Gloria Steinem and the turtle.

#4 on Donna Brazile's rules to live by is "Ask the turtle":

I'm proud to call Gloria Steinem a friend, and this advice came from her. While on a field trip in college with her geology class, she discovered a giant snapping turtle that had climbed out of the river, up a dirt path, right to the edge of a road. Worried it would soon be run over, she wrestled the enormous reptile off the embankment and back down to the water.

At that moment, her professor walked up and asked what in the world she was doing. With some pride, she told him. He said that the turtle had probably spent a month crawling up that long dirt path to safely lay its eggs in the mud on the side of the road and that she had destroyed all that effort with her "rescue."

Gloria tells this story to illustrate the most important political lesson she ever learned: Always ask the turtle.

First, the turtle's message is obviously leave me alone. How am I supposed to believe that this is a message that liberals hold dear?

Second, like Jim Lindgren reading an essay by Michael Bellesiles, I'm getting twinges of doubt about this story. The characters are just too perfectly drawn, and the events unfold in a predictably tragic yet meaningful way.

Third, just try to picture of Gloria with an enormous snapping turtle. Possibly with zombie makeup.

Live-blogging night 2 of the Republican Convention.

5:22 Central Time: Just setting up the post. Let's watch!

5:31: Ugh. CNN is still going over and over the hurricane. Would they be making so much of a hurricane of this dimension if it was the Democratic Convention?

5:32: I'll have to run off at some point to go to a hair appointment. Feel free to tell me how you think I should get my hair cut. Pictures especially appreciated.

5:49: The subject is whether Sarah Palin should stay home with her "special needs" child. Can you be a mother and pursue a career? Gloria Borger, a self-identified "working mom," says you can't make "generalizations," and everyone must make her own decision.

5:57: Wolf Blitzer is pushing the meme -- which I've heard elsewhere -- that McCain is a "maverick" and that means he makes impulsive decisions like the choice of Sarah Palin. He doesn't add -- but there are versions of this meme where it is added -- that this supposedly gut level choice of Sarah Palin should stand as a warning about the way he will make decisions about foreign policy.

6:38: Super-serious singing of the the national anthem, but I really don't like the singer's enunciation. Weird to have the flag waving on a digital screen.

8:22: I'm back. Hair cut. Just scrolled through all the stuff I missed, and it seems like virtually nothing.

8:43: Very moving presentation of the story of a Medal of Honor winner, Michael Monsoor. I see from the NYT that Senator Lieberman spoke, but I didn't see that in my scroll-through, so I didn't mean to count that as "virtually nothing." What I saw was a lot of Blitzer et al. commentary. [ADDED: No, that was just a preview. I didn't miss it.]

8:53: It's Laura Bush, extolling her husband as a man of principle and resolve. She praises his achievements: the appointment of women and 2 new Supreme Court Justices, the faith based initiative, the fight against AIDS -- "you might call that change you can really believe in" -- "and let's not forget, President Bush has kept the American people safe." Will Laura's husband ever be honored? Does she believe he will? She introduces him.

8:56: And here he is, on the video screen. "I know the hard choices that fall solely to a President. John McCain's life has prepared him to make those choices. He is ready to lead this nation."

9:09: A film clip about Reagan. In the car, I heard the film clip about Abraham Lincoln. The Republican Convention, much more than the Democratic Convention, highlights the heroic individual. This fits the party's ideology. John McCain was "a foot soldier" in "the Reagan Revolution." Reagan "broke the self-confidence of the Evil Empire of Communism." And he had Nancy. He put "country first." ("Country First" is the new McCain campaign slogan.)

9:14: And now: Fred Thompson. Ah! He springs to the defense of Sarah Palin. "I say give me a tough Alaskan Governor who's taken on the political establishment of the largest state in the Union and won over the Beltway 'business as usual' crowd any day of the week!"

9:18: Fred says Sarah has got the other side "in a state of panic." And she knows "how to field dress a moose." Now, he's telling the story of John McCain's life, "putting his country first." He's putting a lot of passion into the delivery. The harrowing story of McCain's imprisonment. "We hear a lot of talk about hope these days. John McCain knows about hope. That's all he had."

9:29: Remember. After the comments go over 200, you need to click on "post a comment" and then "newer" to keep the conversation going. I know a lot of you know how to do that.

9:35: "The respect [John McCain] is given around the world is not because of a teleprompter speech designed to appeal to America's critics abroad... *ahem*.... no, it's not that."

9:38: Obama is "history-making" all right: he's the most inexperienced, left-wing candidate the Democrats have ever run -- says Thompson.

