An Atheist On The Court?

Marc Cooper writes in today's Fish Wrapper that the right pick to the Supreme Court to replace John Paul Stevens would be an open atheist.  He confines himself to making some obvious points about how one's religious beliefs do not and ought not be considered to define one's actual civic virtues, and worries that the strict separation demanded by the Constitution has fallen into light regard today.  Still, for all the headline-grabbing cachet of Cooper's column, I've got three simple sentences in response:

Not.  Gonna.  Happen.

Here's why.  First, President Obama himself is -- or at least publicly identifies as -- a deeply religious man; he wrote in his autobiography about powerful personal religious experiences, like finding Jesus and entering the fellowship of an active church engaged in many charitable works intended to benefit the community.  He has also indicated that he cares about a judge's ethical and emotional makeup, and will look for someone whom he sees as being cast from a similar sort of fiber as himself.  This excludes a nonbeliever almost a priori.

Second, while Obama has thrown a few bones of recognition and inclusion to non-believers, both the depth and breadth of his core political support groups are based in no small part on being identified with religious people.  Contrary to what a few True Believers insist about him being a secret Muslim, the vast majority of people in the country take him at his word for his religious identification and like him more because of it.  At the same time, atheists are the most despised minority in America, and Obama has been careful to not get too close to them in making his public statements.  When representatives of the Secular Coalition for America were invited to the White House, for instance, they were briefed by a lower-level staffer and the President himself was nowhere to be found.  This is not so big a slight, seeing as a group of secularists had never before been invited to the White House at all, but let's not mistake it for a regular seat at the table, which is something Obama lacks the political flexibility to offer.

Third, there is Jeffrey Toobin's taxonomy of Supreme Court jurisprudence.  There are two kinds of cases the Supreme Court hears:  first, there are cases involving abortion rights, and second, there is everything else.  Both parties have their opposing litmus tests on this issue and even though everybody winks at this fact, let there be no doubt that if there is an overriding attribute Obama is looking for in a Supreme Court Justice, it is to vote against further erosion of abortion rights.

Finally, let's not forget what it is that a Supreme Court Justice is supposed to do -- understand and apply the Constitution to particular cases, in such a manner as to extract important principles and guide the future development of the law.  At its core, the Supreme Court is a court of Constitutional law.  The individual religious outlook of a Justice is no more important to his or her ability to do that job than is the Justice's race or eye color.  Religious belief is simply not as important as the ability to understand the implications of complex Constitutional arguments and the ability to distill the policies and concepts in play down into usable legal rules.

With that in mind, let's take a look at a pretty good assessment of the the short list: 

• Martha Minow, dean of Harvard Law School
• Elena Kagan, Solicitor General, former Harvard Law dean
• Sid Thomas, Montana federal appeals court judge
• Merrick Garland, federal appeals court judge, Washington DC
• Jennifer Granholm, Michigan governor
• Diane Wood, Chicago-based federal appeals court
• Janet Napolitano, Secretary of Homeland Security
• Leah Ward Sears, former Chief Justice, Georgia Supreme Court
• Ann Claire Williams, federal appeals court judge, Chicago

I haven't done any deep research into any of these possibilities to determine their religious identification.  But from this list, it would seem that religious identification simply isn't a big factor in the first place.  So, who on this list is Cooper trying to choose?

The Mojave Cross Stays

I have been absolutely swamped at work so it's been a little difficult to find time to analyze the Salazar v. Buono case. Hopefully once I get through trial season and regain my off-work focus, I'll be able to be a more frequent writer. And this case is an absolute mess. This excerpt from the syllabus demonstrates that:

KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., joined, and in which ALITO, J., joined in part. ROBERTS, C. J., filed a concurring opinion. ALITO, J., filed an opinion concurring in part and concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. BREYER, J., filed a dissenting opinion.

The factual background is interesting and important to some of the Justices. Back in the 1930's, some private citizens put up a cross on this rock outcropping in a remote part of California's Mojave Desert as a memorial to the veterans who died in the Great War. (They didn't yet call it World War I, because World War II hadn't happened yet.) Later, this land became part of the Mojave National Preserve and fell under Federal management. The cross has fallen or been torn down many times, and rebuilt each time by private citizens under the loose organization of a local chapter of the Veterans of Foreign Wars. Some people gather there every Easter for religious services. For a time, there was a plaque there indicating that the cross was a war memorial but it is not there now. When an employee of the National Park Service complained that he didn't think it was right that the Federal government displayed a religious symbol, he filed suit and for a time the Courts ordered that the cross be "not displayed," with the result that the cross was put under plywood boards that were removed by volunteers for the Easter services and then replaced. Seeking to maintain the cross became a minor political cause, and Congress eventually decided to take action – first designating the cross a national monument and then authorizing a swap of the one-acre parcel of land upon which the cross sits to the VFW in exchange for a five-acre parcel the VFW would dedicate to the Mojave National Preserve, thus enlarging the preserve by four acres and allowing the VFW to maintain the cross. The question was whether this act of Congress authorizing the land swap, obviously intended to allow the cross to remain on display, was constitutional and if not, what the remedy should be.

