Having A Beer With The President

First of all, the Henry Louis Gates arrest is not, and never was, an incident of national significance. It says nothing of importance about the state of race relations in the country that someone apparently breaking into a house in Cambridge, Massachusetts would attract the attention of the local police, regardless of the races of the suspects and officers involved. Accordingly, President Obama should have not commented on this at all.

Secondly, having stepped into this big steaming pile of unwinnable political dog shit, President Obama should have immediately extricated his foot and moved on, and let the controversy simmer and die of its own accord, which it would have by now. Instead, he invited both the cop and Prof. Gates to the White House to have a beer and talk things over, which is about the exact opposite of letting the issue go away on its own.

Thirdly, having reduced his office to the decidedly lowbrow role of First Ombudsman (while the fight of his early Presidency is going on over on Capitol Hill which, by the way, he's losing), the President could at least be Presidential about this. Obama doesn't strike me as a "have a beer and hang out" sort of dude to begin with -- and the White House isn't the sort of place where one goes to have a beer and hang out. That sort of place is called a bar.

Nor, by the way, do I get the sense that the American people want the White House to be that sort of place -- it's our equivalent of a royal palace, a place where we want important people to be doing important things, and when there are important social events with bluebloods, bigwigs, and other nations' governmental officials, we want the White House to be a showcase of the best that America has to offer. We want the White House kitchen to serve the best food, made from American ingredients and preferably made by an American chef, and accompanied by wine from an American vineyard. Social functions at the White House should showcase America well.

So since the White House should showcase the best America has to offer, any President, in my humble opinion, ought to be drinking better better than Bud Light -- given that beer is going to be served at a White House social function at all. And for this particular occasion, given that we're talking about a couple of guys from Boston, the White House ought to serve good beer made by the most famous brewer in Boston who happens to be one of the earliest proponents of the American craft-brew renaissance, Jim Koch of the Samuel Adams Brewery -- who would have made a special beer for the occasion, or probably could have been persuaded to offer a miniature cask of some of the best stuff his brewery makes. Maybe this is sort of rarefied stuff, though -- Koch advises this is to be served at about sixty degrees and in two-ounce servings, more like brandy than a traditional beer. Koch's brewery makes some fine product that can be appropriately consumed at cold temperatures and with larger servings, too.

But Bud Light? Come on. You can do better, Mr. President.

Besides, what are an Irish-American beat cop, a Harvard professor, and the President of the United States going to talk about anyway? The proper deconstruction of the Supreme Court's ambiguous holding in Grutter v. Bollinger with respect to ongoing domestic race relations? Or are they going to jointly figure out how the Red Sox could blow a twelve-and-a-half game lead over the Yankees? Either way, I'm not sure it's the best use of the President's time and political energy right about now.

Lex Est A Zelus Diligo

The lawyer's job is lonely, sometimes painfully lonely.

If you enter the legal profession, do it with your eyes wide open about what your future holds. There will be times you have to deal simultaneously with a judge essentially calling you an idiot and doing it in front of an opposing party who will thereby become emboldened and refuse to settle with you, an opposing counsel who doesn't even need to say anything out loud to demonstrate her opinion that the judge didn't go far enough, office equipment and computers not cooperating with you while you're facing a deadline, a client who is yelling at you about the bill based on something some other lawyer allegedly said to him about fees, astonishingly exacting and difficult court rules demanding irregular font sizes and heavy cardstock that your printers won't spit out cleanly, a superior lawyer riding you about producing more billable hours, a paralegal unhappy about having to work late and miss time with her kids so she can instead help you assemble 6,000 pages of record and hastily-drafted pleadings before a massively important filing goes out to a court the next day on a long-odds kind of gamble upon which hundreds of thousands of dollars are riding, resulting in staying late enough in the office that you start to smell bad because the air conditioning turned off four hours ago while you've been running around to try and get everything put together but when you finally do get home the person you love more than anyone else in the world yells at you for not calling in even after you said you'd be working late because you forgot to carry your cell phone with you the entire time all of this other shit was going on but you've got no damn choice but to keep on doing what you're doing because deep down you know you're right about this case even if literally no one else on Earth agrees with you and you feel a deep, powerful obligation to try your damndest to prove it.

It feels like there just isn't a whole lot of reward for all the stress of having to execute absolutely everything in your life perfectly, all the time. But there are powerfully unpleasant punishments waiting for you if you fail to live up to that standard. These are the times I ask myself, "Why THE FUCK does anyone sane voluntarily become a lawyer?" It's a very lonely feeling sometimes, giving it your all for a client because your own personal sense of professional ethics compels you such that you cannot do otherwise.

Things they will never, ever, EVER teach you in law school, lesson number eight: When you're a lawyer, no one will ever love you for what you do, not even your clients. The best you can hope for is that someone will love you despite what you do. So you'd better passionately love doing this job all on your own, because there is a good chance that on any given case, you will never get any kind of reward for pouring your soul out on a client's behalf other than the work itself.

If that sounds really good to you, then it's time to take the LSAT.

Purchasing Poppies Produces A Peaceful Planet

This is an opium poppy in bloom, almost ready for harvest. Opium poppies were originally indigenous to Asia Minor and Thessaly, and were allegedly introduced to Afghanistan by Alexander the Great during his conquests there.

This photograph was taken from a specimen grown in a garden in Derbyshire, England. The UK, France, and Australia provide the bulk of opium grown for legal (that is, medicinal) purposes, with the balance coming from Turkey, India, and China. However, Afghanistan is where 92% of the world's illicit opium -- that is, opium used to make illegal recreational narcotics like heroin -- is grown.

The opium is a product of the green bulb you see in the middle of the flower. As the flower matures, its petals will fall away and the bulb will grow larger and fill with sap. This sap is refined into a variety of products, one of which is heroin, sold to inner-city youth worldwide and consumed in great quantities by urban drug addicts in Europe and Japan, and increasingly the United States and Canada. The flower is planted in the wintertime and harvested in the early spring.

Today, al-Qaeda and the Taliban jointly control the opium markets in Afghanistan. They "tax" the sale of opium by the farmers, or buy it directly and then serve as the middlemen moving the harvested opium to refiners and global distributors. This is thought to be the primary source of money funding their operations. In 2006, Afghanistan produced a crop thought to be 6,100 metric tons of opium, which commanded a market price of $125 per kilogram.

Currently, the U.S.'s policy is to destroy a field of poppies wherever they are found. In theory, we are supposed to be working with the Karzai government of Afghanistan to encourage farmers in that war-torn nation to grow vegetables and other useful crops rather than opium poppies.

There are many problems with this policy. First of all, the Afghan government is simply not in control over much of its own territory -- which is either actually run by local warlords or is in the functional control of the Taliban. Certainly there is no effective way of getting cash out to these farmers to subsidize their growing broccoli and carrots.

Secondly, poppies are also much less water-intensive than vegetables or wheat. A relatively small patch of land can be used to cultivate the flowers and they do not need particularly level terrain (although flat land does lend itself to harvesting better than hillsides). Therefore they are a more versatile crop, less labor-intensive, and less water-intensive, than most vegetables or grains.

Third, the cash value of opium poppies far exceeds that of anything else that the land is good for, even with vegetable subsidies. $125 per kilogram produces a yield per hectare more than twenty times the value of wheat. The fact that the U.S. and British militaries are periodically destroying poppy fields decreases supply further, and therefore increases the market price for the plentiful poppies that make it to harvest.

So Afghan farmers have powerful financial incentive to grow poppies. And our policy, counter-productively, both increases supply and the profits going to the bad guys who are masters of the markets.

We need to change the policy. If we are audacious enough, we can solve several problems at one bold stroke. We should buy all the poppies we can get our hands on, direct from the farmers.

By buying the poppies direct from the farmers, we provide them with a ready, steady market for their crop. We also subsidize the daily lives of farmers in the countryside of Afghanistan, becoming their customers and benefactors and helping to fight poverty there. The farmers, in turn, do not have to pay al-Qaeda's tax when they sell to us. And we wind up with the opium instead of the bad guys.

What do we do with the opium? Well, I suppose we could make heroin out of it and sell it ourselves -- but obviously that's not a good thing to do and we're not going to do that. It's not only heroin that can be manufactured from the stuff. Morphine is also made from opium. So is coedine. These drugs are used for a wide variety of purposes, mainly as painkillers and anesthetics. So what we do is make medicine out of the opium, and either give it away or sell it. I suppose we could burn all the poppies we buy in excess of the medicinal demand.

