"Dems Nominate Anti-Gay Conspiracy Theorist for Senate."

"Mark Clayton... finished on top of a crowded primary field in the race to take on GOP Sen. Bob Corker this fall."

He earned 26 percent of the vote despite raising no money and listing the wrong opponent on his campaign website....

On his issues page, Clayton sounds more like a member of the John Birch Society than a rank-and-file Democrat. He says he's against national ID cards, the North American Union, and the "NAFTA superhighway," a nonexistent proposal that's become a rallying cry in the far-right fever swamps. Elsewhere, he warns of an encroaching "godless new world order" and suggests that Americans who speak out against government policies could some day be placed in "a bone-crushing prison camp similar to the one Alexander Solzhenitsyn was sent or to one of FEMA's prison camps."

What's going on in Tennessee? One explanation is Clayton's name appeared first on the ballot.

Note: The Democratic Party has "disavowed" him, whatever that means.

"Satan is content in letting us profess Christianity."

"As long as we don't practice it."



Canah Chapel, Freewill Baptist Church, is in Erwin, Tennessee.

But we weren't there either to profess or practice Christianity. We went here...



... to pee, drink coffee, and access the internet. Satan let us do all that, but we don't know whether or not he was content. I understand why Satan — if he existed — would be happy to see folks professing but not practicing Christianity. I think he wouldn't care one way or the other about urination, but that he'd be pleased to see us drinking coffee, even as I think God gave us coffee in the hope that, energized, we'd turn to the good.

As for the internet, I'd say it depends on which websites you go to, and the subtle preferences of God and Satan are unknowable to us, but perhaps they are both keeping track of the entire history of all of our website visits and that we'll be called to account in the end.

But it was not the golden arches anymore than the cross that got us to take that exit. It was the sign for the Andrew Johnson National Historic Site. But then another sign said it was 31 miles away, and Satan made us go to McDonald's instead. This morning — the morning after — I sorrowfully regret not making the pilgrimage to the dishonored President's place of honor.

"Want to go back?" Meade says. No, no, we've gone too far ahead. We got all the way to Berea, Kentucky last night, where we walked around until night fell...

"The Couch"? Is that a place where you can go swingin' on the flippity flop?

Glenn Reynolds writes:

IT MAY NOT HAVE BEEN ACCURATE, but it was smart! Allison Glock's New York Times piece on Knoxville contained this introduction: "KNOXVILLE is often called 'the couch' by the people who live there. It’s a place too unassuming to shout about but too comfortable to leave." That's a nice intro, but nobody in Knoxville can remember ever hearing it called "the couch." But thanks to that bit, Glock's story is the most-blogged item in the Times at the moment. My advice to travel writers -- always open your point with a minor error that's sure to get under local bloggers' skins, and watch your traffic and rankings soar!

Oh, if only we could have been blogging back in 1992, when the New York Times published the ludicrous "Grunge: A Success Story," by Rick Marin:

LEXICON OF GRUNGE: BREAKING THE CODE

All subcultures speak in code; grunge is no exception. Megan Jasper, a 25-year-old sales representative at Caroline Records in Seattle, provided this lexicon of grunge speak, coming soon to a high school or mall near you:

WACK SLACKS: Old ripped jeans

FUZZ: Heavy wool sweaters

PLATS: Platform shoes

KICKERS: Heavy boots

SWINGIN' ON THE FLIPPITY-FLOP: Hanging out

BOUND-AND-HAGGED: Staying home on Friday or Saturday night

SCORE: Great

HARSH REALM: Bummer

COB NOBBLER: Loser

DISH: Desirable guy

BLOATED, BIG BAG OF BLOATATION: Drunk

LAMESTAIN: Uncool person

TOM-TOM CLUB: Uncool outsiders

ROCK ON: A happy goodbye

Of course, Megan Jasper was just horsing around — she made the whole thing up — and the New York Times fell for it. You'd think, after all the embarrassment, they'd be really careful about reporting slang.

CORRECTION: (Just when I'm pointing out mistakes!) I've corrected the spelling of Marin's name.

"Something weird and cultish in the sycophantish cathexis onto Hillary of the many nerds, geeks and vengeful viragos who run her campaign..."

It's Camille Paglia (who admits she's "leaning" toward Obama). She's got her sights set on Hillary Clinton, and it's going to get ugly, with the hurling of dangerous words like viragos and cathexis and — my personal favorite — "sycophantish":

Aside from the stylish Huma [Abedin], there's definitely something weird and cultish in the sycophantish cathexis onto Hillary of the many nerds, geeks and vengeful viragos who run her campaign -- sometimes to her detriment, as with the recent ham-handed playing of the clichéd gender card. I suspect the latter dumb move, which has backfired badly, came from Ann Lewis (Barney Frank's sister), a fanatical Hillary true believer who has been spouting beatific feminist bromides about her for the past 15 years.... Hillary seems to have acolytes rather than friends...

Paglia goes on to lavish compliments on Dianne Feinstein — she's "shrewd" and "steady" — why can't she be the first woman President? Feinstein speaks with "silky ease" and has "true gravitas." Paglia also strokes Nancy Pelosi, who has a "relaxed, resonant realism" and speaks in a "low purr." Pelosi purrs but Hillary's got that "tight-wound, self-righteous attack voice" and that "flat, practical, real-life voice."

But there are no big conclusions here about Hillary. Just an expression of that vague irritation we all feel. (Don't we?) But I wonder if this is the reaction we would have to any woman who got realistically close to the presidency. And I'll bet that's the sort of thing Ann Lewis says behind the scenes, but that doesn't make it wrong.

Paglia lights into Ellen DeGeneres for her "cringe-making on-air meltdown over a dog":

Following Rosie O'Donnell's professional collapse amid lunatic rants and operatic kvetching, this has been a terrible year for Hollywood lesbians' public image. It's as if when the butch mask drops, there's nothing inside but a boiling candy kettle of infantile rage and self-pity.

Butch up, girls, says Camille. But don't forget to keep that voice at a low purr.

She's got this on global warming:

This facile attribution of climate change to human agency is an act of hubris. Good stewardship of the environment is an ethical imperative for every nation. But breast-beating hysteria merely betrays impious tunnel vision. Thousands of factors, minute and grand, are at work in cyclic climate change, whose long-term outcomes we cannot possibly predict. Nature should inspire us with awe, not pity.

That's a nice twist. Our arrogance lies not in thinking we can indulge ourselves in our carbon-spewing ways — as we're commonly told — but in thinking we move Nature. It's impious to think of ourselves that way.

On Norman Mailer:

I didn't care about his novels -- I don't care about any novels published after World War II (Tennessee Williams is my main man) -- but I was impressed by Mailer's visionary and sometimes hallucinatory first-person journalism. And I was directly inspired by his eclectic "Advertisements for Myself" (1959), which I took as a blueprint after my first books were attacked by the feminist establishment in the 1990s.

I will immediately go read "Advertisements for Myself"!

Mailer's "The Prisoner of Sex" (the original 1971 Harper's essay, not the book) was an important statement about men's sexual fears and desires. His jousting with Germaine Greer at the notorious Town Hall debate in New York that same year was a pivotal moment in the sex wars. I loved Greer and still do. And I also thought Jill Johnston (who disrupted the debate with lesbo stunts) was a cutting-edge thinker: I was devouring her Village Voice columns, which had evolved from dance reportage into provocative cultural commentary.

Ah, yes, I remember. How we hated Norman Mailer in those days. From this distance, I rather admire him for making himself as a vortex for feminist hate. He got into the center of things the only way he could.

[O]ne of the lousiest things Mailer ever wrote was his flimsy cover-story screed on her for Esquire in 1994. It was obvious Mailer knew absolutely nothing about Madonna and was just blowing smoke.

Because he neglected to read Paglia's musings on the subject, no doubt.

Guess what -- Esquire's original proposal was for me to interview Madonna. Mailer was the sub!

Ha ha. What a transcendent brag! I especially like the use of the word "sub," with its insinuation of phallic gigantism. Paglia has the bigger... writing talent.

Next, Paglia has a reference to my favorite movie:

Penthouse magazine had similarly tried to bring Madonna and me together, as had HBO, which proposed filming a "My Dinner with André" scenario of the two of us chatting in a restaurant.

Camille is the André, of course. Madonna would have to be the Wally.

But Madonna, no conversationalist, always refused.