I wouldn't do this with every case; normally I'd just look at the majority and the dissent the way I did a few weeks ago with Newdow v. Rio Linda case from the Ninth Circuit. Perhaps the best way to look at the case is to make a chart showing the positions taken by each of the nine Justices and show where the Court is at.

Issue?	John G. Roberts (Plurality, concurrence)	John Paul Stevens (Principal Dissent)	Antonin Scalia (Concurrence)	Anthony Kennedy (Plurality)	Clarence Thomas (Joins Scalia)	Ruth Bader Ginsburg (Joins Stevens)	Stephen Breyer (Second Dissent)	Samuel Alito (Plurality, concurrence)	Sonia Sotomayor (Joins Stevens)
Does Buono have standing to challenge the cross in the first place?	Yes.	Yes. Congress clearly passed this law to dodge enforcement of a prior injunction in Buono's favor, and Buono can pursue enforcement of that injunction today.	No. He has standing only to prevent the cross from being displayed on Federal land.	Yes. He had standing to challenge the cross being there in the first place, so he now has standing to challenge the new law.	No.	Yes.	Yes. In essence, agrees with Kennedy that Buono's earlier standing to sue is still in effect for this case.	Yes.	Yes.
What remedy is Buono entitled to if he wins?	Joins Kennedy.	Enforcement of the injunction as it is properly understood, which requires that the cross come down and not go back up.	Nothing; he cannot win because he has not been harmed by the land swap.	A new injunction preventing the land swap.	Joins Scalia	Joins Stevens	An injunction requiring the cross to be taken down.	Joins Kennedy	Joins Stevens
Does the new law require a new inquiry into whether the cross can stay or not?	Joins Kennedy.	No. The cross was unconstitutional before and the new law is specifically written to foster display of the cross, which itself violates the Constitution.	No. The cross cannot be on Federal land and the land swap makes the land non-Federal, so no further inquiry is necessary.	Yes. The new law is a new circumstance and the courts should presume Congress did not intend to violate the Constitution.	Joins Scalia	Joins Stevens	No. The court already decided that the cross violates the Constitution and does not need to address that issue again.	Joins Kennedy	Joins Stevens
Is the length of time that the cross has stood in the desert important?	Joins Kennedy.	Yes. The fact that the government had it on display on Federal land for so long irretrievably conveys a message of endorsement of Christianity by the Federal government, even if the land is later transferred to a private party.	No. What's important is that the cross is either on Federal land or non-Federal land; the land swap would result in the cross being on non-Federal land in the future and that's all we care about.	Yes. Since the cross has been there for more than 70 years without challenge, it is part of the public consciousness and removal of it now would evidence hostility to religion by the government as well as disrespect for the war dead.	Joins Scalia	Joins Stevens	Yes, but there is no need to inquire into that issue further because it has already been taken into consideration by earlier decisions finding that this cross violates the Constitution.	In essence, joins Kennedy	Joins Stevens
Is a "Latin Cross" always a religious symbol?	Joins Kennedy.	Yes; sometimes it has a dual meaning as a symbol of remembrance, but it always has some degree of religious content.	Did not address this issue.	No. Sometimes it can be a symbol of death and remembrance, even as to the dead who are not Christian.	Joins Scalia	Joins Stevens	Did not address this issue.	In essence, joins Kennedy	Joins Stevens
Does the opinion of a "reasonable observer" about whether the cross constitutes an "endorsement of religion" by the government matter?	Joins Kennedy	Yes. And that observer would look at all the circumstances and conclude that Congress intentionally passed this law to keep the cross on that rock and thus advance the cause of Christianity.	Did not address this issue.	Probably not. But even if it did, that reasonable observer would find that the cross in this instance is a war memorial and not an object of religious significance.	Joins Scalia	Joins Stevens	Yes. The government obviously intended to have the cross on public display after the land swap and this conveys an endorsement of religion.	No reasonable observer seeing the government transfer ownership of the cross to a private entity could conclude that the government is endorsing Christianity.	Joins Stevens
Can the land swap proceed?	Yes. Requiring the Park Service to tear down the cross, then transfer the land to the VFW, which will undoubtedly put it back up and be a private display, is asinine, so it's OK to just transfer the land as-is.	No. There is no need for further fact-finding; we can tell what Congress did and why it did it, and the land swap would violate the Constitution so it should be enjoined here and now.	Yes. It must proceed in order to comply with the injunction and the law.	Maybe. We can't know for sure what will happen after the land transfer or how the transfer will be understood, so more facts have to be developed at the trial court level.	Yes. Joins Scalia.	No. Joins Stevens.	No. The original injunction prohibits it.	Yes. And it can proceed right now, since Congress has selected from one of many different possible appropriate means to avoid the government maintaining the cross while still achieving the political objective of having the cross stay up on the rock.	No. Joins Stevens.
Is any additional information necessary?	Yes. Joins Kennedy.	No. Congress' intent is clear, and it violates the Constitution.	No. Buono has not been harmed by the proposed land swap.	Yes. More information about Congress' intent and what the VFW will do needs to be put in the record.	Yes. Joins Scalia.	No. Joins Stevens.	No. Essentially agrees with Stevens.	No. Of course the VFW is going to keep the cross up, and Congress wanted that to happen; it's OK that Congress wanted the cross to stay up.	No. Joins Stevens.

