Radio alert!

I'll be on Open Source, a nationally distributed public radio show based in Boston and hosted by Christopher Lydon, at 7 Eastern, 6 Central Time -- in other words, in a few minutes. I'll be talking about Supreme Court nominations along with Cass Sunstein, Eric Muller, and Charles Fried. You can listen live here. And it's Halloween, with kids coming to the door.... Crazy day! And I've got a final edit on an op-ed to turn around before I go on. Gotta run!

UPDATE: That was interesting. Cass Sunstein came ready with statistics based on reading 41 Alito dissents and concluding that Alito was a predictable conservative vote, a point he repeated at least five times. And then he accused me of spinning.... Isn't this like "he who smelt it, dealt it"? He who detects spinning is the spinner?

Although I'm detecting it now, so....

Oh, lord! I am hitting the wall tonight!

And where are all the trick-or-treaters? I've got sooooo much extra candy! Two tiny kids came to the door just now and I held out a giant bowl o' candy and said "Take as much as you want."

Spiderman and the Princess each took one piece.

"Go ahead, take as much as you want."

No reaction.

"Go ahead, take two."

Answer: "I already have one."

Awwwww.... little kids are so sweet!

UPDATE: Here's the recording of the show.

Alito, the Italian word.

What does it mean? A quick look at an Italian-to-English translation site shows it means "breath," and that there is a common expression "alito cattivo," which means "bad breath." I emailed my Italian informant for more info, and he's been away from Italy long enough that he wasn't sure if Italians say "alito" outside of the expression "alito cattivo" (because there is another Italian word for "breath," "sospiro"). So he called his daughters in Rome. He emails:

To the question: what do you think when I say alito? One said: "alito di vento" (breath of wind, forgot about that expression!) and alito of a person (but not negative), the other said: "bad breath" (alitosi). Small sample.

So there you have it -- in case you want to use imagery in discussing Samuel Alito. A breath of fresh air? Bad breath? It's your metaphor!

Alito and the Family and Medical Leave Act.

Judge Alito made short work of the question whether Congress has the power under the 14th amendment to enact the Family and Medical Leave Act in Chittister v. Department of community and Economic Development:

In enacting the FMLA, Congress found, among other things, that it is "important . . . that fathers and mothers be able to participate in early childrearing and the care of family members who have serious health conditions," 29 U.S.C. § 2601(a)(2), that the "lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting," § 2601(a)(3), that "there is inadequate job security" for persons who might take medical leave, § 2601(a)(4), and that "the primary responsibility for family caretaking often falls on women" and has a greater effect on their work than it does on men, § 2601(a)(5). Notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause. For example, Congress did not find that public employers refused to permit as much sick leave as the FMLA mandates with the intent of disadvantaging employees of one gender. (Indeed, it is doubtful that a practice of allowing less sick leave than the FMLA requires would even have a disparate impact on men and women.). Nor are we aware of any substantial evidence of such violations in the legislative record.

Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional. Unlike the Equal Protection Clause, which the FMLA is said to enforce, the FMLA does much more than require nondiscriminatory sick leave practices; it creates a substantive entitlement to sick leave. This requirement is "disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act." Kimel, 120 S. Ct. at 645. It is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." City of Boerne, 117 S. Ct. at 2170. For these reasons, the legislative scheme cannot be said to be congruent or proportional to any identified constitutional harm, and it cannot be said to be tailored to preventing any such harm. Accordingly, we hold that the FMLA provisions at issue here do not represent a valid exercise of Congress's power to enforce the Fourteenth Amendment and that the FMLA does not abrogate Eleventh Amendment immunity. Cf. Lavia v. Commonwealth of Pennsylvania, Department of Corrections, 224 F.3d 190, 2000 U.S. App. LEXIS 18989 (3d Cir., 2000) (Title I of ADA).

This is stunningly well and concisely written and quite correct, though it is not the position the Court ultimately took in Nevada Department of Human Resources v Hibbs. I have a law review article on Hibbs, which you can read in PDF here. Alito took the position Justice Kennedy took in dissent in Hibbs. Chief Justice Rehnquist wrote the majority opinion, which purported to apply Boerne and Kimel, but most certainly did not. You can argue that Boerne and Kimel were wrongly decided, but Alito was bound by them and duly and competently applied them. Anyone who tries to say that Alito is hostile to women's rights because of this decision is utterly wrong.

Note: The FMLA is still supported by the commerce power. The issue under the 14th amendment only concerns whether the plaintiff can receive retroactive relief when the employer is the state.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.

"I see you're in full pumpkin mode."

Is it okay to say that to a colleague who is quite pregnant and wears a bright orange sweater on Halloween?

Happy Halloween.

Two photos from State Street shops:

Media Studies pop quiz.

Media Guy at Ad Age has a pretty funny Media Studies pop quiz, featuring, among other things, a question about Pajamas Media. (Irrelevant side point: I just did a radio show in my pajamas!) Anyway, I'm still laughing a lot about the Pajamas Media question:

Influential blogger Glenn Reynolds, of Instapundit fame, has just joined start-up Pajamas Media, a network of 70 blogs. The name was chosen because:

A. -Black Socks and Stained Boxer Shorts Media was too unwieldy.

B. -I’m Now Too Fat to Fit Into My One Suit Media was too depressing.

C. -I’ve Got BBQ Sauce and Guacamole on My Tie Media was too gross.

D. -Glenn Reynolds Sleeps Naked Media was too disturbing.

This is my favorite question though:

Now that The New York Times has turned on one of its own—Judith “WMD” Miller—who’s next?

A. -Will Shortz, longtime puzzle editor, for his failure to anticipate the rising sudoku insurgency.

B. -Times Magazine “Funny Pages” comic artist Chris Ware, for being such a sad sack and total downer, man.

C. -The entire “Styles” staff, for clashing with Maureen Dowd’s pumps.

D. -Howell Raines, who, it turns out, still works at the Times—but now in the mailroom (it’s just way too hard to fire people, what with all the union rules and stuff) and always hangs on to Arthur Sulzberger Jr.’s L.L. Bean catalog for like a week before delivering it, which is so totally annoying.

Hey, Chris Ware really is such a sad sack and total downer, isn't he?! Why do I find the idea of turning on him of all people so hilarious? It would just be so inappropriate. But leave Will Shortz alone! I love Will Shortz. And you know I hate shorts.

Why Alito is a stronger choice than John Roberts.

I wanted President Bush to nominate someone like John Roberts, and I think Samuel Alito in fact deserves to be considered a stronger nominee than Roberts. He has the impressive educational background followed by a stellar career before becoming a judge, but he also has a much longer record as a judge -- 15 years to Roberts's 2. I am glad to see Bush not shy away from a person with a real judicial record. The fear of putting up a nominee with actual cases to peruse puts too many fine candidates off limits. To see Roberts as the ideal nominee is to prefer a judicial mystery, someone who is hard to know and hard to attack. With Alito, we can read his cases. It will be important to recognize that an inferior court judge is profoundly limited compared to a Supreme Court justice, but the judicial record is still highly valuable.

Here is an article summarizing a few of his hot-button cases:

In a 1999 case, Fraternal Order of Police v. City of Newark, the 3rd Circuit ruled 3-0 that Muslim police officers in the city can keep their beards. The police had made exemption in its facial hair policy for medical reasons (a skin condition known as pseudo folliculitis barbae) but not for religious reasons.

Alito wrote the opinion, saying, "We cannot accept the department's position that its differential treatment of medical exemptions and religious exemptions is premised on a good-faith belief that the former may be required by law while the latter are not."

In July 2004, the 3rd Circuit Court ruled that a Pennsylvania law prohibiting student newspapers from running ads for alcohol was unconstitutional. At issue was Act 199, an amendment to the Pennsylvania Liquor Code passed in 1996 that denied student newspapers advertising revenue from alcoholic beverages.

Alito said the law violated the First Amendment rights of the student newspaper, The Pitt News, from the University of Pittsburgh.

"If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment," Alito wrote.

In 1999, Alito was part of a majority opinion in ACLU v. Schundler. At issue was a holiday display in Jersey City. The court held that the display didn't violate the establishment clause of the First Amendment because in addition to a creche and a menorah, it also had a Frosty the Snowman and a banner hailing diversity.

In the case of Homar v. Gilbert in 1996, Alito wrote the dissenting opinion that a state university didn't violate the due process rights of a campus police officer when they suspended him without pay after they learned he had been arrested on drug charges.

