Being Xoff means never having to say you're sorry

Dad29 wondered whether the shooter at South Shore Park was an illegal immigrant. Xoff thought that was a nasty bit of work. But it turns out that the answer to Dad's question is "yes."

That's got to hurt. Dad to Bill: "How do you like me now?"

Christofferson's job is to throw those talking points at the wall and see what sticks. I have fisked him regularly on his misunderstandings. Never conceded. He's a smart guy who makes a number of good points, but he follows the ethic of the political consultant. If you are wrong today, tomorrow is another one. Credibility is someone else's burden. It's Al Davis' world. Just win, baby.

I actually agree with him in the sense that I wouldn't think the shooter's immigration status is the most important thing about him. But then again, I haven't thrown in with the peculiar notion that being here illegally is no more important than whether one prefers Ginger or Mary Anne. Entering the country as an outlaw might be related to how you view its laws. If you want us to believe that we should have no authority over who is here and who is not, then you better pray that "immigrants" do not embarrass you.

What do you see in McGee?

A few odd things come together in my mind over a weekend in which we had 28 shootings.

The first was Eugene Kane's column about Michael McGee, Jr. Kane tells the tale of two McGees - or of one McGee and a Jackson - or some other multiple of any given set of names. Yes, he's a boor, but he has all these accomplishments. Somewhere - deep inside - he has the right stuff. In this, I think Kane represents a significant, although by no means universal, strand of thought within the African American community.

The most striking thing about these "accomplishments" is how irrelevant they are to any of the serious problems faced by McGee's consituents. He pushed a law to require companies who do business with the city to find out if they - or more accurately a predecessor five times removed - ever engaged in a transaction in which slaves were involved. 150 or more years ago. That'll sure improve things down at 27th & North.

He wanted to find a "safe haven" for cruisers, say a malt shoppe or more of the ubiquitous midnight basketball. He opposed an anti-loitering law because everyone knows that the real source of stray bullets in his district is not open air drug bazaars and the disputes that arise from them, but overzealous cops. Anyway, since McGee has told the community to "stop snitching," no one has anything to fear from the gangbangers down the corner. There's a clever bit of peacemaking.

After a tragic drowning, he wanted to put up warning signs along the Milwaukee River. I'm not sure what they were going to say. Maybe "This is water. Don't fall in."

He wanted to buy back guns. We all know how effective those are in taking guns out of the hands of criminals. If you have a choice between keeping a gun to defend your drug house or to protect yourself from the Egyptian Cobras or selling it to Mike McGee for fifty bucks, well, that's just a no-brainer, isn't it?

He did take a leading rule in protesting the Frank Jude verdict. I'll give him that. I guess that made him too busy to protest the murder of a witness who identified the thugs who beat a young man to death. Well, he told them not to snitch. I guess he can't do everything.

Why defend this guy? I am reminded, ironically, of Randy Newman's old song Rednecks. (Warning: offensive lyrics.) It begins:

Last night I saw Lester Maddox on a TV show
With some smart ass New York Jew
And the Jew laughed at Lester Maddox
And the audience laughed at Lester Maddox too
Well he may be a fool but he's our fool
If they think they're better than him they're wrong
So I went to the park and I took some paper along
And that's where I made this song

Georgia had to give up on Lester Maddox

More later.

Alfonzo Glover kills himself

For the first time ever, DA Mike McCann ignores the finding of an inquest jury and charges a police officer who the jury had cleared. Several hours later, the cop kills himself.

Who knows what to make of this? Does the officer's suicide reflect an awareness of his own guilt? That could be, but the incident seems to have been one of those quick and confused things. The cop may have been wrong, but did he really intend murder? Or did he just make a horrible mistake because he was scared?

Did the cop kill himself because he felt he was about to be sacrificed for the sins of the Jude cops?

Community reaction to all of this may be complicated because, in this case, the charged officer was African-American. The usual script doesn't apply.

The one thing that shouldn't happen is people taking positions based on their political predelictions. You can argue that the inquest procedure is flawed and/or that the police need to be supported. But, when people's lives are at stake in particular cases, the facts are what matters.

Missing the forest for the trees

Two guys are arguing about the Bible and one stabs the other. Perhaps the two had just seen The DaVinci Code and were arguing over the Nicene controversy between the greek verbs homousia and homoiousia. You'd sure cut a guy behind that.

"I believe it is appropriate to have an over-representation of factual presentations on how dangerous it is..."

So says Al Gore on global warming. What did he mean? His defenders say that he was simply suggesting that now is the time to talk about the problem and not the solution. This is supported, although not entirely, about the question he was asked ("do we scare them or give them hope") and his next statement that says we are in something called "Category 5 denial" and that we can discuss solutions later.

On the other hand, it seems just as plausible to read his statement as an endorsement of useful exaggeration, of providing information that is "inaccurate, but true."

His movie seems to be an example of the latter..

We showed him, didn't we?

Brian Leiter is a legal philosopher who runs a blog which, near as I can tell, consists largely of Professor Leiter telling us that everyone who disagrees with him is ignorant, undistinguished and dishonest. Leiter is a well-regarded academic, but there's not much hint of why on his blog.

In any event, he's taken with the New School senior who spoke before John McCain at that school's commencement and criticized the university for inviting him. Leiter thinks that the student, Jean Rohe, has written a "nice rejoinder" to her critics.

The rejoinder is full of the smugness of the unreflective. Rohe, who apparently wrote her comments in about an hour at 2 in the morning of the commencement, thinks she is all that. Of meeting McCain, she writes:


I almost wanted to warn the guy that I was about to make him look like an idiot so that he would at least have a fighting chance and an extra moment to change his speech to save himself. But he didn't even make eye contact when we shook hands, so I figured I didn't owe him anything.

After the speech, she shook McCain's hand and apologized. "Sorry, man, I just had to do it." She says McCain mumbled something in response. No doubt. He's probably unaccustomed to apologies from a mosquito.

So how did she "tear apart" McCain. She presumably thinks that comments like this are devastating:

Finally, Senator McCain will tell us that we, those of us who are Americans, "have nothing to fear from each other." I agree strongly with this, but I take it one step further. We have nothing to fear from anyone on this living planet.

Wow, man.

As Ann Coulter points out, this is laughably naive. Apparently the ability to see the world as it is is not a requirement for getting through the New School.

Rohe may have an excuse. Undue infatuation with one's point of view is a hazard of youth. But the distinguished Professor Leiter actually thinks shouting over McCain's remarks was a good idea.

There really isn't an obligation to listen politely to recycled claptrap and lies that pollute our public culture 24/7 and that we have all heard before. Among the skills the educated ought to acquire are the skills that enable them to discriminate on the merits of what is being said. If an educational institution invites a dishonest apologist for war crimes to speak, it should not expect educated young people to nod their heads approvingly.

It has generally been my experience that one must listen to what is being said to assess it's merits. But then again I suppose I am just not as smart as Professor Leiter and Ms. Rohe.

Hate mail is diverse

My fellow community columnist Lois Moore's latest piece offers advice to those who are considering trying out for the next group. Be ready, she says, for nasty e-mails from right-wingers egged on by talk radio. They will, the left-leaning Moore cautions, call you names.

I sympathize with Lois, but I think I can reassure her. I don't know who eggs them on, but her side has plenty of folks who have not hesitated to express, in sundry colorful ways, the view that my very existence is a tragedy. Boorishness is thoroughly bi-partisan.

Its very OK Corral out there

Geez, the Journal Sentinel's Daywatch has put up reports of three separate shooing incidents - at least two of which involved fatalities - in six minutes. I understand that the releases were probably made together, but still ....

Short people get no prison

A judge in Nebraska believed that the defendant standing before her, convicted of sexually assaulting a 12 year old girl, deserved a long prison sentence. But she declined to impose it because he is only 5'1" and, in her view, would have had a hard time in prison.

I have to confess that some years ago, on a much less serious offense, I got a shrink to testify at sentencing who essentially said, through a lot of psychobabble, that my client did not like black people and would act like a jerk and get himself (probably justifiably)stomped in prison. It worked, but I thought that took huevos grande.

I can just see where this will lead. Guys used to pretend they were gay to get out of the draft, now it'll be a sentencing strategy. Look, your Honor, what happened to Vito on the Sopranos. Guys will be going on starvation diets. Look, your Honor, I'm a 99 lb weakling. I'll be toast.

Fighting cancer by electing Dems

Peg Lautenschlager's office agreed to a settlement of Wisconsin's claim in a class action suit pending in Boston. The lawsuit alleged illegal marketing practices on the part of a manufacture of a cancer drug. The settlement was for $ 798000 and was to be disbursed to "organizations engaged in the care and treatment of cancer or promotion of improved health care for Wisconsin citizens." And most of it was, except for $50000 to Wisconsin Citizen Action which, anyway you slice it, is a liberal advocacy group actively engaged in the political process. When you go to the page where CA defines itself, it calls itself a grassroots organization focused on "key issues and elections" in Wisconsin. It describes its mission as to "win improvements that matter in our daily lives, give people a sense of their own power to shape the future and alter the relations of power to favor people over wealthy special interests." Its affiliates include "AARP-Wisconsin, Wisconsin State AFL-CIO, Wisconsin Education Association Council, Clean Wisconsin, Coalition of WI Aging Groups, Planned Parenthood, Lutheran Office of Public Policy in Wisconsin, NAACP, Voces de la Frontera, Wisconsin Council of Churches and the Potawatomi and Menominee Indian Tribes of WI."

