A Solution To The Darfur Crisis

Tonight, a chunk of space rock ten feet in diameter will impact the atmosphere of Earth at the speed of eight miles a second and descend towards the northwestern quadrant of the Sudan, releasing megatons of energy. I'm sure it will look spectacular. Hopefully APOD will have some photographs.

When The World Doesn't End After All, You Can Still Rely On Self-Affirming Cognitve Dissonance

In 1954, a woman in Minnesota claimed that aliens had told her that on December 20 of that year, all of civilization would be wiped out in a catastrophic global flood. The story of how that woman attracted a cult around her and how social psychologists infiltrated the book as an observational experiment, is described in a book called "When Prophecy Fails." What is of particular interest to me is what happened in the early morning hours of December 21, 1954, which is summarized in this article:

Keech's sci-fi prophecy soon gained a small band of followers. They trusted her divinations, and marked the date of Armageddon on their calendars. Many of them quit their jobs and sold their homes. The cultists didn't bother buying Christmas presents or making arrangements for New Years Eve, since nothing would exist by then.

***

On the night of December 20, Keech's followers gathered in her home and waited for instructions from the aliens. Midnight inexorably approached. When the clock read 12:01 and there were still no aliens, the cultists began to worry. A few began to cry. The aliens had let them down. But then Keech received a new telegram from outer space, which she quickly transcribed on her notepad. "This little group sitting all night long had spread so much light," the aliens told her, "that god saved the world from destruction. Not since the beginning of time upon this Earth has there been such a force of Good and light as now floods this room." It was their stubborn faith that had prevented the apocalypse. Although Keech's predictions had been falsified, the group was now more convinced than ever that the aliens were real. They began proselytizing to others, sending out press releases and recruiting new believers. This is how they reacted to the dissonance of being wrong: by being more sure than ever that they were right.

The UFO cultists had to confront hard, undeniable, personally-experienced proof of the central tenet of their faith being objectively and utterly disproved. Yet they emerged from the experience with a stronger faith than they had before.

The article I linked to immediately takes a sharp leftward bent and tries to explain "at last, we understand how conservatives think after we liberals have proven them wrong again and again!" I would rebut to that contention that anyone is capable of cognitive dissonance, and self-reinforcing fanaticism is a psychological behavior to which anyone who holds unreasoning and unreasonable beliefs -- including some (not all) self-identified political "progressives" -- possesses no small amount of vulnerability.

But I'm interested in this for yet another reason. I think this psychological trait must be at the very root of fanaticism of all sorts. Religious fanaticism, political fanaticism, intellectual fanaticism, anything. For instance, a while back The Wife and I found ourselves sharing a conversation with Mr. Anti Immigration Dude. Everything wrong with society was traceable back to illegal immigration; illegal immigration was the taproot issue of the day and the result of our government tolerating it was inflation, expensive health care and increased gas prices, the collapse of real estate prices, air pollution, humiliating military defeats abroad, a generalized degeneration of the very moral fabric of society, and of course the astonishing prevalence of genital herpes. (¡Ai yai yai, no es bueno!) But to Mr. Anti Immigration Dude, these conclusions make a lot of sense and are almost intuitively obvious. He has somehow put his mind in a negative feedback loop, and monomaniacally finds an explanation for any issue that may bother him which traces back to the bête noire.

I don't think it's even limited to the sorts of religious or political issues I usually think about. It's most interesting there, but I even see it play out in litigation. Fanaticism in that context can become what we sometimes refer to with only some psychological accuracy as "demonization." Demonization, of course, requires an Other. Seeing this in the context of the UFO cult, though, there is not really a demon to rally against -- the way, for instance, Anti Immigration Guy has an Other, or the way a progressive has George W. Bush -- but it does point to something about how our minds work.

It's a kind of a trap, a way of thinking that any one of us might fall in to. That is why it is important to take time for introspection, time to question your own beliefs and assumptions, and time to use logic and reason when reacting to things.

Bartered Fees And Bar Complaints

One of the interesting things about being a lawyer is that you do not necessarily have to accept money as a fee for your service. I have, at times, accepted a variety of things that are not money. Back when I was the managing partner of a law firm, I would occasionally barter for services: a contractor didn't have enough money to pay us, so he built our office some bookcases instead. I exchanged a corporation for my old law firm's logo; the guy did a great job and the partners who have remained there have kept the basic design even after changing the firm's name. Even now, we have a client who drops off buckets full of avocados for the firm every year, and the staff (and I) love it.

But I've never accepted lap dance for my fees. I'll admit it's creative. But the guy still overbilled the dancer, which seems to be not only a tactical mistake but bad form, too.

First Monday In October

Today is the traditional beginning of the U.S. Supreme Court's 2008-2009 term. Most of the big cases, of course will not be decided until June of next year. But I'll point to a couple of cases that have caught my eye to watch.

Nipple Watch: The FCC has a policy of generally not prosecuting incidents of "fleeting" profanity or other kinds of indecency, which typically take place in live broadcasts. But in recent years, more fines and non-monetary sanctions have come down -- not, as the most complaints are still filed for, profanity used by wide receivers during live NFL broadcasts -- for things like the use of profanity by Nicole Richie or the infamous "wardrobe malfunction." FCC v. Fox Television Stations challenges this new policy interpretation as arbitrary and capricious.

