Saturday, January 31, 2009

We've been through this before

As the race for state supreme court heats up, we have returned to one of last cycle's controversies. What to make of statistics that show a justice has voted in favor of the claims of a criminal defendant. The Koschnick campaign has released some numbers and Abrahamson supporters have criticized the entire undertaking, including a comment by Tom Foley that he "still cringe[s]at Professor Esenberg's defense of that rubbish."

Some of the numbers that get bandied about are rubbish. But, as I argued last spring, analysis of this type can be useful. I cited, as an example, scholarship by our former Marquette colleague Jason Czarnezki(who is decidedly not conservative). Jason wanted to see how an approaching election affecting justices and chose criminal cases because of the strong public preference for judges to be tough on crime. Do justices get "tougher" as an election looms?

But, of course, you can't tell if they are becoming tougher during an election cycle without knowing what they do during "normal" periods. So he looked at all criminal decisions over a period of time and calculated how often each member of the court voted to grant some relief to a criminal defendant. (While some of these cases involve minor issues, we are concerned not with the percentage for any one justice but how the justices compare to each other and each will have the same mix of "major" and "minor" issues.)

That seems to be what Koshnick has done here. The results, if the sample of cases is large enough does tell us something about the relative views of the justices with respect to the rights of criminal defendants. He concluded that the Chief Justice and Justice Bradley were "non-conformist" judges by which he meant, not that they are free spirits (although they may be), but that they did not conform to public preferences regarding the treatment of criminal defendants. (Koschnick would call this "pro-criminal defendant.")

I don't know if Koschnick's numbers are accurate but they are consistent with Jason's and also, I think, with what any lawyer who follows the court would know. The Chief Justice is far more likely to grant relief to a criminal defendant than, say, Justice Roggensack.

This reflects differing philosphies about the nature of the criminal justice system, the relative positions of the state and the accused, etc. It may well be - almost certainly is - the case that, as the Chief Justice says, she (and others) approach each case on its own merits. But they do so with different presuppositions about the law and society and those differences are relevant at election time. When one denies these philosophical differences, one invites efforts to demonstrate them empirically.

Of course, debate on that subject is difficult. The public probably undervalues procedural protections for criminal defendants. But electing judges presupposes the ability of the voters to make these judgements.

Thursday, January 29, 2009

Whither the culture wars?

I am quoted in a article on political clashes between the Catholic Church and the Obama administration. Although I am not sure that it quite captures my remarks to say that "Catholic politicians have been excommunicated in recent years for not supporting positions consistent with the church's teachings," I did note what seems to me to be an increased insistence upon on at least certain Bishops on faithfulness to the Church's position on life issues (as opposed to postions generally) and a willingness to enforce that through denial of the Eucharist and cited, for context, New Orleans Archbishop Joseph Francis Rummel's excommunication of three segregationist politicians in 1962.

Just how aggressive the Church should be in insisting that Catholic politicians follow Church teachings is a topic that has been debated for as long as I can remember (a period that has come to be distressingly long) and I am not sure that I can add anything to on this cold January morning. I am a confirmed opponent of privileged status for public reason and a staunch supporter of political moderation by the church.

But I do think that the Freedom of Choice Act presents the possibility for political total war. The key, it seems, is whether there will be 41 votes in the Senate to block it and how aggressively the administration and pro-choice movement pushes for it. Whatever the outcome, a concerted effort to pass FOCA will energize the pro-life movement in a way that may help GOP candidates in 2010.

At a larger level, potential controversies over abortion, assisted suicide and stem cell research and certain other biomedical developments can't be dismissed as "childish things" or "wedge" issues designed to take our eye off the economic ball. The Catholic Church supports (often wrongly, I think) much of what might be characterized as a "liberal"position one economic issues, yet insists on a view of the human person that is inconsistent with what seems to be the consensus view of political liberals. This difference will continue to be contentious because it matters.

Cross posted at PrawfsBlawg and Marquette University Law School Faculty Blog.

Tuesday, January 27, 2009

Health Care Magnet?

Last January, I published a piece in WI Interest, the journal of the Wisconsin Public Policy Research Institute, arguing that the drafters of Healthy Wisconsin — or any similar program purporting to enact a universal entitlement to health care in a single state — could not constitutionally impose a residency requirement, creating the risk of health care migration and the associated problems of adverse selection. I did not seek to explore whether such migration would occur or who would migrate. I speculated, in fact, that the migrants would not be poor people, but those who are older or high risk.