9:52: The CNN commentary is insufferable. After Thompson, they all just kept saying "red meat."

9:55: It's Joe Lieberman. I kind of love this guy. I voted for him one time. Man, he is a boring speaker though. I can't imagine him as the VP candidate. Palin is a much better speaker.

9:59: "I'm here to support John McCain because country matters more than party."

10:05: "Eloquence is no substitute for a record," Lieberman says of Obama. Now, he compares Obama to Bill Clinton. Clinton stood up to interest groups and worked with Republicans for major achievements. [ADDED: He was saying Clinton was better than Obama: "In the Senate [Obama] has not reached across party lines to get anything significant done, nor has he been willing to take on powerful interest groups in the Democratic Party. Contrast that to John McCain’s record, or the record of the last Democratic President, Bill Clinton, who stood up to some of those same Democratic interest groups and worked with Republicans to get important things done like welfare reform, free trade agreements, and a balanced budget."]

10:07: Sarah Palin is a "great lady."

10:12: He's warming up. Maybe it's not so boring now. "These are not ordinary times and John McCain is no ordinary candidate." He says what he thinks is right... ah... too much repetition. John McCain has character and experience....

10:17: After-speech commentary. Donna Brazile is talking fast but stumbles in a way -- "Look, Joe... Lieberman is a man... " -- "speaking at this conviction, this convention" -- that makes me feel sure she's reading from a teleprompter.

10:21: David Gergen thinks Lieberman has "extremely annoyed" some Democrats by not only supporting his old friend McCain but also really going after Obama "in a very personal way."

10:43: That's it for me. A decent convention night. The highlight was Fred Thompson's dramatization of McCain's Vietnam experience. Or was it Joe Lieberman telling everyone we should vote against his party?

“Eggheads and African-Americans."

A memorable phrase, a classic encounter:



Man, if my head looked like Paul Begala's, I would not use the term "eggheads." But anyway, isn't he right? Donna Brazile does an excellent job of getting mad on camera, but it's pure pretense. Everyone knows a political strategist has to analyze the various demographic groups.

"Democratic superdelegates may have the legal right to thwart the will of Democratic primary voters and caucus goers..."

"... but they do no not have the moral right to do so," writes Chris Bowers, threatening — like Donna Brazile — to quit the party if the superdelegates determine the nominee. What's morally wrong with following the rules that everyone knew all along? Parties aren't morally obligated to use a purely democratic approach to picking a nominee. The Democrats set up a system with some delegates who were there because of their position in the party and not as representatives of people who voted in primaries or caucused. They were authorized to exercise their independent judgment about who the party should nominate, in what looks like a check on freewheeling democracy. Why should they now be told to subordinate their independent judgment?

"Sperm cells created from female embryo."

The Telegraph reports, adding that "it may be possible for lesbian couples to have their own biological children."

Or any 2 women. They don't have to be lesbians.

It's just that we — some of us! — feel sympathetic to the desire of a lesbian couple to have a child that is biologically related to both of them.

But any 2 women could have a baby together — once the technology advances so that sperm cells could be made from a woman's bone marrow.

And face it: A woman could be impregnated with her own sperm.

But right now, at this stage of the technology, a female embryo is being destroyed to create a sperm cell. One doctor calls this procedure "double-damned," but — what did you think? — he (she?) doesn't mean that it will provoke God:

... Dr Robin Lovell-Badge, a stem cell and sex determination expert at the National Institute for Medical Research, Mill Hill, London, doubts it will work: “The presence of two X chromosomes is incompatible with this. Moreover they need genes from the Y chromosome to go through meiosis. So they are at least double-damned.”

In Brazil, a team led by Dr Irina Kerkis of the Butantan Institute in Saõ Paulo claims to have made both sperm and eggs from cultures of male mouse embryonic stem cells in the journal Cloning and Stem Cells.

The researchers have not yet shown that their male eggs can be fertilised to produce viable offspring, but they are thinking about possibilities for same-sex human reproduction.

If all these experiments pan out, then the stage would also be set for a gay man to donate skin cells that could be used to make eggs, which could then be fertilised by his partner’s sperm and placed into the uterus of a surrogate mother.

“I think it is possible,” says Kerkis, “but I don’t know how people will look at this ethically.”

I don’t know how people will look at this ethically. You might want to think about it. You know, yourself. Whether it actually is ethical. It's not just a matter of how "people" "look at" it.

Are we seeing an ugly racial edge to the Clinton campaign?

