"Cécilia Sarkozy acts so American, while Hillary Clinton acts so French."

Sex, politics, women...

"Complimentary use of iPods (pre-loaded with 1,000 classic to contemporary music selections)."

A strange hotel amenity. Who doesn't have their own iPod? Who wants 1,000 songs loaded by the hotel? Maybe if you lost your iPod...

"He's fragile. Brittle."

"His skin is stretched so tight over his temples that you can practically see his thoughts." Manorexia. (Via Metafilter.)

Can state courts choose to apply new rules of federal constitutional law retroactively?

The Supreme Court hears oral argument today in Danforth v. Minnesota, which is a fascinating federalism case. Under Teague v. Lane, federal courts cannot grant state prisoners a writ of habeas corpus when the attack on the work of the state court is based on a rule of constitutional law that was announced after the conviction became final. (There are 2 exceptions to that doctrine that don't matter here.) The question in Danforth is whether state courts can grant prisoners relief based on the new rules that the federal court can't apply.

The Minnesota Supreme Court said no, in reasoning that I think is wrong. From the opinion (which I don't have a link for). [CORRECTION: This passage is not from the opinion but from the brief for the state of Minnesota (PDF). Here's the state court's opinion (PDF).]

If the Griffith-Teague retroactivity doctrine did not apply in state courts, supremacy and uniformity problems would be magnified because federal review of state post-conviction proceedings – in both habeas proceedings and direct review by this Court – would be unavailable for decisions that do not follow Teague. The lack of federal review deprives the state decision of constitutional legitimacy. Even if not Teague barred, this Court’s review would ratify state created federal constitutional disparity into its decisions by reviewing the claims of similarly situated collateral review defendants according to different constitutional standards.

The Griffith-Teague doctrine also vindicates federal constitutional values of finality and federalism. Finality interests identified in Teague are not unique to federal habeas review. They are present and protected by Teague in the context of federal collateral review of federal convictions as well as in review by this Court of federal issues arising in state collateral proceedings. Teague also serves the comity interest of validating the reasonable interpretation of existing federal constitutional rules made by state courts – an interest not limited to the federal habeas context. Whether a federal or state judge asserts a new federal constitutional rule to invalidate a reasonable state court interpretation of a federal constitutional rule the state finality interest is subverted.

Against strong supremacy, judicial integrity, finality, and federalism values, Petitioner asserts a state interest in selectively creating enhanced or preferred federal constitutional rights that apply only to citizens of that state. This is not a legitimate state interest. If a state wishes to create preferred rights for its citizens, respect for the political rights of the citizens of the state require a state do so under its own state law subject to the state legal and political constraints attendant to state law decisions. Anything less simply cloaks state law decisions under an illegitimately claimed federal authority for the purpose of avoiding accountability to state citizens.

These may be reasons why a state court might want to adopt nonretroactivity as a matter of state law, but that doesn't explain why federal law requires state courts to avoid applying the current rules of federal constitutional law.

What the federal courts can do is governed by the federal habeas statutes, which the U.S. Supreme Court interpreted in Teague. Everything the Court said about comity and finality in Teague related to the way federal court should treat state courts (which conducted the original trial before the new rule was announced). Why should this limit on federal habeas jurisdiction carry over to the state courts if the state, under its own law, chooses to revisit cases that have become final but were decided under the old rule of constitutional law?

Danforth was tried for sexual abuse of a child whose testimony was presented on videotape, something the Supreme Court, in Crawford v. Washington, said violates the Sixth Amendment right to confront the witnesses against you. But since Crawford was decided after Danforth's conviction became final, he can't ask a federal court, on habeas, to give him a new trial in which he has the opportunity to confront the witness. Should the state therefore be prevented from offering him that relief? I think not.

The Minnesota Supreme Court's opinion The brief for the state is a bit of a jumble of ideas, and it is poorly written. (How do you ratify disparity into something?) But there is some sense to the concern that a state court will "cloak[] state law decisions under an illegitimately claimed federal authority for the purpose of avoiding accountability to state citizens."

The idea is that state judges who have a broader conception of rights than the citizens of the state will decide cases the way they like and make it seem that federal law requires it. But federal law does require live testimony in the situation that Danforth encountered. It is simply the case that under federal jurisdiction law, the federal courts won't force the state courts to redo the trial. If the state courts were to apply the federal right anyway, they would be applying a real federal right and following state law jurisdiction rules. If the citizens of the state don't like that, they can change that jurisdiction law.

There are some more complicated angles to this, and I will write more after the oral argument becomes available.

ADDED: Scotusblog reports on the oral argument:

The Court... debated whether Teague was a decision about “rights” or only about “remedies,” whether it was both because a remedy is part of the “substance” of the right, whether it was a constitutionally grounded ruling or merely an interpretation of federal habeas statutes, whether it involved no more than a gesture of respect and “comity” toward state courts or was a directive that the states had no choice but to follow. At the end of the one-hour hearing, there was no visible consensus on what Teague now means, or on the legal authority that the Court had to make the ruling.

I'll have more when I've read the transcript of the argument. This case concerns something I've been writing about since the mid-80s, and, though the Minnesota Supreme Court says things very similar to what I've been teaching in my Federal Courts class for more than 20 years, I disagree adamantly with its conclusion. I realize many of my readers may think this is obscure and overcomplicated, but to me, it is perhaps the most interesting case I've seen in 20 years.

It is Halloween.

So let's break out the costumes. All the best lawbloggers are going with a Harry Potter theme this year.

"Well, I don't think the Republicans got the message that I'm voting and sounding like them."

Hillary Clinton said at the debate last night.

"If you watched their debate last week, I seemed to be the topic of great conversation and consternation. And that's for a reason: because I have stood against George Bush and his failed policies."

That's the reason. That or the fact that she's obviously going to be the Democratic Party's nominee.

ADDED: I loved Hillary's new fashion. She's put aside those atrocious, orange/turquoise, nubby jackets and gone back to the black pantsuit idea of old. What made it seem new and fresh was the thin brown trim along the jacket's lapel, and the repetition of brown in the top and the pocket handkerchief. A gold necklace provided the only flash. I thought this was intelligent and serious, a much more appropriate look for a President that those colorful jackets that seem to plead with us to see her as a woman. The brown and black was subtly womanly. Less is more.

AND: Hey, check it out. Andrew Sullivan called me "batty" for saying that I liked Hillary Clinton's fashion. What's going on there? I could say a million things, but out of discretion, I will hold my tongue.

The ghost....

... was a bug.

"This case was solved through logic, scientific analysis and methodology."

Who can take great beauty and talent and slam it into the ground?

Old TV did this sort of thing all the time:



I found that clip in my search for a clip to pay tribute to Robert Goulet.

This is the most clumsily staged song. Did they even rehearse? Watch Goulet awkwardly thwack Julie Andrews on the stomach at 30 seconds. And then comes the comic banter about how sexy Peggy Lee and Robert Goulet are. This show seems to be from about 1973, and Goulet's hair and sexy manner exemplifies the way older adults channeled the youth culture of the day. But Goulet truly was extraordinarily handsome.

So let's roll it back a few years to a better era of male style, and let's have Goulet with 2 other singers again, make them men this times, and instead of bantering about sex, let's have them banter about cheese. It will be sexier!



Robert Goulet died yesterday. He died waiting for a lung transplant.

Pink.

I'm back in New York, and the morning looks rosy.

Althouse at Stanford.

Check it out.

Any San Francisco readers out there? Email me. I might be able to stage a meetup on Saturday or Sunday, but I'd need a trustworthy local to help me out.

ADDED: Click "profile" in the sidebar to get the email address.

Debate tonight.

I happened to hear... via IM. Otherwise, it'd've flown right by me. I'll add some comments here I guess. I promise only to be lazy and arbitrary.

ADDED: They're all asked if they'll pledge to keep Iran from getting nuclear weapons, and they all hedge. At least three times, pushed, Hillary Clinton says she'll do "everything within my power" to keep Iran from getting nuclear weapons. In other words, I can't promise, but I'll try — subject to my view of presidential power. But there is no follow up question. Earlier, she criticized Bush for supposedly exceeding presidential power. Here's what I would ask: "When you say you'll do everything in your power, what is it that you think is beyond presidential power that you would not do, even if you thought it would prevent Iran from getting nuclear weapons?"