Although it claims to have 34% GOP membership, I distrust that number. It's causes and proposed solutions are almost exclusively Democrat causes and solutions. Among the recent efforts that it claims pride in is "targeting" Mark Green's position on social security in the year before the gubernatorial election.

That's all fine, but what is Lautenschlager doing handing money that's supposed to go to treating cancer and promoting health care to a political organization. JB Van Hollen wonders too and put out a press release.

Cory Liebman thinks he has thoroughly fisked Van Hollen by pointing out that, while CA may not actually provide medical care or even health education, some of the liberal policies that it pursues have to do with health care. Liebman thinks those policies are good so advocating for them or trying to elect people who support them is "promoting health care." I suppose that he thinks it would also be OK for the money to be given to a group that supports Medical Savings Accounts or deregulation of the health care industry or to a group that seeks to promote conservative health care policies and to elect the politicians who support them.

Liebman says that, well CA was an "organizational plaintiff." It is not unusual for a settlement to reimburse named plaintiffs in class actions, but, whether or not they were actually a party in the case in which the settlement was reached, that's not what this settlement did. It did not award money to named plaintiffs, it awarded money to be used for specified purposes and turning any of it over to a political advocacy group is a very strained reading of those purposes.

"You know they're ..."

Jay Bullock offers some pub to an upcoming benefit called "Dudes for Choice." This reminds me of Chris Rock's take on abortion and why he just loves to go to pro-abortion rallies.

Shark gets off high horse

The Reddess tells me that, on the radio yesterday, I was a bit too cavalier about MATC instructors earning an average of $ 90,000 which is more than the average tenured faculty member at UW. My point is that a tenured professor at a major university is generally regarded as more accomplished in his or field than an instructor at a technical college. The job is harder to get, you have to be published, etc.

But that doesn't mean that technical college instructors aren't smart people. Maybe some of them should be tenured professors at a major university. Maybe some don't want to. My point was only that, taking both groups as a whole, something is wrong here.

So for the four people who both heard me on the radio and read this blog, if any of you are technical college instructors, I apologize. I meant no offense.

Who wants to be my daddy?

Via Owen, Mike McGee, Jr. now says that the problem is that he wants a passport. But his birth certificate (that he does not have) lists his name as Michael Jackson (to whom he cannot be connected). The reason, he says, is that his father was adopted after Junior was born and after he returned from Viet Nam. He can't get a passport because the birth certificate (which he must have just found!) does not match his name.

Could be. You can get a passport without a birth certificate but there are some extra hoops to go through. It also could be that McGee Sr. was adopted after a tour of duty in Viet Nam. It's never too late.

Take me, for example. I really admire Warren Buffet. Once I called his former daughter-in-law, Mary, as a witness at an arbitration. She thought I was nice. I think I'd make a fine Buffet.

Now I get it

Alderman Michael McGee, Jr., has released a statement admitting an extramarital affair. But maybe, despite his confession, he remains innocent because, while Michael McGee had an affair, he is really Michael Jackson

More on McGee

While I still suspect that McGee's name change petition was an effort at crisis management, it seems to be a fairly clueless one.

First, if the problem is that his given name is not McGee, it may not have been necessary to actually file a name change petition. While Wisconsin has a statute that sets forth a process to change one's name by going to court, it is not the only way to change your name. Our Supreme Court has made clear that Wisconsin recognizes common law name changes which are accomplished by nothing more than "consistent and continuous use" of the new name as long as it is not done for fraudulent purposes. So if he's always been McGee and didn't become McGee to defraud someone (the voters?), he didn't need to do this.

Maybe the problem is that he is not always McGee. Jed at Boots and Sabers says that a quick public records check shows no driver's license issue to a Michael I. McGee, but that there is a driver's license issued to a Michael I. Jackson who is of the proper age (although who can really know what that should be?). But if he the problem is that he uses multiple names, when is he not McGee and why?

Maybe he is thoroughly McGee, but was just trying to err on the side of caution by filing a court petition. But, if so, why did he react the way he did to inquiries from reporters? At first, he said it was not a big deal and he'd discuss it later. Then he seemingly tried to disassociate himself from the petition as if he was laying the groundwork to abandon it. It's almost as if he decided it wasn't a good idea after he considered the implications of public disclosure.

But he couldn't have thought that he'd avoid public disclosure. He's a politician who certainly knew that he'd be recognized when he went to court. Besides, this statutory process requires that he publish a notice of the petition (which, if he did it correctly, should have already happened). And if the thing was done in response to a revelation that he is not McGee (because a scorned woman is about to out him or as a result of paternity testing?), the whole stupid idea was presumably to have a trump card that he could waive around claiming that, yes, he is McGee.

Or maybe he is McGee and found out his birth certificate is incorrect (when he said he didn't "have one", I suspect he meant it wasn't currently in his hands), but then why all the dissembling?

The bottom line, once again, is that McGee/Jackson is just a guy whose bulb shines dimly and whose default mode is hostility. Trying to figure out what someone else is up to is helped by the presumption that people act rationally. That presumption may not be applicable here.

Bishops thrown down on Doyle

The state's Roman Catholic bishops have quite properly sent a letter to Governor Doyle expressing their opposition to embryonic stem cell research. Three observations.

This has nothing to do with the separation of church and state. Religious leaders are perfectly free to bear moral witness on matters of public policy. Remember, again, that the civil rights movement was chock full of clergy, including the Rev. Dr. Martin Luther King. The Rev. Dr. King spoke to segregation in explicitly Christian terms.

Doyle's response is disingenous. In response to the Bishop's letter, he says:

"The ultimate question isn't whether embryos will be destroyed, but whether we should allow a few of those unused embryos to be utilized saving lives instead of discarding them,"

But just six months ago, Doyle vetoed a ban on human cloning, citing all the money brought into the state by the NIH's National Stem Cell Bank.

This is all about economics. I am no scientist but my sense is that the science is moving in a way that makes adult stem cells just as robust as embryonic stem cells. To date, they have been far more effective in therapeutic settings (although, in fairness, ES research is relatively new.)Yet the UW owns important patents on embryonic stem cell processes. The National Stem Cell Bank was created to consolidate embryonic stem cell lines.

McGee? Jackson? Whatever !

Michael McGee, Jr., has ceased to be a public official and is now simply a foil for public entertainment. His petition to change his name from "Michael Jackson" to "Michael McGee", combined with his silly reaction to inquiries from a reporter, is just the latest episode. My guess is that this is a preemptive move in advance of a revelation that is about to come out of what I assume is the alderman's deeply roiled personal life. I sense a major implosion coming (heck, it's well underway), but will any of his constituents care?

Or will they continue to vote for him because the white community doesn't like him.

Shark and Shepherd on Dead Tree

My latest column is in tomorrow morning's paper. Read it on paper and read it online. Just read it. While you can.

UW Admission Policy - Is it really new?

Owen on his blog and Charlie Sykes on the radio and in the blogosphere are critical of UW's "new" admissions policy.

They are right to be critical of the policy, but I don't know that, in the end of the day, it will differ all that much from the old one. The change seems to be entirely in response to the Supreme Court's 2003 decisions in Gratz and Grutter. In those cases, the Supreme Court continued the trend, started by Justice Powell, in his Bakke opinion that race can be a factor in college admissions, but not too much of a factor. So rigid quotas are out (that was Bakke) and a process that considers minorities separately or that provides so many points for minority status that it virtually guarantees admission to all minimally qualified minorites (that was Gratz. But Grutter reaffirmed that you could use race as a "plus" factor in an individualized consideration of each applicant.

While the stated intent is to ensure that the use of race is narrowly tailored to a compelling need, i.e., "diversity," I think that what this really ensures is that no one will know precisely what factor race does play in the admissions process. The end result is that universities use race as much as they want but make sure that they are not too obvious about it.

UW was apparently dropping out minorities and considering them separately where necessary. That's too transparent. They need to be opaque. That's what this is about. I am fairly sure that UW has been trying to get the "best" minority numbers that it could all along and that it will continue to do so. I am not sure you're going to see much change in who gets in and who does not.

For the class of 2006

The back page of the Weekly Standard is always a parody of some recent news item. You have to be a subscriber to read it on line, but this week the jumping off point is Jodie Foster's commencement speech at Penn. Foster quoted the chorus from Eminem's song "Lose Yourself." I guess that the portion she repeated is the following:

You better lose yourself in the music, the moment
You own it, you better never let it go
You only get one shot, do not miss your chance to blow
This opportunity comes once in a lifetime yo

I have to assume she left the "yo" in there.

