Sunday, August 31, 2008

Election reflections

Partisan wrangling aside, if someone would have told me at any time before a few weeks ago that we'd be at the Sunday after the Democratic National Convention and Obama would have no bounce - still at 3 points up, I'd have said they were crazy. The early verdict is that this certainly seems to have been a fairly inconsequential convention.

But I doubt that it had anything to do with the convention. I think the election has become like the Western Front in WWI. Vicious fighting but no movement. Frenzy over a demolished chateaux or a "Hill 60" (meaning all of sixty meters high - when they started) just about reduced to rubble. Hundreds of thousands of casualties to advance two miles. I'm not so sure why. Could be the dwindling undecided. Could be the exposure of Obama and McCain to the point where most everyone has his or her mind made up and the undecided are not moved by anything that might cause them to commit.

At this point, we don't know if there will even be much of a GOP convention with Gustav bearing down on the coast, but, even if there is, I'm not sure that things will be all that different in a week. It could be - could be - that a hurricane strike will - in an ironic divine commentary on the theology of Michael Moore - play into the McCain-Palin theme of a more nationalist conservatism, but that would be something outside the control of any of the players. And I really don't expect it. We are settled in for a long battle of the Somme.

But, oh the guttersniping at Sarah Palin has begun, and I fear the Obamanians are repeating the mistake they made with Hillary Clinton. It's all so non gallant. And its a sure sign that they see this thing slipping away.

She's cruel because she laughed nervously when a shock jock said bad things about her opponents because no male politician ever sat by while someone used nasty language that he himself would not use against an opponent. She's Sarah Barracuda. She's too tough for a lady.

Or she's insubstantial because she was a beauty queen or, as a co-ed, wore at t-shirt that made a joke about her breasts. I think this was about the time when Barack Obama was engaged in some less harmless (but, I think, also irrelevant) youthful indiscretions. But she's a girl and it relates to sex and it's not allowed.

Or she's just not ready. This is a bold one. The GOP nominee for Vice President has held a major political office for one year less than the Democratic nominee for President. By this standard, the Dems should have turned Obama away at the gate. How to fix that?

Oh, now wait, she's only governor of Alaska - this place where all of our oil comes from but there aren't large cities, so it doesn't count. It's like Arkansas, but with natural resources and better schools. She runs something; he votes on things when he can tear himself away from running for President. But those things - no matter how little he may know about them - are more important.

Or, no wait, it's the pre-national experience. He was a state Senator. He was, you know, like Fred Risser or Kathleen Vinehout.

Today's talking point is to make fun of Cindy McCain's claim that Alaska's proximity to Russia is relevant to Palin's foreign policy experience. Fair enough; that was a dumb comment by the Republican nominee's wife. But is it any less silly than the Democratic nominee's claim that he has foreign policy experience because he lived in Indonesia when he was six? (And, incidentally guys, when FoxNews' Steve Doocy said the same thing, he was joking. Doocy is what we call a comedian. He comes on the TV in the morning to be funny. He and his wife wrote a book called "The Mr. & Mrs. Happy Handbook," for Barack's sake!)

Someone went as far to say that she should be at home taking home of her baby - the one that she didn't abort. My guess is that Dad will do a wonderful job. God knows he isn't going to be able to work on the pipeline - actually delivering the oil we all need - while his wife is running for Vice President.

Oh, and then there is the claim that she is an inversion of feminism. This is because she came to prominence because her husband held high office. Oh, wait, no, that's not .... No, no, it's because she's pro life and the suffragettes that we celebrated this week like Susan B. Anthony, Elizabeth Cady Stanton and Virginia Woodhull would never have been pro life and, oh, ... no, I guess that's not it either.

I know. I know. She's a Christian Dominionist because ... well ... I don't know. If you can find a shred of evidence for that in this post by a tin-foil coiffed one at the Daily Kos, e-mail me.

What's disturbing is that Jane Smiley, a good novelist, with an IQ above room temperature, apparently buys it in a post which is one of the meanest - and most sexist - things I have read in a long time. (Palin must breast feed; she can't have a nanny.) Smiley advocates that the Dems pick at Palin in order to, in her words, "bring that bitch out." Jane Smiley needs no such help.

As my old geometry teacher used to say (Publius?), let's do some remedial work on the Christian Dominionist thing. Destiny is not a term that we should be surprised to see a Christian church use because it is a religion that makes eschatological claims. It's a big word, I know, but it means that history is going somewhere. "Cell churches" are known by liberationist theologians on the left as base Christian communities and, what they really are, is an attempt - in and of itself apolitical, at least in our sense of liberal and conservative - to, depending on how you want to put it, re-create the house churches reported in Acts or replicate the small groups that are rampant in modern organizational practice.

To his credit, Tom Foley is skeptical of the claim, but, given his penchant for kicking at the more tenuous orbits of religion, suggests that the Jeremiah Wright controversy makes it relevant. Not quite. How her faith informs her politics would be. Gross distortion of her faith are not. What whoever he might be on the Daily Kos reports is neither serious nor "informed," and should not be disturbing because it is, self evidently, ignorant.

The concerns about Jeremiah Wright did not,as I wrote at the time, misrepresent his theological position. Black liberation theology has a respectable intellectual pedigree and there are aspects of it that are quite prophetic. At the end of the day, however, it is deeply flawed and rightly turns most people off. But it is not unfair to Rev. Wright to say that he preaches it or that it was a huge part of his congregation's mission. His decison to show up Obama reflected that.

That Obama, who clearly understood Wright's message (see, e.g., Dreams of My Father), placed so much emphasis on Wright makes Wright's views and how they relate to Obama's politics relevant.

Not only does this attack go well beyond what we know of Palin's church, Palin has,as far as we know, never said anything about the relationship between that church and her politics.

Finally, there is the claim that she is excited by what her nomination does for Alaska and this means she wants earmarks. But here is what she said. "Alaskans will be allowed to contribute more to our great country and they'll be allowed to do that because I -- if we're elected -- will be in a position of opening the eyes of the country to what it is that Alaska is all about and what Alaska has to offer."

Alaska and, to a lesser extent, Hawai'i are seen as American appendages. She thinks that, whatever the impact on her individually, her candidacy will help to bring her state into the American mainstream. What a witch (and, yes, even that one is being raised against her.)