MORE: I spoke too soon, Richardson makes the pledge. He blathers, but initially he is clear that he's pledging.

AND: Was that lazy and arbitrary enough?

100 geniuses.

"The top 100 features not just brainiacs and boffins, but 19 musicians, two artists (Damien Hirst and the illustrator Robert Crumb) and one sportsman (Muhammad Ali). He is joined at number 43 by a surprise entry: Osama bin Laden."

Boffins? I don't know what the hell is going on here, but it's irking me, and why are so many of the geniuses British? Was the list compiled in Britain by any chance? In this country, when we make a thing of calling people geniuses, we give them half a million dollars.

What pop artist/group had best "hit average"?

One hit wonders don't count. This competition is limited to those who've had at least 20 hits. Average chart ranking for the winner(s): 12!

(Guess before you look at the answer at the link.)

Naming the Madison school that will not be Vang Pao Elementary School.

You remember that Hmong hero Vang Pao was arrested — by us — for plotting to overthrow the government of Laos and that the plan to name a school after of him was therefore shot. We're in the middle of a process of generating the new name, and they've got a list of 87 possibilities. Some are clearly not serious (Brain Dead Madison Metropolitan), some are just not serious (Steve Irwin), some I can't understand (RPA (Romanized Popular Alphabets)), and some just don't have enough to do with Wisconsin (Mahatma Gandhi). But I do like the idea of naming the school for Jeffrey Erlanger (the son of my colleague Howie Erlanger)(I wrote about him here)(more here).

Impression: sunrise.

What is this inky horror we call morning?



Calm down. It's not so bad...

"Writing a book is a horrible, exhausting struggle, like a long bout of some painful illness."

So said George Orwell. And if you don't think so, don't tell Rachel Toor. She might smush your face into something.

Governor Doyle does his Frankenstein routine.

Speaking of taxes, we've got a little something here in Wisconsin called the Frankenstein veto. Look what Governor Doyle just did with it:




The Wisconsin State Journal editorializes:

Wisconsin governors, both Democrats and Republicans, deserve strong veto powers to remove pork and policy from state budgets. But they shouldn't be allowed to unilaterally create laws from scratch that the Legislature never approved or even imagined.

Doyle made a couple of "Frankenstein" vetoes Friday. The most significant one nearly doubled the allowable increase in municipal property tax levies to 3.86 percent....

Doyle himself opposed the "Frankenstein" veto as a gubernatorial candidate. Then he won election and completely changed his position for short-term political advantage.

Wisconsin has suffered enough lame excuses and embarrassing hypocrisy from both major political parties on this issue. It's time for [Senate Majority Leader Russ Decker, D-Weston,] and the Democratic-run Senate to take the high road and approve this good-government reform for the benefit of all.

I hope I can, by this post, increase the pressure of embarrassment on the Wisconsin government.

Rangel's...

... strangle.

"I’ve always said you were our leading actress.... I am getting fat and pregnant and mean...."

Judy Garland writes to Katharine Hepburn.

"The mutilation was actually the work of animals..."

New evidence in the "Paradise Lost" case.

"Claiming physical territory was a powerful act. But the gay neighborhood is becoming a past-tense idea."

Gay rights, the real estate problem.

Somehow that story reminds me of Jimmy Carter — back in 1976 — worrying about preserving the "ethnic purity" of neighborhoods.

"He doesn’t remember the names of a lot of people in his life."

The young Barack Obama. He's told the glowy version of his youth in his book "Dreamy Dreams," but what were things really like? There are 450 pages in that book. Fact check, all you Obama-stoppers!

In Blackwater: "a potentially serious investigative misstep that could complicate efforts to prosecute."

The NYT is reporting that State Department officials investigating the Blackwater incident offered immunity — limited-use — that only the prosecutors at the Justice Department have the authority to give.

Here's the WaPo version of the same story.

I'm not an expert in this area of law. If you are, I encourage you to comment here.

Ocean blues.

Oh, shun blues...

"Dada doubts everything. Dada is an armadillo."

"Everything is Dada, too. Beware of Dada. Anti-dadaism is a disease: selfkleptomania, man’s normal condition, is Dada. But the real dadas are against Dada."

— Tristan Tzara

"Let's talk about the fact that with a 160 on the LSATs, Wurtzel was much better suited for Northeastern than Northwestern, let alone YLS...."

"... which raises serious questions as to their admissions standards." Adam Bonin seems kind of irked at all the attention Elizabeth Wurtzel has gotten and continues to get. I mean, really, the LSAT is not the only factor. Yale gets all the high LSATs. High LSATs should mean nothing to them. Get some interesting people. Why should Yale care if they'll fit in law firms or have problems passing character requirements for the bar? The key is to get something interesting going in the classroom. Yale had every reason to think Wurtzel would spice up the mix.

"These self-promoting values hacks don’t speak for the American mainstream."

Okay. Frank Rich on Rudy Giuliani. Why is Rudy doing so well? People in the know used to think the rubes just didn't realize Rudy has dressed in drag and once lived with 2 gay guys; they just remembered him as the star of that 9/11 show they saw on TV that one time.

But now it's dawning on the pundits that Americans probably know all that stuff by now, so why isn't Rudy sunk? They're shuffling around for explanations. You could say "terrorism fears trump everything," or "the rest of the field is weak." But Rich thinks the right answer is that Americans really aren't as narrow-minded as they are portrayed by Tony Perkins of the Family Research Council, James Dobson of Focus on the Family, Gary Bauer of American Values:

These self-promoting values hacks don’t speak for the American mainstream. They don’t speak for the Republican Party. They no longer speak for many evangelical ministers and their flocks. The emperors of morality have in fact had no clothes for some time. Should Rudy Giuliani end up doing a victory dance at the Republican convention, it will be on their graves.

Is Rich right about this? I hope so. This is my favorite thing about Giuliani: his potential to bring out the social liberal in the Republican Party.

By the same token, my favorite thing about Hillary Clinton is her potential to bring hawkishness to the Democratic Party.

If this is right and the 2 frontrunners become the nominees, the 2 parties will become more alike and more to my taste. I'm finding that very odd.

What I miss when I'm "off-blog Althouse."

I've been on my little weekend jaunt to Stuart, Florida, absorbing sun instead of my usual nourishment of on-line news, so I'm just now noticing the Sunday Frank Rich column about Rudy Giuliani. I hope it's not too late to talk about it.

And I will talk about it in a minute, but first I want to say....

Blogging makes everything feel so transitory! If you don't notice a story in the first 12 hours, it seems utterly passé. I prefer hanging out on line, where I can see — or feel that I see — the world unfolding. It flows by continuously, and one thing or another catches my attention and sets me off writing again. It's my way of life. I love being in that flow, and whenever I step outside it and go off into the world as a character I like to call "off-blog Althouse," I miss some things that I'd have liked to engage with. And you get pictures of Dorito dust in the cup-holders of my rental car instead of why David Savage's attack on Clarence Thomas is claptrap. (Here, read what Patterico says.)

As I was perambulating the Ginn sur Mer Classic at Tesoro this weekend, there were many times when I wished I had my laptop so I could do some research and write about various things. Without even a camera — they won't let you have a camera — it was hard, really hard being off-blog Althouse. Do you want to know what I think of a golf course lined with McMansions? Do you want to hear my 1,000 thoughts about the sun, my skin, and the lack of shade? And speaking of skin, what is it about golf and white people? The most popular player is black, but the spectators are white, white, white. Yet no shade on the McMansioned-lined golf course!

That's just a tiny glimpse of the thought processes of off-blog Althouse.

Enough.

Next post.

Pouring a second mug of coffee....

... at 4:06 AM.

How clean should you expect a rental car to be?

Here's how my car from Alamo looked:



(Enlarge.)



(Enlarge.)

The men and the birds know...

... that rolling in with the tide, there's food.

I didn't see it when I snapped this picture:



But I saw it in the closeup.

I couldn't experience this as the feeding frenzy it is:



And I can't see the death and loss....



