"It gets late early around here." - Yogi Berra
January 31, 2006
BASKETBALL: Don't Try This At Home
Now, I'm certainly not a proponent of strangling every advertisement that could possibly be imitated by someone stupid, but Giacomo at Joust the Facts notes a Nike ad (which I haven't seen) that seems pretty likely to be imitated by young boys with ghastly results.
LAW: Mr. Justice Alito
With 58 votes, and 71 votes against a filibuster. Ed Whelan explains why the last-minute Kerry/Kennedy filibuster was such a disaster for the Democrats.
Whether noted in tonight's State of the Union or not, today marks a real changing of the guard, with Justice Alito now joining Chief Justice Roberts to complete the replacement of Chief Justice Rehnquist and Justice O'Connor, and with Fed Chairman Greenspan ending his term today and giving way to the new chairman, Bernanke. The influence of Rehnquist, Greenspan and O'Connor stretches over more than three decades.
BASEBALL: Belle, Rice and Dawson in Context
As promised, I've got an article up today at the Hardball Times taking a look at the Hall of Fame candidacies of Jim Rice, Andre Dawson, and Albert Belle, in the context of a fairly long list of other Hall of Famers, Hall candidates or former candidates, including a number of people I've written about in the past, such as Dick Allen, Dave Parker, Keith Hernandez, Dwight Evans and Jose Canseco. (Jimmy Wynn, who I met last week, is also included in the chart). (UPDATE: Repoz, with his unique sense of humor, locates for us a visual representation of the "grey area").
This was a fun, if exhausting study, and I hope you enjoy reading it; you can consider this an open thread for comments on it. Here's more background from my prior writings on many of the same players:
January 30, 2006
BASEBALL: Most Valuable Bando
I happened to notice this at random the other day: most of us remember that Sal Bando was a good ballplayer, but did you realize that Bando finished in the top 4 in the MVP voting three times in four years? He finished second in the balloting in 1971 when he batted .271 with 24 HR and 94 RBI, fourth in 1973 when he batted .287 with 29 HR and 98 RBI, and third in 1974 when he batted .243 with 22 HR and 103 RBI. Not impressive numbers by today's standards or even great totals for Bando's day, but the voters of his time, watching him day in and day out, were ahead of their time in recognizing his value (today, there would be wider recognition of the value of a guy who played in an extreme pitcher's park, played good defense and drew a lot of walks, but I'm not sure that would translate into that kind of MVP support).
January 29, 2006
POLITICS: Don't Stop Thinking About Tomorrow - Yesterday's Gone, Yesterday's Gone
Via Instapundit, we have word from Tom Elia that Marty Meehan's staff went to Wikipedia to delete references to a term limits pledge Meehan made in 1992 that is now inconvenient to the Massachusetts Democrat.
WAR: He's Watching
January 28, 2006
LAW: Kos Doesn't Go To Kennedy, Kennedy Goes To Kos
Ted Kennedy, Kos diarist. Had to happen eventually. Check out the title and see if you can spot the word that appears nowhere in this diary:
Thank You for Helping To Stop Alito
Now, I know we all tend to be a bit colloquial when writing on the web, but this is a US Senator writing - or, more likely, dictating or having written by a staffer - about a man who's been on the federal bench for 15 years. I'm put in mind of this exchange:
Col. Jessep: I'd appreciate it if he would address me as "Colonel" or "Sir"... I believe I've earned it.
BASEBALL: Crisp for Marte
So, after months of talk, the Indians have dealt Arthur Rhodes to the Phillies for Jason Michaels, and Coco Crisp, David Riske and Josh Bard to the Red Sox for Andy Marte, Guillermo Mota, Kelly Shoppach, a player to be named later and cash.
I have to confess that I don't entirely understand why the Indians have spent the whole offseason trying to deal Crisp, although I suppose it's mostly a matter of the Red Sox desperately pursuing him. I also don't understand what would motivate the Phillies to dump Michaels for Rhodes; I guess the acquisition of Aaron Rowand made Michaels expendable, although it's somewhat debatable whether that's really any kind of improvement. It's as if the Indians and Phillies were being run by callers from WEEI as far as how well it worked out for Boston's needs - not that Cleveland didn't end up with a rational deal, but most teams wouldn't have been as hot to dump a talented young guy like Crisp in the first place. All I know for sure is, when the merry-go-round stopped, the National League East's cut of the deals looked like this:
*Arthur Rhodes, a 36-year-old middle reliever who threw 38.2 and 43.1 innings the past two seasons and had ERAs of 5.12 in 2004 and 4.17 in 2003 before pitching well last season.
*Jason Michaels, a 30-year-old outfielder who batted .304 last year and has a lifetime batting line of .291/.442/.380
*Rafael Furcal, a 28-year-old shortstop who, according to Bill James, led the Braves in Win Shares in 2005, outstripping Andruw Jones with his 51 homers and Andruw Jones-style glovework.
As a Mets fan, I can live with that.
Is there something wrong with Marte? If the guy really is another Chipper Jones with the bat, you might wonder why he got traded twice. As I speculated when the Braves dealt him, it was possible that they had soured on him for some unknown reason, and if this is the Braves we're talking about here they may have had a good reason. But I assume the Red Sox just grabbed Marte because he was the best available prospect in exchange for Renteria, and always assumed that - with Kevin Youkilis around - they might well deal Marte to fill one of their short term holes. Time will tell; I assume Marte will have eaten Aaron Boone's (.299 OBP in 2005) lunch by June, if not by Opening Day, although it could be a few years before he scrapes his ceiling. Come to think of it, Marte and Michaels for Crisp (career .332 OBP) and Boone doesn't look like such a bad deal for the Indians' offense after all.
For the Sox, of course, adding Crisp fills the center field hole, and at 26 he should just be coming into his prime. Hopefully for Boston, he won't be asked to fill Damon's shoes as leadoff man - Youkilis, if he beats out Mike Lowell at third, or Mark Loretta would be a better call.
Roto tip: the Cleveland closer job now probably goes to Mota if Bob Wickman stumbles, while Rhodes and Tom Gordon will probably, at the end of the day, end up sharing Billy Wagner's old job.
January 27, 2006
BLOG: Quick Links 1/27/06
*Saber-Rattling, Canadian Style - or a neat bit of triangulation to distract from the reality of a less anti-American posture.
*Fun, unverifiable, malicious rumor of the day: a Kos diarist says Ken Salazar isn't supporting a filibuster of Judge Alito because he struck a deal to get James Dobson off his back. Certainly, everying we've seen from Salazar lately suggests a man cracking under the strain of criticism on judges. This sounds like an exaggeration by a disgruntled staffer filtered through some anonymous dude on the internet, but it could be a version of the truth.
*I know I've been on this theme for a while now, but under pressure from opponent Rick Santorum, putatively pro-life Democratic Senate candidate Bob Casey in Pennsylvania has now come out in favor of confirming Judge Alito, and the Blogometer has a good roundup of lefty bloggers' teeth-gnashing over Casey's announcement, which drives a serious wedge into the Democratic caucus; unlike Ben Nelson, Casey's defection can't be explained by an overwhelming Republican tilt to his state. (But it is consistent with the prior endorsement of Pennsylvania's Democratic Governor, Ed Rendell, whose wife is a Third Circuit colleague of Alito). Could it be that there really just isn't a valid basis to filibuster Judge Alito?
*On the other hand, Bill Nelson is opposing Alito because he's not conservative enough?
January 26, 2006
BASEBALL: Schilling & Simmons
Tremendous in-depth interview of Curt Schilling by Bill Simmons. (Bill did get in a few Joe Biden-length questions, but after all, he's the writer here). My favorite Schilling lines:
On sportswriters: "The only thing, as a fan, that you can be assured of as truth is the box score . . ." I'm seriously thinking of adding that to my template, it's such a great line.
(Schilling's not afraid to name names of misbehaving sportswriters either, fingering Dan Shaughnessy and Bill Conlin as "some of the better writers [who] suck at their jobs from my standpoint." He's also the first player I've heard use the term "VORP")
On free agency: "I just wish both sides would own up to it when called on it, you leave for more money, or you don't offer someone more money, say so when someone calls you on it."
On the bidding for Johnny Damon:
Ask yourself this. Doesn't every team that makes a HUGE offer to a free agent, then loses out -- doesn't that team find it in their best interest to make sure their fans know they tried? I mean, the earth wouldn't split if this was the first time Scott Boras BS'd a team into giving a player way more than any other team out there because he had a team on the grassy knoll offering 200 billion, would it? If I am the 'Mystery Team,' I want my fans and season-ticket holders to know we tried, to know we laid 65 million out there to get Johnny Damon. I think it was only the Yanks and Sox in on this one to begin with.
His explanation of Manny is fascinating, if unsurprising, as well. Read the whole thing.
BLOG: The National Journal Interview
January 25, 2006
BASEBALL: The Toy Cannon
Thanks to my law firm having paid for a table at the event, I had the pleasure of attending the Baseball Assistance Team (BAT) dinner last night. BAT is a charity run mainly by current and former MLB players to help "members of the baseball family" - ex-MLB and Negro League players, widows, umps, scouts, front office people, etc. - in various types of need, and its annual dinner in Manhattan kicks off with an autograph-signing session and then a dinner at which ex-players disperse and sit at the tables. It's a pretty cool event, and this is the second one I've gotten to attend. Many of the 1986 Mets were there - commemorating the 20th anniversary of the team - and in the autograph session I got to Strawberry, Darling, Mitchell, Santana, Foster and HoJo.
Anyway, the ex-player at our table was Jimmy Wynn. It's pretty loud in the room and I'm not sure everyone could immediately make out his name - or necessarily remembered him - so he brightened up when I said, "the Toy Cannon!" When I pointed out that drawing walks was one of baseball's most underrated skills and that he'd been one of the best at it, he said I'd made his day, and he seemed to genuinely mean that (and added: "and being patient. I was always a patient hitter."). Not to make Wynn sound like some sort of pitiful figure or anything; rather, like a lot of ex-players he's obviously proud of his accomplishments and glad when they're remembered and respected. He still feels, for example, that he should have been allowed to run more, pointing out from memory that he stole 43 bases in 47 attempts as a rookie. I asked Wynn who the toughest pitcher he faced was, and he didn't hesitate for a second: Bob Gibson.
I'm still working on a lengthy analysis of some current and recent Hall of Fame candidates, and in doing so I'm comparing them to other first basemen and outfielders with similar careers; one of the latter that I've been looking at was Jimmy Wynn. So it was definitely a thrill to meet him.
BLOG: Quick Links 1/25/06
*Eliot Spitzer picks a running mate who is popular, African-American and disabled (he's blind), and still manages to run afoul of Charles Rangel and other self-appointed NY City Democratic power brokers. (Via NRO). You can debate whether this says more about (1) Spitzer's abrasive personality, (2) the endless demands and elephantine egos of guys like Rangel, or (3) why it's so hard for the NY City Democratic party to produce leaders with a spine (the results of which are on garish display every four years in the mayoral elections). Spitzer will be the next governor pretty much no matter what, but it's instructive to watch how easily he alienates even his own allies.
*Characteristically brilliant Megan McArdle analysis of the chimerical connection between abortion and sex education:
Now is the time of year when William Saletan tells us that we should stop arguing about abortion and just keep women from getting pregnant in the first place.
Read the whole thing.
*This New Republic analysis of the educational crisis facing boys in this country is deeply alarming and a must-read. The suggestion that some sort of implicit or explicit affirmative action may be needed for male students is appalling. The article fingers a number of the likely culprits, from lack of interest in reading to an unduly feminized curriculum. Like it or not, boys thrive on competition and challenges; that needs to be retained as part of the educational process. While the article notes that many of the problems are at the grade-school level, it underscores my conviction that the sexes are better off being separated at the high school level.
