Posted 2:38 PM by Robert

The Variety of Weevil Experiences

Ah, the weevil. There are about 40,000 species, each with its own tasty prey: pine, acorn, nut, primitive, grain, boll, seed, fungus, alfalfa, leaf-rolling, plum, ... and now Hesiod.

In the dictionary: "Weevil" ... any of a superfamily (Curculionoidea) of beetles which have the head prolonged into a more or less distinct snout and which include many that are injurious especially as larvae to nuts, fruit, and grain or to living plants...

Injurious to their prey, as with: 'Hesiod' has finally learned to edit his spelling. His archives seem to be hosed, but one of his posts last week was only up for three days before he fixed the first word of the title: for 'THW' it now reads 'THE'. Rather like what Mary McCarthy said of Lillian Hellmann, every word 'Hesiod' writes is botched, even 'amd' and 'thw'.

wee·vily or wee·vil·ly is the adjective form!

Posted 12:58 PM by Robert

Profits Up, Clout and Dems Down

Al Hunt today in the Wall Street Journal notes:

Across America, television stations are engaged in two pervasive phenomena: severely cutting back on campaign coverage while jacking up rates candidates must pay to advertise. ... A University of Southern California study of the 1998 governor's race in that state surveyed thousands of hours of news coverage in major markets; considerably less than 1% was devoted to the governor's race. This year USC and University of Wisconsin researchers examined almost 2,500 newscasts in 17 major markets a month ago and found that over half contained no campaign coverage at all; many of the rest only offered short, fleeting coverage.

Mr. Hunt is smart and certainly in a position to know about these things, so the Man Without Qualities will assume he is correct and not misleading.

The development described by Mr. Hunt should mean that television companies will have less influence with politicians and that Democrats probably have a huge problem that will persist well past election day. If television news covers campaigns, then television companies can "contribute" to a campaign with biased reporting. And, in the past, they have done just that. And, in general, television news has been strongly biased in favor of Democratic candidates.

A cut back in campaign coverage means less in the way of "contributions" masquerading as biased television news reporting, that means less influence for the television companies with the politicians. But what Mr. Hunt is also reporting - but doesn't actually state - is that television companies are reducing their political contributions to Democrats.

One reason Democrats have been able to thrive in recent decades despite lower overall contribution is the support they receive from third parties, especially unions and biased media (notably television) campaign coverage. Mr. Hunt is, in effect reporting that one of those "sources" of Democrat support has not only dried up - it is now becoming a "sink" of rapidly rising expenses. How can this be happening? The media companies and the Democrats are pals!

Of course, the Democrats and the media routinely deny that television coverage is biased - sometimes the Democrats or their surrogate hilariously attempt to "prove" that the coverage is actually biased against Democrats. If they keep that up, they will not be able to argue in public that Mr. Hunt's reported development is actually hurting them or requires any remedy. That certainly will make for an interesting and subtle public argument. In the mean time, the House Democrats seem to be out of campaign money for the last week of the campaign.

Fancy that. Sometimes one just doesn't receive as much support as one needs, and things just end up costing more than you expect. And sometimes that happens in very funny ways.

Posted 11:07 PM by Robert

Kids, The Democrats Have Got a Great Election Idea!

Foxnews reports: Democrats would prefer that absentee votes for Wellstone be automatically transferred to Mondale, contradicting the plan created by Kiffmeyer, a Republican, and Attorney General Mike Hatch, a Democrat.

Who do the Democrats suppose has the power to say that a vote for X will be "automatically transferred to" Y?

Did that person used to work for Joe Stalin? Did he just do a stint running an election for Saddam Hussein?

Whatever the election results - any election results - why doesn't that person just "automatically transfer" votes to whoever that person likes and clean up this mess we call "democracy?"

The Democrats are really on to something big here. You really have to admire their unbounded gall.

Posted 10:36 PM by Robert

Hey! That New York Drought...

... is over!

