Mitt Romney is no JFK. His speech was better.

What do we think of Mitt Romney's speech on faith and politics? People are comparing it to JFK's speech to the Houston Baptists in 1960, but it's very different. Kennedy spoke at a different time, but, for ours, Romney's is far more profound.

Kennedy went to great lengths to essentially say that his faith was a private thing, unlikely to affect anything that he did in public life. I am unconvinced that was or could be true, but it may have been in keeping with a time that had not yet learned what the "absolute separation" of religion and public life would mean.

Romney did not make the same claim. Faith, he said, is important. But what is important, in politics, is the way in which faith informs public life, i.e., how it impacts temporal policies. He acknowledges that it does. But Romney says that his Mormonism, in that regard, is within the best tradition of the Abrahamic faiths. It says things about the value of all human beings and the value of freedom that are ultimately consistent with what most of us believe.

What I find odd about the reaction to this is the extent to which some people, who could care less about contentions regarding a God in which they do not believe, want to say that Mormon views about the nature of the reality we cannot see (and which they think is not there) differs from those of mainstream Christianity. So we see atheist bloggers on the HuffPo getting into debates about the nature of Christ that we have not seen since Nicea. Don't you see, they claim, he is theologically unsound

You know what? I think he is. You know that else? It doesn't matter. People can believe all sorts of things about the nature of God, but if the distillation of that into how we live today is consistent, then we can, despite our theological differences, make common cause.

There has been some criticism about the lack of a nod to those who do not believe. During Backstory on WMCS last night, my colleague Dave Berkman tried to argue that Romney was saying that atheists ought to be excluded from the political process. (Ironically, Dave went on to argue that people of faith should keep it entirely out of politics, even, at my instigation, criticizing Martin Luther King for being too religious.) After the show,Dave sent me an e-mail mentioning similar criticism by Keith Olberman.

We are so used to the idea that political speeches have to throw a bone to each and every potentially offended party that his failure to do so draws attention. Romney did not say atheists should be excluded from anything. What he did do is claim that faith informs reason and that faith requires religious liberty. Implicit in that is the freedom not to believe.

Finally, some have said that he attacked Islam. Actually, that is a bone that he did throw. But he also pointed out the obvious. There is a problem in the world that is rooted in a theocratic interpretation of Islam. Calling intention to that is not an attack on all Muslims.

Who cares about conflicts?

One of the interesting side stories in the virtual schools litigation is that DPI initially approved the school. WEAC then sued Libby Burmaster, in her capacity as Superintendent of Public Instruction, seeking to close the school.

DPI then reversed itself. In December 2004, Burmaster moved for summary judgement against herself.

Why the reversal? I don't know but I do know, that when Burmaster ran for relection in 2005, WEAC spent over $340,000 in her behalf.

Did she go in the tank for WEAC support? I think it's more likely that Burmaster just instinctively shares every assumption of WEAC and the educatuion bureaucracy. If I recall correctly, they supported her in 2001 as well.

But this sure looks odd. Why aren't our friends at the Wisconsin Democracy Campaign upset? Where is One Wisconsin on this?

Signing off virtual schools

I have just gotten around to reading the Court of Appeals decision in the virtual school case, Johnson, et al. v. Burmaster, et al. I did, however, get an earful about it from a lawyer for some of the parents over lunch today.

Much of the public discussion around this case has revolved, or will revolve, around whether it is good policy to provide parents with this type of educational option. Apparently the kids at the Wisconsin Virtual Academy do fairly well and there seems to be little doubt that WEAC's opposition to it involves more than a little self interest.

But these weren't the issues before the Court. It was charged with deciding whether state law permits these schools, and not whether or not they are a good idea.

There were three issues. The first two had to do with where the school was located and where the children attend. State law requires that the answer to both questions be the district that chartered the school, Northern Ozaukee. The school's administrative offices are located there but its teachers work from home around the state and the students, who do their work at home, also live in various locations. The Court of Appeals held that the district is, literally, located wherever its teachers live and that its students attend at wherever their home happens to be. You can read the statute that way, but that reading is by no means compelled. It seems just as plausible to say that the school is located, and children attend, at the location where the administrative offices are located.

A more difficult issue was presented by state law requiring that any person teaching in a public school be a licensed teacher. Although certified teachers do supervise and monitor and participate in instruction, I think some of the public commentary that I have heard overstates their role. Most of the work is done by students in association with their parents.

Does that constitute "teaching" in a public school? I can imagine a court concluding that there is some point at which so much responsibility is left to parents that they have essentially come to fill the role of a teacher and, while they can do this if they are home schooling, they cannot do it if their child is enrolled in a public school.

But that's not what the court did. It referred to the definition of teaching adopted by DPI in the state administrative code. Teaching, according to DPI, is "improving learning by planning instruction, diagnosing learning needs, prescribing content delivery through classroom activities, assessing student learning, reporting outcomes to administrators and parents,and evaluating the effects of instruction."

My initial reaction to this is that it is an odd definition. Teaching does include all of these things but the definition seems to leave out the one thing that parents in the virtual school seem to have the primary responsibility for and that is implementing the instructional program that has been planned and prescribed by certified teachers and that is assessed and evaluated by certified teachers.

But putting that aside, what is stranger is that the Court of Appeals seems to think that the statute is violated by the mere fact that parents engage in activities that can be called teaching without regard to whether those activities are undertaken under the direction of, or in support of the efforts of, certified teachers and without regard to how much teaching is delivered by parents and how much is delivered by certified teachers.

On the court's analysis, any school with robust parental involvement and assistance in delivering instruction would be in violation of the statute. The court recognized this potential, but said that if the statute is capable of such a construction the legislature should fix it.

For those of you who have or will read the opinion, I know that the court cites a paper I wrote in support of the proposition that courts shouldn't rush in to solve problems that the legislature had ignored, but, while I am happy that they accept the principle (and flattered that they would read my work), it is not clear that they applied the principle correctly. The fact that their reading of the statute might warrant a conclusion that "all public schools violate the statute" does not mean that they should "fix" the statute. It suggests that their reading is wrong.

It seems to me that they ought to have concluded that a parent assisting his or her child is not a teacher or that the statute forbids, not all teaching by parents, but the usurpation of the teacher's function by the parents. That would require the articulation of some standard for determining whether there has been usurpation and the application of it to the particular facts of this case. That didn't happen.

Had it happened, the court may still have concluded that there was still too little teacher and too much parent for a public school. But, in making that determination, it would have had to explain when parental involvement becomes teaching and that would have given WIVA an opportunity to restructure its program and continue in operation, rather than simply shutting it down and leaving its students outside the virtual classroom door.

Update: Lawyer blogger Mike Plaisted says that criticism of the breadth of the court's analysis is "typically nuts" noting that the court disavows any suggestion that it is illegal for parents to help their kids with their homework. He's not responding to me and I never said that, but it underscores the problem with the way in which the court did this: Why isn't it illegal given the way in which they conclude that the parents here are "teachers?"

The court suggests that the problem is that they are not permitted to do help, but are required to help in order for the school to operate. They don't mean that. It can't be unlawful for a public school to demand parental involvement in tasks that might come within their broad definition of teaching.

I am sure that what they wanted to say that WIVA places too much responsibility on the parents and that there is a point at which a parent can be doing so much that he or she becomes the teacher. I can buy that, but how are we to decide that however much responsibility the parents exercise here is too much? Is it a function of face time? Does it depend upon who makes what decisions? After all, all of the things that are set forth in the admin code's definition of teaching seem to have been controlled by licensed teachers.

In any event, if they really meant to say that the mere exercise of teaching functions by parents is not illegal but, in this case, the parents were asked to do too much, it would have been helpful to articulate a standard and, probably, would have required remanding the case back to the trial court because there were apparently factual disputes over how much parents are involved and how little teachers are involved.

That would not have resulted in the precipitous closing of the school.

It also may have given WIVA a chance to change what they do to come into compliance with whatever the standard happens to be.

That would not have resulted in the precipitous closing of the school.

Date rape - not legal but safe and rare?

A lot of time we hear people argue that they agree that something is wrong, e.g., abortion, teen sex, drug use, but that we need to do something that facilitates it. e.g., make it legal, provide contraceptives, offer needle exchanges, because it's "going to happen anyway" and we should make sure that it is undertaken in the safest way possible.

I think this argument only works when you don't think that the thing to be facilitated, e.g., abortion, teen sex, drug use, is a serious moral wrong. My law school classmate Robby George offers an illustrative hypothetical to the good folks at Mirror of Justice:

Crimes involving the use of date rape drugs are increasingly common on campuses and elsewhere. The overwhelming majority of such crimes are committed by men on women. Evidently, the drugs are widely available and easily obtained. There doesn't seem to be much that can be done to prevent men who want the drugs from obtaining and using them.

Rape is in itself a horrible crime--always and everywhere. It is, in my opinion, an intrinsically--and gravely--evil act. Where date rape drugs are used, the offense has additional dimensions. Often the drugs are themselves harmful and dangerous. Victims can suffer lasting injuries and even die as a result of ingesting the drugs.