The parody is a commencement address given by someone identified as head of the Citizens Multicultural Consumer Interfaith Initiative of Massachusetts, He touches all the necessary parts of the commencement speech.

There is the introduction:

"Please allow me to introduce myself I'm a man of wealth and taste. I have been around for a long, long year and have stolen many a man's soul and faith. I watched with glee while your kings and queens fought for ten decades for the gods they made. I shouted out, "Who killed the Kennedys?" when, after all, it was you and me."

Then the invocation of the college experience:

"That weekend at college did not turn out as you had planned. The things that pass for knowledge I cannot understand."

And invocation of the lost innocence that often accompanies it:

"When I was young, it seemed that life was so wonderful, a miracle - beautiful, magical. And all the birds in the trees, they would be singing so happily, joyfully, playfully, watching me. But then they sent me away to teach me how to be sensical, logical, responsible, practical. And they showed me a world where I could be so dependable, clinical, intellectual, cynical."

But the future is bright:

"This is the day of the expanding man. That shape is my shape, there, - where I used to stand."

And the graduates are left with a bit of advice:

"Play that funky music, white boy. Play that funky music, right. Play that funky music, white boy. Lay down that boogie and play that funky music until you die."

Perfect.


In the unlikely event you don't know, he channels the Rolling Stones ("Sympathy for the Devil"); Steely Dan ("Reelin' in the Years" and "Deacon Blues"), Supertramp ("Logical Song") and egregious KC and the Sunshine Band ("Play that Funky Music, White Boy") and others.

Episcopal Pagans?

Professor McAdams blogs on what I take it is a proposed alternate Eucharist under consideration in the Episcopal Church that would consistently refer to "God" as "Mother."

I am an Episcopalian and, as with many things in my denomination, I have mixed feelings about this. On the one hand, there is nothing inherently wrong with female images of God. Despite the common reference to God as "Father", it is fairly standard Christian theology that God is neither male nor female.

But, as with the struggle in our church over the stance to be taken toward gays and lesbians, I fear what underlies all this. There is a strong tendency toward a certain type of gnosticism and deracinating relativism in mainline Protestant churches (and, oddly enough, in suburban megachurches as well). Rather than de-emphasize the association of God with a human gender, this revels in that association (in many of the places in which the proposed liturgy substitutes a reference to Mother or Lady, the standard liturgy simply refers to God)and it does so to a certain end; one that privileges gender politics over tradition and revelation (hence the jarring reference to "Mother Jesus").

That's where the relativism and gnosticism comes in. The tendency - and its not really all that new - is to say that traditional methods of interpretation and biblical revelation can be readily cast off in search of an underlying "meaning" that is found in the heart and is relatively unconstrained by anything outside the heart. This leads, ultimately, to the worship of something other than God, somehting like "Social Justice" that, in the end, turns out to be ourselves and our own presuppositions.

Ah dinnie ken nothin abawt that

A school in Port Washington may not get away with forcing students to answer a questionaire about their attitudes on homosexuality (and whether they might like to join the other team), but in Scotland schools are apparently going to teach gay sex ed in health classes.

I can just see all the bracing young lads falling all over themselves to flunk the final.

Money is obscene after all

For good and sundry reasons, Liberty Elementary School in Keller, Texas decided to put a big picture of a new nickel (which contains the word "liberty" on the front page of the yearbook.) Problem. The coin also contains the words "In God We Trust" and, of course, not everyone does. And since those particular "everyones" have the right never to be confronted with the fact that they hold a view that others do not share (presumably they close their eyes when they count out their change), the school photoshopped the nickel to take out the offending phrase.

But, don't worry, the school offered stickers to those families who wanted to put back the phrase.

More proof that it takes more smarts to work at McDonald's than to go into educational administration.

Better late than never

Mayor Nagin and Governor Blanco are finally getting around to think about the details of getting people out of New Orleans in the event of another hurricane. Should be easier this time since so few people are left.

NB: Isn't it ironic that the "heartless" Bush administration actually held the people who nodded on the response to Katrina responsible for their deficiencies? Nagin and Blanco are still in the game, ready to fumble again.

Dover judge channels Jefferson

The increasingly tiresome Judge John E. Jones, who presided over Kitzmiller, the Dover PA "Intelligent Design" case, recently gave the commencement address at his alma mater, Dickinson College. He said the following:

The founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry.... They possessed a great confidence in an individual's ability to understand the world and its most fundamental laws through the exercise of his or her reason.... This core set of beliefs led the founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

That is, of course, a fairly tendentious description of the faith of the Founders. It was true of some of them and not of others. What is interesting about it is that, if Jones means to say that this is the basis of and interpretive model for the "separation of church and state," it itself constitutes the establishment of a certain type of religion. It's not religiously neutral.

The idea that one finds God through one's individual experience is certainly one way of looking at religion. It's associated with modern liberal (not in our political sense) theology that dominated the mainline Protestant denominations for many years.

But another way of looking at religion is that it can only be formed in community and only in relation to the traditions of a particular community. This postliberal view of religion (which I am told is lately triumphant among theologians) says that
"true religion" can only be found in places like the Church or sources of revelation like the Bible. God may be immanent, but we find Her by looking outward and not inward. And by doing it with others. And by taking note of the experiences of those who went before us.

If you assume that "true religion" is only what Jones says it is and then allow that to inform your view of the Establishment Clause (as he did in Kitzmiller), then you've put the weight of goverment firmly in the camp of one - but only one - view of religion.

This tendency to view one's own predilections as objectively true and divinely inspired has been long characteristic of liberal modernist Protestants. George Tyrell once famously demolished the late 19th century liberal "life of Jesus" movement (which then and now generally tries to turn Jesus into George McGovern)by saying that the Christ it finds "looking back through nineteen centuries of Catholic darkness, is only the reflection of a Liberal Protestant face, seen at the bottom of a deep well"

Judge Jones looks for the faith of the founders and finds his own reflection with which he is well pleased.

Expetives deleted

The Journal Sentinel has taken up the cause of cuss control. I do not publish unexpurgated profanities on this blog. One should not assume that this means my own speech is cuss-free. If the poll that the paper cites is accurate, I use the "f-word" more than 92% of you. The Reddess' family thinks I taught her to swear like a sailor. That may be, although if so, it is the only way in which she resembles a sailor. My own view of profanity is that you must know when you can and when you can't.

And here - on this blog - no f*****g way.

Beating the dead bus

Elliott noticed, but today's editorial in the Milwaukee Journal Sentinel on mass tranit and the Milwaukee Connector raises more questions than it answers. Here's what we know. According to the paper, the current bus system carries 8% of the County's residents on any given day. I think they are double counting there, but let's look at the other side of that. My guess, based on these numbers and my own experience in this community, is that 90% of the folks who live around here never take the bus.

That doesn't necessarily end the issue because 1) the 10% who do may not have a good alternative and 2) maybe it'd be good if more people used transit.

Let's look at the first. The few people who use the bus are apparently unable to pay for the service - or at least they don't. Fare revenue covers 35% of the system's operating costs. The good news, at least for Milwaukee County residents, is that the County only pays for a bit over 10%, with the rest made up by the state and the feds.

But that's the part that is hard to raise because, as we all know, the public servants who ran Milwaukee County basically put it into debtor's prison.

Here's the disconnect. Since we can't afford to pay for 10% of a system that few people use, we should spend $300 million for a new system that will only replace a small portion of the existing one.

This is, to put it mildly, counterintuitive. The reason for this "damn the torpedoes" approach is, I guess, that the feds want to give us $91 million and we can only use it to build something new. So whether we need - or even if we can afford - this new thing doesn't matter.

But, to get to the second bit of magical thinking, perhaps if we build it they will come. Maybe people who currently decline to get on a boring conventional bus will hop on the shiny new guided tram. It'll kind of be like a luxury box on wheels.

I am not implacably opposed to mass transit, but, as I have said before, you've got to make a better case than this.

Conservatives rock

John Miller lists the top 50 conservative rock songs in the June 5 issue of National Review. You need a subscription to read it, but some are fairly obvious. "Taxman" and "Revolution" by the Beatles, "Right Here, Right Now" by Jesus Jones, "Heroes" by David Bowie, "Sweet Home Alabama" by Lynrd Skynrd and a series of more obvious but less well known songs. Still there are some gems. How about "Sympathy for the Devil" by the Stones, which Miller, calls, correctly I think, the Screwtape Letters of rock? Miller also argues that the song from which Limbaugh derives his theme, the Pretenders' "My City Was Gone," really is a conservative song. As someone who has had an inexplicable crush on the lefty Chrissie Hynde for about 27 years, I actually agree. The song is about hanging on to tradition and denounces centralized planning. Miller also includes U2's "Gloria" - not because it's a song about faith, but because the chorus is in latin. "Gloria/in te domine/Gloria/exultate

This game is fun, so I want to add a few that aren't on Miller's list.

"I'd Love to Change the World" by Ten Years After.