The terrifying desolation of the beach....



... until, later, I contemplate the photographs.

"She had signed an agreement allowing her to appear in the movie, but she claims that she did not realise how much she would be ridiculed..."

Another in the long line of lawsuits I hope will fail.

Cathy Martin, an Alabama etiquette expert, agreed to let [Sacha Baron Cohen, AKA Borat] film a dinner sequence at her home...

In case you missed it the last time someone sued Cohen, here's the contract. Right up front, it says:

It is understood that the Producer hopes to reach a young adult audience by using entertaining content and formats.

Everyone wants to be in the movies, but somehow they fail to think about why anyone would want to see them in a movie.

Gerald Ford re Bill Clinton: "He's sick — he's got an addiction. He needs treatment."

From "Write It When I'm Gone: Remarkable Off-the-Record Conversations with Gerald R. Ford":

Ford's wife, Betty, who founded a pioneering treatment center after her battle with alcoholism and drugs, agreed.

"You know, there's treatment for that kind of addiction," she told DeFrank during the same conversation in 1999. "A lot of men have gone through the treatment with a lot of success. But he won't do it, because he's in denial."

Ack. Those two were deeply invested in the business of seeing things as an addiction. Do we have any reason to think Gerald Ford's perceptions are "remarkable" — or even useful?

Gerald Ford... believed Clinton was charismatic, articulate, a "helluva salesman" and the best politician he'd ever seen - even better than John F. Kennedy.

But he considered Clinton a foreign-policy wimp, and sensed that he hadn't learned from mistakes in his personal life - allegations of womanizing that dogged him during the campaign for the White House.

That opinion was based on behavior Ford witnessed the weekend he hosted the Clintons in Colorado [in 1993].

"I'll tell you one thing: He didn't miss one good-looking skirt at any of the social occasions," Ford said later.

Ugh! I should listen to the opinions of a man who called women "skirts"? And what did he mean by "didn't miss"? Apparently, Ford "didn't miss" the "good-looking skirts" either.

"He's got a wandering eye, I'll tell you that. Betty had the same impression; he isn't very subtle about his interest."

And Ford isn't very subtle about making his "remarkable" observations. What exactly did Bill Clinton do that wasn't subtle? Be concrete. Don't just underline your assertions with verbal filler like "I'll tell you that" or trot out the lamest possible corroboration: your wife agrees with you.

Bill Clinton asked Ford for help when he got caught up in his impeachment problem:

"Bill I think you have to admit that you lied. If you do that, I think that will help - and I'll help you. If you'll admit to perjury, I'll do more," he said.

"I won't do that," Clinton told him. "I can't do that."

Ford was stunned by Clinton's lack of contrition. "It's a character flaw," he concluded.

Ford wanted him to confess to a crime? Clinton couldn't do that. It would have made far more sense to resign the presidency.

Pop quiz: Gerald Ford, alive or dead?

"I like everything about you. Your illness is part of you. It's like part of your character."

Nicoletta Mantovani quotes her husband, the late Luciano Pavarotti. This is what she says he said on learning that she had multiple sclerosis. (It sounds ungenerous to say "she says," but she is involved in a dispute over Pavarotti's will.)

What do you think about this notion of illness as part of one's character? Normally, we see illness as an alien invader to be fought off or, if that is not possible, endured. Before reading Mantovani's quote this morning, I'd been thinking of the idea of illness or disability as an integrated part of the afflicted person because I've been reading the new Oliver Sacks book "Musicophilia," which contains frequent observations of this kind, as do his earlier books "The Man Who Mistook His Wife For A Hat" and "An Anthropologist On Mars."

Sacks writes so beautifully and tells such interesting stories that it's hard to resist his point of view. He is thoroughly excited and fascinated by the brain abnormalities of the individuals he studies, and he expresses this emotion through the romanticization of disease and the perception of the disease as part of the integrated whole of the person. As I reader, I catch his excitement, but I worry sometimes that it's wrong to look at other people this way.

If you had a disease — or if you have a disease — would you want people to see the disease as part of your character, something that deepens you and makes you more fascinating?

The moon is blue.

Over the bridge to Hutchinson Island.



Earlier, at dusk:



The sky, the dunes:

What do you think? Should I learn how to fly?

Maybe. If I had this $450,000 airplane...

ADDED: I don't actually want to own a plane, even if I had an extra $450,000 to spend. But if one of my millionaire readers wants to hit the PayPal button for $450,000... well, don't impetuously give me $450,000 and think you've made a contract that obligates me to do any particular thing. I may eat an egg salad sandwich for $200, but I don't want anyone giving me $450,000 and then thinking they've bought the right to tell me what to do, with access to courts to enforce the obligation. Paying for the plane would only be the beginning. First, it might be taxable income, and I'd have to pay for a lawyer to advise me on the subject (unless TaxProf wants to give me free advice). Second, I'd have to get insurance and pay and pay for it. Third, I'd have to pay to keep the plane somewhere and to use various airports. Fourth, I'd have to use it to go places, with all the expenses of travel. Do you know how expensive hotels and restaurants and clothes are for a person with a $450,000 plane?

Therefore, I think I would need several million dollars before I could learn to fly. But if you love this blog and would love to see more travel and adventure blogging here and if you are very rich, you see the PayPal button over there. I say this, worrying that anyone who gives me several million dollars might feel entitled to intrude into my private — and mysterious! — life. I would really prefer more of a John Beresford Tipton character. A John Beresford Tipton who operates via PayPal. Isn't there some web geek turned billionaire who would find fulfillment giving $1 million PayPal donations to the bloggers he loves?

Anyway.... the inside of this Cirrus airplane looks and feels very much like a car (a very nice car). I thought the design was beautiful, and I enjoyed sitting in it — which wasn't my idea. The guy showing off the plane invited me to get in. His idea was to get lots of people to sit in the plane. Most wouldn't buy, but the company is surely correct to assume that there were a lot of rich people walking by here at a PGA tournament and that seeing the plane close up would plant the idea of owning it in the heads of some people who might actually buy it.

I think the plane was designed to make an ordinary car driver feel safe, at ease, and capable of flying. I can drive, so why can't I fly? The seats are constructed to adjust to your height, so as you pull it forward so your feet reach the pedals, the height of the seat changes according to an assumption about the length of your torso. I got into a discussion with the guy who was demonstrating the plane about leg-torso disproportion, and he admitted the design only took account of the average proportion. But he swiftly called attention to the way my eyes were at exactly the same perfect level as the eyes of the tall man sitting in the other seat, and had had me close the door to see how the comfy armrest put my hand in exactly the right place to hold the throttle. I've never considered learning to fly, but I had the real sensation that with a plane like this, I could do it.

ADDED: Hey, I got linked by Daily Aviator. Thanks. And a special hi to anyone who hasn't read this blog before.

After waiting eons....

... the dune rouses itself and takes one step toward the ocean.

I'm in Stuart.

Your humble blogger is all worn out from traveling. Where am I? I'm in Stuart. Stuart, you say. Yes. I am in Stuart. (Not a guy! A place.) I hope you're happy that I travel to the ends of the earth to procure material to entertain you and this effort has brought me to Stuart.

More later, presumably. Meanwhile... carry on without me.

Let me get my hand around a giant cup of coffee.

There is so much to do today. Get some early morning blog posts up. Reabsorb McCulloch v. Maryland... contemplate the way it looks to a first year law student.



Teach a 2-hour Conlaw class....

Pack my bag for Port St. Lucie, keeping an eye on the cut. You watch your sport and I'll watch mine. I'll either be in Port St. Lucie or somewhere around Orlando or Palm Beach by nightfall. As Paul Simon used to sing: I'm on my way. I don't know where I'm going, but I'm on my way....

"LGBT Americans who know..." and "African American ministers and citizens who believe...."

The LGBT Americans "know that their sexual orientation is an innate and treasured part of their being." They know. That is, they are right. The African American ministers and citizens "believe that their religion prevents them from fully embracing their gay brothers and sisters." They have a belief. That is, we'd like to be respectful and inclusive and simultaneously signal that they are wrong.