Guantanamo Prisoners: Ashcroft v. Iqbal asks whether high-ranking Administration officials are entitled to qualified immunity for what is politely recalled "mistreatment" of prisoners in Guantanamo Bay as part of a civil rights lawsuit for damages. I have a sneaking suspicion that the answer will be "yes." It kind of has to be. Also watch a sort of companion case to Iqbal, Al-Marri v. Pucciarelli. This is a habeas corpus case concerning a Qatari national who had a Green Card who was arrested in Peoria, Illinois in 2003 and has been held in Guantanamo ever since as an "enemy combatant."

Voting Rights: Certiorari has not yet been granted in Northwest Austin Municipal Utility District v. Mukasey but I would expect it to. It is a more or less straight and direct challenge to the constitutionality of certain provisions of the Voting Rights Act. If the Court decides that Congress exceeded its power, states and local governments will have greater discretion to run elections as they see fit.

John Paul Stevens is 88 years old. Ruth Bader Ginsburg is 75. Antonin Scalia is 72. So is Anthony Kennedy. Stephen Breyer is 70. David Souter is 69. The election is twenty-nine days away.

Coattails

Things are looking really, really good for Camp Obama right now. Fivethirtyeight.com is projecting an Obama win in 87.4% of its randomized sample elections. That's seven out of eight. Intrade is a bit more moderate in its projection -- you can buy an "Obama to win" future worth $100 for $65.90. Seems like a safe bet to me. "McCain to win" futures are selling for $35.00 right now, so if you feel like lighting thirty-five bucks on fire... The AP has Obama ahead by 7 points. Marist College has Obama ahead by 5. CBS, by 9. Rasmussen by 8, Gallup by 7.

Now, sober analysts point out that elections always narrow as the actual election date approaches. But the outcome does not seem to be in any serious doubt at this point.

But the question I'm contemplating this morning is -- will Obama have substantial coattails? It seems inevitable that Democrats will make gains in Congress. Depending on how you count it, five to seven Republican Senate seats are questionable, if not leaning Democratic, as of this moment. No Democrat up for re-election is in any danger at all -- not a single one. Democrats are certain to hang on to the House and again, depending on who you talk to, stand to make relatively modest pickups. For instance, Congressional Quarterly suggests that twelve Republican seats, and one Democratic seat, are currently projected to switch control. That would be a net pickup of eleven seats for the Democrats in the House -- enough to be felt, but not enough to deny Republicans enough power to kill a moderately unpopular bill if they really, really wanted to.

This would be firmer control by the Democrats of Congress, but not so absolute as to render Republicans irrelevant. If the Republicans who survive in the minority maintain party discipline, there would still be enough Republicans in the Senate to mount a filibuster and there would still be enough Republicans in the House to put a stop on tax increases (but not enough to put a stop on social welfare spending increases). Coupled with the plans suggested by the Obama Administration and what seems to be a reasonable projection of significnatly diminished tax revenues as a result of the financial collapse underway as I write, the result of this state of affairs, inevitably, would be a significantly increased deficit.

Perhaps President Obama will alter his agenda from Candidate Obama's platform to mitigate this. I hope so. But I doubt it. Perhaps Candidate Obama will increase his legislative coattails. He could do that, if he focused his efforts there, and emerge a stronger President as a result. But I doubt he will do that, either. Instead, he will focus his efforts on increasing his margin of victory in the Electoral College -- he's making plays for Florida, Indiana, North Carolina, and Missouri right now; look in the near future to see him pushing McCain on defense in traditionally Republican states with large Democratic minorities, places like Georgia, Tennessee, Montana. Also look for him to make a pay for West Virginia (!) because the economy theme plays especially well there. But a mostly-blue electoral map will not help him govern come January 21, 2009.

Today's Second Religious Question

Let's say you have a couple of people who have a child. This couple are atheists. But their parents are actively-believing Christians -- Catholics, to be precise. So you have parents who are atheists, but grandparents who very much want to see their grandchild baptized. Should the atheist parents allow their child to be baptized?

(No, Mom and Dad, we're not pregnant. This is just a hypothetical. More accurately, it's someone else's problem, a problem that interests me.)

Normally, I'd think, "Dunking the kid's head in water is a ritual, nothing more. Won't hurt the kid. Wipe the kid's head off with a towel, grandma and grandpa are happy, and that's the end of it." But the ritual of baptism is aimed at the parents (and godparents) of the child, as well as the child herself. The parents and godparents have to publicly promise to raise the child within the tenets of Roman Catholicism. So what the baptism is really doing is forcing the atheist parents to raise their child to be a Catholic.

Now, one option would be for the parents themselves to opt out of participating in the ceremony, and allow the grandparents to stand in as godparents to the child. The grandparents make the promises, the parents don't participate. That mitigates it a little bit, to be sure. But it also of necessity involves the grandparents in that case promising to interfere with their children's decisions about how to raise the kid. And it may start with a baptism, which is a harmless enough ritual, but then it turns in to confirmation and first communion and then going to church every Sunday when the kid ought to be watching professional football like a good American should.

In mitigation, I think that the promises made in a baptismal ritual are not the sorts of promises that are widely expected to be followed. Most people understand that this is a ritual with words and phrases left over from the medieval period and they expect modern ideas about child-rearing to prevail. That includes substantial deference to the parents on matters of instruction about religion and morals. So maybe to them, it's just a nice ritual, a benchmark ceremony to denote the beginning of their grandchild's life. In which case, why not?