I've always wondered why busy lawmakers make so much time for lobbyists, at least when they're not playing golf or being comped at Signatures, and gradually I realized: They envision themselves, a few years down the road, in the same role. After all, half the former members of Congress--half!--are now earning many times their Hill salaries by trying to persuade their ex-colleagues to fund a Bridge to Nowhere or some equivalent measure.
I mostly regard lobbying reform as a pointless sham, since the real issue is at the macro level - the power to hand out special interest favors, power that attracts corruption - and the micro level, the specific cases of corrupted officials. But this is one systemic issue that needs to be addressed. It's perhaps not as dire as the similar problem of ex-diplomats being systematically bought off by the Saudis, but as long as members of Congress have in mind the possibility of staying in DC as part of the lobbying class, their incentives will be deeply skewed.
*I've been disappointed with John McCain' stance on the NSA intercepts issue, and while I agreed with him on the problem I was distressed by his solution on the treatment of detainees. But this Mark Levin column is typical of the overwrought teeth-gnashing McCain inspires in some quarters of the Right. McCain has many flaws, but being "soft on defense" is not one of them.
*Cathy Seipp ticks off some NY Times reporters by blogging about what they wrote to her (via Matt Welch). Very entertaining stuff. I do think it's mildly unsporting to write about the fact that a journalist is working on an as-yet-unpublished story, but journalists of all people are fools if they think anything they say is off the record, and expecting sources to keep quiet permanently is absurd.
*Mark Kilmer notes this Washington Post column by the Post's ombudsman, detailing the campaign of abuse directed at her by lefty blogs over the distinction between direct and indirect contributions made by Jack Abramoff. As I pointed out before in linking to this Jon Henke post (see also here), the distinction is noteworthy but (a) hardly as conclusive as the Democrats would like, and (b) inconsistently applied by the Dems themselves. If you hear Democrats and liberal blog commenters calling people liars for saying Democrats got Abramoff-tainted money, well, they're just full of it, especially if they're simultaneously steamed about indirect ties between Abramoff and President Bush or other Republicans. WaPo explains:
Records from the Federal Election Commission and the Center for Public Integrity show that Abramoff's Indian clients contributed money to 195 Republicans and 88 Democrats between 1999 and 2004. The Post also has copies of lists sent to tribes by Abramoff with his personal directions on which members were to receive what amounts.
Crowley has it right. Abramoff was a Republican in a Republican-run city, and this is mainly a Republican scandal. But suggesting that a number of Democrats aren't also associated with Abramoff is just false. And - lest we forget - corrupt ties between Indian gambling interests, campaign contributions and Washington politicians didn't exactly begin in 2001 (see here and here for details).
January 24, 2006
BASKETBALL: Embrace Your Destiny
Bill Simmons is dead-on again with this second column on Kobe Bryant, dealing with his 81-point game. The whole "I'll show I'm really unselfish" thing when he sat after cracking 60 in three quarters was just pointless. Like Bill said after the criminal trial, Kobe now has to embrace his destiny as a Barry Bonds-style bad guy who doesn't let up, doesn't apologize, doesn't care what you think of him, gives no quarter and asks none; that's the only role left to him.
I recently finished reading Dark Lord: The Rise of Darth Vader, (reviewed here by Frinklin), which picks up the story of Anakin/Vader (and others) shortly after the end of Revenge of the Sith. More on that later, but the point here is that the book reminded me of Bill's point about Kobe: Vader spends a lot of the book whining to the Emperor about the limitations of his suit and his spacecraft and fleet, obsessing about the Jedi, cursing the events that led to his wife's death and his mutilation, and otherwise wallowing in self-pity. Eventually, though, he accepts the fact that his old life and old ties are gone, that he can't go back to the places he was before, and goes about single-mindedly pursuing power and domination because that's the only avenue he has left. The result puts him on the path to being the Darth Vader of the original trilogy - ruthless, powerful, feared by allies and foes alike.
I'm not suggesting that Darth Vader is a good moral role model, of course. But I found the parallel intriguing: whatever private redemption Kobe might undertake, his only plausible public role, at least on the court, is to become a single-minded dominator of his opponents. He'll never get credit for being a nice guy anyway.
BLOG: Follow Your Surname
Good Daily News profile of how Tom Glavine finally accepted that he was finished if he didn't try a new approach on the mound - and how he made the change work:
The difference, he said, was pitching inside more and using more breaking balls to set up the pitch that made him famous — his changeup on the outside corner of the plate. For years, Glavine did not regularly pitch inside because he didn't need to; his changeup was enough.+++
He and Mets pitching coach Rick Peterson talked during bullpen sessions about what to do. Peterson recalled Glavine throwing nasty breaking balls when warming up and then not using them enough in games. "Why don't you use it?" Peterson asked. "He said, 'I don't know, I just never have.'"
(Via Repoz). This is typical of the crisis that besets successful athletes as they get older - it can take years to figure out that what used to work just doesn't, anymore. Glavine was lucky he figured it out before it was too late.
As a stat-geek aside, I note that the News' list of pitchers with 270-297 wins is capped with "Bobby Mathews 297," which means they're probably working from baseball-reference.com, which (unlike the official record books) includes Mathews' wins in the National Association from 1871 to 1875.
POLITICS: Targeting the Burbs
Pejman and McQ take on the farce of Maryland's legislation attempting to raise Wal-Mart's cost of hiring employees - or, alternatively, depress its wages - by mandating that a fixed percentage of its payroll be spent on health insurance. The attack on Wal-Mart, of course, comes from a variety of directions; unions and small store owners who view the company as a competitive threat are the leaders. This particular bill seems to have been driven as well by legislators looking to beef up government revenues. I particularly liked this bit of economic illiteracy:
Let's consider what this could mean:
1. People who had health insurance at their prior job quit to work at Wal-Mart, thus becoming eligible for Medicaid. This seems unlikely to have happened in large numbers, unless of course the prior job made less in wages and they preferred to get more wages instead - a choice the state wants to take away.
2. People turned down a chance to get a job with health insurance so they could work at Wal-Mart instead. Same deal as #1.
3. People had health insurance at their prior jobs but were forced to work at Wal-Mart when Wal-Mart drove their previous employer out of business. This may be the case in some situations, but remember that Wal-Mart's primary competitors are usually mom-and-pop stores that don't typically have generous benefits packages.
4. People left smaller employers with no health insurance to work at a bigger company with no health insurance. This is more likely - so the state is just punishing Wal-Mart for being big enough to attract enemies, even though it's no different from a host of small businesses and creates no additional Medicaid liabilities.
5. People who got jobs at Wal-Mart previously did not have jobs. In such cases, of course, no additional Medicaid liabilities are created, but unemployed people are put to work and get a steady paycheck and work experience. This should be discouraged?
Meanwhile, if attacking the nation's largest retailer isn't enough, Joel Kotkin enumerates a variety of ways in which left-wing radicals, including the mayor of Los Angeles, are trying to resist the natural desire of Americans of all kinds to pursue what was once known as the "American Dream" - single-family house, yard, car - in the suburbs. I say "left-wing radicals" because I have to hope that, as with the attack on Wal-Mart, the Democratic party as a whole knows better than to attack the suburban lifestyle.
If the GOP cements itself as the party of people who live in suburbs and the party of Wal-Mart, its customers, its shareholders and its employees, there won't be a whole lot of America left for the Democrats to represent.
LAW: The Wages of Delay
On Monday, Justice O'Connor's continued presence on the Court swung a 5-4 decision against state sovereign immunity. Now, as it happens, I haven't read the decision and I'm not an expert on this area, so I don't really have an opinion on who is right on this question, but it's a reminder of why the Democrats are desperate to drag out the confirmation of Samuel Alito as long as possible, to squeeze out a few more of these 5-4 decisions. The delay on his nomination is already reaching historic levels, and this for a guy whose lengthy record on the bench should have long since given everyone in the process plenty of information about his approach to judging. Armando at Daily Kos is droning on about more delay (funny how, when Armando's not spewing profanity he sounds just exactly like a guy who's been in the Senate too long), playing for time.
Of course, one of the little ironies: had President Bush gotten John Roberts confirmed as an Associate Justice as originally planned before Chief Justice Rehnquist died, O'Connor would be gone and the Court would be split 4-4. But had the Chief job come open now, when Democrats are frothing over the whole NSA-wiretaps issue, there would have been an awful lot more questions about the fact that the Chief has sole responsibility for appointing judges to the FISA court.
January 23, 2006
LAW/RELIGION: Saint Thurgood?
A group of Episcopalians wants to make Thurgood Marshall a saint. Via Bashman. Now, Marshall was a fine litigator who did a lot of good in his years as a practicing lawyer, and for the most part I wouldn't hold against him, in this particular context, the fact that he was a poor judge, as he was in most cases a well-intentioned one. But I do wonder about sainthood for a man who joined Roe v. Wade and, so far as I can tell, never repented of it.
POLITICS: Right Wing News 2008 GOP Blogger Poll
John Hawkins has posted the results of his poll of conservative bloggers' preferred 2008 candidates. The top three most wanted and most unwanted, by percentage of the vote:
The Top 3 Most Desired Candidates
3) George Allen (42.0)
The 3 Least Desired Candidates
3) Bill Frist (43.5)
Read the whole thing. The top 3 most-wanted are pretty much in the order I voted them, although I remain substantially subject to persuasion on their merits, especially Rudy and Allen. I also voted for Frist and Hagel among the least-wanted (along with Newt and Tancredo; I didn't even bother voting against Pataki), but I'm much more accepting of McCain as the nominee.
BASEBALL: Sunk Costs
I've been hard enough on Omar Minaya, but I should add this further thought on the Benson-for-Julio trade: one thing I do like about him is that Minaya doesn't marry his mistakes. Minaya wasn't the guy who traded for Benson, but he is the one who gave him the big free agent contract, when there were many better alternatives on the market, and he could easily have dug in and insisted on Benson being a part of the rotation going forward. That he didn't is a credit to Minaya's willingness to put success over pride, a failing of too many GMs.
SCIENCE: Cancer-Sniffing Dogs
Yes, cancer-sniffing dogs.
January 22, 2006
WAR: The World's Policeman
So, who gets called to take care of pirates in Somalia?
BASEBALL: This Week In Minaya
Well, Omar Minaya is still at it, trading Kris Benson to Baltimore for Jorge Julio and rookie pitcher John Maine. Let's summarize this deal:
1. Dumping Benson: good. I always thought the Mets paid too much for Benson when there were better pitchers on the market last offseason, and I have no faith in Benson after his late-season fade last year. And he makes three times as much money as Julio, although it's not clear to me if the Mets are eating any of the difference.
2. Getting Julio: bad. Julio's ERAs of 4.38, 4.57 and 5.90 the past three seasons adequately sum up his contributions. The Mets are now mobbed with righthanded relievers - Julio, Duaner Sanchez, Heath Bell, Juan Padilla, Chad Bradford, Steve Schmoll, and possibly Aaron Heilman. But none of these guys is bankable other than maybe Heilman, although I'm optimistic about Bell and willing to see Sanchez and Padilla get a shot and Bradford show if he's healthy.
3. Getting Maine: a crapshoot. Maine's a young pitcher who threw well in the low minors, has been so-so in AAA and horrible in brief exposure in the majors, and according to reports doesn't have an overpowering fastball. Maine will be 25 this year; he's basically just another pitching prospect who might or might not work out, so the jury's out on this one.