WPRI has now published a study evaluating the probability of such migration. I have not yet carefully examined it, but I continue to believe that such migration (and the Supreme Court precedent that protects it) is a serious obstacle to state efforts to enact some form of universal health care and, for that matter, a variety of other initiatives that states may undertake in their once honored roles as “laboratories for democracy.”

Cross posted at PrawfsBlawg and Marquette University Law School Faculty Blog.

The Holiday formerly known as Good Friday

The Madison-based Freedom From Religion Foundation has sent a letter of complaint regarding the recognition of Good Friday as a campus holiday by fifteen of the state's sixteen technical college, apparently pursuant to a collective bargaining agreements with instructional staff. The FFRF argues that closing on Good Friday (not just calling the off day "Good Friday') is inconsistent with a 1996 decision of the Western District of Wisconsin invalidating a state law that mandated the closing of public facilities for the purpose of worship.

The prior decision seems distinguishable to me given the statute's explicit reference to closing for a religious purpose. It's hard, in light of that, not to see the statute as violating current Establishment Clause doctrines.

These cases tend to turn on some ascription (often fictional) of a religious or secular purpose to the state. FFRF will have to show that the recognition of the Good Friday holiday has a religious purpose or amounts to an endorsement of Christianity. It may well lose because a court will conjure some secular justification for recognition of the holiday, e.g, that the day also known as Good Friday has become a traditional opening to the spring vacation.

My own view is that there is no sense to this. Spinning some secular justification for what is a religious holiday is unseemly, at best, and disrespectful of the religious tradition in question, at worst. The colleges are recognizing that this is a day with religious significance for most of its employees and is responding to their desire to have that day off.

My own view is that this ought not to raise Establishment Clause concerns. While it may raise an issue regarding accommodation of the religious holidays of other faith traditions, it does not advance or endorse religion in a way that ought to be constitutionally prescribed. A non-Christian suffers some burden because a state facility is closed on a day when the majority is observing a religious holiday, e.g., annoyance at the unavailability of certain services or confirmation of one's minority status.

But this seems to me to be indistinguishable from the harm that religious adherents claim when the state, for secular reasons, acts in a way that is inconsistent with their beliefs and practices. It cannot be prevented in an even handed manner and we ought not to try.

Monday, January 26, 2009

Right, wrong and religion

Patrick McIlheran continues the discussion teaching morality in public schools without religion. Can it be done? Ought it to be done?

My own view is that this is an area where government should tread lightly but it cannot refuse to tread. Or, perhaps more accurately, has chosen to tread.

You can, under current conditions, teach simple ideas of right and wrong without getting into religion. But that is not where the conversation is likely to end. If schools start to teach about more difficult questions or how one hues to moral standards under difficult circumstances, then two things start to happen. First, schools will inevitably begin to approach those questions in ways that are inconsistent with some of the religious beliefs of its pupils. I think that this cannot be avoided but it certainly belies the idea that we can achieve some type of neutrality between religion and irreligion. We can't so some other principle must define and limit what the state can and cannot do.

In a slightly different way, the absence of any religious perspective - where it is, under the faith traditions of students - clearly pertinent itself reflects a type of judgement on - and socialization into - what is and is not permitted in public discourse. If one thinks that secularism is preferred or is some type of neutral default position, this is not problematic. But if you, as do most of us and even the Court itself, reject the former proposition and believe, as I have argued that the latter is not possible, it is very problematic.

It's one thing to say that religious formation is the province of the churches and families. I believe that is so. But when government, through the public schools and otherwise, involves itself with areas with which that formation is inextricably intertwined, there is no neutral ground.

This doesn't mean that I believe that government ought to teach religion. It means that I don't think separation or nonendorsement or nonadvancement are helpful concepts. We ought to focus on the extent to which government recognition of religion constitutes a traditional establishment, is truly coercive or significantly burdens the ability of dissenters to be full members of civil society. Christmas decorations, prayers at graduation, moments of silence or allowing students to present religious themed work - all fertile grounds for litigation - doesn't do that. Being oblivious to the religious insult associated with secular messages doesn't do that.

