San Diego has become the fifth Roman Catholic diocese to file for bankruptcy. The Roman Catholic Church in the United States is becoming the mirror image of my own Episcopal Church. They have no priests and are rapidly getting to the point where they will have no money. But they do have congregants.
We've got clergy (although perhaps not enough by our very different standards for how many we need) and money (most of it old), but a declining (and aging) membership.
The problem with the Episcopal Church is its ongoing retreat from orthodoxy. Although that is not entirely absent in the Roman Church, it has managed to continue to stand for something other than style and postmodern vapidity. There are those in the Espiscopal Church who are trying to resist the trend toward Christianity as metaphor and faith as politicial liberalism with a spiritual hue, but I fear that we are being routed.
So it is a pity that the Roman church is wracked by this kind of disfunction - a problem that I think is rooted in its attachment to the male celibate priesthood. (This is where Dad29 brings up Lincoln and Goodbye Good Men).
Having said all that, I do wonder whether my profession's attachment to compensating the uncompensable (how else might lawyers get paid?) shows its limitations here. Does it really make sense to bankrupt a charitable and religious organization - something that can do good today - for the sins of those who are, for the most part, no longer in authority? In what sense will this really make good the harm done in the past?
Wednesday, February 28, 2007
Tuesday, February 27, 2007
Lessons from an aging hippy
Those of a certain age probably read the Electric Kool-Aid Acid Test, Tom Wolfe's chronicle of the Merry Pranksters and psychedic movement in mid-sixties San Francisco. I did and, although I no longer find much in the movement admirable (I am, in its parlance, "off the bus"), I still have fond memories of meeting Ken Kesey at a Harvard function and ... you know ... inhaling.
One of the Merry Pranksters was a guy named Stewart Brand who is now regarded as one of the founders of the environmental movement and the originator of The Whole Earth Catalog from which Moondog and Sunbeam ordered ordered hemp sleepers for little Starshine. He later went on to become a guru of the cyberage.
There's an interesting interview with him in today's New York Times. It seems two things worry him about the environmental movement today. The first is its tendency to see problems in romantic rather than scientific terms. For him, the answer to global warming is nuclear power not a return to the Bronze Age. For guys like Al Gore who apparently have a carbon footprint the size of Megalasaurus, this has to be good news.
He also cautions against apocalyptic thinking. But then Al's already got the Oscar.
One of the Merry Pranksters was a guy named Stewart Brand who is now regarded as one of the founders of the environmental movement and the originator of The Whole Earth Catalog from which Moondog and Sunbeam ordered ordered hemp sleepers for little Starshine. He later went on to become a guru of the cyberage.
There's an interesting interview with him in today's New York Times. It seems two things worry him about the environmental movement today. The first is its tendency to see problems in romantic rather than scientific terms. For him, the answer to global warming is nuclear power not a return to the Bronze Age. For guys like Al Gore who apparently have a carbon footprint the size of Megalasaurus, this has to be good news.
He also cautions against apocalyptic thinking. But then Al's already got the Oscar.
Monday, February 26, 2007
Blizzard denial
Can I be forgiven for wondering how the science of global warming can be settled in its prediction of relatively small (but presumably catastrophic) temperature changes over the next one hundred years, when it can't tell us whether or not we are really going to have the mother of all blizzards in the next ninety minutes or so?
Sunday, February 25, 2007
Experience and the Supreme Court
Charlie Sykes suggests that Linda Clifford is running on her lack of qualifications in claiming that she is the most qualified candidate in the race because she is not a judge. Charlie writes "So can I be a pilot, Because I've never flown? A brain surgeon, because I'm not a doctor? An NFL coach because I've never even coached the pee-wee league? "
It may surprise those who think I'm "really" shilling for the Ziegler campaign, but I disagree. Although I think Clifford goes too far, the point she is making is that the court should have lawyers with different backgrounds and all but two of the current members of the court were judges before they became justices.
There are a number of backgrounds that might qualify a lawyer to serve on the court other than service as a trial judge. The latter post is certainly relevant to service on the court but is also very different. A justice like Louis Butler who had been a public defender and trial judge certainly had a lot of background in the criminal justice system, but virtually no background in the other areas implicated by the courts' work.
A trial judge can turn out to be a very good justice (see. e.g., Diane Sykes) as can someone who never was a judge (see, e.g., David Prosser or, even though I often disagree with her decisions, Shirley Abrahamson).
We ought to be more concerned about what these candidates will do on the court than how they got here.
It may surprise those who think I'm "really" shilling for the Ziegler campaign, but I disagree. Although I think Clifford goes too far, the point she is making is that the court should have lawyers with different backgrounds and all but two of the current members of the court were judges before they became justices.
There are a number of backgrounds that might qualify a lawyer to serve on the court other than service as a trial judge. The latter post is certainly relevant to service on the court but is also very different. A justice like Louis Butler who had been a public defender and trial judge certainly had a lot of background in the criminal justice system, but virtually no background in the other areas implicated by the courts' work.
A trial judge can turn out to be a very good justice (see. e.g., Diane Sykes) as can someone who never was a judge (see, e.g., David Prosser or, even though I often disagree with her decisions, Shirley Abrahamson).
We ought to be more concerned about what these candidates will do on the court than how they got here.
Friday, February 23, 2007
Some of the glee on the left side of the local bloggage around Charlie Sykes' mistaken interpretation of a portion of Michael McGee's Jr's recent impression of Captain Queeg reminds me of Fitzmas.
Plaisted says he lied . The day was that much brighter for Eugene Kane and Paul Soglin as well. It didn't make his blog, but my Backstory colleague Jim Rowen sent around an e-mail sharing the Good News. Nothing is sweeter than the other side messing up. (Update: It did.)
Sykes apologized and properly so. But the notion that he lied or was engaged in some type of subliminal racist stereotyping is silly. First, he played the tape of McGee's comments before he (incorrectly) referred to McGee's comments as "Jew cops" rather than "Jude cops." If you are going to lie about something, you normally don't associate the lie with the evidence that disproves it. Second, no one the panel corrected him. In fact, my recollection is that, when he asked Mikel Holt what McGee meant by that, Holt said he didn't know. Third, the reason that he played the tape and that no one on the panel heard anything else is that it sounded like that is what McGee said.
But life is short and far be it from me to deny anyone a good time. If I can enjoy Teddy Kennedy calling Barak Obama "Osama", then I certainly shouldn't call bar time on anyone else's party.
Plaisted says he lied . The day was that much brighter for Eugene Kane and Paul Soglin as well. It didn't make his blog, but my Backstory colleague Jim Rowen sent around an e-mail sharing the Good News. Nothing is sweeter than the other side messing up. (Update: It did.)
Sykes apologized and properly so. But the notion that he lied or was engaged in some type of subliminal racist stereotyping is silly. First, he played the tape of McGee's comments before he (incorrectly) referred to McGee's comments as "Jew cops" rather than "Jude cops." If you are going to lie about something, you normally don't associate the lie with the evidence that disproves it. Second, no one the panel corrected him. In fact, my recollection is that, when he asked Mikel Holt what McGee meant by that, Holt said he didn't know. Third, the reason that he played the tape and that no one on the panel heard anything else is that it sounded like that is what McGee said.
But life is short and far be it from me to deny anyone a good time. If I can enjoy Teddy Kennedy calling Barak Obama "Osama", then I certainly shouldn't call bar time on anyone else's party.
Thursday, February 22, 2007
Polishing off Waxing America
This morning I said I would comment on two recent posts on the Wisconsin Supreme Court on Waxing America. In my view, former Madison mayor Paul Soglin asks the wrong questions and provides the wrong answers.
First, he seems to find some kind of lesson from the Supreme Court's recent decision in Phillip Morris v. Estate of Williams. This was a case, decided earlier this week, that reversed a huge award of punitive damages against Phillip Morris in a smoking case because the jury may have based its award on harm done to persons other than the plaintiff. The majority drew a (probably too) fine distinction between that and considering harm to others in determining how reprehensible the conduct was.
For Soglin, the key is that two Justices who are generally regarded as "liberal" voted with the majority to set the award aside. In other words, they voted for "Big Tobacco." This, according to Paul, shows that "the liberals on the Court prefer fair and impartial justice." Apparently this is supposed to tell us something about liberals everywhere.
The split in Williams was not along what are generally regarded as the court's ideological divide. While "liberals" Breyer and Souter were in the majority, so were "conservatives" Alito and Roberts. The dissent consisted of "liberals" Stevens and Ginsburg (do they not "prefer fair and impartial justice?") as well as "conservatives" Thomas and Scalia (voting against "Big Tobacco" but apparently no lesson about conservative jurists in that).
Part of this is because the issue was narrow. Part of it points to the lack of a parallel between the "judicial activism/restraint" debate and the "liberal/conservative" debate. Scalia and Thomas dissented because they don't want to read into the federal constitution a substantive limit on punitive damages in state courts. That has nothing to do with whether they like business or favor punitive damages. It has everything to do with the way in which they feel constrained by the actual text of the constitution, i.e., what it actually says.
Second, Paul lists a a number of positions that Wisconsin Manufacturers Commerce has taken on recent legislation proposals that he doesn't like. Because WMC has endorsed Annette Ziegler, he concludes that these positions represent her "platform" because, he says, she will do "whatever the WMC wants ... ."
I happen to think that most, if not all, of the positions that Soglin dislikes are correct. But were I on the Supreme Court, I could do nothing to bring about any of these policies (with the possible exception of the standard for strict liability and probably not even that) because they are within the prerogative of the legislature and not the courts. Neither existing law nor the Wisconsin or US Constitutions mandates a limit on how much taxes can go up or the establishment of health savings accounts. Nothing precludes the legislature from mandating union featherbedding on the railroads. While the Supreme Court could set a standard for punitive damages, the legislature has done so and this is the standard that the courts must follow. A judge who follows the judicial philosophy that Ziegler claims to follow couldn't do anymore than I could.
What would be astonishing is if the Wisconsin Supreme Court held that the legislature could not pass TABOR or adopt HSAs or if the court went out of its way, manipulating doctrine, to interfere with the operation of these laws. My guess is that WMC is basing its endorsement on a judgment regarding the likelihood of each candidate doing that. In endorsing Ziegler, it may be acting unfairly toward Clifford, but the idea that the Wisconsin Supreme Court is going to implement this stuff is simply wrong,
First, he seems to find some kind of lesson from the Supreme Court's recent decision in Phillip Morris v. Estate of Williams. This was a case, decided earlier this week, that reversed a huge award of punitive damages against Phillip Morris in a smoking case because the jury may have based its award on harm done to persons other than the plaintiff. The majority drew a (probably too) fine distinction between that and considering harm to others in determining how reprehensible the conduct was.
For Soglin, the key is that two Justices who are generally regarded as "liberal" voted with the majority to set the award aside. In other words, they voted for "Big Tobacco." This, according to Paul, shows that "the liberals on the Court prefer fair and impartial justice." Apparently this is supposed to tell us something about liberals everywhere.
The split in Williams was not along what are generally regarded as the court's ideological divide. While "liberals" Breyer and Souter were in the majority, so were "conservatives" Alito and Roberts. The dissent consisted of "liberals" Stevens and Ginsburg (do they not "prefer fair and impartial justice?") as well as "conservatives" Thomas and Scalia (voting against "Big Tobacco" but apparently no lesson about conservative jurists in that).