Notable from Kennedy's opinion is his statement that "The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society." Five Justices – the four dissenters and Justice Alito – all agree that Congress quite transparently wants the cross to remain standing. Alito, unlike his Brethren in dissent, has no real problem with that.

I'm also gratified to see Justice Sotomayor voting with the dissent.  Much has been made that Justice Sotomayor is Catholic and her Brother Justices who are also Catholic -- Roberts, Scalia, Kennedy, Thomas, and Alito -- all seem to have visions of a very weak separation between church and state.  I had been apprehensive of her opinions on religion-government issues based on a case she heard while on the Second Circuit.  Here, though, she seems to have signed off of the strictest separation opinion available, making the dissenting opinion the one that obtained the most votes and articulated the most coherent theory.

With that said, although I disagree with the result he reaches, I must say that I found Justice Alito's opinion to be persuasive, direct, and wonderfully-written.  His talents as a jurist really show through.

But equally notable is the fact that in order to permit the Government to take action to maintain the cross, Justice Kennedy must step out of his role as a judge and step into the role of art critic. His intensely context-driven approach tries to have it both ways – to say that yes, the cross is a religious symbol and that's okay, the government does not have to pretend religion does not exist and does not provide people with powerful emotional experiences, and at the same time to say no, this cross, on this rock, in this desert, in this setting, with this history, is not a religious symbol but instead is a symbol of remembrance of the noble dead of our nation's wars now gratefully consigned to our history. To preserve the religious symbol, in other words, he must drain it of religious significance.

If I were a Christian, I'd find that notion more than a little bit disturbing. I only get my religion recognized by the government when the religious symbols lack religious content?

But I'm not a Christian, so instead I find it more than a little bit dishonest. Are we supposed to all collectively wink at the religious significance of the cross and pretend that it isn't a symbol of Christianity? I completely agree that the cross is a powerful symbol that can be used as a symbol of death and remembrance, as a marker on a grave, and is very effective at communicating that idea. But at the same time, it's inextricably intertwined with, inherently the same as, the symbol of the death of a particular man, Jesus, which is one of the central events in the mythology of Christianity. You can't separate out the secular and religious elements of this symbol.

As a lawyer and I find the idea of judges acting as art critics more than a little disturbing. Why does Justice Kennedy's personal interpretation of this cross, on this rock, in this patch of desert, with this history behind it, matter? How is Justice Kennedy's opinion about those facts any better than mine, or yours, or Pastor Joe's, or Rabbi Klein's, or my dog's? At minimum, if we're going to engage in a judicial inquiry about the artistic content and messages expressed by a particular piece of art, well, let's hear from some experts with training and experience in interpreting art. Let's hear from art critics, art history professors, and actual artists.

The big issue in the case is the continued vitality of the "endorsement test." It seems to me that the test is still valid, although it is in significant danger. The Court adopted the "endorsement test" in a case called Santa Fe v. Doe, which had to do with student-led prayers before high school football games in Texas. Under that test, an Establishment of religion is found when a reasonable, objective observer, who is aware of not only the wording of a particular governmental policy but also its history, the intent of the body that adopted the policy, and the way that the policy is actually implemented, would look at all of the relevant facts and conclude that the government was endorsing a particular religion by saying to its adherents that they were favored or part of the "in" group and people who did not subscribe to the religion were part of the "out" group.