But it would seem not, if the grandparents are insistent on the ceremony. They must attach some meaning to it, or they wouldn't be pushing for it. What the grandparents are looking for, if they don't take the promise seriously but do attribute meaning to the ceremony, is "soul insurance." For Catholics, this means that if something happens to the child between its baptism and young adulthood, the child is accepted by God into the family of Christians in heaven rather than being relegated to limbo, with other unbaptized souls. (Actually, I think limbo is now out of Catholic theology again, but the point is, if you're baptized, you're better-off than not.)

Now, I've always thought Protestants got this one right as compared to the Catholics. Given a) the existence of a soul and b) the need for that soul to be redeemed via baptism, it seems that an adult baptism, made as a result of a conscious choice, would be more virtuous and worthy of recognition than something done to an infant, who obviously has no choice in the matter. As an atheist, I question both predicates, of course; but if those two are taken on faith rather than subjected to rational analysis, the Protestant tradition of adult baptism makes more sense than the Catholic tradition of infant baptism.

The thing is, for a Catholic, the promises to raise the child to be Catholic are still there and an integral part of the ceremony. In a very real sense, dunking the kid's head in the water is irrelevant. The promises of the adults to see to it that the child is inculcated in the mythology of Catholicism is the operative and important part of this ritual. It is not, at the end of the day, an excuse to say that people don't expect others to follow through on those promises. The promises are made and if the ritual is taken seriously, then so are the promises that are incorporated into it.

Allowing their child to be baptized is giving license to other people, mainly the grandparents, to interfere in the way the parents choose to raise their child. So on balance, I think the parents of the child should a polite but firm way to tell their own parents to back off and respect their wishes about the kid. It's not that dunking the kid's head in water matters -- it's what that represents, and it's what it portends for the future. I can understand how awkward saying "no baptism" might be, but if that line is going to be drawn, better that it be drawn firmly, clearly, and early.

Today's First Religion Question

Does the National Day of Prayer violate the Establishment Clause?

I.
Legal Framing Of Question

This is the basic, straight-ahead question asked bya lawsuit filed Friday by the Freedom From Religion Foundation. Although the complaint details various permutations of the theory, the essence of the claim can be found in one sentence, paragraph 22 of the complaint:

The designation of a National Day of Prayer has the intent and effect of giving official recognition to the endorsement of religion; a National Day of Prayer has no secular rationale.

To justify the various Presidential and Gubernatorial proclamations of the National Day of Prayer, it seems to me the Government (and the various States) have four possible avenues of response:

1. The plaintiffs lack standing to challenge the National Day of Prayer because they are not harmed by it. Prayer by theists does not harm non-theists in any material fashion.
2. The proclamation has a secular purpose of some sort.
3. The National Day of Prayer is not understood by a large number of people to possess religious significance and therefore does not violate the Establishment Clause.
4. The Establishment Clause, either in its current understanding or in conformity with the original intent of its authors, prohibits the Government from establishing a particular religion, but does not prohibit it from promoting religion in a generalized sense.

Each of these avenues of attack is lacking.

II.
Easy Avenues Of Defense

First, the plaintiffs do have standing. A non-theist who is personally asked to tolerate a governmental expression of theism does indeed suffer a harm -- the harm of being non-members of a state-established religion and therefore excluded from certain kinds of participation in public life. Take, for instance, a local tradition here in the High Desert -- the Mayor's Prayer Breakfast. In addition to praying together, the Mayor's Prayer Breakfast provides a forum in which public issues are discussed, elected and appointed public officials mingle and network with the leaders of religious congregations and other religious members of the community, and for which the local press sends representatives to document the public piety (and therefore moral praiseworthiness) of the participants. A non-theist must either participate in the event and thereby act contrary to her non-theistic world view, or be excluded from it.

Second, I cannot for the life of me think of what secular purpose is advanced by the government urging people to pray. It is called not a "National Day of Meditation and Contemplation," which would potentially might have some minimally-justifiable secular purpose. It is a National Day of Prayer. Prayer is an inherently religious activity by definition (unless it refers to the request for relief at the end of a lawsuit, which obviously is not the intent of the phrase in question).

Third, for a similar reason it is difficult indeed to even imagine that the public in general does not attribute religious significance to the National Day of Prayer. To the extent that people notice it going on, it contains an explicit urging by the President to engage in prayer, an inherently religious activity, and refers to God in the singular and masculine tenses with a reference to the Book of Psalms as an unquestioned religious authority. How this could not be interpreted by people in a nation consisting overwhelmingly of subscribers of the Christian faith to be a reference to Christianity (with Judaism thrown in as a nod to the many Jewish Americans and the historical parent of Christianity) is beyond me.

But then again, I don't believe in "secular deism," either. A reference to God is inherently religious. Simply put, the President is urging people to engage in an inherently religious activity and further encouraging that they select a particular brand of religion. That the President was authorized to make this urging by Congress in no way exonerates it from the Constitution. The Government is urging the citizens of America to worship Jehovah. That is an Establishment. If the Government urged Americans to worship Allah, no one would even think to proceed beyond looking at the face of the proclamation before objecting to it as violating their rights. So when it becomes clear that the Government has urged Americans to worship Jehovah, the Court can reach a full stop, end it analysis, and render judgment.

These all seem to be pretty easy answers to me. It is the last avenue of defense, the one that for reasons above the Court need not reach, that are more interesting.

