Things done in 2012.

1. Eating ribs in Muskogee.

2. Caught a lost dog.

3. ...

Blog project begun. Not completed.

"Obama loses Dem primary in 15 Oklahoma counties."

Beaten by Operation Rescue founder Randall Terry.

Sunset in Muskogee.

Did Oklahoma single out Muslims for disapproval?

A federal judge bars the state's Save Our State Amendment pending further proceedings.

“While defendants contend that the amendment is merely a choice of law provision that bans state courts from applying the law of other nations or cultures, regardless of what faith they may be based on, if any, the actual language of the amendment reasonably, and perhaps more reasonably, may be viewed as specifically singling out Shariah law, conveying a message of disapproval of plaintiff’s faith,” the judge wrote.

... Scott Boughton, an assistant attorney general for the state, defended the measure, saying it was only intended to keep Oklahoma judges from looking at the legal principles of other nations and cultures in applying state and federal law. When the judge asked if that had ever happened in Oklahoma, Mr. Boughton acknowledged that he did not know of an instance in which Shariah law had been invoked by the courts....

"What this amendment is going to do is officially disfavor and condemn the Muslim community as being a threat to Oklahoma."

Argument today in the case against that Oklahoma amendment:

The amendment would require Oklahoma courts to "rely on federal and state law when deciding cases" and "forbids courts from considering or using" either international law or Islamic religious law, known as Sharia, which the amendment defined as being based on the Quran and the teachings of the Prophet Mohammed.

In bringing suit, CAIR argued that the amendment violates both the establishment and free-exercise clauses of the First Amendment's guarantee of religious freedom. Awad has said the amendment passed "under a campaign of fearmongering" about Islam.

Anita Hill reemerges, as she must, to respond to the Clarence Thomas memoir.

In an op-ed in the NYT:

In the portion of his book that addresses my role in the Senate hearings into his nomination, Justice Thomas offers a litany of unsubstantiated representations and outright smears that Republican senators made about me when I testified before the Judiciary Committee — that I was a “combative left-winger” who was “touchy” and prone to overreacting to “slights.” A number of independent authors have shown those attacks to be baseless. What’s more, their reports draw on the experiences of others who were familiar with Mr. Thomas’s behavior, and who came forward after the hearings. It’s no longer my word against his.

Many people were involved in bringing Hill forward and bolstering her testimony, but it was in a situation where there was a powerful political motivation to destroy him. It was hardly the usual he-said-she-said situation. There was a huge crowd of promoters behind both of them.

In a particularly nasty blow, Justice Thomas attacked my religious conviction, telling “60 Minutes” this weekend, “She was not the demure, religious, conservative person that they portrayed.” Perhaps he conveniently forgot that he wrote a letter of recommendation for me to work at the law school at Oral Roberts University, in Tulsa. I remained at that evangelical Christian university for three years, until the law school was sold to Liberty University, in Lynchburg, Va., another Christian college. Along with other faculty members, I was asked to consider a position there, but I decided to remain near my family in Oklahoma.

I don't think Thomas's quote connotes that she lacks religious belief. Take the word "religious" in context, between the adjectives "demure" and "conservative." I think he's using the word "religious" to connote a certain type of demeanor -- perhaps someone who forgives, turns the other cheek, and judges not. (Under my interpretation, you can criticize him for stereotyping religious people.)

Regrettably, since 1991, I have repeatedly seen this kind of character attack on women and men who complain of harassment and discrimination in the workplace. In efforts to assail their accusers’ credibility, detractors routinely diminish people’s professional contributions. Often the accused is a supervisor, in a position to describe the complaining employee’s work as “mediocre” or the employee as incompetent. Those accused of inappropriate behavior also often portray the individuals who complain as bizarre caricatures of themselves — oversensitive, even fanatical, and often immoral — even though they enjoy good and productive working relationships with their colleagues.

True and important. If only the politics could be set aside. If only Hill had also addressed what happened to our perceptions about the seriousness of sexual harassment during the Clinton era, when the politics cut the other way.