Part of this is because the issue was narrow. Part of it points to the lack of a parallel between the "judicial activism/restraint" debate and the "liberal/conservative" debate. Scalia and Thomas dissented because they don't want to read into the federal constitution a substantive limit on punitive damages in state courts. That has nothing to do with whether they like business or favor punitive damages. It has everything to do with the way in which they feel constrained by the actual text of the constitution, i.e., what it actually says.
Second, Paul lists a a number of positions that Wisconsin Manufacturers Commerce has taken on recent legislation proposals that he doesn't like. Because WMC has endorsed Annette Ziegler, he concludes that these positions represent her "platform" because, he says, she will do "whatever the WMC wants ... ."
I happen to think that most, if not all, of the positions that Soglin dislikes are correct. But were I on the Supreme Court, I could do nothing to bring about any of these policies (with the possible exception of the standard for strict liability and probably not even that) because they are within the prerogative of the legislature and not the courts. Neither existing law nor the Wisconsin or US Constitutions mandates a limit on how much taxes can go up or the establishment of health savings accounts. Nothing precludes the legislature from mandating union featherbedding on the railroads. While the Supreme Court could set a standard for punitive damages, the legislature has done so and this is the standard that the courts must follow. A judge who follows the judicial philosophy that Ziegler claims to follow couldn't do anymore than I could.
What would be astonishing is if the Wisconsin Supreme Court held that the legislature could not pass TABOR or adopt HSAs or if the court went out of its way, manipulating doctrine, to interfere with the operation of these laws. My guess is that WMC is basing its endorsement on a judgment regarding the likelihood of each candidate doing that. In endorsing Ziegler, it may be acting unfairly toward Clifford, but the idea that the Wisconsin Supreme Court is going to implement this stuff is simply wrong,
The real issue in the Supreme Court race
I have been very critical of bloggers like Jay Bullock and Cory Liebman for misunderstanding certain issues in the state Supreme Court race, so I should acknowledge it when one of them says something that makes some sense. In a recent post, Jay suggested that being on the Supreme Court is very different than being a trial judge or a prosecutor and he is right. Jay wrote:
Being "tough on crime" is really not a bad qualification for a prosecutor or a municipal judge (notice, no one ever runs for DA with a "soft on crime" platform). But on the state's Supreme Court, you want someone who can provide a thoughtful approach to substantial matters across a wide spectrum of judicial theory. "Tough on crime" tells us nothing about a judge's ability to weigh matters of constitutional consequence; a strict lock-em-up, throw-away-the-key mentality is not necessarily a good fit on the high court."
There is really nothing there that I disagree with. I recall a few years back, a candidate for the Court of Appeals ran radio spots with a cell door banging shut and a voice over saying that candidate X knows where criminals belong. True, but largely irrelevant.
I don't blame the candidates for doing it because it is what works and may, at some level, express something about their approach to the relationship between the judiciary and law enforcement. But it is, at best, a small measure of a candidate's worth.
(However, if Judge Ziegler is not supposed to run on being a "tough" judge then I suppose her opponents ought not make an issue of any particular sentences she has handed down. Although they may review the legality of a sentence, justices don't sentence people or normally pass upon the exercise of sentencing discretion.)
Still Jay's idea of "a thoughtful approach to substantial matters across a wide spectrum of judicial theory" requires a great deal of unpacking. It is not simply a matter of whether someone is an experienced and smart lawyer. There are justices on the court who I believe are very smart and accomplished lawyers who, in my view, routinely get the law wrong.
The reason is not that they are liberal and that I am conservative, but that they have a different view than I do of what a judge is supposed to do. No judge or judicial candidate will say that they wish to "legislate from the bench" or call themselves "a judicial activist."
But many judges believe that they may "find" "fundamental" rights that are not mentioned in, or fairly inferable from, the constitutional text. They believe that it is their prerogative to act to remedy a social problem if, in their view, the legislature has not. They think that they ought to discern "contemporary sentiment" in interpreting the law, even if that means interpreting it in a way that it has never been interpreted before.
Now, there are smart and honest lawyers - good people - who believe that this is exactly what judges ought to do. I believe that it is fundamentally anti-democratic and is just as likely to frustrate liberal policies supported by the majority as it is likely to frustrate conservative ones. (Over our history, it has done both.)
But however you come down on that issue, this is the issue in the state Supreme Court race. It is not which candidate is qualified or which is a person of integrity. Both Clifford and Ziegler are qualified and both strike me as decent and honest women. But how do they view the role of the judiciary?
Getting at that is difficult. Paul Soglin recently put up two posts on the race that get it completely wrong. I'll turn to those later but I have a breakfast meeting.
Note: In the interest of full disclosure, I have been engaged by the Federalist Society to write a white paper on judicial restraint and activism on the Wisconsin Supreme Court and, along with certain other lawyers, to be available for comment on the issue of judicial restraint. This is part of the Society's State Courts project designed to educate the public on the role of the judiciary - something that is easiest to do when there is a campaign that gets people interested in the courts. The views that I express, whether in the white paper, here or elsewhere, are my own and not that of the Federalist Society . While I certainly will vote for, and contribute to, the candidate of my choosing, I am not acting on behalf of, nor am I apart of any campaign for Supreme Court and I do not intend to endorse either candidate.
Being "tough on crime" is really not a bad qualification for a prosecutor or a municipal judge (notice, no one ever runs for DA with a "soft on crime" platform). But on the state's Supreme Court, you want someone who can provide a thoughtful approach to substantial matters across a wide spectrum of judicial theory. "Tough on crime" tells us nothing about a judge's ability to weigh matters of constitutional consequence; a strict lock-em-up, throw-away-the-key mentality is not necessarily a good fit on the high court."
There is really nothing there that I disagree with. I recall a few years back, a candidate for the Court of Appeals ran radio spots with a cell door banging shut and a voice over saying that candidate X knows where criminals belong. True, but largely irrelevant.
I don't blame the candidates for doing it because it is what works and may, at some level, express something about their approach to the relationship between the judiciary and law enforcement. But it is, at best, a small measure of a candidate's worth.
(However, if Judge Ziegler is not supposed to run on being a "tough" judge then I suppose her opponents ought not make an issue of any particular sentences she has handed down. Although they may review the legality of a sentence, justices don't sentence people or normally pass upon the exercise of sentencing discretion.)
Still Jay's idea of "a thoughtful approach to substantial matters across a wide spectrum of judicial theory" requires a great deal of unpacking. It is not simply a matter of whether someone is an experienced and smart lawyer. There are justices on the court who I believe are very smart and accomplished lawyers who, in my view, routinely get the law wrong.
The reason is not that they are liberal and that I am conservative, but that they have a different view than I do of what a judge is supposed to do. No judge or judicial candidate will say that they wish to "legislate from the bench" or call themselves "a judicial activist."
But many judges believe that they may "find" "fundamental" rights that are not mentioned in, or fairly inferable from, the constitutional text. They believe that it is their prerogative to act to remedy a social problem if, in their view, the legislature has not. They think that they ought to discern "contemporary sentiment" in interpreting the law, even if that means interpreting it in a way that it has never been interpreted before.
Now, there are smart and honest lawyers - good people - who believe that this is exactly what judges ought to do. I believe that it is fundamentally anti-democratic and is just as likely to frustrate liberal policies supported by the majority as it is likely to frustrate conservative ones. (Over our history, it has done both.)
But however you come down on that issue, this is the issue in the state Supreme Court race. It is not which candidate is qualified or which is a person of integrity. Both Clifford and Ziegler are qualified and both strike me as decent and honest women. But how do they view the role of the judiciary?
Getting at that is difficult. Paul Soglin recently put up two posts on the race that get it completely wrong. I'll turn to those later but I have a breakfast meeting.
Note: In the interest of full disclosure, I have been engaged by the Federalist Society to write a white paper on judicial restraint and activism on the Wisconsin Supreme Court and, along with certain other lawyers, to be available for comment on the issue of judicial restraint. This is part of the Society's State Courts project designed to educate the public on the role of the judiciary - something that is easiest to do when there is a campaign that gets people interested in the courts. The views that I express, whether in the white paper, here or elsewhere, are my own and not that of the Federalist Society . While I certainly will vote for, and contribute to, the candidate of my choosing, I am not acting on behalf of, nor am I apart of any campaign for Supreme Court and I do not intend to endorse either candidate.
Wednesday, February 21, 2007
The problem with sick pay
The Democrats have decided that they aren't about to do anything about the state's abnormally generous policy regarding employee sick pay - even for elected officials. Employees are permitted to accumulate unused sick pay and then use it (at current not past levels of pay) to pay for post-employment health care. There are two problems. One is the sense that salaried high policy and managerial employees don't use "sick pay" even when they are sick. The other is that this is a benefit that is generally unavailable in the private sector.
Apologists for the policy see it as a way to compensate public employees for lower salaries. One problem with that is that not all public employees are paid less than comparable employees in the private sector. The public payroll is flatter than private payrolls. The less that a job pays the more likely it is to pay the same as (or even more than) a comparable private sector job.
But even were this not the case, there is a problem. All of these things that are supposed to "compensate" public employees for "low pay" and are said to be necessary to attract good people (e.g. rich health plans, fat pensions, accumulated sick pay) share one thing in common. They are not particularly visible. Indeed, benefits like pension and accumulated sick pay are generally off the books. They are a promise to pay tomorrow that no one notices. This is particularly so with the accumulated sick pay benefits. Most retired state employees with whom I have spoken did not even know they had it until it was time to collect. So much for the idea that it was a vital part of attracting them to state employment in the first place.
If the state needs to pay more to attract good judges or chemists, then it should pay more. That is the transparent and above board way to go about it. Rewarding public employees with benefits for which the government need not account and the magnitude of which is unclear is bad policy. It hides the ball. That's why it's done.
Apologists for the policy see it as a way to compensate public employees for lower salaries. One problem with that is that not all public employees are paid less than comparable employees in the private sector. The public payroll is flatter than private payrolls. The less that a job pays the more likely it is to pay the same as (or even more than) a comparable private sector job.
But even were this not the case, there is a problem. All of these things that are supposed to "compensate" public employees for "low pay" and are said to be necessary to attract good people (e.g. rich health plans, fat pensions, accumulated sick pay) share one thing in common. They are not particularly visible. Indeed, benefits like pension and accumulated sick pay are generally off the books. They are a promise to pay tomorrow that no one notices. This is particularly so with the accumulated sick pay benefits. Most retired state employees with whom I have spoken did not even know they had it until it was time to collect. So much for the idea that it was a vital part of attracting them to state employment in the first place.
If the state needs to pay more to attract good judges or chemists, then it should pay more. That is the transparent and above board way to go about it. Rewarding public employees with benefits for which the government need not account and the magnitude of which is unclear is bad policy. It hides the ball. That's why it's done.
Tuesday, February 20, 2007
S-squared on Sykes in-Sight
Tomorrow morning I will be participating on one of the panels during Charlie Sykes' Insight 2007 show. I believe that my co-panelists will be Owen Robinson, John McAdams and James Harris. We are scheduled to be on from 10:30 to 11:00 am.