Ben Smith writes at The Politico:

A series of comments from Sen. Hillary Rodham Clinton, her husband, and her supporters are spurring a racial backlash and adding a divisive edge to the presidential primary....

The comments, which ranged from the New York senator appearing to diminish the role of Martin Luther King Jr. in the civil rights movement — an aide later said she misspoke — to Bill Clinton dismissing Sen. Barack Obama’s image in the media as a “fairy tale” — generated outrage on black radio, black blogs and cable television. And now they've drawn the attention of prominent African-American politicians....

Rep. Jesse Jackson Jr., through a spokesman, [said:] "Following Barack Obama's victory in Iowa and historic voter turnout in New Hampshire, the cynics unfortunately have stepped up their efforts to decry his uplifting message of hope and fundamental change...."...

Thursday, a key player in black South Carolina politics, Rep. Jim Clyburn, told The New York Times he’d consider endorsing Obama in response to what he considered a lack of respect in the Clinton campaign’s approach to Obama.

“For him to go after Obama, using a ‘fairy tale,’ calling him as he did last week. It's an insult. And I will tell you, as an African-American, I find his tone and his words to be very depressing,” said Donna Brazile, a longtime Clinton ally who is neutral in this race, on CNN earlier this week.

Of course, Obama supporters have a motivation to characterize things as racial that are not, and the Clinton campaign must be frustrated that it's hard to attack Obama, who seems to be getting a free pass. But I don't doubt that the Clintons will use whatever works for them. Insinuations — and even slip-ups — don't work, however, when so many people are so ready to detect racial content. So that is a safeguard against the Clintons stirring up racial prejudice against Obama.

And yet... they won in New Hampshire, doing whatever it is they did.

UPDATE: Bill Clinton went on Sharpton's radio show today:

"There's nothing fairy tale about his campaign. It's real, it's strong, and he might win," Clinton told Sharpton...

"It is wrong that Senator Obama got to go through 15 debates trumpeting his superior judgment and how he had been against the war," Clinton said during the rally. He suggested Obama had moderated his anti-war stance during his 2004 Senate campaign.

"There's no difference in your voting record, and Hillary's, ever since," Clinton said. "Give me a break. This whole thing is the biggest fairy tale I've ever seen."....

Clinton told Sharpton the "fairy tale" remark was only intended to describe Obama's claim to have exercised better judgment about the war, and was not intended as a sign of "personal disrespect."

IN THE COMMENTS: Jeremy said:

The Clintons are nothing if not calculated. Could it be that they're trying to draw out the Sharpton/Jackson crowd? I think Barak has done really well without "Black Leadership's" prominent endorsement. That endorsement seems like it'd be a big turn off to a lot of white voters. Maybe the Clintons want the Sharpton/Jacksons to make some noise?

Freakin. I'm sounding too paranoid.

Democrats punish Florida.

Shouldn't they be nicer to Florida?

"I understand how states crave to be first. I understand that they're envious of the role that Iowa and New Hampshire have traditionally played," said [Donna Brazile, a member of the rules committee], who was Al Gore's campaign manager in 2000. "The truth is, we had a process. . . . We're going to back these rules."

Though the DNC's action was well-telegraphed, it came after emotional pleas from state party leaders, who blamed the initial selection of the date on Republicans who control the legislature.

[Karen L. Thurman, chair of the Florida Democratic Party] said she and her staff spent "countless hours" trying to persuade the legislature to pick another date.

Jon Ausman, a DNC member from Florida, begged his colleagues to make an exception for Florida because of those efforts.

"We're asking you for mercy, not judgment," Ausman said.

Mercy?! Ha! Rules are rules!

So, Al Gore is running for President, right?

Basis of my suspicion: I'm watching him on Live Earth, and he doesn't look completely fat anymore. He's losing weight! Remember when Donna Brazile said "If he drops 25 to 30 pounds, he’s running." It's happening, people. Pay attention!

Plus, a couple days ago, Gore was on the "Today" show (right after his son was arrested), and we got this:

"I've kind of fallen out of love with politics."

... which I blogged about. But there was also this, which I didn't mention:

Gore laughed when asked if he was ready to endorse a candidate for president. He said his evaluation would be based on what each decides to do about climate change.

"Some of them have made good, positive statements, but it's still treated as a side issue. I will predict for you that within the next 500 days that this issue will be the Number One issue on the agenda," he said.

Come on! It's obvious. He's not a seer. He's talking about something within his own personal knowledge.