These quotes are from a joint letter from Barack Obama's African American Religious and LGBT Leadership Teams, in response to criticism of him for sharing the stage with Donnie McClurkin — a pastor and a popular gospel singer who presents himself as saved from what he believes is the sin of homosexuality.

From the letter:

[A] great many African Americans share Pastor McClurkin’s beliefs. This... cannot be ignored.

[W]e believe that the only way for these two sides to find common ground is to do so together.

Not at arms length. Not in a war of words with press and pundits. Only together.

It is clear that Barack Obama is the only candidate who has made bringing these two often disparate groups together a goal. In gatherings of LGBT Americans and African Americans of faith, Obama has stated that all individuals should be afforded full civil rights regardless of their sexual orientation, and that homophobia must be eradicated in every corner of our nation. If we are to end homophobia and secure full civil rights for gay Americans, then we need an advocate within the Black community like Barack Obama....

We also ask Senator Obama’s critics to consider the alternatives. Would we prefer a candidate who ignores the realities in the African American community and cuts off millions of Blacks who believe things offensive to many Americans? Or a panderer who tells African Americans what they want to hear, at the expense of our gay brothers and sisters? Or would we rather stand with Barack Obama, who speaks truth in love to both sides, pulling no punches but foreclosing no opportunities to engage?

This sounds like to me like a specific example of the general idea that Obama has been purveying all along. Were you excited about the abstraction, but put off by the concrete manifestation?

John Aravosis hates it:

Keep digging, Senator....

I'm aware that some people claim that there's a lot of homophobia in the black community - frankly, I wouldn't know - but Obama is now saying that a great many African-Americans agree with McClurkin? Meaning, they agree that gays are trying to kill our children, that America is at war with the gays, and that homosexuality is a "curse"? I'm willing to believe that we may have to do some educating of a lot of Americans of all races and creeds, but I'm having a hard time believing that a "great many" of them believe the kind of wacky stuff that McClurkin does....

[Are we] to believe Obama would not exclude anti-Semites or racists from his campaign either?...

I simply don't believe that Obama would have the same reaction, be just as welcoming, if we were talking about racists or anti-Semites. He wouldn't say that we're all one big tent. He would kick the racist or the anti-Semite to the curb....

I mean, we're to believe that the fact that Obama, alone among Democratic candidates, is willing to openly welcome bigots into his campaign, and that fact makes him the best candidate for voters concerned about civil rights. And the corollary, the worst candidate for someone who cares about civil rights is the candidate who actually stands up against the bigots. So the best way to promote tolerance is to tolerate and embrace intolerance. And I suppose the best way to tackle the issue of domestic violence is to not exclude wife beaters from your campaign either? That's just wacked.

Obama made his name as a brilliant, inspiring speaker. So why am I reading a verbose letter by his supporters and a rambling rebuttal by an angry blogger?

I want to see Obama, on easily accessible video, putting in words exactly why he's doing the right thing, and I want to hear it and be able to say, yes, that's great.

If that doesn't happen, then the whole premise of Obama's campaign is delusional.

***

And I had a hard time even finding the letter I was looking for on Obama's website. Why don't they have a search function? After wasting time searching for a search function, I decided my only hope was trial and error hitting the buttons along the top of the page to get pull-down menus. The "Issues" button looked like a good bet, but no. I finally found it under "People."

People? "LGBT" appears on that menu. So does "Women." Just as I had to go to "People" to find out about gay rights, I would have to go to "People" to find out about abortion.

When is an issue not an "issue"? When it's associated with a particular interest group? But "Honoring our veterans" gets to be an "issue," as does "Fulfilling our covenant with seniors."

This is not great communication.

"Your day will come, vile one. As long as we live, you won't be safe, Jazeera."

Bin Laden fans suddenly annoyed by bad press.

"They didn't have to read Dostoevsky, they had to read critiques and deconstruction of Dostoevsky."

What's what's wrong with these kids today. Peggy Noonan looks at Scott Thomas Beauchamp and sees a whole twisted generation.

"Tabs sock Giuliani over Sox"

Muffi&Tiger, originally uploaded by Mats&Muffi.

I thought Rudy had got into trouble with a couple of kitty cats — Tabs and Sox. But it turns out to have to do with newspapers and baseball.

Like George Bush, Hillary Clinton "presides over an office of intense and focused workaholics, protective of their patron and wary of outsiders."

Mark Leibovich writes near the end this big NYT piece. The idea of this article seems to me to be to portray Hillary Clinton as possessing solid management style, and you have to wade through a lot of flattery before you get to the interesting negative stuff:

“The Clinton campaign seems to be dominated by the same old people,” said William Mayer, a Northeastern University professor who is an expert on presidential campaigns.

Having a tight inner circle can cut both ways, Professor Mayer said. With Mr. Bush, he said, “it looked fine to have this group of loyal Texans in there, until his approval ratings went under 40 percent and there were no fresh eyes to see the mistakes.”

Mrs. Clinton, not surprisingly, bristles at such comparisons. She contrasts what she calls the “echo chamber” around the president with her own willingness to expand her own circle, hear disputes and solicit opposing views.

“I’m very interested in how you reach and implement decisions in a very efficient way,” she said.

The people who thrive within Mrs. Clinton’s “process” are those who best provide the currency of choices. “She wants to know, ‘O.K., what are my options here?’” [says Clinton’s campaign manager, Patti Solis Doyle]. “She wants a Plan A, a Plan B and a Plan C. She wants recommendations. Then she’ll make a decision.” She and Mrs. Clinton speak two, three or four times a day, in a kind of shorthand.

Ms. Solis Doyle said she knew intuitively which items required the senator’s attention. When news surfaced of the criminal record of Norman Hsu, a Democratic fund-raiser, Mrs. Clinton’s advisers suggested a range of responses, including defending him, keeping the money he had raised for her campaign, or returning it.

In the end, Mrs. Clinton decided to refund $850,000 in contributions linked to Mr. Hsu.

“Her overriding sentiment was to move on and not get bogged down in the matter,” said a person familiar with the deliberations.

That was a departure from how Mrs. Clinton might have handled a comparable situation in the 1990s, when she might have been more “lawyerly,” dug her heels in and said little — generally her default method of crisis management back then. Today, “it is what it is” has become a favorite phrase of Mrs. Clinton.

So, how do we put together these 3 things? 1. surrounding oneself with a tight group of loyalists, 2. having others present a set of options so you can, efficiently, perform the "decider" role, 3. accepting what is.

It certainly sounds Bush-like. But remember, this is how her people portray her management style, so this is campaign spin. Who knows what she is really like as a "manager"? What have we seen her manage in the real world?

Mrs. Clinton has never led a large enterprise, a point her Republican rival Rudolph W. Giuliani has made in recent days. She has overseen a Senate office (staff of 55), a first lady’s office (staff of 25), an ill-fated “health-care task force” (involving 511 people), a presidential campaign (staff of more than 500) — and attended many, many meetings....

It seems we've only seen her manage one thing, and it was a spectacular failure.

Alone again... in October...

Another latte lunch with my Federal Courts book....



Looking to see if all that arcane doctrine will...



... crystallize.

"If this were a wedding, we'd be at the 'speak now or forever hold your peace' part."

"If you're a candidate hoping to get past her, the time for nuance and veiled references has passed."

Weddings... veils...

This woman for President business... it's driving you crazy, isn't it?

Too damned bad! It's too late! Maybe if you act fast... that's what they're saying... because they're political analysts — the quote above is from Steve McMahon, a former advisor to Howard Dean — and they'd like to have some relevance. So they're saying hurry, hurry, hurry... or it will be too late.

But it is too late. She's the Democratic candidate — unless you've got some dramatic new scandal... and even then....

Adjust. Give up. Deal with it. Resign yourself. It will be so much easier if you don't resist.

Beautiful...

... night...



There's very deep serenity tonight, here in New York.

"The late Gambino crime boss John Gotti was for ordering the hit [on Rudy Giuliani], and had the support of the leader of the Colombo crime family."

This was back in 1986, back when Giuliani was U.S. Attorney for the Southern District of New York and had indicted the heads of the five families. The Gambino and Colombo families said yes, but the other 3 said no, and it did not happen.