4. Trading Jae Seo: really, really dumb. Dealing Seo meant committing two rotation spots to Benson/Zambrano/Heilman. At least it now seems inevitable that Heilman will be in the rotation, which is a very good thing, but there's now no safety net if Zambrano pitches like Zambrano, or Trachsel or Pedro gets hurt again, or Glavine gets old.
What else is about to happen? Ken Arneson at Catfish Stew has a good roundup. While I'd love to have Barry Zito, and I'm sure Rick Peterson would too, I don't like the long-term idea of dealing Lastings Milledge for a guy with one year left on his deal, or the short-term idea of dealing both Milledge and Victor Diaz, leaving Xavier Nady as the everyday right fielder and no insurance in left in the 80-90% possibility that Cliff Floyd gets hurt. And while I like Jeff Weaver as a pitcher, I think his track record in New York pretty much speaks for itself. Still, the Benson deal does have "another shoe yet to drop" written all over it.
POLITICS: Seeing Beyond Today
As some House Republicans campaign to oust their scandal-blemished GOP leadership team, they are facing an obstacle back home. It seems many voters could not care less.
I'm sure this is quite true: voters are perenially cynical about corruption, and few of them have the foggiest clue who Roy Blunt, John Boehner and John Shadegg are, or what they stand for.
Now. In January.
But anybody who takes this as a sign that nothing needs to be done doesn't know the first thing about the rythms of the political caldendar. What it really means is, there's still time to fix the problem. But once the Democrats start rolling out attack ads in September and October, it will be too late, and Republicans who don't have a good answer won't have time to do anything about it.
As for corruption as an issue: yes, there's no reason to think the Democrats would be any better. And everyone knows that lobbying reform, from either party, is a pointless farce, just like campaign finance reform. As long as people have huge financial incentives to redirect Washington's vast influence over taxes, spending and regulation, there will be corruption; as long as there is politics in money there will be money in politics. But for all of that, when the voting public thinks the incumbents are corrupt, its default assumption is to throw the bums out and start with some new bums.
Republicans may yet survive all of this anyway, of course. Many of the "corruption" charges are overblown; gerrymandering keeps many House seats permanently uncompetitive; and voters are far less likely to "throw the bums out" if the economy is doing well and the other side can't be trusted to deal with foreign policy crises. But only a fool would ignore the need and opportunity to inject new vigor and direction into the GOP House leadership and make a clean break with business as usual. John Boehner would be an improvement in that regard over Roy Blunt, and Shadegg would be a very significant improvement, which is why I - like many conservatives outside of elective office - am supporting Shadegg. While there's still time.
BASEBALL: Clearly, Someone Slept Through Heckling 101
The Devil Rays are thinking of a new name: the Tampa Bay Tarpons. As MB puts it, "Do I have to spell it out for them?"
January 20, 2006
LAW: The Importance of Ayotte
Stuart Buck thinks the Ayotte decision will actually turn out to be hugely important, especially in future abortion cases, because of its conclusion that federal courts have inherent power to alter or narrow unconstitutional state statutes rather than strike them down wholesale. I'm not sure I'm entirely comfortable with this outcome - which would seem to encourage more rather than less intrusion by federal judges into the state legislative process - but it would be ironic, after all the hue and cry about the precarious balance of the court on abortion issues, if a major blow wound up being struck in favor of abortion restrictions by a unanimous opinion written by a basically lame-duck Justice O'Connor. Read Stuart's whole analysis to see where he goes with this.
BASEBALL/WAR: Lifetime Pass
Great Washington Post story about the lifetime passes to Major League parks given to the hostages on their return from Iran 25 years ago today. It's a great gesture by baseball.
Of course, for contrast, the story juxtaposes horror stories of the hostages' mistreatment with a famous picture of a blindfolded hostage being led by his captors, with a scowling Mahmoud Ahmadinejad (now Iran's president) second from right. The picture of Ahmadinejad is a grim reminder of the continuing timeliness of the hostage crisis, which is really where the campaign of radical Islamist terror against the United States began.
POP CULTURE: Na Na Na Na Na Na Na Na Na Na Na Na Na Na Na Na Na Na Na
RIP Wilson Pickett. Nobody in the worlds of rock, pop and R&B ever had a better singing voice.
January 19, 2006
POLITICS: To Be Blunt
Roy Blunt seems to have missed the memo about not ticking off Dale Franks. Tell us how you really feel, Dale:
I'll make a deal with Rep. Blunt. How's this sound? I'll go ahead and write whatever the hell I want to write. In return, if Rep. Blunt doesn't like it, then he can cry me a river. I think that sounds fair. Somehow, I managed to get along fine for the first 41 years of my life without talking to Roy Blunt, and things turned out OK. I'm not a Washington journalist. My livelihood doesn't depend on having access to powerful DC insiders. So, I think I'll be fine if I never talk to him again.
Read the whole thing; it's priceless, and yes, it really does take me back to what the House was like in the early 90s. Blunt may well be a great Majority Whip - nose-counting and arm-twisting are useful skills, and someone in the leadership needs to have them - but I'm not optimistic about November if Blunt winds up as the face of the House GOP.
POP CULTURE: This Is Not The Actor You Are Looking For
The problem today, and I think it's a very dangerous one for the people concerned, is that there are quite large numbers of very young men and women - boys and girls to me - from 18 to 30, and they are playing very large parts in huge films and they simply, through no fault of their own, don't have the background and the experience and the knowledge to pull if off.
Via Althouse. He doesn't actually say the name "Hayden Christensen," . . .
LAW: Cutting Out Trials to Save Money
POLITICS/LAW: Advice and Consent
Article II of the Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court." There remains, however, lingering controversy about the role of the Senate in giving (or withholding) that advice and consent, and all the moreso in today's world of powerful (and, hence, politicized) courts.
There remains broad, bipartisan agreement that the Senate's role in this process is not as a rubber stamp, and that the Senate has an obligation to assure itself that a judicial nominee is competent to the job, qualified by some relevant experience, has the necessary honesty and integrity, has at least some measure of independence from the person of the President, and is not otherwise disabled by conflicts of interest from serving on the bench. That's the easy part, and we have seen nominees in the past fail to surmount one or more of those basic tests, from Abe Fortas to Douglas Ginsburg to Harriet Miers.
The trickier question is ideology: the compatability of a judge's judicial philosophy and likely (as predicted by the public record at the time of confirmation) rulings on contentious issues with the beliefs and ideals of Senators and their constituents. Each Senator's determination of when and whether to vote for or against a judicial nominee (or, in the extreme case, to filibuster) will be determined and publicly justified on at least two levels. One, as is familiar, is the level of political calculation: each Senator seeks to please the wishes of the voters in his or her State, the broader electoral interests of his or her party, the demands of activist groups that provide funding and logistical assistance in re-election campaigns, and (for many Senators) the wishes of primary and general election voters in future presidential contests. Often, these interests are conflicting: Democratic Senator Ben Nelson of Nebraska, by committing to vote for Samuel Alito, is clearly acting in a way that will please Nebraska voters but disserve the interests of his party at large and the wishes of activist groups that customarily support Democrats. Democratic Senator Evan Bayh, if (as expected) he votes against Alito, will displease his Indiana constituents but please the primary voters for his anticipated 2008 presidential bid.
Aside from pure politics, however, Senators must give some thought to the public, philosophical justifications they advance for supporting, opposing or filibustering a nominee. There are seven basic models a Senator can follow in making and justifying that decision:
1. Deference to the President: The "Deference to the President" model assumes that, so long as a nominee is qualified and has no ethical issues, the Senate's job is done, and the nominee should be approved. This model is usually advocated by a number of Senators from whichever party holds the White House - especially if that party is a minority in the Senate - and by a handful of Senators from the other party who need cover for voting to confirm because the president is popular in their state. While there's certainly an argument in favor of this model - after all, the president gets to do the nominating, and his election should have consequences - as any number of liberal pundits have pointed out over the past five years, giving carte blanche to the president may depoliticize the confirmation process, but it only increases the incentive to politicize the nomination process, since there's no check on the president's nomination of highly ideological judges.
2. Judicial Philosophy: The "Judicial Philosophy" approach, popular now among conservatives, appears, at least, to be a variant on the Deference model; the argument is that nominees should not be voted up or down (or filibustered) based on their likely or anticipated votes, but should be confirmed so long as they demonstrate a reasonable process for deciding cases. At the extreme, a lack of coherent judicial philosophy may indicate a lack of competence, as was a key concern with Harriet Miers; while there is no need for a judge to swear allegiance to an all-encompassing theory of judicial legitimacy, a judge must at least show the ability to offer reasoned justifications for his or her decisions.
The downside of the Judicial Philosophy model is that it is unsatisfying. There's too much disagreement on what constitutes a reasonable philosophy for such a model to produce consistent results across both parties, thus defeating the ability of such a model, even if widely adopted, to deliver on its promise of a depoliticized judicial nomination process (which is not to say that a sound judicial philosophy is unimportant to reducing political influence within the judiciary, just to recognize that the political process finds it insufficient to answer its demands). And there are too many pressures even from conservative adherents of this model to nominate "good" judges on particular issues for anyone to pretend that we are all entirely indifferent to the results of the process.
3. The President's Promises: This is the model I personally prefer, as I explained back in October:
[P]residents are entitled - indeed, obligated, if you take seriously the idea that legitimacy flows from the people's approval of the principled positions taken during an election campaign - to nominate Supreme Court Justices who are consistent with the publicly declared philosophy of the president, and the Senate is justified in rejecting nominees on ideological grounds only if the nominee is far out of whack with what the people were entitled to expect from the president they elected. To give an example, Bill Clinton ran as essentially a social liberal - as far as the issues that are decided by courts are concerned - but with one significant exception, that being that Clinton supported the death penalty. There were a number of Supreme Court Justices in the late 80s/early 90s - I believe Brennan, Blackmun and Marshall all did this - who made a practice of voting to overturn all death sentences, to the point of dissenting from the Court's orders denying certiorari in each and every death penalty case not taken by the Court. Clinton was entitled to appoint liberal Justices, as he did, and as were confirmed by the Senate with significant Republican support. But I do think the Senate would have been justified in rejecting a Clinton nominee who was, in the Brennan mold, a doctrinaire, no-exceptions opponent of the death penalty, because that would have been out of step with the philosophy the president campaigned on.
4. The Senator's Choice: The Senator's Choice model, advocated by Chuck Schumer, treats the nomination process like any ordinary legislation and allows the Senator to vote against anyone he or she disagrees with: the president nominates who he wants, but the nominee gets confirmed only if 50 Senators approve of and agree with the nominee. This model, which treats Senate elections as particularly important in shaping the courts, is little different from Deference to the President when the president's party controls the Senate (unless there are significant dissenters within the president's party) but it rises in importance when the Senate and the White House are in opposite hands. Traditionally, most Senators have been hesitant to follow this model explicitly without any deference to the president's right to nominate; Ginsburg, Scalia and Roberts all received many votes from Senators who disagreed with them, and Clarence Thomas was confirmed by a Democratic-controlled Senate.
5. Consensus: The Consensus model is a variant on the Senator's Choice model, but even more demanding and explicitly supportive of the filibuster: the demand for a "consensus" nominee broadly acceptable to a lage component of the Senate presupposes that a nominee who is unacceptable to as many as 40 Senators should not be confirmed. The main weakness of this model is the Framers' unwillingness to require a supermajority for judicial confirmation; Article II speaks only of the consent of the Senate, not any special proportion thereof.