Now, imagine that a date rape drug is synthesized which is just as effective as the ones sold on the street, but (in itself) considerably less dangerous to victims. The risk of injury and death is substantially lower. The cost, however, is higher.

How should we respond to a proposal to make the new, safer drug available through the University Health Center on a subsidized and confidential basis? (Let us stipulate that there is no legal impediment to doing so. Imagine that the drug is sometimes legitimately distributed over the counter as a "sleep aid.") The argument is that, though we don't want to encourage date rape and the use of date rape drugs, we need to be realistic. Date rape happens and will continue to happen despite our ongoing efforts to discourage it; date rape drugs are going to be used; we are not going to be able to turn back the clock and makes these drugs cease to exist. Let's at least lessen the potential harm to women who are victimized.

Speaking for myself, I would firmly say no to this proposal. But, then, I am a moral conservative. I don't think we should subsidize and facilitate immoral behavior, even for the sake of preventing injuries and deaths a certain number of which will surely occur as a result of date rapists using unsafe drugs instead of the safer drugs they would have been using had we subsidized them and made them available.

What I don't know is whether liberals would agree with me as to whether the proposal should be rejected. My sense is that most liberals do not share the general principle on the basis of which I myself would reject the proposal. But, perhaps other grounds are available to them for rejecting it. I don't think they would want to say that by subsidizing and distributing safer date rape drugs we are tacitly approving date rape. They might, however, say that the policy of subsidizing and distributing the drugs would result in more date rape by contributing to a cultural climate in which date rape comes to be regarded by potential perpetrators as acceptable conduct. But, then, liberals generally don't reason this way about, say, promiscuity when considering whether to subsidize and distribute contraceptives on campus. Most liberals I talk with seem to believe that the policy of distributing birth control pills, placing condoms in jars in student lounges, etc. doesn't affect students' beliefs about sexual morality or alter their conduct. The amount of promiscuous sex will remain the same, they say, whether or not condoms are subsidized and distributed; the only difference is whether the sex will result in unwanted pregnancies and venereal diseases that might have been prevented had condoms been used.

In any event, let's assume, just to test the principle, that we have reliable studies to show that easy access to cheap safer date rape drugs does not increase the number of date rapes in general or the number of date rapes in which date rape drugs are used. It does not turn non-rapists into rapists. The rate of date rape snd the use of date rate drugs will remain the same. The only difference will be that victims will have a lower incidence of injury and death from the drugs themselves.

On this assumption, what is the correct answer from the liberal point of view? Should a University Health Center subsidize and distribute the safer date rape drugs or not

How do you respond other than by arguing that these other things are not as morally repugnant as date rape? If that's your only response, then you can see how the "safe, legal and rare" argument won't work with people who think that abortion is a moral wrong on the level of date rape.

Plan B and conscience

The Wisconsin State Assembly is considering a bill to require hospitals to administer emergency contraception to rape victims. Many people believe that the drug, known by the infelicitous brand name "Plan B", is considered by many to be an abortifacent because it tends to prevent a fertilized egg from implanting in the uterine wall.

The bill originally had conscience protection for individual doctors and nurses, but not for the hospital as an association. In other words, a Catholic hospital with a policy against the drug would have to administer it.

An Assembly committee adopted an amendment by Mark Gundrum that provided such protection to hospitals who adopt policies against administration of Plan B on religious or moral grounds.

For reasons that I won't get into here, I support that. But doesn't it defeat the purpose of the bill? Are there any hospitals that refuse to administer Plan B except on moral or religious grounds? It seems to me that if you don't think that it is wrong to do so, then giving the drug would be a rather obvious and simple thing to do.

This brings me back to my original reaction to the unamended bill. It seems clearly targeted at the practices of hospitals and health care providers who have religious objections to Plan B.

Does that raise constitutional concerns? Does it interfere with the right to free exercise of religion. The US Supreme Court has held that a neutral law of general applicability will usually not be unconstitutional even if has the collateral effect of interfering with someone's religion. The leading case involved Native Americans whose sacramental use of peyote violated state drug laws.

There is, however, an exception when the law was, in fact, aimed at a religious practice. But it has been often been narrowly interpreted and I think it would be a tough slog here.

The free exercise guarantee in Wisconsin's constitution has, however, been more generously interpreted by the Wisconsin Supreme Court. That,too, is New Federalism. In Wisconsin, a law that substantially burdens religious exercise must be necessary to achieve a compelling state interest. This is a tough standard but there has been surprisingly little action following the case that established it.

So ... will the legislature strip out the exemption? If it doesn't, will there be any pro-life energy against the bill? Is this the battlefield that you want to die on?

But don't the sponsors of the bill (if they are doing something other than posing for a press release) have to try to strip the amendment?

If so, will there be a constitutional challenge?

Barack is Your Man

Bill Clinton was our first black President, so apparently Barack Obama is left to be our first female Commander in Chief.

He's making a pitch for women. It goes like this.

Women, he said, “can look at a whole series of issues and know, ‘You know what? This guy’s going to fight for us, partly due to biography.’ Because I know what it’s like to be raised by a single mom who’s trying to work and go to school and raise two kids at the same time, doesn’t have any support from the father.

Just two things. First, why does he assume that what women want is a government that will do for them what a man won't. Second, is biography really destiny? I, for example, can make the same claim for a good chunk of my childhood (although my Mom didn't go to school) but Sen. Obama and I aren't exactly political twins.

True threats and double agents

The internet can be a mixed-up, crazy, shook-up world. A commenter on Boots & Sabers leaves a rambling post expressing outrage at the level of teacher's salaries and West Bend and suggests that the shooters at Columbine High School, who he calls Young Republicans, had the solution. "One shot at a time." Here is the post:

Looking at those teacher salary numbers in West Bend made me sick. $60,000 for a part time job were (sic) you 'work' maybe 5 hours per day and sit in the teachers lunge (sic) and smoke the rest of the time. Thanks God we won on the referendum. But whining here doesn't stop the problem. Weve (sic) got to get in back of the kids who have had enough of lazy, no good teachers and are fighting back. Kids like Eric Harris and Dylen Klebold members of the Young Republicans club at Columbine. They knew how to deal with the overpaid teacher union thugs. One shot at a time! Too bad the liberls (sic) rip them; they were heros (sic) and should be remembered that way."

The folks over at West Bend High School either get genuinely concerned - or see a chance to make what they think is a point - and go to the cops. Here's a guy threatening to shoot a teacher.

But it turns out the offending poster is James Buss, a teacher. Lest we think that he is a self hating teacher seeking suicide by homicidal maniac, it turns out that he is the former president of the Oak Creek teacher's union. He was either trying to be sarcastic or to discredit critics of the level and nature of educational spending.

But the cops arrest him and here is where the fun really begins. Can he be prosecuted or was he engaged in constitutionally protected speech?

The pertinent Supreme Court thread here is those cases permitting the state to prohibit only "true" threats. In a recent case, the Supreme Court upheld, in part, a statute outlawing cross burning with the intent to intimidate.

But ... the Court (although different Justices had different reasons) also held unconstitutional the statute's presumption that, if you burned a cross, you did, in fact, intend to intimidate. And, in the course of her opinion for the majority, Justice O'Connor seemed to announce a more subjective test for true threats than had been the case:

“True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. See Watts v. United States, supra, at 708 (“political hyberbole” is not a true threat); R. A. V. v. City of St. Paul, 505 U.S., at 388. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.” Ibid. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. the Court upheld a statute that criminalized cross burning with the intent to intimidate.

Some lower courts have interpreted this to mean that the speaker must have intended to communicate a threat. Prior to this, the test had generally been understand to be objective, i.e., how would reasonable recipients of the message understand it?

Of course, there is still an objective aspect to all of this. The threat must be "serious" and I think there is an issue as to whether any one could reasonably have read the comment as serious. It's exaggerated nature and reference to the Young Republicans suggest that it is either satire or an obvious (and badly executed) hoax. But lunatics say many things and let's assume that it could be taken seriously.

Did our hoaxer intend a "serious threat"? He certainly wasn't really threatening the West Bend teachers, but the Court has told us that is apparently not determinative.

Normally, we know that the speaker at least intended the sentiments expressed. Kluxers who burn a cross may not intend to intimidate, but we know they aren't expressing a message of racial harmony.

Buss. however, is either a clumsy and unfunny satirist or a doubled troll. He is a riddle, wrapped up in a mystery, inside an enigma.

Of course, if he intended the post as a satire, he did not intend it to be a threat.

But what if he intended a hoax ? What if you see Buss, as Owen Robinson did, as "posing as a conservative, right-wing whack job to discredit" critics of teacher's salaries by suggesting that they are the type of people who would act violently?

If that is what he was up to, then couldn't you say that he did intend to make a serious threat? He wanted people to take it seriously, so they would think poorly of those with whom he disagrees. Maybe it was a "true threat" and he can be prosecuted.