LIFE! DO YOU HEAR ME? GIVE MY CREATION... LIFE!
The Frankenstein veto should go. Everyone agrees. Even the senate Democrats support its abolition. But now is just not the time. Not with a Democrat governor. We'll quit drinking tomorrow. We'll stop using cocaine when the stress dies down. Just look into our eyes and trust us. We will.
Why vote for Supreme Court?
If you are reading a political blog, you probably vote. But, in case you were thinking of sitting out the the Supreme Court race, I point out the following as examples of the impact the court has on the state. I am not suggesting, at this point, whether these decisions were right or wrong. You decide if they were important.
1. In 1994, the people of the state of Wisconsin amended the state constitution to prohibit casino-type gambling. In 2006, the court decided that, not only could casino games that were permitted before 1994 on Indian reservations continue, but that new games could be added.
2. The people of the state of Wisconsin amended the state's constitution to guarantee "the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." The court has essentially interpreted this to mean that one may bear arms only for the specifically named purposes (security, defense, hunting and recreation) and only if one, in the court's judgement, really needs to bear arms for that purpose. It has consequently upheld broad application of Wisconsin's laws prohibiting concealed carry.
3. Across the country, people who allege that they have been the victims of pedophile priests have sued Roman Catholic archdioceses for their failure to take steps to prevent such abuse and for, in some cases, covering it up. In Wisconsin, such suits are severely restricted. The reason they are is not because the legislature decided to do so. The state supreme court did.
4. The state legislature passed a system for compensating victims of medical malpractice that placed a limit on "noneconomic" damages that could be awarded to plaintiffs. Plaintiffs could recover all of their medical expenses and lost earnings but were subject to a maximum of $450,000 for things like pain and suffering. The Wisconsin supreme court held that the legislature - the people's representatives - may not do this.
5. The Wisconsin supreme court has embraced a principle called "New Federalism." This means that it feels free to interpret parallel provisions of Wisconsin's state constitution more expansively than the US Supreme Court interprets corresponding provisions in the US Constitution. Thus, criminal defendants may have X rights under federal law but X + Y rights in Wisconsin. Z might not be protected speech under the US Constitution, but would be under the state constitution. You may or may not like the outcome, but the key point is that when the Wisconsin Supreme Court decides cases in this way, it's decision is almost always final, i.e., it may not be appealed to the Supreme Court. Most recently, the court used this doctrine to, essentially, prohibit "show-ups" (cops have a suspect in custody and ask the victim "is this the guy") as a law enforcement tool.
I could go on. You should inform yourself and vote.
1. In 1994, the people of the state of Wisconsin amended the state constitution to prohibit casino-type gambling. In 2006, the court decided that, not only could casino games that were permitted before 1994 on Indian reservations continue, but that new games could be added.
2. The people of the state of Wisconsin amended the state's constitution to guarantee "the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." The court has essentially interpreted this to mean that one may bear arms only for the specifically named purposes (security, defense, hunting and recreation) and only if one, in the court's judgement, really needs to bear arms for that purpose. It has consequently upheld broad application of Wisconsin's laws prohibiting concealed carry.
3. Across the country, people who allege that they have been the victims of pedophile priests have sued Roman Catholic archdioceses for their failure to take steps to prevent such abuse and for, in some cases, covering it up. In Wisconsin, such suits are severely restricted. The reason they are is not because the legislature decided to do so. The state supreme court did.
4. The state legislature passed a system for compensating victims of medical malpractice that placed a limit on "noneconomic" damages that could be awarded to plaintiffs. Plaintiffs could recover all of their medical expenses and lost earnings but were subject to a maximum of $450,000 for things like pain and suffering. The Wisconsin supreme court held that the legislature - the people's representatives - may not do this.
5. The Wisconsin supreme court has embraced a principle called "New Federalism." This means that it feels free to interpret parallel provisions of Wisconsin's state constitution more expansively than the US Supreme Court interprets corresponding provisions in the US Constitution. Thus, criminal defendants may have X rights under federal law but X + Y rights in Wisconsin. Z might not be protected speech under the US Constitution, but would be under the state constitution. You may or may not like the outcome, but the key point is that when the Wisconsin Supreme Court decides cases in this way, it's decision is almost always final, i.e., it may not be appealed to the Supreme Court. Most recently, the court used this doctrine to, essentially, prohibit "show-ups" (cops have a suspect in custody and ask the victim "is this the guy") as a law enforcement tool.
I could go on. You should inform yourself and vote.
Monday, February 19, 2007
Losing my religion over Murtha
My sense of civility .... I hate to call people names or to presume bad faith on the part of people who disagree with me. I really try to avoid the "m-bat" word and I do not believe that people who oppose the war in Iraq are unpatriotic or dishonoring the troops.
But, for the life of me, I can't understand how Jack Murtha's "slow bleed" strategy can be called anything but despicable. We have placed young men and women in danger. Whether or not that was a good idea, it is where they are. Trying to end the war by hampering the ability of the military to fight it is a number of things. It is almost surely an unconstitutional usurpation of the President's authority as commander-in-chief. It reflects an irresponsible disregard of the consequences for Iraq and the Middle East of an abrupt American departure.
But, worst of all, by hampering the ability of the military to fight the war as they believe it ought to be fought, it increases the danger for the troops that are there. That does dishonor the troops. That is unpatriotic.
And what drives it is political cowardice. Murtha and those who support him don't want to accept the consequences of a vote to end the war by defunding it. When Iraq falls apart and the blood really starts to run, they don't want people pointing at them. I think Russ Feingold is wrong on the war, but at least he has the courage of his convictions.
Maybe someone should invite Murtha to a hotel room and offer him a bribe.
But, for the life of me, I can't understand how Jack Murtha's "slow bleed" strategy can be called anything but despicable. We have placed young men and women in danger. Whether or not that was a good idea, it is where they are. Trying to end the war by hampering the ability of the military to fight it is a number of things. It is almost surely an unconstitutional usurpation of the President's authority as commander-in-chief. It reflects an irresponsible disregard of the consequences for Iraq and the Middle East of an abrupt American departure.
But, worst of all, by hampering the ability of the military to fight the war as they believe it ought to be fought, it increases the danger for the troops that are there. That does dishonor the troops. That is unpatriotic.
And what drives it is political cowardice. Murtha and those who support him don't want to accept the consequences of a vote to end the war by defunding it. When Iraq falls apart and the blood really starts to run, they don't want people pointing at them. I think Russ Feingold is wrong on the war, but at least he has the courage of his convictions.
Maybe someone should invite Murtha to a hotel room and offer him a bribe.
Sunday, February 18, 2007
Are the Dems about to throw Bush into the briar patch?
I had thought that the silly resolutions against the troop surge would be the end of the matter. It seemed to be that the Dems wanted to be against the war without actually doing anything about that. In that, they mirror the irresolution of the Baker-Hamilton report that essentially says we can't win, but it would be awful to lose so let's just dither.
But if Hilary Clinton is actually talking about some type of more resolute Congressional action, we may be heading toward a constitutional crisis. Although resolutions critical of a President's choice of military strategy arguably exceed Congressional authority (the President is the constitutionally-designated commander-in-chief), they are easily (and properly) ignored.
But it is far from clear whether or how Congress has the authority to "revoke" its authorization of the use of force (or that such an authorization was even constitutionally required). For example, under the War Powers Resolution, Congress can supposedly end hostilities by a joint resolution but, apart from whether this violates the constitutional designation of the President as commander-in-chief, it is unclear whether it is constitutional for Congress to engage in this type of legislative veto. If that's the case, then perhaps it must act jointly subject to presidential veto.
And even if that can be done, there are constitutional questions surrounding the ability of Congress to limit the President's ability to act to protect the national security. They could presumably withdraw funding, but that is dicier than it sounds.
I don't pretend to be an expert in all of this, but the standoff between Congress and the White House would be historic.
Is it inevitable? Might events in Iraq change things? I am not sure. It's unclear how, even if the surge works, that the Dems will accept that. It's not as if there is going to be the "fall" of some enemy held territory because the enemy doesn't really "hold" territory. If al-Sadr has fled to Iran in fear of the surge, it would be huge. But, in the nature of the thing, it is very difficult to know whether this is the case.
So it seems that the Dems, who are clearly convinced that it is the path to power, may just push ahead. If they do, it is hard to see how the President can go along. A withdrawal of troops dictated by nothing more than a desire to get out will have horrific consequences and, unlike in Vietnam, it will be far more difficult to ignore.
And, finally, because we value the horse race more than the horses, how will this play politically? The Dems certainly seem to see it as the route to ObamaMania or HilaryFair 2008.
But maybe not.
By passing meaningless resolutions and giving speeches, the Dems do not accomplish anything, but they also ensure that Iraq remains Bush's problem. If they are now intending to actually do something, they may make it their own.
And if that happens, don't be surprised if what was a GOP liability becomes an asset.
But if Hilary Clinton is actually talking about some type of more resolute Congressional action, we may be heading toward a constitutional crisis. Although resolutions critical of a President's choice of military strategy arguably exceed Congressional authority (the President is the constitutionally-designated commander-in-chief), they are easily (and properly) ignored.
But it is far from clear whether or how Congress has the authority to "revoke" its authorization of the use of force (or that such an authorization was even constitutionally required). For example, under the War Powers Resolution, Congress can supposedly end hostilities by a joint resolution but, apart from whether this violates the constitutional designation of the President as commander-in-chief, it is unclear whether it is constitutional for Congress to engage in this type of legislative veto. If that's the case, then perhaps it must act jointly subject to presidential veto.
And even if that can be done, there are constitutional questions surrounding the ability of Congress to limit the President's ability to act to protect the national security. They could presumably withdraw funding, but that is dicier than it sounds.
I don't pretend to be an expert in all of this, but the standoff between Congress and the White House would be historic.
Is it inevitable? Might events in Iraq change things? I am not sure. It's unclear how, even if the surge works, that the Dems will accept that. It's not as if there is going to be the "fall" of some enemy held territory because the enemy doesn't really "hold" territory. If al-Sadr has fled to Iran in fear of the surge, it would be huge. But, in the nature of the thing, it is very difficult to know whether this is the case.
So it seems that the Dems, who are clearly convinced that it is the path to power, may just push ahead. If they do, it is hard to see how the President can go along. A withdrawal of troops dictated by nothing more than a desire to get out will have horrific consequences and, unlike in Vietnam, it will be far more difficult to ignore.
And, finally, because we value the horse race more than the horses, how will this play politically? The Dems certainly seem to see it as the route to ObamaMania or HilaryFair 2008.
But maybe not.
By passing meaningless resolutions and giving speeches, the Dems do not accomplish anything, but they also ensure that Iraq remains Bush's problem. If they are now intending to actually do something, they may make it their own.
And if that happens, don't be surprised if what was a GOP liability becomes an asset.
Saturday, February 17, 2007
What about rocket science?
In a recent piece in the Wall Street Journal, Cameron Stracher criticized legal education for being too intellectual. Law, he said, is not brain surgery, it is a skill to be acquired by practice and repetition."