***

I'll update this post when I've read through the relevant part of the memoir. When I picked up the book yesterday, I intended to go right to the part about Anita Hill, but I let myself read the first page -- "My father had broken the only promise he ever made to us" -- and got caught up in the chronological narrative.

ADDED: Captain Ed attacks Hill.

Old, unsubstantiated allegations only have credibility among those who use them for political purposes. Contrast Hill's reception to that of Paula Jones and her allegations of indecent exposure and sexual harrassment against Bill Clinton. Unlike Hill, Jones made her complaint contemporaneously, and pursued legal action through the channels that Hill espouses in this column after the incident got publicized. All of the same people who lined up behind Hill against Thomas didn't just ignore Jones, but called her every name in the book, including "trailer trash". Hill, who thinks that she helped lead an evolution in how harrassment gets treated, somehow neglects to mention Jones as part of that evolution.

Oliver Willis attacks Thomas ("absolute filth... whose odor wafts from every case he gets his grubby little paws on").

"The New York Times editors think that the phrase 'life, liberty, and the pursuit of happiness' is in the Constitution..."

Oops! But if it's a living Constitution, surely, life, liberty, and the pursuit of happiness have evolved there by now. Let's run with it! Possibly to things the NYT won't even like.

Now, what is this editorial position that needs LL&PH? Follow the logic. It begins with the realization that when the war is bad, the soldiers will go crazy:

As the Army’s suicide rate hits record levels in the Iraq war, there’s small wonder practically everyone in Congress wants to deal with the parallel emerging crisis of depressed veterans tempted to take their own lives. Everyone, that is, except Senator Tom Coburn, Republican of Oklahoma. He stands alone in blocking final passage of a suicide prevention bill in fear that the government’s record-keeping on troubled vets might somehow crimp their ability to purchase handguns.

Even the craven gun lobby should manage some shame over this absurd example of Second Amendment idolatry.

The House has unanimously approved a measure mandating the screening of all veterans for suicide risk, but Senator Coburn worries that veterans’ medical data might be appropriated by other agencies to deny that all-encompassing right to wield arms on the domestic front.

The senator’s office points to another bill near passage — prompted by the Virginia Tech gun massacre — that would encourage states to do a better job of listing mentally troubled individuals on the federal roll of risky gun purchasers. But tying these two measures together is itself evidence of defective reasoning, or at least scurrilous politicking. The Virginia Tech measure has nothing to do with veterans and affects only those Americans formally judged by a court to be mentally disturbed.

It is an eminently good thing that the anti-suicide measure would require medical specialists to keep track of veterans found to be high risks for suicide. But that’s to care for them as human beings, under that other constitutional right — to life, liberty and the pursuit of happiness. Respect for the grave sacrifices by veterans requires the Senate to strike down the Coburn ploy and hurry this vital measure to President Bush.

Why stop at soldiers? Let's have the government come around and check on everyone's sanity and then track those of us who don't meet the standard! To show we care for them as human beings.

And you know, I think whoever wrote this overheated editorial -- it's full of "defective reasoning" -- is a little funny in the head. Respect for the grave responsibilities of the editors of great newspapers requires me to recommend that President Bush send medical specialists to test and keep track of them. (And bring the soma, because this is about your right to happiness.) If there is any absurd talk about the individual's right to be let alone, even the craven privacy lobby should manage some shame.

Time to turn my back on Austin.

I need to get on I-35 and head north, out of Texas, back through Oklahoma, Kansas, Missouri... Who knows? Starting out at 6 a.m., who says I can't drive the whole way home? It's only 1200 miles or so...

UPDATE, 1 a.m.: Home!

Vlogging in from Austin.

Because vlogging's the big thing now.



BONUS: Vlogging from the road, literally.



I-35, Oklahoma, tempting fate. I've got a longer one, too big to put on YouTube, where I discuss dying in a fiery wreck and speculate about whether the video evidence would survive. If only I could figure out how to edit the video from my Sony still camera on a Mac without losing the audio track! I just know this is a clip that would set off the anti-Althousianists.

Oh, you states, don't you know we judge you by your rest stops?

Oklahoma, I'm looking at you!