Posted 10:14 PM by Robert

The Fact Is, It's Acceptable

Nobody likes to work around - and especially under loud people with ready tempers, who throw things, slam doors and drawers and shout and curse.

Some people go further and present such characteristics as broadly disqualifying and unacceptable. There is a line here - albeit not a pretty one. For example, the OpinionJournal gets it just right, but obscures its own success:

Just this Sunday, a profile in the San Francisco Chronicle noted that "[Gray Davis'] temper and foul language are legendary." A 1997 profile by the liberal columnist Jill Stewart of the weekly New Times Los Angeles recounted several instances of Mr. Davis "hurling phones and ashtrays at quaking government employees." She concluded that "his incidents of personally shoving and shaking horrified workers" marked him as "a man who cannot be trusted with power."

Jill Stewart and, by approving reference, OpinionJournal, are correct to point out that we should know that Gray Davis is "a man who cannot be trusted with power" because he hurls objects at people and personally shoves and shakes horrified workers. Such acts are not just pecadillos. Such acts are violent California crimes.

But a hot temper and frequent foul language are not broadly disqualifying - not from employment and not even from trusting someone with power. Nor is the likes of "hurling phones and ashtrays" disqualifying - until the "at people" zone is entered. Some people do not agree, but I believe that the facts show otherwise. Many very good, valuable, accomplished and talented people have loud, foul tempers and/or a penchant for hurling bibilos: Ronald Reagan, both Bill and Hillary Clinton and Barry Diller come immediately to mind, although the list could be extended indefinitely. Mr. Diller, however, may for one cross the line into the "at people" zone by some reports.

Posted 3:34 PM by Robert

Mr. Blodgett Regrets

The Pioneer Press is reporting: The head of the Wellstone campaign apologized Wednesday for the event’s sharply political tone. "It was not our intent to inject that into the service," campaign chairman Jeff Blodgett said of comments made at the Tuesday night ceremony. "I take responsibility for that and I deeply regret it." ... "It probably would have been best not to get into the election," Blodgett said.

Gee, doesn't Mr. Blodgett realize that many liberals - including some liberal bloggers - have been defending the vulgar, partisan, exploitative, opportunistic tone of the "Memorial-Cum-Mardi-Gras" as what "Paul" would have wanted and what one is suppopsed to do to "celebrate a life" anyway?

How could Mr. Blodgett pull the rug out from under those hard-scribing lugs this way?! Does he think only of himself?

And, not to be too crass about it, but has anybody bothered to ask Mr. Blodgett if he took a look at any overnight polling data regarding the public reaction to the Memorial festivities before, you know, "deeply regretting." In other words, is this the kind of "regret" one feels when one experiences a tender siege of conscience and remorse - or the kind of "regret" one feels when one gets caught in the act.

UPDATE: Mr. Mondale regrets, too.

Posted 2:41 PM by Robert

Whither McAuliffe?

Matt Drudge says Terry McAuliffe is out if Democrats don't make gains in November.

But something more important has already happended to undermine Mr. McAuliffe, and seems to be continuing: The Clintonites have all been losing.

With the exception of Hillary Clinton's win - now two years old - and Rahm Emmanuel, who is running in a safe Democrat House district, the ex-Clintonites seem to have been a big bust. The North Carolina Senate race remains to be run, but that doesn't look good for Erskine Bowles winning over Elizabeth Dole. The New York governor's race seems over. Robert Reich didn't survive the primary. Etc.

Assuming all but Emmanuel go down next week, where does that leave Mr. McAuliffe, even if the Democrats show modest wins in the elections? He is a well-known Clinton proxy running a party nominally headed by Al Gore - who is not exactly on best of terms with his old boss and running mate and who definitely views Hillary Clinton as a rival.

If the Clinton formula seems to have spent its magic, what are the chances the Democrats will keep Terry around? Even if he brings home some modest wins in an off-year election in which modest wins should have been a near-certainty - so what? Do the Democrats have such a short memory that they forget that Clintons often mean big-time losses for other - especially Congressional - Democrats when it serves the Clintons' interest?