I doubt if any blogger will consider it inapt for me at this point to note that Bill and Hillary Clinton once did a commercial where they play-acted roles associated with the fictional TV crime family "The Sopranos."

In this world, there is the real and the fake.

"Michelle Malkin lives for this. At Hoover, Blackfive was unimpressed."

At Hoover? Please, somebody help Andrew. Oh, I'll just sit back and wait for Uncle Jimbo to respond.

And as long was we're trashing journalists this morning...

Beauchamp! Foer! TNR!

"Look at the bright side, kid. Every guard in the U.S. Military will know EXACTLY who you are from here on out."

Wow. A reporter from Knight Ridder — Knight Ridder, I tell you! — writes a blog post disrespecting an American soldier who had never heard of Knight Ridder — Knight Ridder, I tell you! — and one commenter after another tells him what an insufferable, ungrateful jackass he is. (Via Instapundit.)

At comment #67, Arthur writes:

The amazing thing is not that there are 63 comments, almost all them hammering this clown, but that the clown didn’t realize that by posting his story that everybody who WASN’T a journalist would call him out. These MSM guys are in a universe all to themselves.

Amazingly too, the reporter — Bobby Calvan — left the comments up until nearly 200 nasty — deservedly nasty — comments were posted. Finally, he took down the post, but not before it was preserved (at the link above). The smackdown in the comments is so satisfying and entertaining that I'm doing my part to make this viral, but I did start to feel a little sorry for the... jackass. Glad I’m Not You said, at comment #82:

I’m so glad I’m 42. When I was young and immature, like you, and I made an ass out of myself it was usually in a room with a Fire Marshal-rated capacity of under 100 people. Even if the place was full and each person told two friends what I did, I was still under the 300 mark of people I needed to avoid for a week. And since memories are short and someone else was bound to make an ass out of themselves in a relatively short amount of time it never really mattered that much. But you, Bobby, have the distinction of making an ass of yourself on the World Wide Web, which is currently accessable by just over 1.2 billion human beings. On top of that, your friends - and apparently rather plentiful enemies - can now copy-cut-paste your idiocy and keep it forever. And ever. And ever.

Bobby, in the year 2065, when you are 80 or so, you will receive an email with this blog post in it. All of it. Each. And. Every. Word.

I’m so glad I’m 42. And not you.

Best of luck with that reporter thing.

That's the closest he gets to a shred of sympathy for his horrible, distorted self-importance. And then there's the mock sympathy. Drew Cloutier said:

Dude, I can’t believe how all of these commenters like don’t get it. I’m with you. You were being hassled by The Man and you were like so cool. I hate it when I like go to an airport and those TSA yahoos are all like, “Take your computer out of your bag” and “Take of your shoes off” and sh*t like that. Like, whatz their problem. Its not like I’m Richard effing Reid. Next time that happens to me, I’m like going to go all Bobby Calvan on their asses. I’ll pretend like I’m taking down their names (they’ll sh*t their pants at that just like I bet that solider did). I’ll make a press Knight Ridder pass up on my computer (dude, I wish I had a real one like you) and yell “What the hell good is this if I have to be treated like an effing terrorist.” I’ll tell them that I work for a big corporation where we all drive talking cars and they are just peons who probably didn’t graduate from high school. Man, you’re my hero. All these damn Chimpy McHitlerburton clones pretending like they are protecting us when all they are doing is oppressing us. Ignore all of these commenters and just keeping on being you.

I’m like going to go all Bobby Calvan on their asses.

Halloween in Brooklyn Heights.

"Giuliani and religious right meet on the road to political adulthood."

Writes Daniel Henniger in the Wall Street Journal:

Call me old-fashioned, but I think governing philosophy is more important than the endless Chinese puzzle of moving this or that issue forward and back. American politics, right and left, has become obsessive about nailing where candidates "stand" on standalone issues--abortion, gay marriage, immigration, the North Pole melting or pulling out of Iraq. Trying to pin politicians down is honest work. But last time I looked, the thing you win was still called a "government." That means it matters if the candidate is able to govern, which has proven a challenge the past 16 years or so, in part because proliferating factions refuse to be governed.

In the '60s, the left introduced the "non-negotiable demand" into our politics. It's still with us. It's political infantilism. In real life, the non-negotiable "demand" usually ends about age six.

So, has Giuliani really done anything more than to tell the social conservatives that he can't agree with them on all their issues but that they ought to want him anyway? Are 60s lefties really to blame for one-issue voting? And if we really got into thinking about maturity and infantilism in American politics, which candidate would we gravitate toward? Giuliani?

IN THE COMMENTS: Madison Man: "That damn left! If only everyone was mature like the right!"

An intimate relationship with the internet.

A Zogby poll about Americans and the Internet:

The poll found that 24% of Americans said the Internet could serve as a replacement for a significant other....

... [B]ut most are not prepared to implant it into their brain, even if it was safe. Only 11% of respondents said they be willing to safely implant a device that enabled them to use their mind to access the Internet. Interestingly, men were much more willing than women. Seventeen percent of men said they were up for it while only 7% of women wanted to access the Internet using their mind.

"Interestingly"? More like predictably, isn't it? What would the world be like if we could see the internet, at will, in our heads? People can already think about anything they want — even while giving the appearance of relating to the outside environment. But they'd be able to speak about things as if from knowledge or memory when they were only reading from the internet. I think your real memory and conscious mind would deteriorate as you transferred your attention to the seemingly more reliable and capacious internet, and you would lose track of this deterioration and perhaps not care, as you gradually slid into robothood. Ah, I assume this has been written to death in science fiction books, but I haven't read them. Anyway, my advice is don't get the device and stay away from those who do.

As for the internet "as a replacement for a significant other" — how did people interpret the question? Substitute "reading" or "watching television" for the internet, and you can see that there's nothing abnormal there. If you didn't have an adult companion living with you, what would you do differently? You might say, I'd be fine. I see people when I'm out or at work, and I'd be fine by myself at home. I'd have plenty of time to read and write — or play games and look at pictures — without anyone physically present and needing my attention. Is there anything wrong with that?

For the Common Good.

Palladian photoshopped that crazy photograph from the WaPo article I was talking about earlier today.

IN THE COMMENTS: Palladian writes:

For the record: I am NOT suggesting that Bill and Hillary Clinton are Communists or even socialists for that matter. I was merely struck by the photo and the fact that, intentional or not, it uses a conventional propagandistic mode of depicting political leaders.

I would have done the same to any politician photographed in that way, though being able to use Hillary Clinton's old quote made them an especially good target.

Think you can startle Condoleezza Rice?

Think again.

"Contrast Dodd's leadership and conviction on this matter with the complete passivity and invisibility of Hillary Clinton and Barack Obama."

Okay. Then contrast Dodd to Clinton and Obama on this new LA Times/Bloomberg poll (PDF), asking Democrats who are registered and plan to vote in the primary how they'd vote if the primary were held today:

Hillary Clinton 48%
Barack Obama 17
John Edwards 13
Bill Richardson 2
Joe Biden 2
Dennis Kucinich 1
Someone else 2
Don’t know 15

- Chris Dodd and Mike Gravel each got less than 0.5%.

"A kafuffle has broken out between Yale Constitutional Law Professor Jed Rubenfeld and self-righteous right-wing blogger 'Simon.'"

LOL. Our Simon has a quote for his banner from preening, left-wing, he's-not-Mickey blogger Stephen Kaus (who seems to be some sort of lawyer but thinks judges announce decisions by saying "Decision: [name of winning party]" and that there is a word "kafuffle").

IN THE COMMENTS: Inwood writes:

I don't know how anyone could fail to, um, decide correctly which is more reasonable from both a commonsense POV, & a Con Law approach: (a) the carefully reasoned & well-expressed points presented by both Mukasey & Simon or (b) the, um, “self-righteous” as well as hysterical "five days from the effective date of Mukasey's appointment, we're all gonna be back in the McCarthy era where, because we've talked to certain people, expressed certain ideas, or are some kind of free thinkers; we’re gonna be on the "National Wire Tapping List", following which we may well be randomly water boarded by the jackboots of BushHitler" nonsense of The NYT & these guys.