(If you can't read the text on that first picture, click here.)

How do you know your child's 12-year-old friend isn't a 29-year-old sex offender?

Clearly, it's happened once:

[Neil H. Rodreick II] is also a 29-year-old convicted sex offender who kept a youthful appearance with the aid of razors and makeup.

And the men known as his uncle, grandfather and cousin, who until recently shared a three-bedroom house with him here, were not family at all, but a web of convicted sex offenders and predators, law enforcement officials say, preying in part on one another....

Though many parents have publicly praised the Surprise school’s handling of the deception, Mr. Rodreick’s enrollment has raised questions about admissions procedures, which officials at Imagine, one of the state’s largest charter schools, said they were reviewing....

While looking for Mr. Rodreick, Lieutenant Gillock stumbled upon his new life. He learned he had been posing as a 12-year-old named Casey and befriending families at a local church. He had spent the night with at least one boy, the lieutenant said, and traveled to the Grand Canyon, with Mr. Nellis in tow as his uncle, with another boy....

“He absolutely looked age-appropriate,” said Rhonda Cagle, a spokeswoman for Imagine Charter School, of Mr. Rodreick, who is listed on the Oklahoma Department of Corrections Web site as 5 feet 8 inches tall and 120 pounds. “We have several seventh-grade students who are taller and of a larger build than this individual.”

Strange that the town was called "Surprise" and the school "Imagine." Imagine no age limits/I wonder if you can... You may say I'm a dreamer/But I'm not the only one/I hope someday you'll join us... Uh... or maybe not. Imagine all the people/Sharing all the... No, no, I think imagination is not always such a good thing. Maybe we'll call the new charter school "Convention."

Anyway...

Why wouldn't this sort of thing happen a lot and go undiscovered? And now that this story is in the news, why wouldn't it give a few people some new ideas? Haven't there been several movies about adults who go back to school and pose as kids? I can only think of one: "Peggy Sue Got Married." If you think about it, Kathleen Turner plays a sex predator of sorts.



She's a grown woman, fully sexually experienced, and she goes back and interacts in sexually aggressive ways with a couple of teenage boys. Well, she's a woman, so it doesn't quite register as threatening, does it? I think there are some movies where the adult posing as a child is a male, but I'm sure -- if these are mainstream movies -- the adult male never does anything remotely sexual with a child. But the idea that an adult could pose as a child is definitely out there, and how can it not be enticing to pedophiles? Not everyone has the appearance or the skill to use this strategy, but at least one did. Why would there be only one?

Audible Althouse #41.

Here it is. The theme: food and sex...

Sleep-eating, allegedly Ambien-induced...

The dark sexual themes of "Oklahoma!" and the man who was eating potato chips while we were trying to watch "Oklahoma!"...

The way people don't know how to cook anymore, even though they like to watch TV shows like "Top Chef"...

The fact that the voice of Chef on "South Park," Isaac Hayes, has quit the show, complaining about disrespect to Scientology...

The new HBO TV show "Big Love," which is about polygamy, and the way it's led some commentators to say that accepting gay marriage will require us to accept polygamy.

(Please subscribe, but if you don't know what that's all about, or you don't have an iPod, just live stream it here.)

At the theater.

The classic Rodgers and Hammerstein musical "Oklahoma!"played at the Overture Center last night, and we were in the audience. I'd always heard about this musical. I remember being taught to sing a few of those songs back when I was in junior high school, long ago. But I had no idea what the story was, other than that it took place in Oklahoma. Based on the songs, I assumed it was a clean-cut love story. I was surprised to learn it was all about sexuality. There was one young woman who withheld her sexuality and another who gave it away freely. Each of these women had one man who loved her in a worthy way and another who loved her in a dark and slimy way. The sexually withholding woman's story was played for drama, and the sexually free woman's story was played for comedy. The characters' stories interweave through the many long scenes, until the predictable ending eventually arrives. The high point is a surrealistic ballet, the drug-induced dream of the sexually withholding woman, whose fears of rape are elaborately dramatized.