Because we would control the raw material, we would be able to drive up the street price of opium worldwide to the point that most kids could no longer afford it -- making it, at worst, a luxury narcotic on the order of powder cocaine, and ideally, something rare and exotic. Most of the world's junkies would have to dry out and more importantly, a bunch of those junkies would never become junkies in the first place because the drug would be too hard to find and too expensive to buy.

How much would it cost to buy functionally all of Afghanistan's opium poppy crop? A good guess, to be sure. If Afghanistan produces a crop like it did in 2006, that's 6.1 million kilograms of heroin, at a price of $125 per kilo, or $762.5 million total paid to the growers. But if we begin participating in the market, we will drive up demand. And supply may well have increased from its 2006 levels -- from the 2005 crop to the 2006 crop, production increased by nearly half again what it had been, in no small part because the western powers supporting the government lost ground during that time. So we might easily be looking at a crop of as much a 10 million kilos of opium, with a market price of, let's say, $175 per kilo. That would mean that it would cost us $1.75 billion to buy all the opium in Afghanistan.

That's how much the "Cash for Clunkers" program will cost, when you include both subsidies to consumers and administrative costs. Would you rather have kind of a crappy car, or would you rather bankrupt the Taliban to the point they can't even buy bullets any more?

Health care reform, according to the Obama Administration, will have a price tag of $787 billion -- and the CBO says no, it will wind up being about twice that. I suspect that at that price, federally-reformed health care will be spending more than $1.75 billion on anasthetics alone.

Liberals love pricing programs in terms of weapons systems, so this one's for you, lefty Readers: We have 141 F-22 Raptors in the skies right now. We could have bought every poppy in Afghanistan for less than the cost of 6 of those airplanes in 2006, or 12 of them today.

The point is, for less than 9% of what it cost us to bail out Bank of America, we could starve our biggest terrorist threat of money to the point they couldn't even buy bullets any more. Fewer of our soldiers would be coming home from Afghanistan in coffins and fewer hotels would get shot up or blown up. We'd win the hearts and minds of farmers across all of Afghanistan, becuase we would be the ones paying top dollar for their crops, not the Taliban. We would have all the painkillers and anesthetics we would ever need to supply the world's medicinal needs and reduce the cost of our own health care reform efforts. And millions of kids around the world wouldn't be getting hooked on recreational poison and ruining their own lives because of it, since 92% of the supply for those drugs would be dried up.

What have I missed, Readers? I'm looking for the downside here and I'm just not seeing it. Someone please tell me why we aren't already doing this.

Frankly, I'm Relieved

At last, our long national nightmare is ended. Three days before training camp opens.

UPDATED: Noooooooo! It was so much better the way it was before!

Part Of A Continuing Series Of Critiques Of Bonehead Moves By Moveon.org

If moveon.org were serious about trying to advance clean air legislation, and if it were serious about keeping Democratic dominance over the Republican party, it would not be running this ad.

What, is Sarah Palin going to change her mind about the Clean Air Act because moveon.org put a negative advertisement about her on the internet? For Palin, being criticized by moveon.org is something good -- it's evidence that she still matters.

The better move for moveon.org would have been to use the same ad to put pressure on Republican members of Congress from closely-divided states or districts, who are opposing the laws they are trying to advance. They would not use Sarah Palin as the personification of the Republican Party; they underestimate the degree and manner which their political opponents will reflexively and unthinkingly react to criticism of St. Sarah of Wasilla.

What they should do is treat Palin as what she is -- politically irrelevant -- and focus their energies on people who are vulnerable to the kind of pressure that moveon.org can bring, not to spend those energies on people who will profit from their attacks.

Doggie Personal Ads

OH BOY ANOTHER DOG MY FAVORITE! Easily-excited neutered GerShep mix gets very excited to meet new dogs, come over for play and friendship! Enjoys speaking, sitting pretty, rolling over, and playing dead for treats, chasing sticks, humping other dogs, eating people food. Squirrel! Box 087713.

Male Golden Retriever seeks female of similar size, build for exercise, play and more???? Interests include playing fetch, eating people food, and harassing household cats. Box 133932.

ME: Fem. Daschund, territorial, likes to do tricks for treats and people food. YOU: Submissive male, Beagle-sized, spayed or neutered, with access to people food, enjoys being licked obsessively. US: Non-breeding companions chasing squirrels and barking and neighbor dogs and passing skateboarders together. Box 310027.

ARF ARF ARF ARF! Neutered Collie mix, sedate, seeks similarly-mooded dog for companionship and shared body warmth, sporadic bursts of activty when doorbell rings. Access to people food a plus. Box 299615.

LET ME SMELL UNDER YOUR TAIL! Active, curious Jack Russell terrier (spayed) seeks pug, schnauzer, or other JRT for tug-of-war, ball games, wrestling with gentle biting and ear-tugging, barking contests. Bring people food! Box 192581.

PORT. WATER DOG seeks poodle or other water-loving companion to share home with pool. Enjoys clogging drains with shed, chasing birds, people food, and sleeping on the couch when people are out of home. Box 208549.

ARE YOU THE LEADER OF MY PACK? Submissive greyhound mix seeks friend with strong herding instinct. Also enjoys people food. You must not bite to assert dominance but wrestling is OK. Box 099813.

Tri-State Killing Spree: The Cocktail

Equal parts Citrónge, Stolichnaya, and Cuervo Gold tequila. Add a dash of Coke (black, like your heart), a twist of lemon (simultaneously bitter and sweet, like the feeling when you take life), and then float grenadine on top (red, like the blood of your victims).

The hamfisted bartender at Red Lobster does not understand how to float things, but it tastes the same at the end. He also thinks that everything is served in a pint glass as a default. Two pints of these babies will do you just fine.

Frustration

I had a very bad ruling today in a significant case -- one that I'm convinced I should have won, or at least won most of. Instead, I got dissed by the judge, who proceeded to remind me that he was dissing me in a polite, impersonal, professional sort of way.

They don't teach you in law school how to break bad news like that to your client. That's all on you, baby. My bedside manner today included explaining that the whole thing left me mad enough to launch a tri-state killing spree.

(Tri-State Killing Spree, as it turns out, is the name of an album by a Tex-Mex psychedelic country-surf rock band called The Cadillac Hitmen that, so far as I can tell, is entirely instrumental. Of the samples I listened to on their website, I think I like the wonderfully-titled track "El Gringo Muerte" the best. "El Gringo Muerte" is pretty much what I feel like right now.)

As for my own emotions at having poured so much work and effort into the effort to defend my client, well, I guess I'm supposed to just roll with the punches and be proud of myself that I went down swinging. But indulge me in my frustration for a moment, Readers. If I'd known the court was going to treat my argument this way, I wouldn't have made the motion at all and tried to find a more productive way to use my client's resources and my own precious time. Like teaching my cats political theory.

I need a drink and some food that's spent some time immersed in hot oil. I'll eat nothing but weeds tomorrow to make up for it, but not tonight.

The Worm Turns

Today, we have a good example of why conservatives were foolish and short-sighted to reflexively support everything the Bush Administration ever did. It was, at minimum, bad politics for Dick Cheney to meet with energy industry officials, and it made for bad law when the FOIA claim for details about that meeting went all the way to the Supreme Court.

At the time, conservatives said that Cheney had done nothing wrong and ought not to have to disclose facts about the meeting. Executive privilege was cited. Liberals were outraged and demanded openness in government. And at least one Supreme Court Justice, who actually did nothing objectively questionable and whose ultimate decision was made on principled grounds, got a bunch of egg on his face and issued a twenty-two page diatribe whining about being embarrassed by the public criticism of his having gone hunting with Cheney several months before the case came before him.

Now, the Obama Administration is using the exact same argument to shield from public disclosure facts and evidence about meetings with healthcare and drug industry officials and -- well, we don't even know who in the White House they even met with, or how often, or for how long. Because apparently, that information will have to be extracted by injunction rather than through voluntary compliance with the law or even the President's campaign promises for open government and to have C-SPAN cameras trained on him as he fashioned health care reform policies.

The reason the Obama Administration can do this is the Bush Administration did it first. Obama is breaking no new ground. Conservatives are powerless to argue against the legality of keeping the meetings secret, having argued for the secrecy of functionally identical meetings only four years ago. This is why you don't defend the indefensible, even when (you believe) the indefensible is being deployed for a good objective. Sooner or later, someone else is going to come along and use the same indefensible tactics to do something you don't like.

Most Democrats, by the way, seems strangely silent on the issue of Obama's outright violation of his campaign promises to open up government to public scrutiny. "What, he just said that to get elected?" Of course he did. And the resulting policy is going to stink as much as the other policy created in this fashion did.

Meet the new boss, and all that.

It's In Their Natures

I had Republican friends who worried that after the 2008 elections, the Democrats would embed themselves to become a permanent majority. I was calm, however; confident in my belief that it would not be long before the Democrats overreached and lost public support. And it's happening right now.