The plurality stopped short of saying that the "endorsement test" is not the appropriate way to decide whether an Establishment has happened or not. It actually went through the motions of applying the test to the facts of this case and finding no endorsement. Both dissents explicitly adopted and applied the test and found an endorsement. Only Scalia's opinion (joined by Thomas) did not address the issue of endorsement. But Scalia and Thomas are on record as disapproving of the endorsement test and opinion that it is not really the law at all. Roberts and Alito addressed the test but did not agree that it was the law. So as many as five Justices seem to think that it isn't the law; but seven out of the nine Justices actually applied the test.

It is with respect to this issue that we must most carefully look at whoever it is that President Obama nominates to replace Justice Stevens.

I'm headed out to Las Vegas tomorrow.  If there's time, maybe I'll take a moment to see if I can actually see the thing.  I doubt I'll have time to drive down to the cross to see it up close, though -- it's something like  twenty miles south of the rest stop on I-15 near Cima Road, and The Wife and I have to pick up tickets to see Penn & Teller so there is a timetable.

Regulating The Black Market

The ideal state for immigration would be that the United States takes in only the immigrants that it needs to fill open and low-wage positions, from a diverse mix of origin nations, and that those immigrants all get the appropriate work visas and then have a reasonable path towards naturalization or a return home after they've made enough money to make their sojourn here worthwhile. They would pay taxes, get livable wages, and be a part of the system. They would be welcomed for their cultural contributions, they would be valued for the fruits of their labor and contributions to our economy, and be an asset to both the U.S. and their nation of origin. What a wonderful world this would be.

The real world, of course, is a place very different from this pleasant reverie. More immigrants enter the nation than there are jobs for them. They work for employers, a disproportionate number of which are in the agricultural industry, for sub-minimum wages and some of them live in horrifying conditions. Others do pretty good work in industries that are fairly casual about paperwork and conforming to the law -- think construction, one of the few jobs where convicted felons can earn a reasonable wage, precisely because construction employers are not particular about paperwork or background checks. Debatably, they depress wages in some sectors of the economy. They stay for long periods of time using counterfeit, stolen, or defunct documentation, when they use documentation at all; such a culture of avoiding and deceiving the law seems to necessarily create an attitude of lawlessness. They have families here and their children become citizens, work in the underground economy where they can avoid taxes, and drain our social welfare programs like public schools and TANF. They are resented by people already here – no more so than by properly-naturalized citizens who did it the right way. Nothing these negative effects of the phenomenon of undocumented laborers entering the country illegally is racist; however, resentment over these thigns is all too often tinged with racism, inspiring the worst in Americans.

The question always seems to me to come down to this: "How much are you willing to pay for a head of lettuce?" A directly related question is "How much would I have to pay you to spend ten to twelve hours a day picking lettuce?" The cost of the labor needed to create produce is directly reflected in the price of produce and cheap, plentiful food is one of the fundamental parts of the foundation of our economy. And if I'm willing to pay it, and he's willing to accept it, what's the problem? It occurs to me that the ways one might approach the issue from a policy standpoint, I've decided that the policy approaches one might take on the issue. On the far left side of the continuum we have something like "open borders" policies, and on the far right we have the policies moatdiggers love best. We might classify them thus:

Most Radical Reform										Most Dramatic Counter-Reform
Open Borders	Amnesty	Fast Track to Naturalization	Guest Worker Program	Liberalized Work Visas	Status Quo	Restricted Visas	Tightened Border Control	State Police Arrest and Refer to ICE	Fast Track Deportation	Shooting Illegal Immigrants for Sport

Arizona's infamous new immigration law is the result of a public frustration with a very real phenomenon – the drain on public resources and the development of a counterculture that is overtly aligned along lines of evading and in some cases deceiving authority – that is an unavoidable result of having these people in our nation. But it's not nearly as radical as some are saying. What it says (after modification) is that if an Arizona state police officer has a "reasonable suspicion" that someone who is being questioned or detained for some other reason is an undocumented alien, that person may be arrested and referred to ICE. Some law enforcement agencies in Arizona have already been doing this, and most law enforcement agencies pretty much everywhere are reputed to use the threat of doing this to intimidate people whose English language skills are not very good. Is it true? I don't know, I'm not a Spanish speaker who has been detained by the police.

The biggest flaw I see with Arizona's law is not so much its unconstitutional usurpation of an exclusive Federal power by the state of Arizona – although that's a serious issue. Article I, Section 8 provides that Congress is to provide for a "uniform rule of Naturalization" which under current case law means that only the Feds can make and enforce immigration law. But I'm not entirely sure that a "reference" from a state law enforcement authority to a federal one when there is a legitimately "reasonable suspicion" of a Federal law being violated of a Federal law is contrary to this policy.