The second thing that happens is we risk losing the foundation of these moral principles that we more or less agree on today. Propositions about the equality of all and the dignity of the person are not self evident and have not always been widely believed. They triumphed in the west as a result of a Christianity seen through the lens of the Enlightenment (This is not to say that they are not recognized in other religious traditions; properly understood.). Today we assume these values and argue about what they mean. We do not defend them. This does not mean that they cannot be lost.

Sunday, January 25, 2009

Fab videos for a bleak midwinters day

Via Howard Wasserman at Prawfs via NPR, JAMSBIO ranks the songs of the Beatles. So there's a theme for Sunday.

No. 1 was A Day in the Life which is a worthy candidate. This video captures the Beatles' trippy English silliness with just the right hint of foreboding.

I was surprised that a few of my less celebrated favorites did well such as "You've Got to Hide Your Love Away" (#19)introduced in this video from "Help."

Another favorite of mine is "For No One" which was no. 13. It is, however, one of the relatively few Beatles' songs with superior cover versions. My favorite is by Rickie Lee Jones but here is another good one by the incomparable Emmylou Harris.

One that I like (despite its hint of the saccharine McCartney that we have come to know and do not love) that is not obscure but did poorly is "Let it Be" (#63) as the Golden Slumber medley (#4) as come to surpass it as the Beatles' coda. Still, here it is.

But here is the Golden Slumbers" medley.

Let it Be

Saturday, January 24, 2009

"Fair Obamacles, favored of the gods, ascends to Olympus"

By now, most everyone has seen the creepy celebrity video in which, as Iowahawk puts it in a fantastic spoof, a bunch of people who look vaguely familar promise that "together we cane be a molecule on our President's cheekbone fading and melting and shrinking into the one universal glory of him."

Not content with this, Iowahawk tells the story of Obama in the fashion of the Odyssey. Here are a few highlights:

After Obamacles had completed the perilous sea voyage to LAX and retrieved his bag from the carousel,
He entered the agora of Occidental, where wily Obamacles dazzled the masters with recitations:
Fanon, Menchu, Zinn and Chomsky, Saul Alinsky, Eldridge Cleaver, Kurtis Blow.
After two years his masters said,

"fair Obamacles, we can teach you no more, for your bullshit has surpassed even ours.
Hie thee now to the Isle of Manhattus, where in the agora at Columbius
you may study a bullshit so deep and complex and angry it is beyond our philosophies."

Later,after wedding the siren Victimia and, with the help of the Jeremiad, triumphing over the Chicagomon, the Oracle tells Obama he must face the dread Hildusa:

At the sound of Hildusa's name even brave Obamacles was driven to wet his toga,
For Hildusa, cuckolder of Bubba, was the mightiest of all the gorgons.
From her head grew a writhing nest of asps, and the mere sight of her cankles
Would turn a man to stone. Some said she came from Lesbos
But others said her only pleasure was torment and sucking the marrow from her victim's bones.
Around her at all times was a phalanx guard of mincing eunuchs,
led by Ickis, Wolfsonis, Blumenthalis and Pennis. At her side, an angry force
of menopausal PUMAs ready to strike on her command -- for the children.

But Obamacles was only momentarily dissuaded from his task,
for he knew the people of Demos longed to return to the White Temple,
where they had been banished by the idiot emperor Chimpos II.
Although the Demos knew that Chimpos was the stupidest person in the world,
and they were the smartest, they had somehow been unable to defeat him.

Read it.

Friday, January 23, 2009

I refer to the woman with whom you have a child but who is not your wife (hereafter "Baby Mama")

The decision of a divided Court of Appeals setting aside the sentence of Landray Harris has gotten a fair amount of play in the blogs and on talk radio. Put briefly, the court vacated the sentence because the sentencing judge, apparently frustrated by the defendant's failure to get a job, referred to the defendants "baby mama" (who supports him) and wondered how "you guys"(referring to one out of four" defendants who appear before them)find women who are willing to support them in idleness. One of the area's most prominent African American defense attorneys has come to the defense of the sentencing judge suggesting that his comments grew out of conversations that they had over the years about the puzzling ability of ne'er-do-wells to find women who enable them.

MULS alum Tom Foley is derisive of the critics, suggesting that they have failed to understand the proper standard for evaluating such matters. He points out that the majority asked whether the sentencing remarks could suggest to a reasonable observer or a "reasonable person in the position of the defendant that the court was improperly considering Harris’s race?" Thus, Tom argues, the question to be answered is not what, say, Jeff Wagner would make of the judge's remarks but how they would be perceived by an African American defendant.

