Is there a squirrel in my house?

Okay, here's what's troubling me. Two days ago, I found a cracked open shell of an acorn on the carpet over near a wall. Is there any other explanation than that there is or was a squirrel in my house? I can't think of one, and I'm mildly terrified about the whole thing.

People are saying it's a big year for acorns, and you know I've been complaining about the noise they make hitting the roof at night. But that doesn't explain the broken shell getting into the house. And it wasn't just a crushed bit that could have come in on a shoe. It was a big, curved shell part, and, besides, we take our shoes off when we come in.

MORE: In the comments, people are giving me advice on how to trap a squirrel, but if there is an animal in my house, I'm calling the professional who solved the bats-in-the-attic problem a few years ago. My only question is, do I have a problem, not what to do about it.

So, is there a squirrel in my house? Why would a squirrel bring an acorn into my house and then eat it? The squirrels in my yard are running all over the place and burying lots of acorns. Why would one suddenly think eating one inside is a good idea?

Is it kind of like they way we humans go on picnics? We usually eat indoors, and then, on a lark, we say, why not eat outside for a change? So it's like a squirrel reverse-picnic. But you know I have trouble understanding even why humans picnic. Who am I to fathom the mind of the squirrel.

"There's loads of room for judgment. The judges do judge."

Justice Breyer talks to Nina Totenberg about his new book, "Active Liberty." Totenberg does a nice job of challenging him -- after he's emphasized the democratic process over constitutional limitations -- by citing laws against abortion and laws regulating homosexual behavior, which the majority tries to enact and the Court insists on striking down. Breyer responds, conceding, as he must, that it's not all about the majority, that there are also constitutional rights for individuals and minorities, and that the judge still must do the hard work of drawing the lines: "There's loads of room for judgment. The judges do judge."

He doesn't talk about it in the interview, but presumably in the book, he uses the principle of democracy to define the scope of countermajoritarian rights. That's the real test of his theory, and that's where all the problems arise.

"The Apprentice": Round 2.

After the second week of comparing Donald and Martha, what do you think? Last night, I took the pro-Donald position, pointing out perfect meld of dramatic photography, pounding music, and oppressive taskmaster. Chris said all those things have been the same for years and it's gotten old. He took the pro-Martha position. Donald's show had Lamborghinis. Martha's had flowers. Donald's was another ad campaign. Martha's was another sell-a-thon. Maybe it's all gotten old.

Both shows featured a wacky, hyper guy. In both cases, a more somber project manager got axed so the trickster could go on to make trouble another week. The format now relies on the Omarosas and Sams. Trump even made a lame reference to Omarosa on last night's show. Oooh, he said Omarosa! Maybe someone will behave badly tonight!

Is "The Apprentice" in its final phase, emphasizing jokers over competence?

Diversity Day: the elegiac mood dissolves into tears.

The Daily Cardinal -- a UW student newspaper -- reports:

The day-long event, which kicked off with speeches from Chancellor John Wiley and Provost Peter Spear, was intended to stimulate discussion of race issues on campus and promote a new campaign, entitled "Creating Community," a theme expected to be the centerpiece of Plan 2008 for the 2005-'06 school year.

Early in the day, enthusiasm for the new motif swelled, as each round table in the Great Hall filled with minority and white students and faculty. Later in the afternoon, however, the ranks diminished to around 50. The upbeat mood dissolved and the open-mic session took on an elegiac air as frustrated students and faculty lambasted the low attendance, perceived indifference of the campus and generally poor reputation of UW-Madison as a school friendly to minorities. Several speakers cried, and some angrily scorned Plan 2008's strategy, arguing there should be more concrete plans to diversify.

Crying over low attendance in the late afternoon? You had good attendance in the morning! How do you expect to come up with a plan to affect the decisions of real human beings when you have so little feeling for their humanity? Ordinary folks won't sit through a whole day of something like this. You're scolding them about that? I hope whoever makes the "more concrete plans" has more sense about why people do what they do.

Podcast time!

Time for the big podcast! Podcast #7, full of talk about bras and Right Wing Bob Dylan... and all my trials as I am dogged by lefty bloggers and commenters who think I've misdefined "right wing" and outrageously accused lefties of being irresponsible. The squid is there too and the sandcastles and John Roberts and the meat slurry and Anna Nicole Smith and, yeah, even Justice Scalia. You don't want to miss this podcast. This is by far the longest one -- over 53 minutes of rich podcasty goodness!

"I would not want to call down the wrath of Althouse."

Ramesh Ponnuru makes a play for a spot in the Althouse masthead.

Eight parts sand to one part water = "Maximum angle of stability of a wet granular pile."

Scientists discover the right proportion for making a sandcastle.

When the Court will "become unpoliticized," per Scalia.

Yesterday, Scalia and Breyer debated at Harvard Law School (via How Appealing). Much of it is more of the usual stuff about citing foreign law, but this is interesting:

During a question-and-answer session, one student asked the panel about the potential political pressures involved in the controversial Bush v. Gore case. Frankfurter Professor of Law Alan M. Dershowitz had suggested that he direct the question toward Scalia, he explained.

“He’s still mad at me, isn’t he?” Scalia retorted jokingly, before adding, more seriously, that he had not witnessed any justice take into account “political considerations” in deciding the case.

Breyer added that he had never seen any evidence of politics influencing a court decision. Even so, he said, ideological beliefs occasionally surface.

Scalia said that the politicization of the Supreme Court could be attributed to the emergence of a “judicial philosophy which says the Constitution is indeterminate.”

“It will become unpoliticized, as it relatively used to be, as soon as we go back to saying the Constitution means what it says, and it means what it meant when it was adopted,” he said.

Seems highly unlikely. By the way, Roberts -- the Chief Justice -- never embraced that view of the judicial role.

78.

Great! Roberts is confirmed by a margin of 78 to 22. As to those 22 Democrats who voted no, they have openly embraced an ideological view of the Court from which they can never credibly step back. For them, appointing Supreme Court Justices is a processes of trying to lock outcomes in place, and we shouldn't believe them if in the future they try to say otherwise.

UPDATE: Correction to the number made. And here's the list of the 22 Democrats:

Evan Bayh of Indiana
Joseph Biden of Delaware
Barbara Boxer of California
Hillary Rodham Clinton of New York
Jon Corzine of New Jersey
Mark Dayton of Minnesota
Dick Durbin of Illinois
Dianne Feinstein of California
Edward Kennedy of Massachusetts
John Kerry of Massachusetts
Frank Lautenberg of New Jersey
Barbara Mikulski of Maryland
Barack Obama of Illinois
Harry Reid of Nevada
Charles Schumer of New York
Debbie Stabenow of Michigan
Jack Reed of Rhode Island
Tom Harkin of Iowa
Daniel Inouye of Hawaii
Paul Sarbanes of Maryland
Maria Cantwell of Washington
Daniel Akaka of Hawaii

I hope no one on that list is running for President.

"Have you been given a gift, in a sense?"

So Harry Reid is asked in an NPR interview about who the next Supreme Court nominee ought to be. The gift in question is President Bush's low popularity numbers. Don't they give the Democrats more leverage? Reid astutely declines the bait. The low numbers represent sad problems that are "not a gift for anyone," he deftly says.

Reid refers to a list of names, which he's conveyed to the President, of persons who are unacceptable to the Democrats, whose nomination would be felt as "a poke in the eye with a sharp stick." That turns out to be another way of saying these are the nominees we would filibuster.

For some reason, he emphasizes that he wants a nominee who is more of a trial lawyer. He seems passionate faulting John Roberts for never having argued to a jury or taken a deposition. What's that about?

UPDATE: Well, Harry, I hope you like Harriet.

"Was I really in love or was I just pretending he was the man of my dreams?"

Nora Ephron is all out of love for Bill Clinton. It starts off with some good material about Clinton's betrayal of women and gay people but winds up as just a plea for Clinton to come out in opposition to the war.

Side note: I got to this NYT op-ed via the list of the 25 most emailed articles, which I was checking to see how the TimesSelect walled-off columnists were doing. As I've noted before, they used to dominate this list, holding most of the top spots. Today, there is only one column on the list, way down at #17. It's marked with the sad little orange TimesSelect logo, which I'm sure the Times hoped would be dotted all over this list, making readers think I've got to get TimesSelect. Oh, how I'd love to hear the screaming and crying that must be going on now amongst the star columnists! How they've been wronged! Well, it's true!

The Althouse comments persona.

Here at Althouse, there's the Althouse of the front page posts and the Althouse of the comments. Things are a little more experimental and brainstormy in the comments. I'm used to having my posts linked, but it's surprising to get something I toss out in the comments linked. Not that I think it's off limits. I like links!

Today, I risked saying this in the comments section of that Bob Dylan post:

To be a great artist is inherently right wing. A great artist like Dylan or Picasso may have some superficial, naive, lefty things to say, but underneath, where it counts, there is a strong individual, taking responsibility for his place in the world and focusing on that.