Why keep the proxy of such an unstable force at the top of the party? Especially if you're Al Gore? The party fund raising hasn't gone that well.

Posted 2:23 PM by Robert

FURTHER UPDATE: A Sea-Change Signifying Nothing in November?

According to the Washington Post:

The hoopla over which party will control Congress after Nov. 5 has obscured the fight for partisan advantage in the nation's state legislatures, where power is evenly split and experts predict record turnover among lawmakers.

That development is not exactly a surprise in this space. But Peggy Noonan and Walter Shapiro might want to look into it.

Posted 1:41 PM by Robert

How Can Ted Rall Be So Wrong?

Ted Rall thinks that the President killed Paul Wellstone. But he has it all wrong. From the Carnahan results and the Democratic Party assurance that the Wellstone death can be treated exactly the same way, it follows that Terry McAuliffe and Tom Daschle must have believed that Senator Wellstone's demise would secure his Minnesota Senate seat for the Democrats.

Now, some may say that this is a far fetched theory - but it no more resembles dipsomaniac ravings than Mr. Rall's effort does. In any event. Mr. Rall should be warning all Democrat Senators in close races that all those offers of free billet deux for Moscow theater productions that keep coming from the DNC are not billet doux - and should be turned down at least until after the election.

Posted 12:30 AM by Robert

Oregon Comprehensive Health Care Finance Act Referendum

Pete DuPont does not approve of the Oregon Comprehensive Health Care Finance Act referendum, which would create and finance a "single provider" healthcare system in Oregon.

Mr. DuPont's criticisms are surely valid, but the referendum seems more than a little odd to the Man Without Qualities on other - more mundane - grounds. While I am not familiar with the details of Oregon's referendum law, most states (such as California) that provide for referendums also limit them to deciding "single subjects" and prohibit their use for "fundamentally changing" the state Constitution. It appears Oregon has such limitations, too, since one website says: "The Attorney General is responsible for making sure that each proposed measure deals with only one subject, and that the summaries and statements of "yes" and "no" comply with Oregon election law." But I have not reviewed the Oregon Constitution. It is hard to imagine a field of human activity that complies less with any concept of "single subject" than the the vast range of issues that would be involved (in fact, obliterated) in establishing a single provider of health care.

Simply put: It seems hard to believe this referendum is constitutional under the Oregon Constitution because it would change too many things and address too many subjects. But, again, I am not familiar with that Constitution's referendum details. In addition, many people have noted that federal courts seem to be more willing to strike down state ballot initiatives.

Posted 10:30 PM by Robert

Celebrating A Life? No. Exploiting a Death

If this doesn't backfire on the Democrats, the citizens of Minnesota are truly pathetic souls. [FURTHER NOTE: Of course, the problem is not that the "Memorial" celebrated life and not death (that would have fulfilled its legitimate purpose) - its offensive aspect was that it did not focus on the life it was suppose to celebrate, instead exploited the death for the political gain of other people, and mostly proclaimed a vulgar campaign opportunity. And from the media coverage, that appears to be the way most people construed it other than rock-ribbed Democrat loyalists.]

UPDATE: Mullings provides a partisan but realistic evaluation of Mr. Mondale. It's the kind of thing Minnesotans will want to recall before they vote for someone mistakenly thought to have absorbed Senator Wellstone's ectoplasm - an election process the media and the Democrats want produced from a rejected script for a Buffy the Vampire Slayer episode.

FURTHER UPDATE: This race seems to still be very much in play - and yesterday's phony and overtly politicized "Memorial" for deceased Senator Paul Wellstone is the Democrats' gift to Mr. Coleman. He should take it and run with it.

Jesse Ventura says he will appoint an independent - not a Democrat - to fill Senator Wellstone's position until the election. He says his move was prompted by disgust at the hugely and inappropriately politicized "Memorial Service."

