter seems just as likely to refer to money given to someone else than money that one already possesses converted to a different use. We normally don't think of money that we give to ourselves as "donations."

The circuit court's decision amounts to a holding that Congress placed a new limit on federal to state conversions without expressly saying so. That can happen, but I think it would be a disfavored interpretation.

The court (in fairness, this was a preliminary decision) did not say much to justify that conclusion. Only about 3 pages of it's 15 page decision are devoted to the merits and my first objection is unaddressed while my second is relegated to a footnote. The footnote says that, if Congress wished to exclude donations to oneself, it could have said so. True. But one could just as easily say that, if Congress wanted to federalize the application of limitations on contributions to state candidates to conversions, it would have said so. That's a pretty big thing to do by implication.

Even if the circuit court was right, it is not obviously right (all questions do not have obvious answers) and to say, as Doyle's campaign blog still does, that this means that Green "chooses with laws to obey" in an "outrageous" manner is more than I could ever do.

And I'm a shark. As we used to say, in the day, grok that.

S-squared at C-squared

I have been extended blogging "privileges" at Constitutionally Correct, a law blog operated by the Alliance Defense Fund, a conservative public interest law firm with which I work. My first post there is here.

Don't get too happy

On another widespread misinterpretation of the significance of a legal development, I know that there are some lefty bloggers who think Ozaukee County Judge Paul Malloy's dismissal of a lawsuit by development partnership Prism alleging impropriety in the award of the Kenilworth Building contract shows that those allegations were "baseless" and that no one acted improperly. Jay Bullock is one.

The allegations may have been baseless, but it is simply not possible to draw that conclusion from Judge Malloy's decision. As Sean Hackbarth suspected in an e-mail query to me on Thursday, the decision had nothing to do with the merits of those allegations.

Malloy was ruling on a motion to dismiss. Essentially, a motion to dismiss says, even if all the allegations in the complaint are true, the plaintiff can't win and, therefore, the case should be dismissed. By definition, it does not pass upon the truth or falsity of what is alleged.

In this case, Malloy found that the matter was "moot." In our legal system, judges generally don't pass upon the legality of things that can no longer be fixed. The case brought by Prism was review of an agency decision under Chapter 227 in which damages are unavailable. All you can do is reverse the agency or tell it to act again.

In this case, however, that wasn't possible because the Kenilworth contract had already been let. In other words, the pork was out of the pen and could not be put back in. Under those circumstances, Judge Malloy concluded, the case is moot. There was, he believed, nothing he could do to fix what had happened (if, indeed, it merited fixing), so there was no reason to proceed.

Although Judge Malloy apparently made some statements from the bench on the irregularity of the process, you can't read much into that either. There was not a full exposition of the merits of the underlying allegations.

In short, the decision means Prism is out of luck. It doesn't tell us a fig about whether there was something wrong with the way in which the Kenilworth contract was awarded.

BONUS OBSERVATION: Nor does it mean anything that the State Department of Justice is arguing that the State Election Board was correct in forbidding Mark Green's transfer of federal funds to his state account. It is the AG's job to represent state agencies. Had the SEB gone the other way, so would the DOJ.

Wiley contacts State Election Board

Although some may argue that the fact that GOP executive director Rick Wiley contacted State Election Board member John Savage prior to the vote on Mark Green's transfer of federal campaign contributions to his state account somehow neutralizes the furor over Doyle attorney Mike Maistelmann's orchestration of the Democrat majority's retroactive adoption of a rule prohibiting the transfer, I think not.

First, there is no evidence that Wiley did what Maistelman did, i.e., inform board members of what "powers that be" would go along with and tell them what "we" want to accomplish. There is no evidence that he urged them to rule so, at the very least, Green would look bad and have to spend money on lawyers.

But let's assume that he did all of this. It just underscores that the SEB "ruling" was an exercise in partisan hacksmanship and that the Democrat hacks outvoted the Republican hacks. There was nothing impartial about it and it says nothing about the Mark Green's ethics or even his compliance with pre-existing law.

Kick Sobran under the bus? It's tempting, but ...

James Wigderson - at 2 am - sent an e-mail to Wisconsin political bloggers to place pressure on the Wisconsin Forum to rescind an invitation to columnist Joseph Sobran to speak at the MAC this coming Thursday. Sobran is a former editor of the National Review who was removed from the masthead of that magazine for writings that were deemed to be anti-semitic or, as Bill Buckley once put it, inconsistent with the "welcome" structure of "prevailing taboos" concerning Jews and Israel. James wants us all to pressure the Wisconsin Forum to give Sobran the boot.

I am not unsympathetic to James' position, but, ultimately, I disagree.

Where I come from: Although I am a practising Christian (Anglican; hence use of the letter "s"), I am ethnically half Jewish. My wonderful daughter-in-law is Jewish and intends to raise my outstanding little grandson in that great tradition. When it comes to Israel, I am militant. If the Islamofascists (that word again) want global jihad over the right of little Israel to exist, I'm in. Israel may be, as Sobran says, an "expensive ally" from whom we have little material to gain, but everything that is decent compels that we give her our strong, if not uncritical, support.

I think the idea that Jews have some ill-gotten disproportionate influence in American life is laughable. While it is true that Jews are represented at high levels of certain professions at a level that greatly exceeds their share of the general population (mine is one of them), they have earned it. If you are embarassed by it, shut up and study harder.

There are two perversions of Christianity that just floor me. One is the historic failure on the part of many Christians to recognize the equality of women that screams from the Gospels. Granted it was a completely countercultural, but what do you expect from the Son of God? The other is anti-semitism. I am with John Paul II on this. You cannot be a good Christian and an anti-semite. It's incoherent.

As for Joe Sobran, my impression is that he is an intelligent writer who says stupid things about Jews and Israel. Its hard not to think that there isn't a black part in his heart, although Buckley has denied that this is so.

But I am not a fan of imposing orthodoxies on who can be invited to speak - particularly after the speaker has been invited. There are some people with bad opinions who make no sense. They cannot be engaged because they are uninterested in the rules of rationality. Ward Churchill, Kevin Barry and homophobe (the word fits here) Fred Phelps are examples. There is no point in inviting them to speak because discourse is not possible.

I am not convinced that Sobran falls into that category. I think he is almost completely wrong about what I take to be the premise of his talk, i.e., that "the Jews" (as if they are a monolithic body)have taken over conservatism. But I don't know that he is incapable of linear thought or that the subject itself is beyond polite company.

So I don't think the Wisconsin Forum ought to be pressured to disinvite him.