Tom is correct that this is the standard the majority announced. But is it the right standard? The majority cites no authority for it and the cases (from outside Wisconsin) seem to nave been based on the perceptions of a reasonable observer and not a reasonable observer in the position of the defendant.

More fundamentally, should the question be whether, to use the majority's language, "there is a risk" that a defendant or a generic observer "might" infer that the judge improperly considered race?

Judge Brennan, in her dissent, comes at it in a different way citing Wisconsin law that places upon the defendant the burden of proving that an improper factor influenced the sentence. Now, of course, one way to prove that is through the judge's remarks. But here's the thing: Not one of the three judges concluded that Judge Wall improperly considered race. Even the majority says that "[h]aving examined the entire sentencing transcript, we are satisfied that the trial court did not harbor bias against Harris because of his race."

The majority seems to want to enforce a certain sentencing etiquette and I understand what's behind that. There is resentment in the black community for the justice system and, while we can disagree about the extent to which it is justified or whether it is counterproductive, it ought to be seen as a reality that requires a response.

But sentencing judges are exposed to a parade of defendants who, and, again, we can argue about why, live irresponsible lives that are destructive of themselves and their families. It is reasonable to expect them to, from time to time, comment on that fact. If, in a particular venue, a disproportionate number of those defendants are African-American, it may be possible, as was done here, to tease those remarks and to place upon them a negative construction that might suggest racial bias. But won't too much sensitivity lead to too many false positives and inefficiency? Where, as here. everyone seems to agree that race was not taken into account by the sentencing judge, is there really any value in vacating the sentence because the judge's remarks might be susceptible to being taken in the wrong way?

Cross posted at Marquette University Law School Faculty Blog

Tuesday, January 20, 2009

Keeping Obamatide

My minor "bah humbug" on the Day the Earth Stood Still got a little attention here and over at Prawfs (a bit less so on the faculty blog), so I thought I'd follow up.

So what happened to Scrooge on Inauguration Day? Did he throw open the upper window and call on a young passerby to buy an inaugural turkey? Did he jump from his bed and proclaim it a "bright new day" and find himself to be "as merry as a school
boy ... and as ... happy as a drunken man!"

Well, no.

I thought Obama's speech was fine - within the broad confines of the genre. While I am sure that those who are strong Obamans thought it dazzling, it was not and perhaps intentionally so. I think he wanted to do two things. The first was to dampen expectations and the second was to emphasize the bad hand that he claims to have been dealt. Thus, the speech was hopeful but sober.

This lead to Michael Novak to call it "Burkean" in its restraint. You can find that. But you can also read it as eliding personal and collective responsibility.

As someone said, Obama's speeches are susceptible to projection because they are more about, as Hillary Clinton said, poetry than prose. Even when they are more concrete, they tend to be given to lawyerly nuance and qualifications and, of course, inaugural speeches are generally platitudinous. So I am hard pressed to come away from the speech with much of an impression, other than that then poetry was muted and not very memorable.

The election of an African American is, as I have said, a momentous event but it is one that tells us more about where we are than where we are going. In that sense, I think that Joseph Lowry's benediction - while well received by the partisans in the crowd - struck a false tone with its 60s era doggerel. I first heard that bit of folk poetry in 1970 on All In the Family and it was, I understand, a favorite of Elijah Muhammed. It may have been relevant then, it is less so today and, in fact, diverts our attention from the ways in which people may be left or fall behind today.

Monday, January 19, 2009

An Inaugural Scrooge

Paul's post on the iinaugural spectacle prompts me to confront my own reaction which is, for the most part, one of bemusement. It all strikes me as too much by half.

Of course, the election of an African-American president is a significant event. I was not one of those who doubted that the U.S. would elect a black president. Contemporary racial bias seems to express itself in presumptions about people that we don't know. In a nation that has - for reasons that are lost on me - made Oprah its most admired person, the election of an African-American is not all that surprising.

But that doesn't make it any less momentous. As others have noted, Obama could not have been served lunch at many restaurants in North Carolina during the year he was born. Last fall, a majority of the state's electorate voted for him for President.

So that makes this inauguration special. In contemplating my own reaction, I also have to make allowance for the fact that I did not vote for Obama and do not welcome much of what I believe his administration will do. I understand, as well, that this type of transition is a time for us to engage each other with good will.