My guess is that a great many people in Minnesota who are not rock-ribbed Democratic Party loyalists share their Governor's reaction to the Memorial's excesses. I believe that Memorial likely represents the Democrats way overplaying their hand, and will probably backfire if the Republicans handle it right. And while it's a long way from a scientific poll of Minnesotans, a lot of bloggers seem pretty disgusted with the "Memorial."

Specifically, if the Memorial is presented correctly to the public, the way is now open for the Republicans to treat Walter Mondale to a full dose of an ordinary but carefully executed political campaign. That campaign should properly include lots of reminders of Mr. Mondale's own far-less-than-stellar career, and his advanced age.

The phony "Memorial" histrionics may even cause some media reporters to wake up to the obligation to remind people that, yes, a vote for Walter Mondale is, yes, a VOTE FOR WALTER MONDALE. It seems that local Minnesota station KARE-TV reports: [Memorial Speaker] Kahn's comments, which came more than an hour into the planned two-hour tribute shocked media outlets across the state that were carrying the event live. Viewers and listeners were outraged. By 10:15 p.m., KARE TV's operator had logged more than 100 calls. It is unknown how many calls went to the station's overflow voicemail system. >[UPDATE: And the Note reports: "At KSTP-TV, Tyler Damerville, night assigning editor, said he and his associate were inundated with phone calls from viewers who were upset with the political spin of the memorial. He said viewers have called him and said the station's voice mailbox is full."]

A debate demand is also appropriate. And, if Mr. Mondale refuses to debate, he should be hammered with that refusal. Such refusals are almost always poison for the refuser. Perhaps Lautenberg will get away with it in New Jersey. But Minnesota is not New Jersey, and Mr. Coleman is a much more viable candidate than Mr. Forrester is. In Minnesota, a refusal to debate should easily cost the Democrat the election. On the other hand, a debate may show just how worn down Mr. Mondale has become - if it bears out the photos of him now making the rounds.

Nor will that now-infamous happy, happy, happy AP photo of the "bereaved" Bill Clinton and Walter Mondale fail to have its effect on the voters. And it's also worth remembering the ongoing absentee voter mess, especially with respect to already-cast votes for Senator Wellstone - although it seems not to be polite to talk or write about the mess too much just now, to go by the lack of mainstream media attention.

Buckle your seatbelts, it's going to be a bumpy week in Minnesota.

Posted 6:53 PM by Robert

And if Doctor Recommends Laetrile - or Worse? If the Lawyer Recommends Using a Stationery Store Will?

A recent opinion from the ever-zany Ninth Circuit described in this news report will probably have a half-life best measured in months and is notable only for the supporting vote cast by the normally level-headed Alex Kozinski.

In brief, the opinion holds that although a doctor has no right to prescribe marijuana (the Supreme Court had already overturned the Ninth Circuit on that point), the government cannot revoke doctors' prescription licenses for recommending marijuana because that would violate the First Amendment. So this opinion seems to eject government regulators entirely from evaluating whether doctors' medical recommedations are in fact good medicine. And, of course, the First Amendment protects the doctor's "right" equally from both federal and state medical agencies.

The Ninth Circuit upheld a U.S. District Court's injunction prohibiting the Justice Department from revoking Drug Enforcement Administration licenses to dispense medication "merely because the doctor recommends medical marijuana to a patient based on a sincere medical judgment." The District Court's order also prevented federal agents "from initiating any investigation solely on that ground."

It helps to start with a fact whose principal significance is wholly ignored by the court, even as its opinion apparently deliberately attempts to evade it: Marijuana, for any use, is illegal under federal law - even in a state that has legalized it for any purpose, including medical uses.

