Man Without Qualities

Posted 11:35 PM by Robert

One Step Beyond

For some reason known only to her, French presidential candidate Segolene Royal, who has never even visited Quebec, has been mindlessly asserting in public (!) that the province and France have "common values," including “sovereignty and Quebec’s freedom.” That bizarre and pointless provocation (what's she got against Canada anyway?) has drawn a rebuke from Canadian Prime Minister Stephen Harper and Quebec Premier Jean Charest. The incident of course recalls a low point of French President Charles de Gaulle career when he declared "Vive le Quebec libre" (Long live free Quebec) during a visit to Canada in 1967. He is said to have been surprised to have to cut short his visit after making the comment. One wonders if he planned next to visit New Orleans and spice things up by shouting "Les Sud monteront encore" (The South will rise again!) in Jackson Square.

In any event, since this kind of thing keeps happening, perhaps the Canadian government should consider going one step beyond the predictable expressions of astonishment at the destructive stupidity of the meddling French politician de jour. Perhaps the time has come for Canada to really get behind some or all of the really amazing number of French regional separatist movements. Why should the Canadian government be deterred from finding "common values" including “sovereignty and Corsica's freedom” with, say, the National Front for the Liberation of Corsica just because that organization practices bombings, aggravated assault, armed bank robbery and extortion through "revolutionary taxes?" After all, their attacks are mostly aimed at public buildings, banks, touristic infrastructure, military buildings and other symbols of French control - usually not against persons. Maybe Ottowa should announce that it will consider making financial contributions to Corsica Nazione and Partitu di a Nazione Corsa, political parties advocating Corsican separation from France? Why not? Or maybe it would be more interesting for the Canadians to stimulate the ambitions of separatists seeking to break off some other piece of France with a (sometimes violent) separatist movement, such as Alsace-Lorraine or French Basque Country or Brittany or Nice or Normandy or Northern Catalonia or Savoy or (my favorite) Occitania?

Of course, one might reasonably ask what business does Canada have to foment the break up of France? But, then again, why the heck do French politicians think they have a role in stimulating the breakup of Canada? I guess it's just fun for some people to watch the scramble, the way some kids like to burn ants with a magnifying glass.

Posted 8:54 AM by Robert

Taking Bill Richardson Seriously

Democratic Governor Bill Richardson of New Mexico has just announced that he is taking the first step toward an expected White House run in 2008. It may be difficult for many people to take him seriously. After all, none of the things Terry McAuliffe listed about Hillary Clinton can be said of the New Mexico Governor: “She has the name recognition, the money, the glitz, she’s got it all.” John Edwards has all that plus really good teeth and a cash-in-the-bank silver tongue! And while Mr. Richardson can make a claim in the identity-politics game ("He seeks to become the first Hispanic president!"), the whole Obamarama type thing is missing. Heck, Senator Obama is said to be so fat-free than he is worthy of mention as a beach-babe in the same breath as the sainted Catherine Zeta-Jones, Penelope Cruz, Jessica Alba and Hugh Jackman - while the good Governor (how to say this politely) is probably best advised to stay out of saltwater.

So why take Bill Richardson seriously?

One should take Bill Richardson seriously for the same reason that one would have done well to have taken Jimmy Carter, Michael Dukakis, Bill Clinton and even the preposterous Howard Dean seriously at this stage of the campaign:

Bill Richardson is a successful governor.
He has real public chief executive experience, and he sounds like it and looks like it. None of Clinton, Obama or Edwards has ever run anything beyond a political campaign. That doesn't seem to matter to some chattery people. For example, according to Mr. McAuliffe Senator Clinton "has it all" - but for some reason Mr. McAuliffe fails to note that at this point she doesn't seem to have the voters. Maybe she and he have a plan to bypass the voters based on some clever adverse possession argument arising from Hillary's eight years in hostile, open and notorious occupancy of 1600 Pennsylvania Avenue? Isn't that why one goes to Yale Law School?

There is a basic political fact here that is normally and foolishly forgot as often and as soon as it is said: The Senate is poor training ground or launching pad for a presidential bid, while the governorship of even a small state is terrific as both. Yes, the dull, incompetent, unpleasant Senator Kerry eventually beat back fiery Governor Dean. But Howard Dean is from a tiny, unrepresentative state, is personally and obviously completely unsuited to serve as president and, on top of all that, is a nut. Given his limitations, it is really remarkable that Howard Dean did as well as he did ... and his governorship is much of what carried him as far as he went, which was pretty far. So the obvious advantages enjoyed by Senators Clinton, Obama and Edwards may swamp Governor Richardson's executive experience.

But don't count on it as a certainty. Bill Richardson could be a serious contender.

Posted 3:11 PM by Robert

Things Change And Yet Are Not The Same? II: "Ô Français, faites des enfants!"

As noted below (Things Change And Yet Are Not The Same?), France is cooing over its fertility rate reportedly rising to 2.0 with the media rather mindlessly repeating French politicians' claims that government economic incentives have made the difference. Maybe. Other analyses suggest that politically feasible benefit reforms can move fertility up or down by about 5% - far less than the French politicians and their silly media troops are claiming. In fact, the politicians' explanation seems about as likely as the theory that the French have taken to heart the Poulenc surrealist opera Les mamelles de Tirésias ("The Breasts of Tiresias"), which ends with the ringing and stern command "Ô Français, faites des enfants!" ("O Frenchmen, make babies!") And why not?

Whatever it is that drives the French fertility rate, it sure has changed a lot over time. Between 1950 and 1965, the total fertility rate in France remained above 2.7 children per woman, but later dropped by 40 per cent, from 2.85 in 1960-1965 to 1.72 in 1990-1995. Some claim the rate reached as low as 1.63 in 1998. A change from 1.72 to 2.00 is about a 16% change in fertility - or more than three times the 5% maximum that has been estimated to be obtainable from government economic incentives. Where did the other 11% (more, if one accepts the 1.63 rate) change come from?

Well, I don't know. But I'd like to posit a possible "Roe Effect" here.

Oral contraception became common just about the time the French fertility rate hit its 1960's peak. So it wouldn’t be too surprising if the availability of contraception allowed for a big new measure of control of pregnancy, and therefore fertility, than was previously available. In other words, it seems reasonable that many French births prior to the late 1960's were "unwanted" - and thereafter "avoided" -resulting in the drop in fertility to 1.72 by 1990.

It seems reasonable that children whose parents want to have children will themselves be more likely than the average person to want to have children. Of course, such "wants" mean little until one can separate sex from the possibility of children on the choice level. In other words, absent contraception and abortion, the decision to have sex will pretty much determine the question of whether there will be children. That means that prior to wide scale contraception and abortion (before, say, circa 1965), people became parents once they had sex regardless of whether they wanted to have children. After abortion and contraception became elective, only people who wanted to have children had children.

So what?

Well, after one post-1965 generation France should be populated only with the children of people who wanted to have children - and we've posited that such children will want to have children more than others. In other words, it seems reasonable that the availability of abortion and contraception will after one generation increase the percentage of people in the population who actually want to have children. That should boost the fertility rate - perhaps enough to account for the increased fertility rate.

Such effects are everywhere. It is said that such effects are making the United States more conservative and Republican, for example. Such "Roe Effects" have famously been charged with reducing the crime rate and many, many other things. Would it really be all that surprising if Roe Effects caused the French to rise to Mr. Poulenc's challenge and embrace Les mamelles de Tirésias?

I'm not asserting that Roe Effects are the best explanation for the recent apparent uptick in French fertility rate - only that such Effects are worth studying in this regard. Of course, all of this suggests that one ask about the fertility rates and histories of other countries. Indeed, the French fertility rate has attracted some rather curious criticism over the years. In 1990, for example, Herve Le Bras, one of the directors of research at France's national institute of demographic studies, was dropped from the editorial board of the institute's journal, Population and Society, and from his functions as a scientific adviser. He claimed that the institute had been "telling whoppers for the past 15 years" by using a method of calculation which leads to a figure of 1.8 births per woman, even though it admits that the total number of children born to women of one generation stands at 2.1.

Odd, that.

Posted 3:56 PM by Robert

And The Alternative Behind Door Number Two Is ...?

Yesterday we learned that Nancy Pelosi will not seek to cut off funding to block Mr. Bush's "troop surge." Indeed, the new Speaker said that "Democrats will never cut off funding for our troops when they are in harm's way" - which, of course, is exactly what another Democratic Congress did to force an end the Vietnam War.

There is no question that general discontent with the Iraq situation, and with the Administration's handling of it, is high and getting higher. Indeed, there is no real question that such discontent is the overwhelming reason why Democrats now have a tenuous majority in both Houses of Congress. But it's one thing to tap into public discontent with the direction of the Iraq incursion to win an election, and quite another thing to come up with a viable alternative. Coming up with a satisfactory alternative is now on Ms. Pelosi and her troops and the clock is ticking. But the political difficulty involved is apparent in the public's confused (to say the least) answers to this question in a recent Los Angeles Times Poll:

Q: What issue should be the first priority for the newly elected Congress to address? (top three responses; up to two responses accepted)

Only 20% of respondents said that "Set a timetable" should be top priority, 9% said "Oppose Bush plan" should have that priority, while a mere 7% thought that coming up with an "Alternative plan" should be tops. Healthcare drew 20% and Stronger immigration laws drew 10%.

That kind of grossly confused public sentiment may be a key reason Ms. Pelosi is taking no definitive action against the Bush move, while making inflamatory but highly ambiguous comments such as her assertion on Friday that the President is wading too deeply into Iraq and said it should not be "an obligation of the American people in perpetuity."

I'm not sure what the effect of a policy of super heated rhetoric coupled with feckless activity will be in the large - and I doubt if Ms. Pelosi does either. But I'm fairly sure that such a policy carries pretty big risks for the Speaker personally - and I think she does, too. The fact that she is prepared to take that risk is some indication of how volatile the crrent situation in Washington really is.

Posted 2:46 PM by Robert

McCain-Feingold, Dead By Independence Day?

The Supreme Court today agreed to review McCain-Feingold to "see" if it violates the free speech rights of advocacy groups by prohibiting them from running ads mentioning specific candidates before an election. Of course, this is pretty similar to the Supreme Court granting review of a law to "see" if it violates the free speech rights of advocacy groups by, say, allowing the government to keep the members of the group bound and gagged for the sixty days before an election. The answer is obvious, but only if one actually cares about the First Amendment. The Washington Post reports:

The Supreme Court three years ago upheld the constitutionality of McCain-Feingold, which was enacted to reduce the influence of campaign spending by wealthy individuals, corporations, unions and special interest groups. But Justice Sandra Day O'Connor, who was part of the 5-4 majority that issued a complicated, nearly 300-page ruling, has retired. She has been replaced by Justice Samuel A. Alito Jr. After O'Connor's departure, the court last year told the lower court to take another look at Wisconsin Right to Life's petition.

When the Court - any court - hands down a complicated 300 page split opinion, you know its got to be wrong, and they know it, too. One doesn't have to be a veteran Court watcher to figure out that the old-4-vote-minority-plus-Alito is eyeing that opinion foolishly upholding McCain-Feingold with approximately as a highway partol officer eyes a red Porsche doing a ton-and-twenty-five that got away from him the week before.

Done by July. With lots of summertime left to reach right up and touch the sky!

UPDATE: The usually clueless Linda Greenhouse weighs in true to form, grossly underplaying the error made by those (including the FEC and Ms. Greenhouse) who "had regarded the constitutionality of the provision as settled." In fact, the Court made clear in a later unanimous opinion that it had merely upheld the statute "on its face" (as Ms. Greenhouse notes but without commenting on the Court's astonished tone). Even upholding McCain-Feingold on its face was technically already serious Court error, as indicated by Justice O'Connor's tortured opinion. But that error was almost nothing in substance and practice, especially given Justice O'Connor's intensely fact-and-application-based opinion. Look for the Court to either reverse itself and declare McCain-Feingold flatly unconstitutional on its face, or (more likely) to overturn its old decision sub silentio by holding that the statute is unconstitutional in virtually all applications - especially where the statute's advocates most want it to apply!

Posted 11:03 AM by Robert

Things Change And Yet Are Not The Same?

Some things have changed in France:

France has overtaken Ireland to become the European nation with the highest birthrate ... taking the fertility rate to two babies per woman for the first time since 1974.... [H]alf the children are born outside marriage. ... The birthrate among immigrants generally matched that of native-born French. ...

Parents are helped by a system of allowances, free daycare and universal nursery schooling, cut-price transport and generous income tax reductions. .... France is on course to become the most populous country in Europe by 2050, overtaking Germany. ... Germany introduced French-style incentives last year for couples to produce children. Its population is expected to drop from today’s 82 million to under 70 million unless women can be encouraged to have more [children].

It would be particularly interesting to see at least one additional bit of statistical breakdown in this data: How does the birthrate of native-born French women whose parents were immigrants to France (especially from Africa) compare to the birthrate of other native-born French women? There is a clear social divide in France between more recent immigrants and their children on the one hand, and other French. The article states that birthrate among immigrants generally matched that of native-born French, which suggests that reproduction pattern of the children of immigrants is not that different from that of other French people, but that conclusion is far from logically compelled.

The article is also rather blasé about its assumption that the increased French birthrate is mostly attributable to government economic incentives. Other estimates place the cost elasticity of the demand for children to be about 0.2 and go on to suggest that politically feasible benefit reforms can change the cost of children by about 25% and move fertility up or down by about 5%. The current French results as reported in this quoted article may be well beyond that 5% range. Italy, for example, has a birth rate of about 1.2 to 1.3, far outside the 5% envelope.

It's interesting to see this assumption that economic incentives profoundly affect reproductive decisions at work without apparent friction, even to the point of possible serious exaggeration, where the similar proposition that the economic effects of the American welfare system dramatically affected the reproductive choices of welfare recipients has long been an incendiary element in American political discussion. Perhaps a measure of that incendiary potential can be seen in the article's demur announcement that "half the children are born outside marriage," with no discussion at all as to whether that figure is also attributable largely to those same government economic incentives. Then there is the possible elephant in the corner that goes completely undiscussed: The likely quality of the additional French children. If one is counting on the new births to help pay for social programs - as the article indicates is happening in France now - it would be a good idea to first determine whether the new children are really going to be making a significant contribution, or whether they will act more like the children of American-style "welfare dependency."

As an interesting aside, Post-World War II French income tax policy was highly unusual and regressive, and was enacted to increase fertility. Most countries provide a fixed income tax deduction for each child. For forty years following WWII, French policy provided a deduction increasing with family size - creating a tax advantage of having children that increased with wealth. That French policy was unique in providing a monetary incentive for fertility that was large and greatest among the rich.

Posted 12:49 PM by Robert

Creme de la Creme

One of the more intense and peculiar politically correct crusades is the drive against "obesity" - especially "childhood obesity." It's not that obesity shouldn't be avoided or isn't generally a bad thing. But as with many PC obsessions, many of the most intense participants in the anti-obesity drive often seem to be motivated by an entirely different agenda, one that often seems to be obscure to such participants themselves. That agenda seems to have something to do with a deep disapproval of fast food, unfettered personal choice and a whole consumerist attitude towards life.

Perhaps nowhere is this confused and obscure agenda suggested more strongly than in the drive against certain milk products, especially full-fat milk served in school. We are often told in the highest political decibels that schools that serve full-fat milk are all but guilty of child abuse. Yet there is no evidence whatsoever that serving non-fat milk to school children would even correspond to a likely weight loss, still less that serving non-fat milk would actually cause or result in weight loss or control. Yet the PC brigades soldier on.

Now comes Stockholm's Karolinska Institute, which now reckons that daily consumption of full fat dairy products will lead to a reduction of obesity: The startling result was based on interviews with almost 20,000 women whose dietary habits have been tracked since 1987.

When the study began, the women had an average body mass index (BMI) of 23.7. Ten years later, the women who had regularly consumed full fat milk or cheese had a lower BMI than the rest of the group.

A glass of full fat milk every day will, according to the researchers, result in 15 percent less weight gain. But full fat cheese was an even more effective slimming product: one portion a day resulted in 30 percent less weight gain.

"The surprising conclusion was that increased consumption of cheese meant that overweight women lost weight," said Alicja Wolk, professor at Karolinska Institute, to Svenska Dagbladet.

Actually, the result is far from "startling" or "surprising" given that we know very little about obesity other than that it results over time from eating more calories than one metabolizes - and especially given the pre-existing lack of any scientific correlation between consumption of skim milk and weight control. How can one be rationally "startled" or "surprised' when one had no idea what to expect in the first place?

Will the anti-fat-milk PC brigades back down now on the drive to eliminate full-fat dairy products from school menus and children's diets? Or, better yet, will the brigades now lobby for serving full-fat milk ad dairy products in public schools? Probably not. And their not backing down would make their agenda seem even more obscure and confused, wouldn't it?

POSTSCRIPT: New York City — the nation's largest school district — has famously decided to cut whole milk from its school menus in response to criticism from the anti-milk-fat brigade. Moreover, current federal government nutrition guidelines suggest drinking 3 cups of fat-free or lowfat milk a day. If the Swedes are correct, following those guidelines should help anyone - including children - swell up nicely. And New York City school children should have an advantage over children from the rest of the country in swelling to ever more Brobdingnagian proportions! (Perhaps a misuse of the term, since the Brobdingnagians were just really big - not fat, actually. But, then the term has come to mean "gigantic" or a "size problem" generally - at least in some quarters.)

Posted 3:28 PM by Robert

Associated Press Botches Execution, Morality, Journalism (So What Else Is New?)

Do reporters and editors have to go to some special school, or have some exotic surgery performed on their brains to remove the moral center, to run an article about a "botched" execution without a single mention of the name of the killer's victim or the circumstances of the murder, and without any mention of any attempt on the reporter's part to obtain the views of the victim's family?

Does it matter that the killer is fully named in the article, described by his named relatives in the most sentimental terms possible ("God chose my uncle to change history!") and that his irrelevant ethnicity is specified, while his victim is dismissed as a nameless "manager of a Miami topless bar 27 years ago?" Does it matter that the article is without any mention of the hideous aggravating circumstances of the victim's murder that warranted imposition of the death penalty?

Here is an entire article from the Associated Press - a very sick place:

Family denounces botched Fla. execution
Fri Dec 22, 11:54 PM ET

A Puerto Rican man whose botched execution in Florida renewed opposition to the death penalty in the United States and this island territory was buried Friday in a ceremony attended by about 100 people.

Angel Nieves Diaz, a career criminal condemned for killing a manager of a Miami topless bar 27 years ago, was given a second dose of deadly chemicals as he took more than half an hour to die on Dec. 13.

At the funeral in suburban Rio Piedras, family members said they hoped the notoriety of Diaz's case would boost the international campaign against capital punishment.

"God chose my uncle to change history," said Jackeline Nieves. "Now the death penalty isn't seen as something normal. It's seen as the worst, most inhumane method."

Medical experts said the 55-year-old convict could have experienced severe pain as needles that were supposed to inject drugs into his veins were instead pushed all the way through the blood vessels into surrounding soft tissue.

The case prompted Florida Gov. Jeb Bush to suspend all executions in the state as a commission examines its lethal injection process.

The U.S. Caribbean territory abolished capital punishment in 1929. However, federal prosecutors can seek the death penalty in some cases because Puerto Rico is subject to U.S. federal law.

The Associated Press doesn't think the victim is worth his name, but I'll publish it here: Joseph Nagy. I never heard of Mr. Nagy before, but I have known some Hungarians by that name - and since the AP saw fit to belabor his killer's ethnicity, I'll mention this groat of evidence concerning his victim's possible heritage. The AP tells us that about 100 people attended the killer's funeral (but no mention as to how many attended for larger political purposes). But neither the AP nor the public court records available online provide a clue as to how many people showed up to see Mr. Nagy off this earth - or what his family had to say at the time or now.

Even in the flush of advancing its political agenda in an article like this, the AP has an obligation to remember that the life of a long-dead manager of a Florida topless bar had value, the man who harbored that extinguished life had a name, and the circumstances of his death have meaning. So here - reproduced from an Eleventh Circuit opinion rejecting one of the killer's appeals - are the aggravating circumstances of the murder on which the death penalty was imposed:

The four ... aggravating circumstances were "Diaz was under sentence of imprisonment, had previously been convicted of another capital felony, ... committed the murder during a kidnapping, and committed the murder for pecuniary gain.
It's also worth noting the Florida Supreme Court's direct-appeal opinion had noted that the killer's "prior record in this instance includes an armed robbery, two escapes, the assault and battering of correctional officers, and a conviction for murdering the director of a drug rehabilitation center by stabbing him nineteen times while he slept."

I wouldn't wish unnecessary pain on anyone, even a killer in the course of his execution. But unnecessary pain sometimes happens. And if it has to happen to someone, it couldn't happen to a more appropriate person that someone like the killer described in this AP article.

Posted 12:42 AM by Robert

Mr. Rago Dissents

Is it odd that having run an article subtitled "Wow, Time magazine really is out of touch with the Internet age" (reproduced from American Spectator) only yesterday, Opinion Journal today carries an article by the Journal's editorial staffer Joseph Rago proving that Wall Street's own can at least match Time magazine on that particular out-of-touch front?

Mr. Rago's effort will doubtlessly attract lots of Blogosphere commentary, so I will indulge in but a few observations. I leave it to the reader to determine if she agrees that Mr. Rago comes dangerously close to ignoring many of the enormous differences among blogs - starting with the title of his article (which he may or may not have chosen): The Blog Mob. I also ask the reader to consider whether the best blogs have any of the characteristics Mr. Rago purports to identify.

For example, does Mickey Kaus's blog, Kausfiles, ever show serious signs of the mob mentality Mr. Rago conjures? Please. Is it true, as Mr. Rago insists, of even the better reaches of the Blogosphere - again keeping Kausfiles in mind as but one example - that "Every conceivable belief is on the scene, but the collective prose, by and large, is homogeneous: A tone of careless informality prevails; posts oscillate between the uselessly brief and the uselessly logorrheic; complexity and complication are eschewed; the humor is cringe-making, with irony present only in its conspicuous absence; arguments are solipsistic; writers traffic more in pronouncement than persuasion . . ." And if Mr. Rago's criticisms are to be limited to the less well done portions of the Blogosphere (taking that "by and large" escape hatch), they would amount to the nearly tautological observation that the not-well-done is not well done, on the Blogosphere as everywhere. Yes, indeed. And it is also true that a man is liked by his friends, Mr. Rago.

But it is with respect to the Blogosphere's relationship with the mainstream media that Mr. Rago's errors are most interesting - perhaps because he considers no examples at all (other than Henry James and his arthritis). He is certainly correct that the Blogosphere draws heavily on direct reporting of the mainstream media. But the mainstream media - in the past often working in far less than fully competitive environments - have developed many ways of distorting the products of their own reporting. One need look no further than Rathergate to see the valuable role played by the Blogosphere in blocking an election-distorting gambit practiced by CBS News repeatedly for many years. So is Mr. Rago correct that "The blogs are not as significant as their self-endeared curators would like to think. ... Instead, they ride along with the MSM like remora fish on the bellies of sharks, picking at the scraps." Perhaps that is a question best asked of now minimally employed "sharks" such as Dan Rather and Mary Mapes.

Mr. Rago apparently considers himself to be a "shark." My guess is that his own belly is bound to be nipped by lots of his "remoras." Somehow I think he's about to find out how insignificant their bites really are.

Posted 9:14 PM by Robert

Gloria Wise Boys and Girls Club? What's That?

This New York Times article by Elizabeth Jensen and Lia Miller purports to recount what the article calls the "short but contentious history of Air America." Many odd characters and twists are recounted in a history where "business and politics always mixed, and that was the problem, critics contend." Tart recriminations are now reportedly flying.

But none of those reported recriminations has anything whatsoever to do with the Gloria Wise Boys and Girls Club. Indeed, the Times article make no mention of that organization at all. Its name is not mentioned. Not even an allusion to this worthy organization made.

All of which is more than passing strange, because Air America has an extensive history and economic relationship with the Gloria Wise Boys and Girls Club, as the New York Post summarized:

Six officials of the Gloria Wise Boys and Girls Club stole $1.2 million from the group, money meant for needy kids and seniors, a city probe has found. Investigations Commissioner Rose Gill Hearn calls it "disgusting" - the worst case of wrongdoing by a non-profit contractor she's seen since taking office.
Thank goodness the thieves will be going to jail for a very long time - and paying back every cent, and then some.
Well, actually, that's not quite true.
In fact, nobody is going to jail.
Not even for a single day.
And the crooks get to keep most of the cash they stole. Four weren't even charged, and after a few brief years, the two who were charged can return to nonprofit work - to loot again, perhaps.
For that wrist tap, thank Attorney General Eliot Spitzer, whose office prosecuted the case.
Something is wrong with this picture.
Hearn was right to label the shenanigans "disgusting." Her report said fraud "was an accepted way of doing business" for these execs. "Rather than reflecting actual events," the group's records "were made to say whatever suited the executives' purposes." Want details?
* Under their direction, the group improperly gave $875,000 to left-wing Air America radio (which features comedian Al Franken) while a Gloria Wise exec maintained a financial stake in it.

There's plenty more. For example, the New York City Department of Investigation has commented:

DOI asked Air America to repay the $875,000 to an escrow account controlled by DOI. Thereafter, Air America repaid only $50,000 to an escrow account that is not controlled by DOI. DOI is pleased that Piquant LLC, the current owner of Air America, has agreed to DOI's request that, in lieu of making $50,000 quarterly payments, Piquant transfer the full $875,000 to the escrow account.
And lots more.

But all of that escapes Elizabeth Jensen and Lia Miller. And apparently nobody at Air America cares enough to hurl any recriminations on this topic. But, then, if the ever-opportunistic, pseudo-crusading Mr. Sptizer doesn't care, why should the Times?

Posted 12:43 AM by Robert

Some Questions Regarding Herr Doktor Professor Paul Von Krugman's Wages Theory

What Herr Doktor Professor Paul Von Krugman wrote in his October 6, 2006 column The War Against Wages:

So what's keeping paychecks down? Major employers like Wal-Mart have decided that their interests are best served by treating workers as a disposable commodity, paid as little as possible and encouraged to leave after a year or two. And these employers don't worry that angry workers will respond to their war on wages by forming unions, because they know that government officials, who are supposed to protect workers' rights, will do everything they can to come down on the side of the wage-cutters.

What the New York Times reports on the front page today:

After four years in which pay failed to keep pace with price increases, wages for most American workers have begun rising significantly faster than inflation. .... The average hourly wage for workers below management level - everyone from school bus drivers to stockbrokers - rose 2.8 percent from October 2005 to October of this year, after being adjusted for inflation, according to the Bureau of Labor Statistics. Only a year ago, it was falling by 1.5 percent. .... The fall in unemployment to 4.4 percent and the recent surge in wages, however, raise the prospect that the job market could be on the brink of another strong run, much like the one that lifted incomes in the late 1990s.

Of course, "wages" are just one component of overall compensation, which includes a variety of other expensive and valuable benefits. "Wages" and "paychecks" matter more than they should to Herr Doktor Professor and the Times generally; indeed, they are drawn to "wage" and "paycheck" arguments like moths to flames. There is, for example, no disclaimer or distinction made between of "wages" or "paychecks" and "overall compensation" in either Herr Doktor Professor's October column or in today's "news" article. On the other hand, nobody seems to have a good grasp on what is happening to true worker compensation in the United States - including people who focus on overall compensation. So although one can go far criticizing Herr Doktor Professor and the Times broadly on this count, I prefer to ask a far narrower question today:

If, as Herr Doktor Professor says, what had been keeping paychecks down was major employers like Wal-Mart having decided that their interests are best served by treating workers as a disposable commodity, paid as little as possible and encouraged to leave after a year or two, then does the recent rise in paychecks reported today in the Times mean that major employers abandoned or softened that approach? Have those major employers decided since October 6 that their interests are not best served by treating workers as a disposable commodity? If so, why? Why now?

And, most importantly of all: Why does the Times' "news" article, which takes up plenty of column inches with various analyses of why wages have fluctuated, not even mention Herr Doktor Professor's key theoretical insight into the main cause of wage stagnation?

Sheesh, you'd almost think that the economic reporters at the Times don't care a bit about what Herr Doktor Professor has to say on this topic. Surely that can't be true. Can it?

Just asking.

Posted 8:06 AM by Robert

The New York Times Sinks Into A Florida Swamp

Even by the low standards of New York Times economic reporting, David Leonhardt's article in today's edition surely reaches a new low in breathlessly announcing:

The truth is that the official numbers on house prices — the last refuge of soothing information about the real estate market on the coasts — are deeply misleading. ... In reality, homes across much of Florida, California and the Northeast are worth a lot less than they were a year ago.

Unlike Mr. Leonhardt, the Man Without Qualities takes no position on what the "truth" or "reality" of the current residential real property market may be. I have no idea what the real estate market is doing right now, and (again unlike Mr. Leonhardt) I have no idea where to look for that "truth" and "reality" other than in those admittedly imperfect statistics reporting actual sales that he finds so unworthy.

But I do know this: Auctions of houses of the type described in this article generally produce prices quite a bit lower than what could be obtained if the house were marketed in the usual way. That's why the "usual way" is "usual." So it is nothing short of idiotic for Mr. Leonhardt and the Times to look to such an auction in Naples, Florida for the "truth" and "reality" of the housing market in the "finding" that "on average, the houses that changed hands at the auction had fallen about 25 percent in value since 2005."

Here's a hint for Mr. Leonhardt and his handlers at the Times: Pretty much any competent realtor or probate or bankruptcy attorney will tell you that an auctioned house brings in about 25% less than the then-current market value of the home - although the statistical spread can be wide. This effect is not a secret. Many home buyers look to buy homes from probate sales, for example, even in the absence of an auction. But "normal buyers" generally don't go to such auctions - only speculators and bottom fishers normally go. One reason for that is that unlike normal real property sales such auctions allow for no financing or any other contingencies. In other words, don't even think about making a bid at such an auction and then going to your bank for the appraisal and loan and detailed home inspection. At an auction, you pretty much just write the check for the full purchase price on your way out the auction house door. That kind of thing tends to push prices down - and a 25% reduction on usual market prices is a pretty good result in a house auction.

Since the auction described by the Times yielded prices about 25% off year-ago prices, the auction appears to actually suggests that the Naples single family home market has not changed much over the last year. But Mr. Leonhardt completely misses all of that.

Of course, Mr. Leonhardt does not just rely on this one auction for his conclusion that the "truth" and "reality" is that home prices are in free fall. No, no, no. He also quotes a few realtors, who opine that in their local markets the "truth" and "reality" is that home prices are in free fall without any supporting data whatsoever, and despite government and other statistics to the contrary. And, despite his reliance on realtor oracles, Mr. Leonhardt apparently never asked his realtor contacts what the normal relationship is between the prices of auctioned homes and homes sold in the usual way - an enquiry that would have deflated his Naples example.

So economic reporting in the New York Times has come to relying on what realtors tell the reporter. No support required. No follow up questions. Just like that.

Could the Times go any lower?

Posted 3:32 PM by Robert

Is The Court Planning To Excise The Religion Exception?

The New York Times reports regarding a federal court challenge to some aspects of the President's faith-based initiatives:

Judge John C. Shabaz of Federal District Court dismissed the lawsuit for lack of standing, finding that the officials activities were not sufficiently tied to specific Congressional appropriations. Taxpayers objections to the use of general appropriations could not be a basis for standing, he said. The president's Faith-Based and Community Initiative was created through a series of executive orders and not by Congress, he noted.

The decision was overturned, and the lawsuit reinstated, in a 2-to-1 ruling by the United States Court of Appeals for the Seventh Circuit, in Chicago. Writing for the majority, Judge Richard A. Posner said the distinction cited by Judge Shabaz made no difference. Judge Posner said the plaintiffs were entitled to challenge the conferences as propaganda vehicles for religion even if they were neither financed through a specific Congressional appropriation nor made grants directly to religious groups.

As a general matter, people do not have standing, based solely on their status as taxpayers, to challenge the expenditure of federal money. The Supreme Court's precedents have carved out religion cases as an exception to this general rule.

In its appeal, Hein v. Freedom From Religion Foundation, No. 06-157, the administration is arguing the exception is a narrow one, designed to prevent the specific historic evil of direct legislative subsidization of religious entities, a definition that the administration says does not apply to the conferences. For the federal courts to permit such a lawsuit, its brief asserts, would upset the delicate balance of power between the judicial and executive branches and open the courthouse door to anyone with a generalized grievance.

The Administration's position may be insufficiently ambitious. The exception that the Court has carved out for religion cases to the general rule that plaintiffs do not have "standing" based solely on their status as taxpayers to challenge the expenditure of federal money is all but indefensible. There is no good reason to treat religion as a special case. Indeed, the Court's exception runs quite contrary in spirit to the growing body of Court precedent affirming that generally applicable rules may not carve out religious exceptions. Moreover, there are many signs that at least the conservatives on the Court view the Court's "standing" rules as needing tightening. That was, for example, much in evidence during the Court's recent hearing regarding "global warming." Federal court "standing" requirements are essential to upholding the Constitution's requirement that federal court jurisdiction be limited to "cases and controversies." There is no good reason to suspend or weaken that requirement just because religion is involved. And there are plenty of indications that the Court is fed up with the annual deluge of religion cases brought on what often seem like general policy grounds by plaintiffs with no real connection to the issues supposedly driving the action. (One can almost hear the annual wails from the great white palace on Capitol Hill: "What, yet another damn slew of annual creche cases!?")

Looking at the matter from another perspective, one might ask: Why has the Court accepted review of a Seventh Circuit case written by one of the most able judges in the country, Richard Posner, where there is no split in the Circuits, and Judge Posner's opinion itself is probably correct - and certainly not seriously wrong? It is highly unlikely that Judge Posner needs "correcting" - he knows how to construe existing Supreme Court precedent better than almost any other person in the world. Moreover, the "exception to the exception" his opinion overturned has little independent merit if one accepts the Court's existing precedent. So why did the Supreme Court agree to review Judge Posner's decision?

Well, if the Court wants to reverse its own precedent and abolish the exception that the Court has carved out for religion cases, one would expect the Court to accept an appeals court decision that gets the existing law (that is, existing the Supreme Court precedent) right - and then reverse. (UPDATE: In fact, that appears to be just what the Court is doing to reverse its own recent decision permitting the limited use of racial criteria in public education.) Is that what the Court is up to now?

We'll just have to wait and see.

Posted 12:36 PM by Robert

The Two Misters Webb

The "icy exchange" between President Bush and Virginia Sen.-elect James Webb has occassioned a great deal of comment (here and here and here and here, for example). We are told that perhaps the exchange has turned Webb into something of a folk hero among critics of the president, who have longed for someone to challenge his bravado, or that maybe his refusal to play "gentlemanly political games" has renewed questions about how well Mr. Webb fits in Congress, where compromise is almost always key. Others assert that Webb was a "jerk" - or perhaps, on the contrary, that it was Mr. Bush who made sounds of the "rattling little aggressions of our day" (this last take seems particularly far fetched).

With all respect to the many commenters, the copious commentary may be missing the most likely root of this exchange: Senator-elect Webb's son probably does not agree with his father's anti-war stance. If that's true, then the elder Webb has very good reason to fear being drawn into a conversation with the President that a more customary response to "How's your boy?" would have occassioned. If the Senator-elect had been drawn into the conversation that the President invited, Mr. Webb père might well have faced the need to either admit that his son supports the war or to dissemble to the President. It's not surprising that the new Senator would choose to evade that choice after his original plan - completely avoiding the President at this gathering - was frustrated by Mr. Bush's attempt to be friendly.