That got linked over at Volokh Conspiracy (from the elusive Juan Non-Volokh), which led to a link at Crooked Timber, and now people are talking about my comment in the comments at both places, saying things like:

"Jesus, what an absolute load of bollocks. Artists are (in)famously left wing. Reading Althouse and Reynolds is like stepping through the looking glass. They say the most inane things as if they are just God’s own truth."

And:

"Are they actually insane? Has it come to this, that the insane now have tenured positions in law schools across the country? It’s clearly a product of wrongheaded liberal do-gooders in the 70s who made it harder to commit the delusional."

(I love the way Glenn Reynolds comes in for a gratuitous beating.)

Anyway, I was just trying on a little idea there in the back room, in honor of Right Wing Bob, giving you folks something to react to in the ranging conversation that is the comments page. So, react away. But try to focus on the actual point. I'm not saying great artists consciously adopt the agenda of the political right. I'm saying there is something right wing about the sort of mentality you have to adopt in order to be a great artist! Think it through people. Don't just blow a gasket!

UPDATE: Here's a comment that I'm going to leave over at Volokh in response to a commenter:

Dustin writes, "I feel somewhat disconnected from the discussion. How do 'left-wing' and 'right-wing', political classifications, apply to art and artists? Since 99% of artists who try to be 'political' an any which way, end up failing miserably and ebarassing [sic] themselves, I'm lincined [sic] to believe that good artists are neither left or right wing; and I don't mean that in a sesame street way."

You're asking a question that very nicely represents the way people keep misunderstanding my statement. I'm not saying that the great artist adopts a right wing political ideology. If fact, I agree with you that the great artist needs to separate himself from politics and certainly to get it out of his art. I'm saying there's something right wing about doing that. My comment arose in a discussion of the Scorsese documentary on Bob Dylan, which shows how he did not fit in with the left wing folksingers who tried very hard to keep him in their fold and felt betrayed when he alienated himself from them. My observation is that he was, at heart, a great artist, and it was not possible to do what was needed to be a good lefty, which would require a strong focus on group goals and communal values. He certainly wasn't switching to right wing politics. He was getting out of politics.

I'm calling that right wing. It's certainly antithetical to left wing politics, which requires you to remain engaged and would require the artist to include politics in his art. The great artist sees that those requirements will drag him down. That's what I'm theorizing. Feel free to debate that and reject it if you want. All I'd like to ask is that you get your mind around what I'm trying to say before reflexively rejecting it. I'm not surprised that lefty bloggers and commenters can't do this. They've got to enforce the kind of values that freaked Bob Dylan out and made him want to disengage from their clutches. And don't even get me started on my experience with lefty bloggers. They treat me miserably, and if I tried to get along with them, it would guarantee mediocrity. And thus, I am a right wing blogger – even though I don’t share many beliefs with right wing politicos.

Dare I drop it over at CT too?

UPDATE: I'm glad I've started a conversation. But why are the people on the other side of the conversation so boring? All they say is that I'm "stupid" or my comment is "nonsense." What I said is apparently interesting enough to respond to, but you don't say anything interesting in response. Say something about art! Say something new and unusual about why I'm so wrong! Dammit! I can see people are talking about me, and I go over to hear what they are saying, and it's a thuddingly dull remark.

"Does the NYT have an exit strategy?"

Asks Mickey Kaus about TimesSelect, which we're all assuming has failed to bring in much money, while disastrously cutting the readership of the NYT's top columnists. What do you do about all the people who paid $49.95 for the service?

It makes me think of Woodstock, where a lot of folks paid $17 for tickets and then had to endure hearing the concert declared free. They just got stuck having paid $17 extra dollars. Me, I didn't go with my friends to Woodstock, because I didn't have $17 to buy tickets, and I had to endure hearing that I could have gotten in free. But those are the breaks. The kids who went ahead and showed up without tickets made the right call. Deal with it!

So what can the Times do? Just restructure what the $49.95 bought. Make the website free again and turn the $49.95 into a different offer: more or longer access to the archives, or a $50 credit at the NYT Store, or a discount on home delivery. Give the chumps who fell for the deal a choice of something good enough that they won't opt for a refund.

"Extremely aggressive and just barely possible.”

Such was the design of the space shuttle, according to NASA chief Michael Griffin, who calls seems to consider the whole shuttle program a big mistake!

The shuttle has cost the lives of 14 astronauts since the first flight in 1982. Roger Pielke Jr., a space policy expert at the University of Colorado, estimates that NASA has spent about $150 billion on the program since its inception in 1971. The total cost of the space station by the time it's finished — in 2010 or later — may exceed $100 billion, though other nations will bear some of that.

That's just half a Katrina, so I don't have a problem with the money. The deaths are an obvious problem, but so is the sheer, clunky dullness of endlessly orbiting Earth. Can't we please go somewhere?

UPDATE: Edited for accuracy as noted. He's not so blunt.

"I dreamed I [?] in my Maidenform bra."

The greatest bra ad campaign of all time was the endlessly fascinating depiction of a woman out in the world doing something amazing, brazenly exposing her Maidenform bra. The absurd spectacle was justified by the notion that it was a dream -- a variation on all those dreams everyone's had where they are out and about naked. I remember seeing these ads when I was young and not quite understanding them. We kids just thought they were funny -- in 1962, we laughed at the Mad Magazine spoof -- but they were also early manifestations of feminism. You could be a powerful woman, out in the world and loving it. Structure you loosely hanging femininity with a quality foundation garment and go. Achieve your dreams.



What has that ad campaign become?

In one ad, a woman holds a baby, who, the implication is, she tried hard to conceive. The tagline: "Dreams do come true." Another shows a young couple on a beach, with the line, "I dreamed every day was Sunday." And some have a touch of the implied risqué - "Some dreams are best unspoken."

First thought: If you have a baby, you're not a "maiden." Maybe they should change the company name to "Matronform."

Second thought: I'm nostalgic for the vanguard feminism of the past! This ad campaign is reminding me of that story about women wanting to stay home with the kids that we were just talking about. Is this the spirit of the times? But, come on! What's the business sense of this? If I'm staying home with kids, that bra is coming off! A bra is for going out into the male-dominated world and achieving. As soon as you cross the home threshold, that bra is off. Right, ladies? What is the lag time for you between when you walk through the door and when you take off the bra? Five minutes, tops? Is it the first, second, or third thing you do when you come home?

Third thought: Maidenform really does make a great bra. You can waste your time trying on more expensive ones, but the Maidenform one will be better. And the new campaign seems to be about a much more comfortable bra, so maybe they are trying to reach the currently braless stay-at-homes.

UPDATE: Great discussion in the comments, including whether wearing a bra prevents or causes sagging and a Halloween costume idea. But I also wanted to update to say that I'm unhappy with the ad I've got pictured above (taken from the linked NYT article). It's clearly from the 1970s. I wish I had one of the older classic ads from the 50s and early 60s.

MORE: One of the commenters found this old ad:

Free speech and campaign finance.

Here is Linda Greenhouse's article on yesterday's cert grants in two campaign spending cases. She speculates that the Court might be ready to reconsider the key precedent, Buckley v. Valeo -- as it did not do a few years ago when it upheld the McCain-Feingold law, in a 5-4 case. Justice O'Connor contributed that fifth vote -- the others were Stevens, Souter, Ginsburg, and Breyer -- so expect to see the Senate Judiciary Committee to do some probing questions when Bush's next nominee shows up.

Greenhouse describes the key case, challeging state regulation:

The Vermont law was enacted in 1997 as a direct challenge to the Supreme Court's campaign finance precedents, or as Vermont's secretary of state, Deborah L. Markowitz, put it in an official memorandum, with the "express legislative goal of giving the Supreme Court an opportunity to re-evaluate its decision in Buckley v. Valeo."

While the law's strict contribution limits were notable, its main departure was in restricting campaign expenditures. Candidates for governor, for example, are limited to spending $300,000 in a two-year election cycle, regardless of whether the cycle includes a primary election.

In a 2-to-1 ruling last year, the United States Court of Appeals for the Second Circuit, which includes Vermont, endorsed the state's basic approach. It held that the state had correctly concluded that Buckley v. Valeo was not a complete prohibition on spending limits, but that such limits could be justified by rationales beyond the anticorruption rationale that the Supreme Court considered at the time.

These additional rationales included two that the appeals court panel's majority said were now "compelling": addressing the growing public cynicism about the impact of money on politics, and limiting the amount of time that candidates had to devote to raising money.

The appeals court then sent the case back to the federal district court in Vermont for a determination of whether in setting its spending limits, Vermont had chosen a sufficiently "narrowly tailored" means of achieving its valid objectives. In another portion of its ruling, the appeals court upheld the contribution limits.

The full appeals court then debated whether all 11 judges should rehear the case, and decided against rehearing by a vote of 6 to 5. The dissenters argued forcefully that no matter what state officials or lower court judges had to say, only the Supreme Court itself had the authority to cast Buckley v. Valeo in a new light.