I think Stracher's case is overstated, but that's not what interests me here. What I find fascinating is that this point was criticized by ... well not quite a brain surgeon, but a neuropsychologist and professor of medicine at Stanford. Dr. Matt Bowen writes:
Regarding brain surgery, even in this most modern medical era, rest assured that a surgeon’s skill — beginning with the first year of residency — is and always will be a matter of “practice and repetition” versus musings of the intellect. Moreover, I have known semi-literate auto mechanics, electricians, plumbers, carpenters and seamstresses who would make excellent brain surgeons. All they would require is due time apprenticing alongside a veteran surgeon. What’s needed in brain surgery is exceptional integration of visuomotor skills, sustained attention, and a capacity to anticipate and apprehend the visual problem. These are all functions of our cerebral right hemisphere.
Law, of course, requires diametrically opposed mental skills harbored in the verbal processing left hemisphere, where we live in our intellect versus our reactive instinct (the latter wired directly from the primitive sub-cortical circuits to the right hemisphere). Thus, from a historical, functional neurobehavioral, and commonsensical point of view, Professor Stracher’s comment could not have been more entirely incorrect.
One commentator suggested that we need a new catch phrase, such as "Well, this isn't topological quantum field theory, you know !"
I think Stracher's case is overstated, but that's not what interests me here. What I find fascinating is that this point was criticized by ... well not quite a brain surgeon, but a neuropsychologist and professor of medicine at Stanford. Dr. Matt Bowen writes:
Regarding brain surgery, even in this most modern medical era, rest assured that a surgeon’s skill — beginning with the first year of residency — is and always will be a matter of “practice and repetition” versus musings of the intellect. Moreover, I have known semi-literate auto mechanics, electricians, plumbers, carpenters and seamstresses who would make excellent brain surgeons. All they would require is due time apprenticing alongside a veteran surgeon. What’s needed in brain surgery is exceptional integration of visuomotor skills, sustained attention, and a capacity to anticipate and apprehend the visual problem. These are all functions of our cerebral right hemisphere.
Law, of course, requires diametrically opposed mental skills harbored in the verbal processing left hemisphere, where we live in our intellect versus our reactive instinct (the latter wired directly from the primitive sub-cortical circuits to the right hemisphere). Thus, from a historical, functional neurobehavioral, and commonsensical point of view, Professor Stracher’s comment could not have been more entirely incorrect.
One commentator suggested that we need a new catch phrase, such as "Well, this isn't topological quantum field theory, you know !"
Thursday, February 15, 2007
Oil tax may not play as well as it looks
I have not had the time to look at the details of Governor Doyle's proposed "windfall" profits tax on "Big Oil," although it strikes me as political pandering. If you focus on the absolute dollar profit of companies of companies like Exxon or Wal-Mart, they are huge because the companies are huge. For example, if you look at Exxon Mobil's margin in 2005, it's a bit over 10%. Very good, but hardly drug dealer money. In 2002, it was a lot less and, over time, the oil industry has not earned returns that are out of line with other industries.
In 2005, Disney did better than Exxon Mobil, but I haven't heard a call for a windfall profits tax on Big Movies.
When I was in college, Jimmy Carter famously said that world oil production would peak in a few years. It hasn't yet and won't for a long time. Oil is, at some point, a finite reason and, putting aside its more hysterical manifestations about which we are supposed to accede and shut up, alternate sources of energy are worth pursuing - preferably through market mechanisms. But running out of oil before we have to is a stupid policy and giving companies an incentive to extend rising production well past the point at which we formerly thought that it would peak is a good thing.
Of course, little Wisconsin cannot have an impact on global petroleum production. In fact, little Wisconsin may not even have the capacity to tax and, because Doyle says the companies pass on the tax, regulate the price of oil. One difficulty may be that the price he wants to regulate (i.e, the one that cannot pass on the tax) may take place outside of the state, if, for example, the companies that he calls "Big Oil" sell to wholesalers outside the state who, in turn, sell to retailers in the state. If Wisconsin tries to regulate the price at which that transaction occurs, it will almost certainly violate the Commerce Clause.
There are other potential legal problems, but, even if a way around them can be found, the Governor will have made it less profitable to do business here than elsewhere. Would we be surprised if that leads to gas shortages in Wisconsin?
Moreover, he will have enacted a tax that is very difficult and expensive to impose (because you have to enforce the "no passing it on" requirement).
Seems like all style and no substance.
In 2005, Disney did better than Exxon Mobil, but I haven't heard a call for a windfall profits tax on Big Movies.
When I was in college, Jimmy Carter famously said that world oil production would peak in a few years. It hasn't yet and won't for a long time. Oil is, at some point, a finite reason and, putting aside its more hysterical manifestations about which we are supposed to accede and shut up, alternate sources of energy are worth pursuing - preferably through market mechanisms. But running out of oil before we have to is a stupid policy and giving companies an incentive to extend rising production well past the point at which we formerly thought that it would peak is a good thing.
Of course, little Wisconsin cannot have an impact on global petroleum production. In fact, little Wisconsin may not even have the capacity to tax and, because Doyle says the companies pass on the tax, regulate the price of oil. One difficulty may be that the price he wants to regulate (i.e, the one that cannot pass on the tax) may take place outside of the state, if, for example, the companies that he calls "Big Oil" sell to wholesalers outside the state who, in turn, sell to retailers in the state. If Wisconsin tries to regulate the price at which that transaction occurs, it will almost certainly violate the Commerce Clause.
There are other potential legal problems, but, even if a way around them can be found, the Governor will have made it less profitable to do business here than elsewhere. Would we be surprised if that leads to gas shortages in Wisconsin?
Moreover, he will have enacted a tax that is very difficult and expensive to impose (because you have to enforce the "no passing it on" requirement).
Seems like all style and no substance.
Wednesday, February 14, 2007
Two questions
Answer one or both, Answer them here or wherever you want.
If you support Governor Doyle's rather substantial set of tax increases, are you bothered by the fact that he ran for reelection by promising not to raise taxes? Circumstances change, but they probably haven't even disconnected the phone at campaign headquarters.
If you support the Regents' adoption of "holistic admissions" including granting persons preferential treatment on the basis of race, are you bothered by the fact that it is clearly illegal? Does the fact that you like a policy (or think the law is a bad one) mean that you don't care if people who are sworn to uphold the law enact that policy by acting as if the law did not exist?
Don't answer by pointing to what you believe are similar acts by conservatives. I am sure you can find them, but they ought to be dealt with on their own terms. Can you defend the Governor's tax proposals and the Regents' policy on any basis other than "everybody does it"?
If you support Governor Doyle's rather substantial set of tax increases, are you bothered by the fact that he ran for reelection by promising not to raise taxes? Circumstances change, but they probably haven't even disconnected the phone at campaign headquarters.
If you support the Regents' adoption of "holistic admissions" including granting persons preferential treatment on the basis of race, are you bothered by the fact that it is clearly illegal? Does the fact that you like a policy (or think the law is a bad one) mean that you don't care if people who are sworn to uphold the law enact that policy by acting as if the law did not exist?
Don't answer by pointing to what you believe are similar acts by conservatives. I am sure you can find them, but they ought to be dealt with on their own terms. Can you defend the Governor's tax proposals and the Regents' policy on any basis other than "everybody does it"?
Tuesday, February 13, 2007
Thought experiment on domestic partner benefits
I am still mulling it over, but here is a domestic partner benefit scheme I think I could support: An unmarried employee may designate as a co-beneficiary (in addition to any children) a person who resides in his or her household and and with whom he or she shares living expenses if 1) the person is a blood relative within some specified degree of consanguinity or has lived with the employee for more than six months and 2) the co-beneficiary is singe and someone that the employee could not marry.
For all those who want to accuse social conservatives like me of homophobia, I am perfectly aware that this definition would extend benefits to long-term same-sex couples but would not extend benefits to unmarried opposite-sex couples.
I assume that the entire left side of the Cheddarsphere will endorse my proposal.
For all those who want to accuse social conservatives like me of homophobia, I am perfectly aware that this definition would extend benefits to long-term same-sex couples but would not extend benefits to unmarried opposite-sex couples.
I assume that the entire left side of the Cheddarsphere will endorse my proposal.
Monday, February 12, 2007
Culture is not just for wingnuts
A lawblawg called blackprof.com recently featured a post by Spencer Overton, a professor at the George Washington University School of Law. Professor Overton is most decidedly not a conservative but, from his very different perspective, he wonders, as I and others on the right have, whether advocates for the central city and African-American community are fighting the wrong war. Overton, who is writing a book about how ideologies become outmoded, wonders if there is not what he calls an "echo effect" in which black sensitivity to past discrimination has become counterproductive. He provides the following examples:
1. Academic achievement is deemed to be “White” among some Black folk, is frowned upon, and those who do so are deemed to be “oreos.”
2. When Whites dominated urban cities, public projects often displaced African American neighborhoods (“Urban renewal means Negro removal”). Now that African Americans control many urban cities, similar concerns about regentrification persist, and change and growth has evaded many urban areas.
3. Whites are deemed too culturally insensitive to adopt Black children, and tens of thousands of black children go unadopted.
Those of us in cities like Milwaukee might add a few more, such as adopting an oppositional stance toward law enforcement in response to its past and current wrongs when the far greater threat to the community is from street crime.
I cite Overton because it undercuts the notion that, when conservatives express concern over what they see as a counterproductive culture of alienation in our central cities, we are not being racist. I fully accept Overton's notion that this culture is rooted (not wholly, but to a large degree) in past discrimination and, I would add, in the excesses of the (largely white) counterculture and in the self congratulatory "solidarity" of white elites.
1. Academic achievement is deemed to be “White” among some Black folk, is frowned upon, and those who do so are deemed to be “oreos.”
2. When Whites dominated urban cities, public projects often displaced African American neighborhoods (“Urban renewal means Negro removal”). Now that African Americans control many urban cities, similar concerns about regentrification persist, and change and growth has evaded many urban areas.
3. Whites are deemed too culturally insensitive to adopt Black children, and tens of thousands of black children go unadopted.
Those of us in cities like Milwaukee might add a few more, such as adopting an oppositional stance toward law enforcement in response to its past and current wrongs when the far greater threat to the community is from street crime.
I cite Overton because it undercuts the notion that, when conservatives express concern over what they see as a counterproductive culture of alienation in our central cities, we are not being racist. I fully accept Overton's notion that this culture is rooted (not wholly, but to a large degree) in past discrimination and, I would add, in the excesses of the (largely white) counterculture and in the self congratulatory "solidarity" of white elites.
The real trouble with Amanda
In blog-time, the story is supposed to be over, but local blogger Jay Bullock still thinks he's fisking Milwaukee Journal-Sentinel columnist Patrick McIlheran over the l'affaire Amanda. I think the story is interesting because of what it says about our political culture, John Edwards and blogging.
Much of the defense of Amanda Marcotte revolves around criticism of Bill Donohue, a prominent Marcotte critic who accuses her of being "anti-Catholic" in particular and who is himself often intemperate, although not in the un-hinged way that was a staple of Marcotte's work on Pandagon. Folks also point out that John McCain has hired a blogger named Patrick Hynes who has posted some juvenile things about the physical appearance of certain Democrats and who is supposed to have written some equally offensive things about other peoples religions, although, again, they are just not Marcottean.