My confidence came from a simple understanding: partisans and idealogues overreach when checks against their power are effectively removed. This is true for partisans and idealogues on the right and equally so for partisans and idealogues on the left. Effective competition from the other side makes the majority stay on its game and offer policies that appeal to a broad segment of society. A lack of effective competition produces one-sided policies intended to please ever-more extreme segments of one's own pre-existing support group.

The solution is, unfortunately, both dull and beyond our immediate grasp: we must defeat hyperpluralism and elect politicians who are both not ideologically polarized and whose political futures invests them in the art of compromise. This, of course, was a pipe dream even when Madison argued for it in The Federalist No. 43. Won't ever really happen. Seriously, what can be done to encourage it to happen?

We can talk about moderation, the virtues of compromise, and the evils of gerrymandering. But oversimplification of issues, exploitation of irrelevant emotions, and fixing the rules to your personal advantage -- these things are easy and effective in the short run. Therefore they are the fabric of our political life. As things stand right now, it appears that neither party believes they have an incentive to make an appeal to moderates, and when moderates hold their noses and pick one option or the other, the partisans take that as a categorical rejection of everything the opposition stands for and, therefore, a ringing endorsement of everything they stand for.

But a vote for John McCain was not automatically a rejection of every policy platform offered by Barack Obama, or vice versa. Rather, it may well have been the result of a voter balancing of a number of factors since both candidates offered a mixture of good and bad policy options within their platforms. That is neither a mandate to the winner nor a lot of fun for pundits to talk about. Reality, though, is often more hard work than it is fun.

So I can call on Democrats to either make a better pitch for the health care program that they're trying to sell or to modify it so that it becomes more acceptable to the majority of the people. But right now, they have no need to listen. Given that Congressional leaders find the idea of actually reading or even comprehensively understanding the legislation they're voting on to be laughably unimportant, and the Vice President seems to sincerely believe that we not only can spend our way out of debt but that it is imperative that we do so, it is clear enough to me that considerations of actually crafting good policy are so far down on the list of political incentives motivating our leaders in Washington that they are effectively nonexistent.

Here are the real priorities: first, keep just enough people less displeased with you than the other guys so you can keep your jobs, and second, keep the screamers behind you quiet so they keep writing you checks. The first you can accomplish by making the other guy look even worse than you (which is not hard; typically your opposition will collaborate with you on this one), and the second you can accomplish by finding things that will placate small groups of screamers.

For those of us who don't particularly like screamers, well, maybe we need to find something to scream about because no one's paying any attention to us.

Defrauding Voters For Jehovah

A campaign of revisionists is attempting to persuade residents of Tampa and St. Petersburg, Florida that there is no such thing as separation of church and state, paid for by self-styled "activist" Terry Kemple.

By the way, of course there is such a thing and Kemple is simply wrong. He and his fellow revisionists pounce on the fact that the exact, particular words "separation of church and state" are not in the Constitution. But neither are exact words like federalism, individual rights to own handguns, the right to travel freely from one state to another, or the requirement that a person charged with a crime be arraigned. The concept is quite obviously there, even if those exact, particular words are not. To say the concept is not there because the words are not there is to willfully blind yourself to both the words, intent, and goal of the First Amendment under the doctrine of "textualism" taken to a degree that not even Antonin Scalia could endorse.

But I digress.

Now, here's the thing. The only substantial, direct support that non-separationists can claim for the proposition that America was explicitly founded as a Christian nation is stuff that they either materially misrepresent, or stuff they just make up out of whole cloth. Take, for instance, the claim by Congressman Randy Forbes of Virginia that every state in the nation includes an acknowledgement of God's authority in their constitution. One claim is made that Alabama's original constitution contains this language: "We the people of the State of Alabama ... invoking the favor and guidance of Almighty God, do ordain and establish the following Constitution ..."

Thing is, this language is not found in Alabama's original Constitution, written on its admission to the Union in 1819. In fact, that language is found in the constitution of the state of Alabama enacted in 1861 -- upon Alabama's secession from the United States of America and entrance into the Confederacy.

Religiosity, not patriotism, may well be the actual last refuge of scoundrels. The state of Alabama did not invoke God as authority for its Constitution until it had already committed treason -- treason motivated to its fundament by the desire to preserve its morally abhorrent "peculiar institution" as an "economic liberty" of its people.

Another systematic debunking of the lies, misrepresentations, and deceptions relied upon by "Christian nation" advocates to back up their spurious, groundless, contralibertarian, and potentially dangerous claims, can be found here.

So what about these folks in Tampa? Well, here's the money quote from deep down in the article:

The billboards showcase quotes from early American leaders like John Adams, James Madison and Benjamin Franklin. Most of the quotes portray a national need for Christian governance.
Others carry the same message but with fictional attribution, as with one billboard citing George Washington for the quote, "It is impossible to rightly govern the world without God and the Bible."
"I don't believe there's a document in Washington's handwriting that has those words in that specific form," Kemple said. "However, if you look at Washington's quotes, including his farewell address, about the place of religion in the political sphere, there's no question he could have said those exact words."

LIAR! And you admit it!

Mr. Kemple, what would Jehovah think of that (that is, if He really existed)? I say, the fire-god in the sky would point you to one of those ten injunctions -- you know, the ones that people like you are so intensely fond of posting in governmental buildings with public money -- you'll recall, I hope, the particulare the one about "bearing false witness."

Or is it okay to tell a lie as long as the lie you tell is in God's favor? See, not being a Christian, this sort of theological hair-splitting is confusing to me. Maybe you can educate me about that. Of course, you won't ever convince me of the morality of lying to the public to get them to change their political behavior -- and if you convince me that Jehovah would sanction this sort of thing, I'll use it as a further indictment of the moral bankruptcy of that version of the religion you claim to espouse.*

Either Washington said those words, or he didn't, and putting them in quotes is a claim by you that he said those words. If he didn't say them but he meant them then you need to do some scholarship, citing actual things he did say, to back up the proposition that his intention was congruent with what you say he said. But do not put something in quotes and say it's what someone really said when it isn't and especially not when you know it isn't.

It's one thing to bad a bad scholar and get a quote wrong through an honest mistake, inadvertence, or excusable neglect. That's called "bad scholarship."

It's another thing to have reasonably relied on bad scholarship. That's called "being misled."

But when you say something that you know is not true and you intend that people believe and act as though it were true that's something else entirely.

We in the law business call that sort of thing fraud.

Your pants, Mr. Kemper, are on fire. This is not and was never intended to be a "Christian nation." It is a nation, a majority of whose citizens happen to be Christians, in which individual people are free to be whatever they want, including atheists. The fact that you need to lie to justify a contrary proposition is proof of your claim's vapidity.


* Many Christians are very honest, good people. Certainly, not all Christians feel the impulse to lie as a means of currying God's favor, or if they do, they don't act on that impulse. But this guy apparently does, and he therefore richly deserves to be criticized for it.

Like I Got Punched In The Face

I've had this stye on my eye for nearly two months now, right next to my tear duct. It's looked awful and even antibiotic ointment has failed to make it go away. But the worst thing about it is that it made The Wife nag me to go see the doctor. Well, eventually I had enough of that and gave in to her demand. A good date for me and the doctor could not be worked out for many weeks, and in that time the stye subsided but did not go away.

Well, today was, at last, the day appointed for the meeting with the doctor. I told The Wife I'd be fine and she should go to work, even though she offered to go with me. What I figured was, hey, the thing's going away on its own, more or less, and the doctor's going to give me some more ointment and that's it. Boy, was I wrong.

Turns out, after eight weeks, if it hasn't gone away, all the ointment and hoping in the world won't help it. It needs to be expressed. "Expressed" is a fancy way of saying "squeezed and drained not unlike the way a teenager would pop a zit on his chin." Only unlike a zit, styes form within your eyelid so you can't just reach in with some fingernails that have been cleaning grout from bathroom tile and preparing raw pork products all day long or the eyeball itself will get infected.

So the doctor gives me an anasthestic eyedrop. Then some anasthetic goop to smear inside my eyelid. Then a syringe full of a stronger anasthetic. Then another syringe full of a different king of anastheic that isn't quite as strong but is longer-lasting. By this time, half my face is numb, from my eyebrow to my teeth. Then he brings out a series of odd-looking medical tools and tells me to look up, away from where he's doing the work, which involves (in part) flipping my eyelid inside-out right next to the tear duct. I'll say this for him, the anasthetic worked; all I felt was some pressure. But it took him three tries going in to clean out all the disgusting fluid from my eye. Then, he bandaged up my eye with a gigantic white thing that covered half my face, and sent me on my way.