"Men are still resisting and clearly prefer the rounder, fleshier type. But women want to be free and powerful..."

"...and one way to reject submission is to adopt these international standards that have nothing to do with Brazilian society." That's one attempt -- by a historian, Mary del Priore -- to explain the changing standard of beauty in Brazil. It's a strange idea -- isn't it? -- that the natural feminine body is a sort of enslavement and that anorexia is a way to power. It's surely not limited to Brazil, but the Brazilian manifestation of it is so stark:

Experts also agree that Brazilian men, whatever their class or race, have been much slower to accept slenderness as a gauge of feminine beauty. When they are looking for a sexual partner, Brazilian men are consistent and clear in saying that they prefer women who are fleshy in the rear — “popozuda” is the wonderfully euphonious slang term used here — and have pronounced curves.

In the past, that standard was so firmly established that some Brazilian women resorted to breast reduction or buttock augmentation surgery, sometimes even transferring their own tissue from top to bottom.

Sometimes even transferring their own tissue from top to bottom. Now, that is something. That's amazing. And "popozuda" -- what a cool word.

So, anyway, what do you think, are Brazilian women undercutting themselves, missing out on this nicely accommodating old standard of beauty to take on the rigors of the "international" standard of beauty, or is there actually something oppressive about the old standard?

"The whole idea is . . . that I did something that he did not like, but at the time he did not say anything."

Says the priest who admits to what ex-Congressman Mark Foley said he did.

"We had some kind of friendship. I was very friendly with him and his family," said [Anthony] Mercieca. "Then almost forty years passed without him saying anything. . . . And now because he got caught he recited these things."

In Brazil "they skinny dip all the time and no one gets scandalized. It is part of the culture. It is natural," Mercieca said. "They don't make an issue out of a skinny dip in the park or a massage."

"It was not what you call intercourse. . . . There was no rape or anything. . . . Maybe light touches here or there," said Mercieca.

Oh, those priests, with their subtle reasoning.

Some hipness and squareness about John Roberts.

Hey! I spot my name in today's NYT in an article by Linda Greenhouse called "His Hipness, John G. Roberts." Let's see:

WRITING in April for a unanimous Supreme Court, Chief Justice John G. Roberts Jr. found that the police in Brigham City, Utah, acted properly in entering a home without a warrant after they peered through a window and saw a fight in progress that had left one man spitting blood.

"The role of a police officer includes preventing violence and restoring order, not simply rendering first aid to casualties," the chief justice said, rejecting the argument that the police should have waited until the altercation ended more conclusively. "An officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided," he explained.

The chief justice's sports imagery galvanized the legal blogs. Some found his boxing reference inapt. "The whole point of boxing is fighting!" wrote a participant on the Althouse blog, run by Ann Althouse, a law professor at the University of Wisconsin.

Others took issue with the hockey reference. "Given all the padding that hockey players wear, being punched by an opponent hardly is more significant than being hit by a toddler," one said.

Finally, another writer took a step back and observed that "this shows another side of Roberts as a good writer: displaying some wry humor and hipness."

There is a hot link in that passage, but it's for "University of Wisconsin" and it just goes to a page of hits for a search within the NYT site for "University of Wisconsin." How about a link to the post? Come on, Times! You've got to do internet properly. It's not Greenhouse's fault, but really, that approach to links is unbelievably obtuse.

Here's the missing link. I started off the conversation this way:

We're familiar with the way a referee in a boxing can stop a fight if it becomes too one-sided. Why throw in "(or hockey)"? It not only clutters the sentence, it makes the concept harder to grasp. I don't even know about hockey referees stopping one-sided games. Since Roberts is known for the high quality of his writing style, I've got to think that parenthetical really adds something. But what?

Is it that in hockey fights break out, and the refs don't stop them unless they're one-sided, and it's actually more like the police situation because the fighting isn't legitimate in the first place, but some people might think the police should ignore fights unless someone is outmatched? In that case, hockey is a more apt analogy in light of the argument that the search was unreasonable.

The quote "The whole point of boxing is fighting!" is not mine. It's by what Greenhouse called "a participant on the Althouse blog, run by Ann Althouse." In other words, a commenter. Actually, it's Joan H. -- here's her blog .

She wrote:

Fighting is tolerated in the NHL, and referees often let the players involved work out their frustrations as long as neither party is getting beaten to a pulp and the other team members are staying out of the fray. Most fights are just scuffles, and are to be expected in a game in which shoving your opponents out of the way is legitimate.