Everywhere is freaks and hairies
Dykes and fairies, tell me where is sanity
Tax the rich, feed the poor
Till there are no rich no more

I'd love to change the world
But I don't know what to do
So I'll leave it up to you

"My Back Pages" by Bob Dylan

A self-ordained professor's tongue
Too serious to fool
Spouted out that liberty
Is just equality in school
"Equality," I spoke the word
As if a wedding vow.
Ah, but I was so much older then,
I'm younger than that now.

"Six Days on the Road" written, I think, by Dave Dudley and done by many people including Graham Parsons and Steve Earle:

Well it seems like a month since I kissed my baby goodbye
And I can have a lot of women but I'm not like some other guys
I can find one to hold me tight
But I could never make believe it's alright
Six days on the road and now I'm gonna make it home tonight

And, since I just love her (but not as nearly as much as the Reddess), two more by Chrissie Hynde and the Pretenders, one called "The Adultress"


Don’t try to stop me
Don’t get in my way
It’s too late
I’ve made my play
Does misery love company
I’ll be in the bar
You’ll find me

And "Chill Factor" - not one of their best, but appropos:

When the hard parts over
And the kids are almost grown
Youll be their big hero
Whenever you make it home
Shower them with presents
Things she could never buy
Delight them with your stories
About the great big, great big world outside
But dig -

Its cold to leave a woman
With family on her own
Its chill factor
Chill factor
To the bone

"Justice for Jude! Justice for all!"

Says Michal McGee, Jr. Justice is the last thing he should ask for.

First amendment alert

A white woman working as a medical assistant at a hospital in New Jersey sues her employer, complained of a racially hostile environment. While some of the comments by her African-American supervisor were racially derogatory, much of what the plaintiff complained of consisted of the supervisior complaining of racial discrimination and profiling directed against blacks. An apellate court ruled that this type of speech in the workplace could create an unlawful racially hostile environment:

We are satisfied that when the race-based comments and conduct directed at plaintiff, and the racially insensitive remarks about white people plaintiff was forced to overhear, are considered along with the facially neutral comments and conduct Johnson directed towards plaintiff, a jury could reasonably find that Johnson's conduct and racially charged comments were directed towards plaintiff because she was white, were sufficiently severe or pervasive to make a reasonable person believe that the conditions of the workplace had been altered, and that the working environment had become hostile or abusive.

Bredt v. Johnson, 2006 WL 941754 (N.J. Super. App. Div. Apr. 13).

I agree with Eugene Volokh that this ruling is in irreconcileable conflict with the first amendment.

What's also interesting is the embedded assumption that blacks and whites should not tell each other things they don't want hear about race.

"And people who think things are true are more dangerous than people who ponder the possibilities that maybe they are, and maybe they aren't."

This is what Tom Hanks thinks. Or maybe he doesn't. Perhaps it is just possibly so. Maybe it's true on even numbered days and false on the odd ones. Or perhaps the two groups take turns being more dangerous. It could be that people who believe in truth are more dangerous in blue states, while those who can't decide are more dangerous in red ones. Or maybe it depends on which universe you're in. Is it possible that, for men,....

Alderman McGee investigating conditions in county jail

Michael McGee, Jr., has been arrested again. This time in court. After Judge Claire Fiorenza threw out his restraining order against Kimley Rucker, the mere acquaintance that he had unromantic sex with, McGee allegedly told her that "[i]f you drive by my house, I'm going to kill your ass." Probably the rest of her too.

McGee is pushing an interesting question. Is there anything that he could do that his constituents would not tolerate?

Shark and Shepherd on Dead Tree

My latest Milwaukee Journal Sentinel column is in tomorrow's paper. Read it on pulp and you get to see my smiling face. Online, it's here.

Liberals discover the joys of punishment

You’re not supposed to do that
You know you’re not allowed to
But you seem to get some kind of kick
Out of doing what you’re not allowed to
You deliberately defy the rules
’cause the law’s upheld by fools
S*** on that
Bad boys get spanked

- Chrissie Hynde

James Wigderson points out that Wisconsin State Journal columnist Susan Lampert Smith, in commenting on the Jensen sentencing, admits that she likes to watch a good spanking. The shameless Jim McGuigan wanted to see hard time. Fighting Ed discovers that taking another's property is actually a bad thing.

I sure hope they stick with this law and order thing.

Mexico to US: "Drop dead"

The Mexican government is concerned that tougher border enforcement will lead to more deaths, because people trying to sneak into the US will move to more remote and perilous routes. It does not appear that this heightened concern is grave enough to prompt it to do anything about the fact that their country is such a disaster that people would risk their lives to get out.

The Mexican governmen also announced it plan to sue the US if the National Guard becomes involved in detaining people at the border. While the basis for such litigation doesn't exactly jump out of the page at you, this concern for the rights of its citizens apparently begins only after they have crossed the Rio Grande in an inner tube.

One thing that the Mexican government may have right, however, is the idea that increased illegal immigration will be encouraged by even the hope of an amnesty programs. So says Julieta Nunez Gonzalez, the local representative of Mexico's National Immigration Institute in Ciudad Juarez.

And I am betting that the Fox government will make sure everyone knows about it.

"Boricua am I"

Peter DiGuadio links to a column by my Backstory colleague, Robert Miranda. Essentially, Robert argues that indigent peoples were in the Americas practicing human sacrifice while the rest of us were still on the other side of the pond having jousts and doing all that European knight stuff. (Actually, he didn't mention human sacrifice or jousts, but I needed a little atmosphere.) Latinos, he continues, are part indigenismo and, besides, they didn't kill Kennedy (he does say that and he's right; it wasn't a latino, it was a communist). So, he concludes, don't call "us" "illegal."

So far I get along well with Robert, but this is vintage Miranda in its enthusiasm and in the way it gradually takes leave of reality. (NB: At least I linked to your newspaper; that ought to bump traffic by two, three, maybe even four.)


"Boricua I am," says Robert, so don't mess with me.

Boricua you may be, but illegal are the undocumented. Perhaps the Spaniards stole Mexico from the Aztecs just like Kings Itzacoatl and Montezuma and the Tenocha tribe stole it from all the other indigenismos in the Mexican valley. Just like Muslims stole, to throw out one example, Turkey from the Christians. History is not pretty, but it does have a statute of limitations.

More on God at the roll call

The Reddess tells me that Charlie Sykes has interviewed Sheriff Clarke who confirms that the Fellowship of Christian Centurions was just permitted to show up and explain who they are and when they were meeting. According to Clarke, lots of groups are permitted to do this, including the Salvation Army, Toys for Tots, Second Harvest, etc.

With this clarification, I think the union is wrong. I have spent a substantial part of the last year researching and writing on the Establishment Clause in connection with the class I teach, some of the columns I write and a big long nerdy law review article I am just finishing. Although it's a bit more complicated, I think that if roll call is a time when outside groups in which the deputies may have an interest are permitted to let the group know of their availability, it doesn't violate the Establishment Clause to allow religious groups to do it.

In fact, I think it would be unconstitutional to exclude religious groups if the forum is made available to secular organizations.

Today's Supreme Court decision on concealed carry

The Wisconsin Supreme Court has held that a tavern owner can be prosecuted for carrying a firearm in his vehicle, notwithstanding his claim that he did so for security because he reasonably transported large quantities of cash generated by his business. You can read the decision in the case, State v. Fisher, 2006 WI 44 here.

A few intial observations. First, it's another 4-3 decision, although the breakdown is a bit different than in last summer's infamous collection. This time, Crooks joins Wilcox and Roggensack in dissent and Prosser joins the triumvirate of Abrahamson, Bradley and Butler. In fact, it is Crooks who writes what appears to be a pretty good dissent.

Second, the majority has continued its practice of creating (or, as is more likely, ruling out)exceptions to the state's concealed carry statute. The idea is to reconcile the prohibition of concealed carry with Art. I, sec. 25 of the state's Constitution which states that "[t]he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." It continues the practice of reading the statement of the purposes for which people have a right to bear arms as restrictions on that right. In other words, you have the right to bear arms (or, more specifically, to carry a concealed weapon) only if you actually do need it for security.

Third, it has continued to apply these restrictions in a fairly aggressive way. Not only must you need your gun, you must really need it. Badly. The threshold for the reasonable need of a concealed weapon for security purposes seems very high. It can't be based on mere subjective fear or merely upon past assaults on one's person or generalized awarenenss of crime. The Court hasn't said that you basically have to be a storeowner in Little Beirut to have a right to concealed carry, but you get the sense that it's going to take a lot.

Fourth (and this is a little inside baseball), the current Court continues to arrogate to itself substantial authority to re-examine factual findings and judgements made by others, In this case, it's not the legislature that gets its come uppance, but the lower court which would typically make findings of facts on things like the defendants's need for security. Not only did the Court brush off the findings of the lower court (which had dismissed the charge), but it seems to have said that there is no evidence that Fisher can put in on remand to establish that he does have a legitimate security need.