I do think he was a poor choice. Were I advising a conservative group on who to have speak, I'm not so sure I'd choose someone who makes conservatives look bad. But they did and we're grown-up enough to hear what he has to say.

What's wrong with Doyle

Jay Bullock (as Xoff before him) thinks Jim Doyle is getting a bum deal from the local press. Didn't Tommy Thompson give contributors a break? Doyle attorney Mike Maistelman's (perhaps) legal orchestration of the Election Board's ex post facto rule forbidding Green's transfer of legally raised federal funds to his state account was on the front page, Jay complains, while a report that some people contributed to Green's congressional account and to his federal account and that the combined amounts exceeded state contribution limits was less prominently featured. The latter, Jay says, is illegal.

As a preliminary matter, its only "illegal" if you buy into the charade that was the SEB's decision. If a GOP-controlled SEB had permitted a GOP candidate to transfer federal funds and then, in the very next gubernatorial cycle, voted that a Democrat candidate could not - the day after the Democrat candidate had, in reliance on the then-existing rule, done so - Jay and Xoff would be apoplectic. If the GOP candidate then ran ads painting the Democrat as some kind of wanton criminal, they'd start foaming at the mouth. If they then found out that the GOP candidate's lawyer had secret communications with members of the Board instructing them on "what we want to accomplish," they would succumb to the curse of lycanthropy.

This is true even if you think that recent changes in federal law change the earlier result or if you believe that the state election board was wrong when they let Barrett transfer his federal funds. The worst you can say about Green is that he did what appeared to be legal (informing the SEB as he did it) and that the SEB decided that the law had changed or had been interpreted incorrectly. To say, as Doyle does, that this means Green was "caught" deliberately breaking the law is just shameful. It is the type of crass behavior that Jim Doyle (on his own and not because of bad press) has come to be known for.

And that's just a symptom of the Doyle problem. All politicians are a bit nicer to their contributors and are driven by their key constituencies, but Doyle is gracelessly blatant about it. All political campaigns play fast and loose with the truth, but the Doylies' addiction to dishonesty in the service of victory reminds one of Tommy Flanagan, Jon Lovitz' old character on SNL. "Why, I ... I didn't know we had hired a lawyer to screw my opponent out of a cool half mill. Yeah, that's the ticket. I never even heard of Mark Green."

After all of this, Doyle has developed the persona of a ruthless pol who is all about himself. He appears to have no vision for the future of the state other than that Jim Doyle should be its governor and there is little that he won't do or say to make that happen. If you speak privately to committed liberals, many will say that he's a sleaze and they can't stand him, but they are more opposed to Mark Green's policies than they are disgusted with their governor. For them, Doyle is a rearguard action. He keeps the conservatives at bay.

Can you win a statewide election that way?

Doyle's on fire again

Having spent the morning semi-comatose, I'm late to the story, but imagine my surprise when I weaved down the stairs this morning and found that my daily newspaper was sitting on the counter with smoke pouring from its pages.

The Dem spin on the Election Board's ruling that Green could not transfer legally raised federal money to his state account was that the Board "found this" as if the SEB were a Council of impartial elders, furrowing brows and contemplating the truth.

If that were the case - if the SEB was acting as an impartial tribunal - it would not be permissible to ex parte its members. If I call a judge (in the absence of the other side) and ask for a little love on a pending motion, I will soon become intimately acquainted with the Office of Lawyer Regulation.

Nor could I ask a judge to find in my favor because it will be a PR victory for my side and force my opponents to spend money. A lawyer may not take a position to harass or delay.

If its OK to contact the SEB on a pending matter, it is because it is acting in a quasi-legislative capacity. Legislators don't "find" things, they vote on them. Its an exercise of power and the one with the most votes wins. In this case, Democrat partisans had the votes to stick it to Green and they did so.

That may be legal but is it is hardly scandalous for the losing side.

Of course, apart from the legality, this looks awful. Here's Maistelman carefully circumventing the open meetings laws and telling these intrepid seekers of truth what the "powers that be" had deemed acceptable. Here he is again telling them that they can tie Green up in the courts and make him look bad.

The Journal Sentinel says Maistelman denied that he was representing Doyle at the hearing. What is that about? Did he just remember? Or did he think he could take off his lawyer hat and disavow his client when he entered the hearing room?

You can't blame Doyle for denying that he knew about this. But how plausible is that? Was he really indifferent to the matter before the SEB? And, if he was briefed on it, wouldn't one of the first items of conversation be that they had retained counsel.

S & S Scratches

My trip to Wausau - and appearance on WPR - was cancelled. I came down with this Islamofascist flu (the name is a joke) that been going around my office. I wanted to go anyway, but the Reddess physically blocked the door and, even though she's about 5-4 and a buck-ten, in my condition she would have put my lights out.

Shark and Shepherd on the Air - In Wausau

For those of you in North Central Wisconsin, I will be on "Route 51" on Wisconsin Public Radio tomorrow afternoon between 5 and 6, debating the marriage amendment.

Threat to Islam

Dad29 links to a statement by local Muslim leader Othman Atta criticizing the Pope's recent remarks as contributing to the "discredited and false, yet persistent belief among many in the West that Islam is a faith that preaches violence ...." Atta says that the Pope gives aid and comfort to those who would use an "infinitesimally small group of extremists to define an entire faith tradition."

All religious traditions can be - and have been - abused. While our modern conception of the Crusades as simply wars of aggression is, at best, incomplete, they certainly came to involve (if they did not from the out set) perversions of Christianity. The Inquisition was not entirely a religious phenomenon, but it too is impossible to reconcile with Christianity's foundational texts.

Some people argue that Islam lends itself - even explicitly calls for - the spread of the faith by violence. Mr. Atta obviously does not think so and, assuming (as I do) that he is sincere, there is little to be gained from arguing with him about what Islam means to him and those he worships with. If he has settled upon a peaceful Islam, that's wonderful.

The problem for the rest of us is that it doesn't much look like those who adhere to a nastier version of the faith are am "infinitesimally small group." While I guess the number of people who have actually committed terrorist acts could be characterized as very small (although not "infinitesimally"), the number who support them does not seem to be. The numbers rioting after publication of the Danish cartoons does not seen to be. The number who live under Sharia law does not seem to be.

What Mr. Atta ought to understand is that the biggest threat to Muslims in the US and Europe is not the innate chauvinism of Christians, Jews and secularists, but the outrages perpetrated in the name of his faith. People can ignore what they see for only so long. If Muslims seek tolerance for Islam, they are going to have far more vocal and active in their own intolerance for - call it what you want - Islamist terror, Islamic Fascism or Those Guys.