And a serious difference of opinion between father and son probably does exist on this point. How likely is it that Mr. Webb fils - who volunteered as a marine, is now serving in Iraq, and who grew up in a Republican household - is as opposed to the Iraq incursion as the Senator-elect or his supporters? Not very, in my opinion. Moreover, "I'd like to get them out of Iraq, Mr. President," is not the same thing as "He and his buddies would like to get out of Iraq, Mr. President." And the ultimate response of Mr. Webb père, "That's between me and my boy, Mr. President," suggests that father and son may not see eye-to-eye. (According to an anonymous source in The Hill, Mr. Webb confessed that he was tempted to slug the President.) Similarly, another high profile war critic, Cindy Sheehan, has never been deterred by the fact that her son, now-deceased Charlie, re-enlisted after the launch of the Iraq incursion, knowing that his unit would be sent to Iraq. Of course, we don't (yet) know the opinion of Mr. Webb fils, and one would expect him to decline public comment if he does forcefully disagree with his father (although the son's marine buddies may be willing to say more than he would if some enterprising reporter were to ask them). This entire line of thought may therefore be validly criticised as "mere speculation" or "just a guess," at best speculation or guessing supported by general evidence of no great substance. But then, the many other commenters on this "icy exchange" are speculating and guessing no less where they pronounce on what the elder Webb was thinking at the time, or how the President might react in the long run, or how other Senators might take to someone apparently so out of sync with their long established ways (or "gentlemanly games") or how the public might or should respond. The line of thought presented here has at least as much supporting it as do any of those pronouncements.

Posted 8:13 PM by Robert

The Reasonable As The Irrationally Vague And Now The Urgently Utopian?

In the years before 1974's 55 mph National Maximum Speed Limit and three years after its 1995 repeal, Montana had a non-numeric "reasonable and prudent" speed limit during the day on most rural roads. Montana Code Annotated (MCA) Section 61-8-303 said "A person . . . shall drive the vehicle . . . at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation . . . so as not to unduly or unreasonably endanger the life, limb, property, or other rights of a person entitled to the use of the street or highway." Montana law also provided a few numeric limits in some narrowly defined circumstances.

The phrase "reasonable and prudent" is found in the language of most state speed laws. Never the less, in 1998 the Montana Supreme Court held that the law requiring drivers to drive at a non-numerical "reasonable and proper" speed "is so vague that it violates the Due Process Clause ... of the Montana Constitution".

But some European traffic theorists have essentially the opposite idea:

European traffic planners are dreaming of streets free of rules and directives. They want drivers and pedestrians to interact in a free and humane way, as brethren -- by means of friendly gestures, nods of the head and eye contact, without the harassment of prohibitions, restrictions and warning signs. ....

The utopia has already become a reality in Makkinga, in the Dutch province of Western Frisia. A sign by the entrance to the small town (population 1,000) reads "Verkeersbordvrij" -- "free of traffic signs." Cars bumble unhurriedly over precision-trimmed granite cobblestones. Stop signs and direction signs are nowhere to be seen. There are neither parking meters nor stopping restrictions. There aren't even any lines painted on the streets. .... "Unsafe is safe" was the motto of a conference where proponents of the new roadside philosophy met in Frankfurt in mid-October.

Of course, many German Autobahns have no specific speed limits.

Are we reaching a point where a lot of European driving could be less regulated than that of Montana? Is it really possible that the Montana Supreme Court that held a simple, well-established "reasonable and proper" standard of speed was "irrationally vague" could tolerate the urban free-for-all contemplated by European traffic planners as safer than the alternative of written specifics?

In short, are we really reaching a point where much European driving, both inside and outside of cities, could be conducted under a system deemed unconstitutionally and irrationally vague by American courts? What would that say about American judicial arrogance?

Posted 8:22 AM by Robert

A Word Of Caution

Barry Casselman from RealClearPolitics makes some good points:

A word of caution to Republicans: Even if there is a GOP surge in the closing days, most of the critical House and Senate races remain too close to call. If some candidates who were written off only a few days ago now have their races "at play," there is no guarantee that Republicans will actually win many or most of these races, or many of the "battleground" contests so important to control of each house of the Congress. In spite of the apparent surge, it might not be a good night for Republicans when the votes ar counted. ....

The Democrats have perhaps taken the greatest risk by allowing a "fellow-traveling" media and even non-partisan pundits to create the expectation of an historic Democratic victory that will restore their party to congressional power and rebuke President George W. Bush. A landslide could happen, but the only "objective evidence" of this has been a myriad of volatile political polls, few of which may have been accurate or instructive. Political polling has become a lucrative industry as we begin the 21st century, but the quality of polls has been in decline for decades.

John Podhoretz has recently said that most political polls this year are "garbage," and that the pollsters know it. The low initial response to pollsters by the public is one of the reasons why the "margin of error" is much larger than pollsters will admit. With hundreds of millions of dollars at stake, it is no wonder that most pollsters maintain a cabal of silence about the true value of their product. In virtually all of the contested major races this year, there are numerous polls which have attempted to measure voter sentiment. There are local and state polls (mostly by newspapers and universities), and national polls conducted by consultants and pollsters for cash and for media attention that promotes their polls. ...

I am convinced (and believe it can be undeniably demonstrated) that the so-called margins of error in most political polls is not the usual three to five points, but really ten points or more. If that is so, the dependence on polls by the media and politicians is not only unjustified, but is likely to misinform the public. This year the evidence is rather overwhelming in that similar polls taken at the same time with similar samples have come up with such divergent results. Who is to be believed? ....

I agree with Barry on this as far as he goes. But I think the new problems with the polls are far worse than their concealed margins of error. Many public polls appear to have acquired, perhaps fromtheir media paymasters, a new concealed bias towards the left. Barry points out that at least one poll (the Star Tribune private poll) has confessed to such a naked bias in the past. But there is lots of evidence that other pollsters-for-hire are giving the left-wing media what it wants and pays for: Left-leaning polls that support left-leaning articles in left-leaning media outlets. For example, how else does one convincingly explain a Washington Post/ABC News Poll from a polling company (Sampling, data collection and tabulation by TNS of Horsham, Pa.) in the aftermath of the Foley pseudo-scandal - a survey whose sample base included 41% more Democrats than Republicans? Of course, pollsters delivering biased results have a problem close to election day: The vote will expose the bias unless the pollster finds a "last minute surge." Gee, that seems to be happening now. Zogby has been particularly embarrassed by this kind of trickery in the past.

Hey, it's a cheap way to fill newscolumns as long as the suckers don't catch on!

I have some serious issues with another of Barry's comment from the same column

:It has been observed by some that in the closing days of this year¹s elections the Republicans appear to be surging. If this is so, it is because most of the undecided voters this year were those who usually vote Republican, and they are coming home to vote for their party on Election Day.

What does this analysis do for one's understanding? Attributing causation to some voters "coming home" to their historical party affiliation is not very useful, especially in this election where putative shifts in party affiliation in the past 2 years seem to be a highly controversial aspect of the polls themselves. Why were normally GOP voters disaffected in the first place? - have those factors changed? If they were so disaffected, why are they "coming home" now instead of not voting at all? After all, "not voting" is what many pollsters and media had emphatically predicted for these putatively disaffected voters. Why does that prediction seem to be failing? For example, some fiscally conservative voters were supposedly disaffected by a Republican Congress spending too much. Have those voters suddenly realized that Congress has not been spending so much after all? I don't think so. Were they really so disaffected in the first place? Attributing causation to historical party affiliation is accounting or history, not causation - and it certainly does nothing to help one make predictions even one day in advance.

Posted 8:05 AM by Robert

A Likely Slide Towards the GOP From Now To Tuesday

I think there is a very good chance that undecided voters will break disproportionately towards the GOP in this race - especially in Congressional races. By common admission, the putative appeal of the Democrats is limited to essentially one issue: Discontent with progress in Iraq. It is worth noting that that discontent has not been enough to beach Senator Lieberman in his deep blue state, but such is supposedly the Democratic advantage.

But problems in Iraq have been absolutely pounded by the media for a long time now. The information is all out, and has been force-fed for weeks to virtually every voter. Anyone who is going to make a decision to vote one way or the other on the basis of that issue has almost certainly done so already. The rest of the major issues favor the GOP: nearly historic low unemployment, historic stock market highs, stabilized low interest rates, historic high home ownership rates, declining gas prices. Then, of course, there is Karl Rove's famous "get-out-the-vote" machine, for which the Democrats have no real counterpart.

I therefore see the race likely sliding towards the GOP in the next three days, even as the mainstream media proclaim that the Democrats are "taking new territory" and "opening new fronts." This race has some dynamics similar to those of the build-up to the 2004 Democratic Convention: The media played Kerry up prior to the Convention, just as the media have saturated the political marketplace with pro-Democratic Iraq negativism this time around. The result in 2004 was that the Democratic Convention itself could produce little or no "bounce" - in fact, Kerry may have experienced a "negative bounce" from his own Convention. Similarly, most new information and considerations entering the campaign and voters' thinking in the next 3 days will probably of necessity favor the GOP because the Iraq issue has done all it can do already.

The first signs of such a GOP slide may already be evident, as in this article from the Washington Post that purports to sound a death knell for the GOP's election prospects, but contains this overlooked pearl:

A new Washington Post-ABC News poll shows some narrowing in the Democratic advantage in House races. The survey gives the Democrats a six-percentage-point lead nationally among likely voters asked which party they prefer for Congress. It was 14 points two weeks ago, but this remains a larger advantage than they have had in recent midterm elections.

Omitted from the WP "analysis" is the historical fact that when the GOP trails in the generic ballot by 5% or less, the GOP tends to gain seats in the House. So can 6% easilly correspond to a likely Democratic sweep? Now we are, admittedly, well past the point in the campaign where the focus should be on the generic ballot in calling individual races. But this is a very troubling sign for what is likely to happen among late deciders. Then there is this curious development from Rhode Island:

Mason-Dixon 10/31 - 11/01 Chafee +1.0

Reuters/Zogby 10/24 - 10/31 Whitehouse +14.0

That's quite a slide towards the GOP in a few late days - at least in the smallest state.

This election may yet prove to be a GOP disaster. But I don't think that is the most likely outcome. Not at all.

MORE (from DRUDGE): PEW: Republicans Cut Democratic Lead in Campaign's Final Days... ("A nationwide Pew Research Center survey finds voting intentions shifting in the direction of Republican congressional candidates in the final days of the 2006 midterm campaign.") Pew finds the generic ballot gap to have narrowed to an almost statistically insignificant 4%.

STILL MORE: The above analysis assumes that the public polls are correct - or at least as correct as they usually are. However, I personally think the polls are skewed much more in this race by erroneous sampling and bad likely voter models than usual.

Here are some reasons why I think the polls may be seriously wrong:

Most of the public polls are assuming that GOP party affiliation dropped between 5% to 12% since 2004. Maybe that's true, but if it is its a historic first. There is also a now-hugely disproportionate GOP/conservative "hang up" reaction to pollsters, which is likely resulting in undercounted conservatives.

Then there is what to me seems the bizarre assumption that seems to be built into the pollsters' "turnout models" that Democrats are "enthusiatic." For example, I live in one of the most Democratic neighborhoods in Los Angeles. But I have seen almost no new Democratic bumper stickers or yard signs. Ditto for other pro-Dem neighborhoods, such as Beverly Hills. But in GOP neighborhoods I am told there are lots of GOP yard signs out, and personal anecdote seems to bear that out. Cars owned by Dems sprouted lots of Kerry/Edwards bumper stickers in 2004. (For a while GOP cars have had very few bumper stickers, so this is not a measure of any shift in GOP interest). Then there are the multiple reports suggesting that African Americans (a huge chunk of the Dem base) are likely to sit this one out, and that jewish Americans (a highly important part of the Dem base) are deeply conflicted. What does that leave for a generally "impassioned" Dem base? Something is deeply wrong with this assumption.

Similarly, I think assumptions that conservatives (especially Christians) are going to sit this one out are nonsense. For God's sake, the replacement GOP candidate in Foley's own district is now running dead even with the Dem. And the GOP get-out-the-vote effort is clearly way ahead of the Dems. There there is the big lead the GOP is seeing in early voting - which suggests that GOP enthusiasm and organization is better than that of the Dems.

And I think the Kerry "study hard or end up in Iraq" flap is a much bigger deal than the media want to admit. Kerry has largely derailed a main Dem approach: Try to get voters to believe that a conclusion that things are not going well in Iraq is the same as the incorrect conclusion that Dems would do better. By being such an obvious idiot and speaking his mind (even as he unconvincingly tries to argue that he "flubbed the joke"), Kerry has single handedly refocused that decision in a way highly unfavorable to the Dems - and that's the Dem's one issue in this race.

Other signs that the polls are off-base: the Michigan Senate race is suddenly competitive, but was previously thought to be a Dem certainty, NJ is competitive, all of the GOP congressional reps in CT are leading now, and this squib from Dick Morris: Among independents, the percent that plan to vote Republican has risen from 15 percent on Sept. 22 to 23 percent on Oct. 11 to 26 percent on Oct. 24. While independents are still voting for more Democrats, it’s only by 38-26 compared with 38-15 last month. "Independents are turning to the Republican Party while Republican base voters are leaving it?" That poll is way out of wack somewhere - and I don't think it's the part about the independents.

People who know more than I are not ascribing a lot of effect to the factors listed above. But they seem important to me. Tuesday will tell.

It is, in fact, quite possible to view the current polling data as much more consistent with a Democratic disaster than a Republican one.

AND STILL MORE: (E-mailed by a friend quoting an unknown source):

On the Right, Republicans can’t stand the pollsters, who are blamed for their constant push-polls on behalf of the Left. Their predictable reaction is to avoid pollsters like the bird flu that never quite met the media hype. Today you would almost have to waterboard a lot of conservatives, one by one, to get them to talk to pollsters. You can’t get a random sample if one of your target groups won’t answer. So the data will be wildly skewed.

Indeed, I wonder if a declining interest in this election among Democrats might create an illusion of an increase in Democratic likely-voter "passion" if the only Democrats who will answer pollsters' calls now are the party's wing nuts - since the wing nuts presumably will talk to the pollsters and all say they plan to vote and always have voted. Just a thought.

AND YET MORE: McIntyre and Kaus are on the scent. No surprise there. Latest USA Today/Gallup: Dems +7. That's three generic ballot polls that show dramatic slides towards the GOP. My guess is that the slide will continue and accelerate.

LOTS MORE GOOD THINGS: From Minuteman Maguire.

THE LATEST FROM DRUDGE: Rahm Emmanuel on Republican upswing in the polls: 'This is making me nervous'...'I don't know what to make of it'... Well, Rahm, do you think maybe it has something to do with having too many mainstream media friends who maybe made you peak too soon the way they stole the bounce and momentum from your 2004 convention? Just asking!

BRITISH PRECEDENT? Since june, GayPatriotWest has been expecting a late convergence of the electorate towards the incumbent Republicans based on analogies with the 1992 British election.

GayPatriotWest blogs from West Hollywood, an even more Democratic area than my own Los Feliz, and confirms by e-mail the nearly complete absence of "Angelides" yard signs in his environs.

Here in California the ballot is led by the race for governor - a race in which political insiders tell me Arnold may well be leading by more than twenty points (not the smaller numbers in the public polls). Arnold has also constructed what is said to be a get-out-the-vote machine that makes Rove's models seem obsolete and underfunded. The effects of Arnold's efforts in California could be spectacular - although that is far from guaranteed. In that regard, it's worth remembering that on Tuesday even the race for the US Senate in California will be down ballot. Nothing is impossible, but nothing has been made public that proves that Arnold's lead or machine are as big or powerful as they are rumored to be.

Posted 9:26 AM by Robert

Listening To Bill

Bill Clinton says this about what he characterizes as the Republican strategy for this November:

The Republican strategy is weak, he said. "Let’s forget about global warming and talk about flag burning and gay marriage,” Clinton said. “I don’t know how long you can milk that old cow.”

So Mr. Clinton wants the Democrats to campaign and talk about issues such as global warming, although he personally never bothered to ask the Senate to ratify the Kyoto Accord after (July 25, 1997) the U.S. Senate sent then President Clinton the Byrd/Hagel Resolution condemning the Kyoto Accord by a vote of 95 to 0, with Senator Kerry (for example) voting with the majority against the Accord.

In the mean time, Howard Dean, the New York Times and lots of others on the left are running around condeming the New York Court of Appeals for refusing to impose judicially-mandated gay marriage on that state - thereby making it crystal clear that many Democrats would like to install federal judges who will impose judicially-mandated gay marriage. Republicans are bringing all that up. But Mr. Clinton says that Democratic candidates shouldn't talk about any of that because he doesn't "know how long you can milk that old cow."

Bill Clinton has a great record of electing Democrats to Congress, one that has been said warrants him a prominent statue in the lobby of the Republican Party headquarters. In 1992 he was elected with actual net losses for Congressional Democrats. Then, in 1994, he helped the Democrats lose both houses of Congress - from which they have never really recovered, despite picking up a few seats here in 1996. If they listen to him this year, they'll surely extend that pattern.

Frankly, I hadn't fully realized just how bad the Democratic position is going into the fall elections until Bill Clinton made it so clear.

Posted 9:26 PM by Robert

The Pellicano Case And The New York Times Just Keep Getting Stranger

From the New York Times:

What has not been publicly disclosed are the details of the single recording in the government's possession that it says is an illegal wiretap. According to written summaries of F.B.I. interviews seen by The New York Times, the recording concerns events that led to the divorce of a Los Angeles billionaire, Alec E. Gores, from his wife, Lisa A. Gores, in 2001.

If the government fails to crack Mr. Pellicano's passwords and turn up other direct evidence of wiretaps, that means the prosecution's star witnesses could be forced to make their painful private drama public.

Mr. Gores, principal of the private equity firm Gores Technology Group, admitted hiring Mr. Pellicano in 2000 to investigate his suspicions that his wife was cheating on him with his younger brother, Thomas T. Gores, another billionaire investor, according to summaries of F.B.I. interviews with all three family members. (A third brother, Sam Gores, runs the Paradigm talent agency.)

Mr. Pellicano installed wiretaps on both Lisa and Tom Gores's telephones, the summaries show, and confirmed Alec Gores's suspicions that the two had become inappropriately involved. Alec Gores admitted to the F.B.I. that he listened to Mr. Pellicano's wiretaps on several occasions, the summaries show. Alec Gores has not been charged, and has been assured he is only a witness in the case, said his lawyer, Louis Miller, who is also known as Skip.

So, let's see. A man (who happens to have made a billion dollars or so for himself) hires Anthony Pellicano to bug the telephones of his wife and brother - a serious and straightforward felony. He listens to the recordings. He pays Mr. Pellicano lots of money. And he has not been charged, and has been assured he is only a witness in the case?!

Boy is that weird. But there is no indication whatsoever that the New York Times thinks it's weird, or that they've asked Skip Miller or anyone else why Mr. Gores, a man who according to the Times admits that he hired and paid Mr. Pellicano to commit serious felonies, has been "assured" - apparently by the same prosecutors who have indicted Terry Christensen for allegedly doing exactly what Mr. Gores admits he did - that he is only a witness.

And if the Times doesn't find any of that worth asking about, how about this:

Why is billionaire Alec Gores relying on Skip Miller for legal advice in this case? Skip Miller is a highly competent and aggressive attorney who as late as 1994 was still claiming "white collar criminal defense" as a practice specialty. But the most recent description of Mr. Miller's practice provided by the firm he recently left to Meritas (now deleted from the web, but still available in cached form) does not even mention criminal defense as an area of Mr. Miller's practice at all:

His practice is varied and diverse and includes antitrust, securities, employment, energy, defamation/First Amendment, entertainment (motion pictures, television and music), copyright, toxic tort, civil rights, construction, real estate, inverse condemnation and other areas of the law.

Miller defended the City of Los Angeles in a series of cases arising from the operations of the LAPD including: the Rodney King civil rights action; First Amendment litigation brought by the then-Assistant Chief of Police; a dozen lawsuits brought against the Mayor, City Council members, Police Commissioners and City Attorneys arising from the LAPD's Special Investigation Section, culminating in two victories (1996 and 2000) in the Ninth Circuit Court of Appeals; a $100 million inverse condemnation/civil rights case brought by Southern Pacific Railroad; and has handled energy litigation for private and publicly-owned utilities including the City's Department of Water and Power.

Clients from all walks regularly seek out Mr. Miller's services including artists and actors such as Rod Stewart, Elton John, Nick Nolte, Bob Dylan and a member of the Eagles, as well as domestic and foreign entertainment companies and prominent local politicians including the Los Angeles County Board of Supervisors. His practice also includes representing the investors who put a billion dollars into Internet incubator Indealab; winning a $7 million judgment against musician Michael Jackson in a four-month jury trial in Santa Maria; defending the City of Riverside in the nationally prominent Tyisha Miller civil rights case; prosecuting trade secret/unfair competition for the maker of 7 Jeans and on behalf of an investment bank and for a manufacturing conglomerate; and representing the Patron Tequila brand in a dispute with Seagram.

Other prominent cases handled by Miller include prevailing on behalf of a director of Executive Life Insurance Co. after a three-month trial in a multi-billion dollar claim arising from the largest insurance failure in California history; winning sexual harassment trials on behalf of the City of Pasadena and Rose Bowl and a Los Angeles City Council member and the City of Los Angeles; prevailing on behalf of the City of Anaheim in a $50 million dispute with its telecom provider; prevailing in the Ninth Circuit and in two district courts in a series of civil rights cases brought against the City of Beverly Hills and its Mayor, Chief of Police and Councilmembers; defending Beverly Hills against toxic tort claims in connection with Beverly Hills High School; and defending inverse condemnation and contractual disputes against the cities of Carson and Monterey Park.

Did the reader detect anything of a criminal defense nature in any of that? I don't think so. Maybe it's in that "other areas of law." Is that what Mr. Gores is paying for in a case in which the New York Times says he admits he hired Mr. Pellicano to commit felonies on his behalf? Is there some reason why Mr. Gores isn't looking for advice mostly to someone with more criminal defense experience - and having that special someone speak on his behalf to outfits like the New York Times? It's not as though Mr. Gores can't afford whoever he likes.

Posted 8:59 AM by Robert

Contra 1994 V: Democrats Don't Do Libraries Anymore?

James Taranto comments:

E.J. Dionne, a liberal Washington Post columnist, is unhappy about last week's California election results. No, not the Republican victory in the special House election (though he's none too pleased with that), but the defeat of a pair of ballot measures (emphasis his):
The truly sobering news for liberals was in the statewide voting. Proposition 82, the ballot measure that would have guaranteed access to preschool for all of California's 4-year-olds, went down to resounding defeat, 61 to 39 percent.

Not only that, voters also rejected a $600 million bond measure for the state's libraries. A vote against libraries? Yes, the bonds went down 53 to 47 percent.

And bear in mind that these spending measures appeared on a primary ballot at a time when Democrats were holding a fierce contest for their gubernatorial nomination, while Gov. Arnold Schwarzenegger faced only token Republican opposition. There were roughly 500,000 more Democratic than Republican primary votes--meaning that a significant number of Democrats voted against both propositions.

Progressives can find plenty of alibis. Instead they need to deal with the sources of voter skepticism about public spending.
... [T]he column got us to thinking about broader trends that may be feeding public skepticism about government.

It has been widely noted that congressional Republicans have failed to live up to their billing as the party of small government, especially since George W. Bush became president. ....

In sum: Republicans favor small government but embrace big government when they have the power to control it. Democrats favor big government but insist that it can work only when they have the power to control it. ...
Taranto makes a lot of sense, of course. But I think the observations in my previous post in this series regarding Prop 82 apply equally well to the failure of Prop 81 (the library bond measure): Republicans (at least those out of government) are less enthusiastic about more debt and public spending on "small government" grounds, preferring such things to be handled more by private means. And perhaps, as Dionne argues, liberals (or "progressives") ought to favor more library spending on principle or political consistency grounds. But there is good reason to think that relatively fewer Democrats care about or have children now (Taranto has, of course, noted this fact in other contexts), and children would be the main users of those libraries, as USA Today reports:

In Seattle, there are nearly 45% more dogs than children. In Salt Lake City, there are nearly 19% more kids than dogs. ... It's not that people in a progressive city such as Seattle are so much fonder of dogs than are people in a conservative city such as Salt Lake City. It's that progressives are so much less likely to have children.

It's a pattern found throughout the world, and it augers a far more conservative future — one in which patriarchy and other traditional values make a comeback, if only by default. Childlessness and small families are increasingly the norm today among progressive secularists. As a consequence, an increasing share of all children born into the world are descended from a share of the population whose conservative values have led them to raise large families.

The news is even worse for Mr. Dionne and his pro-library funding sympathies because some studies have found that the children of liberals read less than children of conservatives, with the liberal children playing more computer games and watching more television than their conservative counterparts. Worse, some studies also suggest that children who play computer games to excess are more disposed to violence than their parents - with the effect on the children apparently detectable in their brains.

Posted 10:14 PM by Robert

A South American Analogue To Zarqawi and Post-Insurgency Iraq?

In 1990 Peru was being savaged by its own "insurgency." That "insurgency" took the form of the neo-Maoist terrorist organization called "Shining Path" - which was at the time busy demolishing as much of Peru's infrastructure and urban fabric, and killing as many middle-class Peruvians, as it could manage. The Shining Path meant by such methods to bring down the reasonably democratic government of Peru. The parallels with Iraq, at least on the surface, are clear.

Alberto Fujimori, a son of Japanese immigrants, was an academic and university president when he scored a surprise victory over novelist Mario Vargas Lhosa and became Peru's president. Fujimori has said that Peru was "an interesting challenge": Cocaine was a $1 billion a year export, inflation was at 7,500 percent and the use of violence as a political tool by the Shining Path and MRTA tore Peru up pretty thoroughly and had come close to tearing it completely apart into social chaos. The Shining Path is believed to have killed more than 10,000 people. In some respects Peru was worse off than Iraq is today.

Nobody seems to dispute that Alberto Fujimori's government extinguished the Shining Path - although there are those who claim the biggest steps were accomplished by "ordinary police work" and not the thuggish, admittedly uber-violent, and perhaps murderous methods of Vladimir Montesinos. Montesinos was Fujimori's de facto head of Peruvian security (MRTA) who was ultimately disgraced and found to have been highly corrupt. Whatever the ways and means, most observers agree that the biggest step in terminating the Shining Path was the celebrated capture of its founder Abimael Guzman - himself a murderous academic who directed and had essentially created the Shining Path.

The death of Zarqawi is not a perfect analogue to the capture of Guzman. For one thing, the Shining Path was essentially the only "insurgency" challenging the Peruvian state. There was no good replacement for Guzman. Some have argued that Zarqawi will simply be replaced as head of al Qaida in Iraq, and his war will go on. But as far as I can see, such speculation is not supported by any real evidence one way or the other. Moreover, there have been reports that Zarqawi's particular ultra-violent and promiscuous form of insurgency was by no means favored by his al Qaida generally. It certainly rankled lots of fellow Arabs - including Jordanians - who otherwise might have been inclined to look the other way. So Zarqawi's vision may have been rather personal, and (if that is so) eliminating Zarqawi may be a better analogue to capturing Guzman than at first meets the eye.

Two documentaries have recently been created about Fujimori's confrontation with Guzman and his Shining Path: The Fall of Fujimori and State of Fear. The Fall of Fujimori shows some real efforts at balance by its maker - although the maker's own beliefs do seem to show through (which is not all bad, since she's a nice person). And it's very well done in most respects, especially the interviews with Fujimori himself and his daughter and the use of archival film. In contrast, State of Fear is a ludicrous piece of agitprop and an attempt to equate current American anti-terrorism efforts with Peru's excesses under Fujimori. But the films are in agreement with the conclusions that taking a single man - Guzman - from the field made a huge difference in the course of the Peruvian anti-terrorist effort. Less comforting, they also both persuasively argue that after the Shining Path was in fact defeated the exceptional powers assumed by the Peruvian government were put to increasingly pernicious use.

Contrary to these film makers (especially the second), I do not believe there is much of a parallel with the US here. But there may be a very important parallel with respect to what we might expect from a post-insurgency Iraq, one forged in the smithy of counter-terrorism politics. That picture is not pretty at all. But at least one has to assume the extinction of the Iraq insurgency before having to contemplate the form of post-insurgency Iraq. In any event, Peru has today largely recovered.

UPDATE: Brett Stephens has some very interesting observations on how the nature of the insurgency may change, and some further information as to how Zarqawi had become estranged from many people one would think have to be on the side of a successful "insurgent" in Iraq.

Posted 7:41 AM by Robert

Dead Again III: Steve Forbes Gets One Right

Steve Forbes, writing in the Wall Street Journal:

The Net Neutrality lobbyists want Congress to pass innovation-stifling restrictions on what companies like Verizon and AT&T can do with the new high-speed broadband networks that these companies haven't even finished building yet.
These networks are the superhighways for transporting Internet content and services. They will also permit Verizon and AT&T to offer Internet-based cable TV programming in competition with the cable companies, which are already competing in telecom services. Slapping these networks with premature, unnecessary regulations would be an inexcusable barrier to the tradition of innovation at the heart of the Internet.
Phone companies are investing billions of dollars in network innovation. They need to earn a return on their investment. One logical way is to use a tiered pricing system that charges a premium price for premium services -- which means super-high-speed services that gobble extra bandwidth on the network. ...
This is the same concept as mail service. If ... you want [a] letter delivered without fail by 10 a.m. the next morning, you upgrade to FedEx and pay for the extra service you need.
Applying this principle to the Internet sounds like the free market at work to me. But the Net Neutralizers have responded with manufactured indignation, claiming that it's discrimination and somehow tramples on the egalitarian spirit of the Internet.
Surprisingly Google, E-Bay and other high-tech companies have become big supporters of this flavor of Net Neutrality; they supposedly fear discrimination from Internet providers. But they have no real evidence to back-up such fears. If problems do arise, then these can be dealt with specifically.
Passing Network Neutrality legislation would be a re-run of the disastrous Telecom Act of 1996 which forced telecom companies to provide network access to competitors at below market prices. That certainly put a chill on network innovation. After years of wasteful lawsuits and regulatory infighting, the network access monster has gone away. But it was a big factor in letting America slip into the high-tech Stone Age, with consumer broadband services lagging far behind what's available in countries like Japan or South Korea. ...
After all, what network operator would be silly enough to keep investing billions in network innovations if the fruits of its innovation had to be given away at below cost?

What network operator indeed?

For his sake, lets hope that Mr. Forbes is only trying to persuade Congress and the general public - and not the "net neutrality" supporters on the Blogosphere! Many of those people supported intellectual property theft supermarkets like Grokster - despite the obviously analogous argument: "What content creator is going to create lots of high quality, expensive content if the profit is to stripped off by file sharing web sites?"

The economic model the Net Neutralizers seem to posit is one in which expensive content and hardware networks can be supplied by a profitless system - or efficiently provided by a system that suppresses efficient returns to the providers, and quite possibly denies them any returns at all. And all of this is apparently supposed to be justified, supported and ultimately financed by the great, new, ever-increasing-returns-to-scale Paul Romerian goodies created through net-enabled activities like people watching purloined movies delivered almost for free from those Grokster-like Bit Torrent supermarkets? Sure, fellas. And no doubt Santa Claus will make up any shortfall. I just can't wait.

Why do the the arguments of the Net Neutralizers sound so much like nostalgia for the fever swamps of the late 1990's internet boom? Could it be that so many of the people writing the copy for the Net Neutralizers today are the same people (and their intellectual legatees) who fronted for the profitless 1990's boomers? Lawrence Lessig's bloviating, of course. But Paul Romer's own website today includes the giddy boast that he "was named one of America's 25 most influential people by Time magazine in 1997." Does Professor Romer have no awareness of what was going on in his immediate intellectual and financial vicinity at that time? Perhaps he should do a back-of-the-envelope calculation of how much investment was misdirected within, say, 10 miles of his current Stanford office during those years.

Could it be that so many of these Net Neutrality supporters also supported those who told us in the 1990's that "stickiness" and "hits" and the rest of the palaver of that busted era had replaced (or, better, "transcended") prosaic considerations such as "net revenue" and "cost of capital" as the variables de jour. Or could it be echos of the 1990's profitless boomers telling the world such things, and that anyone who didn't agree with such things, that "you just don't get it," with a manufactured indignation uneasily similar to the tone Mr. Forbes correctly identifies in the Net Neutralizers today?

I think it's something like that.

Posted 11:04 PM by Robert

Dead Again II: Tecer Camino Extraño

Here is a paper purporting to describe a "third way" in the net neutrality debate. I don't agree with the approach of this paper, or even that the approach it sketches is actually a "third way" at all. But the approach of this paper is vastly more sophisticated than the Lessig approach - and the paper points that out as politely as possible. And at least the incentive and market power economics set out in this paper are not cartoons. The "Third Way" is sketched this way:

In short, we propose a three-part, "third-way" solution:

• Congress should require broadband providers to state their broadband access and usage policies in clear terms. ... The FCC should monitor such behavior and take action against those firms that fail to comply with them. In addition, any firm selling "broadband Internet access" must make available a basic and growing level of open, unmanaged Internet access. Firms that do not meet this FCC-defined requirement would be prohibited from calling any of their services "broadband."

• In order to ensure that broadband providers do not abuse their market power, Congress should charge the FCC with the responsibility of overseeing the use of discriminatory access arrangements to make sure that any such arrangements do not harm competition (and consumers). ...

• Congress should provide financial incentives to companies investing in broadband networks (allowing first-year expensing of broadband investments and exempting broadband services from federal, state, and local taxation), but only if broadband providers provide a best-efforts, open Internet data pipe to their customers with average speeds at least as fast as the evolving FCC definition.

The "full disclosure" requirements are fairly innocuous, but also seem fairly irrelevant. The actual rates and access policies of internet providers are easily determined. So the extra FCC involvement seems to add little. The focus on "broadband" as a kind of magic word borders on the childish.

That some internet providers hold market power does create its own issues. Those issues are the exact same issues raised all the time in antitrust law. There is no clear reason why supplemental antitrust laws need to be created here, especially since the economic dynamics of the internet are at the moment so protean and ill-understood.

Finally, the whole "special incentive" aspect of this proposal seems downright perverse. Congress and the FCC are not better able to determine the needs of the internet, and the economy's needs for internet services (broadband or otherwise), than is the market. This is a huge step backwards - and anything but a "Third Way."

But perhaps the most disturbing aspect of this "Third Way" is the complete absence of any considerations pertaining to the regulatory capture issues that would be raised by the scheme itself. It's all very nice to say that the FCC (or any agency) will do this or that nice thing to the people and firms it regulates. But history shows that's not how things often work out in practice. Just what are the likely regulatory (and lobbying!) incentives that might be created by a scheme that couples big federal financial give-aways with lots of authority by a (captured) FCC to exclude competitors in the market it was supposed to facilitate? One shudders to imagine. But one shutters more to realize that the authors of this "Third Way" haven't even bothered to try to imagine - or at least to write about it here. Has the history of FCC protected competition been better than the competitive history of the unregulated internet? I don't think so.

UPDATE: IP Central points out Tom Hazlett's article The Wireless Craze, the Unlimited Bandwidth Myth, the Spectrum Auction Faux Pas, and the Punchline to Ronald Coase's "Bigt Joke" (2001), which details the dreary history of the FCC's success in supressing new technologies (pp. 405-451).

Posted 9:02 AM by Robert

Catching Some Z's

Ding, dong the Z-man is dead! And it is right and meet and just to celebrate June 7, the day after D-Day, as Z-Day.

But June 7 was not just the day Abu Musab al Zarqawi went to claim his virgins (or his grapes - the "virgins" who the Koran supposedly promises await Islamic martyrs in paradise may just be ''white raisins'') and the Iraqi government moved towards completion with the key appointments of two apparently competent and appropriate ministers. It is also the day on which Allied and Iraqi forces moved to seize well over a dozen insurgent sites, sites said to have been monitored for weeks and disclosed to the Allies and Iraqis by the same sources that fingered the Z-Man. The seizure of these sites is said to have yielded a "treasure trove" of intelligence pertaining to the insurgency.