III.
Can The Government Promote Religion Generally?

The fourth avenue of defense, of course, is what the activists want the Court to reach. If the Government won't raise that avenue of defense, an amicus brief filed will.

For the basic reason I articulated above -- the fact that promotion of religion has the effect of excluding non-theists from participation in public events -- my answer to this question is "no."

The basic line of reasoning here follows the school prayer cases. There are five big cases you need to know to understand the school prayer reasoning. The first is McCollum v. Board of Education (1948) 333 U.S. 208. McCollum dealt with a "released time" program. The school district in Champaign, Illinois had a program by which local priests and ministers came to the public schools during school hours and taught about their religious beliefs. Students who wanted to opt out of these programs could do so without academic penalty. The plaintiff alleged that in practice, certain Protestant denominations were favored over others, and that her son was ostracized by her fellow students because he did not participate in these activities. The Supremes said, "Yeah, that is pretty much grade-A bullshit."

Well , more formally, they said (in an 8-1 decision) at 333 U.S. 208, 211-212:

To hold that a state cannot, consistently with the First and Fourteenth Amendments, utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not, as counsel urge, manifest a governmental hostility to religion or religious teachings. A manifestation of such hostility would be at war with our national tradition as embodied in the First Amendment's guaranty of the free exercise of religion. For the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. Or, as we said in the Everson case [Everson v. Board of Education (1947) 330 U.S. 1] the First Amendment has erected a wall between Church and State which must be kept high and impregnable. [¶] Here not only are the State's tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State's compulsory public school machinery. This is not separation of Church and State.

Note the express incorporation of the "separation of Church and State" concept that traces back to the days of Jefferson and Madison, the two principal architects of the government's neutrality to religion.*

Next, what is probably the most important case in the series for its discussion of the historical pedigree of separation in the context of the Establishment Clause, is Engle v. Vitale (1962) 370 U.S. 421. The Engle case challenged a requirement that each teacher begin each day by leading the class in a prayer: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." Again with only one dissenting vote, the Supremes said "No way:"

It was in large part to get completely away from ... systematic religious persecution that the Founders brought into being our Nation, our Constitution, and our Bill of Rights, with its prohibition against any governmental establishment of religion. The New York laws officially prescribing the Regents' prayer are inconsistent both with the purposes of the Establishment Clause and with the Establishment Clause itself. [¶] [The Framers] knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew, rather, that it was written to quiet well justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men's tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.

Prayer in school seemingly reached an end with the case of Abington Township School District v. Schempp (1963) 374 U.S. 203, which again held, 8-1, that Bible study during public school class time is not Constitutional. After Engel v. Vitale, that result seems obvious. More important are the concepts articulated in the opinion, which held that with respect to religion, "The government is neutral, and, while protecting all, it prefers none, and it disparages none," and "When government ... allies itself with one particular form of religion, the inevitable result is that it incurs 'the hatred, disrespect and even contempt of those who held contrary beliefs.'" Importantly, the fact that a lot of people are of a particular religious belief is of no moment: "While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs."

In Lemon v. Kurtzman (1971) 403 U.S. 602, the Court examined a law allowing a public school district to reimburse a religious school for secular textbooks used in the religious school. It articulated a three-part test to determine if a governmental activity, specifically legislation dealing with religion, violates the Establishment Clause. The test is as follows:

1. The legislation must have a secular purpose;
2. The legislation must not have the primary effect of either advancing or inhibiting religion; and
   
3. The legislation must not result in an "excessive government entanglement" with religion.

If the legislation in question violates any one of these prongs, it violates the Establishment Clause. The third prong is a little bit abstract; the Court recognized this and said that "excessive government entanglement" is determined after an analysis of "...the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority." Now, that seems a little bit similar to the second prong but there is a difference there if you look carefully at it.

Finally, there is Santa Fe Independent School District v. Doe (2000) 530 U.S. 290,** in which the Court examined a student-initiated and student-led prayer before the start of a high school football game. (Note that the area in question is Santa Fe, Texas, not Santa Fe, New Mexico. High school football is serious business in Texas.) The prayers were facially non-denominational, but invoked God in the singular, masculine tense and occasionally referenced Jesus. The court found that the prayers took place

...on school property, at school-sponsored events, over the school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer. [Therefore,] Regardless of the listener's support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school's seal of approval.

It seems no wonder to me that this would have made non-theistic students who did not want to participate in the prayer feel uncomfortable and excluded from the events around them -- especially because they involved high school football games, which are often the biggest and most important social events in many small towns in Texas.

With that backdrop of Constitutional Law in mind, it seems obvious to me that government cannot advance religion generally, because 1) as a practical matter, any advancement of religion generally advances the Judeo-Christian body of religions to the detriment of other religions, and 2) has the effect, if indeed not the intent, of causing those who do not believe in God to be at least partially excluded from certain public, governmentally-sponsored activity.

IV.
Conclusion

It seems a foregone conclusion that the Freedom From Religion Foundation should win this case. I do not think the Court needs to reach the Lemon test in order to rule in favor of the plaintiffs, although I certainly hope it does. To the extent that this is another salvo fired by one or another side in the culture wars, the whole thing is unfortunate -- but atheists are not the ones that conscripted the cowards in Congress and enlisted a willing pasty in the White House to systematically violate the Constitution in Jesus' name.