One of the most notable opinions was Alito's dissent in the 1996 case of Sheridan v. Dupont, a sex discrimination case. Alito wrote that a plaintiff in such a case should not be able to withstand summary judgment just by casting doubt on an employer's version of the story.

In Fatin v. INS (1993), Alito joined the majority in ruling that an Iranian woman seeking asylum could establish eligibility based on citing that she would be persecuted for gender and belief in feminism.

In a 1996 ruling that upheld the constitutionality of a federal law banning the possession of machine guns, Alito argued for greater state rights in reasoning that Congress had no authority to regulate private gun possession.

The abortion case will surely get the most attention, but issues about religion and the Constitution should come to the fore as well. Alito will, if confirmed, replace Sandra Day O'Connor, and her swing-vote role was especially influential in the cases about the religion clauses. From the little I'm seeing here about Alito, he has a marked sympathy to pleas for accommodation from members of minority religions -- a tendency that alone should shake off the nickname Scalito. (See Scalia's majority opinion in Employment Division v. Smith.)

I look forward to a serious analysis of constitutional law issues and intend to do my part correcting distortions as various critics and proponents tear into his record.

Radio.

Just got a phone call asking me to go on the radio in ten minutes and talk about Alito. Okaaaaayyy.

UPDATE: I'm on the break now. It was interesting to try to learn as much as possible about Alito in 15 minutes. I found this article especially helpful, describing a number of his cases. ....

Now the half-hour show is over. There were three callers, two of whom were especially concerned about the failure to nominate a woman.

ANOTHER UPDATE: Here's the archive link.

"Scalito."

I'm seeing news reports that President Bush will nominate Samuel Alito for the Supreme Court. Bush needs to pick a solid nominee and put the Miers debacle behind him. Presumably, he's determined that Alito is such a person. I would give a favorable presumption to Alito, but I will need to watch the nomination and see what comes out about him.

I welcome hearing something more substantial about the man than that people call him "Scalito" to signify his similarity to Scalia and because his last name is similar enough to Scalia that people just can't hear "Alito" without wanting to say "Scalito."

Alito: refer to him as Scalito.

That is an entry that belongs in a modern "Dictionary of Received Ideas." A side benefit of his nomination would be that people might -- eventually -- get over that mental tic.

What we're most likely to be talking about reflexively -- as we always must with a Supreme Court nomination -- is abortion, and we have one very hot fact about Alito:

In the early 1990s, Alito was the lone dissenter in Planned Parenthood v. Casey, a case in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

"The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems - such as economic constraints, future plans or the husbands' previously expressed opposition - that may be obviated by discussion prior to the abortion," Alito wrote.

The case ended up at the Supreme Court where the justices, in a 6-3 decision struck down the spousal notification provision of the law. The late Chief Justice William H. Rehnquist cited Alito's reasoning in his own dissent.

What are we to think of his respect for the role of the legislature that claims to know better than an individual woman how well or badly things will go if her husband learns that she plans to have an abortion?

UPDATE: Here's the CNN report, which includes the line:

Legal experts consider the 55-year-old Alito so ideologically similar to Justice Antonin Scalia that he has earned the nickname "Scalito."

Oh, yes, legal experts. And you know, of course, they say it because they really have made a close study of the work of the two men and discerned a precise ideological similarity. Because legal experts wouldn't just reflexively mouth a meme.

UPDATE: Welcome Instapundit readers, and please come over to this more recent post for my discussion of why Alito is a stronger nominee than John Roberts.

Audible Althouse, #16.

Here it is! 49 minutes this time. Topics: why I don't want to talk about the indictment of Scooter Libby, the fall of Harriet Miers, Judge Luttig and "super-stare decisis," whether Bush might make a political vault over the casket of Rosa Parks, Hispanic "crypto-Jews," Halloween on State Street, Andy Warhol's wig and whether you should wear one, whether you might discover your real self through a Halloween costume, political correctness concerns related to Brit Hume saying someone ought to "hose down" Juan Williams, and Maureen Dowd on the dating problems of powerful women.

"So was the feminist movement some sort of cruel hoax?"

Asks Maureen Dowd in an essay (not buried behind TimesSelect!) that agonizes over the dating and marriage prospects of powerful women:

[T]he aroma of male power is an aphrodisiac for women, but the perfume of female power is a turnoff for men. It took women a few decades to realize that everything they were doing to advance themselves in the boardroom could be sabotaging their chances in the bedroom, that evolution was lagging behind equality.

A few years ago at a White House correspondents' dinner, I met a very beautiful and successful actress. Within minutes, she blurted out: "I can't believe I'm 46 and not married. Men only want to marry their personal assistants or P.R. women."

Ah, who needs to get married if you can go to the White House correspondents' dinner and hang out with a beautiful actress!

After I first wrote on this subject, a Times reader named Ray Lewis e-mailed me. While we had assumed that making ourselves more professionally accomplished would make us more fascinating, it turned out, as Lewis put it, that smart women were "draining at times."

Or as Bill Maher more crudely but usefully summed it up to Craig Ferguson on the "Late Late Show" on CBS: "Women get in relationships because they want somebody to talk to. Men want women to shut up."

Women moving up still strive to marry up. Men moving up still tend to marry down. The two sexes' going in opposite directions has led to an epidemic of professional women missing out on husbands and kids.

So I've heard. Doesn't this make the men sound so unappealing that you wouldn't even want to marry them?

(Much more in the article, if you're interested in this sort of thing. It does include a sex tip involving a doughnut... if you're interested in that sort of thing.)

UPDATE: Don't miss the caption contest Drudge is running for the photograph of Dowd that appears with the essay. I'm sure the Althouse commenters can come up with better!

"He is rarely seen without a wig and a pair of sunglasses, a homage to Andy Warhol that began as a Halloween costume last year."

That's a description of Merlin Bronques, "an elusive character who has made a boldface name for himself among scenesters on both coasts by photographing bared flesh, provocative outfits and gross exuberance at clubs and private parties."

I have been wondering for decades why Andy Warhol-style wigs do not become the fashion for men. Wigs for men seem so awful, of course, but the least hip thing to do is to wear a toupee and try to act as though no one can tell. Why after all this time has it not become the thing to do to wear what is intentionally a wig? Warhol did it. Why has the potential for hipness and coolness never come to fruition when Warhol did it? Come on, guys. It will be really fun! Why all the somberness about that hair problem? Head-shaving turned out to be a great idea. Following the same reasoning, wear the Warhol wig!

"The tragic thing is that at the exact moment when the Republican Party is staggering under the weight of its own mistakes..."

"... the Democratic Party's loudest voices are in the grip of passions that render them untrustworthy," writes David Brooks aptly but unfortunately behind the wall of Times Select. Writing about the response to the Libby indictment, Brooks sees "some Democrats" as a good example of what Richard Hofstadter called "The Paranoid Style in American Politics":

Hofstadter argues that sometimes people who are dispossessed, who feel their country has been taken away from them and their kind, develop an angry, suspicious and conspiratorial frame of mind. It is never enough to believe their opponents have committed honest mistakes or have legitimate purposes; they insist on believing in malicious conspiracies.

"The paranoid spokesman," Hofstadter writes, "sees the fate of conspiracy in apocalyptic terms - he traffics in the birth and death of whole worlds, whole political orders, whole systems of human values. He is always manning the barricades of civilization." Because his opponents are so evil, the conspiracy monger is never content with anything but their total destruction. Failure to achieve this unattainable goal "constantly heightens the paranoid's sense of frustration." Thus, "even partial success leaves him with the same feeling of powerlessness with which he began, and this in turn only strengthens his awareness of the vast and terrifying quality of the enemy he opposes."

Isn't there also a mentally healthy theme in American political life? That is, don't most ordinary people instinctively turn away from those who are serving up such noxious fare? I'd like to see a poll about how much people are following the ideation around the Libby indictment. My guess is that only people who already hate Bush are engaging with this material. Lots of former supporters tell pollsters they think Bush isn't doing a good job, but I tend to think they are simply asking for a better show of competence. They haven't given themselves over to the abject Bush-hating purveyed by the left.

"Juan, somebody needs to hose you down on this issue."

Brit Hume to Juan Williams just now on Fox News Sunday. Williams had just put strong anti-Bush spin on the Fitzgerald investigation. Whenever the two of them do a panel together, Hume gets pissed at Williams. And then William Kristol is usually there -- he was today -- and he never seems to get upset. He's always got that big beaming smile on his face, no matter what's happening. And then there's Mara Liasson, a stolid, solid presence. And good old Chris Wallace ("I've totally lost control of you guys today").