Damn! Madonna just needed instruction on how to play the listener, like Wallace Shawn. "My Dinner with André" begins Wally's voiced-over anxiety about he is about sitting through a whole dinner with André Gregory. He resolves to get through the experience by, essentially, interviewing him. But Madonna's problem was not — I suspect — that she wasn't good enough at talking, but that she didn't fancy herself enduring a long outpouring of Paglia's thoughts about everything. To be a good Wally in a "My Dinner With André"-format movie, you have to wait while the other person has most of the lines, then finally, when the audience can't take it anymore, say "You want to know what I think of all this." And then charm us to the core with a few lines that we will remember for decades.

Hey, remember the time Camille Paglia refused to have dinner with me? I wrote a post about it called — of all things! — "My Dinner With Camille."

"What do you think about that?"

I'm sorry I didn't get the chance to weigh in on this yesterday, but everybody's talking about Senator Larry Craig. The story:

Sen. Larry Craig (R-Idaho) was arrested in June at a Minnesota airport by a plainclothes police officer investigating lewd conduct complaints in a men’s public restroom... On Aug. 8, he pleaded guilty to misdemeanor disorderly conduct...

After he was arrested, Craig, who is married, was taken to the Airport Police Operations Center to be interviewed about the lewd conduct incident, according to the police report. At one point during the interview, Craig handed the plainclothes sergeant who arrested him a business card that identified him as a U.S. Senator and said, “What do you think about that?” the report states....

What do I think about that? I think the fact that he did that suggests it works sometimes to get him off the hook. It certainly shows that he thinks it can and he's willing to use his power that way. He should resign for that alone.

[Sgt. Dave Karsnia, a plainclothes officer,] entered the bathroom at noon that day and about 13 minutes after taking a seat in a stall, he stated he could see “an older white male with grey hair standing outside my stall.”...

“I could see Craig look through the crack in the door from his position. Craig would look down at his hands, ‘fidget’ with his fingers, and then look through the crack into my stall again. Craig would repeat this cycle for about two minutes,” the report states.

Craig then entered the stall next to Karsnia’s and placed his roller bag against the front of the stall door.

“My experience has shown that individuals engaging in lewd conduct use their bags to block the view from the front of their stall,” Karsnia stated in his report. “From my seated position, I could observe the shoes and ankles of Craig seated to the left of me.”

Craig was wearing dress pants with black dress shoes.

“At 1216 hours, Craig tapped his right foot. I recognized this as a signal used by persons wishing to engage in lewd conduct. Craig tapped his toes several times and moves his foot closer to my foot. I moved my foot up and down slowly. While this was occurring, the male in the stall to my right was still present. I could hear several unknown persons in the restroom that appeared to use the restroom for its intended use. The presence of others did not seem to deter Craig as he moved his right foot so that it touched the side of my left foot which was within my stall area,” the report states.

Craig then proceeded to swipe his hand under the stall divider several times, and Karsnia noted in his report that “I could ... see Craig had a gold ring on his ring finger as his hand was on my side of the stall divider.”

Karsnia then held his police identification down by the floor so that Craig could see it.

“With my left hand near the floor, I pointed towards the exit. Craig responded, ‘No!’ I again pointed towards the exit. Craig exited the stall with his roller bags without flushing the toilet. ... Craig said he would not go. I told Craig that he was under arrest, he had to go, and that I didn’t want to make a scene. Craig then left the restroom.”

What a sad, pathetic scene! It's awful that public bathrooms -- especially in places like airports -- are used for sexual activity. The police have to figure out how to drive this activity elsewhere. Karsnia has a tough job, but he seems to handle it with efficiency and as much dignity as you can when it involves sitting on a toilet and letting someone watch you through the crack in the door.

Craig has a difficult moral problem if, as it seems, he has a gay sexual orientation, but he has chosen to marry a woman. Cheating on his wife and obtruding on the bathroom-going public is no way to deal with his predicament. It's especially ugly if he's taking this miserable course in order to maintain his grip on political power with an electorate that wouldn't tolerate him if he lived his life openly and honestly.

Worst of all, to my mind, is the proffering of the business card and the "What do you think about that?"

UPDATE: I see Glenn Greenwald is attacking me about the Senator Craig story:

The reaction to the Larry Craig story provides one of the most vivid illustrations yet of how the right-wing movement works. Last October, just weeks before the midterm election, gay activist Mike Rogers reported that the married, GOP "family values" Senator repeatedly had sex with anonymous men in public bathrooms. His report was based on "extensive research," including interviews with several men whom Craig solicited for bathroom sex.

As Rogers argued at the time, the story was relevant -- just as the Vitter prostitute story was -- in light of Craig's frequent political exploitation of issues of sexual morality and his opposition to virtually every gay rights bill. Rogers' story, as a factual matter, seemed relatively credible, both because of his history of accurate outings and because there is no discernible reason why, if he were intent on fabricating, he would single out someone as obscure as Larry Craig, who was not even up for re-election....

Among right-wing pundits -- weeks before the election -- there was nothing but support for Craig and outrage over the reporting of this story. The most hysterical outrage of all was from Glenn Reynolds, who went so far as repeatedly to predict -- literally -- that the country would be so repulsed by Rogers' reporting that it might actually swing the election in favor of the Republicans. More absurdly still, Reynolds cited a grand total of two reasons why he voted for GOP's Bob Corker over Harold Ford in the Tennessee Senate race, one of which was actually Rogers' report on Craig ("the sexual McCarthyism from the pro-outing crowd . . . . has convinced me that [Democrats] just don't deserve a victory with those tactics").

As usual, Bush-supporting bloggers like Ann Althouse and Patterico dutifully echoed Reynolds' line: "I truly believe this sort of tactic is going to create a backlash."

So this is a link back to something I wrote in October 2006. I have to go back and check because I don't remember writing about Craig before. Here's the old post:

"Lefty Blogger Outs Senator As Gay."

Patterico notes. Captain Ed comments.

Kos is taking a poll. "Do you agree with outing Gay Republicans?" 70% say "yes. But don't you think this percentage would change if the strategy backfires? I think aggressive characters like our "lefty blogger" think that uncovering gay Republicans will disgust social conservatives and change their voting behavior. They might also believe that they are demonstrating hypocrisy and that doing so will motivate Republicans to abandon social conservatism. I would like to see Republicans abandon social conservatism, and I'm not cheering on these slimy outings. But, honestly, I think these creepy, gleeful efforts at outing will only make social conservatives more conservative, and they will continue to look to the Republican party to serve their needs.

Well, this isn't about Senator Craig or sex in public bathrooms. (And it doesn't link to Glenn Reynolds either.) This is about the general practice of outing gay Republicans, which I find offensive. Moreover, I didn't even say that I thought this would produce a backlash. I said that lefties wouldn't use this tactic if they didn't think it would stimulate homophobia and turn voters away from socially conservative Republicans. Of course, I am hoping the tactic backfires and that the voters are not really homophobic. This is a longstanding theme here, and Greenwald either can't understand it, won't take the time to see what I'm saying, or is deliberately misstating what I say in a low, sleazy attack. Which is it?

Let's see if Greenwald apologizes and corrects his post. Now that he can see how inaccurate and inappropriate his attack is, a failure to correct is outright deceit.

Also, Greenwald's post is incredibly boring and windy. Maybe he actually can't understand things that aren't blathered about at great length. Ugh!

NEXT DAY UPDATE: Over 300 comments, and I know some of them are abusive. I'm not able to comb through and delete, so I apologize to readers who find some of this offensive. Please try harder to argue with each other in a way that doesn't involve name-calling. And don't use the F word!

Live-blogging the Democratic debate.

1. Just waiting for this thing to kick off. I'll add to this post, numbering the paragraphs as I go.

2. Intro, from some YouTube clip. Richardson looks terrified. Clinton, resolute. But now, it's Anderson Cooper, in the flesh. Couldn't someone have Tubed him? Biden glistens. Cooper blabs about how the questions were "heartfelt" so they had trouble choosing. Now, he's showing some cute clips that aren't chosen. Cooper cruelly slams some 5-year-old girl for being a puppet of her parents. And he hilariously slams the Biden campaign for its trick getting a lot of YouTubers to ask the same question.

3. Question 1: Politicians always make promises, but then they don't do anything. How will you be different? A good meta question. Unfortunately, we're getting an answer from Dodd. He got the job done in the Senate. Fine, but who cares about Dodd? Ah, now Obama. We need to "change how business is done in Washington." He brings "perspective" -- the perspective that we need to change.