* I don't want to revisit the issue of Madison and Jefferson's personal religious beliefs here. Their personal religious beliefs are completely irrelevant to the issue of whether they thought the government should be involved in religion. As to that, Jefferson was the guy who coined the phrase "wall of separation" with respect to the proper relationship of government and religion. And Madison, who I concede was a deeply religious man, was a hawkish guardian of the idea of keeping the two strictly distinct from one another, and he spoke wisely when he said:

[I]t is proper to take alarm at the first experiment on our liberties. ... Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever?

** I skip Lee v. Weisman (1992) 505 U.S. 577, because it functionally re-affrims Engle v. Vitale; the facts were different but the result is, for my purposes, close enough that we can treat it as a narrow re-affirmance of the Lee case.

Bark In The Park

We took the dogs out to a dog festival this afternoon. Much fun was had, although the dogs got overstimulated quickly and they did not behave as well as I would have liked. Sassafras got excited about dog cookies and knocked over a basket of doogie snickerdoodles. And they didn't get into the various dog games there -- they're afraid of water so they wouldn't play the jump-in-the-pool-to-catch-the-hot-dog game. Sassafras might be able to catch a frisbee and bring it back, but she'd much rather catch the frisbee and chomp on it. Neither dog understood what the race thing was all about, and they thought the agility ramps were about the scariest thing they'd ever seen since standing water. What can I say, our dogs are a couple of lame-os. So that means they get to go to the groomer instead. Which is where they're off to right now.

Invasion Of The Mealworms

We've seen dozens of creepy little tan-colored worm looking things in the house. Our best guess is that they are mealworms. We have no idea how they got in the house. The pets, of course, are all oblivious to them. Rather than deal with an obviously an intolerable situation, we have summoned the experts to distribute poison.

The exterminator will be here Tuesday. In the meantime, we've evacuated all the non-canned food from the cupboards into the fridge and freezer, where we are instructed that it must sit for three days to let any of the nasty little things in them die. The exterminator told me today that mealworms, like most bugs, do not tolerate cold well and will die when exposed to prolonged cold temperatures. If they are mealworms, though, they're pretty hardy and will survive being at refrigerator temperatures for up to 72 hours. Who knew?

So Tuesday, we get to inspect all the chilled flour and pasta before re-stocking it in the pantry where it belongs. Turns out, you have a lot more room in your refrigerator than you think when you take everything out, get rid of the old stuff you forget about and will never use, and re-stock it with things that have flat surfaces.

In the meantime, it's a lot of runs out for take-out burritos because we can't be sure what food has mealworms in it or not until after the cool-them-out treatment is done.

Icon Bleg

I found a tool that lets me design a "favicon," which is that custom icon that you see in the corner of your browser and on your bookmarks page for various blogs. So I made one with the "not a potted plant" logo -- a little miniature of the plant with the red circle-and-slash. But I need somewhere to host it and I don't particularly want to pay for it. Does anyone know any way I can get it hosted for free so I can link to it in the code of the blog?

UPDATE: It worked! Thanks to Michael Reynolds for the hosting. And his genius kid for the upload.

Lawyers In High Office

Something I read in this post made me wonder – could that really be true? Prof. Kalt writes:

Republicans tend to put non-lawyers on their tickets: going back to 1984, seven of their nine candidates were not lawyers; only Dole and Quayle were” and “the Democrats tend to put lawyers on their tickets: going back to 1984, ten of their eleven candidates were lawyers; only Al Gore was not, though he did attend law school for a year and a half before dropping out.

Wow! If that was right, that's actually a pretty remarkable cleavage between the parties. So I figured, let’s go to the record books and check:

Year	Republican Candidate	Education	Republican Running Mate	Education	Democratic Candidate	Education	Democratic Running Mate	Education
1984	Ronald Reagan	A.B. (economics), Eureka College, '32	George H.W. Bush	A.B. (economics), Yale '48	Walter Mondale	J.D., U. of Minnesota Law School ’56	Geraldine Ferraro	J.D., Fordham Law School ’60
1988	George H.W. Bush	A.B. (economics), Yale '48	Dan Quayle	J.D., Indiana University, Indianapolis, Law, '74	Michael Dukakis	J.D., Harvard Law ‘60	Lloyd Bentsen	J.D., U. of Texas Law School ’42
1992	George H.W. Bush	A.B. (economics), Yale '48	Dan Quayle	J.D., Indiana University, Indianapolis, Law, '74	Bill Clinton	J.D., Yale Law ’73	Al Gore	B.A. (English), Harvard University, '69 Vanderbilt Law and Vanderbilt Divinity from ’74-’76, quit without J.D. or Th.D.
1996	Bob Dole	J.D., Washburn U. Law School '52	Jack Kemp	B.S. (physical education), Occidental College '57	Bill Clinton	J.D., Yale Law ’73	Al Gore	B.A. (English), Harvard University, '69, some law and divinity school
2000	George W. Bush	MBA, Harvard Business, '75 (unsuccessfully applied to U. Texas Law School in '70)	Dick Cheney	M.A. (Political Science), U. of Wyoming, '66 (some doctoral work at UW-Madison)	Al Gore	B.A. (English), Harvard University, '69, some law and divinity school	Joe Lieberman	J.D., Yale Law ’67
2004	George W. Bush	MBA, Harvard B-School, '75	Dick Cheney	M.A. (Political Science), U. of Wyoming, '66, with some pre-Ph.D. work	John Kerry	J.D., Boston College Law ‘76	John Edwards	J.D., UNC-Chapel Hill Law ’77
2008	John McCain	B.S., United States Naval Academy at Annapolis, '58	Sarah Palin	B.S. (Communications-Journalism), University of Idaho '87	Barack Obama	J.D., Harvard Law ’91 magna cum laude	Joe Biden	J.D., Syracuse Law ’68

So yeah, since 1984 it's been all lawyers for the Democrats except for Gore, and he got through nearly two years of law school (and divinity school at the same time) at Vandy before bailing out to follow in his daddy’s footsteps answering the call to public service.

