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.

Martha Coakley Says Today What Needed To Be Said Thirteen Years Ago

...and that is that the Federal Defense of Marriage Act is unconstitutional. Here, in a nutshell, are the theories advanced by Massachusetts' Attorney General:

• Federalism. The Tenth Amendment reserves the power to define marriage to the states. Therefore, the Federal government may not define marriage. If Massachusetts says a gay couple is married, they're married, and the Federal government doesn't get to say otherwise. Therefore, Congress exceeded its power when it passed DOMA.
• Equal Protection. It effects a denial of the equal protection of the laws to same-sex spouses in Massachusetts. An individual who is married in Massachusetts to an individual of the same sex does not have the ability to file a joint tax return and take advantage of the moderately favorable tax rates that an individual who is married to an opposite sex spouse in Pennsylvania could. There is no compelling or even rational reason for the government to have done this. Further, it compels states to treat same-sex spouses differently than opposite-sex spouses, even ones that recognize same-sex marriage, because same-sex spouses are treated as single people for (for instance) Medicaid benefits which are funded by the Federal government and then administered by the several states.
• Discriminatory Animus. Under the case of Romer v. Evans (1996) 517 U.S. 620, a law passed by initiative was determined to be motivated by a desire to discriminate against homosexuals, and therefore this law violated the Equal Protections Clause. A similar standard should apply to the federal government, and the Defense of Marriage Act was enacted with a legislative intent to treat homosexuals disadvantageously as compared to heterosexuals.

The strongest argument, I think, is the first. It's also the cleverest. The last argument is the weakest. It's not clear to me that Congress was motivated by a desire to disadvantage homosexuals so much as it was motivated by a desire to mollify religious conservatives when it passed DOMA. But it's the middle argument -- the one relating to Federally-funded, state-administered programs -- that gives standing, and that's kind of the critical issue in every Federal lawsuit.

Read the whole complaint, styled Massachusetts v. Sebelius, here, courtesy of LawDork.

By the way, it's not an argument to say that the Equal Protections Clause applies only to the states. The guarantee of equal protection applies to the Federal Government as part of the Fifth Amendment's guarantee of due process. For this proposition, I refer Readers to the unanimous decision of the Supreme Court in Bolling v. Sharpe (1954) 374 U.S. 497, citing Hurd v. Hodge (1948) 334 U.S. 24: "In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution."

Local News Team Denied Action Coverage

A local TV reporter in Cleveland wanted to get coverage of an interesting local story. Only by the time the news van got there, the opportunity was gone. But no worries - the reporter and cameraman team found a solution. Of sorts. You have to see this to believe it.

Hat tip to Volokh, who got it from startup blogger Jillian.

The Force Will Not Be With Her

Big Hollywood blogger Kurt Schlichter is, I fear, a bit too fond of Sarah Palin for his own good. He wrote yesterday that her abrupt and as-yet unexplained resignation from the Governorship of Alaska may have been prompted by media criticism of her and vicious attacks on her family, but this has made her “more powerful than [her enemies] can possibly imagine.” A cute analogy, especially with the clip from Star Wars. But Schlichter’s Obi-Wan Kenobi analogy is simply not right. I know that Sarah Palin fans want to believe what Schlichter is writing turns out to be true, but wanting it doesn’t make it so.

Soon-to-be-former-Governor Palin is not stronger now than she was before and certainly will not become stronger than her liberal critics can possibly imagine in the future. She is weaker now, not stronger, than she was even a week ago. She will only become weaker once she becomes “Former Governor Palin.” In order to gain power, you need to show that you can use the power you already have effectively. No less a staunch partisan Republican political strategist than Karl Rove agreed with former Presidential candidate Mike Huckabee that her resignation is a “risky strategy” that has left him “perplexed.”

First, if she’s going to try and build a national campaign starting now, this is a very unorthodox move and consequently, she’s shooting herself in both feet. Three recent examples demonstrate that bailing out of government is a bad way to prepare for a Presidential campaign:

A) Hillary Rodham Clinton. Eight years’ worth of machinations, resume-building, maintenance and upgrades to an already-impressive political machine, and what's more, possibly the most impressive set of political alliances and presumptions of inevitability did not result in President Hillary Clinton. Senator Clinton was outdone by then-Senator Obama virtue of the fact that fundamentally, she did not have enough personal executive experience running an enterprise like a Presidential campaign. At best for Palin, she has not yet demonstrated the kind of executive skill necessary to do that. Palin fans will likely bristle at this characterization of Governor Palin, but see my explanation below examples B) and C).

Nor has she been able to convince me that she is capable of personally overseeing the kind of political machine-building that Clinton did during the Bush Administration. Maybe she wouldn't need to if she piggybacks on the "movement," which already exists and already has machinery of its own in place. That seems to be how she catapulted herself onto the stage of state politics several years ago.

B) Fred Dalton Thompson. He didn’t declare for months after the primary season opened. He assembled “virtual” machinery, recording YouTube videos from a small studio in his house. He skipped debates and continued to party like a private citizen. He didn’t network, didn’t fundraise, and took too long to put together a platform on the issues – and when he did get around to doing that, he didn’t look or sound all that different than the guys who had been out on the campaign trail for months. He didn’t win a single delegate and got only eight unelected delegates to commit to him before he released them to McCain.