4. Question 2, for Kucinich. How would we be better off with him? Why'd CNN pick this question? I think we know. They're packaging up li'l Dennis to set him aside for the rest of the night.

5. Kucinich is wearing a checked shirt. The hell? What male wears a checked shirt?! Hillary was "involved in the question," so Cooper throws it over to her. Wow! She's wearing an orange jacket textured with curving, scalloped lines. It reminds me of a chair we had in the 1950s, but it actually looks rather pretty and definitely sets her apart from the guys who absolutely are not free to wear orange suits. She speaks in a solid, stern voice that has nothing to do with wavy orange patterns. She speaks in a straight, navy blue line. Obama gets included here too, and he's elegant in a gray suit and a blue tie. His gestures look flowing as I scroll through them in slo-mo, looking for the perfect frame to post here. Just wait a few minutes.



6. Hillary is asked to define "liberal" and to say if she is one. She doesn't like what other people have done to the good old word, so she prefers "progressive." The problem with "liberal" is that people think it means government will do everything for you, but "progressive" seems to be about giving people "tools" to better themselves. Cooper throws it to Gravel. Is he a liberal? He lights into Obama for taking money from lobbyists.

7. The next question gets applause: What if they had to pick a Republican running mate? Who would it be? Biden fails to answer the question. He just lists his accomplishments. Edwards says Chuck Hagel, then brushes the question aside and runs through his issues. No one else gets the question! Blah! Cool question. Crap nonanswers. [ADDED, reading the transcript: Biden did blurt out "Chuck Hagel" before going on about his accomplishments. The Edwards just copied him.]

8. Should African-Americans get reparations for slavery? Edwards: no (but blah, blah, blah other stuff about African-Americans). Obama cleverly says the reparations should be "investment in our schools." Cooper asks the whole group. Kucinich comes forward, and his answer begins "The Bible says...." Yeesh! Imagine if a Republican started an answer that way.

9. Richardson's first chance to speak is about Hurricane Katrina. Unfortunately, he seems robotic and looks awful -- afraid to spend money on makeup? -- and I feel like I'm watching the man -- whom I respect -- slip into oblivion.

10. "Not my question!" Cooper proclaims as he repeats a question from a black man to Obama: What about the way they're saying you're not "authentically black"? Obama refers to trying to catch a cab, that is, he reminds us he's been subjected to bias because of the way he looks to people who don't know anything about his ancestry and upbringing. He then segues to talking about how he's concerned about race issues. Clinton is then asked about being a woman. "I may be able to break that hardest of glass ceilings." For some reason, this line touches me, and I've been steely toward Clinton as she's played the sex card in the past. She's running not as a woman, she says (now!), but because she thinks she's the "best person." But she ends saying her taking office would send a nice message to "a lot of little girls and boys around the world."

11. Cooper asks Edwards about the way his wife says he's better for women than Hillary is. He talks about poverty, wages, and health care.

12. Two lesbians ask if they should be allowed to marry. Kucinich, of course, says yes. Dodd blathers about how one ought to treat people who happen to have a different sexual orientation but then says "civil unions" and denies marriage. Richardson would do "what is achievable" -- and that is civil unions. He volunteers that he'd reject "Don't ask, don't tell."

13. A reverend asks about the way religion is used to deny rights to gay persons. Edwards goes first and says he feels "enormous conflict" about the issue and he's been on a "journey" about it. His wife supports gay marriage though. I'm really skeptical about this notion that a candidate's spouse can represent positions for him, so that he gets to seem somehow sympathetic to it when he's not for it. What if President Bush tried to appease people who don't like the war in Iraq by telling us that Laura was actually opposed to it? We'd just laugh at him! The reverend turns out to be in the audience, and Cooper asks him how he liked the answer. Edwards now admits that it's wrong to use religion as the basis for denying gay people their rights.

14. What are they thinking?



Clinton: I've got the nomination in my clutches.

Obama: I'm in this!

Richardson: I'm doomed. Either that or he's catching up on his reading and doesn't know he's doomed.

15. How do we pull out of Iraq now? Even if you opposed the war to start. It's like leaving a newborn baby to take care of itself. Obama says we should "be careful" getting out but also that we need to make it clear that "there is no military solution."

16. A mother of a soldier asks why the Congress hasn't stopped the war yet. Are the Democrats holding back for fear of getting blamed for losing the war? This question gets applause. Clinton goes first. No real answer. Kucinich lights on fire: All we need to do is cut off the funds. We can do it! Then Dodd flares up. Iraq is keeping us from saving Darfur. Sure. Richardson says he's different. Bring all the troops home by the end of the year. The war is a "quagmire." "It's endless." "Get it done."

17. Gravel yells that all the soldiers who died in Vietnam died in vain, because "you can now go to Hanoi and get a Baskin-Robbins ice cream cone." And now, in Iraq, they are all dying in vain! Cooper throws it to Obama: Have all the soldiers in Iraq died in vain? Obama switches to the issue of going into Iraq. Cooper refocuses him, and he says no. Soldiers never die in vain (somehow). Edwards gets the question, and he too realizes he's got to deny that the soldiers die in vain.

18. Should women have to register for the military at age 18 the way men do? Yes: Dodd, Clinton, Edwards, Gravel.

19. Nice question for Clinton: How will you be effective with the Arab states when they are so biased against women? Oh, they'll take her seriously, she tells us. In fact, just having a woman President will be an effective statement. I like that. And I'd kind of like to see that.

20. They go to extreme closeup for Edwards for some reason:



21. Would you meet -- "without precondition" -- with the leaders of Iran, Venezuela, Syria, Cuba, North Korea? Obama: "I would!" Hillary: "I will not promise..." You don't make promises like that without knowing more about how it will be used. She's got the more responsible answer, clearly. Edwards: "Yes," but Clinton is right. A little fence-straddling. And this is the precise point in the debate where I conclude -- I'd been toying with the conclusion -- that Clinton is the superior candidate.

22. "How many family members do you have serving in uniform?" asks a man with many military deaths in his family. The answers devolve into more talk about the plan to withdraw troops.

23. "Who was your favorite teacher and why?" Gravel claims some brother recognized his "dyslexia." Come on! Who talked about "dyslexia" back when Gravel was a kid? Obama had a teacher who made him feel special for having lived outside of the country. Biden talks about a priest who taught him something about the greatest sin... and his microphone malfunctions, so we don't really hear it. Edwards had a teacher who taught him that a guy could have a daddy who worked in a mill and .... blah blah blah... teacher wants li'l Johnny to be President.

24. A question about No Child Left Behind is written on a series of placards, "Subterranean Homesick Blues"-style. Richardson would scrap it -- and give teachers a $40,000 a year minimum wage, emphasize math and science, and have a "major federal program" for "music, dancing, sculpture, and the arts." Finally! A President who cares about sculpture. Biden: No Child Left Behind -- which he voted for -- was "a mistake." "Ya need better teachers." No kidding!

25. Would you send your kids to private school? Edwards: His kids all went to public school. Hillary: Chelsea went to public school "until we moved to Washington." "The press would never leave her alone." Obama: His kids went to a private school because it was near their house. Most in-your-face answer of the night, from Biden: "My kids did go to private school. It's because right after I got elected my wife and daughter were killed. I had two sons who survived." His sister helped him with those sons and sent them to Catholic school. He looks a little pissed off at having to talk about this. The poor man. Did you remember his terrible tragedy? Kucinich: Public school! Gravel: Both. Competition is good! Dodd: Veers off topic and lectures us about whatever. [ADDED, on reading the transcript: Biden's sister brought the sons to the Friends school, and later, he sent them to Catholic school.]

26. Sex education. Obama gets a chance to respond to Romney, who recently criticized him for saying he supported age-appropriate education for young schoolkids. He gives the right answer: Kids need to know if someone is "encroaching on their privacy."

27. They get really YouTubish with two Tennessee guys who ask whether all the press about Al Gore running hurts y'all's feelins. This gives all the candidates a chance to display their best, big, toothy smiles. No actual answers, just another video, a snowman talking -- in the style of Mr. Bill -- about Gore's big issue, global warming. Then, there's a cute video about energy conservation. Gravel says tax people on what they spend, not what they earn. Dodd wants to take us down to a 55 mile an hour speed limit, Jimmy Carter-style.