(I know Hume didn't mean it that way, but to say "hose you down" to a black man calls to mind images of police with firehoses. It's not a good metaphor.)

Why not do a political vault over the casket of Rosa Parks?

Lawprof Douglas Berman thinks that the real nominee behind the Alito rumors is not Luttig, but Janice Rogers Brown:

President Bush "and First Lady Laura Bush were scheduled to participate in a wreath-laying ceremony this evening honoring late civil rights activist Rosa Parks." Wouldn't it be an incredible moment of political theater and strategy to announce the SCOTUS nomination of Brown at this event? The President could describe Brown as the judicial equivalent of Rosa Parks, and framing the nomination in such terms would, I think, greatly impact the political dynamics and debate surrounding this nomination.

Oh, it would be an incredible moment all right. An incredible moment of mind-shattering bad taste.

"Most spiritually uplifting musical ever to hit the Broadway stage."

That's a quote from a two-page ad in the Sunday NYT for "In My Life." I have a superlative of my own about the quote: least effective extreme overstatement about a work of art. Jeez, it sounds almost dangerous, like you'd have to be insane to want to see it. What's the competition in the "uplifting musical" category? There must be some appallingly uplifting crapola in the history of Broadway, yet this thing beats them all. Upliftingness should be administered in small doses!

I'm guessing they are just totally desperate to pull in the last most naive sector of the musical-going public. Let's find a news report on how their little show is doing. Here:

A recent ad in the New York Times declared "In My Life" to be "the most anticipated original musical of the season." Maybe, but only by those vultures who circle whenever they smell a dead-on-arrival turkey.

Such is the case with this debut Broadway effort by Oscar-winning composer and master jingle writer Joseph Brooks ("You Light Up My Life"), who is credited with the show's music, lyrics, book and direction. He's also the show's producer, and the first lesson he should take from it is to never again use a representation of a giant lemon as a prominent visual motif.

Luttig and "super-stare decisis."

Jeffrey Rosen re-airs the topic of "super-stare decisis" -- the notion that the precedential value of some cases is especially strong, perhaps so strong that you ought to have to agree in advance not to overrule them to win confirmation to the Supreme Court. In this connection, it's notable that Michael Luttig -- who seems to be on a very short list -- actually used the term in the only federal court case where it appears. Rosen doesn't mention the super-unusualness of the term, by the way. I just did a LEXIS search to bring you that information. The alternate term "superprecedent," which Rosen uses, does not appear even once is the federal court cases.

Anyway, here's what Luttig wrote:

I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy. ("Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, that definition of liberty is still questioned. . . . After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed."). And I believe this understanding to have been not merely confirmed, but reinforced, by the Court's recent decision in Stenberg v. Carhart, ("This Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. We shall not revisit those legal principles.").

Quite clearly, Luttig is not saying that there is a such thing as super-stare decisis. He's a Court of Appeals judge bound by Supreme Court precedent and subject to Supreme Court review. He's paying attention to what that Supreme Court has written about abortion rights, and he's reading the Court to have intended Casey to serve as an especially strong precedent.

In making up a new term, Luttig may have even been subtly mocking the Casey Court. How does a majority in one case get the power to imbue its decision with extra weight? You can intend to give your case super powers but have you succeeded? Saying it's super powerful doesn't make it so. It is up to the later Court to decide whether to overturn that precedent. Will the fact that the Court that decided it meant to make it more powerful matter? That's the aspect of Casey that Luttig chose to point out: the Court claimed special power for it. He, as an inferior court judge, must go along with such things, regardless of what he really thinks.

But there is more to Casey than the mere assertion that the Justices intend it to have extra weight. There is the reason embodied in the phrase "Liberty finds no refuge in a jurisprudence of doubt." Part of having rights is the sense of permanence. It is not just that courts in the past have protected this right, but that the right will continue to exist in the future. A right is not a transitory thing. In this view, the super power of Casey lies not in the Court's intent to make it a "superprecedent," but in the soundness of that reasoning. Judge Luttig's opinion has nothing to say about that.

Proposed line of questioning for the Luttig confirmation hearing (if such a thing should come to pass):

You wrote that the Supreme Court "intended its decision in Planned Parenthood v. Casey to be a decision of super-stare decisis," but I am interested to know if you think that a Court can declare special precedential value for one of its decisions. You don't think a later Court is bound by a declaration like that, do you? And if not, do you think there is something to this idea that once people are told they have rights, that those rights are impaired by leaving them in a state of doubt? If the Court says these are your rights, people ought to be able to believe that they really have those rights, that they will still be there in the future, shouldn't they? Isn't that part of what rights are?

It's "a Madison thing. You do it because you are in Madison."

Let's check to see how that Halloween partying on State Street went last night:

At midnight, police were estimating that 100,000 people were on State Street, although people in the crowd continued to be able to walk freely and there were few areas of serious congestion....

The crowd swelled in the 500 block of State Street near the Pub and small groups of mostly young men began singing "Ole, ole, ole," a soccer chant and apparently the anthem of those hoping to see a ruckus in Madison.

At about the same time, police riding horses through the crowd stopped being effective at keeping the crowd moving and dispersing the jumping chanters.

At 1:40 a.m., police turned on a recorded announcement that thanks partiers for coming to State Street and wishes them "safe travel" to their next destination.

Although many revelers did leave, a persistent group of 2,000 or so remained tightly packed in the 500 block.

Matt Sokol, 19, a UW-Whitewater student, said the chanting "is a Madison thing. You do it because you are in Madison."

Sokol and his friends, including Kristi Prokop, 18, said they didn't want to see anyone hurt. But they appeared to feel that to get the full effect of Halloween in Madison, it would include "a riot."

Rioting, most would agree, is not a good word for what happened early Sunday - despite belligerence toward police there was little, if any, serious violence.

Police forced people on the 500 block to the sidewalks several times in attempt to shrink and quell the crowd.

But when people were allowed to fall back into the street once officers left, chanting and jumping would always resume, supplemented by shouted jibes at police.

By 2 a.m., police were telling people to leave, backed up by an all-but inaudible loudspeaker announcement declaring it an unlawful assembly, and forcing those on the 500 block toward State Street mall.

The confrontations between police and the crowd turned ugly when cups filled with beverages and ice were thrown toward officers and horses. A few young men climbed onto a bus shelter and tried to climb light poles in front of the University Inn at Frances Street.

Teams of police started jogging off the street to an area behind the University Inn shortly after that. Word spread through the crowd that they were coming back with "tear gas." Some partiers left, but most remained - again resuming the chanting.

Police in riot-gear showed up and again started herding people off the street, this time using pepper spray, dispersed in bursts from canisters that resemble fire extinguishers.

Overall, was it a successful event? With 100,000 people on the street at midnight and apparently no significant property damage -- in previous years store windows were broken -- it seems as though it was. Surely, the police are entitled to clear a huge crowd at some point, and the pepper spray was used on the folks who insisted on coming back. It seems to me, based on this article, that both the crowd and the police did a nice job. Am I wrong?

Is this the third time you've posted that photo?

Yes, but each time it's been different. Can you tell?

"The growing Supreme Court buzz around Judge Samuel A. Alito, Jr. is reaching highly suspect, Clement-ine proportions."

Underneath Their Robes is not going to be fooled again. The trick is to fill in the blank: Edith Brown Clement is to John Roberts as Samuel Alito is to ________. Guessing he fits the blank, some folks are out to pre-emptively tar Michael Luttig. One swipe is that he only went to a state law school: Virginia.

State Street, pre-Halloween.

It was a beautiful day here in Madison, Wisconsin, with temperatures in the 60s and bright sun (made fall-like by long shadows in mid-afternoon). Lots of young people circulated along the blocks that would turn into a Halloween party mood before long.

Get ready! Buy some costumes!





Soak up the atmosphere:





Notice any politics? Look closer:



Oh, but who's doing politics today? It's a beautiful Saturday. Let's just hang out and have some latte:



Gotta run now. What? What's this?



While you were hanging out and latte-sipping, politics set up shop on pre-Halloween State Street. Oh, I see they've got a petition they're hoping all the kids will stop and sign. They want a referendum on the ballot here in Wisconsin that would demand that the troops be brought home from Iraq:



The signature-seekers are all middle-aged and older. The pre-Halloween young folks don't go anywhere near them. One man with a clipboard-and-petition goes over to a woman with a clipboard-and-petition and says: "Are you getting many?" She says: "No."