My lawerly instincts tell me that Buss should not be prosecuted. Even if you take the post at face value, the threat was not direct enough. In addition, he left a later comment saying that he was not advocating shooting teachers and attributing his attitude to a local radio talk show host Can you treat something as a trie threat when it is immediately disavowed? Nor do I think that a jury could find beyond a reasonable doubt that it was not intended to be satire. But it's a nifty problem.

One thing does seem clear. Owen reports that the West Bend police told him that they didn't think that the poster intended to harm anyone but that he had to be punished because the post might encourage someone else to act violently. That would seem to be clearly unconstitutional.

Zombie Cockroaches!

Wasn't Vampira in the original?

Black v. Blue

I don't do much sports here but tonight is the happy occasion of the renewal of a cross town rivalry between UWM and Marquette in men's college basketball. Maybe I should say that it is (with luck) the beginning of one since the old series wasn't much of a rivalry. UWM never won.

Although my day job is now at Marquette, I graduated from Milwaukee. Those loyalties stick. I am perfectly fine with ringing out ahoya on most days, but not tonight. A few years ago, UWM, now with a Division I program, started agitating for a game with MU and there were about three years (2003-04, 20045-05, and 2005-06) when we almost certainly would have won.

But not this year. I've seen our team and I doubt that they will stay within 20. Still it's good to see the two schools play.

My outrage is selective? Your outrage is selective...

Political bloggers love to play pin the tail on the hypocrite. I do it too. I admit it. Nothing pleases us more than to be able to say that someone we disagree with has fed the goose but starved the gander. Given that there are very few human beings who can be absolutely consistent, there are always opportunities.

It's not a bad thing. Taking a principle and asking whether it applies to a different situation is a perfectly good way to clarify it.

But it does have this tendency to degenerate into a game of gotcha. Recently, I played the game to point out that there seem to be some rather serious legal questions surrounding Jennifer Morales proposing and voting on the extension of health benefits to the domestic partners of MPS employees. I looked at the state ethics code and the interpretations of the code by the ethics board. My point was not so much to accuse Morales of selling out the public for her own private benefit (I suspect that she'd favor domestic partner benefits even if she wasn't living with an MPS teacher) as to point out that there are apparently some problems with her acting on the proposal. I can see an argument in her favor (the city attorney has supposedly made it) and we know that legislators and public board members have to set their own salaries but, yet, there seems to be a rather substantial argument that she shouldn't act on this. And, even if she has a legal out, it certainly doesn't look good.

To the extent anyone has responded to this point, it has generally been to say that domestic partner benefits are a good thing. But that's no response just as it was no response to say that the cases that Annette Ziegler should have recused herself on but did not were decided correctly.

So I - and other people who raised the issue - were playing the game.

Anne Quimby Mathias has taken the game to a new level. She is playing a meta-version of the game, trying to pin the tail on the tail on the one who pinned the tail on the hypocrite. (If that's hard to follow, think of a dog.)Charlie Sykes raised the point about Morales' conflict. She is now accusing Charlie of inconsistency for never raising the fact that there are other board members who are married to MPS employees and who presumably act on employee compensation matters.

The domestic situation of those board members wasn't implicated by the domestic partner proposal. But I think the proper response to this is to double down.

Of course, the same issue applies to them. In fact, doesn't it seem a little cozy to have MPS board members married to MPS employees? If we are concerned with high ethical standards and avoiding even the appearance of impropriety, shouldn't these board members (or their spouses) resign? I know that Pundit Nation is concerned about integrity in public office because it has repeatedly weighed in on the Ziegler issue.

The tail, Ms. Mathias, is to you.

Be careful what you wish for

Political use of ethics charges seem to me to be the last refuge of scoundrels. (Note to the sensitive: that is a figure of speech, I am not calling any individual a scoundrel.)

The controversy is over the need for Justice Ziegler to recuse herself in a tax case being argued today. WMC is not a party to that case, but is participating as amicus curiae ("friend of the court") and has filed a brief supporting the position taken by the Menasha Corporation which, as you might imagine given WMC's policy preferences, would, if sucessful, tend to reduce business taxes. It apparently has also contributed to the expenses of the case.

WMC made a substantial independent expenditures in support of Ziegler's candidacy. Nothing in the judicial code of ethics requires a judge to either disclose these things to litigants (they are public in any event) or to recuse herself in cases where parties or their attorneys or amici have contributed to or otherwise supported her campaign. The code does, however, remind judges to keep in mind their obligations to act in an impartial manner when soliciting (to they extent they may be involved) or accepting campaign contributions. (Of course, she did not "accept" WMC's expenditures. They were independent.)

There is some consternation on the left over her decision to stay on the case. I don't find it all that persuasive. WMC did spend a great deal of money, but it is an advocacy group. It doesn't seek special favors as much as it tries to identify candidates who it believes will support it's position. It isn't even a party to the case. It simply supports a particular outcome.

I think my colleague Janine Geske had it right when she said that, if we require justices who have received campaign contributions to recuse themselves in cases where parties have contributed, we won't have a court. I think that recusals are particularly problematic on the Supreme Court which is a collegial court of last resort resolving important questions of law. There ought to be a presumption against recusal.

The left is proposing a standard that it can't possibly mean to consistently follow. Imagine that Justice Butler is reelected this spring. Assume (as I suspect will be the case) that WEAC makes independent expenditures on his behalf or PAC contributions to his campaign. Suppose (as I also think will eventually happen) a case comes before the court challenging Wisconsin's system of school financing. WEAC will certainly support that challenge. Do they want Justice Butler to recuse himself?

But we don't have to use a hypothetical. The Journal Sentinel reports that Justice Butler says that one of the lawyers for Menasha Corporation is my former partner Maureen McGinnity who contributed to Justice Butler's campaign and sits on his finance committee. Mo is very connected and wildly energetic. I am sure that her support is very important to Justice Butler.

(He apparently was late in reporting this. I suspect that was a glitch and not intentional given that the information is so readily available to anyone.)

Should he recuse? Only he knows but the fact that he will not strikes me as quite reasonable. I don't presume that he would sell his soul for campaign support. (Incidentally, there is nothing sinister about Mo supporting Justice Butler. Given her views on these matters, it is what I would expect.)

A friendly question

My Backstory friend Jim Rowen is concerned about political and social dialogue in our community. So am I. It's one of the reasons that I continue this blog which, to date, has resulted in neither fame nor fortune. Jim was concerned that Charlie Sykes characterized one of his posts about the blogosphere's Coexistential crisis as "hating" conservatives. He wrote:

And let me point out that I get along fine with any number of conservatives, including my "Backstory" (WMCS-AM 1130) roundtable colleague Rick Esenberg, the conservative blogger and Marquette Law School teacher.

Have we disagreed about many things? Of course. That's part of the reason Eric Von had us as regulars (I have fallen away: Rick is more reliable). But do I hate Rick?

Of course not. And I'd be shocked if he said he thought I do.

No need for JIm to be shocked. I am relatively sure that he doesn't hate or even dislike me, although I do recall a crack about my shirt and tie combination that wounded deeply.

And I disagree with Charlie's characterization of his post but still there is something about Jim's comments on the question of dialogue that lead to some questions. In a more recent post, he has this to say about Bumper Battle:

This nasty little Internet and media outburst in Milwaukee could lead to something genuinely useful, even uplifting: a productive moment in the community's history - - if powerful media owners and personalities that have decided, for now, to side with intolerance can make the break and shift towards dialogue, and then genuine community-building in Milwaukee.

This is a theme in Jim's writing on the topic. Talk radio, he says, "stirs the pot" and results in divisiveness.

Here's my problem. First, I draw a distinction between Belling and the rest of the conservative talkers. Whether by virtue of his chosen schtick or his personality, I think that he sometimes does cross the bound of reasoned and civil discourse. Only yesterday, for example, in discussing the effort to censor Walid Shoebat, I think he made some remarks about American Muslims that were irresponsible. But I could say the same about a number of commentators on the left.

But I don't hear that from Sykes, Harris and Wagner. I didn't hear it from McBride. They are, of course, entertainers and the need to draw an audience is going to cause them, from time to time, to oversimplify and even to take cheap shots. Given that they are out there every day, I am sure that you can find examples of times in which they were less than reasonable as I am sure that you could if you scoured this blog. I am probably a bit more careful about what I say but I am doing a different thing and my readers are measured in the hundreds and not the thousands.

Mostly what I hear on TMJ (I can't speak to Weber and McKenna because I don't hear them enough) is fairly mainstream conservatism. This is also what I read from Patrick McIlheran. I think that's what you get here. The uncomfortable feeling that I get from Jim is that he thinks that constitutes "stirring the pot" in some way that is harmful and ought to be abjured by responsible people.

So why I am fairly certain that Jim doesn't hate me (and I like Jim), I have a hard time seeing why, by his lights, I am not "stirring the pot" as well.

Does it stir the pot to say that taxes are hight and, if at all possible, should not be raised and even lowered?