I think Donohue is fair game for criticism - not the least because he buys into the victimization game played on the left. He has no problem with political correctness - he just wants it to include Catholics. I don't think I am a fan of Patrick Hynes but I've yet to see anything that allows me to conclude that he has dumped the kind of bile that Marcotte has.
In that connection, it is important to understand what the problem with Amanda really is. It is not that she uses profanity. I don't do it here, but people who know me could tell you that the "f-word" does pass my lips (although generally not as adjective attached to another person). That contributes to the heat of her posts, but that - in and of itself - is not the problem.
It's not that she is particularly anti-Catholic. That's Bill Donohue's trip. She can't stand any form of orthodox Christianity.
It is not that she is "critical" of Christians and conservatives - or even that she makes fun of them. It is that one cannot help but conclude that she hates - really hates - these people. That this animosity finds a large audience that mistakes it for wit and erudition does say something about our political culture - at least in the blogosphere. (I am sure there are examples on the right.)Amanda Marcotte is someone who built a reputation and got hired by a national presidential campaign for throwing overwrought (and occasionally clever) temper tantrums in public. This is, I think, consistent with an increased cultural tendency to see anger as admirable.
Jay and conservative blogger Sean Hackbarth suggest that this is ok (although I'm fairly certain that neither would do it) in the blogosphere. Sean writes that "[o]ur behavior changes when we are in a professional environment versus the safer confines of friends and family." But, of course, the blogosphere is not limited to one's friends and family and acting like it is contributes to the mainstream media disdain for bloggers that Sean object to. More fundamentally, for Amanda Marcotte, the blogosphere was her professional environment. If you want to use blogging to get a new gig, then you have to accept responsibility for how you blog.
And John Edwards has to accept responsibility for who he hires. There is really no way to deny that had Marcotte launched that type of vitriol against groups that are favored on the left, there would be a huge clamor for her head. (If you don't believe me, imagine her delightful little post about Rick Santorum's alleged "frustration" and his supposed desire for his senate desk morphed into a comparably crude attack on Barney Frank.) It would not be dismissed as "satire."
The leftroots thrives on the expression of anger at - and hatred for - the political right. This feeds a sense of moral and political superiority. Although I think this tendency is far more pronounced on the left (at least while the Republicans have the White House), I don't deny it exists on the right as well. But John Edwards has reached out and hired - for a very public position - someone (actually two someones) whose sole qualification is the capacity to stoke it. He wants to be President of the United States. He doesn't get a free pass on that.
Much of the defense of Amanda Marcotte revolves around criticism of Bill Donohue, a prominent Marcotte critic who accuses her of being "anti-Catholic" in particular and who is himself often intemperate, although not in the un-hinged way that was a staple of Marcotte's work on Pandagon. Folks also point out that John McCain has hired a blogger named Patrick Hynes who has posted some juvenile things about the physical appearance of certain Democrats and who is supposed to have written some equally offensive things about other peoples religions, although, again, they are just not Marcottean.
I think Donohue is fair game for criticism - not the least because he buys into the victimization game played on the left. He has no problem with political correctness - he just wants it to include Catholics. I don't think I am a fan of Patrick Hynes but I've yet to see anything that allows me to conclude that he has dumped the kind of bile that Marcotte has.
In that connection, it is important to understand what the problem with Amanda really is. It is not that she uses profanity. I don't do it here, but people who know me could tell you that the "f-word" does pass my lips (although generally not as adjective attached to another person). That contributes to the heat of her posts, but that - in and of itself - is not the problem.
It's not that she is particularly anti-Catholic. That's Bill Donohue's trip. She can't stand any form of orthodox Christianity.
It is not that she is "critical" of Christians and conservatives - or even that she makes fun of them. It is that one cannot help but conclude that she hates - really hates - these people. That this animosity finds a large audience that mistakes it for wit and erudition does say something about our political culture - at least in the blogosphere. (I am sure there are examples on the right.)Amanda Marcotte is someone who built a reputation and got hired by a national presidential campaign for throwing overwrought (and occasionally clever) temper tantrums in public. This is, I think, consistent with an increased cultural tendency to see anger as admirable.
Jay and conservative blogger Sean Hackbarth suggest that this is ok (although I'm fairly certain that neither would do it) in the blogosphere. Sean writes that "[o]ur behavior changes when we are in a professional environment versus the safer confines of friends and family." But, of course, the blogosphere is not limited to one's friends and family and acting like it is contributes to the mainstream media disdain for bloggers that Sean object to. More fundamentally, for Amanda Marcotte, the blogosphere was her professional environment. If you want to use blogging to get a new gig, then you have to accept responsibility for how you blog.
And John Edwards has to accept responsibility for who he hires. There is really no way to deny that had Marcotte launched that type of vitriol against groups that are favored on the left, there would be a huge clamor for her head. (If you don't believe me, imagine her delightful little post about Rick Santorum's alleged "frustration" and his supposed desire for his senate desk morphed into a comparably crude attack on Barney Frank.) It would not be dismissed as "satire."
The leftroots thrives on the expression of anger at - and hatred for - the political right. This feeds a sense of moral and political superiority. Although I think this tendency is far more pronounced on the left (at least while the Republicans have the White House), I don't deny it exists on the right as well. But John Edwards has reached out and hired - for a very public position - someone (actually two someones) whose sole qualification is the capacity to stoke it. He wants to be President of the United States. He doesn't get a free pass on that.
Sunday, February 11, 2007
Wisconsin Right to Life knows judicial philosophy matters
Cory Liebmann is sure that Supreme Court candidate Annette Ziegler must have told Wisconsin Right to Life how she will vote on issues related to abortion in order to garner the group's endorsement. She must have, he thinks, promised that "she would be a conservative judicial activist for their extreme interests. "
This, he concludes, betrays the commitment of conservatives to something called "judicial restraint."
I have no idea of what Annette Ziegler told Wisconsin Right to Life, although I would be shocked if she (or, for that matter, Linda Clifford) said anything about how she would decide a particular case. Contrary to Cory's assumption, Wisconsin Right to Life - or any other pro-life group - are perfectly able to endorse a judicial candidate based upon an understanding of that candidate's judicial philosophy.
The recognition of a constitutional right to abortion is an inherently "activist" position. This is so because judges committed to restraint are, at minimum, "textualists," i.e., they believe that a judge ought to limit herself to the text of the law that she is interpreting. Neither the right to an abortion, nor the larger right to privacy of which it is said to be a part, are referred to in the Constitution. You can read more about that here.
This is why the left has called Rudy Giuliani's statement that he will appoint judges who are "strict constructionists" a promise to appoint "anti-choice" judges. A strict constructionist (or "restraintist") would, in all likelihood, not find a constitutional right that is not in the constitution.
This, he concludes, betrays the commitment of conservatives to something called "judicial restraint."
I have no idea of what Annette Ziegler told Wisconsin Right to Life, although I would be shocked if she (or, for that matter, Linda Clifford) said anything about how she would decide a particular case. Contrary to Cory's assumption, Wisconsin Right to Life - or any other pro-life group - are perfectly able to endorse a judicial candidate based upon an understanding of that candidate's judicial philosophy.
The recognition of a constitutional right to abortion is an inherently "activist" position. This is so because judges committed to restraint are, at minimum, "textualists," i.e., they believe that a judge ought to limit herself to the text of the law that she is interpreting. Neither the right to an abortion, nor the larger right to privacy of which it is said to be a part, are referred to in the Constitution. You can read more about that here.
This is why the left has called Rudy Giuliani's statement that he will appoint judges who are "strict constructionists" a promise to appoint "anti-choice" judges. A strict constructionist (or "restraintist") would, in all likelihood, not find a constitutional right that is not in the constitution.
Friday, February 09, 2007
Are the Regents ignoring the law?
The UW Board of Regents is prepared to adopt a policy that mandates the consideration of race in freshman admissions. (Update: They passed it unanimously.)The policy specifies that a number of an applicant's characteristics including "whether the applicant is a member of an historically underrepresented racial or ethnic group." The use of race would not be new as current policy permits the "nontraditional" admission of students who do not meet the regular admission status "because" they are members of minority groups. My guess is that the system is concerned that policy may be a little too blatant to pass constitutional muster.
The problem, it seems to me, is that state law precludes consideration of race. Sec. 36.11(3)(a) of the state statutes states that no "tests based upon race ... shall ever be allowed in the admission of students" to the UW system. Sec. 36.12(1) says that "[n]o student may be denied admission to, participation in or the benefits of, or to be discriminated against in any service, program, course or facility of the [UW] system because of the student's race ...."
Specifying that race may be considered in admission decisions is to impose a racial test. It is to permit the admission of a student who would otherwise not be admitted because that student belongs to a certain racial group. As the university's director of admissions has said [i]If we're undecided, and the kid's on the border, race or ethnicity can push them over...."
If there are only a given number of admissions available, this necessarily means that someone else will not be admitted because they are not in the target racial group. Thus, they have been discriminated against on the basis of their race. Only the most sophistical construction of the statute can avoid this conclusion.
It is certainly true that the Supreme Court, by a 5-4 vote, has held that an admissions program that considers race "as a factor" does not violate the United States Constitution. According to Rep. Steve Nass, some people apparently think this trumps state law. If they do, I hope they are not lawyers. (Update: Not only are they lawyers, but one is my former partner.) As Rep. Nass quite correctly points out, such a claim is unequivocally false. The Supreme Court decision, Grutter v. Bollinger, only means that a state may adopt such a program, not that it must.
The Regents remain bound by state law which, it seems, they have and will continue to ignore.
If evaluating candidates for admission based upon the color of the skin is a good idea, the Regents should go to the legislature and ask it to amend the law to give them the authority to do so. As it is, it is hard to see why what they are doing is not patently illegal.
The problem, it seems to me, is that state law precludes consideration of race. Sec. 36.11(3)(a) of the state statutes states that no "tests based upon race ... shall ever be allowed in the admission of students" to the UW system. Sec. 36.12(1) says that "[n]o student may be denied admission to, participation in or the benefits of, or to be discriminated against in any service, program, course or facility of the [UW] system because of the student's race ...."
Specifying that race may be considered in admission decisions is to impose a racial test. It is to permit the admission of a student who would otherwise not be admitted because that student belongs to a certain racial group. As the university's director of admissions has said [i]If we're undecided, and the kid's on the border, race or ethnicity can push them over...."
If there are only a given number of admissions available, this necessarily means that someone else will not be admitted because they are not in the target racial group. Thus, they have been discriminated against on the basis of their race. Only the most sophistical construction of the statute can avoid this conclusion.
It is certainly true that the Supreme Court, by a 5-4 vote, has held that an admissions program that considers race "as a factor" does not violate the United States Constitution. According to Rep. Steve Nass, some people apparently think this trumps state law. If they do, I hope they are not lawyers. (Update: Not only are they lawyers, but one is my former partner.) As Rep. Nass quite correctly points out, such a claim is unequivocally false. The Supreme Court decision, Grutter v. Bollinger, only means that a state may adopt such a program, not that it must.
The Regents remain bound by state law which, it seems, they have and will continue to ignore.
If evaluating candidates for admission based upon the color of the skin is a good idea, the Regents should go to the legislature and ask it to amend the law to give them the authority to do so. As it is, it is hard to see why what they are doing is not patently illegal.