Well, I don't know if I'd had a reaction to one or more of the anasthetics or it was the stress of outpatient surgery, but my heart was racing like I'd just run a marathon. And I felt tired, deeply tired. Driving back to the office was, well, a challenge and I'm not especially proud that I did it at all with an eye under a bandage.

It was very challenging keeping my glasses on my face while I drove and tried to function. The anasthetic wore off and I took off the bandage. I looked and felt like I'd been in a fight; all the muscles and skin around my eye are sore and it hurts to blink. I can feel the hole where the syringe went in even if I can't see it. Eventually, my paralegal came into my office and said, "TL, dude, you're just sitting there. You can do that at home." That made me realize that the procedure had taken more out of me than I'd really anticipated or even had thought about. So I got my prescription for antibiotic eyedrops filled and went home.

Where now, I'm going to read for about an hour and go to sleep because despite going home early, I still feel like I got punched in the eye. Hopefully tomorrow is better.

It Was Twenty Years Ago Today

Twenty years ago (actually twenty years and three days ago), less than seven miles from where I'm writing this post right now, that a B-2 bomber took off on its maiden flight. The government didn't buy as many of them as originally thought and they haven't seen as much use as originally envisioned -- which is good, because they are instruments of war. It's not clear exactly how much they helped bring down the Soviet Union after they were created since the internal erosion of the USSR was well underway despite the fact that we in the West didn't know about it until September and October of that year. But it does seem that the B-2 was better than anything the Soviets had, and Soviet intelligence was surely passing that message on to the leaders who realized that they had been hopelessly outclassed, at a time that they knew they could not afford to play catch-up. In a way, the Apollo 11 landing in July of 1969, the first "first" for the Americans over the Soviets in the space race, started a process of the U.S. gaining superiority over the Soviets that perhaps culminated in the B-2's launch. Shortly after the sinister black flying wings proved operationally capable it became evident that they could fly anywhere in the world with effective impunity. Along the way, research and development to create the B-2 advanced composite materials technology that today is used to create things from satellites and weapons to bicycles and convection ovens that must be strong, light, and heat-resistant. And they're really cool-looking, too. Amazing that these airplanes, still the most impressive thing in the skies, are twenty years old and still a significant part of our military arsenal despite the original mission of the aircraft becoming obsolete only two years after the maiden flight. It's important to remember that the development of new technologies is something that should be done even if the immediate military mission of the technology is something that seems short-lived.

That debate is going on now in Washington over the F-22; American air superiority right now appears to be so far ahead of anything anyone else has that there is no point to building a next-generation air-to-air fighter. Zero American F-15's have been shot down by either surface-to-air missiles, flak, or enemy aircraft; the F-15 is undefeated and the only planes we've lost have been to maintenance problems, pilot error, and foreign object damage like bird strikes. After a very short time before both wars against Iraq, air superiority fighters have turned into mini-bombers since it didn't take long for our massive airpower to own the skies. So why do we need a new generation of air superiority fighters at all, when the existing planes seem to work just fine? The answer is, we don't know and we can't know because we can't predict the future. We don't know if the Russians or the Chinese or someone else is going to come up with something we haven't thought of us and putting the best birds we can into the air is the way we stay ahead of the power curve. We don't ever want to be in the position the Soviets were twenty years ago, realizing that our adversaries have something we can't do anything about.

The B-2 was expensive in 1989 -- Democrats began measuring good social spending in two-billion-dollar units of "the price of one B-2 bomber" -- and the F-22 is expensive now. But being the world's foremost military power is something that cannot be overvalued. We have several keys to this enviable position: two oceanic borders, a strong economy and a strong educational system, plentiful domestic natural resources, the ability of our infantry to fight at night, and owning the seas and the skies wherever we choose to extend our power. Yes, it's expensive, but we must keep these things. That means we need to keep innovating, keep improving, and keep our adversaries so far behind us that there is no point to resisting our military might.

This sounds bad to some people, but consider the alternative.

New Stuff

New oven. The Wife had several bad experiences with the old one -- it never got hot enough, then it got too hot. The window cannot be cleaned. It doesn't fit in with our decor. And the cast-iron spiders that sit over the burners no longer sit level. So we went to Sears, dropped six hundred bucks, and come Wednesday we'll have a new oven. And in a few days we'll have a rebate card in the mail.

And The Wife insisted that I have a Kindle, and they were on sale. Mine came today and it had a lot of charge on its battery. So I downloaded a book (Free, by Chris Anderson, which was available for a price of, appropriately enough, nothing) and started reading it while I got a prescription filled (more about that in a few moments). The device is easy to use, not-quite-intuitive, light as a paperback book but thinner, and the screen is as easy on the eyes as regular paper (which is particularly important today; again, more about that in a bit).

So, yeah, new stuff. New stuff is cool.

Once I Was Blind But Now I See

I've a question for a subset of Readers, more because I'm curious than anything else. The subset I'm addressing my question to are atheist/agnostic/otherwise non-believing Readers who once either were firm believers in the supernatural or who at least practiced a religion for a significant portion of their lives (say, more than a month or two). What was it that tipped you over the edge and made you move on from belief to your present world view?

I'll start. For me, it was the Roman Catholic doctrine of transubstantiation that put me over the edge. "That little piece of tasteless bread is not made out of human flesh," I said to myself, "The priest holds up this wafer of bread and tells us it turns in to meat during this ceremony. But it doesn't. Both before and after the ceremony, I can touch it, feel it, taste it, and it's not meat at any stage. The ceremony does nothing. The ceremony is empty." And that was it. If the central and most important part of the basic ceremony of the Roman Catholic religion was an empty ritual, then that meant everything the church did was an empty ritual -- or, at best, if it did something good in the world, it did so despite the misguided beliefs of the Church and not because of them.

But to fully answer the question, the Roman Catholic sacrament of reconciliation probably had a lot of weight on that scale, too. I did not want to enter a tiny closet and tell a priest -- a teacher and a man I knew personally -- about touching myself, having unclean thoughts about the girls in my classes, or saying dirty words, or while hanging out with my friends. I just didn't think it was any of his damn business and it was perfectly clear to me that while he was a nice man, he wasn't God -- and while those behaviors were taboo to discuss, they were also not things that seemed to carry any significant moral weight, and neither the Ten Commandments nor the Golden Rule spoke to (most) of them, so why were we even talking about them in the first place?

That got the ball rolling -- reaching an age where I was able to make my own decisions about morality, and then comparing the results of my moral compass to the teachings of the church. Having found the results different, I had to decide whether to participate in the sacrament of reconciliation or not, and I chose not to. But what put me over the edge and made me say, "This is a bunch of hokum," was transubstantiation.

So that's my story. What's yours?

The title of this post, of course, is a line from Amazing Grace. It's an explicitly religious song, but nevertheless a stunningly beautiful one. See, just because I'm not religious doesn't mean I don't appreciate or am unmoved by beauty -- even when that beauty comes in religious vestments. But I'm also a member of my generation, which means I have a strong sense of irony, and that's why I use the religious lyric in this fashion.

Time To Get Out Of The Water

I agree with the guy who says he won't dive with Humboldt squid for the same reason he won't walk into a pride of lions on the Serengeti. Some things in the water are dangerous and sharks are actually only about halfway down that list.

Norma Rae Ought To Retire

Found on WillCollier.com.:

Yes, my liberal Readers, that is really what we right-of-center folks think of unions. It's pretty much because of the UAW and the Teamsters as opposed to other unions. I understand that the commercial relies on caricature and stereotype in order to get its message across and the real world is more nuanced than that.

But the basic message strikes a chord with me. In many cases, the individual employee has appreciable bargaining power against the employer, unions frequently disregard the preferences of their members, and frequently do not allow members to express their opinions if they differ from that of the union leadership during bargaining efforts. And striking is pretty obnoxious to me in almost any setting; I always think less of the union and its members than I do of management when I see a strike going on. I have no moral qualms about walking past or around a picket line.

I'm not so far right of center as to think that an employer is always so benevolent as the boss in the commercial is depicted -- but often, employers are benevolent to their valuable and skilled employees because the market effectively compels them to offer good compensation to such workers. My professional experience is that more often than not, employers do bargain with their workers, whether unionized or not, in good faith. And the law itself provides for minimum levels of worker compensation, safety, and non-exploitative working conditions (yes, in part thanks to the efforts of unions to lobby to change the law to be thus; unions certainly deserve credit for helping make that happen).