Paul suggests that the triumphalism of the inauguration might be justified as a celebration of the event and what it tells us about our democracy and racial progress. It is better, on this view, to see it as being about the event than about the man and his ideology.

While we can qualify our individual enthusiasm in this way (I am all about that), I don't think the social meaning of the event can be circumscribed in this way. The avalanche of Obama Inaugural geegaws and jingles; the starry eyes and breathy invocations of Hope, Change and New Day and whatever cannot help but be about the man and his ideology.

But who cares? Aren't I just refusing to be gracious in defeat? Isn't it OK to be optimistic about new leadership?

To some extent, I am and it is. But just as you can't separate politics from the celebration, you can't completely remove ideology from your reaction to it.

As a Burkean conservative, my expectations for politics are modest. One of my concerns about the Obama movement is that it places (in its rhetoric, if not in its specifics) excessive hope in politics and the state and, worse, does so by investing its personification with some post-ideological and extrapartisan wisdom.

I suppose that we will all come down to earth in a few days. But I think there should be some healthy skepticism about what is on offer. Political honeymoons are times when things get done. They are also times when mistakes are made. I would prefer a more subdued reception.

Cross posted at Marquette University Law School Faculty Blog and PrawfsBlawg.

Sunday, January 18, 2009

Songs for the Inauguration

It's Inauguration Week and I can't help it.

But what is the change to believe in? Prompt withdrawal from Iraq has turned into a Rumsfeldian (literally)"we'll stand down as they stand up." Close Gitmo? Well, eventually. It turns out that those wiretaps of international communications were constitutional after all (as prior case law suggested they were.) Raise taxes? I'll get back to you. In fact, Obama even promises to continue Bushian Big Government, promising to see his 750 billion and raise to a neat trillion.

Although the latter is some continuity that the netroots will like, what are they to do about this George W. Obama? What's left for the left?

So much of the Obama campaign was predicated on the notion that a song could be President.

It's becoming clear that it can't. But if it could, it would be this one.

Thursday, January 15, 2009

More on teaching about wrong

A commenter who identifies himself or herself as Clutch responded to my post on teaching values without inclusion of religion. Part of the burden of the comment is to argue that one can "mention" God but cannot - and should not - inculcate religion.

I agree. But this doesn't resolve the problem. Current establishment clause doctrine does not merely prohibit proselytization but any speech that can be attributed to the state that, if we use the on-again, off-again Lemon test, inhibits or advances religion or, if we use Justice O'Connor's approach, "endorses" religion or ireligion.

It seems to me that, if government wants to address matters with which religion is concerned, a refusal to acknowledge the way in which the religious beliefs of its citizens relate to those matters is to inhibit religion or endorse irreligion. (You can argue that its not only by arguing that religious folks ought to buy into a public secularity that they do not, in fact, accept and which, scholars tell us, necessarily impacts theological formation.)

To do this - that is to introduce the notion that faith may bear upon, say, decisions about sexual conduct - is to run the risk, under current doctrine, of being seen as advancing or endorsing those religious views - even if one does not make any exclusive (or even nonexclusive) truth claims about them.

Monday, January 12, 2009

Is it right to teach about what is wrong

Common Council President Willie Hines has written a nice piece on values education in the Journal-Sentinel. I know that President Hines and I disagree on many things, but he is someone whose leadership I greatly respect.

In response to the Hines piece, Patrick McIlheran points out an obvious problem. Under current law, it is unclear that schools could effectively incorporate religious perspectives on morality into values education. (There is some room for schools to teach "about" religion, but, in the type of normative education that President Hines is calling for, that distinction - and the lack of clarity about just where it ought to be drawn - would probably preclude any deep inclusion of religious perspectives.)

Marquette alum Tom Foley (the blogger known as "Illusory Tenant")can't wait to dismiss Patrick as a "tinpot philosopher," but he is wrong to do so for at least two reasons.

First, our current notions of disestablishment require neutrality between religion and irreligion and, in the two most frequent doctrinal formulations, forbid the state from advancing or endorsing either. Teaching values and morality while excluding the religious perspectives that believers contend are indispensable to those concepts will almost certainly be perceived by believers as inhibiting religion and advancing or endorsing irreligion. While scholars and courts have, from time to time, suggested that they "should not" have that perception, that suggestion is, in itself, rooted in a particular view of the role of religion in community life.
For that reason, I have argued that neutrality ought not be the sine qua non of disestablishment and, in a forthcoming paper, suggest that there ought to be greater room for religious perspectives in government speech.