Oh well. Take a break. Enjoy the sun:



The "left wing gear" purveyor isn't doing a brisk business either:



I walk back toward my car. Near the campus end of the street, the city has put up some portable toilets to help out the Halloween crowd. Nearby, an old guy is banging on drums and half singing:

Money, money, money, money
They say the best things in life are free
But try giving that stuff to Mr. B

"The fingerprints of my past were all around me, but I didn't know what they meant."

Many Hispanic Americans are discovering their Jewish ancestry:

When she was growing up in a small town in southern Colorado, an area where her ancestors settled centuries ago when it was on the fringes of the northern frontier of New Spain, Bernadette Gonzalez always thought some of the stories about her family were unusual, if not bizarre.

Her grandmother, for instance, refused to travel on Saturday and would use a specific porcelain basin to drain blood out of meat before she cooked it. In one tale that particularly puzzled Ms. Gonzalez, 52, her grandfather called for a Jewish doctor to circumcise him while he was on his death bed in a hospital in Trinidad, Colo.

Only after Ms. Gonzalez moved to Houston to work as a lawyer and began discussing these tales with a Jewish colleague, she said, did "the pieces of the puzzle" start falling into place.

Ms. Gonzalez started researching her family history and concluded that her ancestors were Marranos, or Sephardic Jews, who had fled the Inquisition in Spain and in Mexico more than four centuries ago. Though raised in the Roman Catholic faith, Ms. Gonzalez felt a need to reconnect to her Jewish roots, so she converted to Judaism three years ago.

"I feel like I came home," said Ms. Gonzalez, who now often uses the first name Batya. "The fingerprints of my past were all around me, but I didn't know what they meant."

There are, according to the article, many stories of so-called "crypto-Jews" (hidden Jews):

For more than two decades, anecdotal evidence collected by researchers in New Mexico, Colorado and Texas suggested that some nominally Catholic families of Iberian descent had stealthily maintained Jewish customs throughout the centuries, including lighting candles on Friday evening, avoiding pork and having the Star of David inscribed on gravestones.

It's fascinating and poignant that the old traditions would be kept alive for so long by people who were not talking to each other about the origins of the traditions.

IN THE COMMENTS: A reader is shocked that the NYT is using the term "marrano."

Post-Miers, a long, unpredictable political game.

The post-Miers battle brews:

As he picks another nominee - Judge Samuel A. Alito Jr. of the United States Court of Appeals for the Third Circuit emerged as a leading candidate on Friday - President Bush faces redoubled pressures from both the left and the right. His conservative supporters are more determined than ever to demand someone with a clear conservative record on abortion rights and other social issues; Senate Democrats are emboldened by the unraveling of the Miers nomination, the downturn in the president's popularity and the indictment Friday of I. Lewis Libby Jr., a top White House official.

The handling of the next nominee is likely to be "tougher than hell," Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, said in an interview Friday.

Both sides have spent years preparing for the pivotal battle over who will succeed Justice O'Connor, the critical swing vote on abortion rights and other social issues. The pressures from both sides present a political challenge for President Bush - and it could generate a battle that could bog down the Senate for months if Democrats decide to block a vote on the new nominee....

Asked if Democrats might seek to block a nominee with a filibuster, which allows at least 40 senators to block a full vote on a nominee, Mr. Schumer said, "Nothing is off the table."

Mr. Specter, who supports abortion rights, said "there was already talk on the Senate floor yesterday of a filibuster" if the president nominated an outspoken critic of Roe v. Wade, the landmark abortion rights case.

Earlier this year, Democrats used filibusters to block several appellate court nominees, Republicans threatened to change the Senate rules to eliminate the tactic, and Democrats said they would retaliate by tying the Senate in procedural knots. Only a last-minute deal by a bipartisan group of 14 senators averted a showdown....

If Democrats filibuster Mr. Bush's new Supreme Court nominee, Republicans "would have no alternative but to say that game is over" and move again to change the rules, said Senator Orrin G. Hatch, a Utah Republican on the Judiciary Committee.

"Let's be honest about it," Mr. Hatch said, "whoever the president puts up here, there is going to be screaming and shouting about it from the left and maybe from the right."

Considering how far we will be into the Court's new term by the time any new nominee can be confirmed, what is the importance of even trying to replace Justice O'Connor before next October? It seems unkind to O'Connor to prolong her stay on the Court when she has asked to leave, but now that she is participating in the new cases, it seems brusque to oust her. After all, if she genuinely wants out, she can walk away and leave an empty seat.

The President and the senators must be seeing a vast political playing field in front of them, stretching from now until next fall -- which is also, of course, the time of the midterm elections. But how to play? Bush needs to make the first move, and he must know very well that he cannot control what comes next. The Miers fiasco teaches that trying to avoid a fight can just lead to a less predictable fight. Perhaps he ought to lob the nominee that produces the very fight he thought he could avoid with Miers.

I'd like to promote the ingenious strategy of actually picking the person who would make the best Supreme Court justice. But should we have any confidence in Bush's judgment on this score, given his abysmal choice of Miers? I'd say yes, because he picked John Roberts too. When he picked John Roberts, he was, it seems, picking the best person for the job. When he picked Harriet Miers, he was trying to avoid a fight. Avoiding a fight doesn't work, so go back to picking the best person. Perhaps the most political benefit lies there as well: Bush should look competent and confident.

As for the senators, they will do what is in their interest, and maybe enough of them will see fit to bog down the Senate for the months leading up to the election season. Who would benefit from making abortion rights the topic of national conversation right now?

A lot will depend on the quality of the nominee. The stronger that person is -- the more like John Roberts -- the worse a senator looks opposing him. But what if Bush picks someone who is a highly competent federal appellate judge and who is also susceptible of being painted as a right-wing ideologue and a sop to the folks who -- if can be argued -- brought down Miers? No one can foresee how that game will play out.

"This is exactly the thing that journalists fear most."

I have avoided writing the Plame story. There is too much detail to it for me to analyze it and come to a fair conclusion. A man faces criminal prosecution. The temptation is to say either this is a huge deal or this is practically nothing based on how much you'd like to see the Bush Administration wounded. How many bloggers have fallen prey to that temptation? How many bloggers have written about the indictment of I. Lewis Libby without imbuing it with their own political wishes? A man faces criminal prosecution. Let him go to trial, then.

What I would like to examine, however, is the larger picture. Can we peel our attention away from the Bush Administration and think more generally about reporters and their sources? Katharine Q. Seelye and Adam Liptak write in today's NYT about how very unusual it is to have reporters testifying against their source. Journalists rely on sources, work to develop them, and fight to keep them secret:

It is all but unheard of for reporters to turn publicly on their sources or for prosecutors to succeed in conscripting members of a profession that prizes its independence....

The three reporters [Tim Russert of NBC News, Matthew Cooper of Time magazine and Judith Miller of The New York Times] all initially resisted subpoenas for their testimony, hoping to avoid not only testifying before the grand jury but also having to appear as a prosecution witness at trial....

"This is exactly the thing," said Jane Kirtley, a professor of media ethics and law at the University of Minnesota, "that journalists fear most - that they will become an investigative arm of the government and be forced to testify against the sources they've cultivated."...

Floyd Abrams, the First Amendment lawyer, said he could not recall a previous case that depended so heavily on testimony by reporters or in which reporters could be so exposed.

"It's troubling that reporters are being asked to play so central a role, but even more troubling that reporters may be obliged to play the role of testifying against someone that they had promised confidentiality to," said Mr. Abrams, who has at various times represented The New York Times, Time, Ms. Miller and Mr. Cooper.

Mr. Fitzgerald said at a news conference yesterday that he had not been seeking a "First Amendment showdown" with the news media and had thought "long and hard" before issuing subpoenas to reporters....

"I do not think that a reporter should be subpoenaed anything close to routinely," he said. "It should be an extraordinary case. But if you're dealing with a crime - and what's different here is the transaction is between a person and a reporter, they're the eyewitness to the crime - if you walk away from that and don't talk to the eyewitness, you are doing a reckless job of either charging someone with a crime that may not turn out to have been committed. And that frightens me, because there are things that you can learn from a reporter that would show you the crime wasn't committed."...

Ms. Miller said she did not know why Mr. Fitzgerald "structured it as he did." Mr. Libby's eventual trial, she said, would bring into focus the balance the courts struck in her case.