Finally, this is something that the legislature can fix. The Court today held that the concealed carry law can be applied to someone in Fisher's situation. It did - and could not - hold that the legislature must prohibit concealed carry under such circumstances.

"Be careful out there - and praise the Lord"

This article doesn't provide enough detail to say whether David Clarke's invitation of a Christian law enforcement group to the deputies' roll call is really unconstitutional. If all they did was invite people to a meeting, it shouldn't be. I suspect that the lawsuit is about the union's desire, not for freedom of conscience, but for freedom from Clarke.

Free Scott

My guess is that the egregious Shepherd Express, (the wrong Shepherd in town), will be so excited over Scott Jensen's sentence. Joel McNally was outraged over the sentences handed down to those young scions of artistocratic lines whose only "crime" was to gently liberate a little air from the tires of the vans that were probably going to be used by Republicans to round up Latino voters and dump them in Nuevo Leon. Anyway.

Expect him to sound like Belling when it comes to Jensen.

The Jensen verdict and sentence should, however should trouble civil libertarians for at least three reasons.

The first is that what Jensen did was not clearly defined as a crime before he did it. Generally, when we seek to impose criminal liability on someone, we want them to have a sufficiently malevolent heart or, to use the fancy law term, mens rea. We want them to have done more than guessed wrong or failed to pay attention. They don't necessarily have to know that their conduct was criminal, but, as a general matter, we want to be able to say that they should have known.

Jensen (and, for that matter, Chwala) challenged the charges against him on, essentially, these grounds. He lost in the trial court and in the court of appeals. When the case got to the Supreme Court, the Justices split, 2-2, with three not participating. A tie goes to the lower court, but the point is that as many Supreme Court justices as not thought that the application of the criminal statute to him was unconstitutionally vague and violated principles of due process and fair notice. As I blogged recently, you might almost as easily applied the statute to agencies who lobby on legislation that might affect the jobs of those who work for them.

Second, Jensen got a lot more time than the guys who plead guilty to the same offence. That's not surprising, but isn't it troubling? Conservatives hate plea bargaining because they think it lets the perp off the hook. In my introductory Criminal Law class, Alan Dershowitz filled our impressionable little minds with the liberal objection to plea bargaining. It punishes you for insisting upon your right to a trial.

Third, the idea that other people did the same thing without getting charged is generally not a good defense. But it has special meaning when it comes to political offenses. To charge some and not others is to interfere in the political process. It is to mess around with the playing field.

Just a thought

I think it's perfectly fine that inner city clergy organized a motorcade to the federal courthouse to demand a federal investigation that the US Attorney has already said he would conduct. I am more interested in the fact that the group will be meeting next Monday "to continue to explore strategies to change the criminal justice system and police practices."

That's great. Here's one idea. If we can get 300 cars to drive to the courthouse to ask for something that is already underway, then maybe we could scare up a few people to cordon off the homes of people brave enough to testify against murderers. That'd help a lot on the old justice scale.

Floyd Patterson, RIP.

I have not commented on the death last week of boxer Floyd Patterson. Eugene Kane thought it significant to comment on Muhammed Ali's victories over Patterson and ultimate ascendency in the public imagination. Prior to a 1965 bout, Patterson refused to call the fighter formerly known (and, at the time, still generally referred to) as Cassius Clay by his new Muslim name. Ali put a pretty serious beating on Patterson and, as Kane notes, shouted "what's my name" everytime he pounded Patterson's face.

This, according to Kane, was an event of some social import. It was, he says, the era of Black Power (I think it was mostly still nascent but the point is right) and "Patterson's disrespect of Ali gained him many fans in white America, but many blacks felt he deserved his beating at the hands of Ali for refusing to say his proper name." There is, he implies, a lesson in this. "Fast-forward 40 years, Muhammad Ali is one of the most respected black athletes alive.
Funny how things turn out."

I suppose. Malcom had his virtues. But so did Martin. And so did Floyd Patterson.

I actually remember that fight. I think it was the first boxing match I ever saw. What struck me about it was not Ali's superiority (although it was evident and overwhelming), but Patterson's courage in refusing to quit.

David Gamble, writing on NRO, comments on Patterson's humility:

Outside the ring Patterson was quiet spoken and mild mannered. He was unfailingly gracious and polite and never bragged about his accomplishments, in contrast to so many “in your face” modern athletes who chest-thump and preen. Even in a sport as genteel as golf, Tiger Woods, with his fist-pumping, club throwing, and swearing, could learn something from Patterson about humility.

Patterson was Gamble's boyhood hero and he too was taken by Patterson's resilience. Patterson rose from childhood poverty and life in a reform school to become the heavyweight championship of the world and, later in life, chairman of the New York Athletic Commission and counselor to troubled children. “They said I was the fighter who got knocked down the most, but I also got up the most.”

Gamble wishes for a few more athletes like Patterson. So do I.

Disappointing

Is the President playing small ball? Is it plausible that another 6000 people (first National Guard to be replaced by new INS agents) will be the big thing that it will take to seal the border? It seems clear now that nothing is going to be done to put pressure on illegals that are already here (tamper-proof plastic cards are a bit underwhelming), so securing the border is practically the only control remaining as to who will be here and for what purposes. Maybe that's all we can do, but then shouldn't we make sure that it is done right? The President needs a home run, but he's got his bat on his shoulder, hoping for a walk.

Wir müssen ein Rennen von den Übermenschen bilden.

"We must build a race of supermen"

A professor at Case Western RTeserve has gotten a grant to develop "ethical" guidelines for genetic human enhancement. The scholar, Maxwell Mehlman, is a apparently a supporter of "transhumanism," a worldview that human nature is " a work-in-progress, a half-baked beginning that we can learn to remold in desirable ways." Self-improvement, however, is not in our souls or in our hearts, but in our genes and biochemistry.

The faith that we "half-baked" humans would use this "power" wisely is frighteningly naive and stridently ahistorical.

Thank you

Tommy stands down.

More political crime?

Jessica McBride comments on a report by Mark Green that 40 of the groups opposing the TPA were taxpayer funded. I just got an e-mail telling me that the State Public Defender's office intends to actively oppose the death penalty referendum. I don't know exactly whom Green is referring to, but I sure hope that someone is being vigilant about possible commission of the Crime of Jensen. He was, you recall, convicted of violating sec. 946.12(3) which says that as a public officer or official may not "in the officer's or employee's capacity as such officer or employee exercises a discretionary power in a manner inconsistent with the duties of the officer's or employee's office or employment or the rights of others and with intent to obtain a dishonest advantage for the officer or employee or another."

So what if a supervisor in a state agency instructs an employee to lobby or engage in advocacy on behalf of a matter of interest to that agency? Is there a difference if the matter is arguably related to the agency's substantive mission (like the SPD and the death penalty)or just to its desire for funds (like the TPA). The argument against criminalization of agency political activity would be that agencies must accept political reality and advocacy is a necessary part of obtaining the support required to achieve their substantive goals. But how different is that from the argument Jensen was making?

I certainly don't think that these folks should be criminally charged just as I don't think Chwala, Burke, Foti and Jensen should have gone to jail.

Biting social commentary

Last week, I briefly posted on a comment made by my two-year old grandson regarding the state of lawn manicure and forestry behind Chez Esenberg. I was told that I had proved, once again, that bloggers are egomaniacs who are all about themselves.

I am sorry. I should have stuck to the important issues of the day. Far better, that I would have posted on little Shark III's investigation of the invidious social construct of discrimination known as the glass ceiling. Look upon the face of innocence confronting injustice.

She was just a warm body to me

Via Owen at Boots and Sabers, Junior McGee now admits that he had sex with "that woman" who he impregnated twice. But he didn't lie when he earlier denied having a "romantic" relationship with her because, you know, it just wasn't romantic. She was just any old port in the storm, albeit an unusually hospitable one.

Owen calls him a liar and he is that, although probably not a perjurer (at least not on this), since perjury requires a pretty much unambiguous falsehood.

What strikes me is what an unspeakable dirtbag he is. I know that we aren't supposed to care about what people do in their sex lives, but it does reflect on our character. In fact, it often reflects on our character in far more profound ways than the stuff we normally obsess with respect to public figures, like whether they complied with picayune rules about paying social security tax for babysitters, went outside to call a campaign contributor or sometime and somewhere said something that someone might regard as racially insensitive even though no one who could have been offended heard it and there is no evidence that reflects the individual's policy views. Sometimes, if I choose to hurt another person (in this case, persons) in an intimate relationship it says everything in the world about me.

More on the NSA

I've updated my post on the NSA data mining program. Is it legal? Well, it doesn't violate the Constitution. It's possible the telecom companies violated one or two statutes in turning the data over, but they have decent argument that one or more exceptions apply.

Whether the program is legal or not is an important question, although it may, in the end, be one on which reasonable and intelligent people differ. A question that we tend to ignore relates to the policy implications of this. On the one hand, we have people who privilege privacy. On the other, we have folks arguing for security.