What did any of this have to do with Oklahoma? What was Oklahoma, the place, supposed to symbolize? It's the woman's body, territory that men want to move into and settle and plow. So in the end, when they are shout-singing "Oklahoma!" the real word is something they didn't put in song lyrics in 1943.

So where did the nice young virgin buy her drugs? From the Persian peddler, Ali Hakim. What do you do with an old play with a big, politically incorrect ethnic character? They played it broadly for laughs, another surprise.

Who was the most annoying person in the audience? I don't know. It was a big audience. But I'm going to nominate the old man who smuggled in a bag of potato chips and crunched on them quite audibly. You know how loud your own crunching sounds to you and how you think it's only this loud because of the way the sound waves are conducted though the bones of your skull and jaw? You're delusional if you go from there to thinking that it's inaudible to others. And chewing slowly is not a way to turn down the volume. In case you thought it was.

If you're going to eat potato chips in the theater, you might as well chew them normally. The offense is exactly the same. And, perhaps, if you've got a big ethnic stereotype in your play, you might as well play it broadly, the way it would have been played 60 years ago. Trying to make it more subtle and psychologically complex only calls more attention to it. But that's where the analogy ends. While you can't cut a major character out of a play, you could have left that bag of potato chips at home.

"American Idol" -- songs of the past few years.

The "theme" tonight is songs of the past few years, and with only six contestants left, we're going to while away the extra minutes going back to their home towns and hearing what the townsfolk have to say about how fine a person their favorite son/daughter is.

First we go back to a one-stop-light town in Oklahoma to learn that Carrie Underwood loves fuzzy-wuzzy wittle kwitters and has a mom who tears up just saying Carrie is a good girl. Said good girl trots out in tight jeans and bleats an endless, featureless country thing that involves long-held notes and that teeter-tottering dance done in a spread-legged, bent-kneed stance that the camera forces us to view from the least small-town, mom-pleasing angle. Still, it's all very chaste. And dreadful. Randy takes ten minutes telling her she was off-pitch. Paula murmurs incoherently, but seemingly in agreement. Simon -- acknowledging the ABC exposé in the offing -- says "I don't think anything you say tonight is going to make much difference, to be honest with you," then adds, "Mind you, that applies to every week."

Before the commercial, we see Bo Bice, wearing a dashiki and sunglasses, which makes me think he's decided to go a little Constantine and not take himself so seriously. Back from the break, we see Clay Aiken's in the audience. He has nothing much to say. He's "nervous." Next to him is a woman with black hair in a bun who makes a big point of turning her head away from him. Does that mean she's with him or not with him?

We learn Bo's from a small town in Alabama. He's got a house, a girlfriend, and parents named Nancy and Earl. He seems to be just the complete southern, rocker boy. There's a startling picture of him as a very skinny, guitar-playing teenager. I don't recognize this song either. Some generic rock thing. Randy and Paula praise his authenticity, which ties to the lyrics of that song I don't know.

Vonzell Solomon is from Fort Myers, Florida. She delivers mail and does karate. We see her music teacher and her two handsome brothers who are wearing big T-shirts with Vonzell pictures on them. The brother wearing the baby Vonzell picture breaks down and cries trying to say how much he loves his sister. Another song I don't know. She doesn't seem up to the range and loses some low notes entirely, but she does that end-high-and-big thing. Actually, it was pretty awful. I think she's going home this week. Randy and Paula seem to love it though. Simon? "I have a horrible feeling that wasn't as good as [Randy and Paula] thought." Yes. Too bad. I (heart) Vonzell, but I think she's going, unless Anthony or Scott falters -- which is a decent possibility.

Heather Locklear is here, with her daughter Ava. Ryan Seacrest asks Ava if she's "a big fan of the show" and she pauses: "um..." Good lord, the little girl is still a human being! She's thinking about whether it's true! She has yet to be absorbed into the vast mind of celebritydom. Fight it, Ava! Fight it! "Say yes," they tell her, and she says "yes!" Ava! Fight it! There's still hope!