This is so without regard to whether the Koran "really" can be read to support violence. The threat posed by some acting in the name of Islam is intolerable and that lack of tolerance will inevitably come to include Islam generally unless the oft-posited but seldom heard from moderate Muslims become very proactive in opposing their more bloodthirsty co-religionists.

This may be unfair, but its inevitable and it will happen no matter how careful we are about not using "mean" terms like Islamic Fascism that call a thing what it is. People figure it out.

Northshore Grassroots Forum on Marriage

Last Wednesday, I participated in a debate on the marriage amendment sponsored by the Northshroe Grassroots organization. I spoke on behalf of the amendment, along with Pastor Reed Heckman, currently with the Family Research Institute. Opposing us were Madison attorney Lester Pines and the Rev. Drew Kennedy, pastor of the First Unitarian Society.

There were about 75 people there and my initial guess is that Reed, the Reddess and I were the only pro-amendment people there, although I got an e-mail from at least one other. The folks running the forum - and many in the audience were gracious and friendly. There was, however, among many others a certain smugness and sense of moral and intellectual superiority that is the particular temptation of the politically certain. Reed would say things that are simply facts and a good portion of the crowd would gasp, giggle and hiss as if it were the silliest thing that they ever heard.

It is good to keep in mind that everything we know may not be true. On the other hand, I need to be reminded of that as much as the next guy.

In any event, thanks to Keith Schmitz for inviting me. It was great to see Legal Aid Society lawyer Pete Koneazny, an old college classmate. Pete is an incredibly decent fellow and an excellent lawyer. His politics could use a complete makeover, but who among us is perfect?

Leonard Sykes, R.I.P.

Eugene Kane had a nice column Sunday on Journal-Sentinel reporter Leonard Sykes who suffered a massive stroke this past summer. Leonard died over the weekend.

I did not know Leonard Sykes well. He was, for a short period, my colleague on WMCS's Backstory. But I do know this about him. He was gracious and generous to a rank amateur (this would be me) among professional journalists (that would be Leonard, Jim Rowen and Faithe Colas). We disagreed on a few things, but Leonard was open-minded and fair. One of the first things I remember him saying was how he might go broke downloading music (an affliction I share). I pray that now, somewhere and somehow, he can listen.

The Pope on Islam

I am not sure what to make of the controversy over the Pope's speech at Regensburg. It is certainly true, as Dad29 points out, that the speech was not really concerned with Islam, but the western separation of faith and reason. Having said that, he clearly shot one across someone's bow. Given the global controversy around Islam, anything that is said on the subject by the leader of one of the world's largest religious tradition is going to get attention.

And, although I am no scholar in the philosophy of religion, he seems to be saying, apart from the citation to Khoury (relating a medieval comment that all that was in the Koran was evil and inhuman), that the Islamic and Judeo-Christian concepts of God are different. Muslims, the Pope seems to be saying, are more likely to see God as absolutely transcendent and not bound by - or, perhaps more accurately - choosing to act within - the strictures of rationality. Thus, the concept of conversion by force which, for the Pope, is contrary to the dictates of faith illuminated by reason. (Christians may have done this, but, unlike Islam, there is really no support for it in the foundational text.)

I don't know enough about Islam to know whether its true, but the Pope had to know that this was a provocative thing to say. It may well be a shot across the bow of radical Islam, but it may also be a challenge to the West of the dangers that are presented by both faith and reason when the two are relegated to separate realms.

More on Islamic Fascism

In response to last night's post on Islamic fascism, lefty blogger David Neiwert thought I done him wrong. You could read it in the comments section, but I'll reproduce it for you right here:

I only happen to cite the bulk of the serious scholarship of fascism of the past half-century, including Oxford scholar Roger Griffin, considered one of the world's leading experts on the subject, and Robert O. Paxton, whose Anatomy of Fascism was published in 2004.

Perhaps if you can demonstrate some actual, serious scholarship of the subject yourself -- beyond, of course, political hacks like Jonah Goldberg, who is only a scholar of mendacity -- you might be taken seriously.

Otherwise, your discussion here is about as lightweight as the megabytes required to post this nonsense.

I'll forgive him the left-netroots "I'm smarter than you are" snarkiness. You can't really deny a man his lifeblood and, in fairness, it may be I attributed a view to him that he does not hold.

Lots of fascism scholarship (and, no, I haven't written any) used to hold that fascism was a late-stage of capitalism; sort of a rearguard action against encroaching socialism. In that sense, it was a thought to be a very specific social phenomenon; part of the Hegelian arc of history. It was thought to be a creature of the right, even though it is, essentially, socialist in that it recognizes no property rights against the state. With the fall of communism, this view sort of lost its lustre.

Maybe Neiwert doesn't think that. His posts on fascism largely consist of bloc quotes from other people and are themselves a bit imprecise. He does have a longer essay that he links to that makes that point, but it looks like he wrote it in 2003. Perhaps he's reconsidered.

He cites, as authoritative, historian Robert Paxton. Professor Paxton is an accomplished scholar, although I hardly think he has settled the issue. But let's take Paxton's self-described "tentative" definition and see if we can fit it to the Whatever It Is That Keeps Blowing Stuff Up:


''A form of political behavior marked by obsessive preoccupation with community decline, humiliation or victimhood (check) and by compensatory cults of unity, energy and purity (check), in which a mass-based party of committed nationalist militants (check), working in uneasy but effective collaboration with traditional elites (check), abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion.''(check),(check),(check) and (check).

The only one seems questionable is the "uneasy but effective collaboration with traditional elites" but its not clear to me that this would necessarily be a permanent characteristic of fascism as opposed to a tactic by which it assumes power. In 1920, Hitler did not have alot of traditional elites in his corner. What he did have was a myth that he would ultimately spin (with a lot of muscle) into a sufficiently powerful social force that he could pull those elites along. Eventually, "traditional elites" in Nazi Germany came to realize that they had been used. They thought that they were in control, only to learn that they were not.

But whether tactic or enduring characteristic, the Terrorists Whose Name We Dare Not Speak (they are quite clear on who they are) are generally state sponsored and, in Iran, have certainly co-opted the institutions of that society. They certainly cooperate "uneasily but effectively" with the Saudi royal family.