John Edwards chooses his America
I'm not surprised that John Edwards has decided to keep Amanda Marcotte as his campaign's blogtrix. He has only one path to the presidency and that's around the left flank of Clinton and Obama. He didn't hire Marcotte in spite of all the outrageous things she has written, he hired her because of them. If you read the samplings of her work on the internet, you come away with two impressions. First, she is an ill-informed and unreflective radical who hates - truly hates - religion and conservatives. Second, she is very good at stoking the passions of those who agree with her.
It is, therefore, completely disingenuous for Edwards to say that he believes, of Marcotte and another blogger he hired, that "it was never their intention to malign anyone's faith." If he believes that, he can't read. That was precisely Marcotte's intent and she did it well and that's how she developed a reputation among the "leftroots."
Of course, she won't do that on the campaign blog. You've got to clean up your act for the Show, but hiring her gives Edwards street cred with the kind of people who made Howard Dean and drove Joe Lieberman to the very edge of the Democratic Party (let go, Joe).
People on the religious left feel disrespected and they should. The nascent idea of building a faith-based liberalism looks to be dead in the water for '08.
But having made his choice, Edwards has to take the heat. The problem with Marcotte is not that she used foul language. It is not that she had a few problematic posts. It is that she repeatedly mocked Christianity and attacked her political opponents in an extremely vile and intemperate manner. She repeatedly lost herself in (and stoked) the various paranoias and hysterias of the far left. If this is the path that Edwards wants to take and he does get the nomination, it is going to take quite a lot to return to the reality-based community for the general.
It is, therefore, completely disingenuous for Edwards to say that he believes, of Marcotte and another blogger he hired, that "it was never their intention to malign anyone's faith." If he believes that, he can't read. That was precisely Marcotte's intent and she did it well and that's how she developed a reputation among the "leftroots."
Of course, she won't do that on the campaign blog. You've got to clean up your act for the Show, but hiring her gives Edwards street cred with the kind of people who made Howard Dean and drove Joe Lieberman to the very edge of the Democratic Party (let go, Joe).
People on the religious left feel disrespected and they should. The nascent idea of building a faith-based liberalism looks to be dead in the water for '08.
But having made his choice, Edwards has to take the heat. The problem with Marcotte is not that she used foul language. It is not that she had a few problematic posts. It is that she repeatedly mocked Christianity and attacked her political opponents in an extremely vile and intemperate manner. She repeatedly lost herself in (and stoked) the various paranoias and hysterias of the far left. If this is the path that Edwards wants to take and he does get the nomination, it is going to take quite a lot to return to the reality-based community for the general.
Thursday, February 08, 2007
The articulate Barack revisited
In response to a comment on my earlier post regarding the putative racism of calling Barack Obama articulate, I decided to take a white presidential contender who had a similarly thin presidential resume and see how hard it would be to find references to that candidate as articulate. Not hard, it turns out. John Edwards, for example, is referred to as articulate here and here and here and here. It took about two minutes to find those.
In fairness to the reader, he or she is making a more nuanced claim that "when referring to a black person is that this term is normally used not in comparison to peers/competitors, but to blacks in general or to the stereotype of blacks. "
But how can we possibly know that? That's not what the President said. To suggest that this is what he "really" meant is to presume racial bad faith. People (or remarks) become racist simply because we say they are.
The Obama boom for President started after his speech at the 2004 Democratic Convention. People said it was good. Are we to be upset because they "must have" meant it was good only in comparison to what we'd expect from a black politician?
In Lewis Carroll's Through the Looking Glass, Humpty Dumpty tells Alice that "[w]hen I use a word, it means what I choose it to mean, neither more nor less." "The question is," Alice responds, "whether you CAN make words mean so many different things."
If you choose to make racism mean anything, it will come to mean nothing
In fairness to the reader, he or she is making a more nuanced claim that "when referring to a black person is that this term is normally used not in comparison to peers/competitors, but to blacks in general or to the stereotype of blacks. "
But how can we possibly know that? That's not what the President said. To suggest that this is what he "really" meant is to presume racial bad faith. People (or remarks) become racist simply because we say they are.
The Obama boom for President started after his speech at the 2004 Democratic Convention. People said it was good. Are we to be upset because they "must have" meant it was good only in comparison to what we'd expect from a black politician?
In Lewis Carroll's Through the Looking Glass, Humpty Dumpty tells Alice that "[w]hen I use a word, it means what I choose it to mean, neither more nor less." "The question is," Alice responds, "whether you CAN make words mean so many different things."
If you choose to make racism mean anything, it will come to mean nothing
Wednesday, February 07, 2007
"I think what you're seeing, not just in our African-American community but across the country, is a distrust of police departments,"
In response to the troubling incident on a Milwaukee County bus, that is what Urban League President President Ralph Hollmon had to say.
I understand that a soundbite in the paper may or may not reflect the totality of one's thoughts on the matter and I am sure that Mr. Hollman isn't advocating a policy of "no snitching." But is this truly effective leadership? What happened on that bus - the behavior of the accused and the inaction of the passengers - is what is tearing apart a community whose best interests I am sure he has at heart. Wouldn't it have been an appropriate place and time to speak to that?
I understand that a soundbite in the paper may or may not reflect the totality of one's thoughts on the matter and I am sure that Mr. Hollman isn't advocating a policy of "no snitching." But is this truly effective leadership? What happened on that bus - the behavior of the accused and the inaction of the passengers - is what is tearing apart a community whose best interests I am sure he has at heart. Wouldn't it have been an appropriate place and time to speak to that?
Fighting Bob wouldn't
The following may be one of the most curious statements that I have read in an op-ed. Ever.
Dave Zwiefel, writing in the Cap-Times, is commending Wisconsin Senator Bob LaFollette's opposition to the US entry into World War I. That opposition, according to Zwiefel, was righteous because the world would have been a better place had we decided to allow the blood to continue to run:
Fighting Bob lost that battle, but there are some who believe that had he won it, the world would have been a much different place today. Our entry in that war set the stage for an entirely new U.S. role in world affairs that has escalated since. Some insist that had the Europeans been left to settle their own affairs, the conditions that evolved to produce an Adolf Hitler and led to World War II would have never occurred.
It's that last sentence that got me. WWI was one of the most brutally murderous wars in human history. There was no end in sight until the Americans intervened. It wasn't so much that we had a great Army but that the Germans (who were still on French soil when they surrendered) knew that they would be overcome by our dirty capitalistic wealth. There would be no end to the men and materiale that we could move to move to Europe. They had nothing left but we had a whole lotta more.
So how would the world have been a better place had we let the slaughter continue? Maybe there would have been no Adolf Hitler and WWII because there would have been no Europeans left. Maybe Zwiefel is arguing for efficiency. One war. One solution.
Maybe the world would have been a better place because the Germans would have won. Maybe they could have kept a lid on all those nasty urges for self determination that lead to conflict. Still, history tells us that Deutschland uber alles is generally no walk in the park for the alles.
Or lets say the Allies would have won anyway. If Zweifel is under the impression that it was Wilson who wanted the most punitive aspects of the Versailles Treaty, he is wrong. That was the doing of the European Allies and Wilson went along because all he wanted was his Fourteen Points and his doomed League of Nations. The idea that the Allies would have been more reasonable if the war went on longer and only the French and British were there seems just a snidge unlikely.
Maybe its victory that Zweifel has a a problem with. Perhaps he believes that the Europeans would have eventually decided to forget the whole thing, returning to the pre-bellum status quo. No use crying over spilled milk and 50 million dead. What if they gave a war and nobody came?
I know that we in Wisconsin are all supposed to regard Bob LaFollette as the unacknowledged savior of everything because he is the Wisconsin politician who has come the closest (and it wasn't very close) to being President, but maybe his opposition to the war had something to do with his largely German-American constituency. That just couldn't be.
As for Zwiefel's larger point - that the war in Iraq was foisted upon us by profiteering corporations - I am suitably chastened. And I thought there was - like - real conflict in the world. There is always Madison, preserved in amber, insisting that everything that we have learned was wrong is still right.
Dave Zwiefel, writing in the Cap-Times, is commending Wisconsin Senator Bob LaFollette's opposition to the US entry into World War I. That opposition, according to Zwiefel, was righteous because the world would have been a better place had we decided to allow the blood to continue to run:
Fighting Bob lost that battle, but there are some who believe that had he won it, the world would have been a much different place today. Our entry in that war set the stage for an entirely new U.S. role in world affairs that has escalated since. Some insist that had the Europeans been left to settle their own affairs, the conditions that evolved to produce an Adolf Hitler and led to World War II would have never occurred.
It's that last sentence that got me. WWI was one of the most brutally murderous wars in human history. There was no end in sight until the Americans intervened. It wasn't so much that we had a great Army but that the Germans (who were still on French soil when they surrendered) knew that they would be overcome by our dirty capitalistic wealth. There would be no end to the men and materiale that we could move to move to Europe. They had nothing left but we had a whole lotta more.
So how would the world have been a better place had we let the slaughter continue? Maybe there would have been no Adolf Hitler and WWII because there would have been no Europeans left. Maybe Zwiefel is arguing for efficiency. One war. One solution.
Maybe the world would have been a better place because the Germans would have won. Maybe they could have kept a lid on all those nasty urges for self determination that lead to conflict. Still, history tells us that Deutschland uber alles is generally no walk in the park for the alles.
Or lets say the Allies would have won anyway. If Zweifel is under the impression that it was Wilson who wanted the most punitive aspects of the Versailles Treaty, he is wrong. That was the doing of the European Allies and Wilson went along because all he wanted was his Fourteen Points and his doomed League of Nations. The idea that the Allies would have been more reasonable if the war went on longer and only the French and British were there seems just a snidge unlikely.
Maybe its victory that Zweifel has a a problem with. Perhaps he believes that the Europeans would have eventually decided to forget the whole thing, returning to the pre-bellum status quo. No use crying over spilled milk and 50 million dead. What if they gave a war and nobody came?
I know that we in Wisconsin are all supposed to regard Bob LaFollette as the unacknowledged savior of everything because he is the Wisconsin politician who has come the closest (and it wasn't very close) to being President, but maybe his opposition to the war had something to do with his largely German-American constituency. That just couldn't be.
As for Zwiefel's larger point - that the war in Iraq was foisted upon us by profiteering corporations - I am suitably chastened. And I thought there was - like - real conflict in the world. There is always Madison, preserved in amber, insisting that everything that we have learned was wrong is still right.
Tuesday, February 06, 2007
Talking Global Warming Blues
We have been in a deep freeze here in southeastern Wisconsin. Yesterday, I took my dogs for a walk (it was -5) and got reported to PETA. Today we had a bit of heat wave- it climbed above 0 and is headed toward low double digits. I am prepared to agree that the "debate is over" on global warming. Let's get on with it.
But skepticism intervenes. Last week, local teacher, blogger and folk singer Jay Bullock wondered why we conservatives don't hop on Al Gore's glory train. (I tried to answer here.) My Backstory colleague Jim Rowen, on his new blog, suggested that the "unequivocal" truth on global warming ought to get us some trains anyway.
We have one side demanding that the debate end and the other asking about this or that "inconvenient fact" that seems to call the orthodoxy into question.