"The case has got to raise a profound question about reporters' obligations and freedom of the press against national security imperatives," Ms. Miller said.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the case was setting a dangerous precedent. "Reading the indictment makes my blood run cold," she said. "This whole thing hinges on Russert."

Basing criminal charges on statements by reporters, she said, "puts us on completely new ground."

At the time of the Pentagon Papers and the Watergate scandal, we scorned a President livid about leakers and made heroes out of journalists who found sources and revealed secrets. Now we are in a new era, with a different President and a different war, and the journalists slip into a different position. Oh, it's all different -- you may say -- when the leak comes from the Administration, by those who would preserve the position of the powerful, in the interest of supporting a war. Are you sure you shouldn't worry about the free press right now?

[I've added "you may say" to the second-to-the-last sentence for fear of misreading.]

IN THE COMMENTS: Commenters try to turn the discussion to the subject I tried to turn it away from. I try to engage with some of this without getting dragged into the details -- one commenter keeps trying to give me long reading assignments -- and I wind up saying:

As I've said before, I'm not going to invest my time in getting into the details. I find it puzzling on the surface, and I bet most ordinary Americans with places to go and lives to live feel something fairly similar. Who's going to delve into all of this now? Only people like you who are hot to drag Bush down. I don't think Bush is hurt as much as you want him to be, because the whole thing is too hard to understand at this point. And normal folks never cared about Scooter Libby anyway. I accept that a man has been indicted. Let him go to trial. I'm a little sad that my effort to start a more general conversation about the free press got diverted into the very material I've said all along I'm not going to study. You'd have to pay me to do this sort of legal work. You are fueled by political fervor. What's my motivation to read the things you're reading? None!

Then a commenter who calls himself John Harvard gets us very nicely focused on the problem the prosecution presents for the reporters who will be called as witnesses:

I have read the indictment. Every count boils down to this: Libby made statements to FBI agents or to the Grand Jury about the content of conversations with Russert, Miller, and Cooper. These statements disagree with Russert/Miller/Cooper's statements about the content of these conversations. Therefore, Libby made false statements and perjured himself.

In other words, the case turns on the credibility of a political appointee versus the credibility of three journalists. Can you say, "field day for impeaching witnesses?" And since Libby does not have to take the stand at trial, we will be treated to the spectacle of every single thing these three journos ever wrote or said on camera being put under a microscope. Not to mention the things Russert said over his own career as a political hack. Find enough untrue or dodgy things in anything these three have said and written, and the prosecution case falls apart.

So it's Libby's freedom (his freedom through Jan 19, 2009, anyway)versus the reputations of three reporters. Which side has more to lose?

This is the true cost of turning reporters into judicial witnesses: their public record becomes a matter of, well, public record.

Is this what we are going to see: Russert shredded on the witness stand?

Do you mind...

...if I continue not paying any attention to news stories with the word "Plame" in them? That's been my policy up until now, and it's saved me a lot of time. Occasionally, I've glanced about the 'sphere and noticed the slavering hyenas waiting for the Fitz-kill, but I've never felt the call to express how repulsive I find them.

Bush's communication breakdown.

A Miers post-mortem from the Wall Street Journal:

Nothing is more important than that President Bush preserve sufficient standing with the public to see this commitment [in Iraq] through. The Miers nomination threatened that standing, and its withdrawal restores the conservative political support he will need to defend him against daily opposition to his 9/11 presidency.

Still, there is a lesson from the Miers nomination relevant to whether the president succeeds in Iraq and with the policy beneath it. His government has to do a better job of communicating the necessity and the substance of this action. The troops deserve better on this score. Just as the Miers nomination was a mystery and was allowed to remain a mystery, the war in Iraq most of the time has been allowed to drift through the mind of the American public on not much more than al-Zarqawi's news budget for the Western media. Just as the Miers nomination failed because of inadequate explanation, Iraq too may falter for the same reason. It should not.

Well put. I think the Miers nomination was always a bad one, but the failure to explain it was even worse, and worse than that is Bush's failure to communicate persuasively about the war in Iraq. Why is he acting like a tired and beaten man? Talk to us!

Back from radioland.

That was a lively hour on the Joy Cardin show. Were any of you readers listening? There were a number of passionately conservative callers. (Yes, on Wisconsin Public Radio.) I'm interested in listening to the recording when it's up. Mostly, I want to hear whether the microphone picked up me saying "The internet is great" when the news break ended abruptly. Joy thought it only picked up me saying "is great" and that the story that had just ended was something about a corpse. Hmmm....

UPDATE: Listen to the show here. [Link fixed. Find today's 7 a.m. show.]

Will the right's attack on Miers strengthen the Democrats?

Hugh Hewitt, who was Harriet Miers's biggest supporter in the blogosphere, has this op-ed in today's NYT:

The right's embrace in the Miers nomination of tactics previously exclusive to the left - exaggeration, invective, anonymous sources, an unbroken stream of new charges, television advertisements paid for by secret sources - will make it immeasurably harder to denounce and deflect such assaults when the Democrats make them the next time around. Given the overemphasis on admittedly ambiguous speeches Miers made more than a decade ago, conservative activists will find it difficult to take on liberals in their parallel efforts to destroy some future Robert Bork....

The next nominee - even one who is a superb scholar and sitting judge who recently underwent Senate confirmation like Michael McConnell of the United States Court of Appeals for the 10th Circuit, or a long-serving superstar like Michael Luttig of the Fourth Circuit - will face an instant and savage assault. After all, it "worked" with Ms. Miers. A claim of "special circumstances" justifying a filibuster will also be forthcoming.

The problem with Miers is that she was glaringly underqualified, and I opposed her on this ground. But much of the opposition expressed a demand that the candidate meet ideological requirements, and Hewitt is right that legitimating this kind of criticism will give weight to the ideological problems the Democrats will have with a demonstrably Scalia-like nominee. So the right's opposition to Miers could have some effect on the ability of Bush to put forward the kind of nominee they want. Still, the Democrats will object to a strong conservative anyway, and if Miers had gone on the Court, that would have been a very real consequence with powerful effects.

More later. I've got to run and do that radio show.

We're still laughing about "The Apprentice."

Hilarious episode tonight. Pretty boring right up until the end, but the payoff was damned amusing.

"Americans are looking for something moral and just. Something other than this mess in Iraq we are engaged in."

"They need a champion. That champion is you." So said John Edwards, stopping by the UW campus today on his "Opportunity Rocks" tour. The message:

Poverty is the great moral issue facing America today....

The number of Americans living in poverty rose by 1 million in 2004 and now stands at 37 million, according to the U.S. Census Bureau.

"It's not a complicated thing," Edwards said. "It's just wrong."

Katrina exposed the ugly face of poverty. "We saw that poverty has a face in America. It's largely black," he said.

Edwards, dressed in faded jeans with the sleeves of his blue oxford shirt rolled up, said that the typical African-American family has about $6,000 in assets and that the typical Hispanic family has about $8,000. White families have about $80,000, he said.

Most of the nation's poor are people who work or are capable of working, Edwards said. Many of them are single mothers who are working two or three jobs for minimum wage. They are working 15 to 16 hours a day, six or seven days a week, trying to survive and give their kids a better life, he said....

Asked what his dream ticket would be for 2008, he responded, "Somebody who would stand up and fight for the kind of people we're talking about here today."

Before Edwards spoke, Scott VanDerven, 51, was musing about Edwards-Feingold in '08.

"It's youthful. It's certainly not traditional. But is it too far left for mainstream voters?"

In case you were wondering what John Edwards was up to! Personally, I'd rather hear John Edwards try to come up with ideas for lifting people out of poverty than John Kerry offer his plan for Iraq.

After Miers.

Should I say something more about the Miers withdrawal? I keep thinking I should, but somehow I feel so calm about it all. I'm glad that the difficulties are over. But we shouldn't be complacent, because the new struggle is about to begin. I haven't been monitoring the news that much today, but from what little I saw, I got the impression that the hardcore conservatives who led the way, undermining the nomination, are spinning the withdrawal as their own personal victory that entitles them to have their demands served the next time around.