Our notions of how privacy is best protected may need updating. Technology has affected things in two ways. On the security side, it is now possible for a relatively small group of people to do enormous damage. On the privacy side, we now have machines that can process enoromous amounts of information and identify patterns that may warrant further investigation all without any person ever looking at that data.

The first suggests the need for addtional vigilance. The second makes it possible. Yet our legal notions of how you protect privacy were developed in a simpler time. Even our statutory law seems to be modeled after a fourth amendment jurispridence that asks if something is a "search" or not. If it is, it can (generally) only be done if we have a particularized and individual determination that the specific communications to be monitored may be related to a crime, etc.

But now we have the ability to "monitor" communications in a less intrusive way. In both NSA programs, no person is listening to your calls or inspecting your call patterns. A computer is just processing generalized data about your calls, often in a way that each of us is subject to by private entities seeking to know our buying and credit habits. Our information won't be spit out unless it falls within some complicated mathematical logarithm. Maybe what we need is a definition of the circumstances under which that can happen and some type of judicial or independent review of the type of data mining that is permitted. Maybe we need limitations on how the results can be used withour further review. But if you read things like the FISA statute or these communications statutes, the drafters don't seem to have contemplated even the possibility of this type of thing.

That's one of the reasons that we can have this type of extended debate over whether something is legal or not. The statutes in question really weren't drafted with our world in mind.

Tommy to run?

The time has come.
The time is now.
Just go.
Go.
GO!
I don't care how. ...
Marvin K. Mooney,
I don't care how.
Marvin K. Mooney,
will you please
GO NOW!

Deliver us from prayer

A few years ago, I wrote an article in Liberty magazine on the civil liberties implications of the concept of a "hostile environment" in discrimination law. Most of us are familiar with this in the context of sex discrimination. A woman will claim that she was discriminated against not because she was denied a job or paid less, but because the employer allowed the workplace to become an environment that is difficult for a woman to be in, e.g., sexually explicit bantering, pornographic photos on the lockers, etc.

There is nothing, however, that limits this concept to gender or to employment. The law prohibits discrimination on other bases and in other places such as public accommodations, a term that applies, essentially, to facilities held open to the public like restaurants, hotels, etc. Thus, there have been questions regarding whether employers who allow employees to decorate their workspaces may allow religious articles or whether bars can host events and have decor that someone may find offensive on the basis of race, religion, etc. There was even a law review article suggesting that the allowing the Washington Redskins to use a public stadium was unlawful discrimination.

So now (via the Religion Clause Blog, some apartment buildings have felt compelled to prohibit residents from conducting prayer services in common areas. But if they do while making common areas available for other purposes, they run the risk of being sued for religious discrimination.

Once again, this idea that we all have a right to be comfortable which entails never being confronted with views we disagree with or reminders that we are in a minority is just hopeless.

Milwaukee Connector - post mortem

I am still looking for the merits of the Milwaukee Connector. Yesterday, we talked about this on Eric Von's show. Right before we were on, the guests were Tom Barrett, Willie Hines and Bob Bauman. After our segment started, aldermen Willie Wade and Mike D'Amato called in. One of my colleagues on Backstory is Jim Rowen who was Norquist's chief of staff while this was being evaluated. Jim, while hopelessly liberal, is very informed and well-spoken. You'd think that in the midst of all those people (granted Bauman and Wade are opposed; if you can tell me what Barrett thinks of the thing itself, good on you) could articulate a good argument for the proposal. It's always stuff like "let's get into the 21st century" or "mass transit is good" or we want to be "progressive." I heard that people "don't like buses anymore" as if the GST were mass transit's version of the luxury box. That's just not going to do it. Not for $ 300 million.

I did get the impression that somebody ought to introduce Willie Hines to Tom Barrett. There are some real issues there.

Kane tries too hard on United 93

The Reddess traded e-mails with Gene Kane today over his blog post on the black pilot on United 93. Gene reported the "feelings" of many in the black community that the African-American pilot, LeRoy W. Homer, has not gotten enough attention and that "since many believe that the passengers and crew of United 93 are heroes" (but not, apparently, Gene Kane or at least not so much as he would say so) then Homer deserves as much credit as the rest.

I have no argument with that. But Gene couldn't understand why anyone would be upset with a blog suggesting that Homer was slighted. Kane says he hasn't seen United 93, but that "a friend told him" that Homer is portrayed by "a black actor who doesn't play a major role."

Here's the problem. He's working overtime to racialize something that simply won't bear it. I did see the movie. As Jessica McBride has pointed out, no character in United 93 - at least no one on the plane - has a "major role." The victims are portrayed as Everyman and Everywoman, much like you and I and everyone else who might see the movie. That is its point and its power.

It is true that the pilots are not depicted as heroically rushing the cockpit but that's because they were coldcocked - murdered before they had the opportunity to do so. Both the white and black pilots get about the same camera time (I'm not sure that they are ever in a scene separately) and are humanized in the same way. They chat. The white pilot is looking forward to taking his wife to London for their (I think) 25th anniversary. The black pilot is looking forward to getting home to his little baby and to a new assignment that will keep him closer to his family. I remember the Homer character's comments as particularly poignant. He has a two year old and we know that he's about to be butchered without a chance to defend himself. I don't know about you, but that p***es me off.

I do not share the right blogospher's dislike of Gene's columns. I think he can be pretty good even when he's very wrong and, God, do I know the pressure of the blog. But this was really a reach.

New NSA program

Regarding the new NSA program outed in USA Today, it seems pretty clear that, if it has been described correctly, it is not even a potential violation of the Fourth Amendment. The Court ruled long ago that who you call and who calls you is not a "search" within the meaning of that provision.

There are statutes that it might violate, although it's not all that clear. Some commentators have said that it might violate the pen register statute, although that statute seems to apply to the installation or use of a pen register or "trap and trace" device and it doesn't appear that the government has done that. Now the telecom companies are allowed to gather such information for certain purposes. Perhaps they do it by use of a device falling within these descriptions (I'm not up on the technology) and maybe using it for some other purpose places them afoul of the statute, but that's not the easiest fit of facts within language.

There is also something called the Stored Communications Act, but that seems to prohibit disclosure of the contents of a communication and it doesn't look like that's what's happening here.
Update: The Act does prohibit disclosing a record or other information pertaining to a subscriber and I guess that could include the numbers that an (even unidentified)person calls, but that provision was subject to a rather broad exception which permits diclosure of information not including the contents of the communication to a governmental entity " if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information...." (The statute was just amended to eliminate the term "immediate" but to specify that the information relates to the emergency) Orin Kerr thinks that this makes all the difference. I'm not so sure. It doesn't seem a stretch to say that there has been an "immediate" danger of terrorist attack for sometime. But the real problem is that our laws aren't really written with computerized data mining in mind. They assume a paradigm of live government agents looking at particular communications or records as opposed to a machine looking for patterns, arguably a less intrusive form of surveillance after which we might require further requirements or approval before a closer look is taken.


The USA Today article mentions the Communications Act of 1934, but that applies to customer's confidential proprietary information and it seems unlikely that who you call and who calls you would qualify.

Update:: This Act defines customer proprietary network information as
"information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship;" Could the reference to "destination" and "location" cover this? It's possible, although I don't know how the definition has been constured by the courts. I haven't looked it up and haven't caught anyone else weighing in on that. Even if it does apply (which sure seems possible), there is an exception to prevent "unlawful" use of the service. While I don't buy that the purpose of catching terrorists in and of itself means all bets are off, is it possible that a carefully tailored data mining program that would only look for suspicious patterns which would then provide the basis for followup (presumably involving a warrant)might be considered "necessary" to prevent unlawful use under the circumstances of recent years?

Of course with all of this, the companies that provided the information also seem to be saying that customers consented in the fine print to their subscription agreements.


To answer this question obviously requires more detail and more than the fifteen minutes or so that I've given it, but it may well be that this is perfectly legal without resort to the President's Article II powers regarding war and national security.

But if it does come down to Article II, I would think that the administration is on a wobbly pier. It's one thing to say that those powers allow eavesdropping on international communications, it's another to say that they apply to domestic communications.

Of course, the nature of the intrusion on privacy is weaker because it involves not to the content, but the sender and recipient. But I can't see the President's national security powers adding too much here. But, again, we'd need to know more about what they have asked for and what they have done with it.

Shark and Shepherd on the Air

Today at 4:30 pm. WMCS-1290.

Barrett stops the bus

Mayor Barrett has vetoed the Milwaukee Connector and the Journal-Sentinel has criticized him for failing to exercise bold leadership. But tbe argument in support of that seems odd. We don't know if it would have been a good idea, they seem to say, without doing preliminary engineering.

Fair enough. But shouldn't we know if it might be a good idea? The problem with the Milwaukee Connector is that the arguments for it seemed to be that 1) it is mass transit; 2)mass transit is good and 3) the feds might pay for most of it. That really isn't even close to adequate.

If the reason we had to move forward with this plan was that we might lose federal money and are falling behind other cities wouldn't this be just as true - actually more so - after the passage of additional time. The electric bus was leaving the station and Barrett, quite properly, stopped it.