This promises to be a very telling test of the new Court! It will be fun to see the defer-to-us routine the Judiciary Committee Democrats used against Roberts redone in the context where it entails minimizing Free Speech rights. That will be a little tricky, since the Democrats also like to project the image that they are the ones who really care about constitutional rights. Of course, Feingold himself will be on the Committee, and no one is better suited to articulating the tricky position than he is.

No more meat slurry for you.

Foods to be banned in British schools:

• Burgers and sausages from 'meat slurry' and 'mechanically recovered meat'
• Sweets including chewing gum, liquorice, mints, fruit pastilles, toffees and marsh mallows
• Chocolates and chocolate biscuits
• Snacks such as crisps, tortilla chips, salted nuts, onion rings and rice crackers

I love the Britishisms like "crisps" and "pastilles." And I see they call the cafeteria the "canteen." Nice to make two words out of "marshmallows," so it seem like a hazard spot in the game of Candyland.

It actually was "impossibly small."

The iPod Nano. Apple admits to the problem with the screen. But as to all the whining about scratching: deal with it. Why isn't my pristinely perfect possession pristinely perfect?

"The size of a bus, with vast eyes and a querulous beak."

At long last! A giant squid seen live for the first time.

If you have no feeling for how cool this is, please get Errol Morris's "Person to Person" and watch the episode "Eyeball to Eyeball" -- about Clyde Roper, a man who has devoted his life to the quest to become the first human being to see a live giant squid.

It wasn't Roper who saw the squid though. Poor guy.

UPDATE: More here. "The squid finally escaped but lost a tentacle."

A quick trip through prison.

For Lynndie England. At the sentencing:

In a calm, deliberate voice, England recounted how her relationship with Graner, 14 years her senior, developed as they prepared for deployment to Iraq with the 372nd Military Police Company in 2003.

"He was very charming, funny and at the time it looked to me like he was interested in the same things I was. ... He made me feel good about myself," she said. "I trusted him and I loved him. ... Now I know it was just an act to lure me in."

Well, you already know what I think about that.

"So what exactly did Scorsese do?"

I'm not quite getting all the fuss over the "No Direction Home" documentary about Bob Dylan. I had the same questions the reviewer in The Guardian had:

I think most people watching will assume that [the interview with Bob Dylan] is new, most probably with Scorsese himself asking the questions. Certainly there's nothing to suggest that it isn't. It turns out though, that this interview happened in 2000, and it was conducted by Jeff Rosen, Dylan's manager. ...

It seems strange that Scorsese apparently turned down the opportunity to speak more with Dylan, and instead ran with the old stuff from five years ago. So what exactly did Scorsese do? An (admittedly very beautiful) editing job? But then what did David Tedeschi, the editor, do? Was Scorsese principally just a name to use as ammunition in persuading people to surrender their archive material?

Now, I haven't watched the whole documentary yet. I've only watched the second half of the first half. But it seemed amazingly old fashioned to me. I'm not surprised it's on PBS. It looks quite PBS-y. And I'll admit to being bored by now with the basic Bob Dylan story -- you know, the one where the climax is that he goes electric and pisses off folksingers. I'd prefer something with a little more edge, like the old documentary "Don't Look Back" or the book "Positively 4th Street" or Dylan's own book "Chronicles." I really detested all the drawn out, reverent material about about the role of folksinging in politics. It just didn't bring out how phony that was for Dylan. The most authentic thing about him is the way he felt like a phony doing that -- as I see it. "Another Side of Bob Dylan" -- I love that album -- that meant the non-phony side, didn't it? ("Ah, but I was much older then. I'm younger than that now.")

I'll watch the whole thing and come back and admit it if I think this preliminary view is wrong. Feel free to argue with me in the comments.

Harriet Miers?

A new name surfaces in the O'Connor replacement talk:

Bush on Monday hinted he might choose a woman or minority member. But some outside advisers were intrigued by another part of Bush's reply. The president said he had interviewed and considered people from "all walks of life."

That raised speculation that Bush was actively considering people who were not on the bench -- such as Miers....

"It could be someone outside of the legal judicial field like a Larry Thompson, or it could be a senator," said Jay Sekulow, chief counsel for the American Center for Law and Justice, a public interest legal group founded by religious broadcaster Pat Robertson.

Sekulow said he's heard Miers' name mentioned "fairly significantly" during the past two days. She doesn't have judicial experience, but she's a "well-respected lawyer-- someone the president trusts."

"I think Harriet could certainly be in the mix," he said....

Miers is leading the White House effort to help Bush choose nominees to the Supreme Court so naming her would follow a move Bush made in 2000 when he tapped the man leading his search committee for a running mate -- Dick Cheney.

The old Cheney maneuver!

Here's the White House press release from when she was elevated to the position vacated by Alberto Gonzales:

"Harriet Miers is a trusted adviser, on whom I have long relied for straightforward advice. Harriet has the keen judgment and discerning intellect necessary to be an outstanding Counsel. She is a talented lawyer whose great integrity, legal scholarship, and grace have long marked her as one of America's finest lawyers. I have deep respect for Harriet and look forward to her continued counsel in this new role," stated President Bush.

Ms. Miers currently serves as Assistant to the President and Deputy Chief of Staff. Most recently, she served as Assistant to the President and Staff Secretary. Prior to joining the White House staff, Ms. Miers was Co-Managing Partner at Locke Liddell & Sapp, LLP, where she helped manage an over 400-lawyer firm. Previously, she was President of Locke, Purnell, Rain & Harrell, where she worked for 26 years. In 1992, Ms. Miers became the first woman elected Texas State Bar President following her selection in 1985 as the first woman to become President of the Dallas Bar Association. She also served as a Member-At-Large on the Dallas City Council. Ms. Miers received her bachelor's degree and J.D. from Southern Methodist University.

Interesting!

UPDATE: For many more posts about Harriet Miers, go to the October 3 posts on blog.

Likable!

New York Magazine has a big article about Conan O'Brien. (Via Throwing Things.) Here's my favorite paragraph (because it's the meanest):

O’Brien does have some sharp edges, mostly stemming from his differentiation between dumb people and smart people—he sneers at the writers from time to time and calls out to his assistant in a tone of voice that gave me chills (he makes free use of a button he can press on his desk to slam his door shut, too). Oh, the villainy! And he goes on and on about his own work ethic and has little respect for guests he deems not worthy of his show—his highest praise is calling them “likable.”

"My biggest mistake was not recognizing by Saturday that Louisiana was dysfunctional."

Ousted FEMA director Michael D. Brown testifies before a House panel today and lays the blame on the governor and the mayor:

Brown told the committee, FEMA's approach worked in Mississippi and Alabama, whose governors are both Republicans.

Of the disastrous flooding that stranded thousands for days in New Orleans, he said, "The only variable was the state government officials involved."

The way FEMA works with state officials in disasters is "well established and works well," Brown said in emphatic tones in his opening statement, pointing his finger and shaking a clenched hand at lawmakers. "Unfortunately, this is the approach that FEMA had great difficulty in getting established in Louisiana."

... "I very strongly, personally regret that I was unable to persuade Governor Blanco and Mayor Nagin to sit down, get over their differences and work together. . . . I just couldn't pull that off."

Anna Nicole Smith takes her case to the Supreme Court.

And they grant cert! I wonder if she will benefit -- as she tries to get to the fortune her very elderly husband left -- from the having her case heard by our rather elderly Justices.

At issue for the court is a relatively mundane technical issue: when federal courts may hear claims that are also involved state probate proceedings....

The appellate ruling that federal courts in California never had jurisdiction, erased a lower court finding that Smith was entitled to compensatory and punitive damages because Marshall's son tried to keep her from receiving money from his father's estate.

The Supreme Court filings included only a hint of the nastiness and sleaze from the family fight. The dispute has involved a "a bizarre set of events," justices were told in a filing by G. Eric Brunstad Jr., a Yale Law School professor who represents Marshall's son.

Smith, whose real name is Vickie Lynn Marshall, had received more than $6 million in gifts from her late husband, but was not included in his will, justices were told.

Brunstad said that Smith began her legal fight for her husband's money even before his death.

Smith's attorney, Kent Richland, told justices that Marshall's son "devotes nearly half his brief to manipulating the record to cast (Vickie) in a bad light." Richland said that J. Howard Marshall intended to provide for his wife throughout her life.

"His efforts failed, however, because -- as both lower courts found -- Pierce suppressed or destroyed the trust instrument and stripped Howard of all his assets before his death," Richland wrote.

Two jurisidiction posts in a row for me. Did you know the topic could be so entrancing?! Or is it just me, doing my usual thing of getting excited about jurisdiction when everyone around me thinks it's mind-numbingly dull?

UPDATE: I gave "The Daily Show" another chance last night and was quite amused to see Jon Stewart run with the idea that the old Justices took the case because ,like the ancient guy Vickie married, they really liked her.

Jurisdictional metaphors.