Anthony Federov is from a small town in Pennsylvania, but originially from Ukraine. We see his parents Natalia and Vladimir, and Vladimir has an old boom box on his lap and he presses "play" to let us hear a recording he made of the first time Baby Anthony sang. You might think I'm totally inured to sentiment on this show by now and that I'm going to say something snide, but I'll admit that at this point, I broke down and cried!

Vladimir is almost like an Andy Kaufman imitation: "He's singin' about long, long time ago." And here's the impossibly blond and blue-eyed sweet boy, aged maybe five, standing in front of a Christmas tree. The baby voice is still playing, and now we see Vladimir wiping tears from his eyes as the camera closes in on him. Natalia (sounding like a Meryl Streep imitation): "He's our dream. His dream: our dream. I can't believe, our dream came true." Now we see the dream boy, sitting on the stage. He, too, sings a song I don't know. Face it, I don't know any of the songs of the last few years.

"I surrender"? He hits a big high note and I just want Vladimir and Natalia to be happy. Ack! This is all so sincere! Apparently, that was a Celine Dion song. Simon says: "You're a very brave man. I personally hated it." See, that's why I love Simon. His point -- basically the same point he made to Carrie -- is he hates that kind of music, but there are voters out there who love it and they'll love you.

"Fans of pouting, stay where you are. That nice freak boy is live after the break." Freak boy? Rewind! Oh, Greek boy. It's Constantine. So Scott goes last: what does that mean? Either Scott has something great this week, and they really do mean to slough off Vonzell, or they are hanging Scott out to dry.

Finally, somebody from someplace big. Constantine Maroulis, born in NYC. His father [ADDED: brother, probably] is the coolest looking guy, like somebody Egon Schiele would draw. I want to draw Constantine's dad. Constantine's dad reminds me of my father. [YET MORE: I "watched it back" and can tell you that guy who looked so much older than Constantine, but so much younger than Constantine's mother, was definitely Constantine's brother.]

Constantine, too, sings a song I don't know. He's dressed in black, wearing various chains, and he keeps kicking his foot at the low-angle camera. Let it be said, at this point, I am completely for Constantine. The question isn't whether he embodies what "American Idol" is, but that "American Idol" must embody whatever it is he is. He's completely serious and completely not serious at the same time. I love that! The judges crab about the performance. What?

Finally, Scott Savol. He's from Shaker Heights, Ohio. Aw, big Scott was a cute kid who sang "I Saw Mommy Kissing Santa Claus." You can tell from the clips Scott is the one with the poorest, hardest life. They try to put a nice slant on that, but you can tell it wasn't nice. His mom says: "He's the average Joe." Most moms go at least a few levels higher with the praise, even when there's nothing special at all.

Another song I don't know. I guess I haven't listened to new things in the last few years. It's another bland, featureless song, and within a few notes I feel they've put Scott in the last position to hang him out to dry. Scott will go home this week. A sigh of relief for Vonzell. Let's hear the judges try to bury him. Simon: "I'd pack your suitcase."

So, it will be goodbye to Scott this week. The others in the bottom three? Vonzell. Who else? I guess that's the really interesting question to be answered tomorrow night. Regular readers know who I want to see there.

A moot court day.

I agreed to serve as one of the judges in the 2005 Evans Moot Court Competition, so I drove downtown. Here's some graffiti I happened to see:



It seems like the graffiti version of this blog.

I stopped at L'Etoile Café for some coffee and a sandwich and to read the bench memo in preparation:



Here's the coffee and the memo:



Here's the sandwich:



That's "Fountain Prairie Farm Dried Cured Beef," I'll have you know. I know that will help you think about what kind of life I live here in Madison.

I needed to walk across the state Capitol Square to get to the Dane County Courthouse, and I stopped to take a picture of myself and the Capitol in a mirrored window:



The square looked pretty:



The flag was at half-staff -- not for Saul Bellow, for the Pope:



The judges congregated in a shabby jury room. I don't need these refreshments:



I looked around the jury room and thought about all the boring hours good citizens doing their duty have had to spend here. There was some reading material for them: big piles of depressingly old magazines.



There were also two books in the room: a collection of Erma Bombeck's humor columns and "A Portrait of the Artist as a Young Man."