BTW, IR, how about “Kausfluffle”?

And Simon is unruffled by the Kausfluffle:

I'm not sure how ruffled my feathers could really get when someone whose sole claim to fame is having a brother more famous, more erudite and more accomplished than he is decides to demonstrate the same lack of reading comprehension skills (he completely misapprehends my post, not to mention making some very questionable assumptions) by scrawling some graffiti on the sewer wall of the internet.

I mean, really, Steve Kaus? For all the world, he's the blogosphere's equivalent of the brother of the Paul Bettanny character in Wimbledon.

And what's with the "Simon" in scare quotes? It's not as if my last name's a secret or hidden.

ALSO IN THE COMMENTS: Too Many Jims said "there are better indictments of Kaus' writing than "kafuffle is not a word." And I said:

I have many indictments, but that doesn't mean I'm going to spend my scarce time rebuffing some lawyer who writes for readers that he thinks will be awed by the title "Yale Constitutional Law Professor." I've seen too many things written by Yale Constitutional Law Professors to get stirred up when a non-Yale Constitutional Law Professor comes along and acts like something must be true because it was written by a Yale Constitutional Law Professor. Kaus must be: unsophisticated/blinded by ideology/out to manipulate readers. I have no time for that.

MORE: Jed Rubenfeld — the Yale lawprof who wrote the NYT op-ed that started all this — emails:

In response to my op-ed, some have said, "But Judge Mukasey in no way suggested a presidential authority to ignore constitutional statutes; all he meant was that the president has authority to ignore unconstitutional statutes." Others have wondered, on my behalf, whether, given Judge Mukasey's actual statements, and given the history of executive-power claims by the present Administration, this reply is in fact a meaningful reply to the point I made in my op-ed. Of those posting on your blog, "Laser" comes closest to saying what I myself would have said. But in case it would be helpful, here is my own answer.

There are two interpretations of Judge Mukasey’s statements that I meant to be addressing simultaneously and that I would object to equally.

Judge Mukasey indicated that the president has constitutional authority to disregard a federal statute if “what goes outside the statute nonetheless lies within the president’s authority to defend the country.” The president was not above the law, Judge Mukasey emphasized, but the law “starts with the Constitution.” A "statute, regardless of its clarity, can't change the Constitution."

The first question — and what I regard as the real question — is whether Judge Mukasey's statements imply a presidential authority to ignore a federal statute in the following kind of case: (a) where both the president and the Congress possess constitutionally granted power over a certain subject matter; (b) where Congress has exercised its constitutionally granted power; but (c) where the president, in the exercise of his constitutional power, wants to do something that is otherwise constitutionally permissible, that he believes justified in the name of defending the nation (at least in wartime) as he thinks best, but that the enacted statute prevents him from doing. I think Judge Mukasey's statements at least leave open the possibility that the president has authority to disregard the statute in this kind of case.

There are two interpretations of Judge Mukasey's statements according to which he could have endorsed such an authority. First, he might have meant: (1) that, under our Constitution, executive power simply trumps a constitutionally enacted statute in those cases. This is not an unintelligible position. Where two branches each have power over a certain subject matter, one must be supreme over the other, even if both are acting within their constitutionally granted powers. In matters of defending the nation in wartime, someone might intelligibly believe that the executive power must be supreme. On my view, however, this position is plainly unacceptable, contrary to Youngstown, contrary to the supremacy clause, and a subversion of the Constitution’s foundational principles.

Second, Judge Mukasey’s statements could be interpreted to mean: (2) that in the cases specified, the statute becomes unconstitutional just because the statute has infringed on executive power. Now, some people seem to think that this is very different from position (1). They say, "On this view, Judge Mukasey was merely arguing for an executive power that everyone agrees to -- the power to disregard an unconstitutional statute." For myself, I do not view position (2) as meaningfully different from position (1). I think position (2) just is position (1), dressed up in different words; or, to put it the other way, that position (1) just is position (2), dressed up in different words. I take position (2) to be unacceptable precisely because it boils down to the same thing as position (1). I also take position (2) to be close, if not identical, to the position articulated in the repudiated “torture memo.”

I thought about trying to distinguish these two positions in my op-ed, but in the end decided not to. I made this decision not only to save words. On my view, the two positions are in the end not distinguishable, so it is obfuscatory to try to make them sound distinct.

Let me emphasize that I take both positions (1) and (2) to be distinguishable from position (3), which holds that the president has the authority to disregard a statute that unconstitutionally asserts congressional power over a subject matter that the Constitution simply does not grant Congress power over. Thus if Congress passed a statute ordering the deployment of troops in a fashion so specific that Congress had attempted to exercise a power that only the commander-in-chief possesses, Congress would not have been exercising one of its constitutionally granted powers and would not have passed a valid statute at all. By contrast, I take FISA and the military commissions act clearly to govern matters that both Congress and the president have powers over (at least, in FISA’s case, as applied to communications made by United States persons on United States soil). It follows that the president is simply breaking the law if he unilaterally violates these statutes, regardless of which position, (1), (2), or (3), is asserted in defense thereof.

What is key is that there are some things with respect to which the President has exclusive power. This is commonly known as Jackson's category 3 (from the Youngstown case). Here is Justice Jackson's delineation of the concept:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system....

[Where the President's action is contrary to a federal statute,] it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject.

I think this is what Mukasey was referring to, and, as such, it is a solid and unremarkable position. The real dispute is not over whether the President can violate statutes, but how big "category 3" is: How much power does the Constitution give exclusively to the President? I don't doubt that Mukasey has a more expansive view of "category 3" than Rubenfeld does.

Dark clouds seem to rise from the city like smoke.

This morning, at 7:15 AM.

"Islamo-Fascism Awareness Week" at Berkeley.

A long report with lots of pictures and video. The Berkeley students — in contrast to the Wisconsin students I wrote about yesterday — tried to disrupt the speaker. And their speaker — Nonnie Marwan — was not harshly confrontational like the Wisconsin speaker — David Horowitz. The disruption at Berkeley, it should be emphasized, seems to have come not from Muslim students but from political leftists. But the difference in student behavior at the two schools is striking and instructive.

This picture caught my eye:



Here's some fashion advice:

1. If your ideas are loathsome, wear loathsome clothing to ward people off.

2. If you think you have an acceptable way of wearing shorts, don't stand near someone who is wearing obviously horrible shorts.

"You can participate in the other threads and be your zany libertarian self all you want, but you cannot pimp Ron Paul."

Redstate cracks down on Ron Paul supporters. Captain Ed doesn't like it:

... I disagree with Leon's assumption that these Paul supporters are all or mostly cryptoliberals. Plenty of libertarian-leaning Republicans exist in the party, along with the former Buchananites and isolationists of the GOP. Instead of cutting these people off, it might be better for Redstate to keep engaging them. After all, Paul will not be in the race all that much longer, and we need those voters to stay in the GOP when Paul disappears. There are worse impulses than libertarianism.

Seems like there's a big fact question here. Are they "cryptoliberals" — and therefore trolls — or not?

The mesmerizing Clintons and the mystifying Giuliani.

Yikes, look at the photograph of Bill and Hillary Clinton on this WaPo story about a new Los Angeles Times/Bloomberg poll. It looks like a photorealist painting. I'm picturing this the size of a gallery wall and oozing irony. Or as a 50-foot banner hanging along the wall of a large government building. Look at those visionary, upcast eyes.....

[ADDED: Picture photoshopped for your amusement.]

But that's not what I came here to talk about! Jeez, I nearly got sucked into a Clinton vortex....

What I want to talk about is those crazy Republicans. According to the WaPo:

[D]anger looms for Republicans should they nominate the politically moderate Giuliani: About one-third of GOP voters said they would consider supporting a third-party candidate in the general election if the party nominee supported abortion and gay rights.

Yes, yes, blah, blah, blah... We've all heard this sort of thing. But you have to click into the PDF of the poll for the interesting part:

[A]mong the 34% of Republican primary voters who would consider a third party candidate if the candidate chosen is not conservative enough, Giuliani received more support than the other candidates.