The real problem is, what is a "reasonable suspicion" of someone being an undocumented alien? The standard is something objective about the suspect that can be articulated and is not based upon a suspect classification (like race). There's a bunch of things that I can think of:

• Apparent inability to speak or understand English
  
• Emotional reaction when the phrases "La Migra" or "documentos por favor" is used
  
• Flight from police upon approach
  
• Lack of identification documents
  
• Large quantities of cash or, alternatively, very little cash or other implements of money
  
• Congregation in areas known to be frequented by day laborers seeking employment
  

None of these things, though, is unique to the situation of the undocumented alien. A citizen of the U.S. could easily have one or more of these attributes under a countless series of legitimate or even low-level criminal scenarios any of you could easily imagine. So how is a police officer to form a "reasonable suspicion" that someone is an undocumented alien based on articulatable, but non-racial, characteristics? "I could just tell" isn't going to cut it. It doesn't seem workable to me.

Personally, I think going in the other direction is a smarter thing for us to do. We need the labor. I don't want to pay $8.00 for a head of lettuce and that means we need cheap and plentiful agricultural labor, which for the most part only undocumented workers are currently willing to provide, at least in the border states. I don't think amnesty is just as to those already here – I think that there should be a way to get those workers here integrated into the system without making them go home first, because that's both asinine from a logistical point of view and putting the undocumented worker who wants to get into compliance into a difficult economic position. Perhaps a fine for those already here, which can be pro-rated and incorporated into their tax withholding?

But unless we're going to make it easy to get that green card, we're going to have more illegal immigration, more undocumented labor, and more of the problems associated with it. Attempts to build walls, moats, electronic fences, and any other sort of physical or enforcement barriers to entry will all prove laughably and expensively ineffective against simple human ingenuity mixed with economic desperation; already, people are squashing themselves ten at a time into the trunks of cars and literally risking death in the middle of the Sonora desert to enter the United States and an underground industry of coyotes willing to smuggle them in, often supplying their labor to illegal sweatshops, meth labs, or worse. And there are plenty of legitimate employers willing to offer them money should the immigrants succeed in escaping those hazards.

Simply put, there is a large black market for labor out there. There is very little that any government, at any level, can do to regulate a black market – without legalizing the trade. Intercession and penalization has failed spectacularly in regulating the black market for drugs. Why should we think that a similar tactic is going to work with undocumented labor?

Two Presidents in a row, one a Republican and one a Democrat, have both said that some kind of a guest worker program and liberalization of immigration and naturalization laws is necessary. They're both right and even crediting the most noble of motives to the lawmakers in Arizona, what's going on there is not a step in the right direction.

Constitutional Rights Are Not Negotiable

Faisal Shahzad is an American citizen of Pakistani national origin and an apparent adherent to the Muslim faith who has been arrested for suspicion of being the Times Square Almost-Bomber.

Faisal Shahzad is an American citizen who has been arrested for suspicion of a crime.

Faisal Shahzad must be read his Miranda rights.

This is not subject to question, negotiation, political expediency, attachment of labels, or any other matter of convenience.  If we dispense with Faisal Shahzad's Constitutional rights now, there will be nothing to stop the government from dispensing with your rights when you are wrongfully accused for something.

Any questions, Senator McCain?  I mean, I know you're running for re-election against a challenge from your right flank and all, but the Constitution is not a document that we ought to disregard, much less lightly.  This ought not to be subject to question, negotiation, or political discussion.

UPDATE:  But see.  Ordinary Gentleman Mark Thompson is correct to point out that, if the government is certain that there is enough evidence to convict Shahzad without interrogating him at all, no Miranda warning need be given. This, however, is nothing new because Shahzad is being called a "terrorist" as opposed to a "common criminal."  Further, as I've noted elsewhere, nearly all convictions are based upon the strength of confessions, which means that Miranda or its equivalent should presumably be in play after each and every arrest effected by any U.S. law enforcement officer.

Badly Fragmented Court

I haven't read the opinion yet -- or I should say, all six opinions, because the concurrences and dissents interweave to create the result in Salazar v. Buono.  It would appear that the cross can remain up, so if the only thing you care about is the result, that's likely what's going to happen.  I say likely but not certainly because the matter has been remanded for further fact adjudication, but the signal from Justice Kennedy is that to him, there are some contexts in which a cross is not reasonably understood to be a religious symbol but rather a symbol commemorative of death or, more accurately, a memorial of the dead.