Unions are better-suited for unskilled or semi-skilled labor pools, and even then only when membership in the union is demonstrably better than non-membership in the union -- which is why I am opposed to "closed shop" rules because that prevents workers from deciding for themselves if union membership is advantageous. The law at issue would require votes to unionize, de-unionize, and joining unions to be made in an open ballot. The reasons unions want open ballots as opposed to secret ballots is because they believe that there will be substantial peer pressure on employees who are otherwise undecided to go along with votes to unionize. In other words, an open ballot gives the union more power than it has earned.

If the union offers its members good value in exchange for their dues, workers will join voluntarily. If I don't want to be unionized, or I don't want to be in a union, I should have that right. If the union can't persuade me that I'm better off with it than without it, then the union has not earned my support, and must instead coerce it. That is an obnoxious proposition in a free society, and that is why the secret ballot should be preserved.

Beautiful Fast Food

I don't know if I like the looks of the Popeye's Fried Chicken Sushi or the BK Quiche more. The Taco Bell Tortellini look great but I'm sure they taste terrible. I'm not sure that the author really pulled it off with his White Castle experiment, either, but you've gotta give him huge props for even trying to pretty up what I think is about the most disgusting fast food out there. It's obviously a lot of work to do this, and it's kind of silly but it is amazing how much of a difference a good plate presentation makes. I wonder what he'll do with Carl's Jr./Hardee's. Via Freakonomics.

For The Record: This Blog Is Subject To Periodic Editing For Grammar

Like publius, I permit myself only a fairly short amount of time to change the substance of something I post. I may update or make a follow-up post, but after a relatively short window of time, when I've posted something I just leave it there.

But unlike publius, I do not limit myself in time to correct purely grammatical issues. If I find a spelling or grammar mistake in my own work -- and these are frequent, I admit -- I'll go back and fix it later without any kind of notation. In theory, I will do this for posts going back to the very start of the blog more than four years ago.

The difference in my mind is that between form and substance, and substance is more important than form. If form gets in the way of substance, it should be changed. If substance changes, though, it seems intuitive to me that I ought to acknowledge that.

As for comments, my thoughts on comments are on record in the FAQ, posted to the right.

Only Five Ways To Reform California's Recurring Budget Crisis

On NPR today, former Assembly Speaker Willie Brown places the blame for the budget crisis on term limits. Brown says that the people in the Legislature today do not want to work with each other because they have not had a very long time to work together. Therefore, the other kind of political price they might pay – a loss of standing or respect with their colleagues – is taken away because they aren’t with their colleagues long enough for a loss of standing or respect with them to matter very much. There’s something to what he says.

But term limits aren’t the root of the problem. At minimum, the phenomenon that Brown is talking about is a byproduct of that problem. True, the members of the Legislature have no stake in one anothers' political success. But the reason for that is not term limits. Gerrymandering is the source of this, and many other problems that have come together in the budget crisis. And the Democrats have only themselves to blame for that since they control that process with an iron fist.

You’ll recall a while back I suggested that political gerrymandering is done most effectively when you concentrate the opposition party into as few districts as possible – this creates a situation where the partisan representation of those districts is very one-sided. Recall that in that post, I hypothesized a state that had 2,000,000 voters, with 50-50 registration between Democrats and Republicans. It would be possible to draw the lines of the districts to create two districts with 95% Republican registration and eight districts with just under 39% Republican registration, producing a slate of eight Democrats and two Republicans.

In such a hypothetical state, what kind of Republicans do you think those two members would be? Their districts, made up of functionally no Democrats, would not need to reflect any Democratic-friendly ideas whatsoever, so these two Republicans would be very, very conservative. And they would be approximately accurate in reflecting the overall political sensibilities of their districts in doing so.

Now, let’s think about this in practice. In a heavily-gerrymandered state. (Like there is any other kind.) A state I’ll call… California. California’s Legislature is divided into two houses – an 80-member Assembly and a 40-member Senate. The Assembly consists of 49 Democrats, 29 Republicans, one independent,* and one vacancy which will be filled with a Democrat on September 1.† The Senate consists of 25 Democrats and 15 Republicans.

That gives Republicans 36.7% of the votes in the Assembly and 37.5% of the votes in the Senate.‡ Democrats have a very comfortable operating majority and no particular need to moderate their politics because their re-election is pretty much automatic.

But here’s the rub. California has a requirement that both houses of its Legislature must pass a budget by a two-thirds margin. Right now, 53 Assemblymembers and 27 Senators must agree on a budget. That means that if Republicans keep tight party control, they can stop the budget from going through.

This is one of the many reasons why we do not have a budget right now: Republicans will not vote for any budget package that includes any tax hikes. In so doing, they are accurately and faithfully representing the wishes of their constituents.

Their constituencies are, through the process of gerrymandering in a firm Democratic operating majority, jam-packed with Republicans. In nearly all of their districts, Democrats are such a small minority that it’s a wonder there are any general election challenges at all.

California Republicans have effectively zero political penalty to pay for obstructing the budget from going through, but they would have a high political price to pay for agreeing to a tax increase. That is the basic mechanism behind the Republicans’ remarkable feat of party discipline, which in turn, is a critical component of the budget deadlock we’re in.

The problem, then, is built in to the system. There are five, and only five, possible resolutions to this situation.

First, Democrats could cave more than Republicans and agree to more spending cuts and fewer (if any) tax increases. In other words, the crisis gets solved when the Republicans win and only if they win. But that would mean that nearly half of the total Democratic slate would have to cave to Republican demands for this to happen. This would mean a massive betrayal by a a significant number of Democrats in the Legislature of the political incentives that are motivating their votes. So this is the least likely of all of these scenarios. It is also contra-majoritarian, in that if Democrats have a majority and are a majority of the voters (both of which are true) in theory their policies should prevail.

Second, Republicans could stop opposing the Democrats' desire to solve budgetary problems by raising taxes. The Democrats currently need to “pick off” two Senators and four Assemblymembers for this to happen. In other words, Republicans can solve the problems by altering their policy platform. But, thanks to the polarizing dynamic of gerrymandering, the political price that these Republicans would pay for their switch would be very high – they would certainly face primary challenges and be likely to lose them. In a very real way, the only way a Republican incumbent can lose a primary challenge is to vote for a tax increase. The only Republicans who could consider doing this would be ones who both are being termed out of office in the next election cycle, and who do not believe that they have a reasonable chance of a political future beyond that. There are not currently enough Republicans meeting that description to get us through the current deadlock and as a systemic matter, there never will be because looking at the built-in political incentives takes us past the immediate concerns of the current officeholders.

Third, the rules could change. If some way around the two-thirds rule is found, then Democrats could simply roll over the Republicans with a simple majority vote, which they already have. However, they would still face the problem of a potential veto of their budget by Governor Schwarzenegger – and that would require a two-thirds vote to override, putting them back in the same position they are in now. So unless the two-thirds budget rule and the veto rule both change, this is not a viable option for getting out of our current scenario.

You would be right to point out that a veto isn’t an issue if the Governor is a Democrat because a Democratic Governor would be unlikely to veto a budget passed by a Democratic Legislature. But to get around the two-thirds budget rule to pass it in the first place would still require a Constitutional convention. Such a convention would be bogged down by all sorts of other matters, including revision of Prop. 13, disputes about abortion and same-sex marriage, term limits, campaign finance reform, revenue distribution reform, and a galaxy of other issues. The last time a Constitutional convention was convened in California, in 1879, it was done by a mere 152 delegates who met in Sacramento for half a year. An attempt to reform the Constitution as a whole was barely approved by the Legislature and authorized by the voters 1933 by a very slim margin, but the next Legislature failed to pass enabling legislation and therefore no convention was organized. All subsequent attempts to call conventions have failed for a variety of reasons, ultimately coming down to a lack of political will by the electorate to reform the Constitution. So I’m not real optimistic about this option: too many hurdles to overcome, too many political footballs to fumble.

Fourth, the district lines could be redrawn and a new Legislature elected, with more blended constituencies and therefore a different and more moderate set of political incentives. This could go one of two ways. There would be more Republicans in the Legislature, but they would represent more moderate constituencies, and the Democrats (likely still a majority) would also represent more moderate constituencies. The electoral dynamic would encourage compromise and moderation. That sounds pretty good, at least in theory. But before you sign off on this as the best possible result, remember that if this were in practice right now, it would mean more spending cuts and higher taxes. Maybe you’re like me and think that’s the inevitable result anyway.

If you’re like me you also think that the degree of one-party rule we’re already subjected to is already bad enough. But then again, maybe you’re not like me; you might think the problem is that we don’t have enough Democrats in power here in California. And that brings me to the last possible resolution.