Is it true that they brought down the nomination? I don't for one minute believe the cover story, that the impasse over document production required the withdrawal. And I recognize that the strong and articulate opposition of conservatives unsettled the nomination and raised the threshold much higher than it would have been if Republicans had just closed ranks with the President. Remember when Lindsey Graham advised everyone to "shut up" and wait for the hearings? But it was Graham yesterday who was saying Miers needed to "step it up a notch." The nomination collapsed right after that. I think it was the loss of support among more moderate Republicans that really destroyed hopes that Miers could make it. So we shouldn't accept exaggerated claims by the far right. Bush should not have to respond to the Miers debacle with one of their very favorite nominees.

Or is everything different now? Now that the right wing of the Republican party has experienced its independence and power, perhaps it will never get back in the party box again.

I would think Bush could nominate someone just about exactly like Roberts -- if such a person exists. (It's hard to be impeccably qualified, spotlessly clean, just conservative enough, with a paper trial and without a paper trail, and willing to put up with all the crap that looks even crappier than it did a month ago.)

But maybe the newly fired up right won't swallow even a Roberts now. Yet if Bush gives them what they want, it will light a fire under the Democrats, and that fire could easily spread to the moderate Republicans. Some folks love the idea of that hot, hot fight. It might be very distracting at a time when Bush needs to create a distraction, but somehow I don't think Bush wants a big fight.

At this point, it may be too late to avoid one. The attempt to avoid a fight by choosing Miers was a spectacular failure.

What "political settlement" is Senator Kerry talking about?

The Washington Post reports:

"The way forward in Iraq is not to pull out precipitously or merely promise to stay 'as long as it takes,'" Kerry said during an address at Georgetown University. "We must instead simultaneously pursue both a political settlement and the withdrawal of American combat forces."...

As part of his call for a political solution to the Iraq conflict, Kerry proposed a conference of nations led by the United States, Britain, Turkey, Russia and other NATO allies to forge a compromise between the Sunni, Shiite and Kurdish factions in Iraq. He also called on Bush to appoint an envoy to help "maximize our diplomacy in Iraq and the region."

So the Iraqis have approved their constitution and are moving toward elections at the end of the year, and Kerry wants an international group to intervene and start hammering out some other arrangement? Isn't the constitution the political solution? I genuinely can't understand what he's talking about.

UPDATE: I suspect that the press is helping the hapless senator by highlighting his call for drawing down the troops and burying the inane call for an international "political settlement" effort.

Radio.

I'll be on the Joy Cardin show at 7 a.m. tomorrow, talking about the Miers withdrawal. This show is carried by the WPR "Ideas Network" stations. It should be streamable at this archive later.

Mukhtaran Mai to speak in Madison.

Who is Mukhtaran Mai?

The world knows Mukhtar Mai for her courage in speaking out about the grotesque gang rape she suffered at the hands of a tribal jirga. No judge, social taboo, village leader or military administration could silence Mukhtar’s cry for justice for victims of rape and sexual abuse....

Mukhtaran Mai, an icon of the bravery and courage of the Pakistani women is coming to America to share her story of survival, courage and bravery with the hope that all who hear her would focus their attention on thousands of Pakistani women and children that desperately need help. Without any legal and social safeguards or economic opportunities, the women who have been rendered homeless by the earthquake face the horrific specter of being persecuted by a system that does not prioritize their welfare. There is no system in place to ensure that women left who lost male family members will be safe from sexual violence and societal discrimination.

She'll be speaking on campus at the Red Gym tomorrow (Friday) at 6:30 PM. UW lawprof Asifa Quraishi will do the introduction, and she'll be saying something about her own writing about rape laws in Pakistan and Islamic law. I don't know about Ms. Mai, but Professor Quraishi is one of the best speakers I've ever heard. Her ability to enlighten on the subject Islamic law is awe-inspiring.

MORE: Asifa recomments the alt.muslim site for more information.

"The President needs a brawl."

So said Fred Barnes on Fox News just now, responding to a question about whether Bush could afford a brawl in Congress right now, which is what will happen if Bush nominates someone openly committed to conservative jurisprudence for the Supreme Court, now that Miers has gone down. The conservatives are claiming a glorious victory right now, and they want the spoils. They want their nominee this time. They've proven -- they will claim, with justification -- that pleasing them is more important than pleasing the Democrats. And next time, he's got to get it right -- right, as they see it. The fight the Democrats will put up? Oh, it will be great! Just what you need! Surely, it will distract us all from the many things that have been holding and are about to grab our attention.

When pink turns to black.

A template change for Harriet Miers's Blog!!!

Aw, goodbye Harriet Miers's Blog!!! -- one of the memorable shooting stars of the blogosphere.

Miers withdraws.

Just as I had given up on expecting a withdrawal from Miers she withdraws:

Harriet Miers withdrew her nomination to be a Supreme Court justice Thursday in the face of stiff opposition and mounting criticism about her qualifications.

President Bush said he reluctantly accepted her decision to withdraw, after weeks of insisting that he did not want her to step down. He blamed her withdrawal on calls in the Senate for the release of internal White House documents that the administration has insisted were protected by executive privilege.

"It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House -- disclosures that would undermine a president's ability to receive candid counsel," Bush said. "Harriet Miers' decision demonstrates her deep respect for this essential aspect of the constitutional separation of powers -- and confirms my deep respect and admiration for her."

Miers' surprise withdrawal stunned Washington on a day when the capital was awaiting news on another front -- the possible indictment of senior White House aides in the CIA leak case.

Miers told the president she was withdrawing at 8:30 p.m. Wednesday. In her letter dated Thursday, Miers said she was concerned that the confirmation process "would create a burden for the White House and our staff that is not in the best interest of the country."

She noted that members of the Senate had indicated their intention to seek documents about her service in the White House in order to judge whether to support her nomination to the Supreme Court. "I have been informed repeatedly that in lieu of records, I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy," she wrote.

"While I believe that my lengthy career provides sufficient evidence for consideration of my nomination, I am convinced the efforts to obtain Executive Branch materials and information will continue."

So he used the Krauthammer strategy of relying on the impasse over the documents.

Ah, so we don't have Miers to kick around anymore.

But what now? Can he find another Roberts or will he satisfy the conservatives who've been insisting on someone who really is openly another Scalia or Thomas?

"That isn't centrist. That's very liberal."

Captain Ed comes out in opposition to Harriet Miers, based on the speech she gave in 1993 to the Executive Women of Dallas, which he's read four times. He detects -- in addition to bad writing -- liberalism:

Miers wrote the speech for executive women the year before her first official campaign position with George Bush. She doesn't seem to share much of Bush's political views at this time, which belies the notion that she represents some rock, impervious to prevailing winds. For instance, on abortion, we get this declaration:

"The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual woman's right to decide for herself whether she will have an abortion."

Does that sound to anyone like someone committed to opposing abortion, or even allowing the issues to be decided by the legislatures?...

[T]his speech gives so mamy reasons to oppose Miers that it's a wonder she hasn't already repudiated it as a youthful indiscretion. There's hardly a passage in here that gives any credence to the notion of Harriet Miers as an originalist, or even a conservative.

This sort of analysis, designed to pry Bush supporters away from Miers, should encourage Democratic senators to support her. If the Democrats all decide to support her, shouldn't she still manage to get enough votes from Republican senators to make it through? Surely, a majority can be reached by adding on hardcore Bush supporters, pro-choice Republicans, and Republican political pragmatists who can see what damage the annihilation of abortion rights would do to their party.

Folks like Captain Ed seem to think Miers is such a mediocre mind that going to the hearings will prove nothing but a horrible embarrassment. I've made some predictions of that sort myself. Yesterday, I expressed some sympathy for her, as various senators were saying nasty things indicating that they thought she wasn't smart enough for the job. Once they think you're dumb, I said, whatever you say is likely to confirm it. But later, I started to think, it might not be so. Remember how everyone adored John Roberts's performance at the hearings and said things like he displayed an encyclopedic knowledge of constitutional law? But the fact is: he didn't. There was actually very little occasion for him to explain any constitutional law in serious detail. I TiVo-blogged much of the Roberts hearings, and, really, I think he used a set of strategies to talk about the things at a general level and to stay away from controvery and difficulty.

The people who are helping Miers can read through the Roberts hearings and analyze what he actually did to create that impression of encyclopedic knowledge: Assume he didn't have the knowledge but had some smart techniques for surviving the hearings. Classify the strategies. Maybe he had ten. Maybe five. I think if Miers sat through the hearings following a set of rules distilled from the Roberts hearings, giving short clear (but not revealing) answers to the questions, not taking any bait or looking disturbed by any senatorial blustering, she'd make it.