What?! The question was whether they agreed with the statement: "If the Republican Party nominates a candidate supporting abortion and gay rights, the social conservatives in the Party should run a third party candidate." Then they asked the 34% who agreed who should be that third party candidate. Response:

Giuliani 26%
Thompson 19
McCain 10
Huckabee 9
Romney 7

Another question asks "Could you vote for a candidate for president who supports abortion and gay rights if you agree with him on other issues, or could you only vote for a candidate for president who opposes these issues?" This gets 39%, which seems to mean that there are 5% more Republicans who want to abstain from voting and don't want to see a third party candidate. In this 39%, the support breaks down like this:

Thompson 22%
Giuliani 19
Huckabee 11
Romney 11
McCain 8

Still 19% for Giuliani.

Here's more on the mystifying support for Giuliani:

More than two-thirds of Republican voters said abortion should be illegal (which includes 51% who said illegal with exception – rape, incest and to save the mother’s life). Seventeen percent want abortion to be illegal without any exceptions. And nearly half of Republican voters are against same-sex couples marrying or forming civil unions, including huge majorities of those who consider themselves part of the religious right and Christian fundamentalists.

Although Giuliani is pro-choice and favors civil unions, among those who want abortion to be illegal 35% would still vote for the former mayor; among voters who want same-sex couples to neither marry nor join in civil unions, 24% are also supporting him. He gets the most votes in both of these groups.

Can anyone explain this? Could it be perhaps that people don't know his positions, but they recognize his name as Italian and assume Catholic along with all that supposedly entails? How long can this ignorance persist?

Republican haters can assemble over there and laugh and say mean things, but I think we should assume that a vast chunk of Americans have yet to start paying attention to the presidential race. This is chilling, because it looks like the the process — whatever this process is — has already selected the candidates.

But the voting hasn't begun. Maybe in a couple months — Christmas is 2 months away — ordinary people will start paying attention and everything will change. It did in '04.

Using kids to bypass campaign finance law.

WaPo has an exposé. Including this:

A supporter of former Massachusetts governor Mitt Romney (R), Susan Henken of Dover, Mass., wrote her own $2,300 check, and her 13-year-old son, Samuel, and 15-year-old daughter, Julia, each wrote $2,300 checks, for example. Samuel used money from his bar mitzvah and money he earned "dog sitting," and Julia used babysitting money to make the contributions, their mother said. "My children like to donate to a lot of causes. That's just how it is in my house," Henken said.

Nice to see someone raising her kids to be all high-minded and generous. Because, you know, in some families, people cheat and lie.

"For some families, ketchup accounts for a large part of the household vegetable intake."

So ketchup is a vegetable! In an article about "going organic," the New York Times blithely expresses the belief that has sprouted millions of Reagan jokes for the last quarter century.

Halloween in Brooklyn Heights — tasteful!

What did Mukasey say about the President's power to disregard statutes?

Yale lawprof Jed Rubenfeld has a NYT op-ed. Simon wields the transcript in retaliation. Decision: Simon.

UPDATE: The discussion continues here, where, among other things, Rubenfeld responds.

Rudy Giuliani promises to fight off space aliens.

Have the other candidates given us equivalent assurances?

ADDED: Source.

"I will follow Osama Bin Laden to the gates of hell and I will shoot him with your products."

McCain. He's tough. But reasonable: "I certainly didn't mean I would actually shoot him. I am certainly angry at him, but I was only speaking in a way that was trying to emphasize my point. I would not shoot him myself." He's going to get someone else to shoot bin Ladin.

Back in New York, back in the work week.

Ah, remember last summer when I was flooding the blog with photographs of flowers? Where is that summer now? Still, here in Brooklyn Heights and here in October, there are many flowers, some insisting on posing for a photograph:



I was on my way to that café on Henry Street, the one where we took all those portraits against the neutral-colored wall. Today, I sat there alone — alone with my Federal Courts book. I had a big latte and a tiny sandwich, and I chose an outdoor table, where I studied habeas corpus for the hundredth time and tried to collect my thoughts over the roar of the traffic on Atlantic Avenue.

But first, a tablescape:



I took many more photographs on my walk to and from the café. The first one started a theme of Brooklyn Heights-style Halloween decorations which I will manufacture into a separate post eventually. For now, here it is, the assemblage that inspired me:



Who needs orange when there is black and white?

"I assume there are dragons and griffins and werewolves and homosexual Frankensteins throughout these novels..."

"...but I honestly don't give a shit if my assumption is true or false."

Chuck Klosterman is not reading the Harry Potter novels.

I find it astounding that the unifying cultural currency for modern teenagers are five-hundred-page literary works about a wizard. We are all collectively underestimating how unusual this is. Right now, there is no rock guitarist or film starlet as popular as J. K. Rowling. Over time, these novels (and whatever ideas lie within them) will come to represent the mainstream ethos of our future popular culture. Harry Potter will be the only triviality that most of that coming culture will unilaterally share.

And I have no interest in any of it.

And I wonder how much of a problem this is going to become.

If it's the only shared thing, that means, in the future you won't get any of the references.

... I will not grasp the fundamental lingua franca of the 2025 hipster. I will not only be old but old for my age. I will be the pterodactyl, and I will be slain. It is only a matter of time.

ADDED: The word "hipster" is vastly overused these days. Anyone with a tinge of youth and a shred of knowledge of fashion and pop culture trends seems to be a hipster — at least to people who notice they're aging and don't want to bother with the trends. Hipster — the category should be more elite. Or it seems completely absurd.

We could try to think deeply about the word "hip." For example, why aren't hipsters and hippies the same thing? What is the -ster relationship to "hip" that is different from the -ie relationship? To me, -ster seems to make you more of a knowledgeable proponent or an obsessive devotee, and -ie suggests you're having fun with it. Other -ster words that come to mind: mobster, roadster. Is a mobster's relationship to the mob and a roadster's relationship to the road the same as a hipster's relationship to hip?

Other -ie words I think of easily: foodie, groupie. See? More fun.

AND: A little musical accompaniment to this postscript: here. In the comments, Trooper York brought up The Orlons, but then he didn't quote "South Street." The first time I ever heard the word "hippie," it was in that great early 60s song. Let's check out the etymology:

During the jive era of the late 1930s and early 1940s, African-Americans began to use the term hip to mean "sophisticated, fashionable and fully up-to-date". The term hipster was coined by Harry Gibson in 1940, and was used during the 1940s and 1950s to describe jazz performers. The word evolved to describe Bohemian counterculture. Like the word hipster, the word hippie is jazz slang from the 1940s, and one of the first recorded usages of the word hippie was in a radio show on November 13, 1945, in which Stan Kenton called Harry Gibson "Hippie". This use was likely playing off Gibson's nickname, "Harry the Hipster."

In Greenwich Village, New York City, young counterculture advocates were named hips because they were considered "in the know" or "cool", as opposed to being square. Reminiscing about late 1940s Harlem in his 1964 autobiography, Malcolm X referred to the word hippy as a term African Americans used to describe a specific type of white man who "acted more Negro than Negroes."

In a 1961 essay, Kenneth Rexroth used the term to refer to young people participating in African American or Beatnik nightlife.

In 1963, the Orlons, an African-American singing group from Philadelphia, Pennsylvania released the soul dance song "South Street", which included the lyrics "Where do all the hippies meet? South Street, South Street...The hippest street in town".[9][10]....

The more contemporary sense of the word "hippie" first appeared in print on September 5, 1965. In an article entitled "A New Haven for Beatniks," San Francisco journalist Michael Fallon wrote about the Blue Unicorn coffeehouse, using the term hippie to refer to the new generation of beatniks who had moved from North Beach into the Haight-Ashbury district of San Francisco. Fallon reportedly came up with the name by condensing Norman Mailer's use of the word hipster into hippie. Use of the term hippie did not catch on in the mass media until early 1967, after San Francisco Chronicle columnist Herb Caen began referring to hippies in his daily columns.

Nothing there about the more recent transition to "hipster," though there is a section about the pejorative use of the word "hippie." Basically, "hippie" ended up meaning not hip at all. That's certainly the way I use it (almost always in self-deprecation).