Oh, and then some people don't like the fact that she shoots at moose and caribou - with apparent success. But for folks that have been so critical of Dick Cheney, this rings hollow. She won't hit her hunting buddies.

I understand the concern because here are the questions. Obama has been on his heels - hanging on - since the beginning of March. Is there anything that can change that? Can he keep it up for another two months?

Harley's 105th

Here in Milwaukee we are inundated with Harley riders, all in town for the company's 105th Birthday bash. They do it every five years and Hogs are everywhere. The rumble is constantly in the background. We have even more where we live because my house sits on a fairly popular run along the lake shore for bikes without and without motors and there is a Harley dealer in the area. These places operate, during the Harleyfests, as mini-party stations.

When H-D did this the first time, locals envisioned wilding in the streets. We were about to be invaded by Sonny Barger and the Angels. Think Altamont.

Didn't happen, of course. The average Harley rider is a 55 year old banker. They do try to dress the part - all of the men and the 50 and 60 something women who can still pull it off (which is, quite a few). Lots of leather, do-rags, tats and pony tail rings. The men, of course, don't care whether they can or can't look the part. I've seen some rather frightening things around town during the past few days.

But this is Sunday and Harley deserves a musical salute. It's obvious but essential that we begin with Steppenwolf:

It's equally obvious, but Lynyrd Skynyrd's Free Bird is,as we saw on Six Feet Under, obligatory at biker funerals:

We must have a tribute to Easy Rider. I normally only do live performances, but it's Harley 105 so here's Dennis Hopper and Peter Fonda riding to Hendrix' "If Six was Nine:"

Before concluding and because I can, we need just a brief look at Nicholson in that movie:

And, finally, since Bruce Springsteen wrapped up the festivities last night on the shores of Lake Michigan. He opened with, what else, "Gypsy Biker" but this is "Lost In the Flood."

But here's "Gypsy Biker."

Summing up some reflections on experience

We can cut this issue so many ways. Objectively, there isn't much to distinguish Obama's experience from Palin's in a way that produces a clear advantage with one exception that I'll get to later.

On Obama's side of the scale, Illinois is bigger than Alaska and, at least for us who live in places that are more like the former than the latter, more sophisticated. On Palin's side, she has executive experience - something that, as Jim Lindgren points out - requires dealing with scarcity and choosing between less than ideal alternatives as legislative experience does not - or, more accurately, permits these realities to be ignored. In addition, Palin can point to more things that she has done with that experience. She took on a corrupt state establishment, while Obama made peace with the Chicago machine. She made difficult choices about spending while Obama blithely supported more of it in a state that already faced a budgetary shortfall.

Part of the problem for Obama stems from the fact that he has almost had his eye on the next thing. In National Review, x reports that he has spent an astonishing 59 out of the past 112 months running for office. That he has done little in the Unites States Senate is not surprising. He has been running for President since he got there.

But there is also a sort of redemption for Obama in this. He has run a very good campaign for President and that's an accomplishment. Voters have gotten an opportunity to see him on the national scene and enough were satisfied for him to win the Democratic nomination. In this, he has an edge over Palin.

Now how much that matters is another question. He's not running for Vice President.

But, more fundamentally, the same opportunity for validation is open to Governor Palin as well. Whether - in November - she is seen as an acceptable candidate for the Vice Presidency will turn on how well she does on the national stage. People want to compare here to Geraldine Ferraro and Dan Quayle. Ferraro, with the exception of her husband's unsavory connection, was not a particularily bad candidate. Mondale's task was hopeless in '84.

Quayle was a bad candidate who suffered from being thrust into the national spotlight before he was ready, although Bush 41 still won.

The point is that Palin will make her own case in the next few months. If she can do that, then no amount of sexist allusions to beauty queens and dismissive snorts about Wasillia and Alaska (remember Plains and Arkansas?) will matter.


Friday, August 29, 2008

... and the next Vice President of the United States

First - because it is about me - I called it (sort of) right here last December.

Second, I freely admit that there is an experience issue, but not as much as the Democrats are going to claim. Governors without experience in federal office become President (Clinton, Carter, Bush 43). More to the point, it's a hard case for the Dems to make because Obama is equally inexperienced. I understand the argument that his state senate district was a lot larger than the city that she served as Mayor. I appreciate the US Senators sometimes vote on foreign policy matters and Senators that serve long enough and are on the right committees may develop foreign policy expertise. But that doesn't describe Obama. On the other hand, she has the executive experience that Obama lacks. I think an honest appraisal calls it a wash. The GOP nominee for Vice President and the Democrat nominee for President have less experience than most people nominated for national office.

Third, the real question is whether she can play at this level. Her introduction today was smashing, but only time will tell. I can say that, for political junkies, she does not come out of nowhere. She has been seen as a rising GOP star for a few years now as my post in December reflects.

If she is up to it, she reinforces McCain's status as a maverick and foe of "special interests." She not only opposed "the bridge to nowhere," she stopped it. She is heterodox enough to suggest an independence of mind, but rock solid on almost all the issues that the GOP base cares about.

She also reinforces McCain's claim to be about change. It is a common mistake on the left to believe that conservatives love George W. Bush and believe that he has pursued conservative policies. Not so. We like him but he's disappointed us in a variety of ways. He did nothing to restrain spending. He took way too long to realize that his strategy in Iraq needed to change. He almost made a disastrous nomination to the Supreme Court. He seems blind to the weaknesses of his subordinates.

I think that history will be kinder to Bush than we expect, but he's not on the ballot this year. To say that McCain voted "with" Bush 90% of the time tells us nothing about how he differs with Bush on the matters that have gotten Bush into political hot water. We know that he won't tolerate the feeding frenzy that cost the GOP Congress. We know that he would not have mismanaged Iraq because he was the one who advocated for a change that is now widely acknowledged to have succeeded. My guess is that he would have been quicker to kick posterior on something like Katrina. For better or worse (and I think it's often worse), he's much more of an economic populist than Bush (and much less of one than Obama).

By picking someone who is acceptable to - actually almost certainly to be loved by - the base but who has no ties to DC or to the Bush administration, he reinforces that message.

Finally, she brings a bit of pizazz - a hint of the future and another opportunity for an historic "first."