Does it stir the part to notice the obvious facts that crime in certain parts of Milwaukee have gotten out of hand and that this seems to be related to a cultural breakdown that is unlikely to be remedied by summer jobs and midnight basketball?

Does it stir the pot to believe that changing the way that virtually everyone in virtually every place and virtually every time have understood marriage until about last Wednesday may result in unintended consequences?

Does it stir the pot to recognize the rather obvious fact that there is a virulent form of radical Islam that has taken over enough national governments and is followed by enough folks around the world to become a rather large problem?

Does it stir the pot to demand that light rail and other forms of transit be, you know, economically justified?

I doubt that Jim wants to say this, although I suspect that some would. But that seems a passing strange way to achieve dialogue and strive for inclusion.

I am not Panther proud tonight

I am not so happy with my alma mater just now. The University of Wisconsin-Milwaukee proposes to charge the Conservative Union, a student organization, $ 2500.00 for security costs in connection with an appearance of Walid Shoebat, a reformed PLO terrorist who speaks against jihad.

I know little about Shoebat. I understand that certain groups accuse him of being an "Islamophobe" and an evangelical Christian "extremist." For all I know, he may be both. It is clear that he thinks that virulent forms of Islam are dangerous and widespread. But that's not the point.

You never know how accurate a news report is, but it seems that the amount of the fee may have been set based upon the anticipated reaction to Shoebat's views. As a general matter, this is unconstitutional. The government has the right to charge for the cost of policing an event, but, in general, it can't set that fee based upon an assessment of the speaker's views and the likely reaction to it.

The paper notes that other universities have banned or restricted Shoebat speeches, but they are private institutions. UWM is a public university and, while it may impose reasonable time, place and manner regulation, it does not get to engage in viewpoint discrimination. Basing the amount of a fee upon what a speaker will say and how others may react to it does that.

Apart from its constitutional obligations, there may be an educational opportunity here. Mohamed Elsayed, President of the Muslim Student Organization, wants to know "[w]here is the boundary between freedom of speech and hate speech?" I can tell him. With the exception of a few very narrow categories (e.g., speech that will incite imminent violence)that aren't remotely implicated here, there isn't one. I wish that my school would have stood up for that. Bad timing for end of the year fundraising.

Dime store political psychology on Bumpergate

I know that I said I was done with Bumpergate but there is a residual point that are banging around my head and I need to it out of there so I can spend the rest of the preparing for next semester's Civil Procedure class and reading theology in connection with some scholarship that I am working on. Both require a mind freed of distractions.

Why was this the source of so much bloggy excitement? I posted twice about it even though I said that I wouldn't put the original sticker or the parody on my car. (The only thing on my car is a Marquette parking sticker and they made me put that there.)

There are cynical explanations. One is that the thing started with Charlie Sykes who serves as both a foil and a leader in Wisconsin's Blog World. Another is that it gave an opportunity for both sides to put on the silk of moral high dudgeon and that feels so good against the skin.

But I also think it touched on some of the fundamental differences that we have. My view is that the difference between liberals and conservatives is the emphasis they place on competing goods. We believe, at core, in much the same things but we assign them different values, often because of different assessments of empirical matters.

What follows is blog-abbreviated and thus oversimplified. Still I think that it is instructive.

One of the goods that left liberals place a high value on is the need to be solicitous of certain (but not all) minorities who they believe that the mainstream culture has treated or is likely to treat unfairly. They saw McMahon's parody as offending that value.

It's not that conservatives don't value that good, but they generally don't think that, in our time and place, it is quite as salient as a guiding principle for public action as their friends on the left. They are more interested in active (and personal) virtues (by this I mean something other than tolerance or voting for what are perceived to be morally superior social policies). They are more likely to see these virtues as rooted in distinctive faith and cultural traditions and more likely to see external threats to the culture in which they are rooted as something that must opposed rather than accommodated. Liberals don't reject these active virtues as much as they see them as less salient in resolving public controversies. That some of them seem to revolve around sex and marriage underscores their perception of conservatives as hostile to the "other."

Knowing all of this, conservatives were more likely to see the original bumper sticker as denying the existence of these transcendent values and as tolerating the intolerable. They were more likely to see the parody as an attack on the original bumper sticker than as a general indictment of Islam.

I think this is one of the reasons that people were drawn to the controversy. One might have thought that an appropriate reaction was to pronounce a pox on both the sticker and the parody. The sticker is hopelessly devoid of content (so much so that it needed a footnote) and the parody had too much (and, therefore, also needed a footnote that it wasn't saying that all Muslims are like Nazis). But we all got past that because the issue seemed to be saying something about a difference that we feel is important.

kumbaya is not enough

Mike Plaisted says that I am in my mode of defending the indefensible. As he well knows, that is what we are trained to do so here's my final word on Bumpergate.

I think that those who are criticizing the parody are weakening their point by making an argument that it somehow offends Jews by placing a swastika where the Star of David was in the original. That's just silly. No one could reasonably interpret the parody to be conflating the two.

Obviously, the parody can be understood as an attack on Islam. I read it as a criticism of the type of naive liberalism that will stand up for nothing if it can be interpreted as an attack on the "other," but reasonable people might have a different interpretation and that's why I would never put the parody on my car either. (Actually, I don't do bumper stickers but that's another story.)

So why talk about the Star of David? Do the critics think that is a more sympathetic argument? Maybe it helps avoid an uncomfortable conversation.


The point of the parody is that there are some preconditions to coexistence. There are people with whom we cannot get along - at least not unless they change. The Interfaith Council knows that. John McAdams links to the program of a conference that they sponsor called Common Ground. My own reaction to the program is that it sounds like the type of divisive racial scapegoating that makes actually finding a common ground so difficult. It seems to me to be aimed at opening wounds rather than healing them.

But I suppose the IC folks involved with the conference would tell me that they believe that reconciliation is possible only after we confront what they see as the truth and bring about change that they believe to be needed. I don't see the conference as accomplishing that, but I see the point that coexistence is not simply a matter of tolerance. There are values that must be shared like not hanging nooses in my front yard or not blowing yourself up on the bus.

Of course not all Muslims are jihadis or believe in Sharia law. From what I can tell, the overwhelming majority of Muslims in the United States are not and do not. we have Saudi Arabia and Iran but we also have Turkey and Indonesia. Still, the sad fact is that, around the world, there are enough jihadis and adherents to Sharia that it's become rather a huge problem. It's not clear that this problem can be countered by the expression of even a noble sentiment.

Responding to the threat of Islamic terror is difficult. European countries who must reckon with the presence of large populations within their borders who do not share many of the values of the majority face some very hard questions. The desire to coexist is the right instinct, but it alone won't get us very far.

Santorum's challenge

The biggest tragedy of the 2006 elections was that Rick Santorum lost. He is now a Senior Fellow at the Center for Ethics and Public Policy. He recently tried to organize a bipartisan debate of the presidential candidates on the role of faith in fighting poverty. It was cancelled because apparently Hillary Clinton was the only one who agreed to show.

In this op-ed, he lays out what I think is the biggest challenge for Christian conservatives. We believe in limited government and we know that a free market and restrained taxation results in the greatest level of prosperity for all. But we also know that poverty persists and our faith is quite clear that we may not be indifferent to this.

My own view is that anti-poverty programs must follow the Catholic principle of subsidiarity. They must be of limited duration and, in the United States, must focus on changing the culture of poverty. But then they ought to be generous.

The Democrats are still too much the party of government and too committed to their own racial strategy. While they are not so hot on laissez faire in economics, they just love it when it comes to personal life. They will never accomplish much on poverty.

But we Republicans aren't talking about it. Santorum is. It's too bad that he's not doing it in the Senate.

H/T: Rick Garnett at Mirror of Justice.

November 22 1963-2007

Yesterday was Thanksgiving, but it was also the 44th anniversary of the assassination of President Kennedy. Local blogger Jim Bouman, who has apparently returned from from Canossa, remembers where he was and what he thinks of the larger significance of the assassination. More on the latter later.

For boomers (although he's on a tad pre-boom and I'm in the latter half of it) talking about where we were on November 22, 1963 is just something we love to do. I was in second grade at Holy Family school in Whitefish Bay. The nuns told us the President had been shot and we prayed. I remember thinking that the President was in Washington and that Washington was up near Alaska and Alaska was near Russia. Maybe he went across enemy lines and got clipped. Later on I remember feeling chastened by how adult the whole thing was. Of course, I thought. The world was so much duller than I wanted it to be.

In any event, the nuns told us a bit later that the President was dead and that we were going home. After another prayer, I walked home down Hampton to my house on Oakland. I still remember stopping to cry under a birch tree on the corner of Cumberland and Hampton. If I can be permitted, my parents got divorced the next month and, for me, the tragedy of the assassination has always been bound up with that personal tragedy. Maybe for that reason, I've always been fascinated by the assassination.