An unorthodox campaign style with “new machinery” did not produce President Fred Thompson – for all the talk of the “new machinery” Obama assembled, a scandalous amount of his electoral power came from old-fashioned volunteer work, and even more old-fashioned dirty tricks like ballot-box stuffing and polling-place thuggery. What was new about Obama was that he found a new way to build the old-fashioned machinery. What was new about Fred Thompson was that his non-traditional campaign produced non-traditional results.

C) Rudolph William Lewis Giuliani. Remarkable personal charisma and six years’ worth of groundwork raising money for himself and for the political allies he sought as backers was not enough for Rudy! to find purchase in the Republican Party. Too many strange things from his past, too many bad decisions made along the campaign trail. Now, in his case, he did not reverse position on abortion, but he did promise "movement conservatives" that he would appoint "strict constructionist" judges to the Supreme Court, and as we all know, "strict constructionist" is conservative code for "Will vote to overturn Roe v. Wade," something that is so far on top of the conservatives' wish list that they seem willing to forgive nearly anything else a politician or a judge does as long as they do that.

Sarah Palin, too, has outstanding personal charisma and unlike Rudy! she is personally pro-life and does not need to cozy up to the religious right on this issue. Now, I presume that if she is quitting now to lay the groundwork for a run full-time and from a location more convenient than Juneau or Wasilla. She will do the same thing that Rudy! did from 2002 to 2008 by whoring himself out to other candidates to give speeches and lend his political support and fundraising ability to them. Palin, too, can only try to make the right friends by raising money and making campaign appearances for them in 2010. But making very strange decisions – personal, policy, and political – are a pattern that can be found in Sarah Palin’s abbreviated political history, as well. The resignation is only the culmination of a series of odd decisions she's made, from "going maverick" in the middle of the McCain campaign to letting herself get interviewed in front of a working open-air poultry slaughterhouse to demanding new elections for Senator after it seemed to her the voters of Alaska voted wrong. And this bodes very poorly for her abilities as a candidate.

As promised, here is my thesis for Sarah Palin’s unproven executive ability. Sure, Alaska has a balanced budget, but that’s because it makes so damn much money on its excise tax that a fourth-grader could balance the state’s budget. Palin's brief tenure as Governor of Alaska has been highlighted by a number of ethics investigations that found the Governor to have abused her authority but which lacked the teeth to punish her in the face of a generally-friendly Legislature -- the most high profile of which she claimed exonerated her when in fact the exact opposite was true. Also, she presided over the the creation of a natural gas pipeline that had been in the works for four years before she assumed office, vacillated on accepting Federal pork money, and the institution of helicopter wolf hunts (which may make sense if you accept the idea that wolves in Alaska needed to be culled, but it just looks bad and besides, this is hardly a towering accomplishment). She took on some corruption in her own party, which was good, but has been unable to escape the taint of corruption herself. You can find the rumors about how her really nice house got built yourself.

Second, whether there is a scandal or corruption problems with her or not, it looks like she’s stepping down because she has something she wants to hide. You could say, “She wants to protect her family from this evil media machine,” and I’d totally respect that if it were true. But if she refuses to endure the media circus, then that means that she doesn’t want to run for President (at least, in a way which would be reasonably calculated to her actually winning). The fact that it looks like she’s running out of the kitchen because she can’t stand the heat is what’s important, because perception matters more than reality. I’ve heard more than a few rumors that the scandal she is ducking has to do with her time as Mayor of Wasilla rather than as Governor of Alaska, with a deal that looks really similar to the Ted Stevens scandal.

(An aside: Palin didn’t win any points with me for sticking up for Ted Stevens, either. That’s not to say I think the prosecutors handled the case against him well, because they didn’t. Stevens is a free man now because the prosecutors overstepped the case. But to say the prosecutors screwed up the case is not the same thing as saying Stevens was innocent. The evidence strongly suggests he was on the take, and we don’t need a figure of towering, arrogant, unapologetic corruption as a leader in the GOP. We now return to the peroration of your regularly-scheduled jeremiad.)

There were people -- nearly all of them self-identified "movement conservatives" -- who wanted Dan Quayle to run for President in 1996, in 2000 and even still had a few die-hard proponents early in the 2008 cycle. Quayle’s supporters were attracted to the former Vice President for the same sort of visceral reason that they are attracted to Governor Palin now: he was an object of derision and hate by the left and they felt sympathy for him as a whipping boy who didn’t really deserve the abuse he got. This was a reaction to a choice made by the Left. Had the Left not savaged Quayle so thoroughly, the Right would have picked a different avatar.

This was, and still is, bad politics -- don't let the Left pick your candidates for you because they're going to pick the one that they think they can beat easiest. That person, right now, is Sarah Palin. Ever since her resignation, every Democrat I know has said, "I hope this means she does run for President, and I hope you guys are dumb enough to nominate her." This is the political equivalent of the double-dog dare. These Democrats say that not because they fear or despise Palin. (Well, they do despise her, but that's because she's a "gender-traitor," a woman who dares to adhere to a political point of view at variance with the "feminist" constellation of policy positions.) It's because like Republicans, they like winning. And hey're convinced they can beat her.

You may (correctly) think the Democrats are wrong-headed about (many of) their policies, and you may find them (more or less correctly) to be morally bankrupt as a political unit and as represented by their leadership. But don't let that fool you into thinking they're stoooopid.

Dan Quayle was irrelevant in 2000 and even more irrelevant in 2008, and he had the good sense to realize that. He shows up to events, speaks to the rank-and-file faithful, raises some money, and then he goes home. Dan Quayle’s past is Sarah Palin’s future.