A full review of the opinion (and, worse, Judge Kozinski's concurrence) reveals a logic which would also extend the First Amendment to include a doctor's right to recommend Laetrile, a quack "cancer drug." Even more bizarrely, the government could apparently be prevented from initiating any investigation solely on such grounds. Would it alarm the good judges of the Ninth Circuit to discover that the State was powerless to do anything just because, say, their cancer-ridden mother's doctor had sincerely, frankly and openly recommended that she stop taking Taxol and get herself coked up on Laetrile - maybe just because the yew trees are endangered? It doesn't seem to matter to the Ninth Circuit that the recommended act would probably violate federal law - unlike, say, a recommendation that a woman have an abortion - where the woman's right to commit the recommended act is beyond the State's power to regulate. Indeed, the Ninth Circuit found the injunction appropriate to protect a doctor's First Amendment right to free speech because the injunction provided that the government could take administrative action against physicians for recommending marijuana if the government in good faith believes that it has substantial evidence that the physician aided and abetted the purchase, cultivation, or possession of marijuana ... or engaged in a conspiracy to cultivate, distribute, or possess marijuana.

The Ninth Circuit's reasoning implies that the government may not take administrative action against, say, a psychiatrist - by revoking a medical license, for example - if the psychiatrist sincerely, frankly and openly "recommends" to a patient that he resolve his pent up aggression by blowing his boss' head off with a shot gun unless the government in good faith believes that it has substantial evidence that the physician aided and abetted the murder or engaged in a conspiracy to murder. Or how about a psychiatrist who "recommends" that a patient work out all that nasty oedipal stress by having sex with the patient's child? The Ninth Circuit thinks that the State can't lift a medical license for that peccadillo unless the government in good faith believes that it has substantial evidence that the physician aided and abetted the child abuse or engaged in a conspiracy to commit child abuse. Oh, and the Ninth Circuit also makes clear that the State can't just prove that the physician anticipated the bad thing: "A doctor’s anticipation of patient conduct, however, does not translate into aiding and abetting, or conspiracy." Isn't that generous of the judges to the doctors? Too bad about the boss and the child. The opinion is replete with undifferentiated claptrap about "narrow restrictions" on physicians' speech being permitted, and equally silly assertions that the prohibition of a doctor recommending marijuana is not sufficiently "neutral" - all of which would leave equally invalid rules that would impose "administrative action" against the psychiatrist who recommended violent removal of a boss' head and/or sex with one's child. Those regulations would be as equally lacking in narrowness and "content neutrality" as are the anti-marijuana regulations the court actually overturns. In general, the court's silly patting of precedent - either out of context or while the substance of that precedence is wholly ignored - is not worth addressing. But it is a disgrace and an embarrassment.

Perhaps the Ninth Circuit thinks its new First Amendment right would only begin where the voters of California or some other State decide in their combined and popular medical wisdom expressed through a referendum to veto the federal policy against Laetrile - and maybe a panel of the American Medical Association will also have to vote to override the federal government. But, gee, none of this power of State referendums and medical bodies to override the federal government is mentioned in the Constitution's Supremacy Clause:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

But the Ninth Circuit ignores all that and says: "Our decision is consistent with principles of federalism that have left states as the primary regulators of professional conduct."

And since the right at issue is the ultra-important First Amendment right of free speech, it would seem to follow from the Ninth Circuit reasoning that there must be important First Amendment restrictions on the ability of a patient to go to court to sue a doctor for malpractice where the act in question is just a sacred recommendation - in the same way there are important First Amendment restrictions on the ability of a defamed plaintiff to obtain relief in a libel action. The Circuit Court even holds that a doctor is protected as long as he or she spoke "frankly and openly to patients," a standard far easier for a malpractice defendant to satisfy than "negligence." And since the government can't directly prohibit a sacred "recommendation," a governmental regulatory body's evaluation of the doctor's recommendation surely can't be admitted as significant evidence of malpractice or else the government’s ability to "chill" the First Amendment would be realized indirectly. Can't have that.