Second, while one can discuss values and morality from a secular perspective, it is unclear that the resulting conversation will adequately reflect and develop the values that most of us hold that, whether we believe or not, are rooted (for us in the US)in the Judeo-Christian tradition. One can, I suppose, offer Rawlsian and other secular justifications for values such as equality or personal autonomy, but that is not really how we came to honor them and may not be sufficient to sustain them. While it is too much to say (as some want to do) that an abandonment of religious perspectives will inevitable lead to the secular totalitarianisms that marred the twentieth century, a discussion of values without reference to the grounds in which they are historically rooted would be quite thin and can't help but alter the way in which we see those values.

There is, even under existing law, some room for values education in public schools and in the delivery of social services. My own sense, however, is that it is inevitable that schools and other governmental bodies will want to move beyond that into areas that are religiously sensitive. Because I believe that the it is improbable, in the 21st century, that government will refrain (or can be restrained) from intruding on those areas of life with which religion is concerned, there needs to be more room to incorporate religious perspectives.

Cross posted at the Marquette University Law School Faculty Blog.

Thoughts on the Coming Tsunami

I am back from San Diego where I attended the American Association of Law Schools meeting, the annual meeting of the Federalist Society's Faculty Division (where I presented a work in progress) and an annual meeting of legal academics sponsored by the Lumen Christi Institute and Law Professors Christian Fellowship. Neat town, great weather, provocative meetings and good parties (one of the best being Marquette's offering of blue and gold drinks. It was martinis in New York and margaritas in San Diego.)

Beyond all that, I can't recall the last time that I could wake up in the morning and look out my window and see three aircraft carriers (although one is a fantastic museum that the Reddess and I explored.)

But we are back home with the father and mother (actually they are down south), sisters and brothers,son and daughter, grandsons, nieces and nephew, friends and dogs. Classes begin tomorrow.

And so political blogging should resume here.

I am told (I did not attend) that a session on the role of local governments in the economy included mention of our own experience with the Park East corridor. Discussion centered on the impact of regulatory requirements on the absence of progress.

But, as I return, I am struck by Scott Walker's refusal to put his hand out for federal money. Supporters of the idea of massive bailouts and aggressive "stimulus"
argue that we are in a "liquidity trap," i.e., individuals respond to an economic turndown by cutting back. Interest rates are already extremely low so cutting them further won't help. This is why recapitalizing banks won't work, they say. The banks are reluctant to lend to anyone and having more money will not change that.

Maybe. But isn't it important to know what caused the downturn. If the problem was too much credit inflating asset prices, will additional borrowing resolve the underlying problem ? Put another way, were the tech bust of 2000 and the real estate bust of today really part of the same problem?

Part of this comes to mind as I looked at San Diego real estate prices. (I'm not moving anywhere; it's just something I do when I am in another town for a few days.) I can't see how they can be sustained. There simply isn't enough income to support them. Sometimes a bubble has to burst.

My guess is that the economy will stay very sluggish for a while and then gradually improve without enormous stimulus. The pain associated with that may be necessary and it may be government's role to ameliorate it for those who are hurt the most. But I'm really afraid that this huge stimulus package, even if it makes things better in the short run, postpones the inevitable and exacerbates the root problem.

Monday, January 05, 2009

Music on a January Monday

I didn't get to it on Sunday but January is hard around here so here is some music on facing the winter.

So as it gets colder (or worse, refuses to become warm), keep on smiling...

Let your soul shine ...

and dance to the music.

But the Reddess (wish her a happy birthday today) and I are off to San Diego for the annual AALS meeting, so we are California dreaming.

Thanks to Wet Willie, the incomparable Beth Hart, Sly and the Family Stone and, of course, the Mamas and the Papas.

Friday, January 02, 2009

In 2008 ...

I believe in accountability. These were my predictions for 2008 and comments (italicized)in hindsight.

1. In Super Bowl, Brett Favre passes for over 300 yards and three touchdowns, but the Packers can't stop Tom Brady and the Pats' passing attack. New England 41 Green Bay 34.

A game too far.