I don't know if you follow the jurisdiction cases, but I sure do. It is an area of judicial opinion-writing where metaphors abound. The favorite metaphor is the "courthouse door." It's very hard, apparently, to discuss a court's power to hear a particular case without talking about the door. In a recent case (about the scope of federal question jurisdiction), Justice Souter ran with the metaphor:

The Court [in Merrell Dow] saw the missing cause of action not as a missing federal door key, always required, but as a missing welcome mat, required in the circumstances, when exercising federal jurisdiction over a state misbranding action would have attracted a horde of original filings and removal cases raising other state claims with embedded federal issues....

Expressing concern over the "increased volume of federal litigation," and noting the importance of adhering to "legislative intent," Merrell Dow thought it improbable that the Congress, having made no provision for a federal cause of action, would have meant to welcome any state-law tort case implicating federal law "solely because the violation of the federal statute is said to [create] a rebuttable presumption [of negligence] ... under state law." 478 U. S., at 811-812 (internal quotation marks omitted). In this situation, no welcome mat meant keep out.

I don't know if I like the whole welcome mat/door key addition to the usual door metaphor in jurisdiction, since courthouse doors never have welcome mats and litigants don't need keys to get in the courthouse door.

Maybe try something with a metal detector next time.

Correcting the gender imbalance problem.

Yesterday, I linked to Richard Posner's discussion about the perceived problem of women in professional schools who say they plan to stay home full-time when their children are born. Though he did not suggest that schools should give preferences to men, some of what he said about women failing to fulfill expectations seemed to me as though it would encourage others to want to discriminate. In an update to my post, I worried about what is much more likely to cause schools to lead to affirmative action for males: the simple gender imbalance that has resulted from fewer males choosing to pursue higher education.

I detest the idea of giving preference to men to correct the imbalance, so I was glad to see this from Glenn Reynolds, saying that schools ought to look at themselves and ask: What are we doing to make men feel that they don't belong here?

There seems little doubt that universities have become less male-friendly in recent decades, to the point of being downright unfriendly in many cases. The kind of statements that are routinely made about males and masculinity in classrooms and hallways would get professors fired if they were made about blacks, gays, or many other groups.

It's assumed that males can take it, and that it's not the same thing when you're knocking the traditionally advantaged group. But whether you think that's true or not, if the gender imbalance is the school's own problem, it's bad strategy. So you could have a lot of sensitivity training and open men's centers on campus and so on. That will be extremely hard to do well. We're used to reaching out to those we've seen as disadvantaged. It will seem awkward and insincere to reach out to males in the same way. But at the very least, we can commit ourselves to ending the hostility to males, which has always been inappropriate anyway.

Reynolds entertains the notion that the real problem might be that too many women pursue higher education. Maybe too many people go to college, but more men are able to opt out because they can find better jobs without college than women can. Arguably, both males and females are behaving rationally, under the circumstances. Some of these circumstances are caused by discrimination against women in the traditional workplace. Credentialing is more important for us. Some of it is the physical difference between women and men, on the average, which makes it harder for us to get or want jobs requiring physical strength. But I'm sure some of it has to do with different preferences: more women are interested in studying and in pursuing the kind of work -- like law -- that in many ways resembles studying.

If that is so, why not let things take their natural course? Would it be a problem if, some day, 80% of law students were women? It would certainly be a social problem at the schools for many students, and the schools would suffer if students chose to go elsewhere to avoid skewing. Maybe a real tipping point would be reached if the ratio got as far off as 60/40. There's also the social problem outside of schools, as highly educated women have difficulty finding suitable partners.

We seem to be headed inexorably into affirmative action for men, which will go on with no end in sight.

UPDATE: Cathy Young, who's participating in the comments here, has a very informative post.

New podcast.

It's longer -- 46 minutes -- and meaner. Here.

"Lessons from the Past."

In the email just now:

2005 Kastenmeier Lecture
and the
Wisconsin Union Directorate Distinguished Lecture Series

present

The Iraq War: Lessons from the Past
by
Senator George McGovern

7:30 p.m. on Monday, November 14, 2005

UW Memorial Union
Union Theater
800 Langdon Street
Madison, Wisconsin

"Mughal emperor Shahjahan's unfulfilled last wish of building a black Taj Mahal facing the white one at Agra has come true."

In black sand. (No photo yet!)

"She was a follower, she was an individual who was smitten with Graner.... She just did whatever he wanted her to do."

Said the lawyer for Lynndie England. Duly noted, and duly convicted. All you "overly compliant" folks out there: heads up. You actually are expected to take responsibility for yourself.

Looking for "Creeole Ladde."

A couple weeks ago, we were talking about the aftermath of Hurricane Katrina, here, and a reader who called himself herself "Creeole Ladde" wrote:

Let's not be blind to the continued stratification of people of Louisiana. Why was I not swimming with the masses...because my European ancestry allowed my father to move to California and get a job that payed enough to send me to private school, which allowed me to become well educated. However, I do not disregard my African ancestry. People of mixed backgrounds such as Louisiana Creoles of color, but that is not to say it may not be available to all. It's a Creole thing. You have to be one to perhaps understand.

Now, I've received an inquiry from a reporter for a large news organization who is "writing about this stratification – trying to get a handle on how this will change or not change as New Orleans is rebuilt." If you are "Creeole Ladde" and would be willing to correspond with the reporter, please email me. (My email address is the name of this blog followed by @wisc.edu.)

Anticipating the next nomination.

The Senate vote on John Roberts is scheduled for this Thursday. I wonder how soon thereafter Bush will announce the new nomination. Immediately, I hope.

Bork yuk.

Rejected Supreme Court nominee Robert Bork tells a joke about Alberto Gonzales and makes an observation about his own immortality.

Crusader.

Got a problem with the mascot?



After four years of debate, Edgewood High School decides to keep the mascot.

"Were admission to [professional] schools based on a prediction of the social value of the education offered, fewer women would be admitted."

Judge Posner blogs about that NYT article "Many Women at Elite Colleges Set Career Path to Motherhood" (which we talked about a lot here last week). Posner:

The principal effect of professional education of women who are not going to have full working careers is to reduce the contribution of professional schools to the output of professional services. Not that the professional education the women who drop out of the workforce receive is worthless; if it were, such women would not enroll. Whether the benefit these women derive consists of satisfying their intellectual curiosity, reducing marital search costs, obtaining an expected income from part-time work, or obtaining a hedge against divorce or other economic misfortune, it will be on average a smaller benefit than the person (usually a man) whose place she took who would have a full working career would obtain from the same education.

Read the whole thing before getting completely steamed at Posner. He's got an elaborate incentive scheme that avoids sex discrimination. The words "raise tuition" jumped out at me.

UPDATE: I think there is strong pressure on law schools to maintain an even balance of male and female students. It is because of this, not worries about full-time motherhood, that new preferences for males are likely to creep into the process.

Curbing my enthusiasm.

Did you watch the premiere of the new season of "Curb Your Enthusiasm"? It got off to a fine start. (Any scene with Shelley Berman ascends to a new level of greatness. My all-time favorite scene on the show was the old one where Berman kept beating around the bush, not wanting to reveal to Larry that his (Larry's) mother had died. "She didn't want to bother you. You were busy.")

I loved all the stuff last night about the Larry David sandwich. They put a lot of thought into concocting a really terrible sandwich. Two kinds of fish and cream cheese -- and capers! ("Sable? What's sable?") And that sandwich is interwoven with the unsandwich-y them of getting religion. (Or is religion like a sandwich? I'll bet some boring minister has built a sermon on that trope.)

But then I decided to reposition myself on a more comfortable piece of furniture and fell asleep for part of it. I'll have to catch it again on HBO on Demand.

There was also "Extras," which I was looking forward to seeing, but I only managed to catch a few snippets as I intermittently resurfaced from the grip of sleep. Sleep and I were like the ocean and Larry David in that first scene of "The Larry David Sandwich."

The end of the early post-Katrina period.

We're in the middle post-Katrina period now -- aren't we? -- where fear of greed and corruption have replaced our initial love and generosity. And rightly so. Our instant readiness to spend seeemingly any amount of money naturally activated people to do what they can to get the money to flow in their direction. It's not unlike the the way the flood itself set off looting. There is just far more money at stake, and it's harder to catch people taking advantage of the situation on camera.

Breyer's book.

Adam Cohen writes about Justice Breyer in the NYT:

In law school, I took a yearlong administrative law course from Stephen Breyer.... At the end of every class, we made a point of checking how much chalk there was on his suit, since he tended to back into the blackboard in his excitement over topics like "agency nonacquiescence."

That's especially funny to a lawprof, because most of us spend our classroom hours getting far more excited about the topic under discussion than it would make any sense for a normal young person to feel.

Anyway, Justice Breyer has a new book, "Active Liberty: Interpreting Our Democratic Constitution." I don't know about you, but I always balk at reading a book written by a Supreme Court Justice. They already hog such a large proportion of my reading time with their grossly bloated opinions. And now they want to claim even more of my time? (Though I'd love to read their blogs!)

Well, Breyer is writing to push back at Justice Scalia, who's successfully used book-writing to raise his profile as a Justice with a theory of interpretation, "original meaning." (Though he hasn't raised it high enough for the NYT to get it right. They call it "the 'original intent' of the founders," which is what Scalia takes pains to distinguish it from.)