Al Qaida is said to have a "cellular" structure - meaning that the location of, and other information pertaining to, its components is supposed to be very closely held. Members of each component generally are not supposed to possess information pertaining to other components. Yet the information source who turned in al Zarqawi apparently had lots of information about a large number of components. All that suggests that the intelligence source within the Zarqawi camp was very highly placed indeed.

How high? Well, on June 7 Strategy Page ran this curious and fairly amazing item (thanks to Saint Onge for drawing my attention):

Zarqawi Scheduled for Martyrdom

June 7, 2006: The relationship between terrorist leader Abu Musab al Zarqawi and and the mainline al Qaeda leadership continues to deteriorate. Zarqawi's recent audio messages have not only attacked the U.S. and the Shia-dominated government in Iraq, but also Iran. He's even claiming that the U.S., Iran, and Shia in general, are in cahoots to destroy Islam. He has also called for continued attacks against Shia.

Except for his verbal attacks on the U.S. and the Iraqi government, he is almost totally distanced himself from the central leadership. Other al Qaeda leaders have been trying to down play anti-Iranian and anti-Shia rhetoric, and have been strongly discouraging attacks on civilians.

Given that Zarqawi has become a loose cannon and that his actions are handicapping Al Qaeda's efforts, it seems reasonable to expect that an accident may befall him at some point in the near future. If handled right it can be made to look like he went out in a blaze of glory fighting American troops or that he was foully murdered. Either way, al Qaeda gets rid of a problem and gains another "martyr."

Saint Onge points out that the timing of this post is remarkable, which it is if the post went up before reports of the hit appeared.

Regardless of when the post went up, it's contents are surely remarkable (if they are correct) regardless of when the post went up. Could it be that someone high up in al Qaida itself turned in al Zarqawi and identified those insurgent sites?

Had al Zarqawi become so inconvenient that al Qaida HQ decided it was time for the Allies to catch the Big Z Man, or for him to be catching the Big Z's?

Just asking!

Posted 10:37 PM by Robert

Dead Again

It is an old Chinese proverb of great carrying power that "It is better to start poorly and finish well." The personal history of Professor Lawrence Lessig suggests that he has not read it.

After a very fast start followed by lots of increasingly ill deserved adulation, Professor Lessig seems in recent years to have formed an absolute determination to come down hard on the wrong side of every hot dispute in which he takes an interest concerning intellectual property law, and especially the internet. He has praised the wisdom of copyright pirate enablers such as Grokster, employing arguments bordering on ludicrous that were quite properly and unceremoniously discarded by the Supreme Court. The Supreme Court's rejection of his ludicrous assault on the Sonny Bono Copyright Term Extension Act was correct and thorough and unimpressed and ultimately distinctly unkind (his main argument was dismissed in a curt footnote). Sadly, one could go on for a bit with Professor Lessig's recent missteps.

Now there is a new dead end of Lawrence Lessig: Congressionally mandated "network neutrality." Little can legitimately be said in favor of this effort to freeze the internet into a form that it happens to have (or may have had) at the moment or in the recent past, although the reader is invited to read Professor Lessig's linked effort to do just that. There is nothing sacred about that current form. There is nothing less destructive and anti-freemarket about federally mandated internet rate structures proposed by Professor Lessig than there was about the federally mandated railroad and trucking rates that hobbled the nation's economy for decades. The correct (and wealth creating) principle under which the internet has developed is simple: Minimal regulation. The legislation proposed by Professor Lessig and Representative Markey would grossly violate that principle for no apparent benefit.

There is one positive aspect to this new camino extraño down which Professor Lessig proposes to drag the internet: At least he is presenting his position to the legislature instead of arguing in the courts that his radical (and erroneous) approach is already dictated by the Constitution or existing statute, as he did in his prior efforts noted above. But so far Congress has wisely been as unimpressed with Professor Lessig as the Supreme Court was in his earlier efforts. By a lopsided vote of 321 to 101 the House today passed a bill that rejects mandated network neutrality, and does nothing to prevent the phone and cable providers from charging Internet content providers a premium for carrying services like video offerings that could rival those of the telecom companies – and not including the Markey amendment. One hopes the Senate has as much sense as the House on this topic.

I could write quite a bit more about the irrationality of mandated network neutrality. But an article on the topic aptly titled The Web's Worst New Idea does a pretty thorough demolition job on the pretensions advanced by Professor Lessig. As the article points out:
Increasingly, and with the backing both of the Moveon.org crowd and "Don't Be Evil" Google, a movement is afoot to give these entitlements the force of law. Congressman Ed Markey has introduced a bill to "save the Internet" by codifying Net neutrality principles in law. The FCC would be charged with enforcing "non-discrimination" and "openness" rules.
Does such FCC regulation sound like the spirit of the internet the reader has known? Of course not. That’s the old “regulated industry” model of the communications industry that the internet rejects and always has rejected. Once again, Professor Lessig pretends to the role of the visionary (even the revolutionary), while his actions and positions are those of a tired reactionary.

Posted 8:56 PM by Robert

Contra 1994 IV: Childless, Depressed Democrats?

The 50th Congressional District did not hold all of the interest in yesterday’s elections. Actor Rob Reiner's ballot initiative - Proposition 82 - to tax the "rich" (those earning more than $400,000 per year) to pay for universal preschool for four-year-olds was defeated yesterday in California by 61% to 39% - carrying only three out of 58 counties in the entire state. Why the big defeat?

Writing for Opinion Journal’s subscriber e-mail service Political Diary, John Fund explains:

Liberals like philanthropist Eli Broad and the Los Angeles Times editorial board turned against the measure when they realized their goal of universal pre-K coverage had been hijacked by the unions. Democrat Senate President Don Perata repudiated his early support of the idea, saying he couldn't justify subsidizing preschool for parents already paying for it. Even more significantly, parents with kids in pre-K, 80% of whom attend private facilities, realized the Reiner initiative represented a takeover of pre-K by the existing public school monopoly. While the initiative ostensibly would have offered parents a choice between public and private providers, the actual options available for the subsidies would have been determined by government education officials.

That's fine as far as it goes. But California voters have also rejected school vouchers more than once, even (perhaps especially) where the vouchers provided lots of real school choice. Rejecting school vouchers delivers every child whose parents cannot afford private education into the hands of those same school unions. So why the different result now? The dramatic fall of Proposition 82 is even more curious given the passage in 2004 by 53.7% to 46.3% of Proposition 63:

Should a 1% tax on taxable personal income above $1 million to fund expanded health services for mentally ill children, adults, seniors be established?
Why were Californians willing to soak the "rich" to permit the state to fund mental health services for "everyone" but not to provide services for pre-school children? It would be interesting to see a far more detailed breakdown of how voters reacted to Propositions 63 and 82 than I have seen. But in the mean time, one might ask the preliminary question: How would Propositions 63 and 82 be expected to appeal to core Democratic interest groups and constituencies?

It seems to make sense that Proposition 63 would naturally have a broad base of support. Many mental health services are often not included in medical insurance coverage. But mental health services might at least in principle be used and/or needed by anyone - although one's estimate of the likelihood that one will personally need them is likely strongly affected by one's general world view. Many more people - including family members - might see themselves as possibly or actually required to pay for such services for other people if the need arose. So its not too hard to see Proposition 63 appealing to a lot of self interest, especially of a broad class of people of modest means. Indeed, it's not hard to imagine that more Democrats than Republicans were drawn to this proposition by prospective or actual personal need, since some polling results indicate that Democrats are more prone to depression and less happy than Republicans, as suggested by this chart:

Republicans are happiest even when a Democrat is in the White House. They’re also happier regardless of income. The rich are happier than the poor, and church goers (who skew Republican, of course) are also quite happy. So there appears to be lots of room for Democrats to see themselves as potentially or actually in need of mental health services.

But what about Proposition 82? Here the most natural base of support is parents and prospective parents of pre-school children. In general, Republicans do not favor programs of the type Proposition 82 sought to create. But how many parents and prospective parents of pre-school children are Democrats? Married women generally lean Republican. Unmarried mothers doubtless lean Democrat, but by definition there is no husband to vote along side the mother.

And consider some rather substantial mostly Democratic groups: Unwed fathers and many deliberately childless people, including most homosexuals. Why would such people enthusiastically support a proposition that would provide services they will never use and that would not relieve them of any likely financial burden?

Is it possible that Proposition 82 failed so miserably because the Democratic Party now includes so few people that care about children?

Posted 4:52 PM by Robert

Contra 1994 III: Counting Voters Who Weren't There

Republican Brian P. Bilbray and Democrat Francine Busby were not the only candidates seeking to represent California's 5oth Congressional District. Independent William Griffith and Libertarian Paul King also sought that honor. Yesterday, 1.53% of that District's voters (1,875 voters) favored Mr. King and 3.67% (4,492 voters) favored Mr. Griffith.

It is a notoriously dangerous game to assume that if a multiparty election were winnowed down to only two candidates, voters for the minority candidates would vote in any particular fashion (or vote at all). That doesn't stop some people from doing exactly that, as Ralph Nader discovered when Al Gore's supporters accused Mr. Nader of stealing what might have been Mr. Gore's margin of victory in Florida in 2000.

But it seems to me that if one is looking to the 50th District for indications of whether the Democratic ideas and principles (as contrasted to actual human candidates) have gained in popularity nationally since 2004, it is perfectly legitimate to look at the ideas and principles favored by the minority candidates and ask: Do these ideas and principles of such minority candidates in general resemble more those of the Republicans or the Democrats nationally?

Mr. King is a Libertarian. While some ideas and principles advanced by Libertarians resemble those of the some Democrats, such as the right to use the drugs of one's choice and perhaps to abortion - as a consequence of one's right to control one's own body, although Libertarians deeming a fetus to already be an individual may not favor abortion rights at all. But on the whole, Libertarian ideas and principles are generally seen as more resembling those favored by national Republicans. That suggests that Mr. King's 1.53% does not represent much (probably no) increase favor for Democratic ideas and principles.

What about the Independent Mr. Griffith's 3.67%? Well, Mr. Griffith's campaign website has this to say about his ideas and principles:

Immigration: NO AMNESTY. NO GUEST WORKERS. NO EXCEPTIONS.

Taxation: … I pledge to work to repeal Amendment XVI and the Federal income tax (AND the so-called "inheritance tax"….

Budget: The budget and deficit are seriously out of whack. .… The fiscal woes of our country can all be traced to gargantuan federal spending.

The United Nations: GET US OUT!

Gun Control: … I am unalterably opposed to "gun control legislation" in any of its insidious forms….

Abortion: I oppose Roe v. Wade. I am unalterably opposed to abortion as a birth-control method. …

Environment: We need to CONSERVE our environment. … [W]e ought to be doing all we can - without infringing on property rights, without crippling business - to ensure a healthy environment for our children, and for THEIR children. … I will not classify myself as an "environmentalist" … but I WILL go on record as being extremely concerned about conservation, and preservation. I am in favor of reducing, if not eliminating, dependence … on fossil fuels - and of developing naturally renewable energy sources. I am a proponent of nuclear (pronounced NU-klee-ar) power. I will seek to advance research and development of nuclear fusion, solar power, wind power, hydroelectric power.

Mr. Griffith also has things to say about “Executive and Judicial Cowboying,” Technology” and “Elections,” which the reader can peruse for herself. But to my eye, it is very difficult to see in anything offered by Mr. Griffith a movement towards anything Democratic. With some quibbles, the drift seems to be quite the opposite. For example, Mr. Griffith deplores the federal budget deficit - a position often taken by Democrats. But he is also clear that he would not support reducing that deficit by increasing taxes - only by reducing spending. In fact, he wants to eliminate the income tax completely. None of that seems to be a shift to the left from where the country is now, but rather to the right (if one forces things into a one-dimensional model).

According to the California Secretary of State, Mr. Bilbray enjoyed a margin of 3.87% over Ms. Busby, prior to accounting for late arriving absentee ballots. It is by no means clear that voters favoring Mr. King or Griffith would have voted for either of the main party candidates if the minority candidates hadn't been in the race.

But it also seems that those 5.2% of voters who favored minority candidates in the 50th District exercised their choice in favor of people having ideas and principles a good deal more akin to those of the Republicans than the Democrats. In other words, by a margin of 9.07% (pre-absentee ballots), the voters of the 50th District seem more unhappy with Democratic ideas and principles than they are with those of the Republicans. That seems significant in terms of viewing the 50th as a "bellwether" of the November elections, as the Democrats and mainstream media - and some others - have been insisting for months.

Posted 8:50 AM by Robert

Contra 1994 II: Bring Out Your Not-Quite-Dead Democratic Hopes!

Hopes of Democrats to take at least one house of Congress in November are not quite dead. Much could happen between now and November. But yesterday’s election results suggest that, like Monty Python's Cartman, practical political analysts shouldn't be too finicky about the difference between the current state of such hopes and actual death.

Yesterday's special House election to fill the San Diego area seat once occupied by corrupt and disgraced Randy "Duke" Cunningham was by far the most-watched election nationally. The victory of Republican Brian Bilbray over Democrat Francine Busby is being widely described as "narrow," in a "solidly Republican district," and marred by Busby's "verbal gaffe" (that illegal immigrants needed no papers to vote) in the final days of the campaign that supposedly damaged her candidacy. But Mr. Bilbray was not an incumbent (an additional advantage Republicans will generally hold in November). He also overcame the Cunningham corruption scandal, meaning that the "Republicans are corrupt" message Democrats were hoping would bring them at least the House had scant effect even in a district in which the message was at its strongest. But most significant of all is this: Busby barely exceeded the percentage won by Sen. John F. Kerry (D-Mass.) in the 2004 presidential race. Busby's margin is nothing short of a disaster for Democrats' November hopes. It is also worth remembering that Democratic turnout may have been increased by the hotly contested California Democratic gubernatorial primary, although the tone of that campaign had recently turned so negative that Democratic turnout may have been tamped down a bit. The agony of the liberal Los Angeles Times over that primary and other Democratic statewide showings is summed up nicely in today's editorial:

The Democrats' shrill and shallow campaign ads may be off the air, but Gov. Arnold Schwarzenegger embarks today on a statewide bus tour. Maybe the winner of Tuesday's Democratic gubernatorial primary can take a few days, a few hours — OK, a few minutes — to pause and consider how to articulate a more positive message about the state's future. The primary did little to boost the enthusiasm Democrats feel for their state candidates, and voters were also skeptical about two ballot measures to increase public spending on preschool and libraries.

"Shrill and shallow" pretty much sums up the nature of national Democratic efforts, too. But the mainstream media is still in the denial stage after yesterday's quasi-death, including the New York Times coverage of Tom Kean Jr.'s Republican nomination to challenge Democratic Sen. Robert Menendez in New Jersey. Even the Times had to grudgingly admit that early polls indicate "a tight race," although the coverage labors mightily to suggest that Mr. Kean has problems with the Republican base - while supplying no real evidence of such problems.

What is most striking about what happened in New Jersey yesterday is that the Republican candidate for the Senate in that liberal, pro-Democratic state is highly viable. Indeed, the Times reports that Mr. Kean is "attacking Mr. Menendez as a corrupt political boss with dubious character." Yet this is a year in which the mainstream media tell us corruption is supposed to be an issue working in favor of Democrats. And, of course, we are also told that this is a year ripe for a big Democratic win generally. Yet there were few signs of such a coming win in either California or New Jersey, states in which the signs should have been strongest.

If history is a guide, the November elections will bring some normal Democratic gains - midterm elections normally do favor the party not holding the White House - although the 2002 elections were an exception. And some strong individual Democratic candidates will probably chalk up special personal victories (CUSTOMER: Who's that, then? CART MASTER: I dunno. Must be a king. CUSTOMER: Why? CART MASTER: He hasn't got shit all over him.) But it's looking less and less like a Democratic year.

Posted 9:13 PM by Robert

The Gas Man II: Walking The Walk, Talking The Talk, Visiting The Site

I don't read People magazine, not even in the check-out line. But I was intrigued by this report on Newsbusters:

People asked Gore: "His film 'An Inconvenient Truth' warns about global warming. So what is Gore doing about it?"

"1. I turn off lights in my house [to conserve energy]. We're getting sensor switches that automatically turn them off when the room is empty.

2. We got a hybrid car recently.

3. We try to live a carbon neutral life. On climatecrisis.org, you'll find a calculator which can add up the carbon dioxide you produce and give you options for neutralizing that.

4. This movie saves carbon dioxide because I don't have to fly and drive places to get my message across."
Mr. Gore clearly intended to display leadership and to set an example for the public at large with these responses. So I immediately considered the prospect of everyone saving carbon dioxide by making a movie so they don't have to fly and drive places to get their own messages across! For example, the man (Anibal, to be precise, who is from Guatemala) currently reconstructing on my behalf some investment property located some blocks from my own home might exercise this option. One can think of others.

I do confess to some confusion with these answers, especially Mr. Gore's admission that his family has apparently not made a practice of turning off the lights until recently, and that he has not yet acquired those sensor switches, even though he has been preaching eco-awareness and eco-doom for more than two decades. What other revelations lie in store? Are we soon to discover that Mr. Gore makes a habit of leaving the patio doors opened in the heat of summer while the air conditioning is running, but is considering closing them?

Yes, some sophisticates might argue that because the problem is whether or not to modify our civilization's overall infrastructure, and if so how to do it, there is little that anyone can do on an individual basis while remaining within society. But I was particularly excited by Mr. Gore's suggestion to the contrary, and that I could visit the web site climatecrisis.org to find a calculator which can add up the carbon dioxide you produce and give you options for neutralizing that.

So I went to the climatecrisis.org site, which is really quite remarkable - a kind of secular confessional. You plug in some information about your car and energy bills and it gives you a number of pounds of carbon you produce, your burden of sin as it were. You then can find out how to neutralize this burden you are putting on the planet. It turns out there are basically three options, and they each involve either monthly payments or one lump sum payment to one of three organizations: one of these purports to build windmills on Native American lands, one plans to burn methane from family owned dairy farms (I'm not making this up) and the only other way to buy an indulgence is to purchase Green Tags, which presumably are also good, although no explanation of what exactly happens when you buy one is offered.

Well, there you go! And you thought there was nothing you could do to keep the earth from going to hell in a hand basket!

Mr. Gore is a wealthy man. It is said that he has made many millions of dollars from his Google stock alone. That wealth, and friendships with other wealthy people who own their own forms of air transport, presumably made possible the former vice president's ability to log what seems to have been at least hundreds of thousands of private jet miles (corresponding to an awful lot of jet fuel and carbon) in the last year or so, as animated here: WMV: Hi - Low Quicktime: Hi - Low. With that kind of travel schedule, one wonders how much bovine methane must be produced, or how many Green Tags one has to purchase, to lead the "carbon neutral lifestyle" to which Mr. Gore says he aspires.

Posted 8:31 PM by Robert

Yet Another Cause Of Road Rage?

If that angry, horn-blasting tailgater in back of you is suffering from intermittent explosive disorder, then does that mean he is protected by the Americans With Disabilities Act?

Do local civil authorities such as the City of Los Angeles and the State of California have to make reasonable accomodation for his tirades? Are they prohibited from issuing to him the traffic ticket you would get if you engaged in the exact same behavior?

And if that's true, and there is therefore no recourse to public authorities against those like him, should you just get out and bop people like him right in the nose?

Just asking.

Posted 7:15 PM by Robert

Contra 1994

American Thinker and Patrick Hynes rip into the casually but intensely held mainstream media belief that the elections of 2006 will resemble the elections of 1994 in reverse (that is, 2006 will be a Democratic Congressional rout, maybe a landslide). Patrick reserves on an important point claimed by the American Thinker:

I believe [American Thinker's] Sheppard overstates the case for the Contract With America in his piece, however, which received little notice until after the election. On the contrary, 1994 was in many ways the first “moral values” election in which evangelical Christians became a dominant voting block in many areas of the country.

I tentatively agree with their conclusions. While I'm not sure how much the Contract With America and evangelicals counted in 1994, I do think that Patrick and Sheppard might do well to consider one very important feature of the 1994 election:

The 1992 election was won by Bill Clinton as a "moderate" Democratic Leadership Council type - which was and is widely conceded to be the only Democratic type to be electable in any swing race, and especially to the White House. But immediately after the Clintonites arrived in Washington the word went out - and continued to be emphasized by the mainstream media and many others for the following two years - that Bill Clinton had realized that the then-Democratic Congress was so intractable that he, as president, had no choice but to sign onto the dominant liberal Democratic agenda in order to avoid the disastrous pitfalls of Jimmy Carter's outsider status. The Clinton tax hikes, the specific and highly unpopular form of HillaryCare (carefully left vague during the campaign), and many other things that signaled the departure of the Clinton administration from the DLC formula were therefore laid by President Clinton and his people and surrogates squarely at the door of the Democratic Congress in the run-up to the 1994 elections. Every Clintonian betrayal of a 1992 presidential campaign promise therefore became a reason to vote Republican. Rarely, if ever, has a sitting president set up his own party in Congress to take the fall in midterm elections the way Bill Clinton did the Democrats from 1992 to 1994. Clinton would have done only incrementally more damage to the Democrats in Congress if he had presented himself as required by them to act and govern like Sister Souljah.

Which leads to what I believe is another big difference between 1994 and 2006:

George Bush may not be popular at the moment. But unlike Bill Clinton from 1992 to 1994, President Bush has not been busy over the past two years putting out the message that the things that have made him unpopular were dictated, ordained and determined by his need to cater to the people in his own party who are running for re-election to Congress in November. Mr. Bush has been a very strong team player in that regard. His vetoless record is just one example.

It should be a very big difference to the party controlling Congress that their own president and his surrogates have not been actively trying to shed responsibility in the direction of Congress for the past two years. Just ask any Democrat voted out of office in 1994.

Posted 8:41 AM by Robert

The Gas Man, Again

When pondering Al Gore's "An Inconvenient Truth" it is perhaps worth remembering that this is not the first time the former vice president has waged a campaign to impose gigantic costs in the service of correcting a problem of dubious reality (that in fact turned out not to exist nearly to the extent he insisted) and was not substantially ameliorated by anything he proposed.

The reader will recall that Mr. Gore headed the Clinton administration's campaign against the "Y2K Bug," sometimes known as the "millennium bug." There are striking parallels between Mr. Gore's two crusades. As with potential major human-caused global warming, the larger number of Y2K Bug "experts" were predicting that the bug was a huge problem that would have cataclysmic consequences if not aggressively and expensively corrected. Indeed, in 1999 The National Journal reported:

[A] survey of industry and government executives and programmers concerning potential fallout from the millennium bug, showing that 70 percent anticipated a negative effect on the economy, with 10 percent of respondents not ruling out the possibility of economic depression and civil insurrection.
Things didn't quite turn out that way on January 1, 2000. Not even countries (including Russia and other countries of the former Soviet Union, Romania and other countries of the old Soviet bloc, Brazil and South Africa) that had made few efforts to ward off the Y2K Bug suffered more than a few glitches:

[T]he Y2K bug had threatened to set off an epidemic of computer failures affecting everything from lights and water to aviation and nuclear power as the machines failed to recognize the new millennial date.

But as the headline in the Singapore Straits Times reported, "It was all bug and no bite." Governments all over the globe have reported few glitches and no disasters caused by computers meeting up with the year 2000. ….

Romania ... reported even fewer incidents than usual in the country's ill-equipped computer industry. ….Brazil's financial markets, the biggest in Latin America, passed Y2K tests with flying colors … In the meantime, planes are flying, toilets are flushing, phones are ringing and lights are shining.

The Y2K bug did not cripple a single power plant. Even the nuclear generators in the former Soviet Union kept running hours into the new year. …. Key oil production facilities were also unaffected, and there were no reports of widespread gasoline or food hoarding ....

"Throughout the world I think you'll find that almost a trillion dollars was spent on Y2K work. ... No one has argued credibly that the Y2K bug -- the legacy of programming in which years were expressed with just two digits -- was a scam .... "I was monitoring some radio stations yesterday. People were calling in and saying, `I didn't do anything to my computer, and it's working,' " said Faizel Dawjee, a South African government spokesman.

The Y2K Bug was not a "scam" - and the possibility of serious adverse consequences of global warming is not a "scam." There were some glitches: A few satellites went out, Al Gore had problems on his campaign web site computer because it wasn't DeBugged properly, that kind of thing. But the world of economic decisions does not consist of binary decisions between "scams" and the need to spend trillions of dollars! Was it worth spending a Trillion Dollars to ward off the Y2K Bug - even though countries that did not make systematic efforts suffered few consequences, and no serious consequences at all? I very much doubt it. It is not hard to think of very good uses of One Trillion Dollars, far better uses than remorsely chasing a software bug that did little damage even where nothing was done to fix it. Of course, a Trillion Dollars would be a small down payment (peanuts, really) in comparision with the costs that An Inconvenient Truth implicitly or explicitily demands be born by the world's economy ... much of it by the world's poorest people.

And the costs of the excessive Y2K DeBugging programs spearheaded by Mr. Gore were by no means limited to excessive spending on corrections. Y2K DeBugging expenditures during the Clinton-Gore administration were probably a major cause of the internet bubble of the late Clintonian Era:

To see what other veteran investors thought about the lessons learned -- or unlearned -- from the [1990's internet] bubble bursting, I checked with Ray Rothrock, managing partner of Venrock Associates. ... Venrock, founded with money from the Rockefeller family fortune, has been evaluating young tech companies for three decades from its offices on Sand Hill Road. Its past investments have included tech titans such as Apple Computer (AAPL) and Intel Corp. (INTC).
Rothrock believes that the bubble "was a perfect storm on two fronts -- Y2K and the Internet." Corporate zealousness to prepare for a Y2K disaster "inflated IT budgets well beyond normal growth rates," Rothrock said.
The graph of U.S. corporate IT spending growth from 1960 to 2005 shows a pretty steady line, except for a spike in advance of Y2K, Rothrock explained.
That caused investors to overestimate future tech spending and see "an infinite demand for tech products" that was an illusion, Rothrock said.

There is something about Mr. Gore's speech patterns, intonations, body movements and thought processes that suggests, even insists, that he is actually a character from some old Firesign Theater album. One such album, Everything You Know Is Wrong, posited the arrival of conquering Gas Men of Jupiter, who employed reasoning and intonation strikingly similar to those of Al Gore in An Inconvenient_Truth. Humanlings and earthloids were apprised by the gassy invaders that for too long we had been the "cruel masters" of our planet, and therefore (in logic strikingly similar to that undergirding the Kyoto Accord) now everyone must learn to play the piano! In many ways An Inconvenient Truth is in spirit a retelling of the Firesign classic, sometimes veering uncomfortably close to what might be termed spiritual plagiarism. But when contemplating the similarities between the thought processes of Mr. Gore and those of the alien invaders posited by the stoned-out Firesign zanies, this is not the most important point! As the former vice president wages his campaign to impose gigantic costs on mankind in the service of correcting a problem that may not exist and (if it does exist) would almost certainly not be substantially ameliorated by anything now proposed by him, it is more interesting to remember that this is not the first time he's done that kind of thing. And it is also worth remembering that Mr. Gore had lots of opportunistic Republicans and putative conservatives egging him on in his Y2K excesses.

Al Gore appears to be a seeker of ersatz political myths posing as quasi-religious truths, and he's always looking for others of like mindset. That mindset was a product of the benighted 1970's, which also produced the Firesign Theater classic now emulated in spirit so faithfully by the former vice president's new movie. As that classic points out: There's a seeker born every minute!

Posted 10:19 PM by Robert

A Good And Convenient Answer To A Recurring Question

From time to time one sees posed a question along these lines:

Has any work of art substantially changed history?

What normally follows is a series of answers and observations along the lines of "well, I don't know about changing history, but such and such piece of art changed my life" or "I don't know of any particular work of art that changed history, but so-and-so was an artist who had a personal effect on histoy." But these are not what the question asks.

There is a good example of a work of art that probably profoundly changed both American and world history, and whose effects continue to be felt today: Uncle Tom's Cabin by Harriet Beecher Stowe.

It was widely believed in 1860, and is still widely believed by American historians today, that Uncle Tom's Cabin was a highly material cause of the election of Abraham Lincoln to the presidency of the United States. Of course, there is never a single cause of such an event. But Ms. Stowe's book was and is believed to be an important cause.

The election of Mr. Lincoln, of course, directly precipitated the American Civil War, the ultimate end of American slavery, and the consolidation of the American federal republic into a vastly more unified state than the semistable near-confederacy that prevailed antebellum.

Posted 9:48 AM by Robert

Bad Economist? IV

As always, I enjoyed Arnold Kling's TCS article/review of David Warsh's fine new book Knowledge and the Wealth of Nations. And I also enjoyed the book itself - although I have some reservations with regard to the basic academic works of both Paul Krugman and (to a lesser extent) Paul Romer which are celebrated by Mr. Warsh. My reservations are for the most part not original, but they are serious, especially with respect to Herr Doktorprofessor Krugman's contribution. That's why I was a little surprised that Arnold's review does not mention, for example, Don Davis's very serious criticisms of Krugman's original papers, as I discussed here (for example). And although Professor Davis is now Chair of the Columbia economics department and was a professor of economics at Harvard at the time he issued his original criticisms, he does not even get a mention in Warsh's index!

It is true that Krugman to some extent recovered from the Davis criticism, but at the expense of having to make a great many concessions in the sweep of his original conclusions while concocting his (in my opinion) pretentious "New Geography." Krugman has admitted that his approach has a lot more to say about inter-regional trade issues than it has to say about true international trade. I discuss more of these reservations and developments here and here. I also mention that, in private correspondence with me, one economic Nobelist who knows something about international finance has rather openly disparaged Krugman's work. So, if Herr Doktorprofessor is correct to claim in his own review of the Warsh book (a review that Arnold correctly points out can barely conceal Herr Doktorprofessor's resentment that Romer gets top billing in the book), that "an intellectual revolution, largely invisible to the general public ... swept through the economics profession ...[in which] I was a prominent player," it would appear that not all sovereigns have yet recognized the new "revolutionary" government.

Of course, no one has an obligation to share any of my reservations about Krugman or Romer, but I think there is one aspect of their works that must be addressed in any meaningful evaluation of them: What significant predictions and policies flow from them. Consider Krugman's trade theories, for example. It is obvious that Ricardo's comparative advantage theory (supposedly displaced by the Krugmanian "revolution) has had tremendous predictive and policy consequences over the past two centuries - it is not necessary to list any. But can any reader provide one single example of an application of Krugman's theory to the creation of a policy that has clearly resulted in an increase in general wealth? Or of anyone's wealth (besides Krugman and his academic acolytes)? I can't. But every single day I notice many things in my life that were manufactured in countries with big comparative advantages to the US in doing so!

Similarly, what about real predictions - and I don't mean the silly game of testing Krugman's theory against "traditional" theories by doing comparative country analysis (as noted above, even that doesn't do Krugman much good - by his own admission). I mean predictions that help the society or someone make real money, or help some policy maker take a significant decision. Is the reader aware of a single currency trader, commodities trader or corporate CEO, COO or CSO or any other such professional who uses Krugman's theories to make predictions or plans in this period of intense globalization in which trade plays an ever larger role?

Similarly, is the reader aware of a single example of Krugman's work influencing anything relating to the EU Constitution debate - or the EU at all? Does the reader know of any politician who was alarmed or comforted by something from Krugman's work in connection with the greater integration of Europe? I'm not - and I was there when the French were deciding to vote it down! The arguments then and there were all about comparative advantage and input costs (Polish plumbers) within the EU region. Yet it is exactly in the zone of "regional" trade that Herr Doktorprofessor claims his insights have their greatest significance.

What about the ongoing Doha Round? For that matter, does any reader know of any significant WTO policy or concern or dispute that has been clearly influenced by the distinct trade economics insights of Herr Doktorprofessor Paul Von Krugman? I don't.

More generally: What example, in the real world, is a single meaningful application of Paul Krugman's trade insights anywhere outside of academe and academic journals? I am aware of nothing.

At least to my understanding, there is a lot more to - and remaining of - Paul Romer's work than Paul Krugman's work. That may be why Warsh concentrates on Romer. But Romer's work is not without its serious problems. Robert Solow - who is largely responsible for the very existence of the field of growth economics and won his own Nobel Prize for that work - has expressed serious reservations about Romer's contributions to "endogenous growth." Solow has made the uncontroverted point that it is trivial to make growth "endogenous" to a growth model, and that the trick is to make it endogenous in a way that is meaningful - which is what Romer and his people may (or may not) have done. I personally have reservations about Romer's assumptions concerning the nature of intellectual property, but such of my thoughts are not at issue here. Solow follows up his observation with more serious concerns, as the Economist's review of the Warsh book points out:

Mr Romer's theory, by contrast, calls for a more worldly response: educate people, subsidise their research, import ideas from abroad, carefully gauge the protection offered to intellectual property. But did policymakers need Mr Romer's model to reveal the importance of such things? Mr Solow has expressed doubts. Despite the caricature, he did not intend in his 1956 model to deny that innovation is often dearly bought and profit-driven. The question is whether anything useful can be said about that process at the level of the economy as a whole. That question has yet to be answered definitively. In particular, Mr Solow worries that some of the “more powerful conclusions” of the new growth theory are “unearned”, flowing as they do from powerful assumptions.

Professor Romer has not absented himself from all policy involvement by any means - as noted by Mr. Warsh. But in my opinion, Romer's involvement in the Microsoft case - and the case itself - was and remains a disaster. More generally, I am again aware of no meaningful policies or predictions from Professor Romer's work that have resulted in a clear gain for the economy or for any real-world players in it. Mr. Warsh seems to provide none. Can any reader help?

I very much want to like Paul Romer and his work (I confess that my sentiments towards Herr Doktorprofessor Paul Von Krugman are more complex, but the reader already knew that). Heck, I used to be a mathematician, and I love a good functional analysis/game theoretic riff as much as the next guy. So I would be very much in the debt of any reader who could help clarify my thinking with a few choice examples or rebuttals of my concerns.

My e-mail address appears above. Operators are standing by!

In truth, it appears that Arnold is trying extra hard to be nice in his review - which is not surprising since Arnold Kling is generally an extra-nice sort of person. Since he is being nice, he would probably have highlighted any clear benefit or application of these theories. That he didn't mention any such benefit or application speaks volumes about his likely true sentiments. But there is room for ambiguity in comments like this:

I have to separate my views of Krugman the New York Times columnist (execrable) with my views of Krugman the research economist (original and significant).

The economic models on which both of Professors Romer and Krugman have made their reputations employ rather involved (but not cutting-edge) mathematics. Such models are hugely hard to construe intuitively - one needs to first crank through the mathematical calculations they disgorge. In contrast, people like, say, Becker, supply mathematically rigorous arguments to back up their intuitive arguments, but the intuitive arguments make perfect sense before the mathematics is trotted out. That's not true of models of the Romer/Krugman type. That makes the fine structure of their mathematics much more central to the whole process - and makes it very easy for the mathematics to obscure intellectually weak (that is, overly powerful!) assumptions that support the model.

My guess is that models of the Romer/Krugman type have lots of mathematical eccentricities and mathematically obscured weaknesses. Davis' assault on Krugman's work is one example. It's interesting that Warsh focuses on Krugman's and Romer's efforts to address "transversality" as an effort to establish that their models are in a particular manner "stable." Ironically, Davis showed that Krugman's model was highly unstable in a totally different manner! That is, Davis showed that Krugman's initial results depended on what Krugman presented as a faux innocuous simplifying assumption - an assumption that was both seriously wrong and anything but innocuous.