2. Al Qaeda in Iraq, having read history, tries to mount its equivalent of the Tet offensive, by attempting a major terror attack in Baghdad's Green Zone.

They couldn't even manage that.

3. The Marquette Golden Eagles make the Elite Eight in the NCAA tournament. The Milwaukee Panthers have another sub-.500 year and Rob Jeter is fired as head coach. He is replaced by Bruce Pearl assistant Tony Jones.

Not quite. Actually, not at all.

4. Scott Walker is reelected as County Executive.


5. Michael McGee, Jr., is convicted of both state and federal charges and gets a rather lengthy prison sentence, prompting minor demonstrations. Fred Gordon replaces him on the Common Council.

I got the big - and easy - part.

6. The Milwaukee Brewers get off to a poor start and Ned Yost is fired and replaced by Ted Simmons. This time, the team finishes strong, but is once again edged by the Chicago Cubs for the NL Central Division championship but make the playoffs as a wild card. The Cubs, however, win their first series since 1908, clearing the way for another century long hiberbation.

Not bad, although it took a while to get rid of Yost and I had the wrong former Brewer. It would have been cool had the Cubs won.

7. Fidel Castro dies and there is political upheaval in Cuba.

He hangs on. Sort of.

8. The race for Wisconsin Supreme Court is expensive and heated. I won't predict a winner, but the legislature will pass a public financing bill for Supreme Court elections. We won't know this in 2008, but it will accomplish very little.

I should have known that the legislature couldn't act that quickly.

9. The challenge to Wisconsin's marriage amendment will lose in the circut court.

Count it.

10. Brett Favre will not retire.

Count it again.

11. Barak Obama will win the Democratic nomination. His running mate will be Bill Richardson.

I bet he wishes that it had been.

12. The Democrats lose seats (including Steve Kagen's), but hold the House and pick up two Senate seats. The balance of power in the state legislature will remain essentially unchanged.

My bad.

13. John McCain is elected the 44th President of the United States. His running mate is Alaska Governor Sarah Palin. (Actually, I think it will be Tim Pawlenty but this seems more intriguing.)

Not bad to get McCain and Palin.

14. The Packers win the NFC North again with a 12-4 mark. The UW football team will be 6-6.

The Packers were no more than 22 plays away from 12-4. As for the Badgers, I guess I overestimated Cal-Poly.

15. Ann Coulter will announce her engagement to Paul Krugman.

Love continues to hope.

In 2009 ...

1. Some ill advised stimulus and public works package will be enacted. It will have little impact on the economy although we will see the end of the housing slump this summer.

2. The Wisconsin legislature will pass little this year. It will enact a series of tax increases as part of the budget package, largely consisting of things that they can argue will not fall on the "average" taxpayer.

3. Healthy Wisconsin will not be enacted.

4. The smoking ban will not be enacted.

5. Obama will fight - and win - a rearguard action over whether to investigate the Bush administration.

6. Justice Stevens will resign at the end of the 2008-09 term and will be replaced by Harvard Law Prof Cass Sunnstein.

7. There won't be much of a race for the state supreme court and Chief Justice Abrahamson will be easily reelected.

8. Dissenting views on global warming will get more attention, with some major study or claim critical of the current "consensus" making a major splash.

9. Little will change in Iraq.

9. Israel will invade Gaza. Obama, wisely, will do nothing. Iran will pitch a fit and the clock will keep ticking on its nuclear program.

10. We won't do anything about Iran but Israel will strike a target there. Obama, wisely, will no nothing.

11. Despite losing C.C. Sabbathia and Ben Sheets, the Brewers will win the Central Division. Gallardo and Parra will have breakthrough seasons and Seth McClung will contribute in the bullpen. They will lose to the Phillies in the NLCS.

12. Brett Favre will retire and the Packers will bounce back in '09, winning the NFC North with a 10-6 record.

13. The Badger football team will bounce back as well with a 9-3 mark and a New Year's Day bowl.

14. In college basketball, both Marquette and Wisconsin will make the NCAA tournament and the Warriors will make the Sweet Sixteen. UWM will surprise everyone with a 12-6 conference record. The Panthers will lose to Butler in the Horizon league title game and finish at 20-12.

15. The Steelers will win the Super Bowl. Florida will beat Oklahoma next week. Georgetown will win the NCAA tournament. The Yankees will finally buy the World Series again. I don't care who wins the NBA.