But why stop with doctors? Lawyers often give their clients nothing but "recommendations." It's called "legal advice." The Ninth Circuit is fully aware of the ground they are treading: "The government’s policy is materially similar to the limitation struck down in Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), that prevented attorneys from “present[-ing] all the reasonable and well-grounded arguments necessary for proper resolution of the case.” Except that the funding at issue in Velazquez did not finance recommendations to commit a crime - so Velazquez is inapposite. Is a rule that specifically prohibits a lawyer from recommending that a client steal money or commit perjury lacking in "content neutrality" and "narrowness?" Is Velazquez now to be construed as protecting lawyers who counsel their clients to commit crimes? Of course not. It is incredible one has to make this point.

Some might ask if this opinion proves that the Ninth Circuit is really off its rocker. But the answer to that question has long been beyond peradventure.

Judge Kozinski's concurrence deserves special notice. He says: "I write only to explain that for me the fulcrum of this dispute is not the First Amendment right of the doctors. That right certainly exists and its impairment justifies the district court’s injunction for the reasons well explained by Chief Judge Schroeder. But the doctors’ interest in giving advice about the medical use of marijuana is somewhat remote and impersonal; they will derive no direct benefit from giving this advice, other than the satisfaction of doing their jobs well."

What can he have been thinking? A doctor is mostly paid for his or her advice. Some doctors - "consulting physicians" - do nothing other than give and get paid for advice. These doctors often live very well, earning vastly more than the ordinary American does.

Judge Kozinski's concurrence is essentially a "cost/benefit analysis" which proceeds from - and depends on - his entirely loopy and false assertion that doctors who only recommend marijuana "will derive no direct benefit from giving this advice, other than the satisfaction of doing their jobs well." So his concurrence has no place to go but down from there.

It's a shame. In his case, it's really a shame.

FURTHER NOTE: If this were any Circuit other than the Ninth, this three-judge panel would immediately recall and reverse their own ridiculous opinion. Failing that - outside the Ninth Circuit - there would not be a chance in a million that this opinion would survive "in banc" (or, sometimes, "en banc," review - meaning review by all members (or, in the Ninth Circuit's case, more members) of the Ninth Circuit. But the Supreme Court will probably have to flick this insubstantial thing out of the casebooks - like a piece of lint off a judicial frock. Look for a prompt stay emanating from the white marble palace if the Ninth Circuit doesn't even have enough sense to issue their own pending appeal.

UPDATE: Fritz at Sneaking Suspicions may disagreee with every word of it. But am I wrong to see the wistful hope appended to his post ("Perhaps the Justice Department will respect the unified and reasonable approach taken by this Ninth Circuit panel, by not seeking review en banc or before the Supreme Court.") as suggesting Fritz's reluctant awarness that the opinion is unlikely to survive any appeal?

Posted 4:34 PM by Robert

What's With Some Democrats and Sexual Slime?

First there was the dreadful Montana Democrat "you-can't-vote-for-my-opponent-because-he's-a-gay-hairdresser" ad. Now the New York Post reports that to obtain political advantage over his Republican opponent "The Democratic Senate candidate in South Carolina has taken a swipe at Rudy Giuliani's decision to shack up with two gay men after he moved out of Gracie Mansion." Which has got to go down as one of the most bizarre slime efforts this season. [Thanks to Croooow Blog and Taranto.]

In the Blogospere, there is the penchant for some liberal bloggers to denigrate those with whom they disagree by reference to non-euclidean sexual practices and pointless references to genitals, extending to a strange attempt to denigrate (under this blogger's customary guise of a snide half-joke) as "fetishistic" the phrase "leather toughened [United States] Marines." As Lynxx Pherret has pointed out to me in a clarifying and correcting e-mail, the Marines have long and popularly been known as "leathernecks," a term originally coming from the stiff leather collar or "stock" that was part of the marines' uniform for almost 100 years (such explanations have never been verified), but the term has long been more popularly associated (as Max Boot alludes to here) with their personal toughness and willingness and ability to endure harsh conditions. This blogger has a strange way of treating people who are willing to fight and die for his freedom.