For what it's worth, I don't think that is an unreasonable position.  I'm not entirely sure I agree with it -- a Jewish cemetery, for instance, is devoid of crosses -- but on the other hand I cannot think of a non-religious symbol that occupies a similar place in our overall culture as the cross for use to symbolize the concept of in memoriam.  We might use the grim reaper, a scythe, a skull and crossbones, or something else to refer to death and dying, but as a call to remember the deceased, about the only thing that is as immediately evocative that I can think of as a cross would be the round-top tombstone, and that seems somehow less dignified than a cross.

So if what it really comes down to is, "Hey, it's a war memorial and you're going to find crosses at war memorials," I suppose I can live with that.  But given that there are six opinions and no majority decision at all, the reality of what we're seeing in Salazar v. Buono is akin to the mess that was made of race discrimination law after Bakke v. U.C. Regents.  What I'm really looking for in Salazar is the question of whether Justice O'Connor's "Endorsement Test" is still viable or whether a minimum of five justices affirmatively stated that they were abandoning that approach adopted by a majority of the Supreme Court in Doe v. Santa Fe Unified School District.

And I have some significant law and motion practice going on all this week, the culmination of several months' worth of work, so I really haven't as much time as I would like to read new con law cases for pleasure.  I'll just have to leave that to the academics.  But it does look like the cross can stay up.  If you are driving between Baker and Las Vegas, and you just exactly where to look, you can see it, way, way, wa-a-a-a-ay off in the distance from the freeway should you stop at that rest stop just north of Baker. 

And if you're celebrating the likely retention of the cross, consider this:  The government gets to put up and maintain crosses only when some combination of nine amateur art critics accredited with law degrees decide that, in context, the crosses lack religious significance.  If I were a Christian, I'd be moderately unsettled at the idea that the fundamental symbol of my religion was deemed to lack religious significance.

Writing Again

It's been quite a busy time in the real world, a place that I occupy much more often than the intellectually interesting but not-very-interactive land of Law And Policy Blogging.  So before I get into some thoughts about immigration reform, an update for those who care about such things.  Or indeed, I may not jump on immigration reform just yet; it's a complex and ambiguous enough subject that it does not lend itself to a one-off policy rant -- although I'll tell you right now, I'm no moatdigger and cannot imagine how the current policy regime can be feasibly sustained.

Anyway, for weekend guests, baby back ribs turned into pulled pork almost immediately as literally dozens of rib bones simply slid out of sheets of moist, tender, succulent pork and into whiskey-chipotle barbeque sauce served atop creole rice.  The Wife made tequila-lime-chipotle custard to go with it.  My shoulders and back and neck are still aching from breaking through layers of granite and quartz underneath my back yard so that The Wife could have her climbing roses and we could replace a set of fallen Italian cypress trees with a red-leafed plum.  And far too much time was spent today waiting in a doctor's office for a consultation that The Wife was required to attend due to the nature of the visit.*  The weather has turned nice and we're finally starting to get some evenings without gale force winds, so it's possible to spend a good part of the evening outdoors in the newly-reimagined back porch reading or writing.  And reading has been a pleasure, too, since a comment on a blog led me to track down a delicious fantasy novel.  Recreational reading is a pleasant change of pace from history and law.

So maybe I'll give some thought to immigration next.  Or maybe I'll play with The Sims some more.  I'm not dead, just not writing a lot for a while.


*  Warning: Linked cartoon video depicts violence inflicted upon an anthropomorphisized beaver and is in such bad taste as to be unsuitable for viewing by anyone.

Beaten To The Punch

Patrick beat me to today’s Amazingly Stupid Government Trick – when we are found to be subsidizing our cotton farmers so as to disadvantage more cost-efficient Brazilian cotton farmers, rather than agreeing to pay the sanctions, or to reform our cotton subsidies because we don’t need them in the first place, we choose instead to deficit-spend more to subsidize the Brazilian cotton farmers, too. If that doesn’t count as “Lighting Our Money On Fire” I don’t know what does.


As for blogging – well, I had work to do today. I guess Patrick didn’t.

Pornography Did Not Cause The Great Recession

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Are Opening Pitchers Really A Good Idea?

Today at Freakonomics Blog, the idea of an "opener" position in baseball is thrown around – again. While George Will considered the idea and in fact it has been experimented with for over a hundred years in minor leagues, it's still unusual enough to merit inclusion in a place that touts "new" or "outside the box" ideas. The basic concept of an "opening pitcher" is that if you've got a good pitcher who can consistently deliver a good inning or two, why not use that pitcher to start a game rather than as a closer or a middle reliever? It's kind of a tasty-seeming alternative – you could free up some resources if you start with a really good pitcher even if that pitcher suffers from low endurance.