Does the public like lawyers in the White House? Only one lawyer has been elected President in this time, Bill Clinton. Dan Quayle won election as Vice-President but I don’t recall his law degree having much to do with that. Well, I’m sure it didn’t hurt. But Obama and Biden, both lawyers, are on the verge of being elected.

Another thing is interesting, comparing the lawyers and non-lawyers and their highest levels of educational achievement. About half of these men and women took their degrees at elite schools. The other half took them from decidedly middle-of-the-road sorts of places. I mean, Fritz Mondale got a great education at the U, I'm sure, but it just doesn't enjoy the same kind of reputation that Harvard and Yale have. The University of Wyoming is, I'm sure, the best four-year institution in the entire state of Wyoming and I'm sure they're good and proud of alum Cheney. But it's still not quite the same thing as Michigan or Stanford, is it? And for some reason, people seem to diminish John McCain's education at Annapolis -- Annapolis is an academically rigorous institution and McCain's low class position is largely the result of his disciplinary problems rather than any intellectual or academic shortcomings there; his classroom grades were pretty good. But for whatever reason, it doesn't seem to enjoy the same kind of academic prestige of a Berkeley or Chicago.

Now, I'm going to be clear -- not having a law degree does not mean one is unqualified for high office, or that one is not smart enough to hold high office. As I wrote a moment ago, all it means is a familiarity with a particular area of knowledge and governmental activity.

Sarah Palin Is Not A Lawyer

...And I don’t expect her to be a lawyer. But the legal intertubes are still buzzing about Palin trying to B.S. her way through a Katie Couric question about Supreme Court cases other than Roe v. Wade with which she disagrees. And now a Fox News interview with her in which she identified Kennedy v. Louisiana, Kelo v. New London, and Exxon Shipping v. Baker, have people are arguing about whether it's a good or a bad thing that she came up with answers later, after she had a chance to speak with other people.

Holy Krishna in the Eternal Fires, people, this isn't a law school exam. She's running for Vice-President. Is it absolutely necessary that the Vice-President be instantly fluent in contemproary Constitutional analysis? Or do you think she might be able to leave that to her own lawyers to help her out and the republic might not come to a crashing halt if she does?

Now, ask any non-lawyer, even very smart ones, this question: “Other than Roe v. Wade, are there any Supreme Court cases you can think of with which you disagree?. You won’t get a response that a lawyer would find hugely useful unless the lawyer was being charitable to the non-lawyer respondent. A very intelligent, very well-informed, conservative non-lawyer might be expected to say something like:

“The Court decided a case not too long ago that said it was OK for the government to condemn land and then just turn it over to a private developer. I disagree with that.” (Reference: Kelo v. City of New London.)

Or maybe a small step down from that, “I think we should execute rapists, especially when their victims are little kids.” (Reference: Kennedy v. Louisiana.)

Or, maybe, “Giving a terrorist in Guantanamo Bay all the same civil rights a regular person has here in the states. I think that was a bad idea and the law shouldn’t be that way.” (Reference: Boumediene v. Bush, not quite an accurate recital of the holding in that case.)

Go a step further down, and you might get something like “I think it was wrong of them to take ‘Under God’ out of the Pledge of Allegiance.” (Reference: Elk Grove Unified School District v. Newdow.) This is a step down from the Boumediene example I suggested because it gets the holding exactly wrong, not just a little bit. But it does demonstrate awareness of something that the Supreme Court was at least asked to do.

And I think we could all live with something like: “You know, I don’t know any particular case, or at least I can’t think of one off the top of my head right now. But it seems to me that the Supreme Court has made a lot of decisions that are out of step with what a whole lot of Americans would like to see.” (No specific reference.) This is a significant step down because it doesn’t even identify an issue, but at least indicates that there are some awareness that the Court makes decisions that are politically unpopular and evidences a desire for those decisions to be more harmonious with the political will of the people, which may not be a fully-informed understanding of the Court's role, but it is an articulated, understandable political position to take.

And I for one will even accept: “Frankly, I’m not a lawyer. I’m sure that if I got to sit down and study the issue some, or if I had someone to help explain what the Supreme Court had decided recently, I could find some more decisions that we can talk about then.” Or, as Tina Fey playing Sarah Palin might say, “I’ll have to get back to you on that.” Seriously, that's good enough when you're talking about a subject beyond a person's expertise.

I know a lot about law and politics, a fair amount about economics and history, enough about art both high and low to not humiliate myself at a cocktail party, an assortment of miscellaneous information I've learned in litigation, and not a whole hell of a lot about astrophysics or genetics. If I got put on the spot about who was doing the best research right now into the causes of Down Syndrome, and who should get their funding pulled, I'd have to do some research before giving an intelligent response. Even then, I'd probably only repeat what I was told by someone who had expertise in that field, and who I trusted. That would be, in most circumstances, an entirely reasonable thing for me to do.