There were a lot of very old jigsaw puzzles, including this one, half put together:



I speculate about whether the lawyers would like to know how prospective jurors put together their jigsaw puzzles and decide that the prosecution should want the kind of people who look for the edge pieces and get the frame completed first. Another "judge" asks what other way is there, and other ways are discussed: concentrating on color areas, finding a particular object in the picture, looking at the shapes of the pieces. But the shapes are nearly identical! My grandson looks for the shapes, someone says. Use a peremptory challenge on that one, I think.

The picture on the puzzle is a Norman Rockwell cover for The Saturday Evening Post from 1961:



That issue had an article on what Oklahoma wants from TV. I wonder what it said. I wonder if Oklahoma ever got what it wanted. Perhaps they wanted "The Dick Van Dyke Show," which debuted in 1961.

We went over to courtroom 2F, which was awfully shabby. [ADDED: A new Dane County Courthouse is under construction.]



Among the framed portraits on the wall were two garishly blown-up photographs of female judges:



I think about all the people who must have been depressed and scared and bored out of their skulls in this room. But soon enough, the arguments begin, and the room is ignored. The law students from various schools -- they aren't allowed to say which school -- launch into their arguments and we pepper them with questions and let them show their stuff. They're all great students who've prepared very hard and advanced in the competition.

They've had to learn a lot about the Establishment Clause and the Free Speech Clause of the Constitution, and we debate a lot about a school district's policy barring teachers from teaching "intelligent design" (or anything like it) when they teach evolution.

Tomorrow, the finalists will get to make their arguments in the beautiful room in the Capitol Building that houses the Wisconsin Supreme Court. Until then, I hope all the wonderful law students enjoy their visit to Madison. It's a lovely day, and it's always fun to be here on a Saturday night.

Cross-country driving mania.

Yesterday, I did a post on long cross-country drives, which is a special little mania of mine. The post brought this email:

I once drove straight through from (approximately) Ft. Madison, IA to Monck's Corner, SC (just north of Charleston). A bit more than 1150 miles, as I remember it, and I made it in just over 21 hours. The most amazing think about the whole trip was that, while well over 75% of it was via Interstate, I saw not one, single police car the whole way. Wonder what the odds of that are?



Also, back in the '60s, when I was younger and dumber (I hope) a fellow cadet and I drove back from the St. Louis area to Denver on the way to the Air Force Academy. We were taking his sister-in-law to Denver prior to returning to the Academy. It was a bit over 850 miles and we made the trip in a bit over 11 hours, counting all stops. That's an average of over 75 MPH, and most of Interstate 70 (or 40 or whichever one it is) didn't exist. We used mostly old US 40 between St. Louis and Denver. Other than that, it was all two-lane highway. Once when we stopped in Kansas for gas, I went to check the oil and popped the hood. The engine block was glowing a dull orange. I figured since the oil pressure gauge was registering good pressure I really, really didn't need to touch that dipstick. We were driving a 327 '65 Chevy Impala with a Muncie 4-speed. We drove US 40 in the middle of the night pretty much flat-out, pedal to the metal, and the speedo registered pegged. Don't know how fast we were actually going. Plus 100 MPH, for sure. Nice car. Wish I still had it.

Yikes! A glowing orange engine. In the middle of Kansas. I've gotten myself in trouble a few times driving. I've made some mistake that I still shudder to think about. Like the emailer, I've driven very long distances -- from Orlando to Madison -- without seeing one police car. Now, I'm thinking I'd like to do another long drive again. Kansas is one of the states I've never been to. I'd like to drive through all the states, including Alaska (and some day I'll get to Hawaii). I could hit the most as-yet-undriven-through states if I did a northwestern trip: North Dakota, Montana, Idaho, Washington, Oregon. If I did that, then the only states I haven't visited, aside from Alaska and Hawaii, would be Kansas, Oklahoma, Arkansas, and South Carolina. My all-time favorite drive was through Death Valley. Also great: the Badlands. And it is just great fun driving across Nevada on Route 50 --the "loneliest road in America" the signs posted along the way tell you. It's nice to do the two-lane blacktop through the desert. I also loved driving from Boulder to Sante Fe, especially the Arkansas Basin and the northern New Mexican landscape that let me know I'd overestimated Georgia O'Keeffe's powers of imagination.