28. Nuclear power. Edwards: No. He's for "bio" fuel. He's against liquefied coal, because it's a "carbon-based" fuel. Like his "bio" fuel isn't. Obama: We should "explore nuclear power." Clinton: She's "agnostic" about nuclear power. "It can be a win-win if we do it right."

29. Would you work -- as President -- for the minimum wage? Edwards and Clinton -- totally rich -- both say sure. Obama is nicely set up to point out they're rich... even though "We don't have Mitt Romney money."

30. Why not make everyone pay Social Security taxes on all of their income? Dodd says yes. Obama won't answer. No one else speaks.

31. Damned Baby Boomers... raise taxes or cut benefits? Richardson talks about diabetes. No one else speaks.

32. A Virginia guy strums a guitar and sings about taxes. He doesn't like them. Only Biden answers, and he deserves credit for admitting that the government needs your money, but then he does the standard Democratic thing of saying he'd just take away the tax benefits the rich folks have.

33. Another question about Democrats and taxes. Only Kucinich answers.

34. Cooper prepares us for a barrage of questions about health care. Edwards shows his trial lawyer stuff wringing sympathy out of us with the story of a man who couldn't speak because he couldn't afford surgery that would restore his speech. Hillary wants "decency and respect" for everyone.

35. God and guns. One guy shows a quarter and recites the motto "In God We Trust." Biden's okay with it. Another guy says he doesn't believe in God and worries about Democrats pandering to religion the way the Republicans do. Blah blah blah... what do you expect them to say?

36. The end. The end of my TiVo anyway. I did get a little "off-live" tonight. It's hard to resist the power of the remote controller. If it persisted beyond 2 hours, I missed it. I guess there was something about guns. Anyway, that's it for me. So, okay, what do I think of the YouTube experiment and the way CNN filtered the raw questioning? I think they did pretty well. And, frankly, all the candidates did reasonably well. But, it's clear too that the top 3 that we knew coming in were the top 3 really are the top 3. I think John Edwards did a nice job of pulling himself up even with Barack Obama. And, likewise, Hillary Clinton let us know she's #1. Bill Richardson failed to distinguish himself from the rest of the pack. And so, we have a top 3, with a clear frontrunner. Now, can we see a debate with those 3? Please, before it's rammed down our throats that Hillary is inevitable? I'm not against Hillary. I found her appealing tonight. But I would like to see her tested against Edwards and Obama, without the pointless excess of Gravel and Kucinich... and... Dodd... and, sorry... Biden and Richardson.

37. Writing the next morning, with the transcript, I can see the last part, about guns. Biden calls the guy in the video crazy: "I don't know that he is mentally qualified to own that gun. I'm being serious.... Look, we should be working with law enforcement, right now, to make sure that we protect people against people who don't -- are not capable of knowing what to do with a gun because they're either mentally imbalanced and/or because they have a criminal record, and I hope he doesn't come looking for me." I didn't see the video, so maybe the guy did look crazy -- he was holding his gun and calling it his "baby" -- but Biden seems awfully interested in taking away guns.

38. Finally, they are asked to look at the person to their left and say one thing they don't like about them. Most of them won't say anything bad, but Edwards snarks about Hillary's jacket: "I'm not sure about that coat." Which might seem cute, but might piss women off. Hillary comes back with: "Yes, John, it's a good thing we're ending soon." Which sounds like a wife telling her husband he's had too much to drink. But she's supposed to talk about Obama, so she says: "I admire and like very much Barack." I find it hard to believe a sentence that sounds like it was translated from a foreign language. But then, why should she like very much Barack? She'd like very much less Barack. Then Obama one-ups Edwards with "I actually like Hillary's jacket. I don't know what's wrong with it." Which could be read as a double insult. First, it puts down Edwards for knocking the lady's clothes. And second, it subtly implies that Edwards is feminine: Obama can't tell what is wrong with the jacket, because he's a man and doesn't know about fashion, not like some other men, who aren't manly enough.

39. Cooper ends with a pitch for YouTube and the Republican debates. So they're using this format again. Now that people have seen the videos -- and which videos CNN chooses -- it should have an effect on the quality of the next set of videos. What are the lessons? You can do humor and you can speak through animation or puppetry as long as you ask a dead serious question, like that snowman did. It helps to personify the question, like those lesbians or the man with dead soldiers in his his family. And it seems to work to sound a little inept or too casual in the first second and a half, but then quickly get out a clear question. They also obviously want questions in the same basic areas they'd hit if they were writing their own questions, so you might choose something boring -- like Social Security -- that not too many other people will do but that CNN will think has to get in. Good luck.

Fie on fluorescent.

Maybe fluorescent bulbs meet your needs, if you have meager lighting needs, but some of us care how things look and expect some glow, some shine. Just because you don't notice the inadequacy doesn't make it okay to force those of us who do. If you think it does, I'd like to find the thing that you like to do that I don't care about and force you to go without it because it's no trouble for me to do without it.

Via Instapundit, who's been pushing these damned things, which is just fine for people who are able to take it. Let me make my contribution to environmentalism by using dimmer switches, turning off the lights when I leave the room, getting up at dawn to use more natural light, and sitting in nearly dark rooms at night when I'm not reading something on paper.

I hate this fluorescent oppressiveness -- the bullying and the light itself.

ADDED: I bought an LED reading lamp, by the way. It sounded great in the catalogue description, but it is absolutely impossible to read under. It's not bright enough, and if it were, the color would drive you insane. Some crazy blue.

MORE: A literary reference, from "A Glass Menagerie" by Tennessee Williams:

Look, Mother, do you think I’m crazy about the warehouse? You think I’m in love with the Continental Shoemakers? You think I want to spend fifty-five years down there in that - - celotex interior! with -- fluorescent tubes?! Honest to God, I’d rather somebody picked up a crow-bar and battered out my brains -- than go back mornings! But I go! Every time you come in yelling that Rise and Shine! Rise and shine!! I think how lucky dead people are! But I get up. I go! For sixty-five dollars a month I give up all that I dream of doing and being ever!

(Copied from my old high school script.)

Is Gore running for President? "If he drops 25 to 30 pounds, he’s running."

That's Donna Brazile's tip on how to tell if Gore is running, as quoted by Maureen Dowd. (TimesSelect link.) Gore is out and about with a new book, so he's at least forcing us to talk about whether he's running. And yet:

[James Traub of The New York Times Magazine] said that, as he followed the ex-vice president around, the Goracle was “eating like a maniac: I watched him inhale the clam dip at a reception like a man who doesn’t know when his next meal will be coming.”

Does that mean he has no plans to run? According to Dowd:

If Al Gore is really unplugged and uncensored, as Tipper and his fans say, then he is no longer bound by the opinions of gurus, mercenaries and focus groups. He can be himself, and inhale away and still run if he wants....

Doug Brinkley, the presidential historian, said that even though the fashion now is for fit candidates, after the Civil War, there was a series of overweight presidents. “It showed you had a zest for life,” he said. (The excess baggage may make Bill Clinton and Bill Richardson look roguish, but unfortunately, too many cheeseburgers and ice cream sundaes make Mr. Gore look puffy and waxy.) “Maybe,” Mr. Brinkley suggested, “Gore can sit in Tennessee and do it via high-definition satellite — like McKinley, just eat and sit on the porch.”

So, go ahead and be fat if you must, Al. It makes it harder for you scold us about about overconsumption and global warming, but actually, my read of "An Inconvenient Truth" is that you're just telling everyone to take global warming seriously and do some things that we can do. Some people can do some things and some can do others. If you can't stop overeating, you're like an awful lot of us. There are millions of Americans who can empathize about fat. And for that matter: hypocrisy. If you've got to be fat, try to be good fat, zest-for-life fat. If you've got to be a hypocrite... well, aren't we all?

As for the front-porch strategy, go ahead! Not only is it a good idea in these days when we have no time to go to campaign events because we're too busy hanging out on the web and because of the insanely front-loaded primary schedule. It's environmentally friendly. As you do lots of web-based campaigning, you could put up a nice web page that keeps a running tabulation of the fossil fuel burnt by each of your opponents as they jet and bus all over the place.

What does Mickey Kaus have against "This American Life"?

When I was driving home from Austin two Saturdays ago, I listened to a lot of talk radio. I especially enjoyed the hours when "This American Life" played on the XM Public Radio channel. The segment on the DREAM legislation moved me to tears -- and I do try not to succumb to tears while driving. It told the story of a young woman whose parents had brought her to the United States when she was a child and who had worked very hard and achieved a lot toward her goal of becoming a doctor, but who could not go on to medical school or ever hope to be a doctor unless she were to first move back to the unfamiliar country of her birth and wait her turn to immigrate legally.