I suppose that you could say that you can't abandon democratic liberties until you have them, but that seems to get us back into the March of History Mess and would seem unimportant to those who are the fascist's victims. In ay event, places in which Islamic fascism has taken a foothold have generally repudiated whatever liberal notions existed, see, e.g., Iran and wherever sharia law has taken hold.

Of course, there are going to be differences between European fascism and the Islamic variety. I agree that using the term "fascism" only gets you so far. But it hardly seems beyond the pale or, as some would have it, clearly and ridiculously wrong. In fact, it seems, for the most part, quite accurate and may be an effective shorthand to convey the nature of this particular enemy.

Update: In the original version of this post, I mispelled Mr. Neiwert's name. My apologies.

Is it Islamic fascism?

I got some very nice comments from Jay Bullock on my 9-11 piece in the Journal-Sentinel, although Jay objected to my use of the term "Islamic fascism" as have others. Jay has a longer post at his blog objecting to the use of that term and praising Russ Feingold for objecting to it. I think its worth responding to and, since, I can never access his comments (due, I think, to some incomprehensible techno-incompatibility), I'll do it here.

Jay and Russ say that whatever Islamic terrorism is, it's not fascist. Russ doesn't explain why (I suspect he hasn't a clue), but Jay, a much more rigorous thinker, won't punt on that. But he cites David Neiwert who relies on a highly tendentious and somewhat dated definition of fascism as a "dictatorship against the left" and, therefore, something that can only be found in decaying, capitalist democracies. As Jonah Goldberg (who has a book coming out on this) points out here (but you need a subscription), this is a Marxist-influenced proposition that has been discredited among scholars of fascism who cannot, themselves, agree on what it means. Fascism may be a term that, as Orwell said almost 60 years ago, means little more than "something not desirable."

I think there's a lot of truth in that. Fascism does not have the precise technical meaning that Jay and Feingold think it does. In common parlance, it denotes, in its narrowest meaning, an authoritarian ideology that exalts whatever animates it (race, nation, religion) above all else and seeks to exercise total control over all who it are subject to it. As we have experienced it, is a socialist enterprise (even if it "allows" private enterprise to exist) which is consistent with the idea of total control.

Seen in this way, it is not off base to describe Islamic terrorists as fascists, although, in doing so, we are not using a very precise term.

But what Feingold (and, I am afraid, Jay) really object to is not the noun, but the adjective. Feingold says that not all Muslims are terrorists and this is true. But that does not change the fact that the terrorists we are concerned with not only "happen to be" Muslims, but are motivated by Islam. Not all Muslims become, if we can use the term, "fascists" but these Muslims have.

Recognizing that, Jay goes for a moral equivalence between Christian fundamentalists and Muslims. How can we suggest that some realm of Islam is fascist, when we get upset about people who say that fundamentalists have hijacked the GOP in the way that People Who Do Bad Things For Reasons That Have Nothing To Do With Religion have hijacked Islam.

To suggest an equivalence between a global Islamic terrorist movement and any nontrivial faction of Christianity is simply to quit being serious. First, Jay ignores the distinction between evangelicals and fundamentalists. Evangelicals have influenced the GOP (as many groups influence both parties), fundamentalists have not. Second, I am unaware of any Christian jihad. You can dislike people who oppose abortion and gay marriage, but they are not blowing up your subway stop. They are not stoning people who do not live in accordance with their religious beliefs.

Perhaps, as Jay suggests, it is politic to avoid the elephant in the living room, i.e., the connection between a particular interpretation of Islam and terror. Bush tried that. But in suggesting that he was simply going after "evildoers", he fell into the trap of suggesting that the war on terror was simply a fight against a discrete band of criminals, and not an ideological movement. That made it hard to explain why he has done some of the things he has done. His critics suggested that he was wrong unless he was going after the very individuals who perpetrated 9-11.

The war on terror is larger than that and Bush, finally, has begun to explain that.

It'll be shaking in Shorewood

Tonight at North Shore Presbyterian Church, 4800 N. Bartlett. The debate on the marriage amendment is sponsored by Grassroots NorthShore, a left-liberal advocacy group, as part of a series of debates. (They have also scheduled debates on the Iraq war and death penalty). I will be representing the pro-amendment side along with Reed Heckman, a Madison area pastor. A Madison attorney, Lester Pines, and Drew Kennedy, pastor of the First Unitarian Church, will be speaking against the amendment. The debate will be moderated by Jack Murtaugh of the Fourth Street Forum.

There will be lots of audience participation (most of the time is given over to Q & A) and, given, the provenance of the debate, I am expecting a hostile crowd.

So come and watch me have a hard time. Or give me one. Or help me out.

Post-election question

One of the things that surprised me was that Mac-Mac got 35% of the vote in the DA's race. I could be wrong, but I don't think the moonbat vote in Milwaukee County is that high. I think that has to suggest a significant anti-McCann sentiment. Given that I suspect there was substantial crossover by Republicans (not a huge - but still a significant - group in Milwaukee County) to vote for Clarke, it may be even larger that Mac-Mac's vote would suggest.

Does this mean that independent Lew Wasserman might get some traction? Can he appeal to conservatives? Could it be that the DA's race is not quite over?

Profound Prognostication

Dennis York points out that Lautenschlager waxed Kathleen Falk in Dane County, but still lost statewide. I haven't had a chance to look at the numbers, but this implies a fairly solid margin for Falk elsewhere. Does this suggest that this was more of an anti-Lautenschlager vote? Falk loses her base, but wins elsewhere. Was her win driven, in the end, by the drunk driving arrest to the near exclusion of all else? And, if that's the case, what are her chances against Van Hollen? Kathleen, who is a nice person and a very good lawyer, has some real left liberal baggage that won't play well much beyond University Heights. I do not know what lies in store for the GOP nationwide, but, here in purple Wisconsin, the Republicans might own both houses of the legislature and all but one constitutional office. Doug LaFollette may be the ranking Dem in state government.

Shark and Shepherd Debate

But not with each other. I will, however, be debating the marriage amendment in forum sponsored by Grassroots Northshore tomorrow night, September 13, at the North Shore Presbyterian Church, 4800 N. Bartlett, in Shorewood. Rev. Reed Heckman, a pastor who is currently on sabbatical and working with the Family Research Institute, will also support the amendment. It will be opposed by Lester Pines, a Madison area attorney, and the Rev. Drew Kennedy, pastor of First Unitarian downtown. Doors open at 6:30.