Barrett apparently wants to use the federal money to extend conventional commuter rail up to Miller Park and along the 30th Street corridor. I am skeptical about that, but at least it provides something that we don't have now.

Dutch Dhimmitude

Ayann ali Hirsi is a Dutch MP, born in Somalia, who has been criticial of funadamentalist Islam. This has, as you might imagine, earned her death threats. For example, she worked with Dutch filmaker Theo Va Gogh on Submission, a film critical of Islam's treatmet of women. After Van Gogh was brutally murdered, ali Hirsi was forced into hiding. (You can read more about it in her new book, The Caged Virgin.)


Because of all this, the Dutch government has placed her in a high security apartment in the Hague.

In a new variation on the NIMBY syndrome, her neighbors have sued. They claimed, among other things, that by making them feel unsafe, the presence of ali Hirsi violates Article 8 of the European Covention on Human Rights which guarantees respect for person's private and family life. A Dutch court has agreed and ordered that she be removed in four months.

The irony of using the concept of human rights to essentially turn a person into a pariah because she has had the temerity to exercise her right of free speech is staggering. Ali Hirsi has become a "nuisance" because she is the target of mysogynistic fascists who are bent on the destruction of human rights, yet the response of her neighbors and the Dutch courts is to proclaim a fundamental right to throw her to the wolves. The court has, essentially, proclaimed a constitutional right of surrender.

I understand the anxiety of those who feel exposed because of ali Hirsi's presence (although the police claim her building is now the safest in Holland), but the Islamofascist threat, by its very nature, attempts to impose costs on having a free society. Publish the "wrong" cartoons and people riot. Make the "wrong" film and buildings get blown up. Perhaps there would have been a better place for ali Hirsi, but to recognize a constitutional right to be free of this is to be complicit in one's own destruction.

Christopher Hitchens reports that ali Hirsi is considering resigning from parliament and leaving her adopted country.

She tried, but perhaps the Dutch can't stomach a hero in their midst.

The Milwaukee Connector

The Common Council has passed the Milwaukee Connector plan. I have to admit that I don't understand this. We are apparently going to spend $ 300 million to place electric buses on 13 miles of routes on which conventional busses currently run. If in fact it makes sense to spend that kind of money on mass transit, shouldn't it be used to provide service that is currently not on offer? The best argument that I have heard is that these things carry twice as many people and are, therefore, more efficient. But that only makes sense if you can move the same number of people in fewer trips and you can do that only by making service less frequent which also has efficiency implications. In any event, you could run an awful lot of extra busses for an awful long time for $ 300 million.

Is there anything to commend this project other than that there is federal money to pay for a chunk of it? Tim Sheehy is a smart guy but his column in Sunday's paper said exactly nothing beyond "we need fixed transit because everyone has fixed transit."

Is the subtext of all of this that Milwaukee County is so broke that the bus system is doomed? Is this really about getting someone else to pay for a system to replace busses along the major routes so that the costs will be sunk and the service won't be eliminated?

Gay rights and religious liberty

Maggie Gallagher (yeah, her again) has an interesting piece in the Weekly Standard on the impact of the movement for same sex marriage on religious liberty.

Gallagher explores the possibility that the advance of same sex marriage in particular and the gay rights agenda generally will lead to a legal regime in which it becomes unlawful for one to act on one's belief that homosexual behavior is immoral, in much the same way that it is unlawful for someone who says that his or her religion mandates White Supremacy, to act on that belief in interacting with others.

Commenting on a recent symposium hosted by the wonder Beckett Fund, Gallagher observes that those legal commentators "most opposed" to gay marriage were least likely to see greater legal protection and privileges for gays and lesbians as encroaching on the religious liberty of those holding a traditional religious view of homosexuality:

Generally speaking the scholars most opposed to gay marriage were somewhat less likely than others to foresee large conflicts ahead--perhaps because they tended to find it "inconceivable," as Doug Kmiec of Pepperdine law school put it, that "a successful analogy will be drawn in the public mind between irrational, and morally repugnant, racial discrimination and the rational, and at least morally debatable, differentiation of traditional and same-sex marriage." That's a key consideration. For if orientation is like race, then people who oppose gay marriage will be treated under law like bigots who opposed interracial marriage. Sure, we don't arrest people for being racists, but the law does intervene in powerful ways to punish and discourage racial discrimination, not only by government but also by private entities. Doug Laycock, a religious liberty expert at the University of Texas law school, similarly told me we are a "long way" from equating orientation with race in the law.

Gallagher notes, however, that proponents of gay marriage are more likely to forsee such a conflict. Of course, there are plenty of precursors of that conflict, such as the Commonwealth of Massachusetts driving Catholic Charities out of the adoption business and the application of anti-discrimination laws to those who refuse to participate in the dissemination of gay-friendly messages.

Not all advocates of gay rights think this is a good thing. One of the most prominent, Chai Feldblum, makes the following trenchant point:

"It seemed to me the height of disingenuousness, absurdity, and indeed disrespect to tell someone it is okay to 'be' gay, but not necessarily okay to engage in gay sex. What do they think being gay means?" she writes in her Becket paper. "I have the same reaction to courts and legislatures that blithely assume a religious person can easily disengage her religious belief and self-identity from her religious practice and religious behavior. What do they think being religious means?"

There's more.It's worth reading.

Barltett gets a defense verdict

Jon Bartlett, one of the Jude defendants who was acquited on one charge and will be retired on another in that case, has now been found not liable in a federal civil case arising out of the shooting of Larry Jenkins. This case attracted a lot less attention than the Jude case and I doubt that there will be any significant response to the verdict.

Is it because two of the eight jurors were African-American? If so, is that reason to be concerned? Is our society so intractably racialized that juries in racially charged cases must include both blacks and whites? If that is so, when will it no longer be the case? How could it ever cease to be the case?

Confession of an Election Day Thug

I have to admit that one of my guilty pleasures is Milwaukee's "alternative" newspaper, the Shepherd Express. Although it consists mostly of advertising for stuff that doesn't interest me and takes just a few minutes to read, I always pick up a new issue with anticipation.

I'm not sure I know why, but I think the answer is something like this: Although some of my fellow bloggers and a significant slice of the conservative media are into talking smack on the left, the fact is that there are lots of liberals who are intelligent and thoughtful. Our friends on the left aren't as addled and feckless as we on the right sometimes think they are.

Except - in the Shepherd Express - they are! Whenever I pick it up, I feel like Dan Ackroyd's old character, Leonard Pinth-Garnell (host of "Bad Cinema") on SNL. "Bravo! Monumentally ill-reasoned!" You would have to go a long way to find worse and the odds are you wouldn't make it.

I am rarely disappointed. McNally, Berkman, Hissom. At least one, and usually all three, will write something so breathtakingly thoughtless as to amount to a certain kind of art.

In last week's iteration, McNally suggests that the perps who slashed the tires on vans that the Republicans were using to get out the vote may actually have served the electoral process. Joel figures that the GOP couldn't possibly have been intending to use the van to take voters to the polls since we all have our own SUVs and Daddy Warbucks limos. (There must be a lot of filthy rich people to have actually elected George Bush).

What we were intending to do, Joel knows, is cart lawyers to the polls "to challenge and intimidate black voters."

I feel like a fool. I was one of those lawyers and actually drove my own Mini Cooper (I didn't even have the convertible Cooper-S back then!) to the polls. I didn't even get gas mileage.

I was, however, accused of intimidating black voters. Here's how that happened. There were 8 lawyers at the Washington Park Library. Two Republicans, two Democrats, three from Soros-funded front groups and one assistant DA. The Republican contingent was indeed ferocious. There was yours truly, a middle aged guy with thinning hair in a cardigan sweater and a guy from Texas who was a dead ringer for Charlotte's husband on Sex in the City, right down to the shaved head and baby face. We looked pretty out of hand.

He and I were standing in the middle of a huge room talking to the Democrat lawyers, Not about the voters, but about where they were from and other small talk. The two walked away and proto-Harry and I continued to talk about football or some other irrelvancy.

At this point, a lawyer from the PFAW-front called by the name "Election Protection" or some other misnomer runs up and tells us that we are "intimidating" the voters because ... I guess because we stood there looking like a pair of tenured History professors.

Who was to know? In my experience, African-Americans are not so easily intimidated. I guess it takes a white liberal like our accuser - or Joel McNally - to tell us otherwise.

Dems on Milwaukee County: Bold or shameless?

There is something to be said for audacity. For Dems to attack Scott Walker for Milwaukee County's fiscal mess reflects either a stunning lack of rectitude or a cynical determination that the best defense is a good offense.

As the Journal Sentinel's recent series makes clear Milwaukee County was ruined by what is, in many respects, the raison d' etre of the Democratic Party. In my first MJS column (lo those many months ago), I wrote about the time when I was a Democrat:

Years ago, I was an active member of the Democratic Party. I learned that there are two types of political activists: ambitious lawyers (that was me) and people who work for or want something from the government.