Offensive? Of course. Bigoted? You bet. Hypocritical? Dripping with it. Irrelevant and inappropriate? Obviously.

But what really jumps out is the old-fashioned weirdness of these associations and slime attempts.

Obviously, most Democrats have not gone off the rails at this point.

UPDATE: More apparent Democrat sex slime. This time it's "a new secret whispering campaign against Republican Gubernatorial Candidate Linda Lingle" in Hawaii. According to the article:

Democrats tried this same smear in 1998 against Lingle when she ran for governor against incumbent Benjamin Cayetano and against some of their own candidates in years prior who weren't the "chosen" party candidates, including a Democrat candidate for mayor and a Democrat candidate for governor. Lingle addresses this rumor on her Web site, http://www.LindaLingle.com, and has discussed it openly at forums.

This Democrat tactic is reaching the point where failure to condemn and repudiate it dramatically and from the top of the Democratic Party amounts to complicity. [Link via Cornfield]

Posted 12:34 PM by Robert

Whither the Zeitgeist?

Are there larger national forces working to skew these off-year elections, forces in some cases assuming forms of local avatars? Some races may be more significant than others in manifesting such forces.

Florida. "Jeb is gone!"was briefly Terry McAuliffe's proud rant. "There won't be anything as devastating to President Bush as his brother's losing in Florida."

But Despite calls for maddened Democrats to storm the Florida polls to avenge Jeb Bush's supposed electoral shenanigans in both the 2000 election and the Democratic primary earlier this year (where he was widely predicted to punished for voting machine errors in Democrat-heavy counties), according to the Washington Post, he is doing better at this point than in his last run, and a poll conducted jointly by a Republican and a Democratic firm on behalf of the St. Petersburg Times and the Miami Herald showed McBride trailing Bush statewide, 51 percent to 43 percent. Another new poll shows Bush leading McBride statewide by 6%.

In North Florida, where Democrats have hoped their candidate's medal-winning military service would be a boost, McBride was running a bit weaker than Bush's 1998 opponent at the same point in the race. That was also the case in the South Florida Democratic strongholds of Dade, Broward and Palm Beach counties.

So much for Governor Bush being punished for voting machine problems.

UPDATE: OpinionJournal has more on Florida.

New York. One would expect any effect of the September 11 disasters to be most felt in New York. The New York Times has endorsed Republican George Pataki over Democrat and widely thought Clinton-proxy Carl McCall.

California. California is often thought to be a leading indicator of many trends. The Los Angeles Times says that the inept Bill Simon trails the corrupt and incompetent Gray Davis by 36% to 45%. Put another way, the incumbent Davis is still quite a bit shy of the 50% mark that is supposed to mean he is not in trouble - despite Davis' spending many millions of dollars on attack ads savaging Simon and Simon's own inept handling of the race. Of course, there are also some good reasons for thinking Simon may not enjoy the usual challenger's advantage among the undecided voters in this race - especially his 60% negative impression rating in the same poll (although this compares to Davis' 56% negative).

I am certainly not saying that this election will necessarily be good for conservatives or Republicans. For one thing, I continue to believe that polling data in this election is much more suspect than in the past. And while the large drop in consumer confidence reported today could be an election wild card, the stock market's ability to absorb and reverse the effects of such news in a single day also matters.

All in all, I believe there is a good chance that these three elections suggest a trend.

Posted 10:23 AM by Robert

UPDATE: Does Jean Carnahan = Walter Mondale?

The astute folks at the Note report:

Thanks in part to GOP efforts and to some clearer thinking that this is NOT the same as the Carnahan situation, the mainstream press has ratcheted back from its "Coleman doesn't have a chance" CW of the first few days.

Now, most opinions have the race where we have always thought it should be, and where almost all of our sources agree it is: Mondale is somewhat favored to win, but who really knows?