It was, I think, a bold move. Biden will not hurt or help Obama. My guess is that Palin could help McCain, although if she is not ready, she could hurt him. I think she is going to prove to be more than ready. I like the pick.

Obama's speech ...

OK, the temple didn't look as bad as the overhead shots suggested. But the speech ... nothing special. If you buy into a Steinbeckian view of America, you loved it. If you don't (and more of the facts are on your side), it was fairly uninspired.

At Brazen Maverick, young Mr. Sarver asks conservatives just what they didn't like about the speech. It's a fair question. Here are a few answers.

The government did not, for example, stand by and watch a major American city drown. State and local government do appear to have stood by while an unprecedented storm approached. After it hit, the government's response to something that had never happened before was not as rapid as we wanted it to be. Bush, as is his wont, was slow to recognize that one of his people was not on top of things. At the end of the day, though, the loss of life from Katrina was a fraction of what what pre-storm projections suggested it would be.

As noted above, I don't think that his view of the American economy is accurate. There are economic problems. The value of homes has gone down but only after, during the earlier Bush years, they went way up. If you bought at the peak, this can be a problem, particularily if, whether by unfair inducement or not, you bought more than you could afford. But most people don't have subprime mortgages and very few are in foreclosure.

Unemployment is up, but is still below levels that used to be considered full employment. Growth has slowed but not stopped. Gas prices are maddening but they just aren't catastrophic. Obama's story rings hollow.

More to the point, these problems are not, for the most part, the result of government policies and won't be fixed by them. In fact, the policies that are advocated by Obama are likely to make them worse. A windfall profits tax will decrease oil production and do nothing to promote alternative energy sources. Raising taxes into an economic slowdown is more likely to exacerbate the slow down than to remedy it. While foreign competition undoubtedly can cause US job loss, protectionism always results in a net economic loss.

As for foreign policy, I heard two things. The Iraq War was bad and people in other countries don't like us as much. Both points are largely irrelevant. I have always been an Iraq War agnostic but the present issue is not whether to invade Iraq, but what to do now that we have done so. On that question, Obama has been consistently wrong and McCain has been consistently right.

Beyond the issues, I just don't think the speech was very interesting. Obama is a great speaker. This was not a great speech. If you are a believer, it struck the right notes. But if you are not, I don't think it was likely to have converted you.

Wednesday, August 27, 2008

Barackus Caesar

I have not caught a glimpse of the Democratic National Convention and, until this morning, I did not intend to. I am just old enough to remember when conventions actually meant something and feel no civic obligation to watch either party's pep rally. Did Michelle Obama give a great speech because she did not sound like a latter day Bernadine Dohrn (she is, after all, familiar enough with the real one)? Did ur-Democrat Hillary Clinton convincingly endorse the Democratic nominee? I don't know and I don't care. It would be newsworthy if these things didn't happen - if Mrs. Obama and Sen. Clinton could not manage to hit home runs in a softball park after a summer to get ready.

But ... Obama is going to give his speech before a replica of a classical temple? He's going to step out from between plywood columns painted to look like stone? That can't be true. No one could have been stupid enough to believe that was a good idea. I've got to see it.

Holy mixed metaphor

Drawing hoots from the crowd, she pulled out a stack of condoms and said: "I had my friends from Planned Parenthood give me a bunch of condoms because I feel I need to protect myself from John McCain as a woman."

Gwen Moore has eyes for John McCain. Who would have knew?

Sunday, August 24, 2008

Old rock for the end of summer

It's back to school for most students and educators about now. The end of summer is always bittersweet. We have to let go of summer dreams and life; something that we probably know can't list forever. But still we're wistful and so are Chad & Jeremy. Even after all these years.

But part of us knows that the summer world is not real and the real world is better. We indulge summer fantasy but we look forward to the return of our real lives. At least Gary Lewis and the Playboys did.

It's a complicated bit of reconciliation. What better way to acknowledge that than the Eagles performing "Boys of Summer."

Since I teach at a law school, I thought it proper to offer a anthem for the legal profession. This is the Wallflowers and Jordan Zevon performing Warren Zevon's "Lawyers, Guns and Money." Think of lawyers as the vehicle of redemption.

Jerk of the Week!

Blogging has been and may continue to be slow. I am finishing two lengthy scholarly pieces, trying to finalize one that is emerging in print and I owe about 4500 words to two other publications. And, of course, it's time to start teaching again.

But I found out on Friday that I had been conferred a great honor by the Shepherd Express, the local journal for the 1-900 community. I have been named "Jerk of the Week." (Reddess: "Only the week?")

Unfortunately, the paper badly misrepresented a column that I wrote in last Sunday's Journal Sentinel taking a quote out of context to make it sound like I had advocated arresting people on the basis of their race. What I actually did was note that Chief Ed Flynn's neighborhood policing initiative faced challenges from the left and the right. The challenge from the left stemmed from what I called the the "painful" and "unfortunate" fact that the strategy of "seize and hold" may result, for a time, in disproportionate arrest of young black males. I argued that this ought not to be a basis to reject the strategy because it is African Americans who are disproportionately the victims of urban crime and who stand to benefit from increased public safety in the inner city.

My son, doing a very good Imus impression, wonders if I am going on an "apology tour." I think not, but I do wish that the Shepherd Express would offer a commemorative plaque or other memento.

A good friend has said the he picks up two free newspapers in Milwaukee. The Onion because it might make him laugh. The Shepherd Express so that he could drop it in the next trash can and save someone else the trouble.

Tuesday, August 19, 2008

Federalist Society sponsors good debate on same sex marriage

I admit to having a soft spot for my lefty friend Illusory Tenant even as I am troubled by his cattiness toward people for whom I have a great deal of respect. He writes on an interesting on-line debate sponsored by the Federalist Society on the issue of same sex marriage, but misses, I am afraid, the point made by the principal opponent of same sex marriage. It is the cavalier dismissal of what she has to say as incomprehensible and "funny" that prompts me to comment.

The debater in question, Amy Wax, is a lawyer, physician and rather prominent and well published legal scholar at Penn. That doesn't mean that what she says is right. But it does suggest that it be taken seriously.

I have been in a few of these same sex marriage debates and I can't say that she makes the best case that I have heard, but she does make some important points - one of which is not often made as explicitly as she makes it and is interesting enough to linger over.