Fifth, we could re-draw the lines so that they are even more gerrymandered than they are now. Rather than creating more moderate, blended districts, this school of thought says that the districts should be even more polarized than they are now. If there were 14 Senate districts and 27 Assembly districts of rock-solid, conservative-to-the-core Republicans, they would all vote “no” on the budget and it wouldn’t matter because the Democrats would have a two-thirds majority in both houses of the Legislature and be able to pass whatever budget they wanted, over the Governor’s veto if need be.

These are your options, my fellow Californians. There are no others. Choose, or perish.


* Juan Arambula of Fresno left the Democratic party and became an independent about three weeks ago. Arambula had been what passes for a “pro-business” Democrat here; he left the Democrats because he thought they wanted to raise taxes and regulate businesses too much. He is also ineligible to run for re-election in 2010, having been first elected to the Assembly in 2004.

† Mark Ridley-Thomas was a Democratic member of the State Senate who won election to the Los Angeles County Board of Supervisors in November of last year. Curren Price, a Democratic member of the Assembly whose district overlapped Ridley-Thomas’, was appointed to take Ridley-Thomas’ place in the Senate, and Price’s seat remains vacant. All of these districts are in and around the area of the city of Inglewood. A Republican couldn’t get elected there if he personally bribed each and every voter in the district. Non-Californians should note that Ridley-Thomas would rather have been a Los Angeles County Supervisor than a State Senator. Much more power. Also, no incumbent has been thrown out of office from the Supervisorial Board since 1980.

‡ Compare this to overall California voter registration, which as of the 2008 election was 43.9% Democrat and 32.3% Republican. The remaining 23.8% of California voters are not registered in either major party and most of them are independent rather than third party members. Democrats have 58% of the voters who select a partisan registration.

Your Opinion Counts

If you read the blog on a news reader or similar appliance, please take a moment over the next week to actually log on to the page. I've a poll up asking Readers what they would like to see here in the future and I'd like to know what your preferences are. Thanks in advance, Readers.

Quasi Hiatus

Heavy workload and resulting stress.

Powerful distractions.

Real life, out there in meatworld.

These things sometimes get in the way of prolific blogging.

I'm aware my output has been lower than what many Readers are used to. Stay tuned, please. I'll have some stuff for you all soon enough.

Value Of Life

This op-ed in today's Gray Lady is great. Not because its content is wonderful -- it's quite depressing. But it's also dead on, and it forces the reader to confront some very stark issues.

We ration health care now. To some extent, we ration it out now to people who are the best able to pay for it, with a private insurance and for-profit medical care system. To another extent, we ration it out to the people who are lest able to pay for it with medicare, medicaid, and a variety of charity cases. The rest of us in the middle get some, too, based on a combination of what our employers, the government, and we are all willing to pay for. Money is the token of allocating any scarce resource in a capitalist system, and right now we as a society have decided to use capitalism to distribute medicine.

How much money do we spend on treatments that are not anticipated to extend life very much? The answer has to be greater than zero. Zero is both inhumane and deprives science of necessary data that can be used to develop more effective medicines. The answer has to be less than, say, a hundred million dollars per patient, because medical care is a limited resource and money to pay for it is a limited resource and that much money deprives other patients of those resources. $100,000,000 per patient is clearly an unreasonable number. So is $10,000,000 per patient. One million? A hundred thousand? Ten thousand? Hard to say where the line is.

Right now if you have the money, you get to decide how much your own life is worth. Different people make different decisions and in my line of work, I occasionally have to deal with people who have confronted this issue. You'd be surprised at the decisions some people make -- in both directions.

If the government gets into this business, it will have to decide how much money life is worth. This is not so difficult a decision to make, really -- insurance companies do it all the time. It is callous. To those people who say life is precious, irreplaceable, and invaluable in every instance, and mean it, it's no wonder that the issue causes them intellectual and emotional paralysis. But the truth of the matter is, the market resolves this problem the same as it does anything else.

In a California court, a life is worth -- as a rule of general rule of thumb -- between half a million to a million dollars. That's what we are told a jury will award in a "typical" wrongful death suit. Of course, there is no such thing as a "typical" wrongful death suit, but that's sort of beside the point. In some cases the jury awards nothing. In others, you get eight figures. Averaging verdicts is not always the right way to do it. So lawyers -- the people who have to anticipate these sorts of things and counsel others to respond to those anticipated facts -- seem to use these numbers as their rough guides. So maybe the way to go is to say that everyone gets $1,000,000 to spend on health care, in their lifetime. After that, you're ass-out.

Hey, we've got to draw a line somewhere.

Good Intentions Mask A Failure Of Political Courage

I know that the Supreme Court has narrowly upheld certain kinds of hate crimes laws. I think those laws, and those decisions, are ultimately contrary to the First Amendment -- which is to say I think the Supremes blew the call. Let's take the Matthew Shepard Hate Crimes Prevention Act, for one. That's in the news because Senator Patrick Leahy announced that he is re-introducing this bill into the Senate -- as a rider on a defense spending bill.

Now, I'm all for including homosexuality within the category of "suspect classes" in anti-discrimination laws. But Senator Leahy's legislative legerdemain is really sneaky and a perfect example of why people are cynical about Congress. More about this at the end.

The law creates new federal crimes, and providing penalty enhancements for pre-existing crimes, if the defendant's choice of victim is proven to have been motivated by the victim's sexual orientation. In other words, gay-bashing would become a Federal crime.

I don't think any of my Readers are going to be so dim as to think that gay-bashing does anything but repel me. Like other acts intended to be included within the scope of "hate crimes," gay-bashing is an awful cocktail of several of the very worst parts of human behavior. I shed no tears for the criminals who are punished for engaging in these acts. The story of Matthew Shepard is a tragic one and it's hard even now, more than ten years after his murder, to read about it without being emotional.

But it's exactly where one's instincts are being affirmed that one should start using critical thinking. If it's good to punish gay-bashers, why is that? Those two guys had gained the trust of Shepard, drove him to a remote area, beat him up and tortured him, and then left him strung up like a scarecrow for eighteen hours until he lapsed into a coma, from which he eventually died. Does it matter that he was gay? Does it matter that they went looking for a gay man to attack as opposed to a straight man? Is it any worse because they went looking for a gay victim? A hypothetical straight victim would have suffered just as much. His family and loved ones would have suffered just as much.

Which is why this act is already described with a constellation of crimes, like assault, robbery, torture, and murder. But there is no act that this bill criminalizes that is not already criminal. Extra punishment for these acts based on the identity of the victim does not serve any purpose of criminal punishment that I am aware of -- it will not deter a future assailant from committing a crime like this any more than the unenhanced penalties will; Shepard's assailants were not prosecuted under any hate crimes law and still faced the death penalty and wound up getting consecutive life sentences under pre-existing, unenhanced Wyoming state law. Those are heavy criminal penalties and they were well-deserved.

Now, I can't quite sign on to the opposition given by, say, James Dobson -- this Hate Crimes Law does not, as he claims, prohibit or deter free expression of Christians who want to express their revulsion towards homosexuality. Give me a break. Christians are free to do so now, provided their expression of revulsion is nonviolent, and the Matthew Shepard Hate Crimes Act would not change that. There was never a freedom of speech exception to murder. (And if I respond to a Christian's vocal, if nonviolent, expression of revulsion to homosexuality by nonviolently calling that Christian a "bigot," I am not restricting their freedom of speech, rather, I am exercising my own. Freedom of speech does not mean freedom from criticism. But that's a discussion for another day.)

But what I don't understand is why there are hate crimes at all. Murder is already criminal everywhere. The identity of the victim -- the defendant's choice of a particular trait to select his victim -- is really kind of irrelevant to that. Assault, rape, robbery: all crimes already, regardless of the victim. All of them bad things, things that harm their victims regardless of whether the victims are straight or gay, Latino or Caucasian, male or female.

I also don't see a legitimate Federal interest here. Legal scholars (and more importantly, Federal appellate judges) disagree on the exact contours of the limits of the Federal commerce regulation power. The Hate Crimes Act is certainly out towards the limits of that power even to the thinking of someone who sets those limits very broadly. We know that there are some limits, somewhere, to the Commerce power; Congress is not vested with plenary power under the Commerce Clause, or the Tenth Amendment becomes a dead letter. It is very near that already, but our jurisprudence has isolated a few points -- the Gun-Free Schools Zones Act struck down in U.S. v. Lopez, for one -- that are beyond the Commerce power.