Free speech as a crime

Via the Volokh Conspiracy, an Evangelical activist in Wales faces criminal charges for passing out a pamphlet that, apparently without acrimony or incendiary language, makes the traditional Christian (and Jewish) case on the morality of homosexuality, citing biblical passages, etc. Steven Green, who distributed the pamphlets at Mardi Gras in Cardiff is charged with using "threatening, abusive or insulting words or behaviour."

According to the Daily Mail, police in the U.K. are increasingly active against those who are critical of gays:

In recent months incidents have included a Metropolitan Police warning to author Lynette Burrows that she was responsible for a 'homophobic incident' after she suggesting on a BBC Radio Five Live programme that gays did not make ideal adoptive parents.

Another warning about future behaviour was delivered by Lancashire police who visited the home of a Christian couple after they complained about their local council's gay rights policies.

The Met Police in London also investigated former Muslim Council of Britain leader Sir Iqbal Sacranie after he gave an interview saying homosexuality was harmful. However, no prosecution followed in that case.

Closer to home, John McAdams reports on the views of the President of Marquette's gay and lesbian student organization who believes that opponents of same-sex marriage should not be allowed to speak on campus, since the issue involves "human rights."

Maggie Gallagher has argued that same-sex marriage will make it increasingly difficult for people to advocate - or act upon - traditional religious notions on human sexuality.

There is, of course, no reason why this has to be true, but it may well turn out that way.

Shark and Shepherd on Dead Tree

I have a column in tomorrow morning's Journal-Sentinel on the 5th anniversary of 9-11.

Secular establishment

The Secular Coalition for America has released its scores for members of Congress. The scores are supposed to reflect a legislator's commitment to the separation of church and state. For the Senate, few of the votes on which people are rated relate directly to that. For example, Senators are rated on selected judicial confirmation votes (for both cloture and to confirm), the cloture vote on the federal Marriage Amendment and the Stem Cell Enhancement Act. You can make the case that these reflect one's commitment to a certain notion of separation, but it's attenuated. Legislative ratings are always imperfect, but one could cast a vote on all of these without regard to any view of the relation between church and state.

In any event, our "maverick" Senator fangled, as is generally the case on all measures of adherence to the agenda of the left, scored a "perfect" 100.

On the House side, there were votes that fairly measured a legislators hostility to, or refusal to accommodate, religious perspectives. No Wisconsin legislator scored 100 (Tammy Baldwin apparently whiffed on DoD funding for the Boy Scouts), but three of our 4 GOP members scored what is truly a perfect 0.

As is generally the case, Sensenbrenner was more of a "maverick" than Feingold, scoring a 20.

Shark and Shepherd on the Air

Today. 4:30. WMCS-1290. Talk of the Town.

Attorneys Against the Ban

Some may wonder if the newly-formed group called Attorneys Against the Ban largely consists of lawyers who, however accomplished and talented (and many certainly are), largely lean left and Democrat?

The answer would be "yes."

Green and stem cells

The left side of the Cheddarsphere thinks its all that in criticizing Mark Green's proposal to spend $25 million dollars on research which seeks to create pluripotent stem cells without destroying the embryo from whence they came. Xoff gathers 'em up. The nature of the criticism seems to be that he wants to devote money to an "unproven" technology rather than the "proven" embryo-destructive research.

Of course when it comes to the ultimate objective, i.e/, curing people, both technologies are unproven. Embryo-destructive research has yet to help its first person, but its proponents think that it might. We haven't yet learned how to create embryonic stem-cell lines from a biopsied stem cell (which we do know can be taken without destroying the embryo), but some researchers think we might and, in fact, some recent work (although it did not itself accomplish - or even attempt - the task)suggests that it might work. Other lines of research seek to "tease" adult stem cells into pluripotency.

Green suggests addressing an ethical dilemna and, all of a sudden, the "pro-science" forces want to shutter the lab. Some of this is undoubtedly simple partisanship, but some may well be a recognition that we need to discard the notion that human life has intrinsic value if we are to move into a utilitarian future. I can countenance political hacksmanship. But the latter really bothers me.

Can Dane County get into our solar system?

The Madison Common Council, in an admirable piece of self-parody, wants to support Pluto as the 9th planet and to express its support for planets that orbit to their own tune. Presumably, Madison is still hoping to become the tenth.

They can handle this

A bit old, but Peter Beinart, writing the TRB column for The New Republic(registration required), argues that the Democrats ought to be the party of no ideas this fall. (No, that's not a typo.) He thinks that the voters will express their dissatisfaction with the GOP at the polls as long as the Democrats don't say what they'd do differently. From their, Beinart suggests, it'd be all downhill.

At least he's honest.

Community columnist on same-sex marriage

I don't want to spend a lot of time criticizing the new batch of community columnists at the Journal-Sentinel. That would just look wrong, but responding to Tom Biehl's Friday column on same-sex marriage is, I suppose, a way of taking it seriously.

Biehl, who is an English teacher at MPS, is obviously schooled in the art of good propaganda and bad argument. He says that the argument against same-sex marriage is about "tradition" and then goes on to associate marriage with all sorts of traditional human failings. Tradition must be bad.

But saying that the argument that marriage should be limited to one man and one woman is about tradition is an enormous oversimplification. The argument extends beyond the existence of "a" tradition to explore what "the" tradition is based on, in this case, an institution which serves to, for lack of a better word, "domesticate" sexual urges shared by 98% of the population that can and do produce children - often unintentionally. The fact that all married couples don't have children - or that some can't and don't intend to - doesn't change that. Limiting marriage to only those couples who will procreate would be unworkable and is not necessary to support marriage as the type of social norm that promotes, however imperfectly, a stable family headed by a child's mother and father.

The fact that marriage is singled out for a special type of social and legal recognition and comes with a set of reciprocal rights and benefits flows from that, not, as Biel would have it, the mere fact that two (or some other number) people can "succeed at caring, supporting and loving each other over time." Married couple should do that - and the institution is designed to increase the prospects that they do - but their mere willingness to do so is, at most, a necessary, but insufficient condition If marriage was just about helping people to love and support one another, there would be no need for presumptions of economic vulnerability on the part of one of the parties or for an elaborate requirement of divorce. There would, in fact, be no need to require - or presume - that the relationship is conjugal and no real reason to limit it to two people.

There is, however, a sense in which the debate over same-sex marriage does reduce to how one feels about tradition and what happens when it is abruptly abandoned. The proponents of same-sex marriage are either 1)comfortable in assuming that changing the definition (and,necessarily, the reasons for)an institution won't change the institution itself or 2)(and this is where lots of the scholarship and theoretical energy is) they want to change the institution - even to destroy it as a remnant of a patriarchal past.