Near as I am able to tell, the science establishes that the earth is a bit warmer and presents a credible hypothesis (not empirically verified) that some or maybe even most of this is due to human activity, although there are alternative hypotheses.
Just how bad this will be is also a matter of debate. The low ends of the recent UN study suggests not so much and it seems increasingly questionable that a Kyoto-like jettison of the global economy will help much at all, much less cause help more than it will certainly hurt. Very few credible scientists seem to think that Al Gore's Oscar-nominated PowerPoint presentation bears much resemblance to the truth but yet the much "thinner" consensus that seems to exist is cited as support for his very "thick" remedies. In any event, the proposition that the modest warming to date will one day have catastrophic consequences can only be addressed by complex forecasting models that may or may not bear much relationship to reality.
Of course, I could be wrong but the problem is this. One side seems to be advancing arguments and the other seems to telling us to shut up and go along based upon appeals to authority. Much of the response to the skeptics' arguments is to assert an ipse dixit and attack "the deniers" as tools of some threatened interest.
But I'm not sure there are any disinterested interests in this debate. There are folks who stand to gain from global warming hysteria just as there are those who might benefit from global warming denial.
I have to admit that I don't trust environmentalists. During most of my adult life, they have been predicting imminent catastrophes that never happened. We didn't have (and apparently are not going to have) a new ice age (except that some people who focus on solar impacts on the climate think that we might). The population explosion imploded. We didn't run out of oil. It's 2007 and I can still breath the air. The rain forest is not gone. I mean, if I had listened back in 1978, it's a miracle that I'm still here and leaving a carbon footprint about the size of Magilla Gorilla's.
Extrapolating from small temperature increases that are not historically unprecedented to huge increases and then making the further claim that these changes are (unlike large changes in the past) caused by and remediable by human beings is a big claim. Using that claim to argue that we should seriously retard global economic development - something that will certainly cause pain and death - is an even bigger one. Saying that we can do that and somehow exempt some of the world's largest (and dirtiest) economies (India and China) is, I think, more than even Al Gore and John Kerry can handle.
So forgive me if I stay inside (out of the Milwaukee cold) while you all are out there proclaiming the end of days.
But skepticism intervenes. Last week, local teacher, blogger and folk singer Jay Bullock wondered why we conservatives don't hop on Al Gore's glory train. (I tried to answer here.) My Backstory colleague Jim Rowen, on his new blog, suggested that the "unequivocal" truth on global warming ought to get us some trains anyway.
We have one side demanding that the debate end and the other asking about this or that "inconvenient fact" that seems to call the orthodoxy into question.
Near as I am able to tell, the science establishes that the earth is a bit warmer and presents a credible hypothesis (not empirically verified) that some or maybe even most of this is due to human activity, although there are alternative hypotheses.
Just how bad this will be is also a matter of debate. The low ends of the recent UN study suggests not so much and it seems increasingly questionable that a Kyoto-like jettison of the global economy will help much at all, much less cause help more than it will certainly hurt. Very few credible scientists seem to think that Al Gore's Oscar-nominated PowerPoint presentation bears much resemblance to the truth but yet the much "thinner" consensus that seems to exist is cited as support for his very "thick" remedies. In any event, the proposition that the modest warming to date will one day have catastrophic consequences can only be addressed by complex forecasting models that may or may not bear much relationship to reality.
Of course, I could be wrong but the problem is this. One side seems to be advancing arguments and the other seems to telling us to shut up and go along based upon appeals to authority. Much of the response to the skeptics' arguments is to assert an ipse dixit and attack "the deniers" as tools of some threatened interest.
But I'm not sure there are any disinterested interests in this debate. There are folks who stand to gain from global warming hysteria just as there are those who might benefit from global warming denial.
I have to admit that I don't trust environmentalists. During most of my adult life, they have been predicting imminent catastrophes that never happened. We didn't have (and apparently are not going to have) a new ice age (except that some people who focus on solar impacts on the climate think that we might). The population explosion imploded. We didn't run out of oil. It's 2007 and I can still breath the air. The rain forest is not gone. I mean, if I had listened back in 1978, it's a miracle that I'm still here and leaving a carbon footprint about the size of Magilla Gorilla's.
Extrapolating from small temperature increases that are not historically unprecedented to huge increases and then making the further claim that these changes are (unlike large changes in the past) caused by and remediable by human beings is a big claim. Using that claim to argue that we should seriously retard global economic development - something that will certainly cause pain and death - is an even bigger one. Saying that we can do that and somehow exempt some of the world's largest (and dirtiest) economies (India and China) is, I think, more than even Al Gore and John Kerry can handle.
So forgive me if I stay inside (out of the Milwaukee cold) while you all are out there proclaiming the end of days.
Tosa bus incident is not just about race
I have heard that Charlie Sykes mentioned it this morning, but, in fairness, I first learned of the beating of a white bus rider via e-mail from my Backstory colleague and Spanish Journal publisher Robert Miranda, linking to a report on WauwatosaNow.com.
In case you haven't heard, the story is that the lone white rider on a bus in a near suburb of Milwaukee was harassed and assaulted by some black teenagers who called him a "cracker" along with other epithets. The incident (or part of it) was apparently captured on videotape, but none of the other 50-some riders (all African-Americans) would admit to having seen anything.
I will let others take the "can you imagine if it was a black guy on a bus full of white people" approach, an observation that, while hackneyed, is true.
What interests me is the "non-racial" angle. We - particularly those of us who remember the 60's (the late 60's in my case) - are very attuned to the paradigm of discrimination. We grew up in a time when racism and associated exclusion of certain "out" groups was a prevalent social evil. So we think that's what's newsworthy here is the interracial angle.
What we have been slower to realize is that times have changed. Racism and other forms of discrimination still exist, but they are no longer the paramount social evil. Rather, it may now be the extent to which the civic virtues that we all thought were boring and repressive, e.g, fidelity, civility, a sense of duty, etc, are increasingly disregarded.
So this incident would be just as significant were it (as similar events most often are) an intraracial crime. What is troubling about this story is not just that a couple of kids behaved like thugs or that they picked on a guy because he was white. What is shocking is that 50 people on a bus, whether out of some misplaced sense of racial solidarity or, as I think is more likely, from fear and indifference, believed that there was nothing that they should - or could - do about it.
People on the left, often quite admirably, want to save the city and build an integrated society. They want people to take mass transit and "save the earth."
But if this type of incident is not uncommon in the city and on our buses, there is no set of policies - and no amount of money - that will make that happen. That's why an urban leadership that goes ballistic (and properly so) over bad cops, but it is silent about roving thugs (that insists they not even be called thugs) hurts the city. That's why an alderman who openly dismisses his white constituents and advocates "no snitching" hurts the city.
In case you haven't heard, the story is that the lone white rider on a bus in a near suburb of Milwaukee was harassed and assaulted by some black teenagers who called him a "cracker" along with other epithets. The incident (or part of it) was apparently captured on videotape, but none of the other 50-some riders (all African-Americans) would admit to having seen anything.
I will let others take the "can you imagine if it was a black guy on a bus full of white people" approach, an observation that, while hackneyed, is true.
What interests me is the "non-racial" angle. We - particularly those of us who remember the 60's (the late 60's in my case) - are very attuned to the paradigm of discrimination. We grew up in a time when racism and associated exclusion of certain "out" groups was a prevalent social evil. So we think that's what's newsworthy here is the interracial angle.
What we have been slower to realize is that times have changed. Racism and other forms of discrimination still exist, but they are no longer the paramount social evil. Rather, it may now be the extent to which the civic virtues that we all thought were boring and repressive, e.g, fidelity, civility, a sense of duty, etc, are increasingly disregarded.
So this incident would be just as significant were it (as similar events most often are) an intraracial crime. What is troubling about this story is not just that a couple of kids behaved like thugs or that they picked on a guy because he was white. What is shocking is that 50 people on a bus, whether out of some misplaced sense of racial solidarity or, as I think is more likely, from fear and indifference, believed that there was nothing that they should - or could - do about it.
People on the left, often quite admirably, want to save the city and build an integrated society. They want people to take mass transit and "save the earth."
But if this type of incident is not uncommon in the city and on our buses, there is no set of policies - and no amount of money - that will make that happen. That's why an urban leadership that goes ballistic (and properly so) over bad cops, but it is silent about roving thugs (that insists they not even be called thugs) hurts the city. That's why an alderman who openly dismisses his white constituents and advocates "no snitching" hurts the city.
The NFL and its hardened heart
The Shark reads the law so that you don't have to. It turns out that the NFL's policy of permitting sports bars to show games on big screen TVs is mandated by the copyright statutes as well as its policy of limiting other public displays to screens that are less than 55 inches.
While some legal commentators have questioned whether the showing at a church (if limited to members) is a public display at all, it is also the case that the law seems to provide an exception if no direct or indirect admission charge is assessed and whatever proceeds are generated are used for charitable, educational and religious organ purposes unless the copyright holder objects.
While some legal commentators have questioned whether the showing at a church (if limited to members) is a public display at all, it is also the case that the law seems to provide an exception if no direct or indirect admission charge is assessed and whatever proceeds are generated are used for charitable, educational and religious organ purposes unless the copyright holder objects.
So the NFL does not have to cross the land snuffing church parties of whatever size unless it 1) wants to or 2) its license with the networks requires.
Monday, February 05, 2007
Is Barack Obama articulate?
Well, if he is, you didn't hear it from me since this is apparently an insult when directed to African-American politicians whose silver tongues (if they have them) are apparently to be assumed and not commented upon. Just how one would sensitively compliment such a politician is left unclear, although perhaps the recent Daily Show bit about Obama "stopping time with his mind" to save a little girl from an impending auto accident would be OK.
President Bush is being criticized for saying that Obama is an "attractive and articulate guy" as if these are "low ball compliments." I don't think that is true with respect to saying a pol is articulate. In my lifetime, there have been ten presidents. Three (Kennedy, Reagan and Clinton) were what I would call articulate. Being able to string some English sentences together does not make you Daniel Webster.
But, with respect to Obama, criticizing Bush for referring to him as "attractive and articulate" is just a tad ironic. What other qualities might possibly support Obama's candidacy? It certainly isn't his experience as a politician or his legislative accomplishments. He has neither. It's not his foreign policy expertise or innovative policy ideas. He lacks the former and, if he possesses the latter, no one knows it yet.
Near as I can tell, he is in the mix because he gave a good speech at the Democratic Convention, looks good, and presents a multiplicity of identities. (as Mark Steyn put it, he is black and white, Hawaiian and Kansan, Christian and Muslim. He looks good, speaks well and might be whatever you want him to be.
On a more serious note, this type of racial "shut your mouth" retards rather than promotes dialogue. And it may hurt black candidates. Presidential candidates have to be aggressively vetted. If racial sensitivity dictates that a candidate be treated with kid gloves - even unto regulation of how he may be complimented, that candidate will never be vetted - or elected. This hyperalertness to racial slights won't help Obama become President.
President Bush is being criticized for saying that Obama is an "attractive and articulate guy" as if these are "low ball compliments." I don't think that is true with respect to saying a pol is articulate. In my lifetime, there have been ten presidents. Three (Kennedy, Reagan and Clinton) were what I would call articulate. Being able to string some English sentences together does not make you Daniel Webster.