So, as has often been the case, I've been reading a couple of books on the topic. One is When the News Went Live; Dallas 1963, a memoir of those few days by some Dallas journalists. That book, along with some historic material on John McAdams excellent assassination website and the rebroadcast of NBC's coverage a few years back, underscore how quickly it became obvious that day that Oswald was the shooter. If that doesn't convince you, this guy and this one have destroyed the conspiracy theories.

Here's where Jim Bouman's reaction to the assassination comes in. He is apparently not a conspiracy theorist. But one of the reasons that conspiracy theories have persisted in the face of such overwhelming evidence to the contrary is that the assassination narrative flew in the face of the reigning liberal consensus that political violence was all on the right and that the Cold War had to be called off.

Yet Kennedy was shot by a communist. The other book I am reading is Camelot and the Cultural Revolution: How the Assassination of John F. Kennedy Shattered American Liberalism by James Pierson. The fact of a violent act by a leftist didn't fit the story that left-liberals wanted to tell. Recall Jackie Kennedy's reaction: "He didn't even have the satisfaction of being killed for civil rights. it had to be some silly little Communist."

So, the assassination had to be spun, not as a political slaying, but as a symptom of a country gone wrong. It wasn't so much Oswald that killed Kennedy but a violent America. Mr. Bouman states the correlation - if not the assertion of cause and effect:

From there, this benighted nation spiraled downward, through a decade of assassinations and escalations and cities-in-flames and profound alienation, then went on to decades of self-indulgent, self-congratulatory excess and hubris, arriving finally at today's sorry state of the American nation, it's leadership and its prospects.

In the standard liberal narrative, the assassination, in this view, becomes just another symptom of a sick culture rather than the act of a sick man consumed by ideology. Maybe that's what Bouman means. Or maybe he means that an act of political violence caused us to go off the rails.

But Pierson argues that it is not the death of JFK, but the recasting of the liberal narrative encouraged (although not entirely caused) by the reaction to the assassination that contributed to a societal sickness. Pierson argues (but I doubt Bouman would agree) that liberalism has paid a price for this reaction to the slaying, losing its confidence and its roots in commonly held American values.

I suppose there is a sense in which that lead to the leadership that we have now in that America has generally rejected the antinomian left (although I think we also needed to shed industrial age liberal economics as we moved into a post-industrial age.) Of course, Pierson and I might characterize that leadership (and America's prospects) much differently than Bouman, but look for agreement where you can find it.

Happy Thanksgiving

Continuing a tradition (actually I did it last year) here at the old blogspot, I reproduce my 2005 Thanksgiving column from the Milwaukee Journal Sentinel.

The virtue of gratitude
By Rick Esenberg

Posted: Nov. 23, 2005
Abit over five years ago while shopping with my wife at Bayshore Mall, I suddenly felt as if I couldn't breathe. My face lost significant color. For someone as white as I am, that is no mean feat. It must have been hard to tell.

I found myself, some 30 minutes later, in the emergency room. My wife (a registered nurse) and her brother (a radiologist) stood together, reading my EKG and looking as if Brett Favre had announced his retirement.

They tried to tell me everything was OK.

Obviously lying. I made a mental note that someday I would get each of them into a game of high-stakes poker.

I was having, as they say, "The Big One." It turns out that I needed a quadruple bypass, a procedure that had to be done so urgently that I bumped an 89-year-old from the operating room because he was "more stable" than I was. That added insult to injury.

I came closer than most 44-year-olds to buying the farm, yet I remember one overriding thought during the ordeal.

It was "thank you."

This is not exactly the emotion I would have expected. I am generally not the type of guy who sees the glass as half full. Those who know me would be quick to tell you that I am decidedly not Mr. Sunshine.

So why "thank you"?

We think of gratitude as a debt we owe for favors received. It is the currency by which we compensate others - or, if we are so inclined, God - for whatever has been done for us. Giving thanks is simply honoring our end of a bargain.

We are thankful - or not - to the extent that we feel we have been - or have not been - blessed. Even those who urge us to be more thankful than we are argue that the key is to recognize that we are better off than we know.

This is, I think, incomplete. Gratitude is just as important when we are in life's troughs as when we are astride its peaks. The Roman orator Cicero thought gratitude to be not only the greatest of virtues but the parent of all the others. It is not simply what we owe but the way in which we should live.

Living in a spirit of gratitude requires an acknowledgment that we are dependent, something that certainly comes hard to me and runs counter to a culture that has turned the "me decade" of the 1970s into the "me millennium" of forever.

But we are dependent on others - those who are with us today, those we never meet and those who have lived before us. I believe we are, whether we acknowledge it or not, dependent on God.

It may have taken a heart attack to teach me that.

My wife and I attend a church in downtown Milwaukee. We joke that our pastor says "thank you" more than any person on the face of the Earth. If you can do it, Pastor Amy can thank you for it. That she also seems to be happier than just about anyone else we know is not a coincidence.

I think she knows, and I learned the hard way, that to acknowledge the ways in which we are incomplete and in which we need something and someone outside ourselves frees us from the burden of needing to be perfect. Once we acknowledge that we cannot control all that happens to us and that we cannot create a perfect life, we are freed to do what we can do.

It may have taken a heart attack for me to learn that to be grateful for whatever gifts I have is far more important than to yearn after those I do not.

So take a moment today, between football and feasting (a nice Gewürtztraminer, by the way, goes wonderfully with turkey), to cultivate a habit of gratitude. Not just today but every day. Not just when things go well but when they don't.

The Christian mystic Meister Eckhardt once said that if the only prayer that you say in your whole life is "thank you," it will be enough.

It will certainly be a good start.

Rick Esenberg of Mequon is an attorney and junior warden at St. Paul's Episcopal Church in Milwaukee. His e-mail address is resenberg@wi.rr.com

Where are the goo-goos on Morales?

I am playing with the idea that the notion of "appearance of impropriety" in the law of attorney and government ethics is a fount of abuse. We use it or don't use it depending on whose ox is being gored.

Here's a case study. Locally, we have folks(think One Wisconsin and the Wisconsin Democracy campaign) practically ready to waterboard Justice Annette Ziegler for acting on mostly uncontested matters in which she may have had an extremely attenuated financial interest. As I have written in the past, she was wrong to violate a rule that is essentially designed to avoid the appearance of impropriety (that's why I call it a prophylactic rule)and I think that some type of reprimand is in order. It's not an adequate defense to say that she decided the cases properly, i.e., that the underlying decision was right.

Where will One Wisconsin and the Wisconsin Democracy Campaign be on Jennifer Morales' conflict of interest on the proposal to grant MPS employees domestic partner benefits? Morales is the domestic partner of an MPS teacher.

It may be that Morales can lawfully vote on the proposal and I haven't thoroughly researched the issue, but she may have a real problem here.

The state's ethics code for local elected officials , found in section 19.59 of the statutes, prohibits local officials from taking action on any matter in which she or her family has a substantial interest. There is an exception for taking actions "concerning the lawful payment" of employee salaries and employee benefits (or acting on a proposed change in a municipal or county ordinance). Maybe you could interpret that exception to apply to actions that set the level of these lawful benefits (although that's not very clearly communicated by an exception that is limited to "payment"), but the state ethics board doesn't appear to do so. The ethics board, for example, has opined that a school board member whose spouse is employed by the district as a teacher should not participate in discussions, negotiations or votes on the teachers' contract. More recently, the board has advised school board members who are retirees of the district not to vote on matters that may affect their health benefits.

The school board's own ethics code has a similar provision. In fact, MPS' position is arguably broader because it doesn't contain the "lawful payment" exception.

We know that local bodies, including MPS, vote on their own salaries. The constitution (for state legislators) and state statute (for municipal officials)addresses that problem by providing that the elected official face the voters again before collecting increased compensation. There appears to no comparable provision governing MPS so perhaps by virtue of the time honored maxim generalia specialibus non derogant, it may be that the statute governing the board's power to set its salary controls.

But that doesn't help us here. This isn't a vote on board compensation. The City Attorney has apparently opined that a Board member may vote on teachers contracts notwithstanding being married to a teacher. Perhaps he relies on the "lawful payment" exception and argues that the state ethics board got it wrong. Maybe that works, but, then again, the Board's ethics code does not have this exception.

And even if the exception gets her off the legal hook, how is Morales' position here any different than Ziegler's? If it looks bad for Ziegler to rule on cases presenting no substantial contested issues because it may theoretically add a neutrino's worth of value to some stock she owns, then why doesn't it look just as bad for Morales to push and vote upon a benefit that is offered in only four other districts and that may be worth close to $ 20,000/yr for (potentially) the rest of her life?

Maybe there is a way to justify her participation. The response of the board, at least as reported in the paper, sounds a lot like the response that was deemed inadequate for Justice Ziegler. It amounts to an assertion that the proposal is "right," so we can apparently overlook Morales' conflict. But whether it is right or not (or whether Morales sincerely believes that partner benefits are good policy which I assume she does) is not the point. The point is the conflict.

If they were truly interested in ethics, you'd think that Mike McCabe and Cory Liebman would be all over this. I am not surprised that they are silent.

Can't we all just get along?