Bush has dug in. I thought he would withdraw the nomination, but now, as so much time has passed and so much battering has already been endured, I think he'll stick it out. I remember thinking Clarence Thomas would cave after the Anita Hill testimony at his confirmation hearings. But he sat through it and survived. I tend to think Miers will too.

UPDATE: While I was writing that, of course, Miers withdrew!

ANOTHER UPDATE: I went back to proofread this ill-fated post about the ill-fated candidate and saw that I'd written "Once they think your dumb, I said, whatever you say is likely to confirm it." I've corrected that, but maybe I should have left it uncorrected, and said it was a deliberate tribute to Harriet Miers's Blog!!! which always got your and you're wrong. Poor Harriet Miers's Blog!!! It's not long for this world. I see the pink has turned to black!

Is it negligent to have a parking garage under a building?

A jury in Manhattan found the Port Authority negligent for allowing public parking under the World Trade Center:

It was in the basement garage below the trade center that Islamic terrorists detonated a van packed with explosives on Feb. 26, 1993, foreshadowing the attack that brought down the towers and killed nearly 3,000 people on Sept. 11, 2001.

The verdict came after four weeks of testimony from security experts and three former directors of the Port Authority....

David J. Dean, the lead lawyer for the plaintiffs, called the verdict "an extraordinary victory." The jury, he said, clearly accepted the plaintiffs' argument that the Port Authority should have foreseen the terrorist attack, based on warnings from its own experts as early as 1985, and shut down the public parking garage.

"The case was never about blaming the terrorists," Mr. Dean said yesterday. "It was about what the Port Authority should have done. They disregarded the advice of their own experts and other experts. They were motivated by money. They should have thought about the ultimate sacrifice of human lives."

There are more than 400 plaintiffs, seeking $1.8 billion. The jury, which was unanimous, had to fix the percentage of blame for the Port Authority, as opposed to the terrorists. It decided that the terrorists bore 32% of the fault, with the rest of the blame falling on the Port Authority. Under the law applicable in the case, as explained by the plaintiff's lawyer, the Port Authority will have to pay 100% of the economic and noneconomic damages.

Jurors were impressed by 1985 report by the Office of Special Planning and by the testimony of Peter Goldmark, who directed the Port Authority from 1977 to 1985:

Mr. Goldmark created the office in 1984, after becoming concerned that, given terrorist activities in other parts of the world, the trade center, as a symbol of American capitalism and strength, could be a target. After a visit to Scotland Yard in London that year, he wrote a memo saying that Scotland Yard was "appalled" that there would be public transient parking beneath a facility like the World Trade Center.

The report concluded: "A time-bomb-laden vehicle could be driven into the W.T.C. and parked in the public parking area. The driver would then exit via elevator into the W.T.C. and proceed with his business unnoticed. At a predetermined time, the bomb could be exploded in the basement. The amount of explosives used will determine the severity of damage to that area."...

Jurors said that they were impressed by Mr. Goldmark, who testified for the plaintiffs and wept on the stand, and that they found the witnesses for the defense less credible. "Goldmark was the only one who didn't seem to be a Port Authority company man," said the jury foreman, Alan Nelson, 54, of Washington Heights, who works in the services department of a law firm.

In contrast, he said, the witnesses for the Port Authority, "seemed highly programmed in their answers," and seemed to be speaking, "from a bureaucratic, organization-man point of view."

There was striking evidence in this case because Goldmark paid attention to the problem and a conscious decision was made not to solve it. But perhaps, once an attack occurs, we ought to expect, the owners of any building with a public parking garage will be viewed as negligent.

Audible Althouse, #15.

Here's the new episode. I went over an hour this time. Just a tad though. Topics discussed: what your car says about you, guy cars and chick cars, Jimi Hendrix singing "All Along the Watchtower," Edie Brickell singing "What I Am," dreary women in the news (Valerie Plame, Cindy Sheehan, Harriet Miers), impressive women dead and alive (Rosa Parks and Condoleezza Rice), great and not so great films (especially "Nashville"), Steve Colbert, Al Franken, Howard Stern, three rather bad artists, and the importance of having a high energy Monday. Key digressions: insect repellent (and the "they don't bite, they don't even light" commercial) and the whole issue of whether "life is but a joke."

Don't forget: Audible Althouse has been nominated for a BOB! That ought to make you listen to the podcast with new ears.




Vote for Audible Althouse!

And, once again, let me thank the wonderful John Althouse Cohen and Brit Rice for recording the incredibly cool theme music!

ADDED: Bad link fixed. Sorry.

When the lawprof proctors the exam.

I've got a question for you law students. Do you like it when the professor proctors the exam (or would you like it)? What does the lawprof proctoring the exam signify to you? Seriously. I'm trying to figure something out.

"This wasn't just about a woman drinking a lot of beer. This was a powerful piece of art."

The Japanese artist Tomoko Takahashi drinks 48 bottles of beer then walks across a balance beam -- and has a £5,000 grant to do it.

James Tyson, the theatre's programmer, defended the performance, staged as part of the centre's Experimentica 05 season. He said: "Miss Takahashi is an internationally renowned artist. Her work constantly questions the way products are marketed and the role of mass media in society."

To be fair, there is some question about whether she actually drank all 48 bottles of beer.

"She needs to step it up a notch."

That's Lindsey Graham's message to Harriet Miers. And Norm Coleman wants "to get a better feel for her intellectual capacity and judicial philosophy, core competence issues." Jeez, how would you like to go to a job interview where the interviewer's presumption was you're too dumb for this and it was up to you to disprove it? You'd better start spewing some supersmart things right now, lady! How grisly! I can't imagine how one could come off well trying to live up to that. Once people have decided you're dumb, pretty much everything you say sounds dumb.

Madonna's new look: Valerie Cherish!

I knew my beloved Lisa Kudrow "Comeback" character would live on.

"Nashville" -- the Robert Altman movie.

For some reason, I never saw this incredibly highly praised movie when it came out. This was odd, since it was back in the days when I went to see a lot of movies, when it wasn't possible to say I'll wait until it comes out on video, and when I had been a big fan of the Robert Altman movies up to that point. "McCabe and Mrs. Miller," "Thieves Like Us," "Mash," "The Long Goodbye" -- I loved them. I don't know what it was about "Nashville" that kept me away. Was it just the popularity of it?

Many years later, I bought it on DVD, but it sat on my shelf for years. Finally, last Sunday, I started to watch it. After less than a third, I took a break. It turned out to be a very long break, as I didn't get back to it until Monday night, when I sat through maybe another half hour of it.

Last night, I meant to try to work my way through some more of it, but I ended up watching "Special Report With Brit Hume" and an old episode of "South Park" that I'd seen before that the TiVo happened to pick up.

What is it with me and "Nashville"? At this point, it's partly that I find the music intolerable. If you're going to imitate country music, you need good-sounding music to go with your satirical words. But that doesn't explain my avoidance of the film for three decades.

Is she judging you by your car?

Great topic for an article in the big, thick, advertising-padded "Special Section: Cars" in today's NYT.

And yet... cars do say something about you, don't they? I mean, something more than just how much money you were able and willing to spend on a car. But if you're concerned about your sex appeal, what should you drive? One woman says:

First, an expensive sports car, like a red Ferrari, should raise a red flag. "Something's lacking," she said. "It could be an appendage, but it could mean he has a void in his social skills."

Second, a dumpy car is O.K., but only if the driver makes up for it with something else, like a dazzling personality. Third, a funky car is not only all right but also sexy (like the refurbished taxi owned by a guy in her apartment building) because she thinks it shows a man's passions and interests.

My observation: Most people drive unbelievably boring cars! But what does that say? They need transportation and are not that interested in cars. Still, there is an irrational effect: boring car, boring person. You can overcome that, but you do have to overcome that. The reverse is true. We may think: exciting car, exciting person. But the presumption is easily rebutted.

Bonus info:

The idea that there are "chick cars" and "guy cars" is real to many people, said Joe Wiesenfelder, 37, the senior editor of Cars.com, a Web site that reviews automobiles and is affiliated with the NPR program "Car Talk." The radio show did an unscientific survey of favorite chick and guy cars, based on thousands of e-mail submissions from listeners. The survey found that the Top 5 Ultimate Chick Cars of All Time are the VW Beetle, VW Cabriolet, Mazda Miata, VW Jetta and Dodge Neon; the Top 5 Ultimate Guy Cars are the Ford Mustang, Chevy Corvette, Chevy Camaro, Ford F-150 pickup and Dodge Viper.