6. Litmus Test: Under the Litmus Test model, the philosophy/ideology of the nominee is a factor in confirmation only to the extent it can predict the nominee's votes on particular issues, but the nominee's view on one or more non-negotiable issues (usually abortion is #1 on this list) becomes a make-or-break factor. Conservative senators and many liberals regard this model as one that should not be admitted to in public, whether followed or not, but there are open exponents of it, most notably pro-abortion Senators like Arlen Specter (who has voted for apparently anti-Roe nominees anyway) and Dianne Feinstein, and it has had popularity at times in the past in fights over segregation and the New Deal. The Litmus Test model is perhaps the most supportive of the filibuster, since it assumes that some issues are too important to be left to uncommitted judges.
7. Status Quo: The Status Quo model has been cited much by Democrats lately, with talk of nominees who will "preserve" the Court's "balance" and adhere to "legal mainstream" positions, but at its core it's the most incoherent and in some ways the most small-c conservative model, as it expects that the nomination process will be used to ossify the current state of the law and prevent the appointment of judges who will bring their own, independent judgment to the bench. It's also deeply anti-democratic, assuming that the nomination and confirmation process will be entirely unaffected by elections.
January 17, 2006
POLITICS: Cleaning Your Own House
This story from Daily Kos diarist Mark27 is clearly written more in the spirit of bitterness than dispassionate analysis, but of course Mark27 is right that if the GOP picks a new House Majority Leader who is seen as a genuinely clean reformer - and John Shadegg does seem by far the best of the three candidates on that score - and is able to make some headway against the corrupting influence of earmarked spending and special-interest tax breaks that attract lobbyists, the Democrats' "culture of corruption" theme will dissolve, as the GOP will have proven itself capable of fixing the problem.
What I wonder is whether Democrats who agree with this analysis recognize its corollary: the harm inflicted on their own party by their to-the-last-dog defense of Bill Clinton.
LAW: Assisted Suicide Victorious
If you missed it, the Supreme Court - just months after holding that the Controlled Substances Act reaches far enough to cover intrastate marijuana growth for medical purposes - has held that the same statute doesn't reach far enough to authorize regulations prohibiting the use of controlled substances by doctors in physician-assisted suicide. The Court's opinion, by Justice Kennedy, is here; Justice Scalia's comprehensive dissent, joined by Chief Justice Roberts and Justice Thomas, is here, and Justice Thomas' additional dissent (writing for himself and complaining specifically about the inconsistency with Raich, the medical marijuana decision) is here.
The case is more limited than the usual hot-button social-issue case, since the Court was only asked to decide how far Congress intended the statute to go and not what the Constitution says on the matter. I haven't waded through all the conflicting arguments about the statutory issues in sufficient detail to have a firm grip on who has the better argument here; I'm inclined to side with Scalia, but that's not really an educated opinion and much turns on the abstruse issues of administrative law standards of deference. Justice Thomas, though, does have a rather compelling point that if the statute's breadth is as sweeping as the Court claimed in Raich, it's hard to see why it wouldn't also cover the proscriptions here. In any event, charges of hypocrisy against the dissenters seem to misunderstand the narrowness of the issue the Court was asked to resolve.
My gut-level policy thoughts on the issue:
1. Physician-assisted suicide is a Bad Thing and shouldn't be encouraged. I'm not an absolutist on end-of-life issues, for a variety of reasons - while there are common themes with the abortion issue, there are also a welter of complications on questions of heroic medical care, individual autonomy, and the like - and I think the government can best manage those complications by giving broad range to different people's different moral choices without a lot of interference. Nonetheless, inserting doctors - with their conflicting financial incentives and natural God complexes - into the business of ending the lives of people who aren't imminently about to die is just a bad idea.
2. That being said, the real issue with assisted suicide isn't the drugs, it's the doctors, and licensing doctors and resolving contentious issues about how far the state can involve itself in moral issues are classic questions for the states, not the federal government.
3. Which brings us back to the question at issue in Raich: if you let states have different rules, will it make federal regulation impossible? I wasn't persuaded of that argument in Raich and I'm certainly not persuaded of it here. Constitutional and statutory questions aside, in both cases the issue should be left to the states. And legislative or executive supporters of federal interference in both cases are certainly being fair-weather federalists.
UPDATE: I don't at all buy the claim that there's something hypoccritical about Scalia concluding that it was constitutional for Congress to use the Commerce power here:
The Court's decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business. It is easy to sympathize with that position. The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality - for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. See Hoke v. United States, 227 U.S. 308, 321—323 (1913); Lottery Case, 188 U.S. 321, 356 (1903). Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term "legitimate medical purpose" has any meaning, it surely excludes the prescription of drugs to produce death.
David Schraub argues that this is out of character for Scalia:
You got that? Even though it is found nowhere in the constitution, and justified by nothing more than a vague reference to "public morality", and involves an area traditionally left to the states, it's still a perfectly permissible.
(Emphasis in original). This misunderstands the role of the Court and the role of enumerated powers. First, as Scalia noted, this is a long-settled doctrine, and nobody in the case was calling to overturn it. Even Justices who think that we may properly revisit long-settled Constitutional doctrines are usually hesitant to do so without any party to the case asking them to. All Scalia was doing here was assuming that Congress legitimately intended to legislate for this purpose, given 100+ years of history saying it could.
More to the point, there is a big difference between saying that Congress (or another branch of government) can go beyond its enumerated powers, and saying that Congress can act within those powers for unenumerated purposes. Here, we have the latter - there is no question that the drugs involved in this case traveled in interstate commerce, and even Scalia is unlikely to sign on, at this late date, to a sufficiently cramped view of the commerce power to find that Congress can't regulate the use of goods shipped in interstate commerce; that battle was lost 70+ years ago. What Schraub is implying here is that Scalia, for consistency's sake, should have concluded that even an act within Congress' explicit powers is impermissible if the intended purpose of that act invades traditional state authority. But that is a much more radical states' rights doctrine than anybody on the current Court embraces, and it doesn't square with the plain language of the Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Tenth Amendment speaks of delegated powers, not the purposes and intentions to which those powers are put. Indeed, it would be a most unconservative approach (and one specifically dissented from by Scalia in Romer v. Evans) to give constitutional dimension to the intended purposes of an act rather than look at what powers are enumerated and presume that acts taken under those powers are legitimate (as was done in South Dakota v. Dole, an opinion Scalia joined). Schraub's analogy (taken from here) to United States v. Morrison, the Violence Against Women Act case, is misplaced; the Court in that case found an absence of proper basis for the commerce power in the first instance - i.e., an insufficient nexus between interstate commerce and domestic violence - rather than creating an affirmative rule repealing the commerce power, even when otherwise applicable, based upon the intended use of that power.
The lesson, as usual, is that people who charge conservatives with hypocrisy as often as not end up demonstrating that they don't understand conservative principles.
January 16, 2006
FOOTBALL: I'll Say This Much
Yeah, my opinion counts for little enough, given how little I've seen of the NFL this year. Going into today's game, I could not have named one Bear besides Brian Urlacher. Now, I can name two - Urlacher and Rex Grossman. Not that I suspect that's a name I'll need to remember; from what I saw today, Grossman appears to be the NFL's answer to Nelson de la Rosa, a good luck charm of little practical utility.
But I'll say this: the Panthers have to be the favorites now to win it all. To do what they did to the Giants' running game and the Bears' defense in consecutive weeks on the road is just remarkable. John Fox has them playing old-school NFC football, and that will keep paying dividends.
January 15, 2006
POLITICS: The Roe Effect
For every 100 babies born in New York City, women had 74 abortions in 2004, according to newly released figures that reaffirm the city as the abortion capital of the country.
First of all, what's a "spontaneous abortion"? Please tell me that's not a euphemism for miscarriages intended to make abortion sound like a natural occurrence.
Second, when you subtract out the out of town abortions, 40% of pregnancies are aborted - a number far too high to square with the common rhetorical effort to tie abortion to situations of rape, incest and other extreme cases.
Now, on to a not-unrelated story:
Southern and Western states are growing so much faster than the rest of the country that several are expected to grab House seats from the Northeast and Midwest when Congress is reapportioned in 2010.
The projections are based on state population estimates by the Census Bureau. The bureau released its July 2005 estimates Thursday, showing that Nevada grew at a faster rate than any other state for the 19th consecutive year, followed by Arizona, Idaho, Florida and Utah. Kentucky grew a modest 0.8 percent.
Strangely, when you kill off 40% of your children, your population doesn't grow so fast. And one more thought, while we're on that subject:
Read More »
BASEBALL: Sorry, Dale
POP CULTURE: The Wasteland
It's . . . hard to believe that [Jake] Gyllenhaal is in demand because, as recounted by Snead, "there is nobody else around to cast as an under-40 romantic male lead." She's asking readers to suggest names. ... Wasn't it only a few days ago that The New York Observer was telling us about a shortage of romantic female leads? No wonder Hollywood is in trouble. ("Can't we get a penguin in that role?") ...
Of course, I doubt very much that there's a shortage of attractive and talented young actors and actresses in the movie business. If Hollywood is having trouble making young stars who can handle these kinds of roles and connect with the public, maybe it needs to start casting them in movies with better scripts and more appeal to the public. Bad movies don't make stars.
January 14, 2006
WAR: Dead or Alive?
1. The U.S. apparently located Al Qaeda's #2 man, Ayman al-Zawahiri, in Pakistan and hit the location with a Predator drone-fired missile strike, killing a number of people. It's unclear if Zawahiri was there at the time, or whether he survived, and these things being what they are we may not know for sure for some time. I'm not betting we got him until we hear something definitive, but there's always hope.
2. Michael Ledeen claims that
[A]ccording to Iranians I trust, Osama bin Laden finally departed this world in mid-December. The al Qaeda leader died of kidney failure and was buried in Iran, where he had spent most of his time since the destruction of al Qaeda in Afghanistan. The Iranians who reported this note that this year's message in conjunction with the Muslim Haj came from his number two, Ayman al-Zawahiri, for the first time.
Ledeen's been reporting things for years that come from unnamed, unverifiable sources; that makes him consistently interesting (because he's reporting things nobody else does) but hard to rely on; while I have no doubt that Ledeen, with his intelligence background, does indeed stay in contact with people inside Iran, there's just no way to tell who his sources really are, whether they know anything or whether they're honest. For example, he's been confidently predicting the imminent collapse of the Iranian regime by popular revolt since about October 2001.
"Al Qaeda is increasingly in disarray and we have pursued, captured and killed a large number of them," Army Lt. Gen. John R. Vines, commanding general of Multinational Corps Iraq and the 18th Airborne Corps, said.
One more time: wait and see.
January 13, 2006
BLOG: Service Interruption
Unfortunately, due to the site crashing yesterday and moving to a new server, it looks like a month's worth of comments, trackbacks and site modifications have been lost. Stay tuned to see if the site stays back up, although the server move is complete and presumably you wouldn't be reading this if Network Solutions hadn't successfully redirected the URL to the new server.
January 12, 2006
BLOG: Quick Links 1/12/06
The site has had some technical problems and may continue to for the next day or so (I'm moving to a new server). This was posted Thursday morning.
*Faith and Fear in Flushing asks why Jim Bunning is in the Hall of Fame and Jerry Koosman isn't. Via Repoz. As I've written before, Bunning is a fairly weak Hall of Famer and shouldn't have been voted in, given the large number of comparable pitchers who are on the outs (I'd take Luis Tiant over Bunning any day of the week, let alone Blyleven). But the real reasons are obvious. First, W-L record: Bunning and Koosman won a nearly identical number of games, 224 to 222, but Koosman lost 25 more games. Second, strikeouts: Koosman's career high was 200, while Bunning struck out 200 six times and 250 or more three times. Third, the shape of their careers: Bunning won in double figures 11 years in a row, and between 1964 and 1967 his average record was 19-12 with a 2.48 ERA and 248 Ks in 298 innings. Koosman's best years were more broken up: he had three straight losing records from 1971-73, went 11-35 in 1977-78, and 4-13 in 1981. It's all somewhat unfair, but the fact is, the Hall has always rewarded players who concentrate their best seasons together.