One of the reasons that opponents and proponents of same sex marriage pass each other in the night is that proponents often (not always) have - or at least profess to have - a rather "thin" view of social institutions, minimizing the extent to which they shape behavior and establish what is and is not normative, even if those standards are not always observed.

Wax is concerned with the breakdown in conjugal marriage, hence her reference to the rise of "multi-partner relationships" (by which she means both infidelity and serial monogamy) and the harm that it has caused, particularly in inner city and low income communities. She doesn't "blame' same sex marriage for this, but she is going to evaluate the case for it in light of this. Will it ameliorate, aggravate or have no impact on the weakened institution of marriage?

In assessing this, one of the things that she is concerned about is the impact of same sex marriage on the norms of marriage. One of the norms of marriage is monogamy and fidelity. There are "open marriages" among heterosexuals, but the overwhelming evidence is that it doesn't work. Even if men and women don't always abide by this norm, it is the standard. It is the thing that is expected and which ought to be the goal.

She is concerned, then, about expanding marriage to a set of relationships - those between male homosexuals - in which that norm is, not simply breached, but, for a majority of those involved, rejected as a matter of principle.

Andrew Koppelman and Dale Carpenter, both able advocates of same sex marriage, (I assign a paper on the topic by Koppelman in my Law & Theology seminar), do an able job of trying to respond to her concern, but don't really deny her premise, i.e., that gay men, even in a committed relationship, have a different attitude toward sexual monogamy. She argues - and they don't deny - that the problem is not that gay men, being human as all of us, don't always live up to the norm, but that they don't think it ought to be a norm.

Koppelman and Carpenter argue that lesbians are notoriously monogamous and that there is no reason to believe that a small percentage of married men will have an impact on the behavior of heterosexual couples. Maybe they're right.

But one of the reasons they may not be is that same sex marriage is not just about - it may not even be primarily about - facilitating the relationships of individual couples. It is about what Koppelman has called the sanctification narrative, i.e., it is pursued not only for its instrumental value (i.e., tax bennies, fringes, etc.), but also for its expressive value. It communicates a message of the equivalence of homosexual and heterosexual relationships.

But that can't happen unless the rest of us are "taught" about same sex marriage and heterosexual marriage is no longer "privileged," thus, as one of the participants in the debate points out, California has gone to marriage licenses that list "partner one" and "partner two." To refer to "husband" and "wife" would be hetero-normative. Massachusetts and other states make a point of teaching children about all kinds of families, including those with two mommies or two daddies. Not to do so would to fail to honor diversity.

Thus, even if same sex marriage is legally recognized, it will remain important that social norms not mark it as a disfavored or "lesser" form of marriage. Under those circumstances, it is not at all clear to Wax that social norms developed for marriage between men and women can survive its redefinition to include same sex couples. Given the difficulty of monogamy, she argues, in a passage presented without context by IT, that she "just [doesn't] agree that gay men will keep their non-monogamy to themselves." It will, she says, "be known" and, since they are just as married as anyone else (a conclusion compelled by the sanctification narrative), the social norms of marriage are placed under additional pressure.

The water and air is just fine here

Paul Soglin wonders whether we have a problem with the air or water in Milwaukee, apparently because he thinks I misread his post bewailing talk radio hosts like Mark Belling and Charlie Sykes for blaming the parents for dysfunctional inner city schools.

Now, personally, I cringe when I ever hear talk radio hosts and callers utter the phrase "where are the parents?", but the fact remains that the home environments of students in systems like MPS tends to be a really huge problems.

Paul says, but I wasn't talking about MPS, alluding, apparently, to a latter discussion in his post of Madison public schools. But, of course, Belling and Sykes work in Milwaukee and when they talk about dysfunctional homes and the schools, they are generally talking about MPS.

Paul takes issue with my contention that the social dysfunction that contributes to problems in the schools has increased while the general level of racism and economic deprivation has increased, noting that the percentage of students in poverty has increased in Madison and, he supposes (and I agree), Milwaukee.

But my point was not that poverty among public school students has declined. Given the wholesale abandonment of systems like MPS by the middle class that would be unlikely. It is that social dysfunction among what some people call the "underclass" has increased notwithstanding massive social spending and declining racism and a decline in absolute economic deprivation.

Paul argues that it is futile to blame parents without supporting "any recognized programs to break the cycle" as if there was is written somewhere in the annals of natural law a principle that all social problems must have a government solution. I'm all for anything that will restore public safety in the city and reverse the demise of marriage and the rise of a culture that disparages middle class values. What I am not optimistic about is the idea that government can do what your family will not and that prosperity can simply be created by public spending.

Monday, August 18, 2008

Megalo - obamania

I have no idea whether John McCain was in the "cone of silence" during Barack Obama's chat with Rick Warren and I don't much care. What I do find interesting is the fact that the Obama campaign has chosen to make the question such an issue.

There seem to be two difficulties for Obama. The first is that choosing to emphasize the issue is essentially a concession that McCain waxed him. People who did not and never will see the event now have the impression that both candidates sat down to discuss faith, morality and politics with a popular and apoliticial religious leader and that McCain was far more impressive.

The second is that it's another example of what seems to be a tendency to prickly arrogance on the part of Obama. You beat me? You must have cheated! Nothing else is conceivable.

Boycott snafu? - Updated.

Come early January, while everything up here is well frozen, the Reddess and I will be chill-axing in San Diego at the annual meeting of the American Association of Law Schools. While there is much to be learned and important contacts to be made at such meetings, it's also a bit of a boondoggle.

I've blogged before on a call by certain individuals and organizations in the legal academy to boycott one of the hotels at which AALS has booked rooms and may hold events, the Manchester Grand Hyatt.

The reason for the boycott is that the owner of the Hyatt, Doug Manchester (more accurately, Manchester Financial), has contributed to the campaign to amend the California Constitution to ban same-sex marriage. To hold a meeting at his hotel, according to proponents of the boycott, would violate the anti-discrimination policies of the AALS and the various other organizations involved in the meeting.