We can argue about that, but that argument is not, as Biel says, about "discrimination." If the purpose of marriage is as I describe then there is no need to, and reasons not to, extend it to same-sex pairings. The question that presents is no more about discrimination than the argument about whether to extend veterans benefits to non-veterans.

Mac-Mac - nine days to a deserved obscurity

Larraine McNamara-McGraw's suggestion that maybe the police shot Candace Moss is irresponsible even by her standards. While I'd like to think it's just a manifestation of her special brand of silliness, I am not sure that she is really that dumb. It's hard not to see this as cynical race-baiting of the very worst sort. She would be, perhaps, the worst district attorney in the country. Good thing she has less chance of winning than I do of running a four minute mile.

She suggests that the Journal-Sentinel's report that the child was killed by errant bullets is an "insensitive article that is dividing our community." She apparently thinks it would be better to pretend that people in the central city are not at the mercy of lawless thugs. Hers would be a rather bloody sensitivity.

Religion of peace

Theodore Dalrymple has an interesting piece in the latest issue of National Review. He writes about the false "comfort" of "knowing" that most Muslims don't want to kill anyone. "Is it much of a consolation to know that, in a crowd in which there is someone who is determined to kill you, there are many more people who have no such desire."

He writes of the Islamic concept of taqiyya in which a Muslim may disavow his religious beliefs if it necessary to do so. He notes that the so many of the bombers in England presented themselves as perfectly integrated into British society.

For me, this puts perspective on whether, in response to the threat posed by Islamofascist terror, we "should" profile? It's a phony question. Given human nature (we are stubbornly unable to ignore what is plainly in front of us), we will profile. The better question is how?

Marriage on trial

We taped a public TV "mock trial" on the marriage amendment last night. I am not going to comment on how it went, other than to say that my opposing counsel (Michelle LaVigne of the UW Law School who is a very good lawyer) and I both agreed that trying to use a trial format to address these issues and then imposing the time limits that TV requires resulted in a process that, for each of us, was like trying to push a camel through the eye of a needle.

I will also say that the public television people were admirably gracious and professional.

Mack is back in town

Blogging was slow because I have gotten crazy busy, but it stopped because I have spent the last week in Oregon for a family wedding. I didn't even have time to say that I would be gone. When I got out there, my laptop turned up dead.

But I did spend a lot of time working on getting witnesses for the public TV marriage amendment trial. I think it'll be a pretty good exposition of the issues presented by the amendment. I am certainly happy with what I have.

Shark and Shepherd on the Air

This afternoon at 4:30 on WMCS-1290. Hear about merging the city and the county, the Dems war against David Clarke, the return of racial profiling and paying fired cops. Find out about the statutory and common law powers of the coroner.

ACLU, et al., v. National Security Agency, et al.

I have taken a preliminary look at Judge Anna Diggs Taylor's decision enjoining the NSA's Terrorist Surveillance Program. Whether or not you think she got it right, the opinion is embarassingly simplistic. She simply doesn't address the issues that have divided legal commentators since the existence of the program was disclosed. For example, she finds that the program violates the Fourth Amendment without addressing any of the arguments that many, if not most, commentators have found to have established that it doesn't. She thinks that the program "obviously" violates the Fourth Amendment without addressing any of the potential exceptions to a warrant requirement (e.g., by analogy to border searches which do not require warrants or a "foreign intelligence" exception left open by the Supreme Court in the Keith case). All she really does is say that the "bill of rights" must be relied notwithstanding Congress' Authorization for the Use of Military Force in conducting the War on Terror, but that doesn't answer the question of what the "bill of rights" requires with respect to the gathering of foreign inteliigence from international communications.

She may have done this because she wanted to resolve the case without getting hung up on the government's assertion of the "state secrets" privilege. The government had argued that the case had to be dismissed because disclosure of the program's details would reveal state secrets and harm the national interest. She agreed that the government had properly asserted that privilege, but went on to rule anyway, saying that she didn't need to know the details of the program. A more thorough and intelligent analysis of the Fourth Amendment issues might have required that.

I think there is still a good chance that the case will get kicked for lack of standing. Only people who have suffered a sufficently concrete injury are able to sue and none of the plaintiffs here could show that any of their communications had been monitored. She held that there was standing because the plaintiffs alleged that their sources were deterred from speaking on the phone due to the existence of the program. But the Supreme Court has held that an allegation that communication is chilled by the mere existence of a survaillance program does not confer standing. She tried to distinguish that case by arguing that the plaintiffs here alleged that their sources really wouldn't talk on the phone amd that there is a more direct relation between the TSP and the calls they want to make than was present in the prior case. That might work (its a lot better than the Fourth amendment analysis). It does respond to a natural inclination to avoid a Catch -22 (i.e., you can't challenge our program for monitioring your calls in secret because you don't know if we did it and we won't tell you if you did it because it's a secret), but it isn't self evident. Any program of goverment surveillance - even the FISA court and the taps that it orders - may have a chilling effect on persons who may be subject to them. Does that mean that those persons could challenge the constitutionality of those programs without demonstrating that any of their communications had been monitored? I don't know that the Sixth Circuit (or the Supremes) will want to open that door.

In short, I think this is far from the last word and, as a first one, its not well put.

Donovan Riley's terrible, horrible,no good, very bad day.

Democrat state senate candidate Donovan Riley has been accused of voting twice in the 2000 elections and Owen Robinson points out that it is almost impossible to prove that he did it - as opposed to being the victim of a clerical error. Maybe, but Riley's response - "it's possible I made a mistake" - is tantamount to an admission. Just how would you make a "mistake" that involved voting twice in the same election? I'm assuming that he used at least one absentee ballot. Did he forget about it when he sent the second one or showed up at the polls?

In my experience, people who do not want to admit to something are more likely to catch amnesia than to deny it. It's easier to convince yourself that you don't recall and it doesn't feel like lying. I can't say that this is the case here, but saying that you "might have done it" but don't recall is only a little better than saying you did it.

As for the alleged crime, what a stupid thing to do. It's not as if a single person voting twice will change the results of an election (although it might if lots of people did). It is really more an act of arrogance and self centeredness. I want to vote in both of the places that I live and, even though its illegal, I'm going to do it.

On the shores of the big lake they call Gitche Gume

I'm back from three days in Ashland for depositions. There is always something about a few long days of putting words into someone body's mouth that is both exhilarating and exhausting. It's kind of like trying to paint a picture with someone else's hand on the brush.