*Ramesh Ponnuru notes the media's haste to characterize Judge Alito's views on executive power based on only the thinnest of evidence, persumably just to fit him into a preconceived storyline about Bush.
*I loved this line from Dahlia Lithwick characterizing the theme of Alito's opening statement: "My family was too poor to afford a judicial philosophy."
*The professor who suggested this question for Alito clearly missed the memo on the Democrats' talking points:
I'd also ask him if he would be willing to sell any shares of stock that might cause him to recuse himself (and instead reinvest them in mutual funds that do not require recusal based on underlying investments).
*Ted Kennedy and Joe Biden need to be reminded that in hearings, unlike in football, time of possession is not a winning metric.
*When you say "Ted," you put your mind on hold . . .
*Patterico catches the LA Times misleading readers into thinking that Alito is the fifth vote to overturn Roe (a claim repeated yesterday by Dick Durbin). If only.
*John Miller's latest NRO analysis has the 2006 Senate races a stalemate other than a likely GOP pickup of an open seat in MN and three "tossups," those being one Dem-held open seat (NJ), one GOP Senator (Santorum in PA), and one semi-GOP Senator (Chaffee in RI). In other words, if the Dems win all three tossups and the other races stay where Miller has them now, the GOP nets a loss of one seat, and only on the issues where Chaffee votes Republican.
*Jon Henke makes an excellent point about how all the money that flowed directly from Jack Abramoff was to Republicans, but Abramoff sent a lot of money indirectly the way of both parties. Typically, the Democrats are making a big deal about the direct/indirect distinction in defending their own, while counting the indirect money as part of what went to the GOP. I agree with Henke that the people who got money directly are in more trouble, but everyone will have some explaining to do. But at the end of the day, there's no real scandal in taking contributions from the guy - the real scandals are in the personal benefits (trips, etc.) and in ties to favors done for Abramoff clients. After all, there's no truer example of "everybody does it" than the fact that everybody takes money from favor-seekers.
*There has to be more to this story, doesn't there? Of course, I could see him joking about this. But it would be utterly typical of Bush national security controversies if there are reasons why Bush can't publicly disclose his reasons, and the critics get another free shot at him unanswered.
*Long Mark Steyn column that pretty well summarizes his theory of why much of Western Europe, Russia and Japan is headed for demographic and cultural suicide.
*Can you bully your way to Oscar glory?
*Rachel Corrie's family abducted by Palestinian terrorists. Oh, the irony.
*Henke again, on real wages. Essential reading.
It is much better copy as a naïve defense of Sacco and Vanzetti because this is what all my foreign readers expect, and they are 90% of my public.
January 11, 2006
LAW: Vanguard and CAP
More background on the Democrats' two-pronged attack on Judge Alito: the ABA dismisses the Vanguard kerfuffle, and Kathryn Jean Lopez points to the anti-ROTC climate (including the firebombing of the Princeton ROTC offices) in which Alito signed up for the pro-ROTC CAP group.
LAW: Advantage: Crank
[I]if Miers' nomination falls apart solely on the issue of her qualifications, that could provide a useful corrective for the post-Bork syndrome of picking nominees with short paper trails.
Do you believe that a defeat for Miers would make it less likely that candidates with no paper trail will be nominated in the future, just as Bork's defeat make it less likely that candidates with extensive paper trails and well-known public positions would be nominated? Would that be a good thing?
My hope is that Balkin is right, and that the Miers withdrawal will come, in time, to be seen as a bookend to the Borking of Bork: a cautionary tale that presidents of any party should not go too far in seeking to avoid nominees with a distinguished public profile of litigating, adjudicating or commenting on issues of great public concern. And that, to me, is an extremely encouraging development, a healthy corrective to the Bork precedent.
SMART IS IN: Old conventional wisdom: a super-smart conservative judge with a track record cannot be confirmed. Find a competent but non-stellar judge with conservative inclinations and no paper trail and sneak him through. New conventional wisdom: a super-smart conservative judge is easier to confirm. He'll outsmart his senatorial critics, paper-trail or no. The Harriet Miers nomination was a product of the old conventional wisdom. The new conventional wisdom means that, for some time to come, Republican presidents are going to be choosing nominees who delight conservatives.
[W]hat's even more interesting about potentially staging a big fight over Alito's ruling in the Casey decision is the identity of the defendant, the governor who signed into law and defended in court the abortion restrictions that the Senate Democrats would presumably be describing as "extreme," "outside the mainstream," etc. - Bob Casey, the Democratic then-governor of Pennsylvania. And, of much more urgent interest, the father of the Democratic candidate challenging the most vulnerable of Republican incumbents in 2006: Rick Santorum. If the national Democratic party wants to make Judge Alito out to be a right-wing nutcase over finding that Bob Casey didn't violate the Constitution, sooner or later someone is going to ask his son if he agrees. And that's gonna be a question that will put him in an awfully bad position.
With the Alito hearings in full swing, Senator Santorum is pressuring challenger Bob Casey Jr. to state whether he supports or opposes confirmation of Samuel Alito to the Supreme Court. Until Casey expresses his view, Santorum's campaign plans to call him "Silent Bob."
January 10, 2006
BASEBALL: Could Be Better, Could Be Worse
Bruce Sutter makes the Hall of Fame, and four other candidates get over 50% of the vote. As I've said before (see here and here), I'm lukewarm on Sutter as a Hall of Famer, but unable in any way to comprehend how Sutter goes in ahead of Goose Gossage. This chart I've run before shows some of the reasons why (to save time I've excluded Rivera rather than update his numbers):
* - Excludes ill-fated year as a starter
Let's look at the four-year voting trend by percentage of the vote (75% for induction), excluding guys with very low vote totals and guys who went in on the first ballot:
Everyone's numbers were up this year, as this was the weakest top of the ballot in years (next year, with Ripken, Gwynn and McGwire, will be different). You can go down the sidebar or use the search tool to get my take on the merits of most of these guys' candidacies, albeit in some cases written as long as five years ago. Some observations on the voting trends:
*The guys from John on down just aren't making it.
*Blyleven has gained serious momentum with each year, and this year's addition of a new Bill James study on his side has to help. I think he'll make it, and it will be some time before a better starting pitcher is on the ballot (Bret Saberhagen is by far the best starter entering the ballot over the next four years; the next people in Bert's class or better are all active, those being Clemens, Maddux, Randy Johnson, Glavine, Pedro and Mussina, of whom only Clemens might not return in 2007).
*The Goose, I think, will get in next year - not only is he close to 2/3, but with Sutter and Eckersley in, the case by analogy will grow much stronger.
*Rice and Dawson remain on the bubble. Both may be helped by the perception among sportswriters - sure to grow next year with McGwire on the ballot - that these guys were the last generation of non-steroid-using sluggers. I can hope the writers come to their senses on Dawson, but you never know. I don't think they get past 2007's crowded ballot, though.
*The analogy argument may also help Lee Smith once the Goose gets in, but if Rivera, Trevor Hoffman or someone else takes Smith off the career saves lead before he gets in, he's toast.
*Morris will have to wait in line behind Blyleven, but also benefits from a shortage of new starting pitcher candidates. The odds seem against him but he's not out of the game yet.
BASEBALL: Corey O's
David Pinto notes the Orioles' acquisition of Corey Patterson in exchange for two minor leaguers. I realize that a lot of sabermetrically-inclined folks, Pinto included, are very down on Patterson due to his appalling lack of strike zone judgment, but I'm not convinced that it's too late for Patterson to turn himself around, a la Sammy Sosa and Mike Cameron, players with similar skill sets and similiar (if less severe) strike zone problems.
Consider: Patterson will still be only 26 in 2006, and his list of comparable players is impressive; even after a rotten 2005 that dropped Reggie Smith, Andre Dawson and Dave Winfield off his list, he still compares rather closely to Sosa, Chili Davis, Dwight Evans, Paul Blair, Jimmy Wynn, Rick Monday, Augie Galan and George Hendrick - a list that includes a who's who of late bloomers - and the aggregate rest-of-career average for his comps from 26 on is .271/.460/.362 with 192 home runs. Patterson was quite useless in 2005, but I consider him a decent bet to be surprisingly productive in 2006, and to have a decent career, if only because the things he needs are things that can be learned. It's not a guarantee; his most-similar comp, Ruppert Jones, never did really put it all together, and of course Orioles fans will rememeber well the forever unfulfilled promise of Jeffrey Hammonds. But I'd put my money on Baltimore winning this deal.
LAW: Who Is John Flym?
When the Senate Judiciary Committee is done with Judge Samuel Alito, it will move on to the witnesses for and against him. The Democrats have promised an attack on Judge Alito's character, and specifically his credibility, focusing on two stories: Alito's apparently inactive membership in Concerned Alumni of Princeton ("CAP"), and the bogus Vanguard story.
The Democrats have already taken one hit to their witness list when it was revealed that their witness on the CAP story was an animal-rights extremist who compared eating meat to the Holocaust, promting them to withdraw the witness.
That leaves much of the attack on Judge Alito's character on the shoulders of the witness dealing with the Vanguard story, retired Northeastern Law School Professor John G. Flym, a former law partner of left-leaning civil rights attorney Harvey Silverglate, who involved himself in the plaintiff's attempt to raise the Vanguard issue in 2002 after she had already lost her appeal. Flym will no doubt be painted as a high-minded academic who involved himself in this case out of concern over a gross breach of judicial ethics. But we should ask: who is John Flym?
As it turns out, the answer that comes from Google and other research on Flym is that the man is a longstanding far-left-wing activist, who most likely jumped into the Vanguard case principally for the purpose of damaging a judge who had been mentioned as a Bush Supreme Court short-lister. Consider:
*In 1983, Flym made a joint appearance with left-wing "historian" Howard Zinn in support of a "Nuclear Free Cambridge Referendum". Flym argued that opponents' protests about a city council interfering in national defense policy came down to "some people think that democracy is unconstitutional."
*In 1984, Flym defended James Barrett, a member of the domestic left-wing terrorist group the Sam Melville-Jonathan Jackson Unit. A 2005 FBI report described this group as follows:
The Sam Melville-Jonathan Jackson Unit (SMJJU) was responsible for seven bombings and one attempted bombing from April 1976 to February 1979.
More on the group here.
*According to marijuananews.com, in 1998, Flym appeared at a panel to address "the racially-oriented history of federal drug laws".
*According to wagingpeace.org, in 2004, Flym was a signatory to a letter calling for "sanctions, including impeachment and removal from office of any civil officer of the United States responsible" for coercive interrogation practices in Iraq. What appears to be an Arabic version of the letter is here. Flym also offered support to all-purpose crackpot Francis Boyle in this online discussion about impeaching Don Rumsfeld.
Does Flym sound like an impartial ethics expert to you?
LAW: Ted Debunked
One of the things any good lawyer knows - and Senate hearings are nothing if not an illustration of bad lawyering in action - is that you don't make an argument or use a demonstration in court that can be cleanly and easily shown to be misleading or outright false. When something you've just used blows up in your face, you lose credibility in a big hurry.
So, assuming he even cares, Ted Kennedy couldn't be feeling too good about Day One of the Alito hearings. Kennedy brought out a study purporting to show that Alito "was found to rule against the individual in 84 percent of his dissents. To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom." As Byron York points out, Kennedy had to cherry-pick his sample very severely to reach this number, among other things focusing on just 45 dissenting opinions out of more than a thousand cases Alito has heard on the Third Circuit. (Leave aside the fact that the slant of Alito's dissents may say more about his colleagues than him. In any event, a sampling of dissents is always going to provide a more extreme look at any judge, since it crystallizes the cases where judges disagree. That may help show that Alito is more conservative than the average Third Circuit judge - but it's a long way from suggesting that he's a rubber stamp for employers or won't give litigants a fair shake where the law is in their favor).