What are we supposed to make of the spoof of the COEXIST bumper stickler by Tom McMahon?

To review the bidding, here's Tom's parody:






of the original bumper sticker:






Local blogger Anne Quimby Mathias has criticized the parody. Marcus White of the Interfaith Conference wrote to WTMJ demanding that the parody be removed from TMJ's website.


That bumper sticker will never adorn my Mini Cooper. It's not that I advocate religious war or don't think that we ought to be able to get along with folks of different world views. But appropriating the symbols of these traditions and assembling them into a command that is probably most often expressed by people who do not follow (or follow loosely) any of them strikes me as patronizing. Since, as the reaction to Tom's parody demonstrates, the bumper sticker is not directed at Islam (the one that actually has a significant contingent that opposes the idea of a coexistence), the implication is that whatever the distinctives of your faith tradition, keep themselves to yourself and buy into the notion that all faiths are equally valid or invalid.

I recognize that reaction takes a bit of social context and some assumptions about who is expressing the "coexist" message. Maybe I am reading too much into it. But the reaction to the parody seems to bolster my point.

One criticism is that, to make the parody work, he had to replace the Star of David with a swastika. Marcus White argues that this is "distasteful", "ignorant" and "always offensive." This would be the case if the message was some equivalence between Nazis and Jews. But Mr. White has to know that this in not what McMahon intended or what any reasonable person would think he intended. He needed an "x," for Siva's sake, The notion that this is "always offensive" is either intentionally obtuse or reflects a medieval belief that symbols have innate powers apart from the message they convey. It's as if the totem has been defiled and the gods will respond in wrath.

The other criticism reflects what I think is a larger problem with the bumper sticker. Marcus White writes that by publishing the parody on his website, Charlie Sykes "seems to be endorsing the notion that terrorism can be blamed on Islam as a faith. I am sure that Mr. Sykes is well-aware that Muslim leaders in Milwaukee and throughout the world have repeatedly condemned the terrorists."

I am aware of that. I am aware that many people do not interpret Islam to command violent jihad against unbelievers and those who are thought to have offended Allah. I am aware that many Muslims do not interpret their faith to require treating women like filth. It is my impression that, within the United States (but perhaps not the world), these Muslims are an overwhelming majority of adherents to Islam. It is because of these faithful and peaceful Muslims that we ought to be careful to limit our criticisms to those factions within Islam who do, with apologies to Mr. White, believe that their faith commands murder and misogyny.

But those factions exist and they are rather large. Islam has a problem and it will still be there whether or not we pretend that it isn't. As the left correctly points out, terrorism is not a cause, it's a tactic. I wish the enemy wasn't an ugly version of Islam adhered to by millions of people. But it is. I don't see how you respond to a problem by deliberately misunderstanding it. By positing an equivalence among faiths on the question of coexistence, the bumper sticker does that.

One final point. Marcus White's belief that coexistence requires that TMJ take down the parody actually reflects what has made coexistence with Islam in Europe so difficult. Coexistence in a diverse society requires understanding that other people who do not share your views will say and do things that offend you and you do not get to make them stop.

Liberal creationism?

On Slate, William Saletan is posting an interesting series on liberal "creationism." He was apparently struck,as I was, by the nature of the reaction to James Watson's comments on the distribution of innate intelligence among Africans.

If one is a materialist and believes that evolutionary biology as expressed in our genes explains much about us, how can one exclude the possibility that certain attributes, like intelligence, may be unevenly spread among groups with some greater proportion of common genetic material?

I have no idea whether there is any support for the idea that intelligence may not be evenly distributed among racial groups, but the reaction to Watson seemed decidedly faith-based. We don't want to believe such a thing because we fear the implications of its truth.

Saletan argues that one cannot dismiss the possibility and tries to dispassionately review the evidence. The key thing, it seems to me, is understanding what it means to say that something like intelligence is unevenly distributed among racial groups. This is where the popular misunderstanding of things statistical gets us in trouble.

To say that one group is more likely to exhibit high intelligence than another tells us nothing about the intelligence of any person. There will be so many counterexamples that it would make no sense to base any decisions about any person on such a claim.

As an example, I have heard it claimed that women are more likely to possess high verbal skills and men more likely to have higher spatial skills. (I suspect that sex differences present different issues than racial ones, but that doesn't undermine my use of them here.)Assuming that this is true (and I have no idea), I stand before you as a counterexample. I have high verbal skills but when it comes to understanding how things fit together, I am (and I think the Reddess will back me up here) a moron. There are a lot of guys like me and a lot of girls who defy the norm in the other direction. Averages apply to groups and not to individuals.

But we are understandably concerned that people won't understand that so we are reluctant to "follow the science" to wherever it leads. Thus, in Saletan's view, we have liberal creationism. He writes:

I wish these assurances {that Watson's statements hadn't "a scietific leg to stand on] were true. They aren't. Tests do show an IQ deficit, not just for Africans relative to Europeans, but for Europeans relative to Asians. Economic and cultural theories have failed to explain most of the pattern, and there's strong preliminary evidence that part of it is genetic. It's time to prepare for the possibility that equality of intelligence, in the sense of racial averages on tests, will turn out not to be true.

If this suggestion makes you angry—if you find the idea of genetic racial advantages outrageous, socially corrosive, and unthinkable—you're not the first to feel that way. Many Christians are going through a similar struggle over evolution. Their faith in human dignity rests on a literal belief in Genesis. To them, evolution isn't just another fact; it's a threat to their whole value system. As William Jennings Bryan put it during the Scopes trial, evolution meant elevating "supposedly superior intellects," "eliminating the weak," "paralyzing the hope of reform," jeopardizing "the doctrine of brotherhood," and undermining "the sympathetic activities of a civilized society."

Jonah Goldberg suggests that Saletan must have wanted some hate mail for Thanksgiving.

Wondering about Rudy

The Reddess and I have returned from Federalapalooza in DC. There has been some commentary in the press and on the blogs over Rudy Giuliani's speech on Friday. It was an impressive talk. Most of the sophisticated commentary has focused on what he was trying to say to conservative and libertarian lawyers. That message can be summarized as "Scalia/Thomas/Roberts/Alito." Others have remarked on his references to God, but, as Ann Althouse points out, much of that was in the context of the conference's theme of American Exceptionalism, built around Ronald Reagan's invocation of America as a shining city on a hill.

What struck me about the speech is how well delivered and calming it was. It had it's share of applause lines including a call to save the world from Islamic terrorism which, if you'll forgive me, just about blew the roof off the Mayflower Hotel. But the overall impression was one of reasoned optimism. I know that Hillary can beat this guy but I having a hard time seeing how.

But would he be a good President? I am getting close to taking the Rudy plunge. At the National Review reception later on Friday, free speech advocate Jim Bopp gently suggested to me that this was (and he used the word) crazy. My belief (and maybe it is a hope) is that Giuliani understands the need to accede to the wishes of the base on social issues. He can be "personally" pro choice and take a more liberal position on other social issues, but he can't seek to change the platform or seek to further his views through the exercise of federal power.

There are problems with this hope. The first is, as Bopp points out, it may not be true. Giuliani still has work to do here. During Friday's speech, he invoked Kelo, Grutter, McCreary and the 9th Circuit's decision in Newdow as examples of judicial license. But Roe, the ur-case of judicial overreaching, was absent from that litany. While I don't think that the executive ought to be telling the judiciary how to decide cases, he's going to have to convince the base that he believes that a judge who would think Roe is good law (or believes that this error is beyond correction because of some notion of super precedent) doesn't understand what a judge ought to be doing.

But I actually believe that judicial appointments are the last thing that social conservatives have to fear from Giuliani. This guy has enough chops as a lawyer that it is easy for me to believe that his judicial appointments will not simply reflect his politics.

The larger problem is that social conservatism will lose the active support of the executive. I think that's indisputable, although I also believe that much of this is properly left to the states.

But here's the problem. When Giuliani suggests that national security and 200 federal judicial appointments are potentially overriding issues, he is right. Does the pragmatic case for Giuliani outweigh the philosophical case against him?

Is this really an "ethics" problem?

The Cap Times is after Supreme Court candidate Mike Gableman for "personally soliciting" contributions to his campaign. Gableman apparently had a personal message on the same page where one could make an on-line donation. One Wisconsin pronounces this "troubling."

The Judicial Code of Ethics prohibits candidates for judicial office from personally soliciting campaign contributions. It would pretty clearly be improper for a candidate to call and ask for a contribution or to write an individual letter seeking donations.

James Alexander of the Judicial Commission won't say that the site violated the rules but then is reported as having gone on to say that the prohibition is clear and that a personal solicitation is a personal solicitation. If the report is accurate, he is clearly signalling that he does think the rule was violated.

The rule may be uncomplicated, but whether that prohibition is violated by a message placed on a web site is quite another matter. Gableman's message was personal but was it a solicitation? Justice Butler's website also permits on-line contributions, although it, at least as of now, has a disclaimer that the request comes from "Friends of Louis Butler" and not from Justice Butler himself. That's a good lawyerly way to do it but does it really differ substantively from Gableman's site?