World Trade Center

The Reddess and I saw World Trade Center tonight. Not a review, but a few observations.

1. To be reminded of the gallantry of the police and fire services in New York that day is to wonder why you wasted your life sitting behind a desk. The story of McLoughlin, Jimeno and their families is hopeful, but what is really hopeful (as the movie makes explicit) is the heroism of hundreds of mostly nameless men and women who gave a damn.

2. I can't believe Oliver Stone made this movie. Arianna Huffington tried to dispel the obvious implications of the film by referring to a sequence in which people around the world see what happened in dismay. I do recall the global horror, but this is one false note in the film. We all know that there was one part of the world that cheered the 9-11 attacks and they are missing from Stone's montage. The absence is so evident - really as to make me wonder whether Stone was trying to make a subtle point and marvel at how Arianna could be that obtuse.

3. What really impressed me was Stone's quite accurate depiction of retired Marine David Karnes. Arianna is right to note he could never be depicted in a movie if he weren't true. But she thinks that Karnes who, after locating the trapped cops, says he's not going into work that morning because it's going to "take some good men to avenge this", is ultimately portrayed as an ironic figure because he goes on to serve two tours in Iraq which has nothing to do with the carnage we see in the movie. (She recognizes others may seem him as iconic; I do.)


4. As to Arianna's point about the unrelatedness of Iraq and 9-11, this has always struck me as willfully reductionist and singleminded. In the immediate aftermath of 9-11, I had a conversation with local Democrat attorney Matt Flynn. I don't agree much with Matt, but he said something insightful that day. Osama bin Laden, he said, was almost a metaphor. Kill him and there would be hundreds more crawling out of the desert. What is really ironic about the left's take on Iraq (it was about WMDs; Saddam had nothing to do with terror), is that old simple-minded George W. Bush grasped that. Although we mostly refuse to say so, the enemy here is not some discrete force called "terrorists", but an Islamic fascist movement that consists of discrete manifestations such as al Qaeda, Hamas and Hezbollah. Sometimes they work together and sometimes they don't. Sometimes they are supported by opportunistic secular Baathists - as Saddam did and as Syria is now doing in Lebanon. Eliminating them means eliminating the movement within Islam (present in the mideast and, sadly, now in much of Europe)that hates and seeks to overthrow western culture and modernity.

5. The movie brings tears (again people leave a movie in utter silence), but like United 93, it provokes anger. I could not help to think that civilian deaths in Lebanon provoke anger as well. War is an awful thing and the way in which modern warfare too often involves noncombatants is a tragedy. But to respond to that with an assumption of moral equivalence is just to ensure that it will continue. The "cycle of violence" idea is a real one and sometimes the best way to end it is to simply stop. But when one side doesn't want to stop - when they actually welcome it as Hezbollah certainly does - that won't work.

As Tony Blair says "defeat it we must."

Shark and Shepherd on the Air

Once again you can catch my pearls of wisdom on Eric Von's show this afternoon from 4:30 to 6:00. WMCS-1290.

The Brave New World sort of sucks

Two things strike me about the (hopefully) foiled London terrorist plot - and not for the first time. First, technology has enabled small groups of people to be enormously destructive. Second, our traditional notions regarding the balance of civil liberties and protection of the public don't take that into account. We have generally thought that the government may not invade a person's "privacy" (however that may be defined) until it has a justification rooted in a particularized suspicion about that particular person. Once that justification is established, however, substantial encroachments on his or her privacy are permitted. Although the law does recognize lesser invasions for lesser reasons, our rules focus on individualized suspicion and have an "all or nothing" character about them.

The new world may require rethinking this. It may be that lesser invasions of persons' privacy (say computer - as opposed to human - monitoring of cell phone calls) are, under certain circumstances, going to have to be based upon reasonable probability as opposed to individualized probable cause. Civil libertarians are right to suggest that this creates real risk of abuse, but the debate may have to be about how to protect against those abuses, rather than to insist upon 20th century notions of what and when the government can search in a 21st century world.

Dems lieben Joe nicht.

The real impact of Joe Lieberman's loss is that it will make Democrat politicians more wary of, and cause them to cater to, the "netroots." This is a great day to be a Republican. But it's a sad day for the country. Joe Lieberman did not deserve that.

Sex and drugs and rock and roll

Patrick McIlheran links to an essay by Joseph Pierce at the website of the journal First Things in the sexualization of childhood and to the report of a study which supports the common sense notion that sexually explicit and violent entertainment encourage, you know, sex and violence.

What struck me was a statement attributed to a hip-hop executive who said that "explicit music lyrics are a cultural expression that reflect "social and economic realities ...."

Isn't this the prototypical argument of the social libertine? Permissive practices on, you name it, sex education, sex and violence in music, tv shows and video games, drugs are all defended in the name of "reality." You've got to know what time it is out on the street. You've got to be with what's happening today.

This isn't completely wrong. Clinging to the ideal in ignorance of the actual can lead to a great deal of misery.

But it is wrong in that it is not complete. What we regard as acceptable shapes reality as well as reflects it. Those in authority haven't just recognized the loss of innocence; they have helped to bring it about.

No Jesus in St. Bernard's

The Lousiana ACLU is upset over a memorial to be erected in St. Bernard's parish in remembrance of those who lost their lives to Katrina. The monument will apparently feature the face of Jesus Christ.

The legal issues are going to turn on whether this is a private or government sponsored undertaking, although, in my view, they should not. This ought not to be considered an establishment of religion, no matter how involved the government may be. While it may offend the sensitive, it neither coerces nor meaningfully abridges religious pluralism.

Regrettably, that is not the law, although the Shark has just about finished a law review article explaining why it should be.

H/T: Religion Clause blog.

Shark goes Hollywood - or, at least, Madison

Owen Robinson says that he reluctantly agreed to participate in the blog debate on the marriage amendment, at least in part because of the difficulty that public television had in finding someone to participate on the "yes" side for a project they are planning. He wrote:

What tipped me over was a news story from WPR (I think) that said that they were unable to get anyone to debate the “pro” side of the amendment on the air. Given that polls show that at least half of the people of Wisconsin support the amendment, I found it appalling that nobody was willing to step up

It was, of course, Wisconsin public television and what they were looking for was an attorney to particpate in a "mock trial" on the amendment.

I feel guilty if Owen based his decision on the absence of a pro-amendment lawyer because WPTV did get some applicants for the gig and the lawyer for "yes" will be ... me.