There is much that is wrong with this. The hotel itself doesn't discriminate against gays and lesbians so the boycott is solely concerned with the politics and speech of its owner. It is scandalous, I think, for an academic organization purportedly devoted to an open debate and the full exploration of ideas to boycott someone simply because some of its members don't care for his ideas. It is particularly ironic that one of the principal organizers of the boycott teaches at Villanova, a Catholic institution that I suspect does not provide domestic partner benefits and is part of a church that not only opposes same-sex marriage, but regards it as a sin. Apparently conscience does not require foregoing a paycheck.

But that's not what I am interested in here.

The AALS sent an e-mail around today announcing that it will hold no events at the Grand Hyatt, placing them all in the San Deigo Marriott - the other hotel at which rooms for the meeting are being held. Apparently, the AALS contracts with the Grand Hyatt and Marriott "provide that each hotel reserve a block of guest rooms, and leave to the AALS the choice of where to locate the AALS Registration, Exhibit Hall, Section Programs, Presidential Programs, and House of Representatives meetings." The e-mail announces that the organization "will honor our contracts with both hotels, and we have exercised our option to hold all AALS events at the Marriott to ensure the maximum participation by our members. " In other words, the AALS thinks that it is honoring, insofar as it contracts permit, the boycott.

That's shameful. While I understand the desire to "maximize participation," a scholarly organization ought not cater to those who cannot tolerate opposing points of view.

But here's the beauty part. Doug Manchester owns the San Diego Marriott as well. Neither the boycotters nor the AALS appear to have done their homework.

Thus, assuming that the conscience of the boycotters requires that they not the only patronize Manchester properties, the only way to "do justice" is to stay home in January.

UPDATE: But maybe the boycotters did get it right. Although Manchester's website lists the Marriott as one of the Group's properties, the San Diego Business Jourmal reports that he sold his interest in the hotel last spring for 93 million dollars that he could "cash out" at any time (does that mean that he still retains his interest with the ability to put it to the buyer), but part of the consideration was a stake in the buyer so he retains an interest, albeit a very small one (2.5%) in the Marriott. I guess that's not enough to "taint" the hotel.

Sunday, August 17, 2008

The Scattering

As Irishfest winds down, enjoy Sinead O'Connor and the Chieftans performing the classic "Foggy Dew."

Or the Dubliners and the Pogues collaborating on "The Irish Rover."

There are probably more people that think the "Whiskey in the Jar" is a song "by" Thin Lizzy or Metallica, than know it is a traditional Irish folk song of many variations. Here's U2 performing it live (and, following, I think the Thin Lizzy version which was a big hit in Ireland):

And, finally, because I said I would, here are my favorite misguided - but loveable -Fenians singing the politically naive (and somewhat didactic) "James Connolly:"

Shark on Dead Tree

Here is my column in this morning's Milwaukee Journal Sentinel.

Friday, August 15, 2008

Inconvenient truths?

Paul Soglin is upset with right wingers for blaming poor educational results in MPS on the "parents." He implies that the argument is racially based and complains that it admits of no solution by which he means that it does not readily suggest an intervention by the government - something that all social problems apparently require.

But what if they're right? Soglin doesn't like the aesthetics or implications of the argument, but what if it turns out to be true? When I talk to friends and family members who are education scholars or who work at MPS (not many of whom are conservatives), I am unfailingly depressed. The reason is that two things seem almost certainly to be true. First, there is the weight of the evidence does not provide much hope for the idea that additional research will result in better results. Second, we probably can't expect urban school districts like MPS to do much better without changing the family environments of a large proportion of the students. Indeed, it seems, much of the additional resources that urban districts call for seem to be needed so the school can do for a child what her family has not.
The problem is that government does a lousy imitation of a family. It may take a village to raise a child - I think it does - but the state is not the village.

There is, it seems to me, a reason that communities that do not have a history of dysfunctional families are marred by them today. It doesn't seem to be a simple function of racism and poverty and the absence of social programs because the degree of dysfunction has increased as both have decreased. Is it our increased laxity regarding sex and marriage? Is it the abandonment of poor neighborhoods by the black middle class?

The point seems to me that this stuff is important and it doesn't help to exclude certain perspectives because they are deemed racially insensitive or to assume that the measure of policy is involvement by the state combined with good intentions.

On a related point, Paul, in complaining about the parks in Madison, asserts that the size of state and local governments has not kept up with inflation. Is that true? It's not true nationally, is Wisconsin an exception. Do we have trouble maintaining the parks in Milwaukee County because conservatives have starved government or has government starved itself with unaffordable benefit packages that have devoted enormous resources to people who no longer work for it?

Thursday, August 14, 2008

Old old news

I think that the release of OSS personnel files is going to create some fascinating reading but I was a little surprised by the media twist that at least implies that celebrities like Julia Child and baseball player Moe Berg have been newly identified as OSS agents. I seem to have known about Julia Child for years. Last summer, I visited the Spy Museum in DC (its better than it sounds) and they were pictures of Child and Berg.

Tuesday, August 12, 2008

Back to the Packers' Future

I have to. As someone who thinks that the Packers made the wrong call on Brett Favre, I was happy to see the crowd at Lambeau give Aaron Rodgers a standing ovation when he ran on the field. The mistake, if there was one, was not his and what's done is done.

I must also admit that he was very impressive. He did miss a wide open James Jones, but it also seemed that Jones did a poor job of adjusting to the ball. Jones did bail him out a bit on the touchdown pass (which was high), but that's one of the things he has going for him. He has a great corp of recievers. (Jordy Nelson also looked promising.)The inteception, of course, was not his fault. Rodgers moved the ball up and down the field and, while it was an exhibition, the Bengals don't have a great defense and I am sure that what he faced was very vanilla, this game could not have gone much better for Rodgers.

On the other hand, if he goes down, there may be trouble. Brohm did not play well, although I was cautiously impressed by Matt Flynn.

Finally, the Packers first string defense was dominant. All in all, the game inflated my expectations.

Desecration Mountain

The Ninth Circuit Court of Appeals, sitting en banc, recently decided a interesting religious freedom case. In Navajo Nation v. U.S. Forest Service, American Indians sought to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain sacred in their religion. Appartently the government planned to use recycled wastewater, which contains 0.0001% human waste,and would, therefore,desecrate the entire mountain, deprecate their religious ceremonies, and injure their religious sensibilities. This, they argued, would violate the Religious Freedom Restoration Act.