With maximum respect to Matthew Shepard's family and other victims of gay-bashing, there is no Federal interest in policing against these crimes within the several States. If the Matthew Shepard Hate Crimes Act applied only in the District of Columbia, the territories governed directly by the Federal government, and Federal enclaves like military bases, I might feel differently on this point and rely only on the argument that there is no particular need for a hate crimes law that re-criminalizes already-criminal activity. But this is also an issue with the law as written -- this is simply not the sort of thing the Federal government ought to be concerning itself with. The Federal Government's resources are overstretched now as it is. Making the Justice Department go after the sorts of crimes that state-level D.A.'s are already supposed to be going after is, at best, a misuse of money and time that could be spent addressing uniquely Federal concerns like chasing down coyotes smuggling people into the country and enslaving them or bribing Congressmen or things like that.

Which brings me back to the point I promised to address at the top of this post. Senator Leahy has introduced this law as a rider to the Defense Authorizations Bill. This is the law that not just appropriates but actually spends the money to do things like buy bullets and uniforms for soldiers and pay the salaries of military personnel. As a practical matter, no member of Congress can responsibly vote against this bill. You might be asking yourself, "Okay, but what does paying G.I. Joe his salary have to do with criminalizing gay-bashing?" Nothing at all. That's why Senator Leahy's move bugs me.

If I were in Congress, I would vote against the Hate Crimes Act, for the reasons I have articulated above. But I could only do that if it stood on its own merits -- if I could make an up-or-down vote on the Hate Crimes Act, I'd vote against it and urge my colleagues to vote against it also. But I couldn't possibly vote against defense authorization. G.I. Joe needs to get paid, no matter what. Leahy has joined a bill of questionable Constitutionality (yes, I know I'm on the wrong side of the trend of Supreme Court precedent to opine that way) and even-more questionable wisdom to a law that simply cannot be voted against. This means that to oppose the law itself requires a technical procedural vote to sever out the rider from the main bill -- a legislative maneuver which is easier for a leader like Leahy to squelch and easier to control the outcome of the vote.

That forces a Hobson's choice on legislators who disagree with Leahy on passage of the Hate Crimes Act -- on someone who thinks like I do that this bill is unwise and an unconstitutional extension of Federal power, and therefore should not be passed. Despite the intense antipathy I feel about the behavior the law is intended to punish.

That is the sort of thing that leaves people cynical about Congress -- Leahy apparently does not think the Hate Crimes Act can pass on its own merits, so he piggybacks it on another act he knows is going to pass. Now, you might say, "That's the sort of thing that legislators do; that's just part of the game." And you'd be right. Some days, I might even give this a pass for no other reason than that this kind of thing has been part of the game for a long time and for the most part, the system seems to work well. But I'm not feeling so generous to the system this morning. I think this part of the system seems dishonest and could be improved.

I don't think there is any systemic rule that could be created here. There just needs to be restraint and logic and, dare I say it, intellectual honesty on the part of legislative leaders like Patrick Leahy. He ought to have enough courage to sponsor a law like the Hate Crimes Act on its own rather than folding it into something else. If I am wrong and this law is a good and necessary one that ought to be passed, then let Congress do so based on its political judgment as to the merits of the law.

Hat tip to Prof. Howard Friedman. I've recommended his site before, and I'll do so again now.

This Would Be Cool

The California High Speed Rail Authority has some really cool graphics, including Flash movies, showing what it will look like when we have their bullet trains. I certainly do like the idea of getting to downtown Los Angeles in half an hour, for $10 each way. Two hours to Sacramento, two and change to San Francisco, for less than fifty dollars. Yeah, this is indeed good stuff. And entirely technologically possible. The question is whether we can afford to do it at all. Oh, and why the Authority is spending money to make these really cool graphics.

What Sonia Sotomayor Is Dying To Say But Can't

Senator, if by “judicial activism” you mean will I decide a case based solely on my personal policy preferences, then no, I am not a “judicial activist.” Frankly, I don’t think any of the current members of the Supreme Court are that. They disagree with one another strongly, but I expect that they do so honestly and in good faith, and all of them have substantial reasoning behind their opinions. That’s what judging is all about.

But if by “judicial activism” you mean am I willing, in an appropriate case, to use the power of the bench to strike down or modify a law which I find through application of reason, good sense, legal scholarship, and in the context of the facts as framed by a particular lawsuit to be in violation of the Constitution, then I suppose that I am exactly that. And frankly, if you define “judicial activism” that way, then every member of the Supreme Court is a “judicial activist” and so are, essentially, all of the other Federal judges in the country. And under that definition, you would be an “activist,” too.

If you and I can agree about nothing else in the Constitution, surely we can agree that it creates a system of checks and balances between the three branches of government, and that the judiciary is a part of that system. The Constitution vests power in the judiciary, power co-equal to that of Congress or the President.

If the Senate votes to confirm me to a position of judicial power (as it has twice already in my career), I would not respond to that confirmation by simply affirming every law and executive action that comes before me for review for no better reason than that a majority of elected representatives voted for it. Our system of government is not a simple democracy and never has been. The Constitution requires that the judiciary serve as a check on the other two branches of government. If given the office of Justice of the Supreme Court, I would attempt to fulfill, and not abdicate, the responsibility that office demands of the judge who holds it.

But let's set that aside. I’d like us to be candid with one another, Senator. Let’s dispense with the code words and use plain English. Your question is not about abstract judicial philosophy or the theoretical framework of our delicate Constitutional balance of power. It's about abortion. You want to know if I will vote to overturn or uphold Roe v. Wade. I can’t and I won’t tell you that. You can’t ask me to pre-judge a case without that case being before me, and you can't ask me to disclose here how I would vote.

You know the current state of the law as well as I do. We both also know that if confirmed, I could in theory vote to overturn Roe v. Wade or I could vote to uphold it or I could vote to modify it. But I can’t tell you whether I would do any of that until there is a case before me, and then I’d have to decide within the context of that individual case. We both know this already, too. And so do the people of this country watching and listening to these hearings on TV and the radio and the internet.

But I doubt that you really care about how I’d vote in any sort of case other than a case involving abortion. And the voters you’re trying to please with that question don’t really care about that, either.

Sure, we can talk about eminent domain or guns or religion and free speech or criminal procedure. But none of that matters to you, at least when you ask that particular question, in that particular way. We can talk about “judicial activism” all day long, but it really comes down to abortion, and you and I both know that in this hearing, you are free to express your opinion on the issue because you are a legislator, and I am not free to express mine because I am a judge.

When that case inevitably comes before me, either I’m going to vote your way or I'm going to vote the other way. And thanks to both the code of judicial ethics and a generation of politics going back and forth on this issue, I’m not in a position to give anyone, on either side of that issue, any advance assurances one way or another. If you’re going to look for tea leaves to read by asking me about my “judicial philosophy,” you'll need to be more subtle than that because a direct answer is not something I can give you in a hearing like this one.

So I would prefer that we moved on past this subject to focus on things that might conceivably be useful for people who are concerned with issues other than abortion to consider.

Confirmation Hearings Confirm Biases (A Post Including A Short Book Review)

I've just finished reading Jeffrey Toobin's book The Nine. In it, he paints a series of pictures -- moments in time in the institutional history of the Supreme Court, shifting focus between the political dimensions of the Court's work and the personalities and experiences of the individual Justices at the center of them. The picture one is left with at the end of the day is that of a very odd institution, one which seems to attract mentally gifted but highly eccentric people into its key positions.

Toobin is not quite explicit about his thesis, but it is right there under the surface like a goldfish eating food floating at the top the aquarium: the Court's decisions are the results not of study and deliberation on the law but instead are the sum total of the personality flaws of the individual justices, flaws which include political biases. Toobin also makes almost no bones about portraying the liberals on the Court as the good guys, the sentinels fighting a rear-guard action to protect the mighty triumphs of civil liberties and individual rights of the Warren Court, and reduces the entire efforts of conservatives as an effort to co-opt the Republican Party with the explicit and overriding goal of packing the Supreme Court with enough votes to overturn Roe v. Wade.

The result, as he describes it, is a court made up of judges who are all unprincipled activists; the question is not whether they will overturn precedent they find personally distaseful and seek a legal justification for doing so after the fact, but rather whether a majority of them wish to do so. It is legal realism of perhaps the most cynical sort.

Toobin's book ends with a portrait of conservatives ascendant after a twenty-year struggle, and liberals sputtering in protest. Any careful reader of the book itself is aware that in fact,the picture is considerably more complex than that, and more to the point, will be aware that the political tides appear to have shifted from the re-election of President Bush in 2004. One of Toobin's explicit claims is that despite the Court's undemocratic nature, it does track the political mood of the country with remarkable alacrity.

It is with this book fresh in my mind that I note the beginning of hearings leading up to the vote to confirm the appointment of Sonia Sotomayor to the Supreme Court.