So from a non-lawyer, any of these responses to a question about what cases one disagrees with would be acceptable. Frankly, from a non-lawyer running for high office, any of these responses to that question would be acceptable. I cannot fault Gov. Palin for not being instantly fluent with things the Supreme Court does – for most people, the Supreme Court is a pretty obscure and mysterious institution. If you don’t believe me, try playing this trivia game.

So that leaves us with the question of how to process Palin’s extemporize-your-way-through response to a question that she just didn’t know the answer to. Our choices are to assume that she:

A) Is just a bullshitter and tried to bullshit her way through a tough question

B) Forgot her preprogrammed talking points, or maybe was never fed talking points to regurgitate on that subject

C) Didn’t know any specific answer so she tried to explain what sorts of things she found objectionable about recent Supreme Court decisions in a very generalized sense, and maybe it didn’t come out all that fluid.

I’m leaning “C.” She may be out of her depth (and my review of the debate transcript does little to change that opinion) but this is an area where I can see a Vice-President being out of her depth without significant danger to the country – and a policy area in which the Vice-President would probably not be particularly active in government anyway, unless she became President in the event of the elected President’s death, in which case she could still rely on the advice of the Attorney General and other advisors around her and take her time to prepare a response to something the Court had done anyway.

Sure, it would have been better if she’d been super-honest and said something like “I’m not a lawyer and at the moment, I’m not really prepared to answer that question,” but in today’s world of “gotcha!” journalism and trivia politics, that might be too much to ask for, even from a “breath of fresh air” like her.

Indy Five

No, no, no! Messrs. Lucas, Spielberg, and Ford, you went back to the well, and when you did you decided to call Indy's long-lost son "Mutt" instead of Henry Jones III. And you cast Shia LeBoeuf.

So now you need to be done with it. Knock this sort of thing off.

Let it go already.

Someone New To Blame For The Mortgage Crisis

Christians. Or at least, some of them who subscribe to some of the more transparently false kinds of "theologies". See – there's plenty of blame to go around!

Division Playoff Series 2008

October ball is usually fun, but this year it's way fun. In each of the four division playoff series, I actually have teams I can root for.

To start off, the Brewers are in some trouble after losing tonight. They need to take three straight from the obviously superior Phillies. At least the next two will be at Miller Park. I'm hoping for Brewers in five, because that's the only way it can be Milwaukee now. I'm thinking, though, it could easily be Philly in four.

The Dodgers should be favored against the Cubs. Yes, Chicago-N has better swat going on, but Manny is a mitigating factor, and L.A. has better pitching and better fundamentals on defense. And Joe Torre is still the big man in the dugout. I think the Dodgers can take this series in five.

From the O.C., I've got to root for the Angels. Yeah, I know the local minor league team is an affiliate of the Red Sox but come on; the Angels are fun and scrappy and Mike Scoscia is still one of my favorite managers for bringing small ball back to the big leagues. The Red Sox are damn good, though, so I think they'll make Anaheim go all five before giving it up.

And pity the White Sox, because they've got to play against Cinderella. How can you not want the Rays to win and take a shot at the pennant? Tampa Bay has been such a joke in baseball for so long, you've got to feel good about them finally showing some real talent. Normally, I'd say Chicago-A had the edge in pitching, but without Contreras, it's actually kind of a close call. Tampa can knock this out in five. Maybe four if Griffey can't bring it at home, which I hve a sneaking suspicion might be the case.

Milwaukee-L.A., and L.A-Tampa for the pennants. How awesome would that be? I think a Chicago-Chicago World Series would be interesting... to people in Chicago and nowhere else. Something about the idea seems drab to me. If that happens, I'll probably be all, "Oh, yeah, I hope the Cubs get it so they can break their drought." But I won't have the passion for it that a Cubs fan would.

If I predict three out of four series right, I'll call that pretty good. Milwaukee, I'm not feeling so good about, though.

Bet You Couldn't Have Seen This One Coming

I didn't watch the Joe and Sarah show tonight. Instead, I went out to dinner with lawyers in my firm and my wife tonight instead. I heard about three minutes on NPR and Palin didn't sound like a fool -- it was a fast-paced, polarized exchange that illuminated nothing about whose tax and health care plan would be good and whose would be bad. But I saw a graphic of poll respondents' reactions on the TV as we left the restaurant. You'll never guess what it showed:

Republicans thought Sarah Palin won. Democrats thought Joe Biden won. Independents were about evenly split.

Prisoners Have It Easy

While we were in Wisconsin, my mother-in-law expressed a very common resentment of people who commit crimes, go to prison, and then get free medical care there. If you think about it, there isn't any choice about giving medical care to prisoners. They can't go out and get it for themselves, so the state has to bring it to them. It would be cruel and unusual punishment to let a prisoner who was really sick go untreated. It just can't be any other way, and that's just an expense of having a prison in the first place.

The proof of that is this case. I’m no doctor, but I know that the proper treatment for penile cancer is not an extra allotment of boxer shorts.

Yes, prisoners are people who have done bad things and been duly convicted for it. They are deprived of their liberty and confined to prisons as punishment, which in my opinion is a pretty awful thing to do to someone. I’ve no doubt that whatever this guy did, it was bad and I’ll stipulate that he deserved to be punished for it. But no prisoner anywhere should be sentenced to death this way.