It's true. Having been a naive young man, I remember being stunned at the extent to which the Democratic Party was all about public employee unions. What happened in Milwaukee County, whose officeholders are technically nonpartisan but who were, prior to Walker, virtually always and everyone Democrats, was that the scam was taken a step too far. In part because County government operated under the radar, the unions quietly built a bacchanalia of entitlements. Free health care for life; retirement for many in their early 50s (or, theoretically, earlier); backdrops and lookbacks. I know people who have not worked for the County for years, but have still "earned" their free retirement.

The state is not as bad, but it's bad enough. The real payoff is almost always in fringes because they are less visible and, in the case of gold plated retirements, put off into the future and, until recently, not accounted for. No management that was not, in a very real sense, beholden to its employees for its own tenure would behave that way.

When the County pension scandal broke, the usual suspects tried, for a while, to paint groups like the Citizens for Responsible Government as greedy, mean dupes of talk radio. Now the meanie is the poor guy (Walker) who has to clean up their mess.

Some commentators refer to the Democrats as the "Mommy Party. In this case, its more like the Snarky Adolescent Party.

On safari in Mequon

So I'm out in the woods behind my house last night with litte Aidan Esenberg (a/k/a Shark III) and he says "we're in Africa."

I've got to find more time for lawn care.

Actually, the scream was one of his better moments

Howard Dean is chewing on his shoe again. Here's his latest (although maybe not since he said it a few days ago) bon mot:

"I was recently asked about the difference between the Democratic and Republican parties," Dean said. "When it comes right down to it, the essential difference is that the Democrats fundamentally believe it is important to make sure that American Jews feel comfortable being American Jews."

Jonah Goldberg thinks it may be the "dumbest, weirdest, goofiest explanation of political differences ever offered."

As long as Howard Dean remains chair of the DNC, there is hope for the republic.

Should Patrick Kennedy get the Bum Rush treatment?

Patrick Kennedy (D-RI) has entered drug rehab, admitting that he is addicted to pain pills. While he has always been a thoroughly disagreeable person, I wish him well. But under the Limbaugh precedent, shouldn't he be thoroughly investigated for prescription drug fraud? It is very difficult to obtain enough pain pills to feed an addiction without lying to someone about something.

You must say that?

The lawprofs at the Volokh Conspiracy are off on a debate about whether and why the law should ban sex and nudity in public. "Because" is apparently not an acceptable answer.

But I'm interested in this story from Arlington, Virginia. A small merchant offering video duplication services refused to duplicate two Gay Pride films. He thinks homosexuality is a sin and does not want his business involved with it. The spurned customer filed a complaint with the Arlington Human Rights Commission which ruled that the merchant was in violation of the County's anti-discrimination law and that he must either duplicate the video or pay for the cost of having it done elsewhere.

You can go to Volokh for a bit of agrument about whether this is constitutional or not? Is application of the ordinance here tantamount to "compelled speech," i.e., forcing the merchant to communicate the message of the Gay Pride films? In other words, is it like the Hurley case where the Court held that organizers of a St. Patrick's Day Parade had the right to exclude gay marchers? Or is this more like the recent Rumsfeld case in which the Court said that the first amendment rights of law schools are not violated by a requirement that they accommodate military recruiters?

I have a more basic point. Doesn't this strike you as a tad ... repressive?

Strictly speaking, the case doesn't involve disrcrimination against people on the basis of a "status" or other presumably immutable characteristic. He was not refusing to serve gay people. He just wouldn't duplicate a gay film as he apparently would not duplicate pornography or other material he found morally objectionable.

Why shouldn't he have that right? Is it enough to say that he can still believe that homosexuality is wrong? Do we really want a society where he cannot act on that belief as long he does not interfere with the lives of others?

The thing is that they liked it

Via Gordon Smith at the Conglomerate blog.

Is this like the worm in tequila? Hungarian workers are renovating a house and drinking a barrel of rum. Nothing surprising there. The rum is so good that they fill a few bottles for home. But when they have finished it off and find that it's still heavy, it turns out that there is a dead man inside. Apparently the guy had died in Jamaica and his wife decided that this was the easiest way to ship him home.

Shark and Shepherd on the Air

I will be on the Backstory segment of Eric Von's show this afternoon from 4:30 to 6:00 pm (or maybe a little earlier since I am told it's a "short show" meaning there is probably some obscure atheletic event that will take us off early).

Topics may include the May 1 marches, the gubernatorial race, the Shepherd Express' story on ten big bad corporations and some remarks by Richard Dreyfuss which, near as I can tell, suggested that it's a bad thing for people to see what is happening in the world before the chattering classes have told them what to think about it.

Health care

Last week, I blogged on the Left's adoption of Cathy Seipp, a conservative writer suffering from lung cancer who wrote an op-ed in the LA Times which people like the Kos-ers and our own folkbum thought was a call for radical health care "reform" (often meant, although perhaps not by Jay as "single payer" itself a euphemism for government heath care.)

Cathy has now told them all that they got her wrong.

What she does advocate - and I think it may have merit - is a system of mandatory individual health insurance. Everyone - at some specified age, say 21 - would be required to buy and maintain a basic policy. Insurers would be required to offer that policy to everyone - no medical underwriting and, I think, no age adjustments. (Yeah, that results in young people subsidizing older people but we all know where we're going. Without that, aren't you going to have adverse selection?)Premiums could be paid with pre-tax dollars and employers could get out of the health care business. Subsidies could be provided to those who can't afford it, but if everyone has to buy coverage these policies will be less expensive than what we see in the private market today.

The required policy should be "no-frills" coverage. If you wanted a more elaborate product, you'd be on your own.

This does require more regulation than I normally like to see, but there does not seem to be a practical alternative.

Who speaks for the religion of peace?

The MJS editorial board thinks folks should go to the open house at the Islamic Center and there's nothing wrong with that. I am sure that it will provide an opportunity to learn about Islam and how it is interpreted and practiced by the people who run the Islamic Center in Milwaukee, Wisconsin.

What it won't do is tell us much about the Islamofascism that is the single largest threat to global security and individual freedom. The editors are concerned that the public "misunderstands" Islam, citing the following poll results:

A Washington Post-ABC News poll in early March showed negative views of Islam have grown and that many Americans believe that Islam encourages violence against non-Muslims. An independent poll by the Council on American-Islamic Relations last month had one in four Americans believing that Islam is a religion of hatred and violence ...."

This, according to the editors, amounts to "misperception" and "ignorance." I wish it were that simple.

The fact of the matter is that, for a very large number of Muslims in the world, Islam does call for infidels to be violently subdued and brought under Islamic rule. Perhaps they are distorting "true" Islam. Certainly there have been plenty of distortions of Christianity.

Of course, there is also reason to believe that Islam lends itself more readily to violent "distortions." Jesus preached nonviolence and died on a cross. Muhammed preached the spread of the faith by the sword and practiced what he preached. Islam, moreover, does not have the same tradition of nonliteral interpretation of its foundational text. Christians have, for most of their history, generally believed that the Bible is inspired, but is not God's dictation. (It is the "Word of God" in the "words of men.") Islam believes the Koran is an unmediated message from God. And there is a lot in the Koran that seemingly advocates violent spread of the faith.

(You can read a brief discussion of some of that here.)

But let's assume that a proper understanding of all that really does leave us with a "Religion of Peace." I hope it does. My perception is that for a majority of Muslims in the United States, this is precisely what Islam is. We didn't have cartoon riots.

But the fact remains that a large part of the Muslim word doesn't see it that way and recognizing that is not a "misperception" or "misunderstanding." What is "ignorant" is the refusal to see things as they are.

As I have blogged before, the left is half right when it criticizes the term "War in Terror." Terrorism is a tactic, not an objective. But while they think the term is a non sequitur, it is actually a circumlocution.

It has always seemed to me that many of us are perilously close to saying that we ought to deny the obvious nature of the enemy in the "War on Terror" because it would encourage antipathy toward many Muslims who have nothing to do with terror. I sympathize with that.

But here's a good rule for life. Denying the self-evident never works. Trying to pretend that terror is not about Islam relieves (actually, if you think about it, tends to prevent) moderate Muslims from the aggressive disavowal of Islamofascism that is necessary.

The MJS editiorial board cites an author who thinks that equating terror with Islam leads to bad policies like the invasion of Iraq, when all we really need to do is "catch" whoever was involved in 9-11 or other terrorist acts.

He's got it exactly backward. Equating terrorism with a certain type of Islam allows us to understand its "root causes" and move to eliminate them. The invasion of Iraq was an attempt to remove a regime that everyone agrees was involved (perhaps cynically) with encouraging Islamofascist terrorism (which is not limited to the 9-11 attack) and to introduce an alternative type of society in the Middle East. The apparent existence of WMDs and Saddam's record of aggression was part of that, but it wasn't all of that. We probably won't know whether this attempt worked for a number of years.

But when the "enemy" is a movement, merely catching the perpetrators doesn't win the war. For everyone we catch, five more will walk out of the desert. Whatever his shortcomings, Bush understands that. Pity that more of us don't.