I don't know how many people will see the show but I can tell you that my case will feature no religious argument or contention that homosexuality is immoral (other than, perhaps, to acknowledge that many people do have religious and moral objections). Amendment opponents say that proponents can't do that. We'll see.

I expect this to be a learning experience. Watch this space for details.

In the meantime, I suspect that the Great Blog Debate will be very interesting.

Give up on the tax haven thing

Jeff Browne, president of the Milwaukee Public Policy Forum and author of the idea the city of Milwaukee is a tax haven, loves the property tax. He may be the first person that I have ever seen call the property tax progressive. Work done at the UW's LaFollette School of Public Affairs, for example, concluded that it is regressive, as have just about everything else I have ever read on the subject. The LaFollette school (the one with a big old picture of Hillary on its home page)did a tax incidence study concluding that "lower income households [are] forced to devote a larger share of their income to [property] taxes than higher income households."
A recent study of tax incidence by the Department of Revenue found the same thing.

The Reddess and I are looking at property in the city. Homes with the same value have property tax bills that are more than twice what we pay in Mequon. We'll probably choose to pay the taxes, but to call Milwaukee a tax haven is to beggar reality.

Jeff Browne just likes taxes and he'll say anything to defend them.

Rice must have pictures of Chirac

Perhaps others have noted it (I'm behind on my blog reading), but I thought that the headline in my pulp copy of the Milwaukee Journal Sentinel on the proposed Security Council resolution was a tad misleading. The online tag seems more accurate.

On dead tree, at least, the paper said that Israel and Hezbollah are not prepared to abide by ceasefire. In fact, it seems that what has happened is that the US has somehow gotten the French to agree to a reasonable resolution of this. Israel holds its ground until an international peacekeeping force is on the ground. Hezbollah gets disarmed (which will take a war) and arms supplies are interdicted. This is precisely what should happen and Hezbollah has promptly rejected the idea, belying the notion that it is, in any sense, engaged in a defensive war.

This all may be just as well because I doubt the UN would follow through on this and, without these things happening, there isn't going to be any peace in south Lebanon or across the Israeli-Lebanese border.

More misdirection from Governor Doyle

Governor Doyle's speech at the Center for American Progress was his usual unreflective effort. He says that he vetoed a bill that would have outlawed the most "promising techniques" used by scientists. What he vetoed was a bill that banned so-called "therapeutic cloning," technically known as somatic cell nuclear transfer. You take an unfertilized egg, remove the nucleus and then add the nucleus of a somatic (body) cell from the person for whom you want to clone an (almost) identical embryo.

People argue that this is not human cloning because they do not intend to implant the embryo and allow it to develop past the blastocyst stage. Embryo-destructive stem cell research has not advanced to the stage where there's any point in doing that. But you have created what is, at the very least, a living human "entity" and, since Governor Doyle in ending his speech, says the "good science" should be our guide, what do we do when the next step that is urged is to implant the cloned embryo? Does anyone doubt that scientists will claim that this too could result in miracle cures? Why is it the governor refers to this as a "technique" which he choose not to decribe. Why, in his attack ad against Mark Green, did he conflate this with stem cell research generally. When people don't want to speak plainly, I get nervous.

I'm going to have to start sucking up to her

Apparently it was Jessica McBride's opinions (scroll down) that led us into the war in Iraq. I had no idea that she wielded that kind of influence.

Shark and Shepherd on the Air

This afternoon. 4:30 to 6:00. WMCS-1290. Catch it.

Plain talk from Iran

Iranian President Mahmoud Ahmadinejad has the solution to the crisis in the Middle East - destroy Israel.

I think he's done us all a favor by making plain what is at stake. He also makes clear that he wants 1)an immediate "ceasefire" (presumably to last until Hezbollah's next op) and 2) no international peacekeeping force. Both are in service to what he has admitted to be his larger goal.

More on Mel

Patrick McIhleran has an excellent post on the Mel Gibson thing, suggesting that what is in his heart may be less important than how he deals with it. I agree, as long as he recognizes what is there, and struggles against it.

AFSCME to County: "How do you like me now?"

The fact that Milwaukee County owes its next six generations to retirees is not news, although the latest revelations never cease to amaze. The county is apparently on the hook for 1.4 billion dollars in retiree health care and nonpension benefits. This is roughly ten times the average for a county and over 50% higher than the next most profligate county government, Oakland County, Michigan.

But here is what the head of the public-spirited District 48 Council 48 of AFSCME has to say about that:

Rich Abelson, executive director of the largest county union, criticized Walker's comments as "knee-jerk" anti-unionism. The new estimate is not a serious concern, because all municipalities have to deal with the issue, he said.

"We've done very well paying as you go," said Abelson, of District Council 48, American Federation of State, County and Municipal Employees.

To say that all municipalities have to deal with the issue is sort of like saying that your maxed out credit cards are not a problem because I've got to pay my thirteen dollar balance as well. I'd much rather he was honest. I'd much prefer that he say "Look, we've taken down you for everything you've got and there's not a damn thing you can do about it. Shut up and send the checks."

Who's responsible for Qana?

Via the Volokh Conspiracy, the EU Referendum blog seems to have determined that widely disseminated photos of the aftermath of the Qana bombing were staged and raises questions as to the identity of a Lebanese "rescue worker" who seems to have a Gumpian capacity to be where the action is.

This isn't to suggest that the incident did not occur or even that it was not the result of an Israeli attack (as opposed to a Hezbollah "false flag" operation - where's Kevin Barrett on this one?), but it does underscore what's going on in Lebanon.

Qana is exactly what Hezbollah wanted. When you fire rockets at the enemy and then turn and run like cowards, diving under the skirts of innocent women and children, this is exactly what you get. It is tragic, but it is a completely predictable and desired part of Hezbollah's campaign.

Here's a little law, cribbed from my old Professor Alan Dershowitz. Let's say you rob a bank and grab a teller to use as a human shield as you escape. If the police, in an effort to stop you, accidentally kill her, you are looking at felony murder. It's on you.

Is Mark Green the man of the People?

Jay Bullock finds a certain moral authority in the fact that Russ Feingold's decidedly middle-to-bottom of the pack fundraising comes from small donors. He writes:

But in a second, larger sense, this also speaks to the broad appeal of Feingold's message; people aren't donating to him because they are big-money folks who want to back a winner, but rather because they are your average joes who like what Russ has been saying and doing

So I'm waiting to see what Jay will make of this little gem from this morning's Journal-Sentinel:

Doyle received much larger average contributions than Green, $440 to $176, and more maximum contributions - $10,000 for individuals.