In Favor Of A Minor Iconoclasm

The phrase "in God we trust" first appeared on United States currency today. In 1957.

"In God We Trust" did not appear on the money used by the Founders. Consider, for example, this image of a Revolutionary-era paper note for two-thirds of a dollar, issued by the state of Maryland. Or this seventy-five cent note from North Carolina issued in 1817. No God anywhere, either in text or in pictorial symbols.

The use of the phrase, adopted as a second motto for the country in the late days of the Civil War, was intended to reinforce the wave of resentment, fear, and national unity in response to the threat posed by global communism. Both Maoist and Stalinist flavors of communist socialism were explicitly atheistic, and they were the enemy in those days. And our currency was the strongest, most reliable money on the planet, used world-wide. So God made it on to the money so we could stick it to the Reds.

1957's adoption of "in God we trust" was a change, an innovation. And it matters intensely to some people, who consider the potential removal of this phrase from currency to be an* intrusion on their personal relationship with God.

It has been argued, even by jurists who usually inspire respect and praise from me for their thoughtfulness, that the use of explicitly religious phrases like this in civic life have become functionally meaningless. Take, for example, Justice Sandra Day O'Connor, concurring in the case of Elk Grove Unified School District v. Newdow (2004) 524 U.S. 1, concerning the use of the late grafting of the phrase "under God" to the Pledge of Allegiance:

There are no de minimis violations of the Constitution--no constitutional harms so slight that the courts are obliged to ignore them. Given the values that the Establishment Clause was meant to serve, however, I believe that government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution. This category of "ceremonial deism" most clearly encompasses such things as the national motto ("In God We Trust"), religious references in traditional patriotic songs such as the Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions ("God save the United States and this honorable Court"). See [County of] Allegheny [v. American Civil Liberties Union, Greater Pittsburgh Chapter (1989) 492 U.S. 573], at 630 (opinion of O'Connor, J.). These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all. [¶] This case requires us to determine whether the appearance of the phrase "under God" in the Pledge of Allegiance constitutes an instance of such ceremonial deism. Although it is a close question, I conclude that it does...

Frankly, I think Justice O'Connor, despite a detailed and thoughtful evaluation of the history of this and similar phrases, got it wrong here. While I understand that it is offered as a balm to smooth over an emotional flashpoint, I reject categorically the concept of "ceremonial deism." An invocation of God is, by definition, not a secular act. The idea of "ceremonial deism" being meaningless is disproved by the very fact that religious people get intensely upset about the idea of removing the phrase -- people would not get upset about something which truly lacks meaning. 1957's adoption of "in God we trust" was a change, an innovation. And it matters intensely to some people, who consider the potential removal of this phrase from currency to be an intrusion on their personal relationship with God,* which of course is sheer nonsense. Christians do not worship money, they worship Christ, and the act of worship does not necessitate the use of money in any fashion.

Although the oft-repeated and little-understood exhortation of Jesus to "Give unto Caesar what is Caesar's" smells like a pro-establishment edit into the disestablishmentarian Christian Gospels to me, the underlying sentiment is a good one regardless of its true source: civil and religious authorities are fundamentally different and not to be confused with one another. But putting "In God We Trust" on money, or in other fora of public and governmental expression, the government is 1) explicitly stating that there is a god in the first place, 2) telling the public that this god is worthy of trust, and 3) implying that good citizens should agree with the government in trusting the god in question -- thereby advocating the worship of that deity. And since I do not believe that there is a god in the first place, my response to this symbolic message is that a reminder that I am a member of a despised minority.

So I'm in favor of a little bit of iconoclasm here -- a secular government should not invoke Jehovah (for is there any doubt that Jehovah is the "God" in whom we should trust?) or impliedly advocate the existence or worship of any particular deity. Not enough to launch a crusade or even engage in petty howl-at-the-moon kinds of passive-aggressive sorts of protest. My money spends just as well with God on it as it would off of it, and for the most part I use electronic money for transactions anyway.

I would prefer to see the phrase replaced with the original motto of the United States: "E Pluribus Unum." The money looks just as good with that phrase.


* I almost typed "sacrilege" until it occurred to me what the real meaning of that word is. I'm not making that up.

Just A Bit Over The Top

...You know, I can understand supporting your candidate. But this is a bit creepy.

Battlegrounds Shift

Fivethirtyeight.com is showing this as today's average projected outcome map for the election:

Somewhat dispiriting for the GOP. I mean, Indiana -- a dead heat. Indiana -- the home of Dan Quayle and the highest per-capita NRA membership east of the Rocky Mountains. Your typical Hoosier's idea of a liberal vote is Evan Bayh. And McCain is running neck-and-neck against an unreconstructed Great Society quasi-progressive Democrat there.

Never mind Colorado and Virginia. McCain isn't fighting for the win right now; he's fighting to maintain some semblance of dignity.

Keep in mind that the polls used to build this map were completed before George W. Bush took to the airwaves to scare the hell out of the entire world and before Congress failed to pass the bailout bill because House Republicans lacked sufficient leadership to support something the President had asked them to support. Come Saturday or Sunday, we'll start to see some early polls reflecting what will happen then. I might expect it to look something like this:


For those of you keeping score at home, that would be Obama 413, McCain 125. Even with things looking as bad as they are, I can't see McCain doing much worse than this, no matter what happens. But then again, McCain might wind up tied with Barry Goldwater and just above Walter Mondale on the list of Electoral College Blowout Victims.