The big downside to this idea comes from the confluence of the sub-out rule and the fact that while all pitchers have good and bad nights, some pitchers nevertheless have more endurance than others. So if you've got a pitcher who can sustain 100 pitches or so, but who is having a bad night, you want to know that as early as you can so you can make substitutions while they're still on the roster. If you use up your consistently-good-but-low-endurance middle reliever by having him open up the first two innings of the game, you can't go back and put him in again. You still need a middle reliever.

Put yourself in the shoes of a major league manager considering this option. If everything goes as planned in a typical modern MLB game, a pitcher ideally will throw an average of about 15 pitches per inning, needing, 5 pitches to an out. (These are averages.) If things go well, your inning pattern goes like this:

1st inning	2nd inning	3rd inning	4th inning	5th inning	6th inning	7th inning	8th inning	9th inning
A: 1-15	A: 16-30	A: 31-45	A: 46-60	A: 61-75	A: 76-90	A: 91-100 B: 1-5	B: 6-20	Closer: 1-15

Here, "A" is the starter, who throws an industry-standard 100 pitches. "B" is the middle reliever, who throws 20 pitches, and the ace of the squad, the closer, throws the last inning. This works great if you can average out 15 pitches an inning and your starter does not give up a lot of runs in the 6 ⅔ innings he's asked to throw. (Oh, and if your bats get you ahead of the game by the close of the eighth inning.) You use three pitchers, one of which you need to rest for several days and the rest which you can draw on for tomorrow's games because they haven't dislocated their shoulders all that badly.

The "opener" proposal, when things go well, looks like this:

1st inning	2nd inning	3rd inning	4th inning	5th inning	6th inning	7th inning	8th inning	9th inning
B: 1-15	B: 16-30	A: 1-15	A: 16-30	A: 31-45	A: 46-60	A: 61-75	A: 76-90	Closer: 1-15

That's a little bit less strain on "A", who is now a "stretch pitcher" rather than a "starter," so he recuperates a little bit faster. You're putting only a slightly heavier workload on "B," and getting the same job done. In fact, you're probably at a bit of a defensive advantage, because switching the pitchers from "B" to "A" in the third inning will throw the batters off and not let them settle into a rhythm or a read of the pitchers early on in the game. They'll get there, but only towards the end. And you can always pull "A" and put in "C" if you sense that is happening.

But things don't always go to plan. In a regular-strategy game, let's say that "A," the starter, has a bad night. He's throwing wild, or just plain gives up too many hits and runs and you have to pull him in the third inning. Now, your anticipated pitching scenario looks like this, assuming that you are able to salvage a win with your offense:

1st inning	2nd inning	3rd inning	4th inning	5th inning	6th inning	7th inning	8th inning	9th inning
A: 1-30	A: 31-60	A: 61-65; B: 1-15	B: 16-30	C: 1-15	C: 16-30	D: 1-15	D: 16-30	Closer: 1-15

To dig yourself out of the hole "A" gets you into, you need five pitchers, and "A" is now fatigued enough that he has to wait for the regular rotation to go around before he's ready to play again. And you need to rely on offense to do it for you, which may mean pulling pitchers for pinch-hitters if you're in the NL. An ugly game to win, but a "W" is still a "W" even if you wind up winning with a score like 14-12. Now, what happens if we change a former relief pitcher ("D" in the above example) into the "opener," and the guy you used to call a "starter" and now is expected to pitch for endurance, starts going wild and giving up the hits?

1st inning	2nd inning	3rd inning	4th inning	5th inning	6th inning	7th inning	8th inning	9th inning
D: 1-15	D: 16-30	A: 1-30	A: 31-60	A: 61-65; C: 1-15	C: 16-30	E: 1-15	E: 16-30	Closer: 1-15

Now, you've got two fewer innings for your offense to save you, and one fewer pitcher in your bullpen to rescue you if the former starter, A, also starts giving it up like it's prom night. You've cut your margin of error, in exchange for a very small marginal defensive advantage, which has already been squandered by virtue of the bad night your stretch pitcher has suffered. So the reality of it is you're likely looking at a stop-loss spiraling out of control rather than a game in which you can salvage a win. So I think the idea of the starter being expected to last six or so innings makes sense, because you shouldn't put players in until you need to.