I think the hockey analogy is better just for that reason, and can't understand why boxing was included at all. The whole point of boxing is the fighting! In hockey, fighting is always penalized, whether or not the refs break it up, just as it should be in life. I think Roberts included the boxing reference because frankly there aren't so many hockey fans around these days.

The second quote -- "Given all the padding that hockey players wear, being punched by an opponent hardly is more significant than being hit by a toddler" -- is by Dave Friedman. The "wry humor and hipness" one is from paulfrommpls. Here's his blog.

Greenhouse ends the opening passage to her article -- the part I've quoted -- with:

It is no surprise that the new chief justice's every vote is being tabulated and scrutinized. But so is his every metaphor.

Well, the attention to the metaphor is partly in the nature of blogging. It was a nice specific, textual thing to talk about. I love when something like that pops out in a Supreme Court case (or somewhere else in the news). It's one of those things that says bloggable to me. Indeed, I'm scrutinizing the writing in the NYT right now because it said bloggable to me... which it would have said even without calling my name (which gets my attention big time).

The NYT piece isn't about blogging phenomena, though. It's about judging John Roberts. The part about our little boxing/hockey conversation is followed by some quotes about Roberts' writing by usual suspect quotemeisters Erwin Chemerinsky (Roberts' "prose style is clear and easy to follow") and Akhil Amar (praising the "elegance and economy" and "occasionally snappy line"). This leads to a discussion about whether Roberts is really a judicial "minimalist." No overarching conclusions there.

The piece rolls toward a conclusion with the observation that Roberts doesn't much like quoting law review articles (a quality shared by most judges, I'd say). Here, the key quote is from Harvard lawprof David Barron: "It's as if the answers to all questions are already there, completely internal to the court, to be teased out of the existing cases."

Relying on precedent as the only source of law is an approach with strengths and weaknesses, Professor Barron said, noting that on the one hand, precedent can be a smokescreen, "a rhetorical device to hide the inevitable policy making," while on the other, "it has its own constraining effects," making a judge less likely to embrace dramatic change in the status quo.

True enough, but it's an observation that you can make about nearly any judge. This rhetoric about rhetorical devices is the stock in trade of the law professor...

...including the lawprof blogger. So bring on the judicial metaphors and rhetoric... I need bloggables.

Oh, but the term is over. No new material! We'll have to go back over the old. In fact, I'm running a series of seminars over the rest of the summer here at the law school in which we hash over one case each Tuesday. I'm taking over the first slot, which I'd previously given to someone else, who has an out-of-town opportunity to pursue. I'm the emergency fill-in. I'll be doing the hallucinogenic tea case, which happens to be the first case Akhil Amar talks about in illustrating Roberts' penchant for the "occasionally snappy line":

[Amar point to] a majority opinion that rejected the government's application of federal narcotics law to stop a Brazil-based religious group from importing a hallucinogenic tea for use in its rituals. "The government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions," the chief justice wrote.

Ah, good place to end a rambling blog post about hipness! We've got your hallucinogenic drugs and that hippie irritation with the government and all its rules, man.

"Now perhaps there's been a chance to reattach the original democratic, liberal values to the flag that come from the 19th century..."

How hard -- and rightly so -- it's been for Germans to wave their flag.

"To the old generation, the flag symbolized aggressive nationalism, or even some continuity with the Third Reich, even if the Third Reich didn't use that flag," said Paul Nolte, a professor of contemporary history at Berlin's Free University...

The new display of pride is almost strenuously nonnationalistic. There are even German cars that show the German flag on one side and some other flag — the Brazilian one seems popular, perhaps because Brazil is a likely opponent if the German team makes it to the [World Cup] finals — on the other side.

Just[ices] say yes to hallucinogenic tea.

The Supreme Court is back from a long break today, with Samuel Alito on the bench for the first time. There's a new opinion, in the hallucinogenic tea case:

Justices, in their first religious freedom decision under Chief Justice John Roberts, moved decisively to keep the government out of a church's religious practice. Federal drug agents should have been barred from confiscating the hoasca tea of the Brazil-based church, Roberts wrote in the decision.

The tea, which contains an illegal drug known as DMT, is considered sacred to members of O Centro Espirita Beneficiente Uniao do Vegetal, which has a blend of Christian beliefs and South American traditions. Members believe they can understand God only by drinking the tea, which is consumed twice a month at four-hour ceremonies.