The RFRA, in general, allows plaintiffs to challenge government practices that substantially burden the exercise of religion. If there is a substantial burden, the government must demonstrate that the burden is the least restrictive means to achieve a compelling interest. It was enacted in response to a Supreme Court decision that said, essentiall, no such claim could be brought against neutral laws of general applicability under the Constitution's free exercise clause.

The court (over three dissents) rejected the challenge. That doesn't surprise me, but I am interested in the court's reasoning. It found that there was not substantial burden - essentially because the only harm to the Navajos was to their "subjective spiritual experience."

I can understand the attraction of this position. The majority obviously feared the slippery slope and the result was consistent with an earlier Supreme Court decision under the free exercise clause. But does it make sense to say that a government action that desecrates a sacred object does not substantially burden religious practice? The court claimed that the Navajos would still have access to the mountain for worship, but was the court in any position to contradict the Navajos' claim that their worship was substantially impaired? Normally, courts don't second guess litigants claims about what their religion requires.

It is, I think, the fear of this type of case that underlies the Supreme Court's rule in the free exercise context. It seems to me that the Navajos' religious practices have been substantially burdened, but requiring the government to demonstrate a compelling interest in cases like this would be unworkable.

Take a pill

Barack Obama says that "American-made motorcycles like Harleys don’t matter to John McCain."

Why, you ask?

Because he didn't support legislation requiring the government to buy American-made motorcycles. He actually thought that the government ought to buy motorcycles based on price and quality. Maybe that would be Harleys. Maybe not. He just wanted government to get the best deal for taxpayers' money.

So often we are faced with arguments that, if you don't support the idea that government should mandate a particular outcome, then you must oppose that outcome/ This reflects an historical move toward, as Hugh Heclo puts it in this marvelous essay Christianity and American Democracy, that the "one thing of supreme inportance in politics is government policy" and that democracy ought to entail "commitment to a never-ending policy agenda of social problem-solving."

But not everything that is potentially good should be mandated and not every good outcome is best acheived by some kind of fiat from above. It's not true that, if the government does it, it won't be done.

I took a few minutes this morning to surf around our local blogs and found an example close to home.

In a post largely dedicated to the idea that "Republicans are bad," Jay Bullock offers, as an example, the fact that conservative columnist Patrick McIlheran, following an accident in which someone was killed by a tire flying off a truck, was not convinced that more government inspections were essential. Jay's summary is that the "right" opposes "any requirements that corporations try not to, you know, kill people ...."

Really? I guess that politics must be very important to you if you think those who disagree with you want to let corporations kill people.; if you think that, in the absence of inspections, trucking companies are actually indifferent to whether tires fly off their vehicles, disrupting the movement of freight, bringing lawsuits, and killing people.

So John McCain hates Harleys. Patrick McIlheran wants people to die.

Sunday, August 10, 2008

Celtic Rock, pt. 1

Now begins the week of Irishfest - a sacred time for the Reddess' Clan Cooley and my maternal Clan McDonald. So we need Irish rock. Let's start with the Corrs' performance of Jimi Hendrix' exquisite "Little Wing."

But Irish rock often has a harder edge and here is the Cranberries' "Zombie."

But I am supposed to be doing older stuff and Irish rock often has a spritual character. In the early 80s, U2 took an iconic name in rock and roll and gave it an entirely different spin. This is "Gloria" from a concert in Dortmund in 1984.

Back then - and now - U2 ended their set with "40" - an adaptation of the Psalm 40. Here's the old song performed on the group's latest tour.

Next week, I may go all Sinead O'Connor and Black 47 on you.

Saturday, August 09, 2008

John and Cindy and John and Rielle

What should be the political consequences to John Edwards of his admitted affair with Rielle Hunter. Let's put aside for a moment, the fact that he lied about it and his odd claim that he had been 99% honest, I don't want to get into the "lying about sex" exception to the general admonition for honesty.

Should this end his political career?

Before conservatives and Republicans quickly assent, they ought to remember that John McCain may have done the same thing. Whether or not he took up with Cindy Hensley before his marriage to Carol McCain had ended in fact (if not in law as it most certainly had not), he apparently has admitted to running around with other women during that period of time. If Edwards career is over, why wasn't McCain's?

I actually don't think Edwards' political career should be over because of his dalliances. (There are, however, many other reasons to end it.) But I am reluctant to say that it doesn't matter or that it is entirely private - at least not at the level of the Presidency.

Certainly it does say something about his character although I dislike the part of our politics that destroys otherwise good people for getting caught in a piece of bad business which is comparable to what many others are guilty of but not caught at. I appreciate the we cannot know what goes on in someone else's marriage and that the cause of this type of thing can be complex. I also understand that we are flawed and no one of us is without sin (or, as we call them today, "mistakes.")

But, in a way, that is why it can't be ignored. It is hard to do the right thing. Fidelity is difficult and marriage, while it is a great blessing, is a lot of work. Yet it is vital to society. This was a grave betrayal of Elizabeth Edwards and the Edwards children and, in a way, of Rielle Hunter and, if it is his, her child. When engaged in by someone aspiring to the Presidency or Vice Presidency, it is scandalous in the theological sense of the word, i.e., it offends moral standards in a way that may discredit them or become a stumbling block to others.

A HuffPo blogger asks whether, in light of that affair, "Edwards care[s] less about poor people today than he did yesterday?" He notes that history has revealed extramarital affairs on the part of other leaders and suggests that they had nothing to do with how they governed.

Is it just that they did not get caught? Is it just that it was long ago?

In part, yes, it is. Edwards has modeled behavior that has been and is disastrous for poor people in particular. It is behavior with public consequences and, in public figures, must be condemned. One of the ways that happens is that he gets his time in the wilderness. In someone standing for our highest office, respect for doing the right thing seems to demand that John Edwards suffer public consequences for doing the wrong one.

In its immediate aftermath, John Edwards, just like Newt Gingrich, cannot expect to be a national leader. There may come a day, when a contrite Edwards, like Newt, can be rehabilitated. But it flouts our moral standards to reward him with a prominent speech at the Democratic convention or serious consideration for the Vice Presidency.
My guess is that Obama will do neither.