If that wasn't enough - and with Ted Kennedy, it's never enough - Kennedy dragged out in his opening statement the claim that Judge "Alito has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job," a tortured case of Clintonian parsing that excluded cases in which Alito either (1) joined in opinions written by his colleagues or (2) ruled in favor of discrimination claimants on important procedural rulings (which can sometimes be more important than law made on the merits).
This time, it was too much, as Jeff Sessions cited back cases showing Alito ruling in favor of African-Americans. (More are listed here).
A lesson for courtroom lawyers: never say "never" unless you are sure it means "never" without strained caveats.
January 9, 2006
BASEBALL: Random Comparison
Most similar player to Grady Sizemore at the same age: Duke Snider. Not bad. Sizemore's overall list is pretty impressive in terms of talent, although names like "Ellis Valentine," "Tommy Davis" and "Ben Grieve" are good reminders of how many things can go wrong for a talented 22-year-old.
BLOG: Name Caruso's Blog!
Jay Caruso has given up politics and started a sports/pop culture blog, and he's giving away a free DVD as part of a contest to pick a name for his blog.
UPDATE: Is my blog now illegal?
BLOG: Programming Note
Some long-fuse, heavy-research baseball stuff is in the pipeline, but absent some significant baseball news, with the Alito hearings kicking off this week, expect a lot of law & politics blogging and not much baseball between now and Friday.
LAW: Democracy Banned in Boston?
If you thought the Florida Supremes were bad, at least the Florida courts seem to accept the idea that the people are capable of overruling them. But in Massachusetts, gay activists are taking the Left's view of an imperial judiciary to its illogical extreme, arguing that once a court renders a decision, the people are forever barred from self-government on that subject:
Massachusetts Attorney General Thomas Reilly "simply got it wrong" in September when he certified VoteOnMarriage.org's marriage amendment for a petition drive, said Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders (GLAD), which filed its lawsuit before the Massachusetts Supreme Judicial Court.
This is a shockingly broad assertion of judicial supremacy. If the federal constitution was read this way, we'd still be stuck with Dred Scott. Even Massachusetts' Democratic AG says this is nuts:
Citizen petitions have been used since the early 1900s to amend the state constitution "in response to a court decision finding a law unconstitutional," Mr. Reilly wrote. Petitions may not be used to "put a law back into effect" after a court has found it unconstitutional, but citizens are clearly allowed to amend the constitution "going forward," he wrote.
Indeed, if the constitution prohibited amendments to overrule the decisions of an unelected body, not only would it be fundamentally illegitimate under these principles and these, it might well be unconstitutional under the federal constitution, which guarantees each state "a Republican Form of Government," a concept that plainly contemplates that all sovereign power is ultimately answerable to the consent of the governed.
FOOTBALL: Men Among Giants
Yesterday's playoff defeat for the Giants could hardly have been more humiliating or demoralizing - I think Eli Manning may have passed for more yards to Panthers than to Giants. The Giants became the first playoff team to be shut out at home in 26 years (the last was Doug Williams' Buccaneers). What was particularly frustrating was that ex-Giants defensive coordinator John Fox did it by playing classic Giants football, munching the clock and stifling the Giants' running game. Take-home lesson: the single most essential element of a successful playoff team is the ability to stop the run. (#2 is a good offensive line; #3 is a kicker who is at least adequate; only after that can you start talking about skill positions, the pass rush and the secondary).
While the Giants were never the same this season after Antonio Pierce got hurt, and the injuries to the defense were clearly a factor yesterday, the defeat was too complete to blame on any one factor.
One result of this debacle, of course, will be to ratchet up the playoff pressure on Peyton Manning, since Eli's Jay Schroeder-ish performance only underscored the perception that the Mannings don't show up for big games.
BUSINESS: Pension Scandal in San Diego
Lawrence Grissom, the former administrator of the San Diego City Employees Retirement System, and Loraine Chapin, the system's general counsel, were indicted along with firefighters union president Ronald Saathoff, former city human resources director Cathy Lexin, and former acting city auditor Teresa Webster.
The indictment said the defendants conspired to illegally obtain enhanced retirement benefits for themselves - in one case as much as 35 percent higher - in exchange for allowing the financially strapped city to underfund the pension system.
The form is different this time - usually, the corrupt administrators of these big pots of money get in trouble for investing it with their cronies, maing politicized investment decisions or selling the opportunity to manage public pension money to the highest bidder. But the underlying problem is the same - all that money under the influence of just a few people, rather than distributing control over investments to the people who benefit from them. Until that structural flaw is repaired, it will be exploited by the unscrupulous.
January 8, 2006
WAR: The Training Ground
THE FORMER IRAQI REGIME OF Saddam Hussein trained thousands of radical Islamic terrorists from the region at camps in Iraq over the four years immediately preceding the U.S. invasion, according to documents and photographs recovered by the U.S. military in postwar Iraq. The existence and character of these documents has been confirmed to THE WEEKLY STANDARD by eleven U.S. government officials.
Now, this isn't entirely brand-new news to those of us who have followed Hayes' reporting. If Hayes is right, then the anti-war position can not possibly be defended - even if you set aside all of the other contacts between Saddam and terrorist groups, and set aside his violations of UN resolutions and the terms of the 1991 cease-fire, set aside his cat-and-mouse games with weapons inspectors and all the other WMD issues, set aside his corruption and evasion of the sanctions regime through the Oil-for-"Food" program and otherwise, set aside his open celebration of the September 11 attacks, set aside his history of attacks on neighbors, set aside his brutal abuse of his own people, and set aside the continuing cost we'd paid in keeping a military presence around him - there's really no way to argue that the United States could, in its right mind, have left a regime in power that was dedicated to training more anti-American terrorists.
Is Hayes right? Austin Bay thinks his account has the ring of truth, but as Jason van Steenwyk points out, Hayes spends the rest of his article complaining about the government's refusal to release documents rather than providing backup. Unfortunately, like the NSA story and similar stories based on anonymous sources or out-of-context documents provided to the press, this won't get support from the mainstream media in ferreting out what happened. But if we're going to keep debating the origins of the war, it should.
January 7, 2006
POLITICS: The Flag and the Border
Warming up for 2008: Jon Henke and Adam Gurri debate George Allen and the Confederate flag, and RedState diarist HeavyM looks at Tim Pawlenty's plan to fight illegal immigration . . . in Minnesota.
BLOG: A Good Cup
Maybe you should order a shorter cappuccino at Starbucks: "The short cappuccino has the same amount of espresso as the 12-ounce tall, meaning a bolder coffee taste, and also a better one." I wonder: does that mean even the really big cappuccinos and cafe lattes don't have more actual coffee in them, and thus - more importantly - don't have more caffeine? If that's the case, the latte - which I have from time to time as a shot in the arm - doesn't make sense beyond the smallest size.
LAW: Third Circuit Closes Ranks Around Judge Alito
In a relatively rare move, five sitting and two retired Third Circuit judges are expected to testify on behalf of their colleague, Samuel Alito, at his upcoming hearings. It is, of course, a sign of the high esteem with which Judge Alito is viewed by his colleagues. Naturally, the Democratic response will be to attack these jurists as well: a "Democratic aide said these judicial witnesses may raise a potential conflict of interest since Alito, if confirmed to the Supreme Court, could end up ruling on appeals of their decisions." Which is silly; these are people who already know Alito well, and if he's not biased towards them already - as we know he's not, given the frequency with which he has written dissenting opinions disagreeing with many of these same colleagues - how does this change things?
LAW: The Ted Kennedy Credibility Test
In politics, as they say, you can't beat somebody with nobody. Now comes Ted Kennedy, paragon of integrity and exemplar of mainstream thought, to match his credibility against that of Samuel Alito. Let's walk through Kennedy's charges one at a time:
1. 1985 job application : Alito was 35 when he applied for an important political position with Attorney General Ed Meese during the Reagan administration. Alito sought to demonstrate his "philosophical commitment" to Meese's legal outlook. He wrote that the 1964 Goldwater presidential campaign had been his original political inspiration, even though he was only 14 at the time.
What's unusual about this? 14 is about the age when many people start having their first semi-coherent political thoughts. Kennedy's Senate colleague Hillary Clinton was a teenage Goldwaterite. A lot has changed since 1964, and most conservatives wouldn't stick by everything Goldwater stood for then, but the broad outlines of Goldwater's thinking have become the mainstream in the GOP since 1980, and were particularly ascendant in 1985, when Alito wrote the application.
His views on the law, he said, were inspired by his "deep disagreement with Warren Court decisions."
No surprise there. Of course, disagreeing with those decisions doesn't necessarily mean Alito would vote to overturn those, but given his prior nominees and his promises on the campaign trail, it's hard to imagine Bush nominating anybody who wouldn't have deep disagreements with the Warren Court's approach.
He strongly objected to "usurpation by the judiciary" of the powers of the president, and supported the "supremacy" of the elected branches over the judiciary. Not surprisingly, Alito got the job.
And indeed, in a democracy, the elected branches must reign supreme. That doesn't mean the Supreme Court is a lapdog, or that it should be afraid to rein in Congress or the President when they exceed their powers, but the people's representatives do deserve some deference. (Not that Ted Kennedy is arguing here that Congress should not be supreme, just that the president shouldn't).
The views expressed there raise serious concerns about his ability to interpret the Constitution with a fair and open mind.
Oh, puh-leeeze. Justice Scalia has dealt adequately with this point; Justices aren't supposed to be free of thoughts and opinions about the law. It's not on the web yet but there's a great article in today's Wall Street Journal about the nomination of Louis Brandeis [It's now on the web here], who was one of the least impartial and open-minded people ever appointed to the bench. Many Justices, like Brandeis, Ruth Bader Ginsburg and Thurgood Marshall, had backgrounds as deeply ideological activists before coming to the bench.
When this embarrassing document came to light, he faced a difficult decision on whether to defend his 1985 views or walk away from them. When I and others met him a short time later, he appeared to be renouncing them -- "I was just a 35-year-old seeking a job," he told me. But now he's seeking another, far more important job. Is he saying that he did not really mean what he said then?
I've seen no sign that Alito is renouncing the entirety of his prior views; more to the point is that (1) he couched his thoughts in different terms when seeking a political job than he would as a judge, which no doubt is true as well of Stephen Breyer when he worked for . . . Ted Kennedy, and (2) twenty years have passed, and Alito may well not have exactly the opinions he did then. Most of us wouldn't.
2. Membership in "Concerned Alumni of Princeton." In 1972, the year Alito graduated from Princeton University, a group of wealthy alumni formed Concerned Alumni of Princeton (CAP) to resist the growing influx of female, African American, Hispanic and even disabled students who were changing the face of Princeton "as you knew it."
Apparently, 1985 wasn't far enough back for Kennedy. As far as I know, there's no evidence of Alito ever being active in any of CAP's activities. And do we really think this is about hostility to the disabled? CAP seems to have been mainly an anti-co-education group, granted that that may not seem like the wisest thing to join today.
The university's most famous alumnus of the day, basketball star and later U.S. senator Bill Bradley, was invited into CAP initially but quickly found it "impossible to remain a member" because of CAP's "right-wing" views. A special committee of alumni, which included future Senate Majority Leader Bill Frist, accused CAP of presenting a "distorted and hostile" view of the university.