First of all, we should bear in mind that Judge Sotomayor has left something of a record in the form of her judicial opinions. Her judicial philosophies are knowable and do not think for a moment that the White House has not read every opinion she has ever written. Or that the Senators evaluating her today have not, either. The questions she will be asked about them do not matter -- each and every Senator on that committee has made up their minds already, based on what she's written.

Secondly, the Supreme Court handles two kinds of cases: cases involving challenges to abortion rights, and every other case the Court handles. The confirmation process has become transformed into a political kabuki about only one of those two kinds of cases. Toobin points out, from the Alito confirmation hearings, the highly odd spectacle of every Senator on the Judiciary Committee giving a short speech about his or her opinion on abortion, and the nominee -- the only one whose opinion counts for anything -- sitting there saying nothing substantive in response out of ostensible concern for "pre-judging" a case that might come before him. We will almost certainly see a similar spectacle with Judge Sotomayor's confirmation, only the direction of the political wind will be opposite that of Alito's confirmation.

And finally, while the politics of the confirmaiton process are chiseled in stone and the result pre-determined, there is importance to the process. It is something of a test of the ability of Democrats to discipline themselves and run the Senate as they see fit. We may actually learn something interesting about Judge Sotomayor that we do not already know. We may get a sense of her personality -- the collection of quirks, eccentricities, displays of brilliance, and neuroses that seem to be the trademark of the singular set of personalities in question. She, like her eight Brother and Sister Justices, is much more than a figure in a black robe. And if Toobin is right, those personality traits, for good or for ill, are what will matter most in her decisions -- particularly in the second category of "everything else," including matters of criminal procedure, enlargement of executive power, reconciliation of conflicting state and circuit cases, and free speech and religion rights.

I'll say that Judge Sotomayor appears to be of exceptional intellectual ability and has the sort of background one would hope for. I'll say that I understand the political pressures the various Senators are under -- and if I could, I'd remind them that they asked for this job. But aside from that, I'm not going to take sides in this confirmation battle. That would be like taking sides against the wind.

Busted! (G-8 Summit Version)

To be fair to the Presidents here, the booties are typically of very high quality in Italy.

Update: ABC News insists that the photo does not show what it appears to show. Oh yeah? You guys are totally in the bag for Obama. Explain this away, I dare you! Look, it's okay, Obama partisans. He's only human, he's a red-blooded American man. It's fine if he at least notices the attractive, well-dressed young Euro-babes floating around a place like the conference in L'Aquila. Or the shapely, if underage, Brazilian talent featured in the first photo.

I Believe They Would Have Been Called "Censors" But That Won't Work Today

Patrick at Popehat revives a very interesting idea of a fourt branch of government, co-equal to Congress, the Courts, and the Presidency, that would have as its sole power the ability to purge old, useless laws from the books.

Family Values Redefined

This is frickin' unbelievable. We used to have something like dignity in this country. At least pay off your mistress yourself, Senator Ensign -- don't use mom and dad's money to do it!

Seriously -- compare this to, say, Alexander Hamilton fooling around with a married woman other than his own wife. He stepped up to the plate, took his lumps, and stopped the bleeding. Did it cost him the Presidency after it all went public in 1797? Doubtful -- he would have had to have gotten past the incumbent John Adams within his own party, and then his reward would have been going up against Thomas Jefferson, whose popularity was at its zenith. If anything, Hamilton coming clean about the nation's first sex scandal salvaged some portion of his reputation, because it cleared him of being involved in a scheme masterminded by his mistress' husband, which concerned speculation in military back-pay vouchers.

But John Ensign? He's going to wind up the punch line to jokes even more cruel than the ones currently being told about Mark Sanford. Because paying off your mistress and her husband with your parents' money is like school on Saturday.

Unfunny Conservatives

Scott Adams, of Dilbert fame, explains humor. Humor has six elements: Cute (as in kids and animals); Naughty; Bizarre; Clever; Recognizable (You’ve been there); and Cruel. To be humorous, you must meld two or more of these elements.

South Park, for instance, combines Cute, Naughty, Recognizable, and Clever with its potty-mouthed fourth-graders and intentionally ill-concealed political and pop culture allegories. The Simpsons combines Clever, Bizarre, Cruel, and Recognizable. I'd argue that for comedy to reach laugh-out-loud portions, there must be at least three elements and one of them must be Clever.

Left-leaning comedians seem able to get laughs. But there's nothing in the formula that suggests that right-leaning comedians are incapable of the same thing. Why can't right-wingers do comedy? I don't mean that conservatives can't tell a joke now and then or include some humor in a speech. But when they sit down (or, often, stand up) to do comedy, it nearly always falls really flat -- other than with the exception I describe below.

Examples: Fox's Half Hour News Hour was painfully unfunny. Its successor, NewsBusted, is only a little better -- this recent episode actually had a funny joke in it (the one about Sarah Palin's future). And this odd story from former Saturday Night Live writer and performer Victoria Jackson is not funny at all, even though it's clear that she's trying to throw in some jokes. But at the end of the day, her story is about her walking in to a store, ranting at the shopkeeeper in a manner that demonstrates she has drunk too deeply of the Kool-Aid, and then walking out not buying anything.

Recent P.J. O'Rourke can only invoke a smirk from me these days -- he's not even particularly insightful anymore, either. O'Rourke is a particularly painful example of this phenomenon, because he used to be hilarious. Parliament of Whores remains one of the funniest books I have ever read. But today's P.J. O'Rourke would sneer at his younger self; his idea of a good time now is relaxing in an overstuffed chair with a cigar and a glass of good Scotch -- a far cry from the vision of fun he uses to open up Republican Party Reptile of driving a sports car over a hundred miles an hour while receiving sexual favors from a hot teenage girl in the passenger seat.

A example leads us to the real issue. Chris Muir's attempt to make a conservative "Doonesbury" is only funny when it avoids politics altogether. Conservatives can be funny -- when they aren't political.

The problem, I think, is that conservatives who try to write "conservative comedy" inject another element into the mix: Preachy. And "conservative comedy," at least the bulk of the examples I describe above, is typically begun with the objective of conveying a conservative message. By definition, the primary objective becomes Preachy, rather than Funny.

Preachy kills Funny, the way bleach kills mildew. Yeah, every once in a while, mildew is really strong, so some of it survives the bleach and the scrub. But if you were trying to grow mildew, you'd want the bleach to stay away. (Yes, I just compared conservative comedy to mildew. See, that combines Cruel and Recognizable.) The best you can hope for when you try to be Preachy and Funny is Ironic, and generally you have to settle for Bitter or Sarcastic.

"But, TL, liberals can be preachy, too!" Damn right. And they aren't funny when they're preachy, either. Example: George Carlin. Very funny comedian, and reasonably persuasive liberal speaker. But both at the same time? That, he achieved only rarely.

Most political jokes at the expense of conservatives seem to be based on pointing out hypocrisy relating to sexual ethics. This combines Naughty, Recognizable, and Cruel, and is therefore Funny. I would argue that poking fun at a hypocrite isn't particularly "political;" we could just as easily poke fun at the sexual habits of a celebrity like a movie star (say, Lindsey Lohan or George Clooney). I should also point out that conservatives have gone out of their way to invite mocking attention to their licentiousnesses, in a way liberals have not.

Conservatives can be funny -- when they aren't Preachy about what they're saying.

Rob Long was the producer and a principal writer of the long-running and quite funny TV show Cheers, and he's conservative. But he didn't set out to make a conservative TV show. His only objective as a writer and as a producer was to be funny, and he's stated on a few occasions that he sometimes put the kabosh on jokes or scenarios for Cheers that were political. Cheers was one of the least explicitly political comedies on TV and also one of the funniest on the air at the time (and indeed, its reruns hold up pretty well).

A conservative friend of mine has been a stand-up comic -- and when he gets on a roll, he can be funnier than any of the professional performers on TV. But he doesn't incorporate conservative politics in his routines, he doesn't set out to do political jokes. Like Carlin, when he even refers to politicians at all, they are foils becaue of their personal foibles rather than their politics. It would be hard to tell, at least from his comedy routines, what his political opinions really are.

These guys said, "I'm going to write and perform comedy." Note the lack of adjectives. A comedian should try to be funny first, and leave their politics to be an outgrowth of their humor, rather than its focus. The result is that they were funny, people liked hearing what they had to say, and they wound up sneaking in some subtle conservative points in there -- like, say, Sam Malone on Cheers coming to terms with his self-destructive womanizing, thereby promoting the ethic of monogamy. It wasn't forced or preached, it just was there.

Preach if you're going to preach. Joke if you're going to joke. Doing both effectively at the same time is extraordinarily difficult. Save that sort of thing for the professionals -- and bear in mind that even they can't pull it off most of the time.

Hat tip to Lawyers, Guns and Money.