Here, Mickey Kaus blasts "This American Life":

Does it always feature tedious bits of propaganda like the recent segment (#4 on this link) from a "fellow at the New America Foundation" crudely presenting one side of the argument for the DREAM Act? ("There is a very simple solution to all of this, a bill called the DREAM Act ..." concludes narrator Douglas McGray--as if he were talking to children and there were no arguments against rewarding "undocumented" immigrants by granting their children legal status, in-state tuition and citizenship.) You'd get a lot more useful information from a two-graf editorial in USA Today.

Well, you listen to that segment and tell me if it's crude or profound. It doesn't set out to examine the provisions of the act. It reaches you emotionally by bringing you inside one person's life. Admittedly, that has a propaganda effect. I was ready to promote the act, though I didn't know the details of it. But I got the message that there is a narrow legislative proposal that is being stalled by those who want to deal with the much larger immigration problem and I realized I'd have to look up the proposal on the web and see if the details checked out. I don't see what is crude about making you care about a problem rather than dissecting the legislation.

So read about the legislation at Mickey's link and tell me -- Mickey doesn't -- why we shouldn't care in a special way about young people who were brought here by their parents, educated by Americans, and then left with no way to follow through on their dreams?

And let's look a little more closely about why Kaus doesn't like "This American Life." He seems quite concerned about Ira Glass and his "clipped, geeky," "ironic nerd/hip" voice. I think it's the big testosterone discrepancy between Ira Glass and Mickey Kaus that is squicking Mickey out.

ADDED: The producer of the "American Life" segment, Douglas McGray, wrote a long piece in the L.A. Times before he did the radio version linked in Kaus's post. Here's some detail about the DREAM Act from the article:

Together with Republican Sen. Orrin Hatch of Utah, [Democrat Dick Durbin] introduced a bill called the DREAM Act. The bill recognized that kids such as Thi and Martha grew up as Americans and may not even remember another home. It offered them conditional resident status when they graduate from high school; if they graduate from college or serve in the military, that conditional status becomes a green card.

When Durbin and Hatch introduced the DREAM Act in 2001, it provoked the kind of deep disagreement that seems to follow each new immigration proposal. Eventually, though, the bill had collected a staggering 47 co-sponsors, nearly half the Senate, including immigration hawk Larry Craig, a Republican from Idaho; likely GOP presidential candidates John McCain of Arizona and Chuck Hagel of Nebraska and their Democratic counterpart, New York's Hillary Clinton; Minnesota Republican Norm Coleman; California Democrat Dianne Feinstein and Minority Leader Harry Reid of Nevada. The bill has enjoyed unusually broad support for an immigration measure for several reasons.

Only the most extreme immigration hard-liner would blame a toddler, or even an adolescent, for the choices their parents made. Some strain to make the case that offering opportunities to kids such as Thi, Martha or Esmeralda is akin to rewarding their parents, but that is just a polite way to argue that punishing children will discourage illegal immigration—not exactly a crowded bandwagon, when there are other ways to address the problem. Besides, there is something undeniably American about kids who scrap their way out of a bad situation with talent and hard work.

In 2003, the Senate's right-leaning Judiciary Committee voted 16-3 to bring the DREAM Act to the rest of the Senate. But the Senate's Republican leadership refused to schedule the DREAM Act for an up-or-down vote. The bill had Republican dissenters, and Majority Leader Bill Frist, a Tennessee Republican, appeared fearful of dividing his party and alienating right-wing activists.

Again this year, the Judiciary Committee endorsed the DREAM Act, voting to attach it to the Senate's sweeping immigration reform bill. But before Congress left for recess earlier this month, that bill bogged down, perhaps indefinitely. Even if the measure ultimately passes the Senate, it must be reconciled with a tougher House bill on immigration. Just before legislators left town, however, a bipartisan group of House members reintroduced their version of the DREAM Act. Compared with the nightmarish task of overhauling America's immigration system, and determining the future of 12 million illegal residents, offering green cards to a few all-but-American college kids hardly seems controversial.

The trick of "insulting upward."

Ann Coulter uses it, and so does that lawprof columnist Paul Campos -- who went to University of Michigan Law School with her -- Dave Kopel observes.

[P]ick somebody more famous than you. Vilify the person in some outrageous way. Ideally, the target gets upset and responds, and the press covers your public argument. By engaging in a public fight with you, the target has implicitly raised you to his own level of importance....

His column ... insulted upward at University of Wisconsin law professor Ann Althouse (bizarrely claiming that she is part of a conspiracy to protect Coulter). Althouse is far more famous than Campos on the Web and in academia; her record of scholarly publications in law journals is significantly larger than his. She responded to Campos on her blog, thus giving him more publicity.

A couple of weeks ago, Campos also successfully insulted upward when he accused University of Tennessee law professor Glenn Reynolds of advocating murder, and urged that the school censor Reynolds. Reynolds too has a vastly larger record of scholarly publication than Campos, and Reynolds' Web log, InstaPundit, is the most influential in the world (based on incoming links statistics at truthlaidbear.com).

Kopel notes that Campos also tried the insulting upward trick on Coulter but she used the correct response of ignoring it, while Glenn and I fell into the trap by responding. Well, it's not as if I don't know not to ignore an insulter who stands to gain from the attention. I do ignore insults every day. Some days, like yesterday, I ignore a whole slew of insults. But I choose some to respond to for various reasons. One reason I responded to Campos is that he's a fellow law professor. Another is, I actually know him. Also, he's got a column in a major newspaper.

Hey, I guess I should perceive Kopel as using the trick of defending upward! He got me to write about his damn Rocky Mountain News column.... at 3 a.m....

(Can you trust your own judgment, blogging at 3 a.m.?)

"What Tennesseans will get will be a Jesus-loving..."

Jesus-loving! I've never heard a candidate promise to be Jesus-loving. Wow! That's just not the way people talk in politics. But calm down. It was the Democrat, Harold Ford... on Fox News Sunday with Chris Wallace (who seemed to have a smirk on his face). Let's get the whole quote:

What Tennesseans will get will be a Jesus-loving, gun-supporting believer that families should come first, that taxes should be lower and America should be strong. When Tennesseans send us to the Senate, that's what they'll get in my votes and that's what they'll get in the kind of leadership that we have not had in the Senate over the last six years.

I know there's going to be an effort to scare people, but you cannot scare people to be inspired. You cannot scare people to do good and important things. I say to the national Republican Party, that message has run out of gas here in Tennessee. We know we are better than that as a country, and Tennesseans are ready to vote for something better and stronger and more positive than that.

Speaking of scaring people, I'm still laughing about the "TV Funhouse" cartoon on SNL last night. It spoofed the scary Republican ads. In one, kids are trick-or-treating, and at the door is a pregnant woman; we see her belly burst open -- in the style of the movie "Alien" -- and out pops Hillary Clinton, who croaks: "Here kids, have some condoms and abortion pills."

But, anyway, back to Harold Ford, that "Jesus-loving" response came after Wallace asked a great question:

Congressman, as we've said, you vote pretty conservative for a Democrat, but the fact is that if you win and if you're part of a Democratic takeover of the Senate, that means that ... Harry Reid, ... becomes the Senate majority leader, Ted Kennedy becomes a committee chair, so does Joe Biden. Doesn't a Ford victory as part of a Democratic takeover, doesn't that end up helping liberals?

I'm not surprised he flipped into Jesus! guns! mode.

UPDATE: More religion from Ford here: "Republicans fear the Lord; he said Democrats fear AND love the Lord." Via Instapundit, who thinks Ford needs a good night's sleep. I feel a little sorry for Ford -- and for other Democrats -- not because they don't get enough sleep, but because it seems unfair that religion works as well as it does for Republicans. But you can't turn things around by just proclaiming that it's not right. And bragging about your own religious piety is not a good way to impress religious people... and it's really off-putting to people who are wary of religion in politics.

"Oh, sure, there's some prejudice."

The WaPo article about Harold Ford Jr., the Democratic candidate for Senator in Tennessee, focuses on racial issues. The second paragraph is one of those ordinary citizen quotes that is presented so that it seems to represent how a lot of people think:

"Oh, sure, there's some prejudice," [jobless 57-year-old John] Layne said as he contemplated casting a ballot for a black man. "I wouldn't want my daughter marrying one." But he's more concerned about rising medical costs: When it comes to voting, "you gotta look at the person, not the color."