On the other hand, what if we do away with the idea of pitchers being asked to throw 100 pitches a night altogether? Your typical team has twelve or thirteen pitchers, four or five of which make up the starting rotation, one of which is the "ace" who is the closer, and the rest who are relief. But the rules only say that you have twenty-five spots on your roster and once a player is substituted out, he cannot come back in. So the half-pitcher rule isn't set in stone. You could have, say, nine pitchers, each of whom is expected to play only one or two innings every night. Perhaps this means not every pitcher faces every batter, but so what? An ideal playout here looks like this:

1st inning	2nd inning	3rd inning	4th inning	5th inning	6th inning	7th inning	8th inning	9th inning
A: 1-15	A: 15-30	B: 1-15	B: 15-30	C: 1-15	C: 15-30	D: 1-15	D: 15-30	Closer: 1-15

That looks pretty good, but we can't judge the strategy only by how well it works out under optimal conditions. The obvious downside here is that you are increasing the chances of putting in a pitcher who has a bad night. So if things go wrong and you have a guy who has a bad night, you pull him after one inning. Let's say, in fact, that you have two guys who have bad nights – then you might get something that looks like this:

1st inning	2nd inning	3rd inning	4th inning	5th inning	6th inning	7th inning	8th inning	9th inning
A: 1-15	A: 15-30	B: 1-30	C: 1-15	C: 16-30	D: 1-30	E: 1-15	E: 15-30	Closer: 1-15

In this example, pitchers "B" and "D" both have bad nights and it takes them twice as many pitches to get their three outs. A single pitcher makes up for two bad pitchers, which is good for long-term rotation and wear and tear; no one throws more than 30 pitches in the night so they call can recover and pitch again in a day or two. With this, you wouldn't need a twelve-to-fourteen deep bullpen but could probably do with maybe only nine. That frees up three to five spots for offensive players. That, in turn, gives you margin for error on the defensive side of things. (Fortuitously, it also means a higher-scoring game, which the fans and TV tend to like, increasing advertising revenues.) You could even pull the pitchers who are doing badly after 20 pitches or so of their floundering around:

1st inning	2nd inning	3rd inning	4th inning	5th inning	6th inning	7th inning	8th inning	9th inning
A: 1-15	A: 15-30	B: 1-20 C: 1-15	C: 16-30	D: 1-20 E: 1-15	E: 16-30	F: 1-15	F: 15-30	Closer: 1-15

Sounds good, right? Sure, you use most of your bullpen each night. But each of them has only seen light work, and they're all ready to go again the next night because you've chosen pitchers who are all middle relievers and have fast recuperation. If you're losing, well, that sucks, but again, pretty much your whole squad will be good to go again the next night. Here's the real scary risk to this low-endurance, high-substitution strategy: extra innings. If you wind up having 10 or 11 innings on a night when at least some of your pitchers are a little off, you're going to need a deep bullpen.

1st inning	2nd inning	3rd inning	4th inning	5th inning	6th inning	7th inning	8th inning	9th inning	10th inning	11th inning
A: 1-15	A: 15-30	B: 1-20 C: 1-15	C: 16-30	D: 1-20 E: 1-15	E: 16-30	F: 1-15	F: 15-30	Closer: 1-15 (blows it)	G: 1-20 H: 1-15	I: 1-15

Ten pitchers you go through. If you've shorted your bullpen to load up on offense, you are ass-out at this point and have to start having your backup catcher pitch when "I" gets worn out. So maybe you'll stick with 12 or 13 pitchers on your roster, and just play them differently? Now you've given up the offensive advantage that this strategy is intended to give you – you're supposed to have enough good batters filling those pitcher slots that you don't often need to get to using all nine pitchers on your squad. This also takes effectively out of contention the possibility of bringing in an opposing-handed pitcher specially to face down your opponent's best hitter in a clutch situation – a strategy used now in quite a lot of games. Because you need to eke at least one inning out of each pitcher, if the batting rotation lines up unfavorably for a particular pitcher, he might be stuck or you might have to take on an unreasonable risk to swap him out with someone better-suited to face a dangerous batter.

The protest may be, "Yes, these are foreseeable risks, but are they significantly more dangerous than the sorts of risks that a manager faces now?" Yes, I think they are. If your starting pitcher now gets into a clutch situation and the other team's power hitter comes up to bat with the bases loaded, it's not a huge cost to pull the starter and bring in a lefty to get a single out. And the more pitchers you have taking the mound, the more you're spreading around the risk that each pitcher is going to perform poorly. On balance, I think it's better to start out with a pitcher who will last six innings or so and not give up very much, and then start shifting pitchers around in the later parts of the game. The alternative – constantly-shifting pitchers and a depleted late-inning bullpen – deprives the manager of flexibility towards the end of the game, which is precisely when flexibility and options are needed most.

My verdict is that an "opening pitcher" style rotation only works well over time if you've got at least six pitchers who can all be counted on to deliver between 20 and 40 good pitches every night.  And if you've got that, well, you've got more options than you needed anyway.