Breyer calls his book "Active Liberty: Interpreting Our Democratic Constitution."

"Active liberty," according to Justice Breyer, is the ability of ordinary citizens to play a role in government decisions. As he sees it, the Constitution's drafters were most interested in creating a government that remained under the control of, as the first three words of the document say, "We the People."

Shouldn't that be: under the control of Us the People? (I'm sorry. That's my pet peeve about constitutional pontificators: throwing "We the People" around without noticing when you're using it as the object and not the subject of your sentence.)

Originalists like Justice Scalia see the Constitution as a set of rights and rules that were frozen in time when they were written. Justice Breyer argues that the better What-would-the-founders-do? approach is to interpret the Constitution in ways that promote its essential purpose: helping citizens get the knowledge and power they need to influence government policies on important issues.

Cohen informs us that Breyer demonstrates that his "active liberty" interpretive methodology supports various postions Breyer has taken on the Court: affirmative action doesn't violate Equal Protection; campaign finance regulation doesn't violate Free Speech. It's useful for a judge to fit his opinions into a framework. I'm glad there's a book from Breyer to set alongside Scalia's book. But I've read the opinions, and I expect the Justices to be able to make the argument that all that they've done is coherent.

If I want to spend more time thinking about how Breyer (or any other Supreme Court Justice) interprets the Constitution, it will be to discover for myself the ways in which the diverse opinions don't fit together.

IN THE COMMENTS: The question is raised: Which Supreme Court Justice would make the best blogger? I think it would depend on whether they were blogging openly in their own name, like Judge Posner, or running with an "Anonymous Supreme Court Justice" concept. It's pretty clear Scalia would be the best at blogging in his own name, but how could we know who has an inner blogger persona waiting to break free? I'd guess Clarence Thomas. Now, I realize the "Anonymous Supreme Court Justice" wouldn't work well enough to provide cover. What I suggest is that the Justice blog in the guise of an anonymous Supreme Court law clerk. It would be similar to the way Justice Stewart flew under the radar as a source for "The Brethren."

"Cuisine is sacrifice. There may be joy but there is also pain."

Writes the sociologist Jean-Claude Kaufmann, (via A&L Daily):

"I work in the ordinary and the banal," Kaufmann says. "It interests me and it interests more and more readers." He had thought that mealtimes would provide a droll light subject but found it complex and grave instead.

The complexity lies in the fact that French housewives dream that cooking will bring them happiness and love.... There may be a bit of narcissism there, notes Kaufmann, who adds that cooking is not all virtue and grace....

There has ... been a revolution in French eating habits.... A recipe is no longer a guide for beginners, Kaufmann says, "but an instrument to perform an existential rupture." Nothing in family cooking is anodyne, he writes at least twice, and the seemingly modest phrase "Oh, it's just something simple" merits detailed deconstruction.

What is more risky: cooking for others or allowing someone to cook for you? No wonder we prefer to nourish ourselves with casual snacks and fast food.

Frida Kahlo, whose female fans have the "washed-out, slightly embittered look of British women novelists."

Or so says Anthony Daniels, in The New Criterion (via A&L Daily):

[T]here is something unhealthy, of equal intensity, about the disproportionate adulation that Frida Kahlo has received over the last two or three decades. I think that what has happened is that people with no objective right to do so have equated her suffering with their own, and have appropriated her work as a symbolic representation of their own minor dissatisfactions and frustrations, victimhood being the present equivalent of beatitude.

They say, “I too have known a faithless or a worthless man; I too have suffered from persistent headaches, dymenorrhoea, or sciatica; therefore, Frida Kahlo has understood me, and I have understood Frida Kahlo. After all, I have suffered just like her. Moreover, like me, she was a moral person, which is to say that she had all the right attitudes; she was on the side of the oppressed, at least those who were not in the Gulag; she loved indigenes as a matter of principle; and she took part in the holy work of dissolving boundaries, the boundaries between sexes (or rather, genders) and between cultures.”

The critic likes the artist well enough. He's just repulsed by her fans. But are we not a little repulsed at how invasively he projects himself into the thoughts of the women in the museum whose looks he doesn't like?

And Eddie Izzard will play Mr. Kite.

In a movie called "Across the Universe":

It is a romantic musical, told mainly through Beatles songs, in which a young man from Liverpool comes to America during the Vietnam War to find his father, ending up in Greenwich Village.

I adore Eddie Izzard. Bono's in the movie too. It's directed by Julie Taymor, who did some pretty cool things bringing the story of Frida Kahlo to the screen. So even if you're skeptical of efforts to make productions out of Beatles songs -- based on things like this and this -- you can hold out some hope that this will be worthwhile.

Can I show you my baby pictures?

Thanks to John (in the top picture) for scanning and uploading this nice set of photos, mostly taken by me, from 22 years ago. I like this one too -- just hanging out in the backyard of our brownstone apartment in Park Slope:

Doom.

Last night, as the crowd from the early evening showing of "The 40 Year Old Virgin" emptied out, one man took a turn away from the direction of the exits and walked to the end of a hallway to stand in front of a poster for the movie "Doom." He lifted his hands, as if in praise, and, in a deep voice, proclaimed "Doom!" Had he learned nothing from the movie he'd just seen?

One Friedmanism too many.

"The tectonic plates of politics in this country have all shifted," said Thomas Friedman on "Meet the Press" today, causing me to impulsively flick off the TV. He'd just gotten done saying "[9/11] put the wind at [the President's] back. And Katrina brought that to an end. It put the wind in his face." I wish I could come up with an Earth Science metaphor for my reaction.

Nina's take on the movie, with photo.

Here I am at the pre-movie dinner:



Nina describes the movie here, linking my post from earlier today, and calls me out on two things that I have to defend myself against in her comments.

A blogger's work is never done!

Football mysteries.

I know I'm out of the loop, but I'd like to find out if the Badgers won last night's game. I got caught in the stadium traffic last night, but, as usual, I couldn't tell from looking at the people walking away from the game whether the team had won or lost. Now, I'm checking the local paper, and I can't tell from reading the article whether we won! Oh, wait, there's the phrase "winning drive" in the second to the last sentence in the article. Well, okay then! Here's the article in the other local paper, and I see it was one of the biggest wins for the team ever.

"I think that was probably the most unbelievable atmosphere I've ever been in in my life," Stocco said. "The fans are unbelievable. I couldn't believe how loud it was."

Strange. Can anyone tell me why there is zero celebratory attitude visible on the folks on the streets around the stadium? Is the midwestern demeanor really so restrained? There was nary a woo-hoo. And yet somehow we are the #1 party school in the country. After 20 years, there are things about Wisconsin I cannot fathom.

Strange Google search...

That brought someone here.

UPDATE: And then there's this.

"What? She's having sex? Bloody Luddite.'"

According to this article, lots of women who could get pregnant the old-fashioned way, are going to doctors for in vitro fertilization:

Many fertility experts believe that IVF offers women the best chance of pregnancy - a one in three chance of success or better in one cycle if the woman is under 35, whereas natural conception has no better than a one in four chance for a woman of the same age even if a couple have an active sex life.

An active sex life aimed at pregnancy is considered to be unprotected sex at least once every three days....

Michael Dooley, a gynaecologist, obstetrician and fertility expert, said that in the past five years he has seen a 20 per cent increase in the number of patients seeking "inappropriate or premature" IVF treatment.

"Many of these couples are simply not having sex or not having enough sex," he said. "Conception has become medicalised. It's too clinical. There has been a trend away from having sex and loving relationships towards medicalised conception."...

Emma Cannon, who runs the fertility programme at Westover House, said: "I have patients who diary sex in. When the they don't fall pregnant they panic and think they need IVF.

"People want everything now. If they can't have a baby now, they want IVF. They think it's no different from putting your name down for a handbag. Some people are horrified by the idea that they have to have sex two to three times a week. About 10 per cent of people I see don't have time to have sex. It's usually when you have two professionals who are based in the city and are very busy.

"Mothers might be working or their children sleep in their bed. I told one of my patients who is going through IVF that another IVF patient had just conceived naturally. She said: 'What? She's having sex? Bloody Luddite'."

As you can tell from the spelling (or if you went to the link), the news comes from England. Though the article plays up weird-sounding anti-sex attitudes, I think the phenomenon has more to do with anticipating fertility problems and worrying about confirming the problem after it is too late to get the government to pay for the treatment (which costs at least £2,500):

Government guidelines on when women should receive treatment (on the NHS) say IVF should be given only to those aged between 23 and 39 who have an identified cause for the fertility problem or who have suffered unexplained fertility problems for at least three years."

So I tend to think the quote I put in the title is entirely a joke, and it's really all about money.

Movie with a religion-sized hole in it.

I thoroughly enjoyed the movie "The 40 Year Old Virgin," and this comment should not in any way be taken to mean I think it should have been changed in the slightest. It was a perfectly done contemporary Hollywood comedy. I just want to say that the Steve Carell character Andy really did represent a very religious man who was saving himself for marriage. Not even the slightest reference to religion is ever made in the movie, but his behavior -- which included rejecting pornography and masturbation -- could only be explained, in an actual human being, by extremely conservative religious scruple. I note that he lived in an apartment full of science fiction action figures, which he intensely revered, and contend that these figures stood in for the Virgin Mary.