But, with respect to Obama, criticizing Bush for referring to him as "attractive and articulate" is just a tad ironic. What other qualities might possibly support Obama's candidacy? It certainly isn't his experience as a politician or his legislative accomplishments. He has neither. It's not his foreign policy expertise or innovative policy ideas. He lacks the former and, if he possesses the latter, no one knows it yet.
Near as I can tell, he is in the mix because he gave a good speech at the Democratic Convention, looks good, and presents a multiplicity of identities. (as Mark Steyn put it, he is black and white, Hawaiian and Kansan, Christian and Muslim. He looks good, speaks well and might be whatever you want him to be.
On a more serious note, this type of racial "shut your mouth" retards rather than promotes dialogue. And it may hurt black candidates. Presidential candidates have to be aggressively vetted. If racial sensitivity dictates that a candidate be treated with kid gloves - even unto regulation of how he may be complimented, that candidate will never be vetted - or elected. This hyperalertness to racial slights won't help Obama become President.
Sunday, February 04, 2007
Michigan decision may tell us little about Wisconsin's marriage amendment
An intermediate (below the state's Supreme Court) appellate court in Michigan has held that the state's marriage amendment bans public employers from offering same-sex domestic partner benefits.
The language of the two amendments is close , but not identical. Michigan's amendment provides that no other relationship other than the union of one man and one woman shall be recognized as "a marriage or its legal equivalent by the state for any purpose" while ours says that no "legal status that is identical or substantially similar to marriage shall be valid or recognized." While Michigan's amendment seems concerned with providing a relationship with any of the incidents of marriage, ours is arguably concerned with providing a relationship with so many of the incidents of marriage that it becomes a marriage equivalent.
A court may conclude that our amendment prohibits only the creation of a status that has most of the legal incidents of marriage, while Michigan's focus is on whether a relationship is treated as a marriage for any purpose. I can see a court concluding that just giving someone employee benefits does not confer most of the benefits of marriage (and is, therefore, ok in Wisconsin), but providing benefits is treating a relationship as a marriage if those benefits are something that are otherwise available only to married couples (and, therefore, not ok in Michigan).
More importantly, the Wisconsin courts (more so than in Michigan) give a lot of weight to the legislative and electoral history of a constitutional amendment. It will look closely at what the legislature said when it passed it and what claims were made about it in the course of the campaign. (It will also look at relevant legislation passed shortly after its passage.) That history is, of course, unique to Wisconsin.
Of course, even under the Michigan decision (which will certainly be reviewed by that state's high court), it would probably be possible to confer benefits if eligibility weren't defined in a way that consciously tracks marriage.
The language of the two amendments is close , but not identical. Michigan's amendment provides that no other relationship other than the union of one man and one woman shall be recognized as "a marriage or its legal equivalent by the state for any purpose" while ours says that no "legal status that is identical or substantially similar to marriage shall be valid or recognized." While Michigan's amendment seems concerned with providing a relationship with any of the incidents of marriage, ours is arguably concerned with providing a relationship with so many of the incidents of marriage that it becomes a marriage equivalent.
A court may conclude that our amendment prohibits only the creation of a status that has most of the legal incidents of marriage, while Michigan's focus is on whether a relationship is treated as a marriage for any purpose. I can see a court concluding that just giving someone employee benefits does not confer most of the benefits of marriage (and is, therefore, ok in Wisconsin), but providing benefits is treating a relationship as a marriage if those benefits are something that are otherwise available only to married couples (and, therefore, not ok in Michigan).
More importantly, the Wisconsin courts (more so than in Michigan) give a lot of weight to the legislative and electoral history of a constitutional amendment. It will look closely at what the legislature said when it passed it and what claims were made about it in the course of the campaign. (It will also look at relevant legislation passed shortly after its passage.) That history is, of course, unique to Wisconsin.
Of course, even under the Michigan decision (which will certainly be reviewed by that state's high court), it would probably be possible to confer benefits if eligibility weren't defined in a way that consciously tracks marriage.
Friday, February 02, 2007
Not even close
Tim Schilke apparently thinks that the law ought to censor speech such as criticism of the guy who sent an insulting e-mail to a soldier in Iraq. As you will recall, the soldier had inquired about purchasing some mats from a discount website. An employee of the site sent an e-mail telling him that "We do not ship to APO addresses, and even if we did, we would NEVER ship to Iraq. If you were sensible, you and your troops would pull out of Iraq." This response was widely criticized in the press and apparently some people left profane and insulting messages on the guy's answering machine. Schilke writes:
This brings me back to the free speech question of the week. Were the multiple "imminent" and "lawless actions" against the West Allis family in part "incited" by the free speech actions of employees of Journal Broadcast Group? It’s difficult to prove, but it’s a close call.
Actually, its not. As Schilke acknowledges, in circumstances relevant to this question, the First Amendment prohibits the punishment of speech unless 1) it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action."
Brandenburg v. Ohio, 395 U.S. 444(1969)
If our talk show hosts had called upon the masses to rise up and stomp the poor fellow, he'd have a point. But criticizing someone - even harshly - does not qualify. Even urging people to let someone - say a politician or a business - know that you disapprove of some action they have taken does not qualify.
If people call President Bush a "liar" and "warmonger" and a "fascist" who is "ruining the country" some nut might take a shot at him. If the media criticizes a business for, say, mistreating African-American customers, some misguided soul may torch its building. This does not mean that the speech was directed to incite imminent violence or even that it was likely to do so.
Tim Schilke may think that the response to the offending e-mail was "hyperpatriotic" and overblown. I may think that references to conservatives as "bigots" or "homophobes" is hateful. But we don't get to be the arbiters of when, how and what people say. The Brandenburg exception is exceedingly narrow and properly so.
Tim thinks that "this local situation may form a good case study for future textbooks." No, actually, it won't.
This brings me back to the free speech question of the week. Were the multiple "imminent" and "lawless actions" against the West Allis family in part "incited" by the free speech actions of employees of Journal Broadcast Group? It’s difficult to prove, but it’s a close call.
Actually, its not. As Schilke acknowledges, in circumstances relevant to this question, the First Amendment prohibits the punishment of speech unless 1) it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action."
Brandenburg v. Ohio, 395 U.S. 444(1969)
If our talk show hosts had called upon the masses to rise up and stomp the poor fellow, he'd have a point. But criticizing someone - even harshly - does not qualify. Even urging people to let someone - say a politician or a business - know that you disapprove of some action they have taken does not qualify.
If people call President Bush a "liar" and "warmonger" and a "fascist" who is "ruining the country" some nut might take a shot at him. If the media criticizes a business for, say, mistreating African-American customers, some misguided soul may torch its building. This does not mean that the speech was directed to incite imminent violence or even that it was likely to do so.
Tim Schilke may think that the response to the offending e-mail was "hyperpatriotic" and overblown. I may think that references to conservatives as "bigots" or "homophobes" is hateful. But we don't get to be the arbiters of when, how and what people say. The Brandenburg exception is exceedingly narrow and properly so.
Tim thinks that "this local situation may form a good case study for future textbooks." No, actually, it won't.
For once, I am glad my screen is only 52 inches
I'm working at home this morning and hear Charlie Sykes talking about the NFL's refusal to let a church hold a Super Bowl party because its TV screen is too big. The league takes the position that this would violate their copyright protection. The league recently spiked a plan to show the game at Soldier's Field. Mass out of home viewings reduce Nielsen ratings and, therefore, what advertisers will pay the networks and what the networks will pay the league.
Intellectual property lawyers tend to be rabid over respect for things like copyrights, trademarks and patents, although copyrights are just about impossible to lose. Obviously, the league should make an exception for, at least, gatherings of charitable organizations below a certain attendance. What is not clear to me is whether it could do that unilaterally. It could be that the terms of the license granted to the networks restrict the circumstances in which the NFL can permit use of the copyrighted work (the game) by others.
Intellectual property lawyers tend to be rabid over respect for things like copyrights, trademarks and patents, although copyrights are just about impossible to lose. Obviously, the league should make an exception for, at least, gatherings of charitable organizations below a certain attendance. What is not clear to me is whether it could do that unilaterally. It could be that the terms of the license granted to the networks restrict the circumstances in which the NFL can permit use of the copyrighted work (the game) by others.
Thursday, February 01, 2007
Fight at Bradley Tech
It was not the worst thing I have ever seen, but it was completely unacceptable. Some period of exclusion of Tech and Bay View students from attending basketball games seems like a measured response. I do not know that Mayor Barrett's call for students at these schools to be banned from games for the remainder of the season is appropriate or that there is a need to talk about cancelling the remainder of the season.
What I do wonder about is what is behind the increasing trend toward violence at City Conference games. We all know that enthusiastic post-game celebrations can cause injury. It happened in Madison following a win over Michigan in 1993. But this wasn't just an overly raucous celebration, it was a fight.
Kids lose their heads, but I just don't recall reading about things like this in years' past. I am not given over to a crotchedy "kids today" rant, because, if kids today aren't what they used to be, we need to ask ourselves how they failed to learn to behave like they should.
I think part of what is going on here is our culture's celebration of self-expression and an overweening attention to whether one is being properly respected. I am reading an interesting book by anthropologist Peter Wood called A Bee In the Mouth: Anger In America Now. Wood's thesis is that, while anger and incivility has been with us always, it was formerly seen as something that ought to restrained and its indulgence, even if understandable, was something that ought to be excused.
Today, he argues, anger is more often seen as an expression of one's authenticity, i.e., as a thing we should get in touch with and which may say something valuable about us and about whatever makes us angry. He traces this development in our politics (see, e.g, blog posts that make no little or no substantive points other than the abuse of a target), but roots it in our larger culture.
The Bay View kids (or, more accurately, enough of them to have started major trouble) saw Tech's celebration as "disrespect" and something that their own sense of self-esteem and warped version of "honor" could not let pass. These kids didn't learn that on their own.
What I do wonder about is what is behind the increasing trend toward violence at City Conference games. We all know that enthusiastic post-game celebrations can cause injury. It happened in Madison following a win over Michigan in 1993. But this wasn't just an overly raucous celebration, it was a fight.
Kids lose their heads, but I just don't recall reading about things like this in years' past. I am not given over to a crotchedy "kids today" rant, because, if kids today aren't what they used to be, we need to ask ourselves how they failed to learn to behave like they should.
I think part of what is going on here is our culture's celebration of self-expression and an overweening attention to whether one is being properly respected. I am reading an interesting book by anthropologist Peter Wood called A Bee In the Mouth: Anger In America Now. Wood's thesis is that, while anger and incivility has been with us always, it was formerly seen as something that ought to restrained and its indulgence, even if understandable, was something that ought to be excused.
Today, he argues, anger is more often seen as an expression of one's authenticity, i.e., as a thing we should get in touch with and which may say something valuable about us and about whatever makes us angry. He traces this development in our politics (see, e.g, blog posts that make no little or no substantive points other than the abuse of a target), but roots it in our larger culture.
The Bay View kids (or, more accurately, enough of them to have started major trouble) saw Tech's celebration as "disrespect" and something that their own sense of self-esteem and warped version of "honor" could not let pass. These kids didn't learn that on their own.
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