The Krugman/Romer generation of economists is not the first to employ fancy mathematics. It looks like some people think that even the fine structure of now-venerable general equilibrium is wrong - or at least not economically meaningful. Observations available here and here and here argue that some of the basic papers in general equilibrium theory have also obscured the weaknesses of the theory with a cloud of mathematics, as in this summary:

[O]ur findings show that the existence results [of general equilibrium theory] are mathematical theorems devoid of any economic sense. As a consequence, this paper implies a direct criticism of dominant economic theory from two points of view. The first one being the theoretical soundness and rigor of neoclassical theory. The second criticism is more general, as it concerns the relationship between mathematics and economic theory.

I do not endorse such criticisms of general equilibrium theory, nor do I fully agree with the significance that these critic assign to it. General equilibrium theory is an odd part of economics. Often praised as "the most important this or that of 20th century economics...," it often just sits there. Sometimes it seems mostly to form the "foundation" of the Arrow/Debreau reputations. As the critical papers note, nobody seems to have spent a lot of time picking apart even the basic functions that the models use to see how they square with supply and demand requirements.

But what might be a "leave it alone as a sacred cow" attitude may be changing with the dawn of the new hyper-mathematical models of the Romer/Krugman type. Even the willingness to closely examine the mathematical fine structure of general equilibrium as may be such an early effect.

UPDATE (June 2): Don Luskin gets results! In response to Don's link to my post an astute reader provides a clear example of how one can make money with Herr Doktorprofessor's thinking (if not his trade theories):

Dear Robert,

(I need to remain anonymous, but please feel to share with your many readers. And thank you for your work. I've CCed Donald, as I know he'd enjoy this letter to you.)

Paul Krugman and his theories and beliefs have made me money. Seriously. That's because I'm a Paul Krugman contrarian.

I remember a lesson from a finance professor at Wharton. He stated that the most useless person in the world is someone that is right half of the time. Those that are right more often than chance should be watched carefully, and mimicked. And those that are wrong more often than chance should be watched VERY carefully. The person that is consistently wrong will provide you with opportunities to create wealth again and again.

Paul Krugman is such a person.

I have made money by betting the opposite of what Paul thinks, both in legitimate financial markets and "illegal" betting sites. For example, when he became convinced that Dean was the man to win the election, I made money on Kerry winning the primary. When Paul was convinced that Kerry would win the whole election, I bet on Bush. Paul last year said the bubble in the housing market would burst. I knew that I could wait a year, and any bursting would be very slow than very sudden. Paul is convinced that growth is slow and that unemployment is high -- I've been long the market (and very happy) since he turned into a sourpuss.

I conservatively estimate that Paul Krugman has earned me an 'excess return' of about $25,000 on my capital over the past five years, adding about 5% more to my portfolio annually.

The Times Select fee is well worth the price, as it lets me know what Paul thinks. So I can bet the opposite.

Regards,

"Anonymous"

There you have it! Found money!

And, as a bonus, the reader is invited to steal (er, "use") this valuable contra-Krugmanian recipe as a consequence of Professor Romer's finding that the world is a better place because we can all work the same recipe at the same time without getting in each others' way.

So, Grasshopper, may your economies of scale increase without limit .... even in the long run!

Posted 2:42 PM by Robert

The Almost Inconceivable Incompetence Of The New York Times

The rank incompetence that is now standard operating procedure at the New York Times is often obscured by the paper's overwhelming political bias and selectivity as to what it will report. But not always. Case in point: The Times has been running an article for the past two days under the headline Report Shows AIDS Epidemic Slowdown in 2005 by Lawrence K. Altman that contains this amazing passage:
India, for example, is at about the same level as South Africa as the country with the largest number of H.I.V. infections. India has 5.7 million infected people and South Africa 5.5 million, but India's population is far greater. Showing no sign of decline, South Africa has a prevalence rate of about 19 percent of 47 million people. In India, the rate is less than 1 percent of its population of 1.1 billion.

How difficult is it for the Times and Mr. Altman to figure out that 19 percent is about 20 percent, and 20 percent of 47 million is 4.7 million times 2, which is 9.4 million - not anywhere close to the 5.5 million the Times claims? Apparently, very difficult, since the Times has been running the error continuously for two days. Are they ever going to figure it out?

Good grief. And some (foolish) people actually rely on this rag as more than just a tell-tale of what the liberal world is thinking.

Update (June 1): Now three days.

Update (June 3): Still no correction. The reader can do the math to find the number of days this ridiculous error has been up, even though the New York Times is incapable of something so involved.

Posted 9:45 AM by Robert

Supreme Court: 2; Lessig, The Federal Circuit And IP Alarmists: 0

One of the more fatuous pseudo-visionary arguments offered up by opponents of the Bono Act and strong copyright and patent protection generally - especially by Professor Lawrence Lessig - is the prospect that such rights may "abort the revolution" that would otherwise bestow great wealth and blessings from intellectual property advancement and use. Perhaps the most classic example proffered by such alarmists is the prospect that a small possibly infringing copyrighted image in, say, a major movie might lead to a court enjoining distribution of the movie, or fear that such an injunction might be issued. Similar exaggerated concern is sometimes expressed over the possibility that incorporation of minor or obscure patented technology into large technology systems might lead to injunctions of the entire systems - as was recently threatened in connection with the famous Blackberry case. Of course, there the infringing technology was neither minor nor obscure (although the "infringed" patents may have been invalid). The alarmist prospect is, in turn, supported by a supposedly near-automatic right of intellectual property owners to obtain injunctions prohibiting infringing uses.

I have pointed out in the past that there is no such near-automatic right to such an injunction, despite the preposterous insistence to the contrary by some people who really ought to know a lot better, including the United States Court of Appeals for the Federal Circuit. Despite the obvious paralytic potential identified by the intellectual property alarmists as noted above, in spite of fairly clear contrary Supreme Court policy to the contrary, and in defiance of the changing nature of intellectual property rights and their uses in the economy generally, the Court Appeals for the Federal Circuit recently articulated its "general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances." 401 F. 3d 1323, 1339 (2005). This decision - it is hard to imagine a more bone headed approach in this area of the law - has now been reversed by a 9-to-zero vote of the United States Supreme Court:
According to well-established principles of equity a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. ... These familiar principles apply with equal force to disputes arising under the Patent Act.
It should be clear that application of these classic equitable factors essentially eliminates the realistic threat that minor infringements might lead to the "abortive" major injunctions, as feared by Lessig and his alarmists: Such major injunctions based on minor infractions contemplated by the alarmists would neither correctly weigh the balance of hardships between the plaintiff and defendant nor serve the public interest. In most such cases, monetary damages are completely appropriate. Moreover, the Court was at pains to point out that the same rules apply in connection with copyright injunctions:
This approach is consistent with our treatment of injunctions under the Copyright Act. Like a patent owner, a copyright holder possesses "the right to exclude others from using his property." Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932); see also id., at 127, 128 ("A copy-right, like a patent, is at once the equivalent given by the public for benefits bestowed by the genius and meditations and skill of individuals, and the incentive to further efforts for the same important objects” (internal quotation marks omitted)). Like the Patent Act, the Copyright Act provides that courts "may" grant injunctive relief "on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." 17 U. S. C. §502(a). And as in our decision today, this Court has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed.
Justice Kennedy's concurrence makes explicit that courts are not to ignore the changing nature and scope of federal intellectual property rights or the role of such rights in the economy, as the intellectual property rights alarmists fear and the Federal Circuit was all too willing to deliver. The Kennedy concurrence points out explicitly what is already clear, if implicit, in Justice Thomas's opinion: In cases now arising trial courts should bear in mind that in many instances the nature of the patent being enforced and the economic function of the patent holder present considerations quite unlike earlier cases. An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees. See FTC, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy, ch. 3, pp. 38–39 (Oct. 2003), available at http://www.ftc.gov/os/2003/10/innovationrpt.pdf (as visited May 11, 2006, and available in Clerk of Court’s case file). For these firms, an injunction, and the potentially serious sanctions arising from its violation, can be employed as bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent. See ibid. When the patented invention is but a small component of the product the companies seek to produce and threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest. In addition injunctive relief may have different consequences for the burgeoning number of patents over business methods, which were not of much economic and legal significance in earlier times. The potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test.
The equitable discretion over injunctions, granted the Patent Act, is well suited to allow courts to adapt to the rapid technological and legal developments in the patent system. For these reasons it should be recognized that district courts must determine whether past practice fits the circumstances of the cases before them.
Will this Supreme Court decision silence the alarmists? Almost certainly not: They have a vision to defend. But the decision should be enough to convince any level headed observer that the threat of an "aborted revolution" can be addressed and avoided by practical application of well established equitable principles. No major changes in federal intellectual property rights are needed on this count at this time.

Posted 11:08 AM by Robert

And Now, Senate Democrats Move To Plan "B"

Press release from the office of Senator Leahy:

WASHINGTON (Thursday, Jan. 5) Democratic members of the Senate Judiciary Committee on Thursday announced their witness list for the upcoming hearings on the Supreme Court nomination of Samuel Alito. ... Below is a list of Democratic witnesses confirmed to date, consisting of distinguished constitutional and legal scholars, national leaders and courageous Americans who represent many of the vital issues facing the nation today including: ....
Stephen R. Dujack Stephen R. Dujack is the editor of an environmental magazine in Washington and a freelance writer. Mr. Dujack has appeared many times as a guest columnist in publications throughout the country. Some of his recent writings have covered Judge Samuel Alito's membership in the Concerned Alumni of Princeton (CAP). Formed in 1972, CAP has been publicly criticized for its policies opposing Princeton's decision to admit women and minorities. When applying for a job in the Reagan/Meese Justice Department in 1985, Judge Alito touted his membership in the conservative group. CAP's positions and tactics were criticized in the years following its founding by other alumni, including former Senator Bill Bradley and Senator Bill Frist, who is now the Republican Majority Leader. Mr. Dujack, a 1976 graduate of Princeton, first wrote about CAP for the Princeton Alumni Weekly in the 1980s and then again in 2005.
From the New York Times, January 7, 2006:

Also on Friday, Democrats canceled one of their witnesses, Stephen R. Dujack, a journalist who has criticized a conservative Princeton alumni group to which Judge Alito once belonged. The cancellation came after members of the staff of Senator John Cornyn, Republican of Texas, distributed a Dujack column that compared eating meat to the Holocaust.

Because Mr. Dujack doesn't seem to fit in any of the other categories of selected witnesses the Senator's office provides, one must assume that Mr. Dujack was originally chosen because Senate Democrats deemed him to be a "courageous Americans who represent many of the vital issues facing the nation today." Apparently, there are still a few bugs in the Senate Democrats' witness vetting system. The equivalence Mr. Dujack asserts between farm animals and Holocaust victims is outrageous and creepy: "Comparisons to the Holocaust are not only appropriate but inescapable because, whether we wish to admit it or not, cows, chickens, pigs and turkeys are as capable of feeling loneliness, fear, pain, joy and affection as we are. To those who defend the modern-day holocaust on animals by saying that animals are slaughtered for food and give us sustenance, I ask: If the victims of the Holocaust had been eaten, would that have justified the abuse and murder? ... No. Pain is pain." But, in addition, obvious considerations of moral consistency suggests that Mr. Dujack might well share the views of the some of the country's most emphatic pro-life activists that equate the results of Roe v. Wade with the Holocaust. After all, in Mr. Dujack's calculus, shouldn't human fetuses - even if they are not "people" - have as at least as much claim to life and freedom from pain as, say, ducks and chickens? In Mr. Dujack's words: Pain is pain. Would that question have come up at the Senate hearings? Doesn't Senator Leahy want Mr. Dujack's courageous views on this topic aired? What a shame that we'll never know. Perhaps the Republicans should call Mr. Dujack and ask him about his courageous views.

Posted 3:35 PM by Robert

The Croaking Of The American Dream?

This just in:

Illinois approved a state amphibian, the Eastern tiger salamander, after it won 51 percent of Internet voters, beating the gray tree frog and the American toad. "The toad and the frog kind of split up the vote and allowed the salamander to slip in," Lt. Gov. Pat Quinn said.

But is anyone looking into accusations that frog and toad supporters were kept from the polls by confusing voter laws and discriminatory procedures ... or overly dry polling conditions brought on by global warming?

Al Gore, call your office!

Posted 1:34 PM by Robert

Late Stage Paranoia At The New York Times

Buffalo Springfield sang with eerie, unknowing prescience about the future of the New York Times when they trilled: Paranoia strikes deep, Into your life it will creep, It starts when you're always afraid ... Many at the helm and keyboards of the New York Times have long teetered on the very edge of full blown paranoia, but yesterday's Times editorial "Mr. Cheney's Imperial Presidency", which says the vice president is literally attempting to make the United States into a dictatorship (among many other nefarious purposes) is a headlong plunge into the abyss:

George W. Bush has quipped several times during his political career that it would be so much easier to govern in a dictatorship. Apparently he never told his vice president that this was a joke.

Virtually from the time he chose himself to be Mr. Bush's running mate in 2000, Dick Cheney has spearheaded an extraordinary expansion of the powers of the presidency - from writing energy policy behind closed doors with oil executives to abrogating longstanding treaties and using the 9/11 attacks as a pretext to invade Iraq, scrap the Geneva Conventions and spy on American citizens.

It was a chance Mr. Cheney seems to have been dreaming about for decades. ... The president "needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy," Mr. Cheney said ... Before 9/11, Mr. Cheney was trying to undermine the institutional and legal structure of multilateral foreign policy: he championed the abrogation of the Antiballistic Missile Treaty with Moscow in order to build an antimissile shield that doesn't work but makes military contractors rich. ... Mr. Cheney ... gathered his energy industry cronies at secret meetings in Washington to rewrite energy policy to their specifications. Mr. Cheney offered the usual excuses about the need to get candid advice on important matters, and the courts, sadly, bought it. ... Mr. Cheney gathered people who agreed with him, and allowed them to write national policy for an industry in which he had recently amassed a fortune.

The effort to expand presidential power accelerated after 9/11, taking advantage of a national consensus that the president should have additional powers to use judiciously against terrorists.

Mr. Cheney started agitating for an attack on Iraq immediately, pushing the intelligence community to come up with evidence about a link between Iraq and Al Qaeda that never existed. His team was central to writing the legal briefs justifying the abuse and torture of prisoners, the idea that the president can designate people to be "unlawful enemy combatants" and detain them indefinitely, and a secret program allowing the National Security Agency to eavesdrop on American citizens without warrants. And when Senator John McCain introduced a measure to reinstate the rule of law at American military prisons, Mr. Cheney not only led the effort to stop the amendment, but also tried to revise it to actually legalize torture at C.I.A. prisons.

Gone from the Times ranting is any hint of respect for Mr. Cheney or his office, or any concession that Mr. Cheney may have acted with good intentions or subjective good faith, even if he has acted (by the Times' lights) in error. But the Times does make the completely unsupported insinuation that the vice president acted out of intent to enrich his "cronies" - and makes very clear that federal court holdings contrary to the Times' thinking mean nothing except that the court was easily deluded. The Times generally absurdly presents Mr. Cheney as having powers that dwarf those of most presidents. The Richard Cheney described by the Times has much more power than was wielded by, say, Jimmy Carter.

On the whole, the tenor of the editorial might make one wonder why the Times doesn't just come right out and assert that Mr. Cheney is the Great Satan, roaming the world, seeking the ruin of souls. The image presented by the Times of Mr. Cheney's power is as distorted and false as the image it presents of Mr. Cheney's character and probable motivations. The vice presidency is an office that carries almost no active executive power. Mr. Cheney acts only at the behest of the president. But the Times cannot admit that relationship because the paper is wed to the preposterous, condescending image shared by many liberals of Mr. Bush as a dimwit princeling controlled by evil geniuses, including Mr. Cheney. The Times even goes so far as to accuse Mr. Cheney of appointing himself as the president's running mate - an assertion completely and disgracefully contemptuous of the president.

According to the Times, the vice president has committed a great sin by thinking outside of (but "taking advantage of") a "national consensus" that formed after 9/11 and whose precise parameters are authoritatively known to the paper. Whatever scope the Times might ascribe to that post-9/11 "consensus," this much is clear: The actual post 9/11 consensus includes by most people's calculation (even the Times) the conclusion that the very Watergate-era reforms that the Times lauds as sacred included some unwise restraint on executive power. It has been the Times - not Mr. Cheney - that has been outside the actual post-9/11 consensus. For example, in the middle of 2002 the Times furiously editorialized:

Congress passed the U.S.A. Patriot Act, rolling back civil liberties in key areas, and the Bush administration has held hundreds in secret detention. The court, meanwhile, said nothing. Yesterday the justices made themselves heard for the first time, blocking a federal judge's order to open to the public immigration hearings for terrorism suspects. It is a troubling move ...

So the post-9/11 "consensus" posited by the Times apparently did not include Congress, the administration or the Supreme Court. Who could have participated? Perhaps it was a "consensus" reached among those in the Times newsroom? Did they remember to send Mr. Cheney the memo laying out the "consensus?"

Although the Times savages him for his belief that the Presidency must be preserved from encroachment, Mr. Cheney is scarcely alone in thinking that many post-Watergate "reforms" have disastrously weakened the executive - and some such "reforms" have already been repudiated even by the left. For example, together with much of the liberal establishment, the Times fulsomely endorsed the Independent Prosecutor Law, as long as it hamstrung Republican presidents, as in this 1987 editorial:

[T]he Reagan Administration shamelessly pressed a legal attack on the Independent Counsel Act and lobbied Congress against its renewal ...

That supremely unwise law has now expired without any significant interest in Washington in again renewing it. Why? Simply because the near-paralysis of the Clinton administration brought on by that Act caused the scales to fall even from most Democratic eyes, resulting in a clear national consensus that the Independent Counsel Act was poor legislation. But the New York Times continued to defy that consensus: The Independent Counsel Act will expire ... and unfortunately most members of Congress would just as soon see the law fade into history. One might also note that the Supreme Court's post-Watergate era decisions have often reflected a serious concern over the erosion of the executive at the hands of Congress, as with the Court's spectacular overturning of the "legislative veto" as an unconstitutional usurpation of presidential power by Congress.

Any fact that might obstruct the demonization of Mr. Cheney is simply ignored by the Times. For example, the vice president is insinuated as having distorted intelligence analysis to bring about the Iraq war, despite the express repudiation of this suspicion by the 9/11 Commission report. And among many other supposedly evil acts, the Times assigns to the vice president (!) responsibility for the NSA warrantless but apparently legal surveillance program that the paper has recently been disparaging. But the editorial utterly ignores (to the point of making one wonder if the writer is even aware) that this "dictatorial" program has been strongly supported (in the form of a Chicago Tribune op-ed “President Had Legal Authority to OK Taps”) by former Clinton associate attorney general John Schmidt:

President Bush’s post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The Times editorial also ignores the strong judicial precedent cited by Schmidt, including both the Supreme Court’s 1972 Keith decision (explicitly pointing out that the Court was not questioning the president’s authority to order warrantless wiretaps in response to threats from abroad) and direct holdings by four federal courts of appeal - and much more. Nor does the Times editorial give even a nod to other views and facts that contradict the ridiculous impression of Mr. Cheney that the paper is trying to create, including Carter and Clinton orders under the Foreign Intelligence Surveillance Act of 1978, including Executive Orders 12139 (Carter) or 12949 (Clinton), which are both squarely inconsistent with the Times' posture. And no mention is made of California Democratic Congresswoman Jane Harman's (not unalloyed) support for the NSA program:
A recently disclosed government surveillance program "is essential to U.S. security," but it may go "far beyond" the effort to target al-Qaida terrorists described in secret congressional briefings, Rep. Jane Harman, the top Democrat on the House Intelligence Committee, said Wednesday. In her most extensive comments on the matter since the National Security Agency program was revealed last week by The New York Times, Harman, D-El Segundo, said "its disclosure has damaged critical intelligence capabilities."
The Times is certainly entitled to its own take on matters of public interest, such as the vice president's conduct of his office. But screaming that he is corrupt, uberpotent, evil-willed, bent on acquisition of dictatorial powers and opposed to a fictitious "consensus" is mostly going to convince reasonable Times readers that the paper of record has more than a few screws loose.

MORE: Good comments from Hoystory.

STILL MORE: From Maguire and Miller.

Posted 12:36 PM by Robert

Cocoon With A View

Although one knows it is truly dark and thick, the dimensions and effectiveness of the liberal cocoon still have the power to astonish. Consider this passage from "The Trouble With Hillary" by Kurt Andersen in New York magazine:

Lacking her husband's uncanny knack for finessing left and right, however -- the famous triangulation strategy - [Hillary Clinton] plays the game awkwardly, like a very earnest Vulcan who has closely studied Earth politics . . . . Still, the Democratic nomination is hers to lose, just as the general election will be the Republicans’ to lose, which they might manage by failing to nominate McCain or Giuliani. If the race is John McCain versus Hillary Clinton—by far the most likely possibility—and the electorate craves competence and integrity and common sense after eight rotten years of Bush, both candidates will look like equally reasonable choices. But alas, like every modern Democratic nominee except her husband, Hillary Clinton comes across as wooden, priggish, cold, too much superego, and too little id. I bet she and McCain will engage in an unusually civilized campaign. And whoever the nominees are, I bet the more likable, lusty, obviously human candidate will win.

Mr. Andersen's critique of Senator Clinton's limitations has some merit, but his assertion that a 2008 presidential race of John McCain versus Hillary Clinton is "by far the most likely possibility" is nothing short of bizarre - for the simple reason that the chances of John McCain winning the Republican nomination are all but microscopic. Just for starters, one might begin with the basic observation that senators make terrible presidential candidates, and almost never win. (Kerry? Dole? Humphrey? Etc., etc.) In addition, Mr. Andersen and his deeply-cocooned ilk seem to forget that in Senator McCain's prior presidential run, he received very few Republican votes. His only primary "successes" depended heavily on crossover votes by non-Republicans. Since then, John McCain has done little to burnish his reputation with "his" party's base. His "anti-torture" harping is deeply offensive to most of the Republican Party, as have been his assaults on defense spending, his resistance to efforts to block "gay marriage", his opposition to the "nuclear option," and his nearly constant efforts to undermine the president in many ways. That may all play well with the likes of Mr. Andersen, but Mr. Bush, who will have significant influence on the Republican 2008 choice, is highly unlikely to favor Senator McCain - which again seriously reduces the senator's prospects to obtain the nomination. And his stunts such as those that led to the entirely justifiable headline "McCain to Star in Boob Raunch Fest" cast serious doubt on McCain's judgment - as Susan Estrich(!) correctly noted. McCain's alienation from the Republican base remains perfectly fresh despite some rather silly efforts to portrait the senator as mending fences on the right (it's probably no accident that not a single "movement conservative" suggesting that McCain is better than once thought is actually named in this linked article).

Nor has John McCain been playing well recently with his supposed core supporters nationally. If there is any place in the country where a McCain candidacy might resonate (outside of favorite-son-excepted Arizona, although even here it's worth noting that earlier this year the conservative Arizona Republican Assembly voted unanimously during its annual state convention to censure Senator McCain) with "moderate" Republicans, it would be New York. But McCain's support has shrunk to insignificance there in large part because the senator is too old, as noted by Robert Novak:
Sen. John McCain, a potential 2008 Republican presidential candidate, has gotten a tepid response to a New York City fund-raiser Monday for his "Straight Talk America" political action committee. ... Many New York contributors to McCain's 2000 presidential campaign were reluctant to attend this year's event. The fact McCain will be 72 years old for the 2008 presidential campaign was cited to explain lack of enthusiasm, as was the senator's support for the Iraq war.
In the highly unlikely event of a McCain Republican nomination, a substantial independent candidate would almost certainly run in the general election somewhere in the vast reaches to McCain's right. So, contrary to Mr. Andersen's assertion, even in that case the race would not be McCain v. Clinton, but McCain v. Clinton v. _________, with McCain and Clinton splitting the center-left and faux center-left vote. Are Republicans supposed to ignore that fairly obvious likelihood and nominate Senator McCain anyway?

Let's look at the list:

Has spent career in United States Senate, widely seen as a terrible launching pad for presidency. (check)

Alienated from Republican base. (check)

Too old in the eyes of most likely financial backers. (check)

Has alienated the president and others running the national Republican party. (check)

Faces possible rebellion by core Republican voters in home state. (check)

Nomination would probably lead to third-party conservative candidate, and split center-left constituency sought by Hillary Clinton. (check)

And yet, despite all of these fairly obvious points, to Kurt Andersen, a 2008 presidential race of John McCain versus Hillary Clinton is "by far the most likely possibility."

Needless to say, the likelihood of a Republican nomination of Mr. Giuliani - who should be spending his time working to be elected governor of New York if he has not tired of elective office - is yet another order of magnitude smaller than Senator McCain's chances.

Of course, the above comments are not intended to address every ludicrous idea in Mr. Andersen's screed - there are just too many of them. But his suggestion that the election may turn on "the electorate crav[ing] competence and integrity and common sense after eight rotten years of Bush" is worth a moment of consideration. Would those "eight rotten years" not include the four rotten years leading up to Mr. Bush's reelection, with increased Republican margins in both houses of Congress? Perhaps that aspect of recent political history is not so visible from Mr. Andersen's cocoon with a view.

Posted 2:20 AM by Robert

Suddenly, Very Picky

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, has reportedly resigned from that court in protest of President Bush's secret authorization of a domestic spying program. Since the critics of the president's orders have argued that the disputed surveilance should have been authorized by a warrant of exactly the court from which Judge Robertson resigned, the resignation is a peculiar form of protest - to say the least.

Judge Robertson has not always been so picky regarding possible "taints" of his judicial office. This site contains quite a bit of information on Judge Robertson's rather extensive collection of highly questionable - and highly politicized - activities on the bench, including this pearl from the Washington Times (2/10/00):

The Judicial Council of the D.C. Circuit, in a terse two-paragraph ruling, ordered acting Appeals Court Chief Judge Stephen F. Williams to determine why a random computer assignment system at the court was bypassed in four campaign fund-raising prosecutions and a tax-evasion case against Clinton pal Webster L. Hubbell. Chief District Judge Norma Holloway Johnson abandoned the computer system to send the cases to judges appointed by Mr. Clinton. She has declined public comment on the decision, but told The Washington Times in a letter last month she was authorized to assign "protracted or complex criminal cases to consenting judges when circumstances warrant," although she did not elaborate. The new investigation was sought by Rep. Howard Coble, North Carolina Republican and chairman of a House subcommittee that oversees the courts, and Judicial Watch, a conservative public interest law firm…….Mr. Coble's concerns focused on cases involving Mr. Hubbell, former associate attorney general; Arkansas businessman Charles Yah Lin Trie; Democratic fund-raiser Howard Glicken; Thai lobbyist Pauline Kanchanalak; and Miami fund-raiser Mark B. Jimenez. The judges were Paul L. Friedman, James Robertson and Emmet G. Sullivan, all of whom were named to the bench by Mr. Clinton in 1994; and Henry H. Kennedy Jr., appointed by Mr. Clinton in 1997

And there's also this nugget from the Washington Post (6/28/00):

A federal appeals court yesterday reinstated the conviction of a Tyson Foods executive for providing an illegal gratuity to former agriculture secretary Mike Espy, ruling that Archibald R. Schaffer III was not entitled to a new trial…... A jury convicted him nearly two years ago, but a series of appeals delayed his sentencing……..Schaffer, director of government and media relations for the poultry giant, was convicted of providing Espy with $2,500 worth of air transportation so the agriculture secretary could attend a May 1993 Tyson family party in Arkansas. U.S. District Judge James Robertson overturned the verdict, saying prosecutors failed to tie favors to official acts on Espy's part. The U.S. Court of Appeals for the D.C. Circuit ruled last year that Robertson erred and sent the case back for sentencing…….The defense then sought a new trial, saying that Espy now was available to testify. At the time of Schaffer's trial, Espy was awaiting trial himself on gratuities charges. A jury acquitted Espy, who then offered to testify that Schaffer did nothing wrong.......Robertson ordered the new trial but was reversed once again yesterday.

There's so much more, even though the site is a bit out of date.

More recently, Judge Robertson ordered the Military Commission to stop hearings in the conspiracy case against Salim Hamdan, a former driver for Osama bin Laden. That order was reversed by the Court of Appeals for the D.C. Circuit (with now-Chief Justice Roberts joining the opinion), a decision that the Supreme Court has agreed to review. Here's more on the Hamdan case.

Posted 8:53 PM by Robert

The Former Commissioners That Didn't Bark: Don't They Care?

Just a few days ago - December 5, 2005, to be exact - the former 9/11 Commission blasted the U.S. government for failing to adopt many of its recommendations for preventing terrorist attacks. The commission was famously formed to study the Sept. 11, 2001 terror attacks. The commissioners "graded" the White House and Congress on the commission's suggestions for making the nation safer. Of 41 criteria, the commission gave the government five Fs, 12 Ds and only one A. "We're frustrated, all of us -- frustrated at the lack of urgency in addressing these various problems," former commission Chairman Thomas Kean, a Republican and former New Jersey governor, said.

That's all very nice. And the former members of the 9/11 commission (Thomas H. Kean, Chair; Lee H. Hamilton, Vice Chair; Richard Ben-Veniste; Fred F. Fielding; Jamie S. Gorelick; Slade Gorton; Bob Kerrey; John F. Lehman; Timothy J. Roemer; James R. Thompson) have not just been frustrated, they've been been chatty, chatty, chatty on the subject of national safety and security ever since they were appointed to that commission - and have repeatedly indicated their intention to continue to speak out on the subject of national security and terrorism.

So where the heck are the former members of the 9/11 commission with respect to the filibustering of the Patriot Act renewal and the ersatz "domestic spying" fluff? Thomas Kean once said, "We did have witness after witness tell us that the Patriot Act has been very, very helpful, and if the Patriot Act, or portions of it, had been in place before 9/11, that would have been very helpful." How about now? And is it just fine with, say, Jamie S. Gorelick - the author of the notorious "wall" memo that separated foreign intelligence information and criminal investigation data - that the Patriot Act is in extremis? Ms. Gorelick at one time also had lots to say about the president's "inherent authority" in foreign intelligence matters. Now she and Chairman Kean are as silent as the tomb. Has the hyperactive James Risen - or any other mainstream media type - bothered to ask Ms. Gorelick about any of these fusses, or to ask any other former member of the 9/11 commission? Why don't these former commissioners speak out now that it matters, where it was almost impossible to get them to shut up just a few weeks ago?

Well, Mr. Kean? Ms. Gorelick? Cat got your tongue? Any other commissioner care to speak up? Yooo-hooo! Over here!

Posted 9:32 AM by Robert

Life Imitates ScrappleFace

ScrappleFace, August 04, 2003:

Episcopal Church Appoints First Openly-Muslim Bishop, by Scott Ott
Bishops in the Episcopal Church today approved the election of the first openly-Muslim bishop in the church's history.The Islamic cleric, who rejects the deity of Jesus Christ, received an overwhelming majority of the vote.A spokesman for the Episcopal Church said the move demonstrates, "Our church is open to all people, regardless of their beliefs, or whether they accept the teachings of the Bible."The election of the Muslim bishop comes as the church stands ready to approve its first homosexual Bishop, V. Gene Robinson. Later today, the bishops plan to vote on the election of the church's first openly-atheist bishop.

Financial Times, December 17, 2005:

Last of the true believers, By John Lloyd
When the former foreign secretary Robin Cook died, he was given a service in St Giles Cathedral, in his native Edinburgh, one of the historic worshipping places of the Church of Scotland. The former Episcopalian Primate of Scotland and Bishop of Edinburgh, Richard Holloway, took the service. He smiled broadly as he described it - "Here was I, an agnostic Anglican, taking the service in a Presbyterian church, for a dead atheist politician. And I thought that was just marvellous." ... Holloway had long been seen as a man living and ministering at the very edge of where religion meets benign disbelief. He publishes a slim volume of reflections most years; the latest is an effort at reconciliation of the human with what he calls "the massive indifference of the universe". ... Holloway's vision is what Christianity in Britain tends to become: a repository of presumed goodness and wisdom which has no, or at best a very distant, God, but owes a lot to Him.... He is in a line of doubting prelates: infamous in the 1960s was another Anglican bishop, John Robinson, whose book, Honest to God, sought the same "Out There" space as Holloway. Since this was at a time when it was still thought important that bishops believe in God, it provoked a storm of controversy because of its insistence that God had (perhaps) become unnecessary.

Posted 3:28 PM by Robert

Unsurprisingly, The Inevitable Now Happens

Following the 2004 election, the ManWithout Qualities asked:

How long will it be before the Democrats decide that the real problem was in the primary schedule, convention date and rules, and other minor procedural matters - as they have after every disaster since 1968 - and again start spending way too much time and energy running down those dead ends?

Now we have a partial answer:

Democratic presidential candidates will face a revised calendar of primaries and caucuses in 2008, including new contests between the traditional opening states of Iowa and New Hampshire, based on new recommendations that will be considered by a Democratic National Committee panel tomorrow.... A staff draft of the final report ... will be forwarded to DNC Chairman Howard Dean... It appeared to be a compromise between proposals pushed by Southern and Western states for two to four contests between Iowa and New Hampshire and a proposal from protesting New Hampshire Democrats for additional contests immediately after the Granite State's primary. The draft contains four principal recommendations ... but the most significant calls for the addition of one or two caucuses during the eight-day gap between the Iowa and New Hampshire events and one or two primaries in the period after the New Hampshire primary and the date that formally opens the nominating process to other states. ... The draft also calls on the national committee to select states for these early contests based on criteria that would guarantee greater diversity at the front of the nominating process. Finally, the draft urges the national party to consider new incentives, including bonus delegates to the national convention, to discourage states from pushing their events up to early February.

So Howard Dean will soon receive the report and turn his fine judgment and balanced approach to this most delicate subject. This is an effort rooted in the Democratic Party's adamant determination to fight the previous campaign - and this time, get it right.

In a sense, the Democrats may be the new Bourbons: They seem to learn nothing and forget nothing ... and of their own volition pace the road to extinction.

Posted 7:24 AM by Robert

The Hypocrisy Tsunami

Reports from the Supreme Court hearing strongly suggest that the Court will unanimously uphold federal laws (the Solomon Amendment) that require universities accepting federal grant money to allow military recruiters to interview on their campuses in equal dignity with other recruiters. The Solomon Amendment had been challenged by some universities (especially their law schools) as imposing an "unconstitutional condition" constituting violation of free speech and other rights under the First Amendment. The law schools' theory is essentially that recruiters' on campus statements constitute speech of the schools - and that requiring the schools to admit the recruiters therefore amounts to forcing the schools to speak in favor of the recruiters policies (including discrimination against gays). The law schools actually go so far as to analogize themselves to the Boy Scouts (!), with the Solomon Amendment's requirement that the schools allow recruiters as a condition for receipt of federal grant money being analogized to the New Jersey law that unconditionally required the Scouts to admit gays. (The irony of this gaggle of liberal the law schools, which mostly deplored the Supreme Court's vindication of the Boy Scouts' First Amendment rights, now seeking to invoke that decision though tenuous and far-fetched analogies, is obvious.)

The schools' argument is preposterous and bizarre - all the more so because a decision in the schools' favor would ultimately be a disaster for the schools. That the New Jersey law overturned by the Supreme Court imposed a mandate, not a condition, is only the beginning of the weirdness - but it's enough to indicate that the Boy Scout precedent is not very close. Statements made by recruiters have never been imputed by sensible people to the school on whose grounds the statements are made. Do the law schools maintain that their students are too stupid to figure that out? Most Boy Scouts I have known could figure that out right away.

The real issue here is not "forced speech." The law schools want to express their views by the action of barring recruiters and thereby deliberately infuse their action with expressive content. But merely designating an action as having expressive content doesn't alone make the action pure speech. All human action has some expressive content, but that doesn't mean all human action receives meaningful or equal First Amendment protection. The expressive content of the schools' action in this case may be enough to prevent the government from mandating that the schools not discriminate against military recruiters when hiring faculty or admitting students (although the schools would stand on weaker grounds with respect to a former recruiter), but the Boy Scout analogy obviously goes no further than that.