Steve Colbert's risk.

He's making the right-wing jerk character ... awfully lovable. Last night's "Colbert Report" was brilliant, by the way. I especially enjoyed the interview segment, which had been a problem in the first few episodes, where the guests were mostly newsfolk. Last night, he had Greg Barendt -- the author of "He's Just Not That Into You" -- and they took (fake) call-ins, all from women who were having trouble understanding the damned obvious messages their boyfriends were giving them. Colbert barged in to dominate all the answering, encouraging the women to keep at their relationships. "Hang in there," he told the caller whose boyfriend announced he's gay. If she's woman enough she can change him. The self-assurance while wrong is hilarious. But I do think that with some of the political points he makes, the supposedly wrong position isn't all that obviously wrong, and spoken with assurance by a character the audience loves.... Well, who knows what a show like this might do to flexible young minds?

Ho, ho, [silence].

The death of a laugh.

IN THE COMMENTS: Commenter Ruth Anne is an almost unbeatable contender for best comment on this one. She writes: "May he rest in peas."

Beer.

Ad. (Via Canadienne)

Simulblogging Al Franken on "The Daily Show."

Wow, has he fattened up. "The President seems to be yelling at a lot of people right now," according to The Daily News, Franken says. Now, he's trying to describe his book, "Resurrection of Hope," which apparently contains a description of the future, which includes his becoming a senator (from Minnesota) in 2008. Something about impeaching Bush, then Cheney having seven heart attacks in one day gets a big laugh from the audience. The Democrats "need bold leadership." National health care. Republicans are the worst spenders -- applause -- it's in the book. End of interview. There was absolutely nothing funny said by Franken (or Jon Stewart). There was only one real laugh from the audience -- which was obviously ready to laugh -- and that was just over the hoary old idea of Cheney having heart attacks. Verdict: less amusing than Lou Dobbs on "The Colbert Report" last night.

UPDATE: Stewart was bizarrely inert. When he held up the book in the classic interview-ending gesture, I couldn't believe it was over. That was it? I think Stewart cut it short. But why? Because Franken was unfunny? That can't be it. Normally, Stewart would inject the funny to help out a dull guest. Can it be that Stewart dislikes Franken and deliberately let him flop and then cut the segment short?

I love "Fight Club."

But this list is just nuts. "UK film experts" -- they are apparently all young guys!

UPDATE: Here's a top 50 films list my son Christopher came up with a year and half ago.

What cities attract Halloween visitors?

Madison is one. But the authorities are saying we don't want you here! This is a party for insiders only. How do you close a town to outsiders? Does it make our party seem even more desirable and ... crashworthy?

Blue.

Mmmm.... how beautiful:



Photographed and manipulated into this form -- from this -- by my son John Althouse Cohen.

A new TNR entry for the "blogoshpere."

Well, that's the way they spelled it. Maybe they're drunk. Or maybe -- gosh -- they're just that impressed by the blogosphere. Anyway, they're calling it "The Plank," as in walk the plank. They're pirates! That's a good self-image for the guys -- they're all guys -- at the nerdy little magazine (which I subscribe to). The formatting -- except for the extra banner on the top -- is especially nice. They do need to work on those typos! No blogroll. But I'm putting them on my blogroll and hope they work up some nice atmosphere, momentum, and interaction -- which is what makes The Corner so great. So far, it seems a bit stiff.

UPDATE: Stiff? What do you expect from a plank? Is the prose a little wooden? A little flat? I'm sure they worked through all the permutations, all the insults that might ensue, before they thought we're pirates and ran with it.

Althouse commenters affected by hurricanes.

Readers have noted the return of our regular commenter Elizabeth, who was ousted by Katrina. At the same time, we've lost touch with Victoria, who is fine, but among the 6 million Floridians for whom Wilma turned out the lights.

IN THE COMMENTS: Victoria checks in, is cheered by this post, and gives us this link to her new post with lots of good post-Wilma photos and descriptions.

Harriet Miers, "in line with the court's most hallowed traditions."

Andrew Ferguson characterizes the history Supreme Court appoints as "a long march of mediocrity " into which Harriet Miers would easily fit:

If you were to categorize Supreme Court nominees according to the reason presidents chose them, the slot for "Presidential Pal'' would quickly flood over -- while the category "Distinguished Constitutional Scholar'' would be significantly less populated than "Sop to Special Interests.''

The Supreme Court, in other words, has seldom been a showcase of intellectual distinction. To judge by her background and public writings, the choice of Miers appears in line with the court's most hallowed traditions.

The problem, he asserts, is that the last 20 years have been a "new era of excellence":

What accounts for this new era of excellence? One possibility is that we really have created the meritocracy that successful baby boomers are always telling us about (it explains why they're so successful!).

Another, more plausible explanation is the increasing importance of ideology.

The court having arrogated to itself the final say in many political and cultural matters, a president will want to be sure of a nominee's views. And intellectually engaged professors like Scalia and Ginsburg will have firmer and more predictable positions than professional networkers like Blackmun and Stevens.

So what does this mean? The renowned scholar is the real hack, and the President's friend is a decent, valid, time-honored choice?

(Aside: I note that the President did not pick his personal accountant to head the Federal Reserve.)

Morning on the 7th floor.

Tuesday morning, I arrive at my office on the Seventh Floor of Our Beloved Donor Law Building, grab my coffee mug (the one that doesn't tip over), and head over to the Lubar Faculty Library, where I put the mug in the coffee machine and hit the Large, Strong, and Start buttons. The machine grinds through its routine, and I wander about.

Hmmm.... the absence of doughnuts:



Thinking of what might have been, I gaze out the window:

David Lee Roth and Adam Carolla.

They are going to replace Howard Stern who is moving over to Satellite Radio).

Do you think Adam Carolla would be better on the radio than on TV? That is, would you find him funnier if you weren't looking at his face? I think I'd prefer not to have to look at him, I'm afraid. It's not that he's ugly, but his face looks like he's uncomfortable in it. It disturbs me a little.

David Lee Roth -- well, I have no idea what sort of a radio personality he'd be, but I have some old fondness for the man. I like that he's become a real geezer, looks-wise, and don't mind seeing him at all.

Howard Stern? Well, how do you think he'll do on satellite, without the limitations of broadcast regulation to push up against? If he can do anything, maybe it will be less interesting. Oddly, I only know Stern from TV. I've watched the E! TV version of his show many times. I find him sort of a sympathetic character for some reason, even though I find a lot the things he does offensive (because of the attitude expressed toward women some, but not all, of the time). He's been channeling childishness effectively for us. But without "parents" -- the FCC -- telling him he's wrong, maybe we'll come to seem him as just a horrible, horrible man.

"What accounts for this intolerance of abstinence by college students?"

I think that's probably a question that answers itself, but here is an account of efforts to promote abstinence on campus.

Hottest "law porn."

The award goes to ... NYU! Congratulations, NYU! How do you do it? "Dworkin on Dworkin" -- that's so ... exciting!

Could Dworkin possibly have a more satisfied look on his face?

The new constitution.

The Iraqis have adopted their constitution. The announcement came today, with the first news of the results for Ninevah, one of the Sunni-dominated provinces. Opposition did not rise to the two-thirds level, which, added to two other Sunni provinces, would have defeated the constitution. Now, it seems, the Sunnis' interest lies in electing members of Parliament, that is, working within the new system.

Where it's against the law to use the letters W and Q.

Turkey.

"I am leaving this legacy to all of you ... to bring peace, justice, equality, love and a fulfillment of what our lives should be."

RIP, Rosa Parks.

Scary phone.

Talking to Google like it's your friend.

I'm constantly amazed (and amused) by the Google searches that bring people to this blog. (You know, I pay nothing to use Blogger, but I do pay by the month to have the premium service at Site Meter, which you need to have to see all the searches.) People write Google searches as if they were posing questions to a friend, a psychiatrist, or a Magic 8 Ball.

Here are some recent searches:

why am i attracted to fat womens bellys
i'm smart, goodlooking, and so why aren't i popular?

Then there are things like this:

what does it mean jewels and binoculars hang from the head of the mule

I come up second in a search for that. I've never given my opinion of what it means to say that "jewels and binoculars hang from the head of the mule." I kind of think Bob Dylan himself doesn't know. It sounds dirty though, doesn't it?

Hey!

Audible Althouse got nominated for a BOB! Best Podcast!