That email reminded me that I used to drive an Impala, a 1961 seafoam green convertible. My father had bought it new and passed it on to me when he bought another car a few years later. I now realize what a fabulous classic car I drove to high school every day in the late 1960s. I also realize that I need a new car now to do the kind of driving I like! I loved my New Beetle when I got it five years ago, but the fun has worn off. Yesterday, I got a big black envelope in the mail, obviously an advertisement.



"What the hell is this? Chevrolet is wasting money sending me a big advertisement. What's the point of putting it in this big envelope?" I say with my usual outrage that anyone would dare to send me an advertisement in the mail and amazed that they would put it inside an envelope, which would normally end up in the trash, unopened.



"You're opening it," said Chris, making me laugh.



"Oh! It's for Corvette!" I say and pretty soon I am literally petting the glossy pages of the brochure. Within the minute, I'm checking out the Corvette websites, trying to find a price, discussing with Chris the problem of a person with two sons buying a car with no backseat, and comparison shopping for an Audi TT Coupe, which does have a place to put a third and fourth person in a pinch. "Mmmm ... what color?"



"Red! Then you could sing 'Little Red Corvette.'"



"If I got red I would think the song 'Little Red Corvette' whenever I was in the car. Every time I parked it, I'd think about parking it 'sideways.' Much as I love Prince, that might get a little annoying. Plus, if I got a red car, I'd have to have my house painted. Or move."



"Black."



"Or blue. I like the blue ... this particular blue. I'm really quite opposed to most blue, especially for a car. I object to a blue car, as a general principle. But this blue -- 'Le Mans Blue Metallic' -- I like that!"

"17½-year-olds vary widely in their reactions to police questioning, and many can be expected to behave as adults."

So writes Justice O'Connor, concurring and providing the fifth vote, in today's Supreme Court opinion, Yarborough v. Alvarado. The Court leaves in place a state court conviction and reverses the opinion of the Ninth Circuit, which would have required a new trial excluding the statements that were given without Miranda warnings. Under the Antiterrorism and Effective Death Penalty Act of 1996--an omnibus congressional reaction to the Oklahoma City bombing--federal courts can only grant habeas corpus if the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” The Supreme Court has cases saying when Miranda warnings are required, but none of them make the defendant's age a factor. The state court only has to get the clear rules of law from the Supreme Court cases right and then not apply them in a way that is unreasonable. The cases in question required police to follow an objective test of whether the person being questioned would feel free to leave. Justice Kennedy, writing for the majority, concentrating on keeping the test objective, thought that "consideration of a suspect’s individual characteristics–including his age–could be viewed as creating a subjective inquiry." Thus, it wasn't "unreasonable" for the state court to fail to make any reference to the defendant's age.



Justice Breyer dissents, joined by Justices Stevens, Souter, and Ginsburg:

Alvarado’s youth is an objective circumstance that was known to the police. It is not a special quality, but rather a widely shared characteristic that generates commonsense conclusions about behavior and perception. To focus on the circumstance of age in a case like this does not complicate the “in custody” inquiry. And to say that courts should ignore widely shared, objective characteristics, like age, on the ground that only a (large) minority of the population possesses them would produce absurd results ....