The schools' position is at least as absurd and disingenuous in practice as it is in legal theory. Different recruiting employers have many mutually inconsistent policies, and different recruiters make many mutually inconsistent statements to interviewees. Do the complaining law schools endorse all of those mutually inconsistent policies and statements? The schools certainly don't expressly disavow many such statements, policies and practices. Some law firm recruiters lean heavily and actively Democratic (with all the political views and policies that entails) and some lean Republican. Some law firms electronically monitor and record their associates' telephone calls and some consider such monitoring to be outrageous. Some law firms routinely misrepresent such things as advancement and partnership prospects to their associates, and some do not. A member of the Goldman Sachs executive committee once told me that he regarded all major New York law firms as essentially Ponzi schemes based on systematic lying by the firms to their associates. Does Harvard Law School post signs at the recruiting desk along the lines of: "Warning, Harvard Law School has determined that most law firm summer internship programs - as well as statements made by partners and other firm representatives to summer interns - are deliberately designed to give a much rosier view of associate life and prospects than is in fact the case." I've never heard of one, but there really does seem to be evidence that law students are misled in this respect.

The schools' position would lead to a complete disruption of federal funding of universities. If the law schools won, fundamentalist universities would be able to obtain federal scientific research grants without engaging in scientific research simply by arguing that the university is an "expressive association" (as the law schools do here) and the requirement that the federal money be spent on traditional science and not creation science is an "unconstitutional condition?" How long would the feds stay in the scientific grant business if that holding came down? Moreover, the law schools' assertion that a recruiter's policy and statements are somehow "endorsed" or "adopted" by the school would naturally lead to the conclusion that the schools should be legally liable for frauds and other infractions contained in recruiters' comments and policies. Is that what the schools desire? Maybe they should have run this one by their lawyers. Fortunately, the schools seem to have a hostile Supreme Court to save them from themselves.

Absurd as the law schools' argument is, it was bought by two judges sitting on a panel of the Third Circuit, which enjoined enforcement of the Solomon Amendment. The majority opinion is virtually a tour of First Amendment intellectual dishonesty. But there may be something else at work here. It goes without saying that the left despises the Supreme Court's Boy Scout decision in the same visceral and contemptuous manner in which it despises Bush v. Gore. A rogue panel of the Ninth Circuit seized on a deliberate and willful misreading of Bush v. Gore as grounds for enjoining the California recall of then Governor Gray Davis, a decision later overturned by the en banc Ninth Circuit. The decision of the three-judge Ninth Circuit panel leaves one with an the impression of an author (and a court) eager to "stick" the Supreme Court and conservatives with what the panel completely understands to be a misreading of the odious Bush v. Gore. Similarly, the Third Circuit majority opinion leaves one with the impression of an author (and a court) eager to "stick" the Court and conservatives with the Court's decision upholding the Boy Scouts' rights. The rapid and unanimous en banc rejection by the Ninth Circuit of its three-judge panel decision, and the likely unanimous Supreme Court rejection of the Third Circuit decision enjoining the Solomon Amendment, provide some insight into how unpersuasive and ridiculous lower courts make themselves appear when thye descend to such contemptuous "stick-it-to-them" misreadings of Supreme Court precedent.

My guess is that the Supreme Court opinion overturning the Third Circuit decision will not be at all kind to that decision or its authors. The Supreme Court has its own genteel ways of expressing its contempt for such lower court frolics.

And when that reversal comes down, just how many universities will choose to "express" themselves on what they have told the Court they consider a most important issue by actually refusing the federal money? My guess is that we will see exactly none take that route. Already, as noted by an item linked abouve, Harvard - by far the wealthiest school in the nation and perfectly able to give up federal funding - has grudgingly admitted military recruiters. The schools with straight faces tell the Supreme Court that the issue is centrally important to them as a matter of high principle - but only so long as it doesn't cost them anything. The Hypocrisy Tsunami.

Posted 5:30 PM by Robert

Earth To Howard Fineman: Another Collect Call For You

Senator Clinton's core constituencies are certainly getting restless, as reported by the New York Daily News:

Anti-war activists furious with Sen. Hillary Clinton are vowing to bird-dog her everywhere she goes, starting with a swanky Manhattan fund-raiser tonight. Clinton's letter last week clarifying her position on Iraq--which included rejecting a timetable for withdrawal--fanned the anger of some war opponents, who decided to launch a campaign against New York's junior senator. "We're calling it Bird-Dog Hillary," said Medea Benjamin of the peace group Codepink.

Unfortuneately for Senator Clinton, this particular bird dog won't hunt in national election.

Posted 10:22 AM by Robert

Earth To Howard Fineman: Collect Call For You

Howard Fineman, writes in Newsweek about the infatuation of the left with anti-war activist Cindy Sheehan as an example of how the Democratic Beltway has parted ways with the Democratic Blogosphere:

Beltway Democrats avoided her like the plague; the Blogosphere embraced her as a heroine of the grass roots. It wasn’t so much the content of what she said; she was, after all, claiming mostly to be asking questions. It was the WAY she came to prominence—quickly, virally, seemingly from out of nowhere—and her stubbornly confrontational tone.

Cindy Sheehan "was, after all, claiming mostly to be asking questions?" Does Howard Fineman actually live on Earth? How could he? As fulsomely reported by the media, Ms. Sheehan gained national attention in early August 2005 when she camped out down the road from President Bush's Crawford Ranch, demanding a second meeting with the President and an "explanation" of the "unjust" Iraq war. She came to Texas claiming to do anything but "ask questions." On August 20, 2005 Ms. Sheehan published an article, "Hypocrites and Liars," describing what in her mind "Camp Casey is all about:"

I just read an article posted today on LewRockwell.com by artist Robert Shetterly who painted my portrait. The article reminded me of something I said at the Veteran's for Peace Convention the night before I set out to Bush's ranch in my probable futile quest for the truth. This is what I said:

"I got an e-mail the other day and it said, 'Cindy if you didn't use so much profanity '. There's people on the fence that get offended.'

And you know what I said? 'You know what? You know what, god damn it? How in the world is anybody still sitting on that fence?'

"If you fall on the side that is pro-George and pro-war, you get your ass over to Iraq, and take the place of somebody who wants to come home. And if you fall on the side that is against this war and against George Bush, stand up and speak out."

This is what the Camp Casey miracle is all about.

Cindy Sheehan had obviously stopped "asking questions" and started "giving orders" many months before she rose to prominence at Crawford. For example (and there are hundreds of such examples), on July 4, 2005 she told a paper in Fort Lewis, Washington, that her meeting with President Bush was "one of the most disgusting experiences I ever had and it took me almost a year to even talk about it" and described President Bush as "detached from humanity." On October 4, 2004 she stated that her son's death had compelled her to speak out against the "unjust" war in Iraq, to "bring the troops home" and "hold politicians accountable." Her trips ever further into the political ozone layer have been well documented.

The liberal and left-Blogosphere infatuation with Ms. Sheehan is (and from the very beginning of her rise to prominence, has always been), based exactly on "the content of what she said." Of course, the content of what she said has proved to be highly embarrassing - especially to anyone actually trying to win an election in this country. She's almost always nutty. Sometimes antisemitic. Increasingly extreme. It is easy to see why anyone would want some distance from that "content of what she said." But the fact is that the left embraced the "content of what she said," contrary to what Mr. Fineman says. That's a fact obvious to anyone actually of this Earth.

Mr. Fineman's entire analysis of the growing rift between the "Beltway" and "Blogosphere" factions of the Democratic Party is as unsound and shallow as his understanding of the Cindy Sheehan phenomenon he deploys as an example. Mr. Fineman presents the theories of the apparently gormless Simon Rosenberg (with minimal distancing ticks such as "if Mr. Rosenberg is right" and the like) that the rift is one of "tone" and differing "narratives." But what Mr. Rosenberg (and Mr. Fineman) says is simply wrong. For example, Hillary Clinton's eccentric support of the Iraq invasion is not a matter of "tone," "narrative" or "vocabulary." She voted more than once for a war that her core constituencies detest and consider a central issue. Senator Clinton's strategy has relied heavily on her core constituencies understanding that her faux-moderate positions were just political dodges on tangential and non-essential issues designed to put her in the White House. But the Iraq War has become too big an issue for those constituencies to see her position as an acceptable faux-moderate political expediency. Put another way: By bearing down on the Iraq War as a (or the) central issue, Democrats are causing Senator Clinton's former strategy to come unglued. After all, if (as the Democratic establishment has been intoning) Iraq is the important issue, a politician who treats it as a minor point to be finessed is not smart and realistic, she's a traitor. So Hillary Clinton's left-wing core constituencies are acting up. And she's scared because if she openly accommodates them very much, she probably cannot win the general election. That's not political "narrative." That's standard political "content."

Senator Clinton is hardly the first would-be candidate to face the problem of having to appease restless activists in her own party at the cost of damaging her national electability. For example, in 1992 George H.W. Bush, who had neglected the conservative activists in his own party, found himself obligated to give them great play at the Republican Convention. The result was a set of high profile appearances by people without general political appeal - including the notorious Pat Buchanan speech - that seriously damaged Mr. Bush's efforts in the general election. That Senator Clinton is now facing the same problem as a result of her faux "moderate" positioning only demonstrates that irony is cheap and plentiful in politics.

Here's how Mr. Fineman gussies up what is, in fact, a very common (but difficult) problem:

The consensus, among the insiders and in the early national polls, is that the 2008 nomination is hers to lose. .... I am waiting to see which, if any, of the crop of likely Democratic challengers tries to make himself the avatar of the “emerging activist class.” Dean did it without even knowing he was doing it. I don’t think Cindy Sheehan is running. Who will it be? Unless somehow it turns out to be Hillary—who voted for the prewar resolution on Iraq and in other ways has tried to burnish her “moderate” credentials.

But if Rosenberg is right, the key is not ideological purity but combativeness, and an appreciation of the power and tone of the Internet. Hillary must adapt—she has to “join the Resistance”—and her history has shown that she is nothing if not adaptable.

So for Mr. Fineman ( or is it Mr. Rosenberg, who is "worth listening to?"), the winning "adaptation" for Senator Clinton is doing by calculation something like what Howard Dean did by instinct? Howard Dean is now supposed to be the "success" model - not Bill Clinton? Whatever you say, Mr. Rosenberg or Fineman or whoever is talking.

It is a curious and recurring fact that the inclusion of anything related to the internet (including the Blogoshpere) often completely disorients mainstream media types such as Mr. Fineman, causing them to perceive very standard problems as unprecedented. In this case, the banal problem of how one tacks towards the party activists to win the nomination without appearing too "extreme" for the general election is presented as the fresh and new "Beltway v Blogosphere." But "Beltway v Blogosphere" is not the essential variable here. Nor is "narrative."

And Howard Dean, who has reportedly been as big a disaster for Democratic National Committee fund raising as he was a presidential candidate, is no role model - not even a little bit. That's another point that should be obvious to anyone not frequenting the Plutonic surface.

Posted 7:05 PM by Robert

"RATS" Then And "X's" Now

CNN claims that a large "X" the network flashed (for what it says was 1/7th of a second) over Vice President Dick Cheney's face during his recent speech was a mere "technical glitch" - not a subliminal message. CNN claims that the "X" image is a place-holding to cue up graphics that is not supposed to be visible to viewers but was "inadvertently projected" onto the screen by a malfunction in a "switcher" device. "CNN Live Today" anchor Daryn Kagan and the network's technical manager, Steve Alperin, argued: "So, for all the conspiracy theories out there ... that's not what this is about. It's a computer bug that people deal with everyday. It's just that ours was in front of millions of people."

Maybe so. But the 2000 presidential campaign buzzed over a Republican television ad that had the word ‘rats' spelled out for a mere 1/30th second. The ad criticized Al Gore's health plans. The ad maker explained that an "editing error" allowed the last half of the word "bureaucrats" to stay on screen as ‘rats'. At that time CNN treated the Republican "technical glitch" explanation with a good deal of skepticism, as exhibited in this CNN transcript of an interview by very-insistent CNN anchor Judy Woodruff of Alex Castellanos, the Republican consultant who created the 2000 ad:

WOODRUFF: Well, we are joined now by the man who produced that controversial RNC ad, he is GOP Media Consultant Alex Castellanos.

All right, Alex Castellanos, how did the word "RATS" end up in this commercial?

CASTELLANOS: Well, it's obviously part of our clever rodent strategy to get the anti-rodent vote.

It's an accident, it's unintended, and this is really just a cheesy effort by the Gore people to divert from the real issue here, which is...

WOODRUFF: But wait a minute... CASTELLANOS: ... which I emphasize one phrase in that ad, "bureaucrats decide," because under the Gore plan, bureaucrats decide whether you get your medicines or not.

That's real political manipulation, when you promise seniors a prescription drug plan, but then you don't tell them how it's going to work.

WOODRUFF: But when you put an ad together, you look at every frame of that ad. You had to know -- did you know that that word was in there?

CASTELLANOS: I didn't know it. I didn't know it until it was pointed out to me, and since I didn't intend to do that it didn't mean anything to me.

When you put an ad together you put the music together.

WOODRUFF: But why would you put part of a word, and the "R-A-T- S" part of it?

CASTELLANOS: It's a four-step, little thing just to draw emphasis to one phrase -- bureaucrats decide. Under Gore's plan, bureaucrats decide whether you get your medicines or not.

WOODRUFF: But "bureau" isn't there. It's just "RATS."

CASTELLANOS: It happens to be right in the middle. And, it was pointed out to me, you know, that's the way it turned out.

I think that it's -- the real important thing here is that they don't want to talk about the issue, they want to attack the messenger instead of the message.

The message is -- the real bad word he's scared about here is bureaucrats not "RATS."

WOODRUFF: Let me quote two -- or cite, what two Republican media -- two consultants said today; Greg Stevens, he's a veteran Republican advertising consultant, Scott Reed, Bob Dole's '96 campaign manager, both of them said they don't think this was done by accident.

CASTELLANOS: Well, you know, I'm sure that they're probably closer to infallibility than yours truly. But look, all we're -- there's no reason to do anything like this, for a Republican or a Democrat to try to get the anti-rat vote here, this is not really a clever political strategy.

The important thing people care about is who's going to decide whether you get your medicines, bureaucrats, or you and doctor.

WOODRUFF: I talked today with Kathleen Hall Jamieson, Dr. Jamieson, who's head of -- dean, as you know, dean of the Annenberg School of Communications, University of Pennsylvania; respected scholar on political communication. I want to be careful about this. She wrote a book in 1992 about negative campaigning in which she singled out an ad you did in 1990 for Jesse Helms running for the Senate in the state of North Carolina.

She pointed out what she called a priming technique, and I'm going to show just a portion of that Helms ad here, in which we show a white job applicant saying that he was being notified in a letter that he was shut out of a job because of a minority applicant. Let's just show just a small portion of that ad, Alex.

CNN also gave a good deal of sympathetic play to Democratic Party whines about the 2000 Republican ad, as in this CNN article from 2000:

Two Democratic senators have asked the Federal Communications Commission for an "immediate and impartial" review of the Republican National Committee's controversial "RATS" ad, according to sources in Vice President Al Gore's presidential campaign.

In a letter provided to CNN, Sens. John Breaux, D-Louisiana, and Ron Wyden, D-Oregon, wrote to FCC Chairman William Kennard that they were "deeply troubled" by the ad and believed that a review would be in "the best interests of both political parties, and all Americans."

A political stir erupted Tuesday when it was discovered that if the ad was slowed down, the word "RATS" appeared clearly while an announcer criticized Gore's prescription drug plan as one in which "Bureaucrats Decide."

Texas Gov. George W. Bush, the Republican presidential nominee, told reporters on Tuesday that he believed the appearance of "RATS" in the RNC ad was accidental.

But Gore, the Democratic nominee, said he was "disappointed" by the ad. .... Gore's campaign contacted news organizations about the ad, apparently trying to exploit the gaffe for political gain. A spokesman for the Texas governor on Tuesday brushed aside suggestions of subliminal advertising as "bizarre and weird," while the RNC had no immediate comment.

CNN slowed down a copy of the ad, and the word "RATS" clearly appeared on the screen in large, white letters superimposed over the words "The Gore Prescription Plan." In a fraction of a second, the word disappeared, and the words "BUREAUCRATS DECIDE" showed up in smaller letters. To viewers aware of the presence of the word, it is noticeable when the ad is played at normal speed.

Campaigning in Middletown, Ohio, on Tuesday, Gore told reporters he considered the ad a "disappointing development" in the presidential race. .... Gore told reporters Tuesday, "I've never seen anything like it. I think it speaks for itself." When asked whom he felt was responsible for the "RATS" message, he replied, "That's obvious," but did not elaborate on whether he was referring to the Bush campaign or the RNC.

Earlier in the day, Democratic vice presidential candidate Joe Lieberman characterized the ad as "very disappointing and strange."

Posted 9:58 PM by Robert

A Little Something To Remember Gerhard By?

Speaking up for what is said to be the first time, five senior officials from Germany's Federal Intelligence Service, or BND, just said in interviews with the Los Angeles Times that they warned U.S. intelligence authorities that the source, an Iraqi defector code-named Curveball, never claimed to produce germ weapons and never saw anyone else do so ... and lots of other unflattering things.

So why now? Why would the German government authorize its intelligence officers to speak up now - in a manner that can scarcely be expected to help relations between Berlin and Washington?

Could it have something to do with the fact that the person these "five senior officers" currently work for, departing Social Democratic Chancellor Gerhard Schröder, despises George Bush and is just about to leave office and the German government entirely? Could it have something to do with the fact that incoming Chancellor Angela Merkel, the leader of the conservative Christian Democratic Party, is known to be quite a bit more sympathetic to Mr. Bush than is Herr Schröder?

Could anyone have imagined that even Herr Schröder was so small and personally vain as to exploit his country's intelligence service in such a petty and improper fashion?

Posted 7:32 PM by Robert

Inconsistent Refrains

The long established Democratic refrain that there are not enough Allied "boots on the ground" in Iraq continues unabated, as reflected in this TIME magazine article, for example:

There are about 160,000 U.S. troops now in Iraq, a number U.S. commanders in the region plan to maintain at least through the Iraqi national assembly elections on Dec. 15. But the battalion commanders, according to sources close to last week's meeting, said that because there are not enough troops, they have to "leapfrog" around Iraq to keep insurgents from returning to towns that have been cleared out. The officers also stressed that the lack of manpower--rather than of protective armor or signal jammers--posed one of the biggest obstacles in dealing with roadside bombs, which have caused the majority of U.S. casualties in Iraq.
Yet, more recently, there has been a new refrain, as represented for example by the confused and ambiguous statements of Rep. John Murtha, a Pennsylvania Democrat, who last week called for an American troop withdrawal from Iraq either "within the next six months" or perhaps immediately. Whatever Mr. Murtha's intentions might have been, Senator Biden says he disagrees with "respected voices on military matters" like Rep. John Murtha in saying that the Senator "does not support bringing the troops home now. Rather, he said, 50,000 U.S. troops should leave Iraq by the end of 2006 and "a significant number" of the remaining 100,000 should leave in 2007."

This all raises the puzzling issue for such Democrats: If it is the absence of sufficient "boots on the ground" that creates the worst of the security problems (and results in most of the fatalities) for American troops in Iraq (as the TIME refrain insists), then doesn't an extended 2006-2007-and-beyond withdrawal of the type Senator Biden contemplates all but guarantee at least two years of greatly increasing this exact security risk and therefore the resulting American fatalities? What does Senator Biden think will happen during the more than two-year withdrawal period he is proposing, a period during which American troop levels will be much lower than they are now? He seems to think that at least as things stand now, what he is proposing would sharply increase casualties, but that somehow that increase can also be avoided:
"I still believe we can preserve our fundamental security interests in Iraq as we begin to redeploy our forces," Sen. Joseph Biden .... "Right now, our troops are the only guarantor against chaos," he said, but the military presence "is also, increasingly, part of the problem."
Do "our fundamental security interests" (as Senator Biden uses this term) include minimizing the loss of the lives of our servicemen? And if the Senator (or any Democrat) knows of some way of doing that better than is now the case while reducing the number of Americans in Iraq, why won't he share his secret?

Of course, if one thinks that the overall political and security situation in Iraq is improving and will continue to improve, then a phased withdrawal of the type contemplated by the Senator makes perfect sense, and is fully consistent with reducing American casualties. Indeed, that is what the Bush administration is hoping for. But Democrats advocating a phased withdrawal seem to be in the position of arguing that (1) the overall situation in Iraq is improving and that a phased withdrawal therefore will not increase American casualities during the years of withdrawal or (2) a multi-year period of increased casualities is acceptable or (3) the whole "not enough boots on the ground" refrain is simply wrong.

None of these alternatives seem to be politically viable. Perhaps that is why Senator Clinton, who also construes Rep. Murtha as calling for an "immediate withdrawal," has distanced herself from whatever it is he proposed as well as from timelines such as that proposed by Senator Biden:

Clinton, who is running for re-election to the Senate and is seen as a likely presidential candidate in 2008, suggested that the United States wait for Iraq's Dec. 15 elections for an indication about how soon the Iraqis can take over. "Until they vote for a government, I don't know that we will have adequate information about how prepared they are," she said.

Posted 9:02 PM by Robert

Trashing Your Own

It's time for the author of a book reviewed by the very same paper in which the author writes a twice-weekly column to sit up and pay attention when the review includes passages like this:

But what makes Dowd an exceptionally good columnist on the Op-Ed page - her ability to compress and juxtapose, her incisiveness, her ear for hypocrisy and eye for the absurd - does not enable her to produce a book-length exploration of a topic as complex as the relations between the sexes. Consumed over a cup of coffee, 800 words provide Dowd the ideal length to call her readers' attention to the ephemera at hand that may reveal larger trends and developments. But smart remarks are reductive and anti-ruminative; not only do they not encourage deeper analysis, they stymie it.

Youch!

The New York Times review also describes the present state of the "research" on which the book's title is derived:
The title, "Are Men Necessary?," refers nominally to scientific speculation that the Y chromosome, which has been shedding genes over evolutionary time, may disappear entirely within the next ten million years, a hypothesis countered by newer studies showing that the Y of the human species has been stable for the past six million years.
I haven't read the book, but the phrasing of this passage suggests that the book does not mention the fate of the quickly faded research. If that's correct, it would just be one more example of Ms. Dowd's common approach to her source material: "It's better than true, it makes for a good shallow quip without enough substance to be wit."

Posted 8:49 AM by Robert

Bird Flu Droppings

Public health officials and politicians world wide are fostering and exploiting fear of Asian bird flu virus A(H5N1) as a justification for enhancing influenza defenses generally, as noted in this article:

Some 400 animal and health experts meeting at the World Health Organization in Geneva want to build up regional stockpiles of antiviral drugs to counter a possible pandemic virus that could travel around the world in 3-4 months. .... Margaret Chan, the top WHO pandemic official, said the global health agency was in talks with drug makers and looking into the logistics of how to deliver the treatments. "We have taken up the challenge," she said. The global health agency already has a stockpile of 3 million antivirals that can be quickly deployed.

Indeed, some health authorities seem to be willfully confusing risks from influenza generally with risks from A(H5N1) in their public statements:

A three-day council of war on avian influenza opened here to warnings that a flu pandemic was inevitable, could kill millions and inflict up to 800 billion dollars in economic damage if the world failed to defend itself.
An influenza pandemic, potentially unleashed by a mutation of the H5N1 bird flu virus, "is only a matter of time," World Health Organisation (WHO) Director General Lee Jong-Wook said Monday.

"We don't know when this will happen, but we know it will happen," Lee said. "(...) If we are unprepared, the next pandemic will cause incalculable human misery... no society will be exempt and no economy will be unscathed."
Samuel Jutzi, director of the animal production and health division at the Food and Agricultural Organisation (FAO), said "the window of opportunity" remained open for tackling the threat at its source: on the farm.
"The virus has not yet reassorted or mutated," said Jutzi. "Action is required now. There is no time to lose here."

Of course, there is no "inevitable" A(H5N1) pandemic coming. What is thought to be "inevitable" is that the world will experience an influenza pandemic from some influenza virus. In fact, the risks of such a pandemic from A(H5N1) seem to be rather low compared to other viruses:

"The idea of a pandemic among humans is something from science fiction," Spanish Agricultural Minister Elena Espinosa said on the private radio station Cadena Ser, as Europe braced for the further spread of the H5N1 strain of the bird flu, which has killed 60 people in Asia during the past three years.

One particularly powerful argument being employed in the ongoing public relations and political campaigns exploiting fear of A(H5N1) is the supposed similarity of that virus to the 1918 Spanish Flu virus that is said to have killed 50 million people worldwide. But this comparision seems very shakey. Consider this story about Dr. Jeffery Taubenberger, a molecular pathologist at the Armed Forces Institute of Technology who led the research team that reconstructed the long-extinct 1918 virus:

[If the 1918 virus] is from a bird, it is not a bird anyone has studied before. It is not like the A(H5N1) strain of bird flus in Asia, which has sickened at least 116 people, and killed 60. It is not like the influenza viruses that infect fowl in North America. Yet many researchers believe that the 1918 virus, which caused the worst infectious disease epidemic in human history, is a bird flu virus. And if so, it is the only one that has ever been known to cause a human pandemic. That, Dr. Taubenberger said, gives rise to a question. Are scientists looking for the next pandemic flu virus in all the wrong places?

So without the "precedent" of the Spanish Flu, there would apparently be no case of an avian flu mutating into a virus capable of a human pandemic. Researchers cannot even determine what kind of bird the Spanish Flu supposedly infected - if it was a bird flu virus at all.

How wise is it to frighten billions of people and divert billions of dollars of public health money into a project with such a shoddy scientific foundation? The risks of a disatrous collapse in the credibility of world health authorities, at least with respect to influenza, seems to be high. The risks of diverting scarce public health resources from other projects which are known to help millions of people seem high. How much "inevitable" malaria could be avoided with the billions of dollars now proposed for flu? But the chances that an intense world wide effort is needed seems to be low, although monitoring and other low-intensity efforts seem to be warranted.

Posted 2:27 PM by Robert

Closed Senate Sessions

Senate Democrats have forced the Senate into closed door (sometimes called "secret") session, as detailed here. This Democratic stunt is being taken pursuant to Standing Rules of The Senate RULE XXI - SESSION WITH CLOSED DOORS. For those who may be interested, that rule reads as follows:

1. On a motion made and seconded to close the doors of the Senate, on the discussion of any business which may, in the opinion of a Senator, require secrecy, the Presiding Officer shall direct the galleries to be cleared; and during the discussion of such motion the doors shall remain closed.
2. When the Senate meets in closed session, any applicable provisions of rules XXIX and XXXI, including the confidentiality of information shall apply to any information and to the conduct of any debate transacted.

Posted 8:19 AM by Robert

Rove Apparently Clear III

As noted in prior posts (here and here), special prosecutor Patrick Fitzgerald has not been acting at all like a federal prosecutor intending or likely to indict Karl Rove. Yet much of the mainstream media has found ways to misconstrue virtually every scrap of information into a sign that Mr. Rove likely to be indicted. Now the mainstream media has decided that Mr. Rove won't be indicted "today," but will "remain under investigation." The same people tell us that Scooter Libby will be indicted today.

Perhaps. Mr. Fitzgerald's visible actions with respect to Mr. Libby have been more ambiguous than those respecting Mr. Rove. For example, there are no reports that Mr. Libby testified for hours before the grand jury late in the case without benefit of pre-testimonial target letter or the equivalent, as did Mr. Rove. But neither have Mr. Fitzgerald's apparent Libby-centric actions been intensely suggestive of in intent to indict that man, either. The reporters writing these articles claim special knowledge, so perhaps Mr. Libby's lawyer has been chattering to them, although it's hard to see why he would do that.

Not much time will tell. We are reportedly to know within the next few minutes.

Posted 9:38 AM by Robert

Driving Them Off With Kindness

It is curious that those who say they seriously wish to restrict the inflow of illegal (or "undocumented") workers into the United Staes spend so little time on the most economically obvious approach: If illegal workers' cost advantage over native workers were removed, then there would be no incentive to hire illegal workers.

It is equally curious that the breach is being filled by those purporting to "protect" the illegals. A prior post noted that California courts have held that illegal workers are entitled to sue their employers for back pay to the extentn their actual pay is less than minimun wage. Most illegals are paid far more than minimun wage, so the effect of that decision will be trivial. The going rate for the Home Depot parking lot guys in Los Angeles is $10 per hour, for example.

But those who say they oppose the presence and employment of illegal immigants continue to oppose measures that would reduce their cost advantages. And those who would protect illegal workers continue in their ceaseless quest to drive them out of the United States (or at least California) by showering them with unalienable and expensive rights, including workers compensation and medical care:

Illegal immigrants hurt on the job are entitled to workers' compensation benefits, a state appeals court panel has ruled, upholding California's policy of granting workplace rights to undocumented employees. Torrance coffee roaster Farmer Bros. Co. had sought to deny workers' comp benefits to an injured employee who was in the country illegally. The company argued that federal immigration laws superseded the state's system for treating victims of workplace injuries.

But the 2nd District Court of Appeal in Los Angeles, in a ruling published late Monday, said federal immigration statutes didn't preempt state laws governing workers' comp insurance, minimum wage guarantees and occupational health and safety protections.

"California law has expressly declared immigration status irrelevant to the issue of liability to pay compensation to an injured worker," the court ruled, upholding an earlier decision by the state Workers' Compensation Appeals Board against Farmer Bros.

Experts said the unanimous ruling by the three-judge panel was the first time an appeals court in California had specifically upheld the right of illegal immigrants to receive medical care and disability benefits for on-the-job injuries.

A finding in favor of Farmer Bros. would have been "devastating" and "would have put hundreds of thousands of workers at real risk," said Merle Rabine, a commissioner on the workers' comp appeals board, which had previously ruled that illegal immigrants were entitled to benefits.

An estimated 2.6 million illegal immigrants live in California, according to the state Department of Finance. ....

Advocates for tougher immigration control criticized the ruling and called for the federal government to get tough in penalizing employers who hire illegal immigrants.

"We can't reward people for breaking the law," said Andy Ramirez, a spokesman for Friends of the Border Patrol, a Covina-based group that sends members to patrol the U.S. border with Mexico.

"Employers of illegal aliens should be charged and prosecuted to the full extent of the law," he said.

Ah, yes, Mr. Ramirez. Whatever you say.

Posted 9:03 AM by Robert

Condi For Senate

There has been a great deal of misplaced enthusiasm for Condi Rice running for president, especially in 2008 against Hillary Clinton. Such arguments push for the elevation of Ms. Rice to the highest elected office in the land, despite her never having held any elected office whatsoever, have even been observed issuing from the lips and pens of some of those finding Harriet Miers' lack of judicial experience to foreclose her current nomination to the Supreme Court. Go figure.

Ms. Rice might well turn out to be a formidable campaigner and elected official. She should start below the very top level, but there is no reason to start at anyone's idea of the "bottom" (a state assembly seat is not in her future). So how about trying for a U.S. Senate seat now held by one of those California Democrats? At least in the case of Senator Boxer, Condi would have the advantage of not being utterly nutty. That's a characteristic her opponent has in abundance:

Life Imitates Literature
Interview by DEBORAH SOLOMON

Q: What are we to make of the fact that you, a Democratic senator from the Bay Area, have just written a novel about a Democratic senator from the Bay Area who appears to be the most decent person in all of Washington?

The Senator: I worked on this book for seven years. I just want to tell people what my world is like. Show them the great parts of it, the terrible parts of it, the toughness, the idealism, the corruption, all of this.

But how can you say that "A Time to Run," your first novel, represents the world of Washington politics when the Democratic characters are portrayed as saints, the Republicans as snakes?

Let the reader judge. I come to the book with a point of view. But my characters, I believe they're multidimensional.

What about Greg, who becomes an operative for a wealthy Republican businessman and tries to destroy the career of a Democratic congressman who was his friend in college? Do you think Democrats are just more virtuous than Republicans?

As individuals? No. But as parties, I think the Democrats have virtuous goals.

The senator in your novel, by a nice coincidence, is trying to block the nomination of a conservative nominee to the Supreme Court. What do you make of Harriet Miers?

She doesn't bring stellar experience to the job. That's a fact. That's not a disqualifier in my mind. What is a disqualifier is if I can't find out what the heck she will do. With her we have a blank slate. We need to demand information.

I am surprised to hear you say that you don't care about qualifications. Aren't we supposedly looking for a brilliant legal mind to fill the post?

Does he or she have to be the smartest person in America? That's not my bar. Other people have that bar. If the nominee went to a good school - that's not my bar.

You voted against Judge Roberts, and I am wondering if there are any conservatives you could ever vote for.

Sure. I sent two recommendations to the president. One was Ron George, the chief justice of the California Supreme Court, and the other was Kate Werdegar, an associate justice. Two Republicans.

Did President Bush answer your letter?

No. He did not. It didn't come across my desk, let me put it that way.

Do you frequently write to the president?

About once a month. I sent a letter to him right after Katrina and said that the National Guard troops from Louisiana and Mississippi should be pulled out of Iraq and brought home.

Why do you think so many people insist that Democrats have no ideas?

It's hard at this stage because we don't really have a soap box. We don't run anything, not the Senate, not the House, not the White House. Zero, zippo. We fight for the microphone when we can, and we will have the microphone as we get closer to the midterm elections in 2006.

Do you live with any other senators in Washington?

I have a house, and let me tell you the joy of my life. I share it with my daughter and my grandson. And I found out today that my grandson got elected as class representative of the fifth grade.

I hope you're not advising him to enter politics.

No. It's so hard right now, and if you love someone to the core of your stomach, then you don't tell them to go into politics. Which doesn't mean they won't do it.

Your daughter was married to Hillary Clinton's kid brother, Tony Rodham. Does that make Hillary a relative of yours?

We share a bond, because she is my grandson's aunt. My grandson is the only person that we know of in the history of this country who has both a grandmother and an aunt in the U.S. Senate.

It seems as if you're one of the few senators who aren't considering a bid for the presidency in 2008.

No. Someone has to stay in the Senate. And the Senate is not chopped liver.

Posted 8:13 PM by Robert

Companion Pieces

A little while ago a friend of ours, a senior member of one of the wealthiest and best connected families in Jordan, sent me this report, which he viewed as a bad sign of what is happening in Iraq:

Jordan's property boom has been attracting new investors and start ups both locally and from further afield recently, with the kingdom's political stability, reforms in foreign ownership and bank initiatives catching property buyers' eyes. At the same time, more negative factors are also feeding the boom, as an increase in Iraqis fleeing their war-torn country has sent real estate prices through the roof. Recent claims in the sector suggest that Iraqi purchases of Jordanian real estate may have gone up by as much as 170% in the last 12 months.

Now, with the Iraq constitution tentatively accepted, we have this interesting companion item, which I have forwarded to our friend for comment:

A five-bedroom river-view house sold three years ago for $45,000. Two years ago it sold again, this time for $80,000. It sold a third time in August. The latest price tag? $300,000. It's not in Charlotte or Kansas City or Philadelphia; it's in Baghdad. The market here is booming. ... Still, despite steadily increasing levels of violence, a great deal of money flows into Iraq, enough that property values have increased close to 1,000 percent in the past three years in parts of town.

Posted 1:02 PM by Robert

Bad Religion

A history of vigorous personal religious belief no more demonstrates that a judicial candidate will support sound Constitutional interpretation than a history of valiant personal military service demonstrates that a political candidate will support sound defense and national security policy.

With the disaster of Anthony Kennedy before him, one hopes that the president did not rely on the illusion of the former in choosing Ms. Miers - and in any event that the administration will cease all references to her religion to advance her appointment to the Supreme Court.