If the rule is designed to prevent donors from feeling pressured by a personal entreaty from a judge, is that concern implicated by a statement on a website? One can, I know, always fall back on that source of legal mischief - "the appearance of impropriety" - but that strikes me as lazy. Why does a canned statement that is directed to no one in particular and which conveys a message ("I want your support") that is implicit without it create a greater appearance of impropriety than setting up an organization that uses your name to actively solicit funds on your behalf?

Neither candidate has made a request for contributions directed to any particular individual or group. Both have allowed their name and image to be associated with a request for funds, although it's hard to imagine how anyone could raise money for a candidate without mentioning his or her name. Gableman's campaign has quite correctly modified the site to take down the message attributed to the candidate, but I think that the virtue in that is the avoidance of any technical questions rather than the avoidance of any real or apparent impropriety.

The Shark goes to Washington

The Reddess and I are in DC for the Federalist Society's Annual National Lawyer's Convention. It is a cornucopia of legal nerdiness, close to heaven for someone like me. One of the things that the Federalist Society always does is invite speakers with perspectives other than the conservative or libertarian approaches of most of its members. Yesterday afternoon, for example, I attended a discussion of whether the Establishment Clause, given it's history and purpose, is properly understood as a federalism provision. One of the panelists was Marci Hamilton, who I think is fair to characterize as a separationist scholar.

Last night, there was a black tie dinner at Union Station. The President addressed the group, followed by Justices Scalia, Thomas and Alito (the Chief is speaking today) and former Attorney General Ed Meese. Karen (who was particularly smokin' last night) and I sat with some lawyers at McCarter & English, a law firm that I work with, and Boston Globe columnist Jeff Jacoby who I suspect will get a piece or two from the proceedings.

Bush spoke about the judicial confirmation process and it certainly does seem to be broken. I do not believe that it is inappropriate for the Senate to reject nominees because of their judicial philosophy but I do wish that it would act with a lighter hand and greater candor. If you don't like Charles Pickering because he is too conservative, then oppose him on that basis. But don't pretend that he is some kind of racist.

Obviously this was a friendly crowd for all of the speakers, but Justice Thomas (who delivered some wonderful remarks about the value of courage) clearly has the heart of this group. Part of it is his own courage and the shameful way in which he was treated, but I think part of it is his own intellectual rigor. In any event, he was greeted like a rock star.

MPS is dancin' across the USA

As I prepare to head off to Washington DC for a conference, I am a bit reluctant to comment on the MPS travel issue. Local blogger and teacher Jay Bullock points out that it's a small amount of MPS' budget so why worry? I agree that there are more troubling aspects of the district's budget (we might start with fringe benefits that come far too close to salary), but his reaction is instructive in a way that gets at what bothers folks about MPS in particular and government in general.

MPS claims to be short on revenue. I was part of the senior management team in a business that was short on revenue during the economic slowdown that began in 2000.
Managers turned the budget upside down to wring out cost. There were not categories that were "too small" to matter and travel was rigorously scrutinized. It is hard to do that. It requires doing things that you would prefer not to do. We were driven to it by the lack of an alternative. What could drive MPS to do the same thing other than public scrutiny?

I don't believe that MPS never needs to send people to meetings in faraway places, even attractive ones. What is galling is that a district that pleads poverty doesn't appear to have been very careful about when and where it was necessary to do so. This not only sends a bad message, but it suggests a comparable lack of care about other larger parts of the budget.

Jay is now upset that the District's new policy on travel, adopted in response to the news report, is too rigid and it might be. He thinks that TMJ's I-team ought to be ashamed of themselves for ... what? Reporting the truth? Maybe the real blame lies with an administration that now has to overreact to a report of their own sloppiness.

Howard Dean's Papal Bull

Eugene Volokh says that Howard Dean has announced the theology of the Democratic Party. Here's what Dean said:

"This country is not a theocracy," Dean said. "There are fundamental differences between the Republican Party and the Democratic Party. The Democratic Party believes that everybody in this room ought to be comfortable being an American Jew, not just an American; that there are no bars to heaven for anybody; that we are not a one-religion nation; and that no child or member of a football team ought to be able to cringe at the last line of a prayer before going onto the field."

Professor Volokh has what we might call a jurisdictional problem with this. It is one thing for Dean to call for civic equality, but quite another for him to make an assertion about salvation. Political parties ought to support the former, but should have nothing to say about the latter.

I actually think Dean was trying to make a secular claim but he's not very good when talking about religion. Still, given the regnant view of church and state among the American left, it may be impossible for him not to make a theological statement as well.

If you believe that government ought to do a lot of things for people, e.g., teach their children about morality and sex, cure their chemical dependencies, enforce attitudes about homosexuality, etc. (and, to some extent, we all believe this now), then what it does will raise questions to which religious people have faith-based responses. To rule out those responses, is to imply a judgment about them, i.e., they are wrong or irrelevant. That is a theological position.

Of course, Dean's statement about Republicans is silly. The GOP does not take the position that we are a one-religion nation or that non-Christians are bound for damnation. But we pay attention to the Governor more for typology than instruction.

Facts are pesky

Why do people spend so much time trying to avoid the obvious? In a recent column in the Journal Sentinal, Patrick McIlheran points out that Milwaukee County government is burdened with legacy costs, spending three times as much on health care for retirees than it does on the parks.

This has obvious implications for county government today. But. over at the folkbum blog, a blogger known as capper wants to deny that. The health care benefit was discontinued for all employees hired after 1995. It's the fault of doctors and hospitals because capper, having apparently freed himself in Plato's cave, just knows that they charge "too much."

If you max out your credit cards, Christmas won't be very extravagant. That the credit card companies have cut you off or charge you too much interest will not be of immediate help.

I've said it before and I will say it again. County politicians and public employee unions destroyed Milwaukee county government. We will see more of this in the future with other governmental bodies as current bills for lavish pension and retirement come due. No matter how you feel about the proper role of government, this is a fact that needs to be faced.

Football weekend

The Reddess and I spent the weekend at Camp Randall and Lambeau Field. My brother-in-law and niece actually did us one better, joining us for the Badger and Packer games and squeezing in Mequon Homestead's state semi-final game against Stevens Point in Appleton.

I don't know what colors to wear today.

Why Giuliani will be embraced by the right

John Nichols thinks there is some type of hypocrisy in Pat Robertson's endorsement of Rudy Giuliani. It's always dangerous to write about people that you don't understand.

Politics is the art of possible. No one who doesn't show up when you look in the mirror is likely to be perfectly acceptable. So you must set priorities and make decsions based upon what is most likely to do the most good in the real world.

For social conservatives, the top ten considerations in a President are judicial appointments. Once you understand that, all will make sense.

The Jensen decision

The Court of Appeals' reversal of Scott Jensen's conviction doesn't end the case. He can be tried again. But it is not quite right to suggest, as at least one blogger has, that the court acted on a technicality that is unlikely to affect the outcome.

The conviction was reversed because the court of appeals concluded that the instructions to the jury amounted to a imposing a mandatory conclusive presumption on the issue of Jensen's intent to obtain a dishonest advantage. Briefly the court told the jury that using state resources to obtain would be a dishonest advantage but it did not sufficiently qualify that or otherwise make clear to the jury that it must still find that Jensen intended to obtain that disadvantage.

For this reason, the court also found that the trial court may have erred in excluding Jensen's testimony that he understood that the Democrats do the same thing. While, on remand, the trial judge is free to attempt to articulate a rationale for keeping this testimony out, it seems unlikely - given the court's ruling on intent - that he will be able to do so. Jensen's understanding of what the Democrats did, the Court of Appeals acknowledged, would seem to go to whether he intended to obtain a dishonest advantage as opposed to simply staying even.

Perhaps the court of appeals (rather belatedly in my judgment) has finally gotten at what has been wrong from the beginning with prosecuting political leaders for doing what all of them have done forever (and, yes, I include Chvala and Burke in this.)

Blogging the Military Commissions Act

I would not have voted for the Military Commissions Act in the form that it passed Congress. One of the problems with the law of the war on terror is that we can't really frame it as exactly like war or exactly like law enforcement. There are ways in which it is like both and we need to develop a hybrid legal regime in response. In attempting to do this, I think the administration has, from time to time, missed the mark.

But here in Wisconsin's political blogosphere, I have noted that a few of our friends on the left side of the virtual divide have repeated the claim that the Military Commissions Act repeals habeas for citizens and non-citizens alike.

Lots of people on the left say this, but it is untrue. In fact, it is not even arguably true. The MCA does have an extremely broad definition of "unlawful enemy combatant" that could be applied to citizens. I don't like that definition at all.

But ... the definition is adopted for the purposes of the Act and the Act provides for trial by military commission and the suspension of habeas for "alien enemy combatants." In other words, the Act limits these operative provisions to people who are both unlawful enemy combatants and aliens. The commission and habeas stripping provisions quite clearly do not apply to citizens.