The movie is full of hilarious sexual things that will appeal to a broad, youthful audience, but I think it also exists to confirm the values of persons who, on moral grounds, resist sex outside of marriage.

I love HBO, but...

I am so mad at them for cancelling "The Comeback." I thought they were known for giving a show the chance to catch on, and "The Comeback" was notorious for the way people didn't get it at first. (Chez Althouse, we got it, but for some reason, people found it hard to get.) But only 1 million viewers saw the finale. I guess there's a limit to what is worth supporting.

What's wrong with people? The low popularity of that show makes me feel so lonely!

"Parents mourning their children in uniform lost in Iraq, and uncountable families motivated for first time to protest."

That's language found in an AP report about today's antiwar protest in Washington. How can that pass as professional journalism? The U.S. did not send "children" to Iraq. I get the poetic aspiration entailed in combining "parents," "lost," and "children," but save it for an opinion piece. And if the "families" are "uncountable," how do you manage to know what their motivations are and whether they have protested on prior occasions? How do you even know they are "families"?

"Surface"/"Invasion"/"Threshold."

Tung Yin watches all three new alien invasion TV shows. They all sound really bad. Though maybe if you get really excited about fractals, you'd like "Threshold."

Webpage design.

Have you ever stopped reading a webpage because the design changed? I used to check Memeorandum several times a day. It was my favorite place to go to see what news stories people were blogging about. Now, I have to force myself to go there, and I feel frustrated as soon as I see it. I mourn the loss of the old design. That page, to me, used to look like the conversation about the news. Now, I feel that I might be able to get a sense of the conversation if I studied the page for a while. But I can't stand to look at it, because it just rubs it in how much I miss the old Memeorandum.

"The real question - putting it baldly - is whether there is going to be a revolution."

A BBC opinionwriter muses about the American response to Hurricane Katrina:

Will the American social and economic system - which creates the wealth that pays for billionaires' private jets, and the poverty which does not allow for a bus fare out of New Orleans - be addressed?

It has been tinkered with before of course, sometimes as a result of natural disasters. There were for instance plenty of buses on hand for this week's Rita evacuation.

But the system's fundamentals - no limit on how far you can fly and little limit on how low you can fall - remain as intact as they were in the San Francisco gold rush.

The headline for this unbelievably smug piece is "Katrina prompts charity not change."

UPDATE: This post got a strange link from Andrew Sullivan:

ALTHOUSE ON THE BEEB: Picked up by Instapundit and the Corner as more evidence of wretched BBC anti-American bias, I read the piece assailed by Ann Althouse. It's an opinion piece, not news reporting, so obviously a little more lee-way for bias should be allowed. And yes, there's a bizarre assumption that there is no welfare net in America - or that we haven't just expanded it to cover millions of wealthy seniors, or that welfare rolls haven't been reduced by almost a half in a few years, and so on.

Was my post about the BBC being biased? Did I somehow not perceive that the writer I called a "BBC opinionwriter" was "writing an an opinion piece, not news reporting"? You'd think my use of the term "opinionwriter" would have nailed that down rather hard! But thanks for the ridiculously inappropriate patronizing, Andrew! Check out the title of my post! It's awfully damned obvious that I'm writing about the stupidity of this one writer's notion that the United States may be headed for a revolution, which Sullivan completely agrees with in his post, even though for some reason he writes as if he's taking issue with me. It's quite apparent that Sullivan is mainly concerned with things that Glenn Reynolds and Jonah Goldberg said at their sites when they linked to me, but he didn't bother to write accurately about me. I think if Sullivan is going to use my name in his post title, he ought to take care about acting as if he's got a problem with me, when, in fact, he doesn't. But Sullivan doesn't read my blog, I'm almost sure. He just reads Instapundit and the Corner. To him, I'm just an empty link found there.

"An overly compliant personality."

The psychologist explains Lynndie England. Does that description make her seem any less responsible for her actions? I'd say being "overly compliant" is one of the character flaws, like having a hot temper, that might lead a person to commit a crime. Slapping "personality" onto it doesn't impress me.

"I’m like, totally in love with Rush Limbaugh right now! This is awful!”

The Anchoress has a solution for the terrible divisiveness in American politics. If only you could have a sexy dream about some political figure you feel quite hostile toward.

"It feels like icepicks, almost."

Says FoxNews's Shepard Smith, suffering in the wind in Beaumont, Texas. Sometimes, I'm laughing at him, but I also feel awfully sorry for him. And kind of worried.

IN THE COMMENTS: Lots of talk about Smith's hat and underlying is-it-real hair, which we got to inspect when the hat blew off.

An old song comes to mind.

I'm watching the news reports, talking about Hurricane Rita aiming straight at Lake Charles, Lousiana. Maybe like me, you've got this song running through your head:

When I get off of this mountain, you know where I want to go?
Straight down the Mississippi river, to the Gulf of Mexico
To Lake Charles, Louisiana, little Bessie, girl that I once knew
She told me just to come on by, if there's anything she could do.

How is TimesSelect doing?

The NYT now requires online readers to pay to get to the op-ed columnists, and the paper hasn't written any articles about the new program since last May. What indication do we have of how well it's doing? I notice that the new "Most Emailed Articles" list is nearly bereft of the columns. Only one, by Paul Krugman, makes the top 25 in the last 24 hours list, way down at #14.

The columnists in the past were usually prominent on the list. Check the last 7 days list, which at the moment covers the period before the program began. It's got 7 of the columnists you now have to pay for in the top 25, with only one being from the pay-to-read period, down at #14. And 3 of the top 5 are from the regular columnist, from back when they were free. And look at the last 30 days. The top 4 are all by the regular columnists. 16 of the top 20 are. None of these are pay-to-read articles.

Isn't this squandering their popularity?

Me, as interviewee.

Remember that interview I referred to back on August 12th? Well, if you do, you are a strangely intense reader of this blog! Anyway, the interview is finally available: here.

Comments?

Art, sex, and Scalia.

Antonin Scalia gives a talk about law and art at the Juilliard School. One topic: the 1990 statute -- brought on by Mapplethorpe and the "Piss Christ" -- that required the NEA to take decency and values into account as it made its arts grants. Scalia's apt comment:

"I can truly understand the discomfort with government making artistic choices, but the only remedy is to get government out of funding."

Another topic was law and pornography, about which Scalia opined:

"The line between protected pornography and unprotected obscenity lies between appealing to a good healthy interest in sex and appealing to a depraved interest, whatever that means."

What is less sexy than Scalia, et al, deciding what is "a good healthy interest in sex"?

And now, for a new entitlement.

A reader sends this link to an article (which Eugene Volokh linked to a few days ago):

Danish activists for the disabled are staunchly defending a government campaign that pays sex workers to provide sex once a month for disabled people.

Opposition parties call the program, officially known as ''Sex, irrespective of disability,'' immoral.

''We spend a large proportion of our taxes rescuing women from prostitution. But at the same time we officially encourage carers to help contact with prostitutes,'' said Social-Democrat spokesperson Kristen Brosboel.

Responded Stig Langvad of the country's Disabled Association: ''The disabled must have the same possibilities as other people. Politicians can debate whether prostitution should be allowed in general, instead of preventing only the disabled from having access to it.''

So, really, what was the first question that came into your mind? Wasn't it: How disabled do you have to be? (At the Roberts hearings Teddy Kennedy made a reference to 50 million as the number of Americans With Disabilities.)

I think it's creepy for the government to be deciding how often people ought to have sex and to be keeping official records about the persons participating in this program.

Opinions?

IN THE COMMENTS: A coinage. You've heard of the Nanny State. This is the Poonanny State.

"It's like looking at a murder... The first time is bad. After that, you numb up."

Watching the re-flooding of New Orleans. "[A] waterfall at least 30 feet wide poured over and through a dike that had been used to patch breaks in the Industrial Canal levee," and Rita has not yet arrived.

"It's Armageddon."

Said Orrin Hatch, referring to the upcoming confirmation battle over whomever George Bush picks to replace Sandra Day O'Connor. But aren't the Democrats hoping they've signalled to Bush that he must pick someone more moderate than John Roberts for this next slot? Hatch seems to already know that he won't: "I don't think the president is going to be bullied into putting somebody up that he doesn't believe in."

Ridiculous comparison blocks entry to article I want to read.

I love "Curb Your Enthusiasm," and as I eagerly await the premiere of the new season, I jump at the chance to read an article in the NYT about the terrific comedian who plays Larry's agent. But the article starts this way:

Just as there has never been another lead character on television quite like Larry David - it would be hard to imagine Ralph Kramden or Ray Barone picking up a prostitute to qualify for the carpool lane to Dodger Stadium - there has never been a sidekick quite like Jeff Greene, the fictional Mr. David's fictional manager.