John Kerry argued the latter, again playing this long established liberal Democratic ruse on the electorate, and foundered badly. He deserved it.

Posted 12:33 PM by Robert

Sailing To Washington II

A prior post took note of the dramatic shifts in Robert Bork's Constitutional philosophies over the years, especially in the areas of First Amendment and "substantive due process" rights.

A dramatic example of a brilliant legal mind (and Robert Bork is surely that) whose well thought out Constitutional philosophy changed dramatically while its possessor possessed a seat on the Supreme Court is Justice Oliver Wendell Holmes. His 1915 Fox v. Washington concerned an editor sent to prison for an editorial titled ''The Nude and the Prudes." The editorial criticized ''opponents of nude swimming," which violated a Washington State law making it a crime ''to encourage or advocate disrespect for law." The Supreme Court, speaking through Holmes, upheld the conviction because the ''article encourages and incites" -- albeit ''by indirection but unmistakably" -- a persistence in what ''we must assume would be a breach of the state laws against indecent exposure."

Addressing criticism of Fox, Holmes later famously told Judge Learned Hand that a state should be as free to protect itself against dangerous opinions as against the spread of smallpox: ''Free speech stands no differently than freedom from vaccination." Well, he held a worked-out Constitutional philosophy.

But not a philosophy that lasted - and we're better off for that. In a series of opinions starting in 1919, only four years after Fox, Holmes launched the the Supreme Court on to its current, vastly more activist, First Amendment journey. It has been said that Holmes virtually invented modern First Amendment protection of free speech.

Frankfurter? Bork? Holmes? All had elaborately worked out Constitutional philosophies. Each stunned supporters and opponents with directions subsequently taken.

Details. Details.

Postscript: There are those who view Justice Holmes' First Amendment voyage as beginning with his honoring the social Darwinian winners in the legislature, and ending with his honoring the social Darwinian winners in the marketplace of ideas. In substance, that is perhaps not much of a voyage. That is also a rather harsh view of the good Justice, but it may be a correct one. In any event, it is a view that certainly highlights just how much the effects of his views changed over time - even if substance of his Constitutional philoosophy changed less. That a smallish shift in the substance of a justice's Constitutional philosophy could result in such dramatic differences in effect should give a good deal of pause to those who emphasize the significance of Constituional philosophy. Perhaps such people would answer that such a sensitivity makes it is all the more important to get someone with the "right" Constitutional philosophy on the Court. But since Constitutional philosophy seems to be inherently a rather unstable variable - at least if Messrs. Frankfurter, Bork and Holmes are any indication - perhaps a better approach is to seek other attributes of a judicial candidate as indicating future performance on the Court.

In fact, the intense criticism of Ms. Miers' personality, focus on procedure and formal social structures and decision making style found in some criticisms of her candidacy suggests that her critics may already be doing exactly that.

Posted 10:00 AM by Robert

Valediction, A Little In Advance

Remember Herr Doktorprofessor Paul Von Krugman? He's been laid so long in his TimesSelect tomb that some of the very young are said to confuse Herr Doktorprofessor with Professor Poopypants. Alarming. Merger of the memory of the real Vlad the Impaler with long existing middle European vampire folk legends eventually created Dracula. Could such a future lie in store for Herr Doktorprofessor's memory? Que sera, sera! But whatever his future may be, his present seems a definite gloaming, as the most recent list of "most e-mailed" from the Times indicates, a list he once strode as a colossus - as an emperor:

1. As Young Adults Drink to Win, Marketers Join In.

2. Meet the Life Hackers.

3. Item: Sisters Think Parents Did O.K.

4. At Public Universities, Warnings of Privatization

5. Chasing Ground

6. Op-Ed Columnist: It's Bush-Cheney, Not Rove-Libby

7. The Miller Case: A Notebook, a Cause, a Jail Cell and a Deal

8. Op-Ed Contributor: God Is in the Rules

9. Stem Cell Test Tried on Mice Saves Embryo

10. Classes in Chinese Grow as the Language Rides a Wave of Popularity

11. Power Companies Enter the High-Speed Internet Market

12. The Coroner: For Trumpet-Playing Coroner, Hurricane Provides Swan Song

13. Op-Ed Contributors: Recipe for Destruction

14. Op-Ed Contributor: Beethoven's Paper Trail

15. News Analysis: Administration's Tone Signals a Longer, Broader Iraq Conflict

16. Long Island Journal: Confronting Bullies Who Wound With Words

17. Poet, 79, Wins Prize and New Audience

18. The Short of It

19. Op-Ed Columnist: Mind Over Muscle

20. The Hidden Cost of Documentaries

21. Belgrade Rocks

22. Program Disorder: At Clinic, Hurdles to Clear Before Medicaid Care

23. A Personal Account: My Four Hours Testifying in the Federal Grand Jury Room

24. Restoring Slumberland

25. Op-Ed Columnist: The Big Squeeze By PAUL KRUGMAN If large corporations continue to cut wages, America's already-eroding working middle class may wash away completely. Something must be done.

Little, gentle, wandering soul,
My body's guest and friend,
To what far places are you borne?
Naked, cold and pale.
As the warmth and joy of life
You loved so slips away.

Posted 8:05 PM by Robert

Sailing To Washington

O sages standing in God's holy fire
As in the gold mosaic of a wall,
Come from the holy fire, perne in a gyre,
And be the singing-masters of my soul.
Consume my heart away; sick with desire
And fastened to a dying animal
It knows not what it is; and gather me
Into the artifice of eternity.

Once out of nature I shall never take
My bodily form from any natural thing,
But such a form as Grecian goldsmiths make
Of hammered gold and gold enamelling
To keep a drowsy Emperor awake;
Or set upon a golden bough to sing
To lords and ladies of Byzantium
Of what is past, or passing, or to come.

Sailing to Byzantium - William Butler Yeats

Many conservative lords, ladies and sages of Washington (including many actually located in that city) despair of Harriet Miers' scant record, as expressed in this National Review editorial:

We are left with only stray clues to Miers’s value system. Unlike John Roberts, or for that matter Ruth Bader Ginsburg, Stephen Breyer, or Clarence Thomas, Miers comes to the highest Court in the land as practically unknown quality, a gamble for incredibly high stakes.

There seem to be two related concerns: It is said that we don't know what Ms. Miers now is, and, even if she is acceptable now, her lack of a well developed "Constitutional philosophy" means that we cannot know what she will become. Ms. Miers' critics sometimes seem seriously confused between the two. For example, this National Review editorial absurdly argues that Justice Blackmun "was a loyal Republican; but almost as soon as he arrived on the Court, he was transformed." In fact, Justice Blackmun was famously dominated by Warren Burger (could there be worse evidence of Blackmun's intellectual frailty than this) for many of Blackmun's first years on the Court, to the point where the two were known as the "Minnesota Twins." It was only in his later years that the "twins" diverged. Or are we suppose to believe that Warren Burger was also "transformed?" (On the other hand, the editorial's concern that Ms. Miers' personality suggests that she is at risk of becoming a justice in the mold of Sandra Day O'Connor may be better placed - I haven't settled that point in my own mind.)

Looming over all, like T.J. Eckleberg loomed over the Valley of the Ashes, is the brooding omnipresence of Robert Bork. Practically every conservative criticism of Harriet Miers cries out, sometimes explicitly, sometimes in secret harmonies: This is so disappointing! We could have had a Robert Bork! Indeed, Mr. Bork himself, not content to watch silently while disaster looms as Dr. Eckleberg did, stated that the Miers' nomination was "a disaster on every level," and, lest anyone mistake him for understated, further explained:

[S]o far as anyone can tell she has no experience with constitutional law whatever. Now it’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already. So that—I’m afraid she’s likely to be influenced by factors, such as personal sympathies and so forth, that she shouldn’t be influenced by. ... There’s all kinds of people, now, on the federal bench and some in the law schools who have worked out consistent philosophies of sticking with the original principles of the Constitution. And all of those people have been overlooked.

But set aside for the moment questions about what Ms. Miers - or any candidate - is at the time of elevation to the Court. Assume for the purpose of the argument that it can be firmly established that Ms. Miers is now a conservative in all relevant terms. (This may be a non-trivial assumption in Ms. Miers' case. The National Review argues, for example: There is very little evidence that Harriet Miers is a judicial conservative, and there are some warnings that she is not. ) Is it right that one can obtain a significantly better grasp of what a candidate will become once on the Court for a while where the candidate has a well developed Constitutional philosophy that can be reviewed? That seems to be what Robert Bork is suggesting. Such an assumption also seems to animate David Frum. And there are many others.

But I'm not so sure. One thing one knows is likely true about someone who is brilliant and has worked out an entire personal consistent Constitutional philosophy is that such a person likes to constantly tinker with their own thinking on the Constitution. So why shouldn't one expect that such a person will continue to tinker and change his or her thinking about the Constitution more than other people? For example, think "brilliant judge and academic legal thinker" and pretty quickly you're probably thinking "Richard Posner." But Richard Posner would be the first to tell you that his thinking about the law has changed vastly over the years - and the propensity of his thinking to change seems not to have been inhibited by any particular philosophy that possessed it at any particular point in time.

But perhaps the most spectacular example of someone whose very elaborate and worked out Constitutional philosophies did not inhibit his subsequent changes at all may well be Robert Bork. As late as 1968, for example, Robert Bork celebrated Griswold v. Connecticut. In that year Mr. Bork wrote in Fortune magazine that Griswold showed that the "idea of deriving new rights from old is valid and valuable. The construction of new rights can start from existing constitutional guarantees, particularly the first eight amendments, which may properly be taken as specific examples of the general set of natural rights contemplated." His 1968 Fortune article completely rejected the need - even the possibility - of finding the "original meaning" of the Constitution. In "The Supreme Court Needs A New Philosophy," in the December 1968 edition of Fortune (pp 140-141), Mr. Bork put it this way:

[I]t is naive to suppose that the [Supreme] Court's present difficulties could be cured by appointing Justices determined to give the Constitution its true meaning," to work at "finding the law" instead of reforming society. The possibility implied by these comforting phrases does not exist.... History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court.

That hardly seems like the Robert Bork we know today. But Mr. Bork's evolutionary path was not linear or simple. In 1968 he wrote that the First Amendment protected not only political but non-political speech, and a lot more:

[N]on-political speech too, of course, is entitled to some degree of constitutional protection. Brandeis cited other values of speech that are not unique to the political variety. For both speaker and hearer, speech may be a source of enjoyment, of self-fulfillment, of personal development. It is often mundane or vulgar or self-serving, but it may be exalted, inspired by the highest motives. It may affect attitudes that ultimately impinge on the political process. All this has implications that, though generally overlooked, seem inescapable. For in these respects nonpolitical speech does not differ from nonverbal behavior, whether it customarily bears the label "sexual," "economic," "artistic," or some other. One could argue, then, that all human behavior should be entitled to the same level of constitutional consideration, the same judicial scrutiny of governmental regulation, that is currently afforded to nonpolitical speech.

"All human behavior?" Really? Sex? And drugs? And rock-and-roll? From such sweeping comments, it seems as though in 1968 at least Mr. Bork thought Mr. Bork had a well worked out Constitutional philosophy - and one that allowed for plenty of left-wing (or libertarian) judicial activism.

It didn't last three years. In 1971, he published a famous article "Neutral Principles and some First Amendment Problems" in the Indiana Law Journal, which argued that the First Amendment only covered political speech, narrowly defined. In that article Mr. Bork also openly admitted that he had reversed his position on Griswold. Where in 1968 he had written that Griswold was "a salutary demonstration of the Court's ability to protect fundamental human values," his 1971 article said of Griswold: "[A]t the time [that is, 1968] I thought, quite erroneously, that new basic rights could be derived logically by finding and extrapolating a more general principle of individual autonomy underlying the particular guarantees of the Bill of Rights." Mr. Bork also wrote in the 1971 article that Griswold was "an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defines that right, or rather fails to define it."

By the time of his confirmation hearings in 1987, Mr. Bork was still characterizing Griswold is illegitimate - and, as far as I know, that has not changed. But somewhere during the 1970's Mr. Bork's view of the First Amendment widened again, and he expressly repudiated the claim he had made in his 1971 article that the First Amendment applied only to political speech. Indeed, it is almost impossible to overstate the dimensions of the swings in Mr. Bork's understanding of the First Amendment. In 1968, he indicates that it not only protects non-political speech, but all human activity. Three years later, the Amendment protects only political speech - with a narrow definition. A few years after that, the scope of the Amendment's protection has widened considerably.

I do not intend to criticize any aspect of Robert Bork, or the evolution of his thinking, or any aspect of his thinking. But it is clear that his possession of a whole set of various Constitutional philosophies has never encumbered his ability to change them - in very serious and surprising ways. No Constitutional philosophy of Robert Bork has ever been sufficient to gather him into the artifice of eternity. Of what is past, or passing, we can and should investigate and question. But, contrary to many of Harriet Miers' finer critics, I'm not convinced that a candidate's worked out Constitutional philosophy gives us a substantially and incrementally surer understanding of what is to come.

MORE

Posted 8:47 AM by Robert

So What's New With Judith? II

It seems that I was closer to the truth of the whole Judith Miller affair than I had dared to hope.

Man Without Qualities (October 2, 2005):

Perhaps, just before the last flickering of institutional memory went out, somebody at the Times - maybe Mr. Bill Keller - woke up to a thought along the lines of:

"Gee, since nobody gives a rat's ass anymore about that Plum affair... (or is it Plume? ... Flame? ... Flambe? ... well, whatever - I'll look it up on Google when I get to the office), maybe there's no point in leaving old what's-her-name, our 1st Amendment heroine (note to self: Google) locked in Fitzgerald's iron mask? Must ask Pinch."

New York Times (October 16, 2005):

In a notebook belonging to Judith Miller, a reporter for The New York Times, amid notations about Iraq and nuclear weapons, appear two small words: "Valerie Flame." .... And when the prosecutor in the case asked her to explain how "Valerie Flame" appeared in the same notebook she used in interviewing Mr. Libby, Ms. Miller said she "didn't think" she heard it from [Libby]. "I said I believed the information came from another source, whom I could not recall," she wrote on Friday, recounting her testimony for an article that appears today.

Yes, as the Times article relates, there has been great frustration in the Gray Lady newsroom over having been scooped again and again on stories relating to Ms. Miller. By the Washington Post. By TIME. By the Man Without Qualities.

Sad, that.

Posted 10:34 AM by Robert

Strange Doings At The Poles And 43d Street

Steven Milloy locates more junk science (this time with a new twist) at the New York Times:

If you look at the temperature trends for the Arctic region since 1880, it appears that the Arctic generally warmed somewhat until about 1938. From 1938 until about 1966, the Arctic cooled to about its 1918 temperature level. Then, between 1966 and 2003, the Arctic warmed up to just shy of its 1938 temperature. But in 2004, the Arctic temperature again spiked downward.
Now if the 1880-1938 warming trend had continued up until this day, there certainly would be some significant warming in the Arctic region to talk about. From 1918 to 1938, alone, the Arctic warmed by 2.5 degrees Centigrade. But the actual temperature trend is much different, showing that there’s been hardly any overall temperature change in the Arctic since 1938. ....
And even when the Arctic re-warmed between 1966 and 2003, the warming occurred much less aggressively (about 50 percent less) than the 1918-1938 warming and at about the same rate as the period 1880-1938, despite much higher greenhouse gas levels in the 1966-2003 time frame. ...
Over the last 30 years, atmospheric levels of carbon dioxide increased by about 15 percent, from about 328 parts per million to about 372 parts per million. But the Antarctic temperature trend for that period indicates a slight cooling. This observation contrasts sharply with the relatively steep Antarctic warming observed from 1949 to 1974, which was accompanied by a much more modest increase in greenhouse gas concentrations.

Posted 9:14 AM by Robert

Not The Getty Villa

What is going on at the New York Times?

This is the Getty Villa. And this is the Getty Villa. And this is the Getty Villa.

But this is NOT the Getty Villa. It is the Villa De Leon, which everyone who knows anything at all about the Los Angeles area is aware is the private home that clueless tourists often mistake for the Getty Villa.

Clueless tourists, including the New York Times, which has been misidentifying a picture of the Villa De Leon as the Getty Villa in an article on the Getty. The article is about as insightful as the picture.

The two villas do not even closely resemble each other. The Getty Villa has no round turret (very prominent on the Villa De Leon). And while the Villa De Leon is a Palladian (that is, Venetian) style mansion, the Getty Villa is a copy of the Villa of the Papyri, a 1st Century Roman structure from the buried city of Herculaneum.

Details. Details.

Posted 5:22 PM by Robert

Rove Apparently Clear II

As noted in a prior post, the mainstream media have been drawing all the wrong conclusions from the circumstances surrounding Karl Rove's fourth visit appearance before Mr. Fitzgerald's grand jury. Indeed, only this morning the New York Times took front-page space to report breathlessly that some at the White House had "the jitters" over Mr. Rove's future. Baloney - at least with respect to anyone who really knows anything.

Now ordinary Department of Justice procedures seem to be catching up with events, and even the Times has had to replace its silly "jitters' screed with something that must be much more disappointing for the Gray Lady:

Mr. Rove's lawyer, Robert D. Luskin, told reporters that Mr. Fitzgerald "has not advised Mr. Rove that he is a target of the investigation and affirmed that he has made no decision concerning charges." Mr. Luskin went on to say that the prosecutor "has indicated that he does not anticipate the need for Mr. Rove's further cooperation."

The job of an investigating prosecutor is not to pop surprise indictments out of the grand jury. Department of Justice guidelines are very clear on the matter: if Mr. Rove were a "target" of this investigation he should have been told of that before testifying. As the Department of Justice grand jury guidelines put it:

It is the policy of the Department of Justice to advise a grand jury witness of his or her rights if such witness is a "target" or "subject" of a grand jury investigation. ... A "target" is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. ... ...[T]he Department of Justice continues its longstanding policy to advise witnesses who are known "targets" of the investigation that their conduct is being investigated for possible violation of Federal criminal law.

What is happening to Mr. Rove is a very positive sign for him personally, despite the most fervent hopes and wishes of his agitated detractors.

Of course, other people might be at risk, including, perhaps reporters - and perhaps even a public corporation or publisher.

Posted 3:59 PM by Robert

Yale v Harvard (And The New York Times)

The New York Times reports:

Harvard University announced today that it had hired Mohamed A. El-Erian....[,who] succeeds Jack R. Meyer, the hugely successful fund manager for Harvard, who stepped down Sept. 30 ... When Mr. Meyer took over the Harvard fund in 1990, it was worth $5 billion, and in June of this year, it was valued at $25.9 billion, with growth far outpacing any other university fund. In fiscal year 2005, the fund achieved a total return of 19.2 percent, Harvard officials said today.

With growth far outpacing any other university fund? Is that right? Well, the Yale Daily News has a completely different story:

Yale posted a 22.3 percent return on its endowment during the past fiscal year, beating all of the peer institutions that have reported their returns thus far as it grew to $15.2 billion. Though Harvard's endowment is larger overall, totaling $25.9 billion at year's end, it earned only a 19.2 percent return on its endowment during that period. .... During the past decade, Yale's endowment grew at an average rate of 17.4 percent, compared to Harvard's average annual return of 16.1 percent ...

But the really pathetic thing here is that the state of reliability of the New York Times has declined to the point where one really doesn't hesitate to assume that the student-run newspaper in New Haven has got the right story.

Perhaps the reader is concerned that the time periods don't exactly match? After all, Mr. Meyer has been running the Harvard Fund for more than 10 years, so maybe his big lead was racked up between 1990 and 1995? No. Here's what Fortune magazine reports:

When it comes to running money, though, [David F. Swensen, who runs Yale University's $15 billion endowment] and Meyer are much more closely matched. Swensen, 51, has managed Yale's endowment for two decades and built one of the most spectacular investment records on the planet—up 16.1% a year (while the S&P 500 index gained 12.3%). "Yale has the best returns of any endowment anywhere," he is quick to tell you. Meyer, 60, can't argue with that. Since he got the job at Harvard in 1990—thanks in part to a glowing recommendation from Swensen—he has trailed his Connecticut rival 15% annually to 15.5% (vs. 10.6% for the S&P 500, through June 30, 2004).

Fortune reports Swensen outperformed Meyer from 1990 to 2004 on average, and the YDN reports Swensen outperformed Meyer by 22.3% to 19.2% in FY2005.

So Swensen (Yale) has obviously outperformed Meyer (Harvard) on average from 1990 (when Meyer took the job) to date.

There may be others besides Yale that outperformed Harvard during Mr. Meyer's tenure, I haven't checked that.

Posted 8:21 AM by Robert

The Molecules of Style

David Gelernter today is celebrating Strunk and White's "The Elements of Style" in OpinionJournal, and defending that book from some who love it badly. I like "The Elements of Style," but it can also drive me to distraction. Professor Gelernter says, "If the English language is one of the finest homes ever devised for the human spirit, "Elements" is the best guided house tour we've got." Well, no. Maybe that sentence is true if one adds to it the phrase "... for those whose writing should resemble that found in the better New York literary magazines of the twentieth century."

That's not a small category of writing. Most business letters and memoranda are included and, obviously, most newsmedia writing. But the only purpose of a writing guide is to help a writer to achieve the effect the writer desires to have on the intended reader. In other words, a style guide facilitates an intimate relationship, even in business or public writing. "The Elements of Style" is often a clinical third person in that bed.

For example, Professor Gelernter correctly notes that E.B. White and his versions of "The Elements of Style" defended the use of the traditional "he" against gender neutral constructs such as "he or she," and that White didn't care about thereby giving offense. That's fine for a writer in a sparkling, min-century literary magazine. But a writer very seldom desires to offend his or her reader even for what E.B. White considers a good cause. And it is a fact that many people - especially, but not only, women - will be offended by the traditional construct. Or, worse, the reader will view the writer as clueless. I conclude that most writing should employ the awkward gender neutral constructs - although I strongly disagree with the social attitudes that lead to that conclusion.

"The Elements of Style" is not just dangerous when in contact with modern political and social developments. Applied as it was intended to be, "The Elements of Style" produces a document that is efficient, realistic and friendly, with apparent clarity: a clean, well-lighted prose. That's a good thing - except when it isn't.

In "A Street Car Named Desire" Mitch confronts Blanch Dubois (William's alter ego) for managing to be with him only in poor light, which Blanch does because she has misrepresented her age. Mitch tears off a paper lantern that she had placed over a light bulb. Blanch famously screams, "I don't want realism. I want magic, MAGIC! Magic is what I try to give to people. I do misrepresent things to them. I don't tell the truth. I tell what OUGHT to be the truth. And if that's sinful, let me be damned for it. Don't turn the light on!"

Clarity is not always the point, even for beginning writers and in the most public writing, even where the reader craves clarity. When obscurity is the effect the writer intends to produce on the reader, "The Elements of Style" fails badly. It is likely that most writers and successful people want to be obscure much of the time. ("Don't worry Jim, if that question comes up, I'll just confuse them.")

Yes, it is probably the case that most employers prefer clarity in employee writing, although that desire probably wanes considerably when it comes to memoranda opposing counsel may later desire to see in high-stakes litigation. Conversely, a subordinate is often well served by providing something clear and crisp to superiors on-the-go. But not always. A subordinate will sometimes prefer not to have his or her thoughts easily called to account - that is, prefer more "magic." In those cases, "The Elements of Style" can seem more like an addendum to a corporate employee handbook (which it often is) than an aid to the writer.

My reservations with "The Elements of Style" do not end with its sometimes poor fit with writer strategies. It's implied criticism of great stylists, from whom even the beginner has much to learn, is loathsome. Yes, E. B. White admitted that the rules of "The Elements of Style" should not be applied rigidly or "inappropriately." But these are defensive tautologies, and the book may as well include a disclaimer like: "This book says it is not to be used to create bad results, so this book can never be said to have produced bad results." Hooey. That kind of disclaimer wouldn't spare the manufacturer of a metal step ladder from liability, and it doesn't undo the fact that this book strongly tends to produce that clean, well-lighted prose and a comfort like that of a nice diner in a dark neighborhood.

Setting aside all the supposed, generally meaningless exceptions ("you can try to write like Shakespeare when you can write as well as Shakespeare"), consider for a moment what would become Portia's lines from "The Merchant of Venice:"

The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power, The attribute to awe and majesty, Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway; It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice.

Put through "The Elements of Style" meat grinder, this becomes something like:

"Even kings should give their mercy generously, and so should you. God says so."

It's not that "The Elements of Style" is completely inconsistent with literary writing. But that book is far more consistent with a charming story about a girl and her spider and pig than it is to, say, "Tristam Shandy."

Posted 6:32 AM by Robert

Another Looming Miers Disaster II

It is nothing short of astonishing that anyone could view this post as a "defense" of the Harriet Miers nomination, or as arguing that she should be confirmed, still less that the Man Without Qualities is a "supporter" of that nomination.

Yet, there it is and is and is.

As this blog has noted in connection with the Miers nomination several times: While I have not made up my mind on Harriet Miers, I do find many of the arguments advanced by the critics of the nomination to be curious and, in the case of the arguments discussed in my prior post linked above, nasty, personal and highly counterproductive. That post points out possible consequences of such nasty and personal attacks on this woman or anyone: Personal alienation from her critics fostering alienation from the principles held by those critics.

Most people would be pretty hard put to spend a pleasant dinner with someone who called her nomination "scandalous" and "a joke" and worse. As for such personal alienation fostering message drift, I don't know if Harriet Miers is prone to that or not. But I do think that (1) it is likely she will be confirmed, regardless of what her critics say, (2) personal and nasty attacks are not helpful, and do not clarify the problem of getting her nomination in focus, and (3) whatever her propensity to message drift may be, personal and nasty attacks from the right will maximize it - which is perverse.

Would Charles Krauthammer test a new bullet-proof vest by having his wife shoot him in the chest with a 45? If he were true to the tenor of his column, the answer would have to be"yes."

Nor have I suggested that Clarence Thomas might have been prone to message drift absent the personal and nasty attacks on him from the left - but those attacks spared us whatever risk there may have been. What, exactly, do Ms. Miers critics point to prior to Justice Thomas' appointment that proved to their satisfaction that he was immune to what David Frum refers to as "transformation" by anger, abuse, sweet inducements and blandishments? Absolutely nothing sensible. Mr. Frum, for example, argues that "it is simply reckless for any conservative president to take a hazard on anything other than a known quantity of the highest intellectual and personal excellence." Nothing in the record proved Clarence Thomas to fit that description prior to his nomination to the degree Ms. Miers' critics are now demanding. By the standards now advanced by many of Harriet Miers' critics, the nomination of Clarence Thomas should have been summarily rejected. And if conservatives had savagely criticized his nomination, called it a "scandal" and a "joke," pointedly ignored his considerable talents and personally attacked him, I would not want to wager how he (or anyone experiencing such things) might have reacted. But he is now on track to becoming one of the greats.

It is worth noting that Ms. Miers' critics do not argue that she is unsound, only that there is an unacceptable risk that she is unsound. The savage, demeaning and personal attacks on Ms. Miers greatly increase whatever risks may exist - and would increase those risks for any candidate whatsoever. And anyone arguing to the contrary just doesn't pay enough attention to human nature.

I very much worry about how firm "convictions" are if they are swayed by personal grievances (or charm). And I am concerned (although not convinced) that Ms. Miers may be of that sort. I have repeatedly noted that I have not made up my mind whether she is a good choice, or even an acceptable choice. But I certainly do not agree with those critics who seem to have reached the conclusion that if she isn't ideal, then it's OK to throw the kitchen sink at her. It's nothing short of hilarious (in a dark way, but still hilarious) that the agitation among her critics has reached the point where criticism of even the most counterproductive, distracting, overheated and plainly fallacious arguments against her is seen as a "defense" and "support" of her nomination.

Posted 8:07 PM by Robert

Anthony Kennedy, And The Judge He Is Today

Was Anthony Kennedy a "stealth candidate?" Was he "transformed" after he joined the Court?

Solid Brendan Miniter (writing in OpinionJournal) says that Justice Kennedy was a "stealth candidate":

The shortcoming of stealth candidates has long been apparent. Anthony Kennedy, whom President Reagan nominated after Judge Bork's defeat, hasn't moved the court to the right.

Talented and perceptive David Frum comments:

There have just been too many instances of seeming conservatives being sent to the high Court, only to succumb to the prevailing vapors up there: O'Connor, Kennedy, Souter. Given that record, it is simply reckless for any conservative president to take a hazard on anything other than a known quantity of the highest intellectual and personal excellence. The pressures on a Supreme Court justice to shift leftward are intense. There is the negative pressure of the vicious, hostile press that legal conservatives must endure. And there are the sweet little inducements--the flattery, the invitations to conferences in Austria and Italy, the lectureships at Yale and Harvard--that come to judges who soften and crumble. Harriet Miers is a taut, nervous, anxious personality. It is hard for me to imagine that she can endure the anger and abuse--or resist the blandishments--that transformed, say, Anthony Kennedy into the judge he is today.

But regardless of whether one views Justice Kennedy as a disaster, is it correct that he was a "stealth candidate" or that he was "transformed" on the Court?

In my opinion, Anthony Kennedy was anything but a "stealth" candidate. According to his biography, he joined the Ninth Circuit U.S. Court of Appeals in 1975 - where he took what is often called a "narrow case-by-case approach" without broad conclusions and principles. In other words, his opinions were a complete mess, just as many of his opinions have been on the Supreme Court. He taught constitutional law at McGeorge - which almost certainly left indications of his more personal views, had anyone cared to investigate them thoroughly. At the time, many of his liberal Ninth Circuit "opponents" said they admired Judge Kennedy's Ninth Circuit opinions and proclaimed him "pragmatic and fair-minded." He was for many years a major player on the Sacramento social circuit and a "networker." Many "knew" him, and "everyone" liked him (dear God, Roberts!). He was appointed to the Supreme Court in 1988 - with unanimous Senate vote. So even the most liberal Senators voted for him.

One big problem with calling Kennedy a "stealth" candidate is that it implies that a full 13 years as a federal appellate judge, a stint as an academic constitutional law teacher, admiration by paleo-liberals Ninth Circuit judges, approval by the most liberal Democrats in the Senate, and the existence of a wide circle of friends familiar with his personality, legal views and politics just wasn't enough to indicate what kind of justice he would become. Really? Then what the heck is supposed to be enough? And who the heck is going to make the case for Justice Kennedy lacking "highest intellectual and personal excellence?" Not me.

I think Kennedy's likely propensities were apparent from well before he joined the Supreme Court, notwithstanding his highest intellectual and personal excellence. He was Ed Meese's friend at least as far back as 1966. It would be interesting to know just how open ended and thorough White House vetting actually was, but the true nature of such matters seem to be closed to history.

Nor does David Frum's claim that Anthony Kennedy was "transformed" by anger, abuse, sweet little inducements and blandishments make any sense at all. Such a "transformation" would have to have been completed in record time. Webster V. Reproductive Health Services, which affirmed the central holdings of Roe v. Wade and was quite clearly a product of the judge Anthony Kennedy is today, was decided July 3, 1989, where the Senate unanimously confirmed Kennedy on February 3, 1988 and he took the oaths of office a few days later. That means Mr. Frum's posited "transformation" was complete in less than a year and a half - the paint was probably still wet on the walls of Anthony Kennedy's new offices in the shiny white building at the base of Capitol Hill. Those must have been some jim-crackin' angers, abuses, sweet inducements and blandishments to work that fast. Perhaps Mr. Frum has a "transformation" in mind like something out of Invasion of the Body Snatchers (take your pick of the version), with Justice Stevens, perhaps, placing a quasi-liberal pod outside the new justice's door while he took his first in-office nap.

No. Anthony Kennedy was no "stealth candidate." Nor was he "transformed" by anger, abuse, sweet inducements and blandishments. There are no pod people. Something else went seriously wrong. For those interested in finding out what went wrong, the right place to start looking is Ed Meese and the long-ago vetting of Anthony Kennedy. But making up fancy, tart myths and names to explain the mistake that is Anthony Kennedy doesn't help answer the question of whether Harriet Miers should sit on that Court - a question I have still not answered in my own mind.

UPDATE: John Fund points out that there seems to have been a breakdown in the White House vetting process that produced the nomination of Harriet Miers. The whole disturbing column is worth reading. Some excerpts:

Not only did the vetting fail to anticipate skepticism about her lack of experience in constitutional law or the firestorm of criticism from conservatives, but it left the White House scrambling to provide reporters with even the most basic information about the closed-mouthed nominee. Almost every news story seemed to catch the White House off guard and unprepared. ....

A real vetting process involves sitting down with potential nominees and grilling them with hard-charging and probing questions that go beyond the existing paper trail--or, in the case of Harriet Miers, the lack of a paper trail. .... Even though several highly regarded female lawyers were on Mr. Bush's short list, President Bush and Mr. Card discussed the idea of adding Ms. Miers. Mr. Card was enthusiastic about the idea. The New York Times reported that he "then directed Ms. Miers' deputy . . . to vet her behind her back."

For about two weeks, [William K. Kelley, the deputy White House counsel who had been appointed to his post only the month before] conducted a vetting he has described to friends as thorough. It wasn't. A former Justice Department official calls it "barely adequate for a nominee to a federal appeals court." One Texas lawyer called by the White House was struck by the fact "that the people who were calling about someone from Texas and serving a Texas president knew so little about Texas." (Mr. Kelley didn't return my telephone calls.)

It is unlikely that the vetting fully explored issues surrounding Ms. Miers that are sure to figure in her confirmation hearings, such as her work as Mr. Bush's personal lawyer. Another issue will involve Ms. Miers's tenure as head of the Texas Lottery Commission ....

The failure to complete and act on a standard, thorough vetting of Kennedy, Souter and O'Connor probably explains their later performances on the Court a lot more than calling them "stealth candidates" or any insidious post-appointment "transformation" - by anger, abuse, sweet inducements and blandishments or otherwise. A bad vetting process doesn't in itself mean a bad candidate - as Mr. Fund notes with respect to Dick Cheney, whose own bad vetting for Vice President worked out fine. But a bad vetting does mean that the president doesn't have all the data he could have in evaluating the nominee, and greatly increases the odds that things will go seriously wrong.

My guess is that the vetting of Anthony Kennedy was abbreviated at the direction of Ed Meese. I also guess that the vetting of Sandra Day O'Connor was abbreviated in reliance on William Rehnquist, although obviously Mr. Rehnquist was not in a position to direct the White House to cut short her vetting. As for Souter, I am told he simply out and out lied to his prime vetter, Lee Liberman Otis, whose career has been severely impaired by the consequences. Was it nice of Justice Souter to lie his way to the top while damaging Lee Liberman Otis so much? No. Did Souter tell his friend Sununu what he was planning to do to Ms. Liberman? Sununu is said to be too arrogant to talk about the disaster. As Daddy Warbucks famously said, you don't have to worry about how you treat people on the way up if you're never coming down. Lifetime tenure assured Justice Souter - and every successful Supreme Court nominee - that he was never coming down. That makes the vetting process for Supreme Court justices even more important. Trust but verify. So it's very strange that the basic process seems to have been curtailed in the case of Harriet Miers, and probably with respect to several other Republican candidates now on the Court.

As far as I can tell, the Clintons didn't cut short their vetting. So perhaps it's not surprising that the two justices appointed by Bill Clinton haven't disappointed the Democrats at all. Sure Justices Breyer and Ginsburg seem to be mostly visionless technocrats. But they're also safe, liberal votes who don't get fooled or seduced.

Posted 7:01 PM by Robert

Political Lunacy

A presidential panel sets out to provide the perfect paradigm. It's the only realistic explanation. There is simply no other way one can explain recommendations like this:

President George W. Bush's tax advisory panel, rejecting a fundamental overhaul, agreed to recommend limiting tax breaks for homeowners and employer- provided health-care benefits to help pay for repealing the alternative minimum tax.