The article also makes it look as though the Republicans are deliberately trying to stimulate racial prejudice to help their candidate:

The National Republican Senatorial Committee ridicules Ford's expensive tastes on a "Fancy Ford" Web site, and the Republican National Committee is airing a controversial new ad that features a scantily clad blonde who says she met Ford at a Playboy party. "Harold, call me!" the woman chirps.

I've seen the ad and consider it shameful.

The state Democratic Party is working particularly hard to rally black voters. State party officials believe African Americans could push Ford over the top if they turn out in large numbers. ... Ford has tethered himself to Rep. Lincoln Davis, a popular two-term Democrat from a rural, white central Tennessee district and the chairman of Ford's campaign.

Davis said he polled his district in July and found Ford trailing 49 percent to 35 percent. "I didn't even tell his campaign," Davis acknowledged.

New numbers came back a few weeks ago showing Ford ahead 49 percent to 39 percent. "He's a rock star, a superstar," Davis said. "And if he wins my district, he's the next senator from Tennessee."

The article notes that Ford would be the first black senator from the South since Reconstruction.

"I was thinking about Alicia Keys, couldn't help from crying..."

"When she was born in Hell's Kitchen, I was living down the line / I'm wondering where in the world Alicia Keys could be / I been looking for her even clean through Tennessee." From Bob Dylan's new album.

Because Hollywood is anti-religion, because character conflicts make better film stories, or because the outlaw persona is so cool?

Why did they leave religion out of "Walk the Line"?

"That dimension of Cash's life, which was present all the way through, was absent," said theRev. C. Clifton Black, a professor at Princeton Theological Seminary, who criticized the film for that reason in a review for the magazine The Christian Century. "I was stunned."...

"He was a really committed Christian all his life," said Patrick Carr, who co-wrote Mr. Cash's 1997 autobiography. (The film was partly adapted from that book, but Mr. Carr was not part of the deal.) Mr. Cash even saw his drug addiction as his metaphorical years in the wilderness. "As he was going further into addiction, he knew he was traveling away from God; that's how he thought about it," Mr. Carr said. "He was feeling that he was completely separated from God, and that was the worst thing."

At the nadir of his addiction, Mr. Cash went to Nickajack Cave in Tennessee, crawled in as far as he could and essentially lay down to die. When he did, he had the sensation that "I was going to die at God's time, not mine," he wrote in his autobiography. When he walked out, he told his mother that God had prevented him from killing himself.

The cave scene isn't in the film.

Mr. Black and others have suggested that the role of religion in Mr. Cash's life was minimized because Hollywood generally shies away from such subject matter. But the issue could have just as much to do with the practical limits on making a satisfying film. "I wanted to make a movie about Johnny Cash and June Carter and the birth of rock 'n' roll," said James Mangold, who directed "Walk the Line" and wrote it with Gill Dennis. So, he explained, he tried to use Mr. Cash's love for Ms. Carter as a symbol for various forms of redemption.

"June was a figure of redemption," Mr. Mangold said, "beautiful in the way that God's light is beautiful."

Certainly, the movie presents an image of Johnny Cash that would appeal to a secular, urban audience: that of an outlaw who struggled to control his worst impulses.

Biopics choose the story to tell, and it's never the whole person. It's kind of like the way TV reality shows take the available footage on a contestant, decide which story would be most interesting to tell, and edit accordingly. A struggle that takes place inside a person's head is not very cinematic. You have to show him interacting with another person (unless you're going to depict dreams and hallucinations or just have him talking to himself or behaving expressively). And yet, I know that I avoided this biopic and others because I imagine scenes with the two actors just yelling at each other in a way that isn't going to contain any interesting ideas. You drink to much. I know, but I can't help it.

It's hard to make a movie. You can always say that another movie could have been made -- and critics often do. But with a biopic, people get the feeling that the choice of which story to tell matters in a special way, because this will be the movie about that person. So you can see why religionists feel aggrieved about the omissions in "Walk the Line."

---

I didn't see many movies this year, but I did see one that made me think it conspicuously omitted religion. Here's the old post.

Blogs "have nothing to do with scholarship."

The National Law Journal has an article on lawprofs blogs:

An increasing number of law professors are using blogs... to break free from traditional modes of legal scholarship. With an immediacy and ability to reach millions of readers, blogs are proving an attractive vehicle among legal scholars for spouting and sharing ideas.

But they are also raising concerns that they may lead to a dumbing down of the profession.

"They have nothing to do with scholarship," said Katherine Litvak, a professor at the University of Texas School of Law.

Wow! Why feature that quote at the beginning and then have nothing to back it up? I'm sure Litvak must have made a more detailed statement, but here she is just hung out to dry with the absolutism of the word "nothing." And she's supposedly accusing us of "dumbing down... the profession"? Though Litvak pops up again later in the article, she's never given a chance to explain that overwrought pronouncement. She does slam law reviews as "fundamentally corrupt," however. That's interesting. She's not given a chance to explain that either.

Anyway, if you bother to keep reading after that offputting beginning, there's material on the upcoming conference "Bloggership: How Blogs Are Transforming Legal Scholarship," which will take place at Harvard this spring. I'll be at that conference, and I'm quoted in the article too, complaining about law reviews. The fact is, whatever you want to say about blogs, law reviews are a big problem:

Not only does the slow publishing cycle of law reviews trouble Althouse and others, but critics also point to the lengthy and heavily footnoted format of the articles, which make them difficult to read -- if in fact anyone actually is reading them.

"I don't need a think tank, I need advocacy," said Stanley Bernstein, senior partner with 45-attorney Bernstein Liebhard & Lifshitz, a securities litigation firm in New York.

Bernstein, who himself was an editor of the Journal of International Law and Politics at New York University School of Law, said that in his 25 years of practice, he has rarely used law review articles.

"By the time you need to use them, they are generally a year or two out of date," he said.

A prevailing concern about law reviews is that law students who have just two years of course work compose the editorial staff of typical law review journals and, so goes the criticism, often make selection decisions based upon the status of the professor's school, not the value of the work.

Douglas Berman, a law professor at Ohio State University, called the law review industry "incestuous." He added, "It's the marketplace of prestige. It's what you have to do to show off to law students."

Blogs at least offer an alternative to traditional legal scholarship, which everyone seems to agree has big problems. Of course, blogs have their own set of problems. Neither form is ideal. Blogging is much more fun, of course, and that alone has got to piss off the folks who are working in the traditional, ponderously long and pretentious mode. Instead of lashing out at us, though, why not take a lesson from us and write better, faster, pithier law review articles?

ADDED: Stephen Bainbridge is blogging the same NLJ article, which contains the factoid: "Among the top 20 schools, as ranked by U.S. News & World Report, there are 59 bloggers."

It's interesting that top 20 schools seem to dominate the blogosphere. Does that credential give the potential blogger a leg up? Or is it just that the kind of people who land jobs at top 20 schools are also the kind who would find blogging attractive? I don't know, but if I had to guess, I'd say it's both.

Shouldn't we first count the numbers of lawprof bloggers in the second 20 and the third 20 before we make assumptions about who's doing the most blogging? Also, just counting the numbers of bloggers is not very accurate. For example, Chicago has a high blogger count because it runs a group blog with a long list of faculty names. I'd like to see a weighted count -- if you're going to get into counting -- that reflects the actual amount of blogging that is going on. But then if you did that, you'd probably want to count the blogging that is specifically about law, as opposed to, say, "American Idol."

And speaking of U.S. News, wouldn't it be funny if it used faculty blogging as a factor? There would be all these blogs by lawprofs trying to move their school up the rankings. Oh, but maybe it already is a factor, affecting the "repuation" scores that are based on surveys of academics, lawyers, and judges. The question is which way blogs affect the school's reputation. That too would not be based on the sheer number of blogging lawprofs. Wisconsin, that's that school where they watch "American Idol" all the time.

UPDATE: Jim Lindgren expands on my point about how to count the significance of blogging at different school. He concludes that Chicago's significance "does not yet reach the influence in the blogosphere of UCLA, Tennessee, San Diego, GW, George Mason, or Wisconsin, among others."

On voting against Alito after voting for Roberts -- and that phrase "inexorable command."