You know, most colleges have these cranky-old-alumni groups - my alma mater, Holy Cross, does - and a lot of people sign their names to them without really endorsing their entire agenda. Kennedy has a small point here, but he really is stretching to go this many years back without any evidence of Alito actually saying or doing anything.
UPDATE: The Daily Princetonian quotes Drudge: "Alito will testify that he joined CAP as a protest over Princeton policy that would not allow the ROTC on campus." (Via Malkin) Given that Alito was himself in ROTC before it was booted from the campus, this is unsurprising. It's also worth noting that the crusade to restore ROTC at Princeton was successful - it remains one of just two Ivy League colleges that permits ROTC on campus.
Alito joined CAP about that time, despite its purposes and reputation, and remained a member through 1985, when he cited his CAP membership as another qualification to join the Meese inner circle.
As the Daily Princetonian noted, "[s]ome alumni expressed surprise at Alito's association with CAP, but at least two suggested he might have put it on the 1985 job application to appeal to a personal connection in the Reagan administration." Alito wouldn't be the first person or the last to try to connect with older alumni from his college in this way.
In 1987, when he was nominated to be U.S. attorney for New Jersey, and in 1990, when he was nominated for the U.S. Court of Appeals for the 3rd Circuit, he did not mention his CAP membership to the Senate Judiciary Committee or to then-Sen. Bradley, who introduced him to the committee at the nomination hearing and endorsed him "100 percent." Bradley says today that had he known about Alito's long membership in CAP he would have had serious questions about it.
Was he asked?
Alito now says he can't remember anything at all about CAP.
Which is utterly unsurprising, if it was a group he signed on with but was never active in. I'm sure a lot of us couldn't name, with 100% certainty, every group in high school, college and law school that we joined or whose events we attended, much less describe all of their activities. And more to the point, none of this has anything to do with "credibility"; a group like CAP may seem distasteful, but this is a square peg in the round hole of an assault on a man's integrity.
3. Failure to recuse himself in the Vanguard case : In 1990, during the confirmation process on his nomination to the 3rd Circuit, Alito disclosed that his largest investment was in Vanguard mutual funds. To avoid possible conflicts of interest, he promised us that he would recuse himself from any case involving "the Vanguard companies." Vanguard continues to be on his recusal list, and his investments in Vanguard funds have risen from tens of thousands of dollars to hundreds of thousands. Nevertheless, in 2002 he failed to recuse himself when assigned to sit on a case in which three Vanguard companies were named parties and listed prominently on every brief and on his own pro-Vanguard opinion in the case. In this case, he and the White House have floated many excuses, but none provided any sensible explanation for his failure to keep his promise or follow his "personal practice" of recusing himself whenever there was any possible ethical question about his participation in a case.
Note: in Vanguard funds, not Vanguard itself. I dealt with this issue at great length here, and concluded that this was a bogus issue. It's also not an uncommon issue in judicial world, as is shown by the cases of Ginsburg (who sat in 20 cases in which her husband owned stock in a party in her first 5 years on the Court) or Breyer (who'd heard a case involving Lloyd's of London despite being an investor); see here on Breyer's recusal issues.
4. His pledge to be absolutely impartial where the government is concerned : While chairing his confirmation hearings in 1990, I asked Alito how he could remain neutral in the cases that would come before him as a 3rd Circuit judge after his more than a dozen years of service representing the U.S. government. He stated that he would be "absolutely impartial" in all his cases. But in case after case involving the actions of U.S. marshals, IRS agents and other government officials, he has sided with the government and against the citizens, even when his fellow judges have told him he was off-base.
So, Alito has ruled in favor of the government more often than Ted Kennedy would. This is a "credibility" issue?
5. His promise to leave his personal beliefs behind when he became a judge : That's what he told me in 1990 he would do. But has he? In November 2000, at one of many Federalist Society meetings he spoke at, he indicated that he was a true believer when it came to the society's longstanding theory of an all-powerful executive.
Note that Kennedy doesn't provide a direct quote here. Certainly, many conservatives believe in a more powerful executive, and a less omnipotent Congress and Supreme Court, than most liberals do. But "all-powerful"? Get real. If Alito believed that he would never rule against the executive, nor even feel the need to offer a reasoned explanation why. This is just rhetorical smoke-blowing, and a rehash of point #1, at that.
His endorsement of presidential power and his criticism of the Supreme Court for undermining it made clear that his philosophical commitment in 1985 still drives him.
Kennedy now makes explicit the fact that he's repeating himself to fill space.
Alito's words and record must credibly demonstrate that he understands and supports the role of the Supreme Court in upholding the progress we've made in guaranteeing that all Americans have an equal chance to take their rightful place in the nation's future.
Note how Kennedy now segues into directly demanding fidelity to Ted's view of constitutional law.
"Credibility" has rarely been an issue for Supreme Court nominees, but it is clearly a major issue for Alito.
What a pitiful excuse for a hit job, really. If this is the best they have, the Democrats are desperate indeed. Kennedy has two charges that have even the slightest specificity to them: the Vanguard case, which at most is the most venial of sins for a judge, given the facts of the case, the extended chain of inferences needed to imagine how it could have affected Alito's finances, and the fact that every other judge to look at the case found it frivolous, and Alito's membership in CAP, which stretches back 33 years and has nothing to do with his credibility. The rest is just hot air about the fact that Alito approaches the law differently than Ted Kennedy would.
January 6, 2006
LAW: Heads I Win, Tails You Lose
To summarize, Chuck Schumer's position is as follows:
1. Answering questions is "particularly important," and "much more vital," for someone like Roberts, who has not "spent years forging a legacy on an appeals court, which can provide an excellent guide to [a nominee's] judicial philosophy," who has "served only two years on the bench," and as to whom there are not "many documents which would reveal [the nomineeâ€™s] thinking," and who is therefore "more of a tabula rasa than many other nominees in terms of . . . judicial philosophy."
Or, to put it differently: Roberts and Alito are Republican nominees, Ginsburg was a Democrat, and the rest is window dressing.
LAW: Martha Properly Convicted
The Second Circuit upholds Martha Stewart's conviction over a host of challenges to her trial.
LAW: Say, How About We . . .
LAW: The Democrats' Mainstream
Compare and contrast: if Samuel Alito isn't "mainstream," according to the Democrats, who is? Well, one of the witnesses they've lined up to testify against him is an environmental activist who compared eating meat to the Holocaust.
I swear, you couldn't make this stuff up if you tried.
LAW: No Choice For You!
Another victory for the forces of massive resistance to freedom of choice in education, and another tragic defeat for students trapped in bad public schools, as the Florida Supreme Court strikes down Jeb Bush's Opportunity Scholarship Program on the grounds that it violates the Florida Constitution. The opinion in Bush v. Holmes, No. SC04-2323 (Fla. Jan. 5, 2006) is here.
SCOFLA relied on the following provisions of article IX, section 1(a) of the Florida Constitution:
The relevant words are these: "It is . . . a paramount duty of the state to make adequate provision for the education of all children residing within its borders." Using the same term, "adequate provision," article IX, section 1(a) further states: "Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools."
Slip op. at 4. The OSP program allows students in failing public schools - i.e., schools that fail to meet certain minimum criteria set by the state - to choose either to move to another public school or to take a voucher to a private school of their choice. The court held that the latter option violated the requirement that a system of public schools be "uniform":
It diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida's children. This diversion not only reduces money available to the free schools, but also funds private schools that are not "uniform" when compared with each other or the public system. Many standards imposed by law on the public schools are inapplicable to the private schools receiving public monies. In sum, through the OSP the state is fostering plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools.
Id. (emphasis added). Leaving aside the Maoist overtones of the emphasis placed on "uniformity" in the education of the populace - emphasized later in the opinion with a lengthy screed against the sin of non-uniformity by private schools - the core of the court's holding is its conclusion that allowing students to voluntarily leave the public school system and be educated elsewhere at public expense reduces the exclusive hold of the public school system on public funds for education:
The Constitution prohibits the state from using public monies to fund a private alternative to the public school system, which is what the OSP does. Specifically, the OSP transfers tax money earmarked for public education to private schools that provide the same service - basic primary education. Thus, contrary to the defendants' arguments, the OSP does not supplement the public education system. Instead, the OSP diverts funds that would otherwise be provided to the system of free public schools that is the exclusive means set out in the Constitution for the Legislature to make adequate provision for the education of children.
Id. at 25-26. First of all, nothing in the provision at issue says that the public school system must be the state's "exclusive" means of educating children. Yet, that is the real concern of the SCOFLA majority:
Although opportunity scholarships are not now widely in use, if the dissent is correct as to their constitutionality, the potential scale of programs of this nature is unlimited. Under the dissent's view of the Legislature's authority in this area, the state could fund a private school system of indefinite size and scope as long as the state also continued to fund the public schools at a level that kept them "uniform, efficient, safe, secure, and high quality." However, because voucher payments reduce funding for the public education system, the OSP by its very nature undermines the system of "high quality" free public schools that are the sole authorized means of fulfilling the constitutional mandate to provide for the education of all children residing in Florida.
Id. at 26-27. The dissent is right, of course; the language of the Florida Constitution plainly requires that the state fund and keep open a system of quality, uniformly operated public schools for anyone who wants them, but it does not set any requirement that those schools capture any particular market share. Nor is it necessarily true that a shrinking market share will reduce the quality of education for those who remain; indeed, in most businesses, the existence of competition improves services for customers of a monopoly. SCOFLA's majority substitutes its own judgment on this point for that of the legislature, even though it is the quintessential sort of public-policy judgment best left to the people's representatives in determining how to execute the enumerated powers and obligations of a legislature in assuring the quality of public services.
And not only is the majority's focus on exclusivity misplaced, it is unrealistic - unrealistic in precisely the way that Brown v. Board of Education sought to be realistic, i.e., by recognizing the reality that not all public schools are equal. The majority acts as if just saying that the public schools are uniform and high-quality will make it so. To the contrary, if all of the students in failing schools abandoned them, leaving only the functioning schools afloat, that would create a school system that was genuinely both high-quality and uniform (as the present system is not, and - in the real world - probably never will be).
In the real world, there are public schools that don't perform up to standards, there are people who want their kids to go to a public school, and there are people who do not want their kids to go to a public school. The state can't get out of its constitutional duty to try to fix those schools for those who prefer to remain, but it blinkers reality to ignore the fact that substandard schools have long been with us, and it is truly heartless to require the customers of substandard schools to wait without hope of escape while the decades-long unfulfilled promises of help on the way proceed.
The majority seeks to hide its decision behind a patina of textual analysis, but at the end of the day, it is these judgments of real-world impact that decided this case. And they are judgments best left to elected officials.
UPDATE: What really rankles about this decision is its usurpation of the role of the legislature in deciding factual questions about the impact of public policy, and without even bothering to consider evidence. Yes, it can be argued, hypothetically, that voucher programs harm the public schools, despite the fact that they reduce the obligations of those schools. But the asserted negative impact of voucher programs on the ability of the existing school system to provide a quality, uniform education - much less a quality, uniform education as compared to the existing system - depends upon a bunch of factual assumptions and is precisely the sort of highly debatable empirical policy question that should be decided by legislatures, not courts.
Note that SCOFLA did not cite any record evidence showing an actual negative impact on the school system, which you would think would be required to violate a constitutional requirement of "quality." That's what's so objectionable about this decision - yes, there are policy arguments on both sides, but without consideration of any empirical evidence the court (despite its protestations to the contrary) held that one side's theories about the policy impact were categorically true. When, in fact, it should have admitted that the fact that the question was a hotly disputed matter of public policy rendered it better suited for resolution by the Legislature, not the courts.