The panel, meeting in Washington today, agreed the current $1 million cap on deductible mortgage interest should be reduced, possibly to about $350,000, and that the deduction should yield no more than a 25 percent tax savings, down from a top savings now of about 35 percent.

Of course, there is always the outside chance that the panel is bored, and just wants to see the spectacle of all those over-extended homeowners plunged into newly-tightened bankruptcy - and ultimately, foreclosure on those many homes! One could certainly achieve that result quickly by making mortgage payments more burdensome by reducing the tax benefits of home ownership. And it might be fun for some people to watch the lending-institution and mortgage-securitization-market collapse, and likely general economic Armageddon. But it seems like rather expensive entertainment.

Of course, there is talk of a "transition period" that would supposedly allow existing homeowners to keep their benefits ... it's just when they (or their foreclosing lenders) try to re-sell their homes that the roof would fall in.

And as for reducing the tax benefits of healthcare plans? It makes some economic sense ... but politically? Well, snowballs ... hell ... that kind of thing. Mohit Ghose, vice president of public affairs at America's Health Insurance Plans was understated: "Voters are sending a very clear message that they do not support changing the tax status of employer-sponsored or employer- provided health care.'' You might say.

Panel Vice Chairman John Breaux, a Democrat and former senator from Louisiana, said he realized both proposals may lack "political appeal" in Congress. "Our job is to make bold proposals without regard of the politics." Maybe. Or maybe Mr. Breaux wants to make the rest of the country resemble the current state of the southern portions of his home state.

Or perhaps the panel just didn't want to repeal the Alternative Minimum Tax in the first place?

Why didn't the panel just propose to pay for the repeal of the AMT by closing the Washington Monument and similar venues? It would have been more likely and realistic.

Posted 6:24 PM by Robert

Double Whammy

Don Luskin correctly characterizes this "awesome posting from EU Rota" noting that the OECD Factbook indicates that US governments spend more per capita on health care than almost any European country, with the lowest tax wedge. As Rota and the OECD factbook show, the comparison is even more telling if one considers private healthcare expenditures in addition to government expenditures.

But, of course, that's the spending side. One of the canards pushed on the public in the early Clintonian era (ca 1992-1994) was the assertion that American money bought less healthcare dollar-for-dollar than European money. That assertion foundered on the rocks of studies such as the one reported in an article titled "Getting more for their dollar: a comparison of the NHS with California's Kaiser Permanente" by Richard G A Feachem, Neelam K Sekhri, Karen L White, that appeared in the journal British Medical Journal a few years back, and found:

The widely held beliefs that the [British National Helth Service] NHS is efficient and that poor performance in certain areas is largely explained by underinvestment are not supported by this analysis. Kaiser achieved better performance at roughly the same cost as the NHS because of integration throughout the system, efficient management of hospital use, the benefits of competition, and greater investment in information technology.

Obviously, not all US medical care is provided by Kaiser and not all European healthcare is provided by the NHS. But Kaiser is a pretty representative American HMO, the NHS is a pretty representative European national healthcare system - and Kaiser and the NHS are the two systems that the Clintonian propogandists chose to compare when it suited their purposes. The study therefore strongly suggests that the American medical system may well be more efficient than its European competitors on a dollar-per-dollar basis. One can now add to that likelihood that the US is also expending more of those dollars in the first place - as EU Rota notes from the Factbook figures.

More dollars. Probably more medical care per dollar. Sweet.

Posted 9:33 AM by Robert

Which Way, Anthony?

I have still not made up my mind about Harriet Miers, but I continue to be surprised by some of the arguments and assertions being made in connection with her nomination. Consider these three examples, each written by a very sensible conservative with presumably nearly-adjoining offices:

John Fund (writing in OpinionJournal):

From term limits to abortion to the juvenile death penalty to the overturning of a state referendum on gay rights, Justice Kennedy has often disappointed conservatives.

Brendan Miniter (writing in OpinionJournal):

The shortcoming of stealth candidates has long been apparent. Anthony Kennedy, whom President Reagan nominated after Judge Bork's defeat, hasn't moved the court to the right.

James Taranto (writing in OpinionJournal):

As this chart shows, Thomas and Scalia were in full agreement in only 68% of cases in the 2004-05 term; the two justices who most often agreed fully, William Rehnquist and Anthony Kennedy, did so 77% of the time.

Justice Kennedy replaced Lewis Powell on the Court. Powell is a justice universally described as voting to the left of Justice Rehnquist. Unquestionably conservative William Rehnquist and Anthony Kennedy voted the same way more any other other pair of justices - a full 77% of the time.

Yet we are to conclude that Anthony Kennedy hasn't moved the Court to the right and should be viewed for purposes of the Miers nomination analysis mostly as having often disappointed conservatives? Yes, Anthony Kennedy has sometimes performed badly, especially recently. And he has at least from Webster been much too sensitive to media considerations.

But 77% is still a very big percentage.

Posted 10:58 PM by Robert

Which Way, Harriet?

Many of the concerns about Harriet Miers are based on the assumption that an articulated and coherent constitutional vision - which Ms. Miers is said not to possess - offers better assurances against what might be called "message drift" than generally "conservative" constitutional views. David Frum believes that Ms. Miers will remain a conservative justice for a while, "But then the Bushies will have gone home, and she will develop new friends, and then the inevitable tug to the left may prove irresistible." Such message drift marked (I would say "marred") the tenures of Justices Blackmun and O'Connor, for example.

There is surely something to this thought, but it has its limitations, as a review of the career of Justice Frankfurter indicates. Frankfurter was not exactly without intimate familiarity with the constitution before his appointment, and he was a famous liberal. But things didn't really turn out that way:

Despite his liberal political leanings, Frankfurter became the court's most outspoken advocate of judicial restraint, the view that courts should not interpret the fundamental law, the constitution, in such a way as to impose sharp limits upon the authority of the legislative and executive branches. In this philosophy, Frankfurter was heavily influenced by his close friend and mentor Oliver Wendell Holmes, Jr., who had taken a firm stand during his tenure on the bench against the doctrine of "economic due process". Frankfurter often cited Holmes in his opinions. In practice this meant that he was in general willing to uphold the actions of those branches against constitutional challenges so long as they did not "shock the conscience". Later in his career, this philosophy frequently put him on the dissenting side of ground-breaking decisions of the Warren court.

On the Court, Felix Frankfurter, noted liberal, became Felix Frankfurter, noted restrainer and conservative. To some extent his growing apparent "conservativism" was the result of changing times and a changed Court. But there was more to it than that. More than a few of his fellow liberals were shocked at what happened to Justice Frankfurter in his years on the Court.

For the sake of clarity, I have not yet made up my mind about Harriet Miers' nomination, and the above comments are not intended to persuade anyone that she should be confirmed. At this point, I am interested in weighing the various arguments made for or against her - including the limitations of those arguments.

Posted 5:08 PM by Robert

Final Chapter In The Fall Of The House Of Eisner: The Last Of Michael

A few days ago, Walt Disney Company, as a securities "Registrant," filed a fairly routine Report of Form 8-K/A with the Securities and Exchange Commission detailing the terms of its engagement of Robert Iger as its Chief Executive Officer. At the very end of that filing, almost as an afterthought, appears this bit of Plain English:

In addition, on September 30, 2005, Michael D. Eisner tendered his resignation from the Board of Directors of the Registrant, effective immediately. Mr. Eisner's status as Chief Executive Officer of the Registrant ended at the conclusion of the Registrant's fiscal year on October 1, 2005, and he no longer provides any services for the Registrant.

And so it ended. One of the most storied - and, ultimately, troubled - relationships in the history of the American entertainment industry was done. The language conveying Mr. Eisner's termination to the SEC records was brief, sanitary, cold, final - one could almost hear the FLUSH! He was gone.

What happened? It wasn't supposed to be that way. According to Forbes:

The statement comes on the back of Michael Eisner resigning from the board of directors last Friday--surprising, since he'd been expected to stay there until next year. And although he's entitled to, the ex-CEO will apparently not serve as a consultant to the company; perhaps symbolically conveying that his influence is well and truly history.

Not only was Mr. Eisner entitled to stay as a consultant, he was expected to stay as a consultant.

Word from inside Disney is that Mr. Eisner's decision to sever all ties with the company turned on questions of office draperies and the like. Multi-billion dollar companies sometimes choose to express themselves in their dealings with their former CEO's and Chairs (and then-current director and still largest insider individual stockholder, by far) through indirect means not all that unlike the means commonly employed by grumpy spouses ... or children. It seems that negotiations between Mr. Eisner and Disney broke down as the company objected to his choice of the office he was to occupy as a consultant, to his support staff, to the cost of decorating the office - and, yes, to the draperies he wished to install. There was a row. Eventually, Mr. Eisner got the idea that the company wasn't really all that happy to have him around in any capacity, and wasn't about to make him comfortable or treat him well. Since remaining as a consultant would have subjected him to a rather burdensome "non-compete" agreement, and the company was making it rather clear through trivial, humiliating negotiation points that he wasn't welcome anyway, he decided to quit. This way, Mr. Eisner keeps his options open: He could even become the voice of a competing TV mouse.

It all ended not with a bang, but with a squeak.

Posted 5:06 PM by Robert

Another Looming Miers Disaster

From Washington, James Taranto reports: "Having spent last evening communing here with some 1,000 conservatives at National Review's 50th anniversary dinner, we see a political disaster in the making." He may be right. He's very smart. And he's there.

But having reviewed the increasingly personal, nasty and ill tempered criticism of Harriet Miers (including that of Charles Krauthammer, who ridiculed the nomination as "a joke" - and worse), I see another disaster in the making of quite a different kind: I see a likely intense alienation of a Supreme Court justice from the movement conservatives, thereby fostering drift by that justice away from conservative values generally.

Personal feelings matter. The liberals who so savagely and personally attacked Clarence Thomas did the conservative movement a great favor: They sealed off any reasonable chance that Justice Thomas might be led to views more like those of his critics through the back door of personal relationships. Those doors can accommodate much traffic. Justice Brennan, for example (whose credentials at the time of his appointment certainly did not tower over those of Ms. Miers) became one of the most influential people who ever served on that Court largely by the artifice of personal charm. Harry Blackmun had retreated from many conservative values through those back doors, once he was offered shelter on the other side from the increasingly personal and hostile critics of his Roe v. Wade decision. But Justice Thomas' critics made sure that he would never make that trip. Thank you, movement liberals, for making quite sure that Clarence Thomas was immune to personal charm of the Brennan variety from the first day he first put on those robes.

Is it really going to be a good thing for conservatives to have a new Supreme Court justice who feels that she only made her way onto the Court by opposing conservatives, and that the Democrats and liberals were really not all that bad? Do conservatives really want to start Ms. Miers down the Blackmun-trod path before she even writes a single decision?

Is that what Mr. Krauthammer wants? More generally, do Mr. Krauthammer and his ilk really live on this earth? You wouldn't know it by me.

Critics of the Miers nomination have a perfect right to speak their minds. But they would do themselves, the conservative movement and the nation a big favor by toning down the tenor and personal nature of the attacks.

MORE: Duane Oyen has observations well worth considering.

UPDATE

Posted 1:06 PM by Robert

Well Above Average

Is there good reason to think that Harriet Miers will make a good Supreme Court justice?

Of course there is. And it's really not that difficult a syllogism if one keeps an open mind:

First, Ms. Miers has been nominated to fill the seat of Sandra Day O'Connor, who is retiring having garnered a nearly universal reputation of having been a pretty average justice. No luminary, but not that bad.

Second, by any reasonable standard of comparison, Ms. Miers is far more qualified and generally capable than was Ms. O'Connor at the time of her appointment.

Third, since Sandra Day O'Connor was about average, and Harriet Miers is far more qualified and accomplished than was Ms. O'Connor at the time of her appointment in 1981, there is good reason to believe that Ms. Miers will be at least well above average in her service on the Court.

Ms. Miers critics may think that they know of a better pick - and perhaps they are right. But it is clearly wrong to claim that there is not good reason to think that Harriet Miers will make a good - even well above average - justice.

And that conviction should grow the more one looks at the facts and the details of the comparison. Sandra Day O'Connor attended Stanford University for college and law school during the late 1940's and early 1950's - a time when Stanford (especially the law school) did not have the full reputation for excellence that it has acquired more recently. O'Connor served as an Arizona assistant attorney general from 1965 to 1969, was appointed to the Arizona Senate, in 1974 was elected a state trial judge, and was appointed to the Arizona Court of Appeals in 1979. Big deal. Can anyone argue that up to this point in her career Ms. O'Connor had performed with brilliance? No.

Then, a mere eighteen months later, President Reagan appointed her to the Court in 1981. She was a long time friend - today some would say "crony" - of Justice Rehnquist. Her name never would have come under serious consideration but for that friendship.

In comparison, Ms. Miers received both her undergraduate and law degrees from Southern Methodist University - a perfectly good school whose top students were then quite as good as those of Stanford at the time Ms. O'Connor attended that institution. So I give Ms. O'Connor and Ms. Miers roughly equal standing in the area of early education - for all that matters (which is not much).

What is by far more important than her early education is what Harriet Miers made of it. There is no real question that Ms. Miers is brilliant - and her critics suggestions to the contrary are nothing short of disgraceful. She is obviously brilliant in many ways. She was successful as Co-Managing Partner at Locke Liddell & Sapp - a major law firm - from 1998-2000. In 1992 she became president of the Texas State Bar, in 1985 she became president of the Dallas Bar Association, and she has been a long-time major player in the American Bar Association. She was a very successful trial lawyer with lots of tough, major clients and hard cases. She has been Counsel to the President for a while, and there have been no problems with her performance in that office. (It's actually hilarious to consider how few of her critics - especially those in academe and the media - could perform that job - or any of her jobs - as credibly as she did.) She was the president's Deputy Chief of Staff, and prior to that she was Assistant to the President and Staff Secretary. Her career leaves no reasonable doubt that Harriet Miers is brilliant in many matters pertaining to the law and public service. That brilliance is not of a sort that her critics fully value as a credential for the Court. That is their right. But those who challenge her level of accomplishment, intelligence or general competence are grossly wrong. And those things matter.

And they especially matter in comparing Ms. Miers to the justice she is replacing. No reasonable person could doubt that Harriet Miers has far better credentials, and displays many more signs of ability to perform on the Court, than did Sandra Day O'Connor in 1981.

Yet Sandra Day O'Connor turned out about average.

Anyone care to differ on that?

Posted 12:24 AM by Robert

Bad Reporting, Or Responsible Journalism?

Suppose two major newspapers - one in Los Angeles and one in Washington, D.C. - learn of a supposed plot to blow up the Library Tower in Los Angeles. Suppose further that the newspapers have reason to believe that the report of the plot was bogus.

Does the reader think something like that might explain something like this?

Would it be less responsible for a Los Angeles paper to publish what it believes likely to be a bogus report about a plot to do something really bad in Los Angeles than it would be for a paper in Washington to do so? The bad, real-world consequences of the Los Angeles paper publishing a bogus report about its home town would seem to be worse than if an out-of-town paper did so. Does that matter?

Of course, publishing big, bad, suspected-bogus reports about local events (and non-events!) would spice up the copy! Policies favoring that kind of thing would sort of move the whole paper towards being one, big gossip column - wouldn't they?

Just asking.

Posted 11:49 PM by Robert

What's In A Plame?

According to this report from Reuters this May 6, 2003 Nicholas Kristof column may have been the trigger for a meeting between Scooter Libby and Judith Miller at the St. Regis Hotel on June 12, 2003 - before Joe Wilson's notorious New York Times item appeared on July 7. The key Kristof passage seems to be this:

I'm told by a person involved in the Niger caper that more than a year ago the vice president's office asked for an investigation of the uranium deal, so a former U.S. ambassador to Africa was dispatched to Niger. In February 2002, according to someone present at the meetings, that envoy reported to the C.I.A. and State Department that the information was unequivocally wrong and that the documents had been forged.

According to Reuters, Ms. Miller discovered her notes from this meeting after she testified before the grand jury. She has now turned the notes over to prosecutor Fitzgerald and is to meet him again next Tuesday.

Kristof's column supposedly contained the first public mention of Wilson's mission in Niger, and Libby supposedly wanted to dispel Wilson's assertion (was Wilson Kristof's nameless source?) that he was sent to Niger at the urging of the vice president.

It certainly would explain why the prosecutor is having some key witnesses give repeat performances before the grand jury. But the Reuters suggestion that this earlier meeting is suggestive of a "conspiracy" seems weak at this point - especially since we don't know what is in those notes. And the whole story makes a rather jarring read compared to prior assertions by administration critics that the alleged administration anti-Wilson actions were prompted by his July article.

Posted 10:06 AM by Robert

What's In A Name?

It amazes me that Volokhyries (and others) are worrying over this report:

In an initial chat with Miers, according to several people with knowledge of the exchange, Leahy asked her to name her favorite Supreme Court justices. Miers responded with "Warren" - which led Leahy to ask her whether she meant former Chief Justice Earl Warren, a liberal icon, or former Chief Justice Warren Burger, a conservative who voted for Roe v. Wade. Miers said she meant Warren Burger, the sources said.

As a preliminary matter, look closely at this passage. The word "admire" does not appear in it. The phrase actually used was "favorite." So why the heck do the Volohkyries keep chattering on about whether or not it is a good thing that Ms. Miers said she "admires" Warren Burger? (Kathryn Lopez says Ms. Miers used the word "admires" in her NRO report describing the Miers/Leahy exchange, but only said that she "admires" Burger's administrative skills - not his jurisprudence.) What does "favorite" mean? Harriet Miers probably knew Warren Burger personally. Maybe Burger flirted with her - she's dated a member of the Texas Supreme Court for years, so maybe she likes the type. In any event, she is not recorded as having been asked which justices she "admired."

And why do the Volohkyries suggest that almost nobody calls a former Chief Justice by his first name with no indication that they have done any research into what people actually did or do call him? Harriet Miers has had a long career as a senior player in a major law firm and both the American and Texas Bar Associations. She is therefore easily in a position to think of Warren Burger as "Warren." Would anyone be surprised to find that she thinks of the president as "George?"

In fact, I have my own story on this non-issue. Warren Burger was very active in organizing celebrations for the 200thanniversaryy of the Constitution. In that capacity he worked with some people in private legal practice in New York who I know rather well. They all called him "Warren" when they spoke to him or about him, in or out of his presence - even the junior legal associates. They all called the former Chief Justice by that name because in that context he insisted on it.

Did Warren Burger have senior people in bar associations and major law firm, such as Ms. Miers, call him by his first name? Beats me. But I could answer that question with a few phone calls if I really cared about it. The Volohkyries seem to care. The Washington Post seems to care, and provided the original report - a report in which the word "admire" does not appear even once. Why don't they make some calls?

The entire exercise in Volohkyrie-driven hand wringing is just absurd. Regardless of what Ms. Miers' political affiliations may have been in the past, enough is known about her views now that nobody can seriously propose that Earl Warren is today Harriet Miers favorite justice or that she ever intended to say such a thing to Patrick Leahy because she pays a lot of attention to detail and she is not stupid. People who seriously suggest the likelihood of such things should loosen their tinfoil hats and spend more time in the Grassy Knoll, their natural grazing grounds.

Posted 6:34 AM by Robert

A Fantasy Land Called "Third Way"

The Washington Post and the New York Times both report that William Galston and Elaine Kamarck think Democrats need to be "centrists" of some kind (they're not exactly sure what kind, apparently) in order to win the presidency.

No doubt Democrats will one day - perhaps as early as 2008 - win back the presidency. A presidential election is generally mostly determined by the national economy, and that economy swings in cycles. Eventually the Democrats, if they survive, will catch a wave and be sitting on top of the world - or at least 1600 Pennsylvania Avenue.

But the Galston/Kamarck reports come complete with very predictable, and numerous, suggestions that Democrats must take the Third Way because that's what Bill Clinton did, and he was the last Democrat to "do it."

Fine. History is what it is.

But, as Henry Ford famously pointed out, history is bunk. What is missing in the Galston/Kamarack reports is any mention of the fact that Bill Clinton failed to get a majority of the popular vote in either 1992 or 1996, or that Clinton won in 1992 because Ross Perot launched a personal vendetta against the incumbent Republican and the economy had been in a slump, or that Clinton won in 1996 because the economy was in a boom that had already begun when he took office in 1992 (O, that business cycle), or that Clintonian "centrism" caused the Democrats to completely lose Congress in 1994, or that Clintonian "centrism" has lately been failing to win many elections even when its tried (Georgia's ejection of Max Cleland), or that ...

Well, you get the idea.

Posted 6:08 PM by Robert

Mickey Comes For The Copy Editors

Mickey Kaus does not like copy editors, at least not a lot of them at the Los Angeles Times:

Various Times-people assure me the Tribune execs are bad news, but you have to sympathize with them ... They've bought a paper with a history of bloat, gold-plating, and soul-deadening complacency--the "velvet coffin," as it was known. ... [I]t has a thousand editorial employees! With a third of that, you could easily put out a paper that wouldn't be as good--it would be much, much better. Yet Carroll defends every last copy editor. ... P.S.: I admit, I have a natural enmity with copy editors. My position: A good copy editor will make your copy better--but only on rare occasions will it be enough better to justify the delay and hassle, let alone the copy editor's salary. And good copy editors are hard to find--the best quickly move on to other jobs these days. Those that stay, especially in big organizations like the LAT, are too often repositories of self-justifying pedantry! Usually they just make copy duller. ... Does Carroll really think the Times would be discernibly worse if Ron Brownstein were allowed to type his articles right from his Blackberry onto the front page? Even if you could take the copy editors' salaries and hire more Brownsteins? ...You could make them all use spellcheck!

I forwarded Mickey's comments to a friend who has a fairly high editorial position at the Los Angeles Times without attributing the comments to Mickey or anyone else. I received back the following reply from my friend, who was not impressed, to say the least:

Without having any clue to the identity of the person in the paragraph below, I am tempted to respond bluntly -- but I'll resist. It is clearly someone with substantially more opinion than information. Anyone who thinks a good copy editor can be replaced by a simple investment in spell-check software is most likely the kind of self-perceived artiste who actually thinks he can write. There is, no doubt about it, mediocrity in the ranks of copy editors -- are there is within the ranks of bankers, lawyers, pundits and presidential aides -- but that doesn't condemn the whole lot of them to disposability. And yes -- Ron Brownstein's copy would be discernible worse (most days) if it was not edited. I'm sure he'd be the first to say so. After more than 32 years of writing for this paper -- from its Velvet Coffin days to its Tribune afflicted ones -- I can assure you we do not have enough top notch copy editors. But neither do we have an abundance of poor ones. Let him who is without a streak of mediocrity cast the next stone.

Well, Mickey, are you going to take that bitch-slap lying down?

Posted 1:23 PM by Robert

Rove Apparently Clear

Federal prosecutors have accepted an offer from presidential adviser Karl Rove to give 11th hour testimony .... The U.S. attorney's manual requires prosecutors not to bring witnesses before a grand jury if there is a possibility of future criminal charges unless they are notified in advance that their grand jury testimony can be used against them in a later indictment. .... "I can say categorically that Karl has not received a target letter from the special counsel. The special counsel has confirmed that he has not made any charging decisions in respect to Karl," [Karl Rove's attorney,] Luskin said.

The business in the linked article about the prosecutor not having made decisions to prosecute or giving any "guaranties" of no future indictments is just nonsense. Prosecutors are not in the guaranty business. But they are subject to Justice Department rules.

Link from DRUDGE.

UPDATE (via Kausfiles): Lawrence O'Donnell says: [B]ecause Fitzgerald is not subpoening Rove to testify, he has no obligation to send him a target letter.

Really? Here is what the Department of Justice grand jury guidelines say:

9-11.151 Advice of "Rights" of Grand Jury Witnesses
It is the policy of the Department of Justice to advise a grand jury witness of his or her rights if such witness is a "target" or "subject" of a grand jury investigation. See the Criminal Resource Manual at 160 for a sample target letter.
A "target" is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. ... Although the Court in Washington, supra, held that "targets" of the grand jury's investigation are entitled to no special warnings relative to their status as "potential defendant(s)," the Department of Justice continues its longstanding policy to advise witnesses who are known "targets" of the investigation that their conduct is being investigated for possible violation of Federal criminal law. ...
9-11.152 Requests by Subjects and Targets to Testify Before the Grand Jury
It is not altogether uncommon for subjects or targets of the grand jury's investigation, particularly in white-collar cases, to request or demand the opportunity to tell the grand jury their side of the story. ...[U]nder normal circumstances, where no burden upon the grand jury or delay of its proceedings is involved, reasonable requests by a "subject" or "target" of an investigation, as defined above, to testify personally before the grand jury ordinarily should be given favorable consideration, provided that such witness explicitly waives his or her privilege against self-incrimination, on the record before the grand jury, and is represented by counsel or voluntarily and knowingly appears without counsel and consents to full examination under oath. ...
9-11.153 Notification of Targets
When a target is not called to testify pursuant to USAM 9-11.150, and does not request to testify on his or her own motion see USAM 9-11.152), the prosecutor, in appropriate cases, is encouraged to notify such person a reasonable time before seeking an indictment in order to afford him or her an opportunity to testify before the grand jury, subject to the conditions set forth in USAM 9-11.152. Notification would not be appropriate in routine clear cases or when such action might jeopardize the investigation or prosecution because of the likelihood of flight, destruction or fabrication of evidence, endangerment of other witnesses, undue delay or otherwise would be inconsistent with the ends of justice.

If Karl Rove is testifying before that grand jury, is a "target," has not received a "target letter" and has not waived his unenforceable "right" to receive such a letter, the special prosecutor is almost certainly acting against many "encouragements" included in these guidelines.

FURTHER UPDATE: The New York Times says that it was the special prosecutor, not Karl Rove, who wanted Mr. Rove to testify again:

The special prosecutor in the C.I.A. leak case has summoned Karl Rove, the senior White House adviser, to return next week to testify to a federal grand jury in a step that could mean charges will be filed in the case, lawyers in the case said Thursday.

(emphasis added)

Posted 11:15 AM by Robert

Harriet, Meet Byron and Robert II

InstaPundit's link to the predecessor of this post (a link that I appreciate) comes with Glenn's note that he finds the comparisons of Ms. Miers to Byron White and Robert Jackson less than fully convincing.

I agree with Glenn.

At least, I agree with him if the comparison he describes is taken as arguing that because Robert Jackson didn't have a law degree, or because Byron White was a corporate lawyer and a personal friend of the president who appointed him, Harriet Miers must therefore be well-qualified.

But I think it's obvious that my post argues for no such sweeping conclusion - and I think Glenn is right to warn his readers not to make that kind of thing out of it. The post is instead directed at countering some specific arguments made by Ms. Miers' critics by adducing evidence that (i) accomplishment later is life (especially in the case of Justice Jackson) can be a very good substitute for whatever evidence of qualification for the Court service that is provided by a law degree or faculty appointment, (ii) close friendship with the president (especially in the case of Justice White) is good evidence neither of cronyism or that such a justice will be impaired on the Court, and (iii) a pre-confirmation career not involving frequent considerations of constitutional law (in the case of both men) is not good evidence of any infirmity in dealing with constitutional law on the Court.

Abe Fortas - who is generally thought to have worked out badly on the Court - may be evidence at least partially supporting Ms. Miers' critics. Fortas is widely viewed as having been a crony of President Johnson and he had no judicial experience prior to his appointment to the Court. On the other hand, Fortas attended Yale Law School, joined the faculty there after graduation and argued important constitutional cases in the course of his Washington legal career. So Fortas had plenty of the "credentials" and other signs of competence that some of Harriet Miers' critics say they value. But he had less of the ethical fiber, personal integrity and sheer guts that seem to reinforce her being.

On the larger question of whether Ms. Miers is the best pick the president could have made, or even an acceptable pick, I have not yet made up my mind. In making up my mind I will most certainly not be employing the preposterous - one might say notorious - criteria and arguments of George Will. Mr. Will thinks: It is not important that [Ms. Miers] be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. Mr. Will's thinking savors too much of Firesign Theater's High School Madness: "Give them a light, and they'll follow it anywhere. We think that is a fair, and a wise guy - rule to be gelded... guided ... by." Somehow, my copy of the Constitution omits that provision in Mr. Will's version about the importance of making Supreme Court appointments from some population of "leading lights of American jurisprudence" (whatever that means). My copy only says that the president has the important right to appoint to the Court, subject to the Senate's important right to advise and consent.

To understand just how preposterous Mr. Will's thinking is on this point it is worth noting that perhaps a handful of all persons ever appointed to the Supreme Court have been at the time of their appointments among the "leading lights of American jurisprudence." For a reality check, one might consider the fact that whether or not Harriet Miers is a "leading light," compared to the credentials of the justice she is replacing, Harriet Miers is a supernova. Moreover, the performances of such luminaries as have been appointed to the Court have been uneven, to say the least. Justices Holmes and Cardozo were "leading lights," for example. While the best years of both lay behind them in state courts, Holmes did well enough in Washington, although some of his federal decisions (in antitrust, for example) are just embarrassing, almost wordplay. ("I could carve out of a banana a judge with more backbone than that," Teddy Roosevelt exhaled over Holmes' opinion in Northern Securities, a case under the Sherman Antitrust Act, an opinion that opens with: "What we have to do in this case is to find the meaning of some not very difficult words." Most people familiar with antitrust law consider Holmes to have rather badly missed the point, to put it charitably.) And very few observers view Cardozo's performance on the federal bench as anything special - although he had made quite a splash in New York.

Does a Harvard Law School mandarin such as Felix Frankfurter count as a "leading light" for George Will? Frankfurter performed credibly on the Court despite his lack of prior judicial experience. Justice Scalia has had a stellar run on the Court, and he was at least arguably a "leading light" as both an academic and an appellate judge before being elevated to the Court. But was it more "important" to the nation that the Senate confirmed Justices Douglas, Breyer or Ginsburg because they had been on major law school faculties? I don't think so. Larry Tribe and hundreds of other academic blowhards eager for judicial appointments would like to think so, but the republic is a lot better off with those leading lights shining on right where they are. Douglas became an anti-intellectual embarrassment on the Court. And so far Justices Breyer and Ginsburg have turned out to be almost cramped technicians who seem most concerned to function as the safe liberal votes President Clinton intended them to be, where the far less "qualified" Clarence Thomas generally runs rings around them as someone with a coherent vision of the constitution and law generally. If one can know a man by his enemies, it counts that micro-Senator Harry Reid publicly hates Justice Clarence Thomas. Prior academic luminescence doesn't seem to strongly correlate to exceptional performance on the Court.

Returning to Mr. Will, do we need evidence that Miers' nomination resulted from the president's careful consultation with people capable of "sophisticated judgments about competing approaches to construing the Constitution" - which the president himself is not? Plenty of smart, fully aware people have advised Mr. Bush on such matters. What George Will means is that he doesn't like what Mr. Bush has done with that advice. But the Constitution correctly gives the decision to the president, not his advisers. And whatever Mr. Bush's deficiencies as a president may be, neither an inability to understand what is at stake in the choice among the currently popular ways of construing the Constitution (it's not rocket science) nor an insensitivity to the problems created by bad Supreme Court activism, are among them. His choice of John Roberts for Chief Justice, and his often and clearly expressed admiration for Justices Thomas and Scalia, are proof enough of that. Mr. Will's condescension is mostly unbecoming to Mr. Will - even a little bit creepy.

And did the president really "forfeit" his right as a "custodian of the Constitution" because he signed McCain-Feingold, as Mr. Will asserts? Even assuming that Mr. Bush should have resisted signing McCain-Feingold more than he did despite the overwhelming support of the bill in the Senate (which would likely have made a veto ineffective - a filibuster was ended by a cloture vote of 68-32), the president's foolish acceptance of a bad bill drafted by two misguided Senators and then passed by a large majority of those same silly people is hardly an argument for a bigger Senate role in populating the Supreme Court. And, again, my copy of the Constitution doesn't say anything about the president "forfeiting" any rights or responsibilities because he signs a bill somebody doesn't like - especially a bill whose constitutionality later survives Supreme Court review, as McCain-Feingold unfortunately has done so far.

I noted above that I haven't made my mind up about Harriet Miers. But this much I have decided: In such matters a clear head helps a lot, and to that end I definitely plan on keeping George Will's silliness as far from my thoughts as possible.

UPDATE: A very sensible article.

Posted 3:06 PM by Robert

Where's The Rumor?

It's autumn again! There's a snap in the air. New England trees are beginning preparations for their technicolor displays. Birds are flying south. And, of course, Brad Delong is predicting that Herr Doktorprofessor Paul Von Krugman will win the Nobel Prize in economics this year, just as he did at this time in 2003 and again in 2004 - although he did diversify his bet last year into near-meaninglessness when he formulated it this way:

I think that we should be thinking not in terms of people but of fields, and the Bhagwati-Dixit-Krugman Nobel looks to me like the best bet. (Of course, it seemed to me to be the best bet last year.)

Uh, sure, Brad, whatever you say.

But wait! This year pleas to the Corpulent Oracle of Berkeley to prognostify on Herr Doktorprofessor's Nobel chances are met with only the silence of the tomb!

What's wrong? Not even a heavily diluted prediction? Is Herr Doktorprofessor's name not written in the chicken entrails at all this year? Nothing in the rumor mill to post - nothing at all? What could have changed? Dear me! Dear me!

Given the sometimes hysterically anti-American tenor of some Nobel awards (Jimmy Carter for Peace? Please.) it is not inconceivable that the Nobelists might extend their blessings to Herr Doktorprofessor. The people who award the economics prize are not, of course, the same loons who hand out the Literature and Peace Nobels - but some economics prize picks have been pretty strange in their own right.