I'll read the case and have more later. Here is my earlier post on the oral argument in the case:

A religious group wants to use a drug -- hoasca -- and argues that the Religious Freedom Restoration Act entitles it to an exemption from the Controlled Sustances Act. Under RFRA, the federal government must have a compelling state interest to impose a substantial burden on the free exercise of religion. The government claims an interest in preventing the drug from being diverted into other uses:

"Your approach is totally categorical,'' Roberts told government lawyer Edwin Kneedler during a one-hour argument session in Washington. If a religious group used only one drop of the drug a year, : "your position would still be the same,'' Roberts said....

Justice Antonin Scalia, who wrote the 1990 decision, pointed to an exception Congress made for peyote in American Indian religious ceremonies.

"It's a demonstration you can make exceptions without the sky falling,'' Scalia said.

Justice John Paul Stevens followed up by asking whether the use of peyote indicated that "maybe it's not all that compelling.''

Of the nine justices, Anthony Kennedy offered the strongest support for the government's position.

"It seems to me at the very least there should be a presumption that there is a compelling interest,'' Kennedy told Nancy Hollander, the church's lawyer....

Several justices, including Scalia and Roberts, questioned Hollander's contention that hoasca is exempted under the 1971 United Nations Convention on Psychotropic Substances, which aims to bar trade in illicit drugs. The U.S. is among more than 160 signatories to that treaty.

Both Scalia and Roberts, however, said Congress has the authority to override a treaty through domestic law.

"Isn't it well established that statutes trump treaties?'' Scalia asked.

Interesting! I suppose people will compare this to last term's medical marijuana case, Raich, in which the Court (including Scalia) was quite deferential to the claim that the government needs to be able to pervasively regulate a drug. But Raich was about the scope of Congress's power as against the power of the states. Today's case is about two different federal statutes, one coming after the other and capable of limiting it. The question isn't how much constitutional power Congress has, but what Congress actually did in its two statutes. If it didn't want to cut special exemptions to religious groups, it shouldn't have passed the Religious Freedom Restoration Act. If it didn't want RFRA to apply to drugs, it could have written an exception into it. But in fact, RFRA was enacted in response to a Supreme Court case that was about the failure to give special treatment to the religious use of a drug, so it's especially apt that it should apply here.

Today's opinion is unanimous (with, Alito, of course, not participating). It's written by the new Chief Justice, so I'm especially interested in reading it. I so devoutly hope to find his opinions sublimely crisp.

UPDATE: I’ve read the case, which is called Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal. The government said it has a compelling interest in the uniform application of the federal law, but Roberts slapped that down:

The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.” Congress determined that the legislated test “is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”…

We do not doubt that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA. But it would have been surprising to find that this was such a case, given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance.

There was also an argument that the government has a compelling interest in complying with the international Convention on Psychotropic Substances, which, the Court held, did in fact cover hoasca. But the government failed to present any evidence of what detriment would occur if this small group were given an exemption.

The Court tweaks the government for relying so heavily on interests represented by the Controlled Substances Act:

Congress had a reason for enacting RFRA, too. Congress recognized that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,” and legislated the compelling interest test as the means for the courts to “strik[e] sensible balances between religious liberty and competing prior governmental interests.”

We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.

I must say that I find this case quite amusing! Congress catered to religious interest groups by passing RFRA and thereby disagreeing with the way the Smith Court had read exemptions out of the Constitution's Free Exercise Clause. The Court had tried to constrain the judicial role, but Congress then forced that role on the courts with a statute. And now the Court is taking the statute seriously. They are deferring to Congress by accepting the old activist role of making case-by-case accommodations. How deliciously ironic.

Miss Penitentiary.

Just something they do in Brazil.

Post-Katrina cynicism.

Frank Rich has the essay idea of melding imagery from "The Wizard of Oz" with Katrina and its aftermath. Both begin with a big storm — tornado/hurricane — so it seems like a promising idea. And don't both involve politics? In "The Wizard of Oz," you have the big impressive leader, exposed as a sham behind a flimsy, dog-openable curtain. And in the Katrina aftermath, various political officials at various levels of government underperformed. Of course, the Wizard wasn't trying to respond to the tornado, and the various political officials who proved inadequate to the force of a hurricane had not set themselves up as phoney autocrats. They were elected officials, holding legitimate political positions, who simply failed to live up to the standard the electorate feels it deserves.