All right. I have no interest in Ray Barone (and, in fact, have to guess at who he is -- he's the one "everyone" supposedly loves, I presume). But what the hell are you saying about Ralph Kramden?

Quite aside from whether Ralph was the kind of guy who would enlist a prostitute in one of his ridiculous little schemes (maybe he was) and whether such a plot could have run on TV in the years 1956 and 1957 when "The Honeymooners" was made: Dodger Stadium did not open until 1962 (and the Dodgers were still in Brooklyn in '56-'57), there was no such thing as a carpool lane back then, and Ralph Kramden did not have a car, he didn't even have a sofa.

As to "there has never been a sidekick quite like Jeff Greene": well, I love the character Jeff Greene, but if you want to bring up the question of great sidekicks and you've already mentioned Ralph Kramden, respect must be paid.

For a "Honeymooner" era traffic-beating scheme:

Ralph: It's rush hour. We'll never be able to get across town in this traffic.

Ed: Trust me. We'll go by sewer.

Now, let me go read that article.

So you want to major in video games?

You certainly can. Your parents might think it's self-indulgent compared to traditional majors, so you might have to explain economic realities to them. It's a $10 billion-a-year industry, and it needs people trained in the complex technology and design it takes to make a game.

IN THE COMMENTS: Warnings that employees do poorly in the video game industry.

The Apprentice, the Donald.

"I'm going to divide the teams into men versus women. The reason I like doing it this way is sometimes it's hard telling you apart. This way it's a lot easier." [So said Donald Trump setting up the competition in the first episode of Season 4.]

Huh? What the hell??

Chris: "I think it's the best way."

Me, blogging: "Let me quote you. Why do you think it's the best way?"

Chris: "You said it's the best way!"

Oh, yeah. Right. It is the most distinctive difference between people, and the interaction among women and among men is more nuanced and fascinating than the way men relate to women and women to men, which is more stereotypical.

Hey, wait. The first test, after they are divided into a male team and a female team, is a running test. Totally unfair! Of course, the men win. It's a shoe thing! Now, I'm pissed.

Now the show's over, and I must say, it was excellent -- much better than Martha Stewart's version last night. Chris and I agreed that the whole style of the production -- the suspenseful editing, the music, the attitude -- were much more absorbing and exciting. The boardroom scene was far superior. We laughed a lot at how Melissa behaved, richly deserving the ouster she got. All the other women hated her, and she proclaimed that women do all hate her, because of her beauty (though she was no more beautiful than the other women), and that, in fact, she could not work with women. Ha!

Well, we had a great time watching this show, and it made Martha's show seemed crabbed and small by comparison. Sorry, Martha! And I like Martha more than Donald. But it's just so fun not liking Trump. We often laugh just to see him walking onto the set, making his idiotically stern little faces.

UPDATE: By the way, I instantly loved Alla, the Russian immigrant. And when she was the first to speak up about Melissa, just as everyone was focusing on the project manager, and she laid it right out why Melissa should be the target, my bond became permanent. I want Alla to win.

Audible Althouse.

Episode 5, the new podcast, is suddenly available and utterly new!

"I know this is a metaphor, but it is the only way I feel I can protest the unjust occupations."

Said a performance artist, Hala Faisal, who took off her clothes in public, displaying the words "Stop the War." Where's the metaphor? Supposedly, taking off your clothes ≈ disarmament.

I like the way the lawyer got the charge of public nudity dismissed on the technicality that the summons failed to state which body part she exposed, but that he had also loftier arguments:

Women in New York are entitled to bare their breasts under "equal protection" rules since men are allowed to bare theirs, ... and anyone may bare all if they do so during a "play, performance, exhibition or show."

Inadvisably brusque answer to a question actually given by me today.

"Duh."

Really, I'm sorry. That was so inappropriate. Yet apt.

Sentence of the Day.

The award goes to David Montgomery of the Washington Post for this juicy mass of info in the form of a sentence:

Plump couches, radical books, free WiFi, $5 microbrews, killer sound system, a menu that runs from catfish and collard greens to peanut butter, banana and honey sandwiches: a cool, comfortable, slightly bourgy haven for a hot, bothered, slightly bourgy peace movement.

"It's just your mission to mow down everything in your sight because you can."

We're getting damned sick of your SUV of a baby stroller:

[M]any are beginning to suspect that the new big strollers are the latest fissure in a long-standing divide between parents and nonparents, a disagreement that usually goes unspoken, over who has made the right choice in life.

"These women have a child, and they're like, 'Look at me,' " said Ophira Eisenberg, 33, a stand-up comedian from the West Village who refers to oversize baby strollers as lawn mowers. "It's like this baby is more important than anything, and everyone should be bowing down because they created life."

I've never understood the charm of the oversized baby stroller. They should revive the old term baby carriage. Why would you want to look and feel bulkier and less maneuverable? I would think someone with a baby would look for ways to keep a sleek profile -- just like you try to lose the weight you gained during pregnancy.

But then I don't see the charm of the SUV.

But even if you like these extra-large possessions, why doesn't it bother you that they annoy other people? Don't you see why other people infer that you just don't care about how you make them feel?

Actually, my pet peeve about strollers isn't about how large they've gotten. (I assume this trend is worse in NYC, where people are into the "Sex and the City" trendy strollers and where walkways are more crowded.) My problem is the way people use strollers to immobilize older children who ought to be encouraged to walk. The dopey faces of the children who have adapted to this restraint really disturb me. What is happening to their minds and bodies?

And the Committee votes yes.

It's a 13-5 vote for John Roberts, with both Wisconsin Senators, Feingold and Kohl, doing the right thing. The noes are: Dianne Feinstein of California, Joseph Biden of Delaware, Edward Kennedy of Massachusetts, Charles Schumer of New York and Dick Durbin of Illinois.

The ultimate media experience.

Watching the TV news coverage of the malfunctioning plane on which you are a passenger as it comes in for an emergency landing.

"Radically orientated," but too stoned to do anything.

The FBI on John Lennon.

Coffee and Donuts.

I prefer the spelling "doughnuts," but I'm writing "donuts," because, officially, we call what we do at the Law School "Coffee and Donuts." It's just a little morning session in the faculty library for students to listen to some faculty member talk about something or other, generally some activity aside from the usual Law School duties that the professor engages in. Today, at 8:30, I'm going to talk about blogging .

So, I need to get my act together a little earlier than usual this morning and must cut short this morning's blogging. But I'll be back later.

You've seen movies where the actors take off their clothes.

But would you like to see stills from famous movies where they actors have been digitally removed and only the clothes remain? This is a quiz — in Excel document form: here. See how many of the sixty films you can identify!

"Objectively disordered."

The Catholic Church is going to bar homosexuals from entering the priesthood -- even if they are celibate:

Although the document has not been released, hints of what it will say are already drawing praise from some Catholics, who contend that such a move is necessary to restore the church's credibility and who note that church teaching bars homosexuals, active or not, from the priesthood.

Other Catholics say, though, that the test should be celibacy, not innate sexuality, and they predict resignations from the priesthood that can worsen the church's deep shortage of clergy.

One explanation given is that the Church has long considered homosexual orientation to be "objectively disordered."

UPDATE: Sorry for misspelling "celibate" again. Corrected now. Remember to celebrate celibacy!

IN THE COMMENTS: I'm not participating in the comments on this one, but there is a huge argument going on in there! Enter at your own risk. I generally avoid arguing with anyone about religious beliefs. If you don't agree with the beliefs of a religion, then you don't believe in the religion. Doesn't the problem solve itself -- in a free country? Not entirely. Children have religion imposed on them, and members of a religion may want to change the beliefs of the religion rather than leaving it. You might think you know what the true substance of your religion is, that the leaders of it have gone wrong, and that you have a responsibility to rescue it from those who have distorted it. Anyway, if such things interest you, there are a lot of vigorous comments inside to read. The comments are not one-sided and do not go over the line into hate speech, in my opinion.

"Can we just have the corporate people over here and the creative people over here?"

Says a contestant on "Apprentice: Martha Stewart." You're watching, of course, aren't you? The group has to divide itself into two teams, and they go with creative vs. corporate -- the artist-y folk (like the chef) and the entrepreneurial types. The creatives call themselves "Matchstick," and the corporates call themselves "Primarius." I think we can see who's ahead at this point.

Ooh, they are tasked with writing a children's book. [My son] Chris says he thinks the tasks on Martha's "Apprentice" will be better than on Donald Trump's "Apprentice." I say, "Yeah, they'll be more creative, with more interesting visuals. Less just trying to sell something and more about the actual aesthetics. Which will be more fun to watch." Chris: "Remember, you've always thought the best task on 'The Apprentice' was that art related one?" Yes, the one where they had to choose an artist and then put on a gallery show. That was the best episode, by far. There's a lot of potential for Martha's shows to be like that one.

The corporates seem pretty creative and they interact well. The creatives get frazzled. The creative doing the writing stresses that she needs quiet, and another member of the group mocks her for that. The corporates -- Primarius -- feel they are at a disadvantage, but that feeling seems to be working as an advantage. The creatives run into trouble about how "dark" the story is (but fairy tales are dark aren't they?).