UPDATE on the theory that some reader somewhere wants some opinion on the subject: This 5-4 split is a very old rift for the Court, which goes back far beyond the 1996 Act that gave the Justices some new terms and some new Congressional intent to take into account. Since at least the mid-70s, the Court has been split over what the role of the federal courts is in habeas cases for state prisoners. To put it simply, one side of the Court views the lower federal courts as having a role similar to the U.S. Supreme Court, making up for the fact that only a very few criminal cases will be heard by the Supreme Court on direct review. They think that the lower federal courts ought to serve as a surrogate for the Supreme Court, redoing the work of the state courts and correcting for mistakes in the articulation and application of law. The other side of the Court thinks that direct review is different from habeas review, and that the lower federal courts, exercising their habeas jurisdiction, should leave state court decisions as the last word unless a particular state court's performance is too far out of line (for example, to use the terms of the 1996 statute, if the state court missed the clear Supreme Court case law or applied it unreasonably). There are very basic differences about federalism here. One side mistrusts the state courts and thinks the federal courts are needed to ensure that there isn't a systematic underenforcement of federal constitutional rights. The other side thinks the state courts basically deserve respect as courts and the role of the federal courts should be to serve as a corrective only when state courts show some sign of not taking its duty to enforce federal law seriously enough. You might think the intrusion of Congress in 1996 into the whole longstanding debate would have resolved this conflict, but, quite interestingly, it hasn't. Congress has the constitutional role to make the statutes that govern federal jurisdiction, but the courts have to interpret those statutes, and the tendency to see in jurisdiction statutes what one thinks federal jurisdiction should be is very strong.

Misreadings.

Tonya has some thoughts on blog comments generally and specifically on my experience with them. She notes that the main problem she's had with comments has been readers misreading her (including not getting the humor). That reminds me of something I had wanted to say about the comments. It is actually something that bothers me as much as the rudeness and the use of personal attacks instead of substantive arguments. It is how badly people read!



This is a matter I notice as a law professor too. Being a lawprof offers many occasions for seeing how poorly people read. Even in a class of well-qualified students (something I feel sure of based on my Admissions Committee work), where the students have a strong motivation to read the cases carefully in preparation for class, I am continually surprised by how little of what is written is understood. Even before going more deeply into the context of the cases and the motivations of the decisionmakers, students find it hard simply to restate the reasoning laid down in the text. Even when sentences are read out loud in class, many students cannot then paraphrase what the text means. On exams, I beg the students to answer the question asked. I write several times in the text of the exam: "Remember, you can only receive credit for answering the question asked." Yet many students seem to read the question and derive only a general idea of the area addressed and launch into a flow of verbiage that is in no way aimed at the precise question.



The experience with comments on this blog has reinforced my belief that people are not reading with a clear head. I don't think I'm encountering unintelligent people (especially in the case of the students). I think people read with their emotions: they know what they want to see or what they are afraid someone might be saying, and their emotions take over the processing of the words they are looking at. Emotion is a necessary component of human thought, and we could not do without it, but part of education must be controlling the freeform flow of emotion long enough to see the words on the page. I realize every word means what it means because it is absorbed into an individual person's subjective mind, but people need to discipline themselves a bit to fend off the misreadings and misunderstanding that constantly pull us away from the mind of the writer we read to encounter.



For as long as I can remember, I have felt frustrated by how slowly I read compared to other people. I have though known a few other people, people I respect very much, who share the same frustration. Yet I also know the feeling of just glancing at an article and believing I know what it says. I know we can't spend our lives ponderously laboring over other people's sentences. But we need to be aware of when we are really reading without risk of misunderstanding and when we are being reckless. Certainly, there are times when we need to read accurately, such as when reading an exam question or before attacking something someone has written. Learning to read and reading well are a constant struggle. The author's ideas don't just pop into your head when you look at the words. A large part of what appears in your head is your own thinking, and of course, the main reason to read is to develop your own mind. You want to cause thoughts of your own. One reason for reading slowly is to stop and think (or blog about) your own thoughts. But you're misreading if you can't tell the difference between your own thoughts and the writer's.



UPDATE: Chad Oldfather of Oklahoma City University School of Law emails:

Even though I never got around to leaving a comment (I started to one time, and somehow via the registration process ended up instead with a blog of my own that I’ll probably never use), I’m sad to see your comment function go. ...



I couldn’t agree more with your Misreading post.  I’m also continually struck by the number of times I encounter suggestions that what appear to be epic scholarly debates might have at least something to do with mutual misreading.  One example is Posner-Dworkin.  I’ve seen both of them accused of failing to understand what the other has written.  I see this sort of thing all the time.  Then it makes me wonder, like you: Is this how it is that everybody else seems to be able to read so fast?  And then: Is this why so much scholarly debate often appears less like debate and more like people talking past one another?