But Rich has just one key point of comparison he wants to make: Once we see the Wizard is just Professor Marvel, he can never go back to being the Wizard, and, by the same token, once President Bush — pay no attention to that mayor and governor behind the curtain — has been exposed as a fraud, nothing he can do thereafter can ever make us think of him as anything but a fraud. But, of course, this isn't true. Marvel was never a Wizard, and once we know that, we can never fall for the fakery again. But Bush really is the President, and the Presidency isn't a fraud, despite all the many mistakes the human being who tries to fill the impossibly large role will make. And Bush has made an ambitious proposal for dealing with the problems left by Katrina:

The president will ask Congress to declare the entire Gulf Coast region one big enterprise zone, qualifying for subsidized loans and tax breaks for investment and hiring. And in addition to dispatching legions of its own workers to process the paperwork, oversee the massive rebuilding effort and ensure that the billions are well spent, the government will contract thousands of private-sector workers to help them out. An estimated $200 billion in federal spending could be augmented by $60 billion in insurance payments and tens of billions of investment by individuals and firms.

Rich is dismissing all of this out of hand as just more of a pattern of indulgence in imagery and cronyism. But I get the feeling that Rich's op-ed is just more of his ongoing pattern of despising Bush, no matter what happens. Well, the little dog parted that curtain long ago. Let me turn my eyes slightly to the left — in the physical sense — and read David Brooks's column:

This is an effort to transform the gulf region, which had become a disaster zone of urban liberalism. All around the South, cities are booming, but New Orleans never did. All around the country, crime was dropping, but in New Orleans it was rising. Immigrants were flowing across the land in search of opportunity, but as Joel Kotkin has observed, few were interested in New Orleans.

Now the Bush administration is trying to change all that. That means trying to get around the corruption that made the city such a rotten place to do business. The White House is trying to do this by devising programs in which checks and benefits flow directly to recipients, not through local agencies....

His administration is going to fight a two-front war, against big government liberals and small government conservatives, but if he can devote himself to executing his policies, the Gulf Coast will be his T.V.A., the program that serves as a model for what can be done nationwide.

Is it foolish to want to be optimistic about this plan?

UPDATE: Donna Brazile went for the optimism:

The president has set a national goal and defined a national purpose. This is something I believe with all my heart: When we are united, nothing can stop us. We will not waver, we will not tire, and we will not stop until the streets are clean, every last brick has been replaced and every last family has its home back....

New Orleans will rise again. My hometown is down but not out, and with the help of every American, it will be back on its feet, bigger and brighter than ever.

Mr. President, I am ready for duty. I am ready to stir those old pots again. Let's roll up our sleeves and get to work.

Can that kid get his quarters back?

U.S. News reports that Democrats are a bit irked about how much money Kerry has left over from the campaign.

"Democrats are questioning why he sat on so much money that could have helped him defeat George Bush or helped down-ballot races, many of which could have gone our way with a few more million dollars," said Donna Brazile, campaign manager for Al Gore's 2000 presidential race.

Apparently he had much more (at least $15 million more) than he could spend. Maybe next time candidates come around asking for contributions, people won't be so ready to believe they need to stretch to send in money. You didn't even use what we gave you last time! Remember this passage from Kerry's concession speech:

And I thank your families and I thank you for the sacrifices you've made. And to all the volunteers all across this country who gave so much of themselves. You know, thanks to William Field, a 6-year-old who collected $680 a quarter and a dollar at a time, selling bracelets during the summer to help change America.



Thanks to Michael Benson from Florida, who I spied in a rope line holding a container of money and it turned out he had raided his piggy bank and wanted to contribute.

I think little William and Michael have some reason to be irked too.

What is Kerry doing these days?

He's back in the Senate, the NYT reports in this nicely written article by Todd S. Purdum:

Mr. Kerry attended the morning caucus in the Old Senate Chamber where his fellow Democrats selected the new minority leadership, in which he has no formal role, and got a warm reception and multiple ovations....



But Mr. Kerry skipped the weekly Democratic caucus lunch of chicken, salmon and salad in a meeting room off the Senate floor in favor of takeout shrimp, broccoli and green beans with a side of rice, ferried from Hunan Dynasty on Pennsylvania Avenue by his trusty assistant, Marvin Nicholson, to his cubbyhole up a winding stairway above the Little Rotunda in the Capitol's Senate wing.

Nicely observed details. Broccoli and green beans, eh? Sounds so sad and grim. New Senate Minority Leader Harry Reid of Nevada said this of the Senator who retreated for a solitary lunch in his cubbyhole:

"Senator Kerry is not a shrinking violet," Mr. Reid said. "We are looking for John Kerry to find what he wants to do.''