January 5, 2006
BASEBALL: Trammell and Whitaker
I continue to believe that Lou Whitaker belongs in the Hall of Fame. Mike Carminati presents a Win Shares table and arguments in favor of Whitaker's double play partner, Alan Trammell, and a Win Shares chart for Whitaker as well (the real surprise on that table isn't Whitaker and Bobby Grich hanging even with the immortals - it's Willie Randolph right there with them). I guess I'm less sold on Trammell because of his frustrating inconsistency (the polar opposite of the metronomic regularity of Whitaker's career), but there's definitely a good argument that the two belong in Cooperstown together.
LAW: BREAKING NEWS: Justice Delayed
If the facts are against you, argue the law. If the law is against you, argue the facts. If both are against you, get a postponement.
BASEBALL: Seo Long
The Mets' two latest moves do not look good. First, they traded Jae Seo and Tim Hamulack to the Dodgers for Duaner Sanchez and Steve Schmoll. Now, I understand that Seo's strikeout rate has never been real good, although he did get it up to 5.88 per 9 innings last season. So I can't say with certainty that Seo will be reliable in the future. But as a 29-year-old starter who doesn't have a ton of mileage on his arm, has great control and seemed to figure things out last season, Seo is a valuable property and one of great usefulness to a Mets team whose rotation now includes 40-year-old Tom Glavine, Kris Benson (who missed April in 2005 and whose fastball went home to get an early start on the offseason in mid-August), 35-year-old Steve Trachsel (who pitched all of 6 games last season), and now, apparently, Victor Zambrano, who considers 5 innings a long outing. Compounding the problem, the Mets are apparently bent on using Aaron Heilman, their only remaining under-30 starting pitcher with a chance of pitching in the majors with the departure of Seo and Yusmiero Petit, out of the bullpen. Among other things, this bespeaks a dramatic misunderstanding of the relative value of starting pitchers vs. relievers. And, to top it off, the Mets pen, aside from closer Billy Wagner, will now include some mix of Heilman, Heath Bell, Sanchez, Schmoll, Chad Bradford, Juan Padilla and Royce Ring - only one of whom (Ring) is lefthanded, thus depriving the team of one of the major benefits of a deep bullpen.
On top of that, I don't know what evidence exists to suggest that Schmoll is a major league pitcher - he walked 22 batters and struck out 29 in 46.2 innings last season (compared to Seo, who struck out 59 and walked just 16). Sanchez, at least, showed signs of usefulness after bopping around multiple organizations, raising his K/9 rate from 4.95 in 2004 to 7.79 in 2005. But his 3.73 ERA (in Dodger Stadium, no less) was hardly stellar - not the kind of pitcher you surrender a good starter in exchange for. Ugh.
The second move won't cost much, except in wasted at bats, but seems like a brain-dead move: picking up Bret Boone, who is 37 and has batted .251/.423/.317 and .221/.350/.290 the past two seasons. And - there's no other way to put this - who seems a likely candidate to fall under the heading of "players who seem less likely to again hit as well as they did before steroid testing started" (Boone gained something like 20 pounds of muscle in one offseason in his 30s upon arriving in Seattle). No, I don't know a thing about what Bret Boone has put into his body, but under the circumstances I wouldn't employ him, either.
I actually thought Boone mightn't be a bad gamble in mid-season last year when the Mets were in the hunt and desperate to plug the 2B hole, but he played as badly with Minnesota as he had in Seattle, he's a year older now and there are other options out there - as the Daily News noted yesterday, second basemen who were available for a song this offseason included D'Angelo Jimenez, and Mark Bellhorn; Mark Loretta and Mark Grudzielanek were also available, and while I'm no fan of the Gruz he's not as obviously done as Boone, who's at the same stage Jay Bell was with the Mets.
January 4, 2006
POLITICS: Misleading Headline
AP: "Bush to Give Up $6,000 Linked to Abramoff". Which makes it sound like Bush took that amount in personal gifts - when, in fact, the $6,000 is legitimate, lawful donations to the Bush campaign, and the give-back (donations to charity, actually) is just a gesture of putting a xleazy character at arms' length rather than a sign that the BC04 campaign accepted anything it shouldn't have.
In a similar vein, I'm guardedly skeptical of the efforts to tie various Democrats to Abramoff to the extent that they just show Democrats taking campaign funds from a lobbyist who was particularly crooked; to get real traction, you either need to show officials taking personal benefits or receiving campaign contributions linked in some improper way to official action.
And while I wholeheartedly with National Review that Tom DeLay should remain stepped-down and that the House GOP needs to use the occasion to enact some real reforms, including reforms of the process by which taxpayer funds are routed to earmarked pet projects (repeat after me: you can't get money out of politics unless you get politics out of money), I don't agree with Captain Ed that the Abramoff scandal will decisively shift the balance of power from Congress to the White House and destroy the 2008 presidential aspirations of all current Senators. This scandal stinks and will stink some more, and it will be noticed by voters already sick of runaway spending and coziness with special interests, but it ain't Watergate and may not even be Abscam.
RELIGION: What's Italian for "Michael Newdow"?
Luigi Cascioli. Personally, I don't understand how anyone - regardless of their position on the divinity of Jesus of Nazareth - can believe that the man never walked this Earth, and I certainly don't understand how you would go about proving that in a court of law.
Of course, what is menacing here is the threat to use the legal system to outlaw Christianity.
January 3, 2006
Iran is working on a nuclear weapon, according to the neocon cowboy warmongers in British, French, German and Belgian intelligence and their right-wing lackeys at The Guardian. Via Goldstein.
BLOG: Don't Tickle Me
POP CULTURE: Four Reasons Why Not
I keep seeing ads for the new ABC series "Emily's Reasons Why Not," starring Heather Graham as Ally McBeal. One thing about the show that doesn't bode well is its title. A TV series' chances of long-term success decreases exponentially with each additional words in the show's title - successful shows nearly always have short titles (usually one or two words, especially if you omit the words "the" "and" and "show"), while shows with really long, clever titles usually bomb, and if they don't they find a way to shorten the title (e.g., "Buffy"). On that evidence alone, I'm skeptical that this one will fly.
BASEBALL: Chad Bradford
Perhaps needless to say, I'm in favor of the Mets' acquisition of former White Sox, A's and Red Sox reliever Chad Bradford, who some of you may remember as one of the subjects of the book Moneyball. Bradford was a heck of a pitcher between 1998 and 2003, before he started having back troubles. He's obviously a gamble, since his effectiveness may depend on getting healthy again, but there are few enough sidearmers in the game that they are often a good gamble.
January 2, 2006
WAR: Light at the End of the Tunnel?
The Washington Post today runs a lengthy front-page story on the Bush Administration's plans to wind down the civil-reconstruction aspects of its presence in Iraq:
The Bush administration does not intend to seek any new funds for Iraq reconstruction in the budget request going before Congress in February, officials say. The decision signals the winding down of an $18.4 billion U.S. rebuilding effort in which roughly half of the money was eaten away by the insurgency, a buildup of Iraq's criminal justice system and the investigation and trial of Saddam Hussein.
The whole thing is worth reading, for a more detailed and comprehensive look than the usual media focus on individual acts of violence. There are important signs of military and civil progress:
U.S. officials more than doubled the size of the Iraqi army, which they initially planned to build to only 40,000 troops. An item-by-item inspection of reallocated funds reveals how priorities were shifted rapidly to fund initiatives addressing the needs of a new Iraq: a 300-man Iraqi hostage-rescue force that authorities say stages operations almost every night in Baghdad; more than 600 Iraqis trained to dispose of bombs and protect against suicide bombs; four battalions of Iraqi special forces to protect the oil and electric networks; safe houses and armored cars for judges; $7.8 million worth of bulletproof vests for firefighters; and a center in the city of Kirkuk for treating victims of torture.
Of course, the article also details how expectations for progress in the reconstruction have had to be lowered as a result of the insurgency. And wrapping up the US role in rebuilding Iraqi infrastructure isn't the same as ending the need for US troops to work on the security situation. But progress is marching on, and it shouldn't go unappreciated.
UPDATE: Aziz at NoEndButVictory thinks this article is a sign of a "cut and run" by the Administration. It's a fair reading of the article, but an overreading, in my view. There's nothing here to suggest we're backing down militarily; the issue is simply how much the U.S. will continue to bankroll the Iraq's economic development and physical infrastructure. And the U.S. was never going to have a permanent commitment to financing the reconstruction. Naturally, there's a fair debate about where you draw the line, and I could be persuaded that we should shell out some more money here, but we always understood that a line would be drawn at some point, just as we've already drawn a line on the political redevelopment of Iraq, which is now in the hands of the Iraqis.
January 1, 2006
POP CULTURE: Dick Clark's Croakin' New Year's
You know, I can respect Dick Clark not wanting to have last year's stroke be his career's end, and I can respect how hard he worked to get in shape for last night, but really, the man sounded awful last night (he looked healthy, but weak and frail), and I can't imagine any good will be done by bringing him back again. Last night's performance looked like a cruel SNL skit imagining what Clark would be like when he's too sick to go on and nobody will tell him not to. Hat's off for the try, Dick, but it's time to go now while you still have some dignity.
BASEBALL: No on Dawson
Why am I not surprised that Phil Rogers, one of the deans of the old-time know-nothing sportswriters' club, wants Andre Dawson in the Hall of Fame? Much of this article is devoted to pumping up Dawson's grit and character and attacking steroid users, neither of which is much relevant to the question. And, like all sportswriters who disdain statistics, Rogers can't resist cherry-picking some stats of his own:
No eligible player has ever collected as many hits (2,774) or RBI (1,591) without becoming a Hall of Famer -- a claim that Dawson will almost certainly pass to Harold Baines (2,866 hits, 1,628 RBI) when he goes onto the ballot a year from now.
I think the second part of that pretty well answers the first, no? And this is a valiant attempt to make virtues of Dawson's flaws as a candidate:
With the Cubs, Dawson won a Most Valuable Player award in 1987 and helped his team to the National League East title in 1989, putting an end to the New York Mets' dominance. Even then, we weren't getting the best of Dawson.
Um, Dawson's career was ground down by bad knees. Know how many guys would have better Hall resumes if they hadn't had bad knees? Even with his knees, you take Dawson and I'll take Tony Oliva and we'll see who wins more pennants.
I've been through the case against Dawson before. In a nutshell:
1. Dawson's .323 career on base percentage made him a far easier out than any Hall of Fame outfielder or first baseman:
Dawson's career OBP of .323 isn't just unspectacular, it's poor. In fact, only one Hall of Fame outfielder has a career on base percentage below .353, and that's Lou Brock (.343), who played in the offense-starved 1960s, as did the only two other non-shortstops in the Hall with a career OBP below .340, Brooks Robinson (.322) and Bill Mazeroski (.299), both of whom were also legendary glovemen. (The only two until Gary Carter, that is; Carter's was dragged down at the end to .335). The only Hall of Famers below .350 who got in without playing a key defensive position and playing it well are first basemen Tony Perez (.344) and George Kelly (.342); I've argued before that Perez was a mistake, and Kelly is the Hall's single most indefensible selection.
2. Dawson was a poor postseason performer:
The postseason should be a big thing for a guy thought of as an inspirational leader. But Andre Dawson in October was hideous, .128 with no homers in two losing efforts in the NLCS. (Dawson hit .300 in the divisional series in 1981, but with no homers and no RBI). In 1981, when Dawson was at his peak - runner-up for the MVP award - the Expos lost an NLCS decided by one run in the last inning of the deciding game. Where was Andre? He didn't drive in a single run the whole series.
3. Dawson's teams often did not show any sign of benefitting from his presence:
Dawson's Cubs teams never won much in part because they got few baserunners and the young players on the team (except Mark Grace) followed Dawson's lead in swinging at anything. Coincidence?