Todd Zywicki asks how any Senator who voted for Roberts can vote against Alito and still claim to be principled. That question ought to send us to the transcript of Russ Feingold's remarks yesterday:

The Supreme Court, alone among our courts, has the power to revisit and reverse its precedents, and so I believe that anyone who sits on that Court must not have a pre-set agenda to reverse precedents with which he or she disagrees and must recognize and appreciate the awesome power and responsibility of the Court to do justice when other branches of government infringe on or ignore the freedoms and rights of all citizens.

This is not a new standard Mr. Chairman. It is the same standard I applied to the nomination of Chief Justice Roberts. In that case, after careful consideration, I decided to vote in favor of the nomination. In the case of Judge Samuel Alito, after the same careful consideration, I must vote no....

Although he has not decided cases dealing with the Bill of Rights in wartime, he has a very long record on the bench of ruling in favor of the government and against individuals in a variety of contexts. Indeed, Mr. Chairman, this is an important distinction between Judge Alito and Chief Justice Roberts. Our new Chief Justice had a very limited judicial record before his nomination. Judge Alito has an extensive record. There is no better evidence of what kind of Justice he will be on the Supreme Court than his record as a Court of Appeals judge. He told us that himself....

One important question that I had about Judge Alito was his view on the role of precedent and stare decisis in our legal system. At his hearing, while restating the doctrine of stare decisis, Judge Alito repeatedly qualified his answers with the comment that stare decisis is not an “inexorable command.” While this is most certainly true, his insistence on qualifying his answers with this formulation was troubling. Combined with a judicial record in which fellow judges have criticized his application of precedent in several cases, Judge Alito’s record and testimony do not give me the same comfort I had with Chief Justice Roberts that he has the respect for and deference to precedent that I would like to see in a Supreme Court Justice.

To take Feingold at his words but to put it bluntly, he detected a right wing agenda in Alito that he could not detect in Roberts.

I note that John Roberts also used the phrase "inexorable command":

SEN. GRASSLEY: Could you tell us what you believe is the appropriate judicial role describing for us the value of precedent in our legal system?

JUDGE ROBERTS: Certainly. And here again, we're guided by the court. It has precedent on precedents. It has cases talking about when you should revisit prior precedents and when you shouldn't. And of course some of the cases say you should in a particular instance, and others that you shouldn't.

You begin with a basis recognition of the value of precedent. No judge gets up every morning with a clean slate and says, "Well, what should the Constitution look like today?" The approach is a more modest one, to begin with the precedents. Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in a legal system.

Those precedents become part of the rule of law that the judge must apply.

At the same time, as the court pointed out in the Casey case, stare decisis is not an inexorable command. If particular precedents have proven to be unworkable -- they don't lead to predictable results; they're difficult to apply -- that's one factor supporting reconsideration.

If the bases of the precedent have been eroded -- in other words, if the court decides a cases saying, "Because of these three precedents, we reach this result," and in the intervening years, two of those are overruled -- that's another basis for reconsidering the precedent.

Oh, but Alito said it repeatedly. On January 10th, responding to Senator Specter:

SPECTER: How would you weigh that consideration on the woman's right to choose?

ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system.

And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.

It's not an inexorable command, but it is a general presumption that courts are going to follow prior precedents....

ALITO: I agree with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent. And when the Supreme Court says that we are not going...

SPECTER: How about being reaffirmed 38 times?

ALITO: Well, I think that when a precedent is reaffirmed, each time it's reaffirmed that is a factor that should be taken into account in making the judgment about stare decisis.

And when a precedent is reaffirmed on the ground that stare decisis precludes or counsels against reexamination of the merits of the precedent, then I agree that that is a precedent on precedent.

Now, I don't want to leave the impression that stare decisis is an inexorable command because the Supreme Court has said that it is not. But it is a judgment that has to be based -- taking into account all the factors that are relevant and that are set out in the Supreme Court's cases.

Also on that day, responding to Senator Feinstein:

SEN. FEINSTEIN: But I'm asking you for the -- what it would, the special justification that you mentioned this morning, that would be needed to overcome precedence and reliance.

JUDGE ALITO: Well, I think what needs to be done is a consideration of all of the factors that are relevant. This is not a mathematical formula. It would be a lot easier for everybody if it were, but it's not. The Supreme Court has said that this is a question that calls for the exercise of judgment, and they've said there has to be a special justification for overruling a precedent. There is a presumption that precedents will be followed. But it is not -- the rule of stare decisis is not an inexorable command, and I don't think anybody would want a rule in the area of constitutional law that pointed in -- that said that a constitutional decision, once handed down, can never be overruled. So it's a matter of weighing all of the -- taking into account all of the factors and seeing whether there is a strong case based on all the relevant --

On January 11th, again responding to Senator Feinstein, pushing him to use the expression (but mangling it) and interrupting him, thus causing him to repeat it:

SEN. DIANNE FEINSTEIN (D-CA): I want to try one more time. ... [W]hat concerns me -- and obviously this is on Roe -- is that despite 38 tests, despite 33 years, despite the support of a majority of America, you also said yesterday that precedent is not "an exorable command." And those are the words that justice Rehnquist used arguing for the overturning of Roe.

So my question is, did you mean it that way?

JUDGE ALITO: The statement that precedent is not an inexorable (sic) command is a statement that has been in the Supreme Court case law for a long period of time. And I -- sitting here, I can't remember what the origin of it is, but I would bet that it's been -- it certainly has been used in cases in which the court has invoked the doctrine of stare decisis and refused to go ahead and overrule --

SEN. FEINSTEIN: I always believe everything I read in The Washington Post. (Laughter.)

JUDGE ALITO: Well, that is an important principle, and I --

SEN. FEINSTEIN: (Laughs.) I don't know about that one, but --

JUDGE ALITO: -- not the principle of believing everything in The Washington Post -- (laughter) -- but the principle that stare decisis is not an inexorable command, because then we would be stuck with decisions like Plessy, and they couldn't be overruled, except through a constitutional amendment.

But when an issue is one that could realistically come up, the people who would be making the arguments on both sides of the issue have a right to have a judiciary of people with open minds. And that means people who haven't announced in advance what they think about the issue and, more importantly, people who are not going to reach a conclusion in the -- not going to reach a conclusion until they have gone through the judicial process. And it's not a facade. It's a -- it's not a meaningless exercise.

On January 12th, responding to Senator Biden:

JUDGE ALITO: Different justices and different judges have different views about stare decisis. But my view is that you need a special justification for overruling a prior precedent, and that reliance and reaffirmation are among the factors that are important. But I've also said it's not an inexorable command. In the area of constitutional law, there has to be the ability to revisit a case like Plessy versus Ferguson. I don't think anybody would want a system of stare decisis that made that impossible.

You begin with the basic recognition of the value of precedent. No judge gets up every morning with a clean slate and says, well, what should the Constitution look like today? The approach is a more modest one. You begin with the precedent. Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in the legal system.

Those precedents become part of the rule of law that the judge must apply. At the same time, as the court pointed out in the Casey case, the stare decisis is not an inexorable command. If particular precedents have proven to be unworkable, they don't lead to predictable results; they're difficult to apply; that's one factor supporting reconsideration.

If the bases of the precedents have been eroded, in other words, if the court decides a case, say, because of these three precedents we've reached this result, and in the intervening years, two of those are overruled, that's another basis for reconsidering the precedent.

At the same time you always have to take into account the settled expectations that have grown up around the prior precedent. It is a jolt to the legal system to overrule a precedent, and that has to be taken into account, as well as the different expectations that have grown up around it.

There are different other aspects of the rules. For example, property decisions are far less likely to be reconsidered because of the expectations that grow up around them. Statutory decisions are less likely to be reconsidered because Congress can fix it if it's a mistake.

It's, again, the court's decisions in cases like Casey and Dickerson, Paine versus Tennessee and Agostini, State Oil Company versus Khan. It's an issue that comes up on a regular basis, and the court has developed a body of law that would guide judges and justices when they decide whether to revisit a case.

The fundamental proposition is that it is not sufficient to view the prior case as wrongly decided. That's the opening of the process, not the end of the process. You have to decide whether it should be revisited in light of all these considerations.

That's seven times, compared to Roberts' one, but Alito was pushed on the question of stare decisis repeatedly and the phrase was part of his stock response. What was there in that response or the way he had occasion to repeat it that was "troubling" to Senator Feingold? Roberts presented the same formulation for stare decisis, relying on Supreme Court case law and taking the phrase straight out of Lawrence v. Texas, where the Court in fact overruled a precedent (to find a more expansive privacy right).