The news story continues:

In a parliamentary system, Mr. Kerry himself would loom as a likely leader of the opposition, but Mr. Reid already had that job locked up before Mr. Kerry could even really decide whether he might be interested. Mr. Kerry has won praise from his fellow Democrats for running a strong race, but the Senate is now as full of potential rivals as it is his supporters, especially should he decide to run for president again in four years.

I wonder what the climate in the Senate really is for Kerry right now. Sounds chilly. The Times article doesn't mention it, but Kerry has $45 million left over from his campaign, giving him a big headstart over anyone else who may want to run in 2008. One can imagine Hillary Clinton having an easy time raising a lot of money, but what about everyone else? I would not be surprised if his Senate Democratic colleagues, already struggling to make a show for themselves from the minority position, want to block him from finding a shining new role for himself in the Senate.



UPDATE: The $45 million number is from mid-October. The estimate is that the final number Kerry will report having left over is $15 to 16 million. And note note that he seems to be on the receiving end of a lot of bullying about it:

Democratic Party leaders said Wednesday they want to know why Sen. John Kerry ended his presidential campaign with more than $15 million in the bank, money that could have helped Democratic candidates across the country.



Some said he will be pressured to give the money to Democratic campaign committees rather than save it for a potential White House bid in 2008.



"Democrats are questioning why he sat on so much money that could have helped him defeat George Bush or helped down-ballot races, many of which could have gone our way with a few more million dollars," said Donna Brazile, campaign manager for Al Gore's 2000 presidential race.

Debate weary.

Yes, I'm going to live-blog/simulblog the debate tonight, but it will be from a position of debate weariness. Since national security issues are determining my vote, I am much less interested in what the candidates might say about domestic policy, which is the subject of tonight's debate. And most of the plans and promises we hear about domestic policy entail congressional activity, so nothing specific the candidates say really counts much. We already know their general tendencies. I expect a dreary round of incantations of the sort you could build a drinking game on. But the truth is you could get drunk playing a drinking game with one rule: take a drink whenever anyone says "health care."



I did read Adam Nagourney's front page piece about the debate in today's NYT, which started out, to my irritation, reading like a Kerry campaign press release. But it got interesting a few paragraphs in (maybe the editors only lean on the early paragraphs). I was surprised at this from Donna Brazile, referring to the news that "Kerry is going to turn up his efforts to portray the president as a tool of special interests":

"The reason you're hearing this tough populism is because he's underperforming with some of these groups, and this is a way of bringing it home."

I would expect Brazile to frame everything she says to try to advance Kerry's case, yet this statement plays right into the suspicion that he lacks a moral core and will say whatever is needed to get elected.

News from the horse race.

The new Gallup poll shows Bush pulling way ahead of Kerry, beyond the margin of error. Former Gore campaign manager Donna Brazile puts the best (horse) face on it: "Sen. Kerry is like Seabiscuit: He runs better from behind."



But it is Bush and not Kerry who looks energized by campaigning lately. Kerry seemed to be dragging himself through the motions yesterday. It didn't help that he was speaking to a cold, stone-faced National Guard audience. Bush, on the other hand, seemed charged up, having a grand time skewering Kerry about his most recent statements about Iraq: "The fellow I'm running against has had about eight positions on Iraq. Yesterday, in a radio interview, he tried to clear things up."



Here's the transcript of that radio interview, conducted by Don Imus. Key lines:"Do you think there are any circumstances we should have gone to war in Iraq -- any?" "Not under the current circumstances, no, there are none that I see." This, of course, blatantly contradicted many earlier statements about Iraq.



Today, Imus started off his show talking about that Kerry interview and whining, "I tried to help him." Imus and his assistants then went on about how Kerry needs to start fighting hard, which is the advice everyone offers poor Kerry. But that line about Iraq from the show is an example of trying to fight hard. The problem is to fight hard one has to take specific, strong positions, and Kerry can't do that without contradicting earlier statements and exposing himself to the kind of ridicule George Bush gleefully dished out yesterday.

"Next blog."

I love the new Blogger tool bar, especially the "next blog" feature. It's like channel surfing on TV. There's a certain pleasure to switching to the next blog and the next blog aimlessly. It's more fun than channel surfing really, because it is so unpredictable and most of the places you go are so tiny. Yet each place is a person somewhere, someone sweet or smart or nutty or ordinary. It could be anywhere in the world, especially Brazil, and it might not even say where it is, but you might be able to tell from a picture that it's right in your own home town. Often you encounter a blog with only one post, the very germ of a blog. I'm struck by how charming everyone seems: Today was a lot of fun at church. .... I inked a drawing! ... Met Steph's new kitties and they are absolutely adorable...