Thursday, August 07, 2008

Thompson and McCarthy must expect to lose this year

I hate it when people in public life insult your intelligence. The performance by Mark Murphy, Ted Thompson and Mike McCarthy at today's press conference was embarassing. Yes, we understand that, as of the end of Brett's meeting with McCarthy, there was no choice but to trade him. But the question is how things came to that. What we want to hear about is what happened in June. What we want to know is why, when Favre said he wanted to come back, the team did not react in the manner that any rational person would have. You mean we can have our Pro Bowl quarterback for another year? Outstanding! Let's talk. Your place or ours?

Instead they told him, in that mealy mouthed and meaningless phrase, we've moved on.
(As in, "you mean I'm not really fired? Well, thanks, but I've already filed for unemployment and everything and, you know, I've just moved on.")

Why did they do that?

There are only two answers to that question that are consistent with Thompson and McCarthy acting for the good of the team. One, they think that the Packers are not ready to win in 2008 and need to develop Rodgers for some point in the future when they will be or, two, they think Rodgers will be a better quarterback in 2008 than Favre.

The latter is silly, so it must be the former. They must think that the fact that they have won 18 of the last 22 games with the same guys who will be on the field this year was a fluke or a function of the schedule. They can't say it, but they don't expect a team that was a field goal away from the Super Bowl last year and which lost nobody that mattered to win this year.

Or at least that is the only rational explanation for their behavior.

Broadway Brett

First, they had better protected themselves against the Jets trading or releasing Favre. The Journal-Sentinel says that''s "almost assured." The NFL Network reports that there is a poison pill that requires three firsts from the Jets if they trade him to the Vikings. Better be.

Second, is this a good move for Brett? This was a 4-12 team and two of those wins were over Miami. The coach is under fire. A big part of the problem does seem to have been their quarterback. They were 10-6 the year before and they do have Laveranues Coles and Thomas Jones. But they are in the same division with the Pats which may mean that the wild card is the best they can hope for.

Third, how well do Rodgers and the Packers have to play to save Ted Thompson's job? Say Favre takes the Jets to the wild card? Don't the Packers have to, at least, win the division? Can Favre play badly enough in New York to let Thompson off the hook? I am sure that Thompson wants to say that Rodgers ought to get a year to learn to settle in and that's not unreasonable, but it's not going to happen. Green Bay is a place where the fans would have given him that room, but Thompson has taken it away from him.

On the other hand, if Rodgers does play well and the Packers win, I don't think that a good season from Brett in New York matters that much - at least if it isn't dramatically better than what happens here.

Fourth, don't the Packers have to pick up a veteran backup? Please, God, not Chad Pennington.

Tuesday, August 05, 2008

San Diego is a great place to protest

I am, notwithstanding the fact that I am old enough for my wonderful children to have wonderful children (but just barely!), new to full time employment as a legal academic. One of the things that comes with such employment is the opportunity to attend the annual meeting of the American Association of Law Schools (AALS) typically held in early January, between semesters. My first AALS meeting was last January in New York. I had a great time. Marquette hosted a reception with a chocolate fountain and blue and gold martinis. There was a great party at the Rainbow Room. Conservative profs met in the catacombs.

This academic year, the meeting is headquartered in San Diego (the Reddess approves!),and the main hotel is owned by a guy - devout Catholic - who has contributed to the referendum to ban same sex marriage in California. Certain sections of the AALS and of, there is no other way to describe it, anachronistic New Left organization known as the Society of American Law Teachers, want the AALS to move the meeting. If it doesn't, they say they won't attend events there. boycott the hotel. There is no allegation that the hotel discriminates on the basis of sexual orientation.

Of course, people can refuse to do business with persons whose politics they don't like. There are very few jurisdictions that prohibit discrimination on political grounds and such bans are, in my view, constitutionally suspect.

But this ups the political ante in a way that hampers civil discourse. Same sex marriage is something that, until very recently, few people had ever thought of. Now, in the view of some, opposition to it - for whatever reason - is so odious that opponents ought to be read out of civil society.

It reflects, I think, a desire to totalize politics. Robert Araujo, writing at Mirror of Justice, quotes Christopher Dawson's observation that the totalitarian state "is not satisfied with passive obedience; it demands full co-operation from the cradle to the grave… "

I find it particularly odd that legal scholars would take such a position. Would those who want to boycott the hotel walk out of panels including those who oppose same sex marriage or believe that the few cases that have found it to be constitutionally mandated were wrongly decided?

In the end, though, Orin Kerr at the Volokh Conspiracy may have the best take on this. "Whoever thought up a boycott that requires you to be in San Diego in January," he writes, "but forbids you to attend the panels has a keen sense of how to appeal to the academic mind."

Or to human nature in general.

Out on a football limb

On Sunday night, it seemed to me that the over the top coverage of Brett Favre's return to Green Bay was reminiscent of an exiled leader returning to resume his rightful position.

But,as Benazir Bhutto and Benigno Acquino show us, sometimes the existing powers cap the returning hero.

Incredibly, that seems to be what is happening to Favre. Now the reports are that McCarthy acknowledges that Favre gives the team the best chance to win in the short term, but their eyes are on the future. As I have said before, that makes sense only if you think that you don't have the talent to go deep into the playoffs now. When you have won 18 of the last 22, that doesn't look like the most rational assumption. In the NFL, you win when you can.

This is, I think, the third time that I have blogged this, but, having watched most of the scrimmage on Sunday night, Thompson and McCarthy appear to be absolutely out of their minds. The only way that they survive this is if Favre goes someplace else and stinks or Rodgers leads them deep into the playoffs. They obviously don't think that the former would happen - they are scared to death to let him play elsewhere - and, based on the limited evidence presented Sunday night, the latter seems extremely unlikely. Rodgers short game is extremely inaccurate (a big liability with a team that lives on yards after the catch), his reads are poor and he has nervous feet in the pocket.

He might - he probably will - get better but I don't expect to be buying playoff tickets this year.

And I don't expect to find Ted Thompson or Mike McCarthy in Green Bay a year from now.

Caleb Richard Esenberg

was born last night at 7:11 pm at St. Joe's. He is 20.5 inches and 9 lbs, 2 oz. Here he is with Dad (aka Shark, Jr.)

And with Mom and big brother Aidan

With Aidan and a guy they'll tell him to call Bampa Teeny (don't ask).