Some people have argued that a President might use the definition of unlawful enemy combatant in a number of unsavory ways and I suppose that he or she might. But nothing in the Act empowers him or her to do so. The definition, while overly broad, by its terms applies only to the newly created Chapter 47A which provides for military commissions and strips habeas for alien enemy combatants.

What about the Clinton campaign is inevitable?

Whoa, Nellie and buckle your seatbelts, Fighting Ed Garvey isn't sure that the Democrats are going to win in 2008. That cow hasn't left the barn and the fat lady hasn't sung. The fat cats might use all their dirty money to get in the hen house and steal the election from folks like "us." Ed don't believe in riches, but you should see where he lives.

But hold your horses! Ed might be right on this one. At least on the Dems not winning. John Edwards attack ad on Hilary Clinton - an extraordinary montage of real and exaggerated (he is John Edwards) duplicity may have demonstrated something that most Democrats fear. It is far from certain that this woman can ever be elected President. The problem is not so much that she dissembles. Every candidate does that. It's that she seems bound and determined to do it so transparently. It is hard to think of a successful candidate as unlikeable and patently insincere since Nixon and the exposure of presidential candidates has multiplied geometrically since then.

It depends on what the GOP does and you can never count the Clintons out, but I'm having a hard time envisioning a Clinton win over Giuliani.

You were made for me

Want to HAve sex with your robot? Or, if you are more traditional, how about marriage? Some predict that you'll be able to do the latter in Massachusetts by the year 2050.

My first reaction was can I get one that looks like ...

No.

My second was to wonder what purpose of marriage would be served by making a covenant with something that can be programmed to do or not to do whatever you want? But if marriage is about sanctification of your choice, I suppose so.

My third reaction might have been that this is all so silly, but then, perusing the programs for the January meeting of the American Association of Law Schools, I saw that one of the programs available to me is a panel on the "Margins of Legal Personhood" sponsored by the Section on Jurisprudence. I expected the discussion to be about animals and fetuses and they are in there, but there's more:

This panel explores those “entities” that lie at the boundaries of legal personhood. Specifically, how should the law treat animals, artificial intelligence, fetuses, and psychopaths? And do our views about how to treat one entity commit us to similar treatment of another? For instance, do our views about the treatment of animals inform our understanding of abortion? If we would not hold artificial intelligence criminally responsible, does the same reasoning hold for psychopaths? During this panel, each speaker will discuss one of these “entities” and then the panelists will engage in a discussion of the connections between their theories.

The inclusion of psychopaths gives me a start, but that's another issue. Are all robots created equal? I'll tell you in January.

H/T: David Wagner

Kunst über Arbeit

Undaunted, Whitney Gould returns to the Grohmann Art Museum at MSOE. She really doesn't like it. Why, it even has a kraut "Kaiserkopf" dome, (Actually, it looks more like R2D2 to me.)

I am interested, however, in how one treats "Nazi art." As we know from last week's proceedings,, Gould and a colleague had an front page piece of Riefenstahlian proportions in the Sunday Journal Sentinel (10/28) pointing out that one of the artists featured in a exhibit of paintings about "Men at Work" had a number of those paintings commissioned by the German Chancellery during the Third Reich.

I don't believe - and I don't understand Gould to argue - that we ought to ignore Nazi art. I can't speak on the Mercker paintings at the Grohman, but Leni Riefenstahl's films Triumph of the Will and Olympia are stunningly good (if overlong).

But, at the same time, they are odious and, in a way, that makes them interesting in a different way. How does genius get subordinated to evil ends? That it can ought to tell us something about the limits of human invention.

So I actually agree with Gould's suggestion today that the provence of the Mercker paintings ought to be made clear. I think it would improve the exhibit for viewers to know that the muscular industry portrayed by them was placed in the service of evil.

Begging the question

This interview with UW bioethicist Alta Charo averts the eyes from the elephant. I am sure that, as a bioethicist, Professor Charo understands that science does not control the moral issues surrounding technological advances. One wishes that she would have managed to say that. When asked why Republicans are "afraid" of science (there's an insightful question!), she explains that science, because it relentlessly follows the data (itself a type of faith claim), may place pressure on certain aspects of religious belief. (Of course, it may bolster others.) While that is true , it doesn't seem to get us very far with the issues that roil the area of "science and religion" today.

Social conservatives don't "fear" science. They do assert that simply because things can be done does not mean that they ought to be. They assert what former Bush speechwriter Michael Gerson calls a transcendent basis for human equality is not undermined by scientific advances that allow new manipulatons of humans. Professor Charo need not share these beliefs, but she can't claim that science has much to say about them.

Professor Charo says that she thinks it's a shame that the issue of embryo-destructive stem cell research has focused on the fact of the destruction rather than the purpose for the destruction because most of these embryos are the product of embryos discarded by IVF clinics. This argument from fait accompli has always struck me as a bit of a bait and switch. Here's a thought experiment: Would Professor Charo support a law restricting embryo-destructive research to those embryos that are discarded by IVF clinics? If she won't - or advocates of expanded embryo-destructive research would not, then don't these moral claims about destruction remain in play?

Do hard cases make bad law? Phelps and funerals

A jury in Baltimore has awarded $11 million dollars to the family of a serviceman killed in Iraq whose funeral was picketed by Fred Phelps and his "Westboro Community Baptist Church" (a group consisting largely of Phelps' extended family.) The family alleged that the picketing - which apparently took place 1000 feet from the funeral - constituted invasion of privacy and intentional infliction of emotional distress.

Fred Phelps and the fellow inmates of the Westboro Asylum are an obnoxious bunch. They picketed my church a few years back and they are both disgusting and scary in a Night of the Living Dead type of way.

But is allowing this case to go to a jury and permitting that jury to award damages constitutional? If it is, then could the family of a wounded soldier picket Code Pink protestors for demonstrating outside the Walter Reed Army Medical Center?

I think you do have to answer the question

Jay Bullock doesn't want to say how much taxation is too much. He'd rather ask how much government we need and then allow the tax thing to take care of itself.

Jay has a point in that government is presumably something that we decide to fund because it provides things that we want and what we want certainly has to be part of the equation.

But, I think, a consideration of how much taxation is too much has to be part of that calculus. Jay offers two examples. He says that a business does not set a price point before it knows what it wants to sell. That is true, but determining what you want to sell (and how much profit you want to make) does not establish the price point. There is an external restriction. I can't charge more than people are willing to pay for whatever it is that I want.

Now Jay may well respond that determining the size of government is the equivalent of someone deciding what they are willing to pay for, but there is a difference. Taxation is imposed at the barrel of a gun. While I agree that taxation is not theft, it is a mistake to treat it like it is voluntary or chosen by all those who are asked to pay it. This is particularly true where taxation is progressive. Whatever it's other merits (and it has some), progressive taxation suffers from the ills associated with asking someone else to pay for what I want.

Those ills - or, if your prefer, concerns - fall into two categories. One is fairness. How much can I ask someone to contribute to services that he neither wants not will receive. Certainly there is a limit.

Second, how will the imposition of this level of taxation affect society? The idea that one can simply tax and not effect the manner in which people behave is just as "unscientific" as young earth creationism.

Jay's other example, constructing a class curriculum, helps to illustrate the point. He thinks that upper and lower limits on "homework" don't mean much when he is putting together a syllabus. That is certainly not my experience. When I plan a course (and I'm putting together two right now), there are all sorts of external restrictions. The semester is only 14 weeks. The course is two, three or four credits. The capacity and willingness of students to absorb material is not unlimited. Students have other obligations.

So I don't think the question of "how much is too much" can be subordinated to the assembly of our wish list.

In fairness to Jay, he does acknowledge that there must be some limit. He just seems to think that it's awfully high. (Apparently 91% marginal rates don't shock his conscience even though, when they existed, few people actually paid them.)

In the end, he responds to the question that he won't answer with one of his own. Taxes he says are a means to the end of government services. I disagree in that government services are also a means to some desired result.

He wants to know what we should do about the poor performance of MPS:

If so many students are currently failing in a well-funded, well-organized, tightly-regulated school system staffed by generally very talented and compassionate teachers, what would you replace it with? What would you cut, change, rearrange, or do differently to achieve different results? If the superintendent's requests above aren't going to make a difference, what will?

If we see MPS as a means to education, the answer may well be that no additional input to MPS will do much of anything. That's certainly the impression I seem to get whenever I talk to someone who actually works there.

Driving down to Marquette this morning, I heard Gwen Moore interviewed on WMCS. She talked about child care being a "bottomless pit of need" and, based on her comments during the interview, I think she sees the entire world that way with government being the only way to meet those needs.

It struck me, though, that much of what she wants government to do for kids are things that one would normally expect their families to do. Government, in her view, ought to be a sort of surrogate family.

I can understand, in the face of substantial family breakdown, why she would feel this way. The problem, it seems to me, is that the government makes a rather poor surrogate family. Shouldn't the emphasis be on resisting, rather than accommodating, family breakdown?