"Beatnik" is a cool word, but I think it's solidly anchored in the 1950s... or to refer to Maynard G. Krebs, the Bob Denver character in my all-time favorite TV show "Dobie Gillis." He also did his beatnik role in a cool movie called "Surf's Up," which came out the same year as "Hard Day's Night." What a contrast between those two movies. I must confess that I saw them in a double feature at the time... and much preferred "Surf's Up." I found this hilarious:



CORRECTION: The movie title is actually "For Those Who Think Young." I went through a long period of thinking it was pathetic of me to have liked this movie more than "Hard Day's Night," but now, much as I know "Hard Day's Night" is better, I think it's perfectly acceptable to enjoy an old surf movie. Look at the cast:

James Darren ... Gardner 'Ding' Pruitt III
Pamela Tiffin ... Sandy Palmer
Paul Lynde ... Uncle Sid
Tina Louise ... Topaz McQueen
Bob Denver ... Kelp
Robert Middleton ... Burford Sanford 'Nifty' Cronin
Nancy Sinatra ... Karen Cross

POSTSCRIPT: If we called monsters "monnies," would we be less afraid?

Wisconsin students may hate the speaker — David Horowitz — but they gave him a respectful hearing.

I'm writing up the good news. I thought there might be disruption — and David Horowitz seems almost to want to bait the students into causing a publicity-getting scene when he calls his event "Islamo-Fascism Awareness Week." He did get some attention, but the students showed a solid commitment to free-speech values by assembling before the lecture and chanting — the chant was "Racist, fascist, anti-gay, right-wing bigot go away" — and then listening respectfully to what Horowitz had to say.

But there was one man....

Former UW lecturer Kevin Barrett — who attracted national media attention to the university for promoting his belief that the Sept. 11, 2001 terrorist attacks on the World Trade Center and Pentagon were an inside military job — was in attendance and voiced opposition, disrupting Horowitz’s talk near the beginning of the lecture.

Horowitz may be a publicity whore, but he wasn't the biggest publicity whore in the room.

Barrett, who was booed by the crowd after he interrupted the speech, left the Memorial Union Theater shortly thereafter in the midst of a popular UW football tradition — the “asshole” chant.

Ha ha ha. Wisconsin students rule.

HOLD EVERYTHING: Uncle Jimbo was there! With video:



And text. Jimbo — who was "predisposed" to agree with Horowitz — thinks the reason the crowd didn't disrupt him was that he was too dull and uninspiring. He also says the students "maintained more decorum" than Horowitz, who said rude things like "Well I guess you just aren't able to read" and "I don't know what to do if you can't add two and two and get four."

It would have been a total bomb, but Ebo decided we needed a pitcher of Optimator in the Rathskeller and we spent about an hour talking with a couple of groups of folks who came in opposition to Horowitz. It was enagaging [sic], entertaining and so completely superior to the waste of time that was the theater in the theater [sic], that we resolved to attend the Muslim dialogue tomorrow night. I truly enjoyed the discussion with some folks who, although we disagreed on much, came with much more open minds and helpful attitudes than the headliner.

Ha ha. The marketplace — the tavern — of ideas.

"The Future of Reputation: Gossip, Rumor, and Privacy on the Internet."

Daniel J. Solove is offering free review copies of his book "The Future of Reputation: Gossip, Rumor, and Privacy on the Internet" to bloggers who act fast, write reasonably relevant blogs, and agree to review the book. (ILs: Is that an enforceable contract?)

I've already got the book, and I didn't agree in advance to write it up here. I note that he's cutting off the option of following the old advice of shutting up if you haven't got something nice to say. Which I sometimes follow.

You can also just buy the book: here.

I'll have more to say about it later. I note that it doesn't include the AutoAdmit scandal and that ham-handed lawsuit brought by some Yale Law Students.

It's a rosy morning...

Here in New York.

"Finding a $1 million painting in the garbage is very unusual."

A delightful story.

ADDED: Here's a version of the story that includes a photo of the painting. It also says that the woman who found it is getting "an undisclosed percentage" of the sale price along with the $15,000 reward that dates back to the time when the painting was stolen. (Are we sure it was stolen?)

Andrew Sullivan's inane attack on me.

Let me repeat the update I added to this post of mine: Andrew Sullivan really needs to make some effort to understand my sense of humor before posting another inane attack on me. I already gave him The Andrew Sullivan Award (for humor deafness) that one time. Get a damn clue, man.

ADDED: You know, if he had comments, someone could nudge him when he does this. Maybe that's why he doesn't have comments. The embarrassments would show.

AND: In the comments, several readers have questioned whether Sullivan's new post is really properly called an "attack." At least one suggest Sullivan himself is trying to be funny. If I had reason to think Sullivan really read and liked this blog, I could believe that, but this is a case of Sullivan picking up something that's already being linked and misunderstood on other blogs where I am portrayed as a mindless right-winger — not that Sullivan hat-tips any other blogger as the source.

"Islamo-Fascism Awareness Week" at the University of Wisconsin.

The Badger Herald reports:

Drawing concern from liberal and minority-based campus groups, conservative author David Horowitz kicks off a weeklong event at the University of Wisconsin today opposing Muslim extremism....

The author’s visit is part of “Islamo-Fascism Awareness Week”... The event has been criticized by the Muslim Students’ Association, Black Student Union, MultiCultural Student Coalition, International Socialist Organization, Campus Antiwar Network and College Democrats, according to College Democrats Chair Oliver Kiefer....

[UW College Republicans Chair Sara] Mikolajczak said the UW Police Department has been notified of a possible disruption during the lecture and will be present during the event.

“They’ve got every right to be there, as long as they’re not disruptive while he’s speaking,” Mikolajczak said. “I actually hope they do show up.”

Chancellor John Wiley, who was contacted by the American-Arab Anti-Discrimination Committee last week, wrote a letter Friday to explain the university’s view on what he called an “inflammatory campaign.”

In the letter, Wiley wrote UW does not endorse Horowitz’s ideas “but is providing an environment where the widest variety of views can be aired.

“We also have a strong commitment to academic freedom and First Amendment rights, and a belief that, in an open marketplace of ideas, the strongest ideas will be embraced and fraudulent ideas will be exposed,” Wiley wrote in the letter.

The event is about to start (at the Memorial Union Theater). I'm back in New York, so I can't report first hand. If you are there, email me your descriptions or links to blog posts, photos, and videos.

ADDED: I heard that there was going to be an effort to fill the room with those who objected to the speech to provide "a respectable non-violent opposition." I'm not sure what that means. Noisy disruption is nonviolent. Let me know what happens.

UPDATE: Here.

"It was nuclear winter. It was like Armageddon. It looked like the end of the world."

A San Diego firefighter.

"Justice Clarence Thomas is the winner of the Partisan Voting Award for the most politically skewed voting pattern."

According to Thomas J. Miles and Cass R. Sunstein.

Justice John Paul Stevens is the runner-up...

The Judicial Restraint Award, for the most humble exercise of judicial power, goes to Justice Stephen G. Breyer....

The Judicial Activism Award, for aggressive use of judicial power, goes to a most surprising winner: Justice Antonin Scalia....

And Anthony Kennedy is the most neutral, followed by David Souter.

Agree?

ADDED: This is making me think of that radio show I did with Sunstein the day Samuel Alito was nominated to the Supreme Court:

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?

IN THE COMMENTS: Henry writes:

I'm sure Sunstein's and Miles' methodology is spot on. So, in the spirit of the Emmy's, I suggest the following:

The Consistent Application of Principles Award goes to Justice Clarence Thomas.

The What-Side-of-Bed-Did-I-Get-Out-of-Today Award goes to Justice Anthony Kennedy.

The Check Executive Power Award goes to Justice Antonin Scalia.

The Check? Moi? Award goes to Justice Stephen G. Breyer.

(As an aside -- remember how concerned the left was with the idea that Roberts and Alito would be too prone to defer the executive branch? Apparently deference is a good thing!)

Thanks for the opening, Professors.

Very well put! I haven't examined the empirical methodology, so I have no idea what skewing and bias may lie therein, but Miles and Sunstein have skewed the labels like mad. Thanks to Henry for doing the reverse-skew so well.