And again with Aidan

And with the whole family

Now that I've indulged myself, political name calling and ruminations on the law will continue forthwith.

A reality check

Greg Sisk at Mirror of Justice collects some interesting statistics on governemnt spending and, in particular, on government spending on social programs. Essentially - and this is nothing new - it turns out that the trend in social spending as a percentage of national income has moved steadily upward while spending on defense has moved steadily downward. Government spending consumes 35.9% of gross domestic product and taxes are the largest single expenditure for the average taxpayer.

Of course, this doesn't tell us what the optimum amount of government spending ought to be and it is important to note that social spending, as he has defined, is not limited to spending on poor people. Welfare spending, which does not include all spending on the poor, seems to have increased from about 2% of GDP in 1960 to 4.4% in 2007 and then declined to around 3% in 2007. On the other hand, the poverty rate has been, roughly, cut in half during that same period. Although all of that reduction seems to have been achieved by 1973 (and most of that, incidentally, before the impact of Great Society programs) and has been stubborn since then (it's actually a bit higher today), the rate of poverty now seems to respond - within a fairly narrow band - to economic growth.

Sisk's point, and mine, is that reality belies some of the overwrought rhetoric about the United States being a "mean" nation and the conservative ascendency having starved public programs. Perhaps we ought to spend more but its not because we have been spending less.

Sunday, August 03, 2008

Olde Folk Rock

One of my favorite Burkean rock songs is "My Back Pages." If you're interested I can explain why, but consider the refrain along with the these fantastic passages:

In a soldier's stance, I aimed my hand
At the mongrel dogs who teach
Fearing not that I'd become my enemy
In the instant that I preach

Equality," I spoke the word
As if a wedding vow.
Ah, but I was so much older then,
I'm younger than that now.

In any event, here's the song with vocals by its composer Bob Dylan, Roger McGuinn, Tom Petty, Neil Young, Eric Clapton and George Harrison.

And speaking of the Roger McGuinn and thinking of the Byrds covering Dylan, here are the Byrds performing "Chimes of Freedom" at the 1967 Monterey Pop Festival:

Some wisdom from Justice David Prosser

Very interesting language from Justice David Prosser, concurring in a decision that denied a motion to vacate an earlier decision of the Court, holding that an attorney named Bob Donohoo should be sanctioned for filing a frivolous defamation action action against Action Wisconsin, an organization promoting the rights and pertinent policy preferences of gays and lesbians. Donohoo argued that Butler was disqualified because he had not disclosed contributions from board members of Action Wisconsin (now known as Fair Wisconsin) and had appeared at a fundraiser for a PAC promoting the same issues as Fair Wisconsin and that later endorsed him. Butler also received (although he had disclosed) contributions from Action Wisconsin's attorneys, one of whom wrote an op-ed endorsing his candidacy for the Court.

I think that the Court got the original decision wrong. As I blogged at the time he was initially sanctioned, I would not have brought the case that Donohoo did because - putting aside whatever one thinks of his client who seems pretty unsympathetic - I don't believe that the likelihood of success for the client would have been worth the effort. But, in my mind, that's not the same as a claim being frivolous. I don't think that the statute forbidding such claims was intended to prohibit lawyers and parties from taking a long shot. There just has to be some real chance of prevailing and I think there was in the case that he brought. If I had been the judge, I think I would have dismissed it but I wouldn't have sanctioned him.

But the Court was right to deny his motion to vacate. Justice Butler was not disqualified from hearing the case. It was an ideologically charged matter. It's not surprising that people who are political liberals were associated in some way with Action Wisconsin. It's not surprising that some of those same political liberals would contribute to Justice Butler's campaign. To argue that a justice is disqualified as a matter of law in such cases would be to frustrate the will of the voters (and, in the case of an appointed justice who has not yet faced election, the Governor) who, under our state constitution, have the right to determine the composition of the court. Respecting that right means, I think, that Justices should recuse themselves (or be disqualified) only for the starkest conflicts or when the Justice herself believes that she cannot be open minded.

Justice Prosser takes aim at the pressure currently being brought to bear upon Justices and observes that it presents a danger that they will recuse themselves when they ought not to do so.

He then fires this shot across the bow of those who believe that judicial elections have become overly politicized:

¶62 It is entirely reasonable to have a dispassionate discussion on the role of public funding in judicial campaigns. But people who care about the judiciary must also look long and hard at why supreme court elections have become so contentious and expensive.

¶63 A court that is in the vanguard of making and changing law in a way that greatly benefits some interest groups and seriously damages others is a court that is actively, if inadvertently, promoting the politicization of its own elections. Every litigant believes he is entitled to an impartial review of his case. If litigants do not believe they can get an impartial review of their cases, they will inevitably attempt to change the composition of the court.

Saturday, August 02, 2008

Obama the Magnificent?

So what do we think of the McCain spots making fun of Obama's celebrity? I suspect that they are in response to Obama's trip overseas. My guess is that polling and focus groups show that Obama and his media camp followers went too far and the idea that Obama and his supporters have gone over the top resonates.

Obama supporters have pointed to the enthusiasm that their candidate generates as some type of endorsement - or confirmation - of the notion that he should be the President. Look at all the young people! Look at how they love him in Europe! What enthusiasm in the black community! It was Obama, and not McCain, who first ran spots with that creepy Obama chant and it is Obama, not McCain, who seems committed to providing his critics with ridiculously overdrawn rhetoric with, I'm sorry, eschatological overtones.

The best way to respond to that may be to make fun of it. But there is also a serious message here. Obama is extraordinarily new and inexperienced for a man running for President. There is also a concerted lack of substance in much of what he says. Personally, I think Obama is a garden variety left liberal - maybe even a bit on the extreme side by American standards. But,save for the occasional gaffe, that is not how he's running the race. Given recent political history, that's understandable, but it contributes to the sense that we don't know what we are getting.

Blogging Problems

Blogger locked my site for a few days because it's robots thought it was a spam blog. I suspect that some around here might agree. I also understand that folks who use IE 7 are unable to open sites that have installed sitemeter. You can apparently resolve that by adding *://* to your restricted site (under tools/internet options/security/restricted websites/websites). The other option is for the blog to remove sitemeter although I'm not entirely sure how to do it. I can remove it from my layout but what about old pages? First, I have to decide whether to stay with Blogger.