There may be another reason Plump Brad isn't plumping for Herr Doktorprofessor this year. Sweden is, after all, a member of the EU, which was rocked this year by the defeat of its purported "constitution" in various referenda, especially in France - largely on fears relating to possible and feared effects of international trade. It’s hard to imagine that this Nobel committee wasn't aware of the fuss. So it seems an appropriate time to repeat some observations I made at the time of that constitutional defeat:

Within the past few weeks the Man Without Qualities has spent a good deal of time in France, where the EU Constitution is in trouble, largely (but not solely, more on that in a subsequent post) on concerns regarding international trade. ... There's lots of argument and discussion going on. Cafes, homes, faculty lounges, commuter trains - you name it - percolate with Constitutional chatter and especially chatter about international trade. And from the airiest and most gaseous academic to the most loquacious cabby, absolutely nobody in France is talking about anything Herr Doktorprofessor Paul Von Krugman ever wrote, thought or believed. How can this be? Herr Doktorprofessor's most important works by far are supposedly his early papers in international trade and competition (as discussed here and here and here). In those early papers Herr Doktorprofessor crafted a new way of viewing international trade - one that supposedly displaced old fashioned David Ricardo's comparative advantage "factors" such as relative costs of production, labor and other inputs with fancier concepts like "home market effect." ... The Constitution's advocates do not speak of "home market effects" or other Krugmania in answer to economic arguments proffered by the Constitution's opponents. Nor do the Constitution's pro-business advocates tremble at the thought that the "comparative advantage" factor considerations (which those advocates count on to increase competition and the profitable flow of investment to Eastern Europe) will be swamped by Herr Doktorprofessor's fancy theories. ... Herr Doktorprofessor Paul Von Krugman could not be less relevant to this very real world debate - and yet this is the kind of debate in which his most important theories are supposed to have paramount significance. One may contrast the insignificance of Herr Doktorprofessor's work on its home turf with the very real and important work of Nobelist Robert Mundell. His work formed the basis of the creation of the Euro and all discussions of the Euro (and most discussion of world currency issues generally) use his thinking and insights in many essential ways every single day. .... And neither [do] the EU ... debates involve a word about Herr Doktorprofessor's "New Geography." It's all about the Old Geography. You know, what's really, geometrically, located close to something else. As in: ... The EU is all about Europe and how Europeans should relate to each other. Yet Herr Doktorprofessor himself wrote about his still-born baby that the field has been given a big boost in particular by plans to unify the European market. Odd, then that nobody in France is talking about "the field" now - at least not in Herr Doktorprofessor's terms or framework. .... As the French and Dutch referenda approach, one might think that Herr Doktorprofessor, at least, would weigh in on the applicability of his work on the economics of international trade. After all, he has a New York Times column at his disposal. The topic is timely, interesting - even fascinating. He, himself, has argued that his work has special relevance to the EU - especially Herr Doktorprofessor's "New Geography", since "the field has been given a big boost in particular by plans to unify the European market." And the need is urgent - since the French supporters of the Constitution are in disarray and throwing in the towel! How can this be when the fate of the Constitution is admitted by all sides to turn in large measure on considerations of international trade - and Herr Doktorprofessor's essential contributions have not even been discussed by anyone at all! But Herr Doktorprofessor is silent! Yes, the fact appears to be that the most important works of Herr Doktorprofessor Paul Von Krugman are so utterly and completely irrelevant to the current international trade discussions pertaining to the EU Constitution that even Herr Doktorprofessor doesn't think they're worth the mention in one of his own columns.Sad, that. Of course, he recently wrote a column on Chinese/US trade and currency matters. That column didn't invoke a word of his own work (even indirectly) on either international trade or currency, either. Perhaps Herr Doktorprofessor has learned in at least this one area the wisdom of Dirty Harry's sage maxim: A man has to know his limitations. ...
The Man Without Qualities is fully aware of the silly talk that circulates about Paul Krugman maybe winning the Nobel Prize someday, and not just from the intellectually flatulent Brad Delong. For example, Greg Mankiw recently said: I was a junior staffer in the Reagan administration. Two members of the senior staff were Krugman and (former Harvard economics professor, Clinton Treasury Secretary and current Harvard president Lawrence) Summers. At that time he was a brilliant economist. I thought he'd win a Nobel prize. I think there's a good chance he still will. His early work on international trade theory deserves it. Perhaps Professor Mania meant what he said and I am wrong. But I think it is more likely that Professor Mania was anointing himself with the balm of reason in the form of a suggestion he believes is highly improbable while elsewhere in this interview absolutely savaging Herr Doktorprofessor as a kind of Jerry Springer manque.
In any event, it would be amusing to see the Nobel Prize committee explaining such an award after what appears at this time to be a looming EU Constitution debacle: "And, most of all, we have given this award to Paul Krugman as the only international economist whose work featured in no significant manner in the discussions or analyses leading up to the recent EU Constitutional catastrophe!"
It would take a lot of top drawer anti-Bush palaver from Herr Doktorprofessor to get the often anti-American Nobel Committee to choke that nugget down. In any event, I take as evidence (but far from proof) that Professor Mankiw was speaking tongue in cheek the fact that he mentions absolutely nothing for which Herr Doktorprofessor's work is or has been used. Such allusions to the use of complimented work are normal in genuine comments of this type. For example, if Professor Mankiw had opined that the work of Nobelist Robert Mundell deserved that Prize, the compliment would naturally and likely have been accompanied with a brief statement along the lines of "His work formed the basis of the creation of the Euro and all discussions of the Euro use his thinking and insights in many essential ways every single day." In addition, Paul Krugman himself seems to consider his own work in currency - not international trade - his strongest.

Time will tell. And not that much time, at that.

A RUMOR: But it's just from the nutty, left-wing Guardian:

Here is a shortlist of economists who are good contenders for this year's prize: Robert Barro, Jagdish Bhagwati, Eugene Fama, Paul Krugman and Paul Romer.

Of course, nutty, left wing people can sometimes be correct, especially when predicting an award of a prize given out by other people who are often nutty, left-wing types.

Krugman over Fama? O, lordy, lordy.

Posted 8:50 AM by Robert

Lapsed What?

Each of the Washington Post and New York Times runs a front page story today detailing how Harriet Miers became a born-again Christian and suggesting how that conversion may be important in understanding her personality and future performance on the Supreme Court. Isn't that nice? Are the two stories really describing the same woman?

Times:

"She decided that she wanted faith to be a bigger part of her life," Justice Hecht, who now serves on the Texas Supreme Court, said in an interview. "One evening she called me to her office and said she was ready to make a commitment" to accept Jesus Christ as her savior and be born again, he said. He walked down the hallway from his office to hers, and there amid the legal briefs and court papers, Ms. Miers and Justice Hecht "prayed and talked," he said. She was baptized not long after that, at the Valley View Christian Church. Ms. Miers, born Roman Catholic, became an evangelical Christian and began identifying more with Republicans than with the Democrats who had long held sway over Texas politics. She joined the missions committee of her church, which is against legalized abortion, and friends and colleagues say she rarely looked back at her past as a Democrat.

Post:

Hecht remembers that when Miers made partner at their law firm, the first woman ever to do so, she began to question what life was all about. He said they would often put their feet up and trade Big Questions: Is there a God? Who is He? What difference does it make? Miers had attended Episcopalian and Presbyterian churches as a girl, and her mother was religious, but Miers told Hecht she wanted a "deeper faith."Hecht believes she may have supported abortion rights at the time, although he said she had not thought about it much. "Well, let's go to my church," Hecht told her. That was Valley View, where Hecht played the organ and taught Sunday school.

Well, at least the two papers agree that Valley View got her in the end. If it is worth while doing a big spread on the supposed significance of a candidate's religious orientation, isn't it worth while getting right what faith she left as well the one she joined?

But I don't think all this poking around in Ms. Miers' religious orientation is such a good thing at this time of her nomination. The United States Constitution expressly prohibits religious tests for federal appointments - a prohibition that some members of the Senate came awfully close to flouting at least in spirit, as it were, during the Roberts confirmation. That Constitutional prohibition hasn't lapsed. Yet the Times and the Post both seem eager to encourage public pressure on the Senate to disregard that Constitutional imperative even more egregiously this time out, especially by suggesting that Ms. Miers should be presumed to share this-or-that tenet of what may generally be believed at Valley View.

But the Constitutional provision is not the whole story by any means. If there is any "zone of privacy" left to one taking high public office, surely that zone encompasses one's religion. Ms. Miers seems a rather private woman, and she has not, to my knowledge, indicated that she wants the media to invade her privacy in this respect. Yet, just as the Times was caught investigating John Roberts' adoption of his two children - an almost inexpressibly contemptible violation of his and their privacy - we now have front page stories about Ms. Miers' religious orientation and trumpeting how significant that orientation is in understanding her suitability for the Supreme Court.

This is not meet. This is not right. This is not just. At least not in my book it isn't.

IT'S GETTING MORE AND MORE COMPLICATED:

Another good reason to stay away from questions concerning someone's religious orientation:

Miss Miers left Valley View three weeks ago, when Mr. Key, 57, was ejected over what he termed "leadership differences." The new Supreme Court nominee is one of about 200 people who followed him to a new congregation of former Valley View members, who are meeting temporarily at a DoubleTree Hotel in north Dallas. The new group has no name yet.
Miss Miers also attends several Episcopal congregations, including her family's parish, the Episcopal Church of the Incarnation in Dallas.
When in Washington, she usually attends the 9 a.m. service across the street from the White House at St. John's Episcopal Church, which Mr. Bush frequently attends. Justice Hecht said he also occasionally accompanies her to services at Christ Episcopal Church in Alexandria.
An Arlington resident, Miss Miers has contributed to the Falls Episcopal Church in nearby Falls Church. She went there at least once in 2001, administrator Bill Deiss said. The Falls Church, a passionately evangelical congregation, is very similar to Valley View.

"Miss Miers has contributed to the Falls Episcopal Church in nearby Falls Church?" How did the Washington Times bring itself to publish this? Is it supposed to be analogous to revealing that she gave money to Democrats?

Yech.

The Episcopal Diocese of Dallas has most recently been in the national news over its recent vote to withhold $512,000 from the national church to protest the election of a gay episcopal bishop and then joining the Network of Anglican Communion Dioceses and Parishes - a network some say is designed to fight for biblical teachings within the national church framework, but which many see as a base for a future Episcopal schism. A Dallas diocese spokesman told The Dallas Morning Morning News. "A majority of our delegates disagree with the policies of the national church."

Dallas area Episcopalians certainly do seem to have their own way. One former Dalls parish - St. Mary the Virgin, originally known as St. Bartholomew's Episcopal Church - became part of the Diocese of Ft. Worth when the Dallas Diocese was divided. Then it left the Episcopal Church to join the Roman Catholic Church as a Personal Parish for the Anglican Use, under terms of the Pastoral Provision of 1980. St. Mary's was the first Episcopal Parish to transfer into the Roman Catholic Church, and retained its property in so doing. Most Washington area Episcopalians probably wouldn't think about doing that kind of thing.

So at least all this focus on Ms. Miers religious orientation has demonstrated that she is one of those typical current or former Episcopalian/Presbyterian/Catholic/Evangelical types from the Dallas-Fort Worth or Washington areas who are always leaving or joining or attending churches all the time for one reason or another.

Good thing we cleared that all up. Now we have a clear window into the woman's thinking and will no longer have to peer into her soul as through a glass darkly.

Right?

Posted 9:09 AM by Robert

Harriet, Meet Byron and Robert

There has been some fussing in the media over the fact that Harriet Miers has never been a judge, has spent her career as a corporate attorney and is a personal friend of the President. Does any of that sound familiar?

Think Byron White.

During World War II, Byron White was an officer in naval intelligence, serving most of his duty in the South Pacific. White then formed a friendship with another young officer named John F. Kennedy.

Following the war White returned to Yale Law School. After a successful career as a corporation lawyer, White entered politics in 1960, heading a Kennedy movement that helped the soon-to-be president win Colorado. Kennedy later appointed his "crony" White as deputy attorney general.

White never served on the judiciary. Then, on March 30, 1962, President Kennedy appointed Byron White associate justice of the U.S. Supreme Court at age 44. He served for 31 years, retired in March 1993 and in most quarters is thought to have done a very good job.

Or think Robert Jackson.

Robert Jackson never earned a law degree. He was admitted to the bar in 1913 after a brief period of study at Albany law school. In 1934, he was appointed general counsel of the Bureau of Internal Revenue. From 1936 to 1938 he served as Assistant Attorney General in charge of the antitrust division. Jackson then became (1938) Solicitor General and, in 1940, U.S. Attorney General. Imagine - a 20th Century Solicitor General and Attorney General of the United States who didn't even have a law degree! Cronyism run amok! Jackson, too, never held judicial office until 1941 - when his crony Franklin D. Roosevelt appointed him to the Supreme Court - and he didn't even have a law degree! Justice Jackson is widely thought to be one of the best justices who ever occupied that bench.

MORE

Posted 8:17 AM by Robert

Louisiana Democratic Party: Swept Away (By an Unusual Destiny in the Blue Sea of August) V

Well, glory be! The New York Times awakes to the most significant political consequence of the recent Gulf hurricanes: The likely sweeping away of the Louisiana Democratic Party. As noted in prior posts (here and here and here and here). This consequence of the hurricanes has, of course, been the most important factor driving all political maneuvering and even the form of aid relief, in the area for the past month. And such population effects profoundly influence many of the considerations Herr Doktorprofessor Paul Von Krugman fussed about in his last column without ever catching on. (Hint to Herr Doktorprofessor: Louisiana Democrats don't want hurricane victims to have rent vouchers or other aid that can be used out of state.) Now the Times is taking notice of it. Isn't that nice? Here's what the old Gray Lady has to say:

BATON ROUGE, La., Oct. 3 - The two recent gulf hurricanes may result in a significant loss of population for Louisiana, and state officials are now virtually certain that Louisiana will lose a Congressional seat ... after the 2010 census. .... A dependable number will have to wait until the 2010 census. The numbers available now, however, are staggering. About 1.5 million people were initially evacuated from the damaged regions, [and] roughly 1 million have applied for hurricane-related federal aid ....

Many politicians are also keeping a close eye on population movement within the state. .... There are now 21 seats in the [Louisiana State] House and Senate that encompass or touch on Orleans Parish, of 144 total seats statewide. But if the population fails to return to the parish in coming years, New Orleans may be confined to just a few seats in each chamber... That could change the state's racial and partisan balance.

If evacuees from the Ninth Ward in New Orleans - a reliable bloc of 30,000 black voters that is traditionally easy to mobilize - choose suburban or rural areas over their urban roots in coming years, it could be a political blow to Democrats, said Roy Fletcher, a political consultant from Shreveport who helped elect former Gov. Mike Foster, a Republican. .... Barry Erwin, president of a Council for a Better Louisiana, a nonpartisan nonprofit group that monitors the activities of state government, said such a change could forever alter the political landscape. ....

Of course, the Times still hasn't figured out that if the current numbers foreshadow the actual Louisiana population in the near future, Democrats are going to have lots of trouble holding onto the seats of Mary Landrieu in 2008 and Kathleen Babineaux Blanco in 2009. But today's Times story is still progress, even if it evidences only semi-consciousness of the matters it concerns.

Posted 7:04 PM by Robert

March Of The Puffins!

March of the Penguins has kicked up a surprising amount of political snow with the New York Times honking and squealing at itself in unison across the supposedly inviolate news/opinion membrane to lament the embrace of this movie by some conservatives for its supposedly family friendly, pro-life messages. Conservatives have pointed out penguin hypocrisy of the left. Battle is joined!

Well, whatever side of this new cold bird war one is on, there is the issue of penguin monogamy. Or, rather, the lack of it - or much of it, anyway. The fact is that after all those unspeakably cute mating rituals and rearing of the young depicted in the movie, most penguin parents go their own separate ways after just one mating season. Emperors are the most unfaithful of all penguins: 78 percent of mating pairs go their separate ways after only one year! After that, its back to the singles bar on whatever ice floe comes by for next year's mate. This is a model for traditional marriage? We need a better bird! The problem is, all those conservatives have been looking in the wrong hemisphere!

Have I got a cold climate bird for social conservatives on the look out for incredibly cute cold water fowl that come with a fine moral message attached: Not penguins - Puffins!

Puffins actually have similar coloring, and most of the cute features, of penguins. But puffins can also fly 48 to 55 mph (77 to 88 km/hr). The puffin beats its wings rapidly to achieve this speed reaching up to 400 beats a minute. The wings can move so fast that they become a blur, giving a flying puffin the appearance of a black and white football. How cute is that?!

Like their antipodal analogs, puffins lay 1 egg per year. But, unlike socially flighty penguins, puffins usually keep the same mate every season and use the same burrow as in previous years! And the male and female share the duties of incubating the egg and rearing the chick.

Puffins, I tell you. Puffins.

Posted 8:13 AM by Robert

Error Times

Don Luskin identifies several express errors included in Gail Collins' A Letter From the Editor: It All Goes on the Permanent Record - which describes a new corrections policy while finally correcting some past errors, including Paul Krugman's notorious phony Florida election numbers.

It's certainly nice to see an obvious error or two corrected, but I am not optimistic that the new policy will be enforced by Ms. Collins because the old policy was not enforced by Ms. Collins. Already Don links to EU Rota, who notes a slew of recent whoppers from Herr Doktorprofessor and Maureen Dowd that have not been corrected.

Ms. Collin's also errs by egregious omission in her misleading description of how the new policy came about. She makes it seem as though each and every one of the Timesfolk involved were always trying to get things right, but there are practical restraints (there are just 700 words in those columns, you understand) and that this new policy is just the latest good faith effort to do that. (We correct all errors, from heart-stoppingly egregious to sublimely insignificant, because we believe that The Times should take its reputation for accuracy seriously. It's also an important discipline. ... blah, blah, blah) Omitted is any reference to the bludgeonings the Times' Public Editor Byron Calame has needed to deliver - including his frank statement that Ms. Collins was not enforcing the old policy. Nor does Ms. Collins include any reference to Don Luskin's efforts, although he is quite clearly the major actor responsible for the chain of events leading to the creation of Ms. Collins' new policy.

So now Ms. Collins is going to oversee A "For the Record" column of errata [that] will run under the editorials whenever it's appropriate. But Ms. Collins herself is very much a part of the problems with the Times editorial page. The reasoning in her "letter" does not augur well for the new policy, even where she corrects gross mistakes. Even when making corrections she displays serious problems in judgment, as with this example:
Although there have been multitudinous references throughout the media to [Joe Allbaugh, the former FEMA director, and his successor Michael Brown] as former college chums or college roommates, they in fact went to different schools. A spokeswoman for Mr. Allbaugh says that while they have been close pals for a long time, they met after graduation. Obviously, if we're debating the serious issue of allegations about cronyism at FEMA, a friend is a friend whether the relationship was born off campus or on.
But nobody would have been shocked to learn that Mr. Allbaugh had hired someone he had known and liked for a long time. John Roberts, for example, is apparently personally known and liked by almost everyone in Washington - and that very quality of the man has been viewed as an asset. Nor was it a bad thing that George Bush is a personal friend of Harriet Miers. Contrary to Ms. Collin's thinking, mere friendship, as such, does not necessarily suggest cronyism. The shocking thing about Mr. Brown's hire was exactly that the he enjoyed a friendship with Mr. Allbaugh said to have been forged under circumstances in which friendships are often forged for reasons quite inconsistent with the jobs these two men were to perform in the federal government.

Some friends are not just friends. The political effect of the media's representing the Brown/Allbaugh friendship as originating in their having been college roommates was hardly more damaging than an allegation that their friendship was rooted in sexual infatuation would have been. Yet, if the friendship had been represented as forged when both men came to know and admire each other while in public service (for example), their friendship would likely have had no political consequence at all in the aftermath of Katrina.

Just who does Ms. Collins think she's kidding?

Posted 2:05 PM by Robert

So What's New With Judith?

There has been lots of chattering about Judith Miller's recent release from jail and her testimony in the Plame non-case among those who care to chatter about such things. And God bless their little chattering hearts and fingers, each and every one.

As the mainstream media and various bloggers describe in excruciating detail (and, as Maguire capably points out, often excruciatingly incorrect detail), none of the explanations proffered by the Times (or, really, anyone else) as to why Ms. Miller ever when to jail in the first place make much sense - still less any explanation as to why she agreed to testify.

The partial exception is the obvious one: Whatever her reasons for going to jail in the first place may have been, 85 days of confinement made her realize those reasons were just as stupid as everyone had been suggesting they were. Such effects on recalcitrant witnesses of time in the pokey is, after all, why courts put witnesses who refuse to testify in jail in the first place: Long incarceration tends to make them agree to testify. If several hundred years of practical experience did not evidence the effectiveness of the technique, courts probably couldn't be bothered using it now. The whole procedure, after all, is pretty expensive, messy and time consuming.

But I would like to note another central element that changed between day 1 and day 85: Everybody, including the Times, pretty much stopped talking much about the Plame non-matter and how the Plame non-matter might affect the president during that period, especially in the weeks towards the end. So perhaps the correct explanation runs something like this:

The entire Plame non-matter has always been a trivial non-issue that has been kept not-quite-alive by dogged efforts of the president's critics in the mainstream media solely as a talking points gimmick. The New York Times has very much been part of that effort - even a leader of it. As part of that effort, the Times purported to adopt and/or endorse the preposterous and hyper-sensitive policies on pseudo-coerced waivers that led to Ms. Miller's incarceration.

But then something odd happened: With its reporter rotting in the special prosecutor's tank, the New York Times and everyone else eventually got completely distracted, lost all interest in the Plame non-matter and began to treat it as the non-matter it always has been. The Times actually mentioned "Plame" on September 3 (an Op-Ed piece by Bob Dole, of all people, pleading for Ms. Miller's release) - and then went to sleep without a single story on this urgent non-matter until September 30, when the paper of record startled itself awake to "report" that what's-her-name would be released from jail and testify. (The Washington Post absent mindedly included a few references to Plame of the "Oh, yeah, also ..." variety in the same period.)

Perhaps, just before the last flickering of institutional memory went out, somebody at the Times - maybe Mr. Bill Keller - woke up to a thought along the lines of:
"Gee, since nobody gives a rat's ass anymore about that Plum affair... (or is it Plume? ... Flame? ... Flambe? ... well, whatever - I'll look it up on Google when I get to the office), maybe there's no point in leaving old what's-her-name, our 1st Amendment heroine (note to self: Google) locked in Fitzgerald's iron mask? Must ask Pinch."
And he did ask Pinch! And Pinch replied - right after being reminded who what's her-name actually was and why the Times had thought it was a good idea to order her (I mean, support her decision) to go to jail rather than testify:
Keller, you're right! I knew there had to be reason why I made you editor! Get that girl out of the klink as soon as you can! Tell them everything's changed! Tell them anything! Tell them that Libby .. or Liddy … or whoever got all non-coerced or something, just like you just said! Better yet, tell them that what's-her-name had to wait for Liddy or whoever to come to her cell and give his release in person - so she could make sure he wasn't crossing his fingers behind his back when he gave it! God, I'm good! Make it happen, Keller - and have my assistant send me in another $50 cigar!

Yes, as New York Times superstar columnist Herr Doktorprofessor Paul Von Krugman says: That's the way it was. It's all true. It's all backed up by one of those technical journals Herr Doktorprofessor sometimes tells us he subscribes to. They did a computer model or something.

Posted 1:51 PM by Robert

Manufacturing: US Growth Industry

In case you needed a reminder on the topic, this is one is from the Economist:

The decline of manufacturing in rich countries is a more complex story than the piles of Chinese-made goods in shops suggest. Manufacturing output continues to expand in most developed countries—in America, by almost 4% a year on average since 1991. Despite the rise in Chinese exports, America is still the world's biggest manufacturer, producing about twice as much, measured by value, as China.

Posted 9:42 AM by Robert

Herr Doktorprofessor And The Birth Of The New!

Herr Doktorprofessor Paul Von Krugman has over the years refined his style, generally settling in recent times on a two-part column structure:

First, dubious factoids (some may prefer the word "factette" - which is like a fact but smaller and softer) are adduced, usually without a clear source or with a source difficult for most readers to check - but almost always tendentiously, and often in paranoid "everyone knows what this means" fashion.

Second, an "analysis" is provided based on the factoids/factettes, usually of a highly dubious nature and attributing the "bad" factoids/factettes de jour to George Bush, who (we were generally reminded) is a corrupt fool who nevertheless has seized control of the world, apparently because he was admitted to schools he should not have been allowed to attend. The "analysis" is backed either explicitly or implicitly with Herr Doktorprofessor's academic credentials. Each column in this style could be provided with a footnote along the lines of: "Hey, buddy, nobody with these credentials would be making an argument that's actually as ridiculous as this one reads: you must just not understand."

The problem with this settled structure is that it leaves Herr Doktorprofessor vulnerable to a critic who actually does understand the analysis, knows it is ridiculous, and is willing to say in no uncertain terms right there on the internet.

What's a raving lun...I mean a major columnist ... to do? Well, genius often lies in simplicity: Herr Doktorprofessor has completely eliminated any analysis whatsoever from today's column, which is nothing but a listing of factoids/factettes presented tendentiously in a paranoid "everyone knows what this means" fashion!

Don't take my word for it. Read the column.

What could account for this change of structure - this complete elimination of even a pretense of analysis? Well, even granting that the new approach is likely an experiment on Herr Doktorprofessor's part, it is probably a result of Times Select, which has probably largely restricted readership of his column to those who are really determined to read it - and that readership disproportionately includes people who already know pretty much what Herr Doktorprofessor is going to do with his analysis once they read the factoids/factettes. In other words, Herr Doktorprofessor's new structure probably reflects his sensitivity to the fact that TimesSelect now means not only that he is preaching to the choir (which has long been the case) but that only the choir can and will hear him and they already know where's he's going once he lays out his tendentious version of those factoids/factettes.

As noted, today's column is nothing but a list of tendentious factoids/factettes, including:

According to a new U.S. government index, the effect of greenhouse gases is up 20 percent since 1990.
The Artic ice cap is shrinking at an alarming rate.
When Senator James Inhofe, who has called scientific research on global warming "a gigantic hoax," called a hearing to attack that research, his star witness was Michael Crichton, the novelist.
It's not possible to attribute any one weather event to global warming. But climate models show that global warming will lead to increased hurricane intensity, and some research indicates that this is already occurring.

Do Herr Doktorprofessor's TimesSelect readers need to read any more? Of course not. The missing "analysis" would just argue that Republicans like Messrs. Bush and Inhofe are clueless about global warming and by rejecting the Kyoto Accord probably helped cause Hurricane Rita and Katrina. Since all available evidence indicates that Kyoto Accord would not have any such effect, the "analysis" would have to amount to another set of snide "everyone knows" comments - so it's actually better left out anyway. There's no "analysis" in the new structure, and the conclusions are all left to what Mayor Daley used to call insinuendo - so critics have a harder time pointing to the weak spots in the analysis that isn't there. There's just no natural place to point out that Congressional committees often have entertainers as "star" witnesses (Democrats are particularly fond of rich movie stars who portray ordinary people in their roles), or that research suggesting that hurricanes may be getting stronger is highly qualified because scientists didn't have good ways of measuring hurricane speeds until recently, or that there is no indication that global warming is caused by anything human that could be changed meaningfully within reasonable costs, or any other criticism of the analysis-that-isn't-there. Well, maybe the critics can make a place.

The only problem with the new structure is that someone not already on Herr Doktorprofessor's mindtrack will likely just think he's just writing unconnected, paranoid gibberish - which he is.

For example, the items in the factoid/factette list above actually come in the column all jumbled up with lots of other sinister-sounding stuff about Jack Abramoff, Alan Greenspan and gangland-style killings. It would be perfectly possible to infer from the column's order of the factoids/factettes that Herr Doktorprofessor thinks that a conspiracy including Jack Abramoff, the Fed Chairman and Halliburton caused global warming and Hurricane Katrina as a cover for murdering some recalcitrant member their gang - perhaps by including him among the 1,000 or so dead from the storm. And it would also be possible to infer (if one were so inclined) that all of that is intended by Herr Doktorprofessor to tie into why OSHA is being run by some guy said to have once represented someone favoring ephedra: Two of the three senior positions at the Occupational Safety and Health Administration are vacant. The third is held by Jonathan Snare, a former lobbyist. Texans for Public Justice, a watchdog group, reports that he worked on efforts to keep ephedra, a dietary supplement that was banned by the F.D.A., legal.

That last example exhibits one of the difficulties with Herr Doktorprofsor's experimental "no-anlaysis" format. Not everyone would see the appointment of a former FDA lobbyist to the OSHA board as all that sinister, even if he did once represent someone in connection with ephedra. Lobbyists, like lawyers, represent clients as professionals - and there is no easy link between ephedra and occupational safety anyway. Herr Doktorprofessor himself once was an adviser to and wrote glowingly about Enron. But while they might have other reservations, most people would not find his Enron connection to be all that sinister if he were appointed as, say, chief economst at OSHA or the FDA (if they have one). I'm afraid that Herr Doktorprofessor is just going to have to learn the hard way that if he wants to be sure that his readers makes some paranoid "everybody-knows-what-this-means" connection, there's just no substitute for actually including a paranoid analysis.

All of this is troubling to the Man Without Qualities because I had thought that TimesSelect might actually cause Herr Doktorprofessor to become less nutty, not more nutty as in today's column. But Herr Doktorprofessor's new structure is probably only an experiment, one he is making in an attempt to avoid the ultimate economic incentive imposed by the fact that most people who pay for analysis actually expect analysis - not just snide factoids/factettes served up without any dressing.

So I don't think he'll be able to keep this new structure up and running very long. Time will tell.

Posted 9:55 PM by Robert

Louisiana Democratic Party: Swept Away (By an Unusual Destiny in the Blue Sea of August) IV

Housing and Urban Development Secretary Alphonso Jackson said Wednesday during a visit to Houston:

"Whether we like it or not, New Orleans is not going to be 500,000 people for a long time," he said. "New Orleans is not going to be as black as it was for a long time, if ever again."

As noted in prior posts, unless displaced New Orleans African-Americans return to the state, the Democratic Party there is all but washed up. So what the HUD head is saying is not good news for them. Of course, technically, he's not referring to Louisiana generally, he's referring to New Orleans. But a very large percentage of the New Orleans diaspora is telling pollsters that they intend to stay where they are now - and that's not Louisiana. Indeed, FEMA is giving eligible Katrina displaced persons rent vouchers nationwide. If those people do not return to New Orleans, they are likely not returning to Louisiana. But the Lousiana Democratic Party is not going down without fighting. In fact, Louisiana Democrats in Congress are attempting to coerce the poor to return:

Despite the severe social and cost disadvantages inherent in a housing relief program based on scores of trailer parks established in remote locations, FEMA appeared determined to implement a strategy that would compel low-income evacuees to accept housing aid only within their home states. In part, this strategy may stem from concerns that many of those receiving assistance may not choose to return to New Orleans or the other damaged communities along the Gulf Coast unless coerced to do so.

As press reports have noted and at least one poll has confirmed, many of the low income evacuees now lodged in other metropolitan areas have become attached to their new communities and desire to start over in them, rather than return to the Gulf Coast. Perhaps reflecting this concern and fearing a permanent loss of constituents and voters, Louisiana’s congressional delegation has reportedly attempted to alter legislation related to federal relief efforts to limit some assistance to only the displaced who remain in their home state or return from an out-of-state shelter. On the issue of providing a tax credit to help the displaced find employment, a spokesman for Rep. William Jefferson (D-LA) explained, “My boss sees this as less a matter of individual relief than part of an economic revival package to repopulate the city.” More bluntly, Rep. Jim McCrery (R-LA) said, “If evacuees decide they want to stay in Houston, Texas, why should we pay an employer to give them a job when we need people back in New Orleans?”

So here's the Democratic thinking: A New Orleans refugee has his home and life washed out by a category 4/5 hurricane. He thinks he would do better starting life over somewhere else. The heck with what he wants. The Louisiana Democratic Party needs its constituency back. That's what counts!

Posted 7:47 AM by Robert

Calame's Demon

A prior post noted that New York Times public editor Byron Calame puts his finger on a big problem with the mainstream media generally:

I find it disturbing that any Times editor would come so close to implying - almost in a tit-for-tat sense - that ... bad behavior essentially entitles the paper to rely on assumptions...

That sinister sense that Mr. Calame identifies, that almost in a tit-for-tat sense bad behavior essentially entitles the paper to rely on assumptions is certainly disturbing ... even demonic. Call it Calame's Demon. And Calame's Demon is very busy, indeed, in the halls of the mainstream media. Consider these pearls from an editorial in today's Los Angeles Times:

TOM DELAY HAS BEEN so intellectually dishonest for so long that news that he may have been criminally dishonest hardly comes as a surprise. ... DeLay's troubles also continue something of a tradition, dating at least to former Democratic Speaker Jim Wright of Texas, of ethical lapses among those in the leadership of the House. ... Yet DeLay is more than the sum of his ethical lapses. He also has a long history of hypocrisy. ... But the real problem isn't what DeLay may have done, it's what he stands for.

Mr. Delay is not my favorite member of Congress, for a number of reasons. But his current troubles certainly do not include a demonstration or finding by anyone of the ethical lapses in his indictment - still less that those "troubles" continue any "tradition" of ethical lapses. The editorial was largely written by Calame's Demon.

While the Times' express pre-trial conviction of Mr. Delay would do credit to Alice in Wonderland, it is not the only mark of Calame's Demon in this editorial - which reflects much of mainstream media's reaction to Mr. Delay's indictment. One might also ponder what is missing in the editorial: the presumption of innocence, that the ethics violations for which Mr. Delay has actually been sanctioned in the past are trivial (in contrast to the lurid accusations his critics have made) and any discussion of the evidence supporting the indictment or whether the indictment is likely a politically motivated abuse, rendered up in canonical Texas style.

In fact, the indictment very likely is a Texas Democratic, abuse: The prosecutor, Ronnie Earle, also had Texas Republican U.S. Senator Kay Bailey Hutchison indicted in 1993. She was acquitted in February 1994 when Mr. Earle, disheartened by the judge's pre-trial rulings, refused to present the case. If Mr. Earle is engaging in abuse, why does the Times cheer on the destruction of one of the highest members of the federal government by a state officer acting with corrupt motivation? Because Calame's Demon whispers in the journalist's ear: "Go ahead, Delay has a long history of hypocrisy! What he stands for justifies what you are doing!"

Would the Times cheer with the same gusto if, say, a Republican prosecutor caused Justice Souter to recuse himself from the Supreme Court by indicting him for conspiring to cause Weare, N.H. to corruptly condemn his home at an above-market price? After all, many people consider the Kelo decision that Justice Souter joined to drip with hypocrisy and to be a much more egregious abuse of power than anything of which Mr. Delay has ever been accused. The mere fact that Justice Souter's act is legal should be of no matter to the Times, since today's editorial is at pains to point out: But the real scandal in Washington ... isn't what's illegal, it's what's legal. What if such an indictment against Justice Souter were supported by no better evidence than this Texas prosecutor has mustered against Mr. Delay and the prosecutor had a history of political recklessness (as this does this Texas man)? The quality of the evidence and the probable motivation of the prosecutors don't matter to the Times' discussion today. Why should they matter with respect to any other case?

Perhaps the Times would find itself guided by the hand of Calame's Demon to write, long before any trial had taken place and in complete disregard of the quality of the evidence known and the likely motivation of the prosecutor:
Souter's troubles also continue something of a tradition, dating at least to former justice Abe Fortas, of ethical lapses among those on the Supreme Court. The real problem isn't what Souter may have done, it's what he stands for.
As in Delay's case, Calame's Demon often nests securely among the branches of New York Times v. Sullivan, the 1964 Supreme Court decision that revolutionized American libel law. The Los Angeles Times has probably libeled Mr. Delay in today's editorial, but the paper does not fear because under Sullivan public officials suing for libel have to prove that the statements they complain of were made with "actual malice" - that is, that the statements were published with at least reckless disregard as to whether they were false. But all that may change - at least if the newest member of the Supreme Court has a say in the matter, as noted by an article in the New York Times to which my attention was drawn by a perspicacious reader:

When Judge Roberts was asked about other Supreme Court cases during his confirmation hearings, he sometimes embraced them as correct. He said he had "no quarrel" with others. In his written response to Mr. Schumer's question on the Sullivan case, Judge Roberts said only that it "is a precedent of the court, and I would start with it in any case implicating this area of the law." ... ...

Judge Roberts ... briefly described his own critical views on the Sullivan case. In that memorandum, dated Aug. 28, 1985, Mr. Roberts offered what he called "my own personal view" on the proper balance between the interests of libel plaintiffs and the interests of the press. He said he would favor relaxing the standards established by the Sullivan case, which gave the press increased protection from libel suits brought by public officials, in exchange for eliminating punitive damages, which can often account for the bulk of libel awards.

Where would Paul Krugman, Maureen Dowd and other such creatures of Calame's Demon be without New York Times v. Sullivan? Perhaps we'll be finding out sooner than we thought.

MORE

The money that led to the indictment this week of two Las Vegas pastors and the wife of one of them came from federal grants arranged by Sen. Harry Reid in September 2001, a Reid spokeswoman said Wednesday....

Link from InstaPundit

Byron York: Coming Soon: The Ronnie Earle Movie...The DeLay prosecutor has let a film crew follow him through the whole case

"Raymond Chandler meets Willie Nelson on the corner of Wall Street and Pennsylvania Avenue in The Big Buy, a Texas noir political detective story that chronicles what some are calling a 'bloodless coup with corporate cash,'" reads a description of the picture on Birnbaum's website, markbirnbaum.com.

One can well imagine the righteous uproar that would have erupted if Ken Starr had tried somethng like this. Will the mainstream media protest now as they would have then?

Will the Pope convert to Islam?