Chris notes that the tasks on this show won't feel as much like infomercials as the things they've been doing on Trump's show, because the whole Martha Stewart empire is itself a big product for which the show really is kind of an informercial. "But it won't feel like an infomercial." Yes, Corporate America, lay those informercials on me so that I don't even notice. It's so much nicer that way.

The Matchstick project manager is a bizarre control freak: "I am actually the leader of this team." Oh, he is so going today. If his team loses. And they do.

Now, let's see how the boardroom is done on Martha's "Apprentice." We totally expect the project manager (Jeff) to go, and if that's just what happens, there's a problem with the show. Something surprising needs to happen in the boardroom. Maybe Jeff will play his cards well and make the writer woman look more to blame. There should be some good back and forth, the way there is on Trump's show.

The reward scene for the winning team is always the worst part of Trump's show. On Martha's show, a beautiful dinner is served, and it goes nicely with Martha's persona, making it a more integral part of the show.

In the boardroom, Martha questions the dark themes of the story. A great, tense, blaming debate goes on, as the writer (Dawn) and a jerky guy (Jim) get chosen by Jeff to face the final cut. Hey, have you noticed there are no black people on the show? No Asians, either I think.

After the break -- which had a promo for Trump's show, which starts tomorrow -- there's a good final judgment scene, with Martha saying, "So Jeffrey, you just don't fit in." Will she say that every week?

As he leaves, we see her writing him a sort of thank-you note. Like an etiquette thing.

In the promo for next week's show, the voiceover says "Who will be the next to get Martha's letter?" So I think maybe the letter will be emphasized more than her equivalent of Trump's "You're fired." How will that work? What will they do with it? I'm thinking they'll try to blend the polite surface with the brutality of getting fired, that combination of prettiness and ruthlessness that Martha represents.

Is Martha as good as Trump? She didn't create as much stress in the boardroom. Chris says Trump's show has been declining and people have gotten tired of his boardroom act. "Maybe her persona will be less tiring than his." Me: "But maybe not as exciting." Chris: "There are more subtle ways that it being her version of 'The Apprentice' makes it more exciting throughout the show."

Bottom line: Excellent first show. I'll keep watching.

"But what's with people putting 'a's in their names where they don't belong? "

Said Volokh Conspiracy's Kevan Choset after someone pointed out that he'd spelled Katharine Hepburn's first name wrong. Cute!

"This is all that liberals like myself can fairly expect from President Bush's nominees."

Lawprof Bruce Ackerman on John Roberts:

The only way for Democrats to reverse the slow rightward drift in constitutional law is by winning elections. Within the present political context, it is fair to insist that President Bush recognize that he lacks a popular mandate for revolutionary constitutional change. In nominating Roberts, he has indeed made this crucial concession. Rather than oppose the choice, Democrats should use it as a benchmark for the next nominee. Though Roberts might be an appropriate replacement for the right-wing William Rehnquist, the Democrats should insist on a more centrist justice to occupy Sandra Day O'Connor's swing seat.

That sounds like exactly the right position for the Democrats. Here's what I said on the subject, by the way, last Friday:

I'd say [the Democrats] should express their deep reservations, invoking issues that matter to their constituents, but still vote for him, and say that it's because of the agile mind their astute questioning enabled him to display at the hearings. This should be combined with a warning to Bush that he needs to nominate someone more moderate to replace O'Connor.

"In my judgment, in my experience, but especially in my conscience I find it is better to vote yes than no."

Senator Leahy does the right thing and supports John Roberts.

"Judge Roberts is a man of integrity. I can only take him at his word that he does not have an ideological agenda."

Interesting. The hearings were full of statements by Democrats that it's not enough to be asked to take Roberts at his word that he's not an ideologue. Leahy sounds like he's admitting that the Senate's role is weak. At the same time, he's preserving room for himself to say later that Roberts deceived the Senators.

Remember what Hillary Clinton said about the vote on Roberts: "They will do what they think is in their interest, however they define it." Did Leahy successfully analyze his interests? Or do you "take him at his word" that he's following his conscience?

"Despite being ostensibly about gambling and gangsters, Revolver is full of obscure references to Kabbalah..."

"... with strange mentions of numbers and bizarre references to 'ego versus the light' - both Kabbalah allusions."

Is Madonna to blame for the depletion of all value from the once-admired Guy Ritchie?

"Two Danish artists who want to get their ironic anti-war message heard by ordinary Iraqi people."

The BBC reports:

The posters [pasted up in Baghdad] show elephants, mice and cats together with messages like "Trust in Propaganda" and "Kill your Enemy".

Underneath it says in small writing "...and keep life complicated".

The three designs were created by artists Claus Rohland and Jan Egesborg, who say they want to show Iraqis that - despite Danish participation in the US-led invasion - most Danes are against what is happening in Iraq....

The third design shows the three mice (a common theme in all three pictures) holding up a massive elephant, and the message "Support the Wrong One... and keep life complicated".

"We wanted to create a kind of small story around these three white mice, with a hidden meaning that makes people think," said Mr Rohland.

"It ought to be the elephant who is afraid of the mice - but who do the elephant and the mice represent? The Iraqi government? America? Denmark? It depends how you look at it."

Thanks a whole hell of a lot, Danish artists! What the common people of Iraq have been missing is Euro-irony. Nice touch writing in English too. It really helped the BBC pick up the story for you.

Time to go after the pro-sex feminists again.

Here's another article about Ariel Levy's book "Female Chauvinist Pigs."

"Women had come so far," or so the thinking went, that "we no longer needed to worry about objectification or misogyny." If male chauvinist pigs "regarded women as pieces of meat, we would outdo them and be Female Chauvinist Pigs: women who make sex objects of other women and of ourselves."

Well, Ms. Levy is having none of it, and she is not the only one. Even Erica Jong seems to feel that something has gone wrong. Known for popularizing the idea that a woman may want consequence-free sex, Ms. Jong today declares: "Being able to have an orgasm with a man you don't love . . . that is not liberation." It isn't? Someone should tell this to Annie, a blue-eyed 29-year-old who admits to Ms. Levy that she "used to get so hurt" after a night of sex that didn't yield an emotional bond. Now she has gotten over it, or tried to: "I'm like a guy," she brags.

How did this happen? Why did feminism sell its soul to the sexual-liberation movement in the first place? After all, the original feminists were fighting to be taken seriously. Hugh Hefner, by contrast, said that his ideal girl "resembles a bunny . . . vivacious, jumping--sexy." There seems to be a contradiction here.

First of all, doesn't anyone read "Fear of Flying" anymore? Well, everyone read it when it came out, and I can assure you that the Erica Jong character in that book, after pursuing the "zipless f**k" for 300 pages, finally gets the opportunity and realizes it's a bad idea. ("My zipless f**k! My stranger on the train! Here I'd been offered my very own fantasy. The fantasy that had riveted me to the vibrating seat of the train for three years in Heidelberg and instead of turning me on, it had revolted me!") So what's with this "even Erica Jong" business?

Second of all, doesn't anyone remember the Andrea Dworkin/Catharine MacKinnon era anymore? There was a whole theme back then about how pro-sex liberals were ruining feminism (and how real feminism had to be very hostile pornography). There's an indignant little anthology from 1990 called "Sexual Liberals and the Attack on Feminism." Feminists have been fighting forever about whether to be pro- or anti- sex or something in between.

It may be that, like Ms. Levy, a lot of feminists now regret getting in bed with Mr. Hefner. Yet if you mention the word "modesty" within 20 feet of them their heads spin around like Linda Blair in "The Exorcist." This is where they get stuck. Only if feminism can embrace the more traditional ways that men and women have courted throughout the ages can it have anything practical to offer young women. To the extent that feminists dismiss as worthless anything that is perceived as "backtracking," they only help to perpetuate the "raunch culture"--even as they deplore its effects.

Take a beach scene that Ms. Levy recounts, when the male "friends" of two girls pressure them to take off their suits. Soon surrounded by a circle of 40 screaming men, the girls say "no way!" but eventually give in and spank each other to appease the crowd.

Hmmm.... I wonder who's going to buy Ms. Levy's book? There doesn't seem to be anything new here about feminism -- which it apparently distorts ridiculously. Maybe the intended reader is the virtuous, puritanical sort who finds these lame sex stories exciting.

The author of the linked opinion piece (from the WSJ) is Wendy Shalit, who, we're told, wrote a book called "A Return to Modesty: Discovering the Lost Virtue."

Well, I'm sure Shalit encounters plenty of feminists who don't like her word "modesty," but her assumption that they have bought into a Playboy vision of free sex is absurd. They just hear social conservatism in that word. It's quite possible to reject social conservatism without falling into some exaggerated libertinism. Shalit's title advocates going back to old-fashioned values, so it's no wonder most feminists balk. They rightly want new ways to think about what is good for women, not a re-insertion into the old set-up.

And as for that "Exorcist" imagery: that's a pretty old cliché. Can we have something fresh?