Does the ADA just enforce existing rights for prisoners?

Linda Greenhouse reports on the oral argument in a key federalism case -- United States v. Georgia -- about whether prisoners can sue the states for damages for violations of the Americans With Disabilities Act. This is another one of those cases where the question is whether Congress has successfully abrogated sovereign immunity. The answer depends on whether the statute fits the Fourteenth Amendment power -- that is, whether the law is a remedy for the violation of Fourteenth Amendment rights (as opposed to the creation of new rights).

The man in the case is a paraplegic confined to a 12 feet by 3 feet cell 23 to 24 hours a day, where he can't turn the wheelchair around and lacks adequate bathroom facilities. He says "that guards leave him sitting in his own waste rather than assist him."

Greenhouse observes that the Justices seemed to think that the ADA in this situation dealt with mistreatment that would also violate constitutional rights, so providing for suits for damages would be properly characterized as an appropriate Fourteenth Amendment remedy.

Chief Justice Roberts posed one of the first questions. "Are you suggesting that the A.D.A. just tracks the Constitution and doesn't add to the burden on state officials?" he asked [Solicitor General Paul] Clement.

There was at most a "narrow band" of actions that the law would require but that the Constitution did not demand, Mr. Clement replied. "The prophylactic gap here is not large," he added....

Samuel R. Bagenstos, a law professor at Washington University in St. Louis and a specialist in disability rights, represented the inmate and shared the government's side of the argument with Mr. Clement. Chief Justice Roberts addressed the same question to him, adding, "I'm just wondering if that's a reasonable reading of the A.D.A., which I had always understood to change the rights of the disabled."

Mr. Bagenstos replied that there was little difference in the specific context of prisons because "this is one of the few areas where the government has an affirmative constitutional duty."

Gregory A. Castanias, a Washington lawyer arguing for Georgia, said the inmate's claims in this case went well beyond constitutional requirements. Several justices then suggested that the law might be interpreted to apply only to constitutional violations. Justice Scalia asked, "To the extent that it includes constitutional violations, why isn't that lawsuit perfectly O.K.?"

This looks like a rather easy case, though Greenhouse portrays it as a big test of where the Roberts Court will go on federalism cases. It's very much like Tennessee v. Lane, the recent ADA case about access to courtrooms. Congress is beefing up remedies for existing rights, permitting lawsuits for damages. The reference to the "prophylactic gap" -- which must mystify laypersons -- is about proscribing behavior that the constitutional alone would permit. To some extent, defining additional violations is not really the creation of new rights, but is genuinely remedial of existing rights.

In the classic case, as characterized in later cases, the Voting Rights Act of 1965 proscribed various practices but did so as a way of controlling race discrimination, which, of course, violates the Fourteenth Amendment. So the rights prisoners have under the ADA may be more extensive than the Constitution alone gives them, but they could still be viewed as a way to enforce constitutional rights. Complicated, but it looks as though the prisoner will win.

Audible Althouse, #11.

Hey, a new podcast! This time with theme music -- written by John Cohen, Brit Rice, and John Matlack, and performed by John Cohen (my son, John Althouse Cohen) and Brit. Per John:

John, Brit, and I composed the music together. (We had written a complete song, with different lyrics; then I fit your lyrics to the chorus of that song.)

Guitar and bass: me.

Vocals: me and Brit. (It's 3-part harmony with Brit singing 2 of the parts.)

Shaker (Ibuprofen bottle emptied out and filled with rice) by Brit.

Snapping by me and Lucas Etten.

Produced by Lucas Etten in his apartment.

Here's Johnny Matlack's website. He's a drummer and songwriter who's in Nashville, Tennessee now, but used to be here in Madison.

Anyway, the new podcast is about 37 minutes long. You can comment on it here. Topics: mellowing on Miers, writing an op-ed for the Milwaukee Journal Sentinel, cameras in the Supreme Court, "strict constructionism," "Curb Your Enthusiasm," hostile lawyer jokes, Harold Pinter's grim stories, how much people don't like Congress, the sex holidays, and how disturbed all my readers are about women who seek artificial insemination to become single mothers.

UPDATE: The theme music is copyright 2005, Tin Whisper Media Group. Also, Brit has a band called Polydream, which is making a recording called "A Rigid Shard of Balance." And he plays drums and percussion with Lucas Cates, who has a record, "Contradictory," due out in February under Popbomb Records. Look for both Polydream and Lucas Cates to tour. Brit has also remixed Star Wars music for Star Wars conventions.

Judicial politics.

There's a lot of detail about the political reaction to the judiciary in this NYT article.

Senate majority leader Frist is distancing himself from some of the rasher statements:

"I believe we have a fair and independent judiciary today," said Dr. Frist, who declined to comment directly on Mr. DeLay. "I respect that."

Dr. Frist, of Tennessee, moved quickly to separate the emotionally charged case of Ms. Schiavo from the politically charged possibility of a showdown over Democratic filibusters against President Bush's judicial nominees. Opponents are linking the two, calling them examples of how Republicans, stymied by resistance, take extreme steps to advance their ideology. That tie could complicate Dr. Frist's push to change Senate rules.

Yes, that linkage was ridiculous. Right when you want to criticize your opponents for excessive obstruction of worthy candidates, you make a big deal about how completely political judges are? That makes no sense! If judges are horribly political, politicized opposition to nominees is called for.

The article has more on Senator Cornyn's regrettable comment about judges and violence (about which I've written enough for the moment). (There's also this overstated NYT editorial today ripping Cornyn.)

The article also has this about Tom DeLay:

Before he changed plans to attend the pope's funeral, Mr. DeLay had been scheduled to be a headline speaker this week at a conservative conference, "Confronting the Judicial War on Faith," sponsored by the Judeo-Christian Council for Constitutional Restoration.

According to its organizers, potential steps to be discussed are impeaching federal judges who let personal values influence decisions, reducing or eliminating court financing, and giving Congress and the states the power to vacate Supreme Court rulings.

Way to show your respect for the Constitution!

"This is going to be an action-oriented conference," said a meeting planner, Don Feder.

Feder ought to clarify if he's not actually interested in the "potential steps" the NYT says the conference "organizers" are taking seriously, because the article makes him look bad.

The article notes stirrings in the ABA:

The tone of the criticism aimed at the judiciary after the death of Ms. Schiavo, whose feeding tube was removed, has drawn the attention of the American Bar Association. In an e-mail message on Friday to the bar's membership, its president, Robert J. Grey Jr., said lawyers and others who work with the law needed to respond to what he described as decreasing respect for the courts.

"As the voice of the legal profession," Mr. Grey wrote, "we must not allow those among us who would do harm, in any form, to destroy the very freedoms our legal system is entrusted to protect."

What is the connection between that quote and the project of preserving respect for the judiciary? One of the things the judiciary gets disrespected about is (supposedly) understating the expanse of various constitutional rights. Does Grey mean he expects the judges to draw the right lines about the scope of government power in relation to individual freedom and if they do that, we'll respect them? That seems to be about the same sort of respect the various politicians who run down the judiciary are willing to give. So I could use a clarification from Grey too.

Finally, the article previews the coming fight over the filibuster:

As interest groups stepped up their lobbying, the political parties continued maneuvering in advance of a potential Senate vote to bar the filibusters. Mr. Reid said he was willing to consider ways to avoid a floor fight.

"Let's just calm down and see where the American people are on this issue," he said.

Republicans say it is Democrats who are stirring up the issue, noting they have established a special political strategy office, under Mr. Reid's control, on the filibuster fight. The Republicans say that Dr. Frist is facing increasing pressure from Republican senators to move forward and that his options are diminishing.

"We will reach a point where negotiations, I guess, will have to end, because they will be fruitless, and then votes will have to be cast," said Senator Rick Santorum of Pennsylvania, the No. 3 Republican.

Yes, let's just calm down. I bet they won't. But maybe they will if "they see where the American people are on this issue," and what they see is that we don't like the exaggerated posturing of politicians degrading the judiciary.

A survey.

Here is a survey (from professors at Southern Illinois University-Carbondale and University of Tennessee-Knoxville) studying "the motivations for accessing the Web, weblogs, chat rooms, bulletin boards and other Internet resources for political information." It would be good of you to fill it out, which you can do until 11/16/04. I'm told it "has been approved by the University of Tennessee institutional review board and is being conducted for academic purposes only and follows strict privacy protocols" and that "all responses are confidential and anonymous."