"Mondale will bring more than a bulging resume to the race. He'll have Wellstone's legendary grassroots network of 15,000 volunteers, as well as an ideology that tacks close to the late senator's." LINK

"Clearer thinking" is it?

Actually, if the race is as close as the published polls suggest, it is hard to see how Mondale can win if the already-cast absentee Wellstone votes are simply to be discarded - which is what Minnesota law seems to require. Absentee voters can go to the polls on election day and cast a substitute ballot in person, which is the only sure solution that Minnesota officials have identified so far. But this procedure doesn't seem likely to make up the difference, or even a good part of it.

It is worth recalling that in Missouri in 2000, Mel Carnahan's name appeared on the ballot - not Jean Carnahan's. She was later appointed by the governor. So this absentee ballot issue did not create a problem for the Democrats in Missouri. This is yet another way in which it is not true that Mondale = Carnahan.

Also, Larry Sabato recalls: In mid-October 2000, Governor Mel Carnahan (D-MO) was killed in a plane crash during his close race for Senate with incumbent Republican John Ashcroft. Some pundits immediately declared Ashcroft elected, not understanding the intense wave of sympathy that would engulf the Show Me state.

Those pundits who declared Ashcroft elected were not stupid. The emotional confusion that descended on Missouri at that time was unusual. There is no reason to presume Minnesota will succumb to the same nonsense - although the Democrats are working hard to bring that about and it might work.

What else can they do? You can't blame a guy for trying.

Posted 8:56 AM by Robert

The best lack all conviction, ...?

James Lileks posts some interesting observations on Paul Wellstone and his aftermath. Not exactly "while the worst/ Are full of passionate intensity" of more than one political affiliation. And not exactly "a plague o' both your houses." But ....

Some quick polls have now been completed in Minnesota. This one shows Mondale up by 2% (well within the margin of error).

And doesn't a nasty, partisan act like the Wellstone family telling the Vice President not to come to the Senator's funeral rather expose the harsh partisan considerations surrounding the eulogies? It does not seem likely to help the Democrats maintain the delusional froth necessary to convice voters that they are not actually electing Mr. Mondale in a few days, but instead Paul Wellstone's doppelganger.

UPDATE: Perhaps somebody should bring this to the attention of the Wellstone family and remind them of what John Kennedy said of Richard Nixon: "No class."

Posted 8:57 PM by Robert

Does Jean Carnahan = Walter Mondale?

Some political pundits are suggesting that whichever person is selected by the Democrats to replace Paul Wellstone - a replacement now widely expected to be Walter Mondale - will benefit from a sympathy vote similar to the one that put Jean Carnahan in the Senate after her husband died in his plane accident.

I do not believe that is likely if the substitute is Walter Mondale. Mr. Mondale may be capable of winning, but he will have to run and win as Walter Mondale, not Paul Wellstones's doppleganger.

Jean Carnahan's name never appeared on the ballot - only her deceased husband's name appeared. She had no independent political identity. She was exactly her husband's wife. The then-governor of Missouri announced he would appoint her if her husband "won" the election, which caused the Democratic vote to rise, and the governor then made the appointment as he promised. In the most direct possible way, Jean Carnahan was utterly identified with her husband, and never ran as her own person. She was never a candidate in reality or emotional effect. Voters quite literally voted for her husband and his memory, since his was the name on the ballot.

In contrast, if Walter Mondale is selected to replace Paul Wellstone, a vote for Walter Mondale will be exactly that - a vote for Walter Mondale, a person whose name will appear on the ballot but who has not been active in Minnesota politics since he left it in 1976 to run as Jimmy Carter's Vice President.

It would be a stretch for many voters to think that they are somehow voting for Paul Wellstone or his memory when they are asked to pull a Mondale lever. In that sense, the Democrats may be losing the sympathy vote by selecting someone with a well-know political name.

It would be interesting to see a good poll.

Posted 9:01 PM by Robert

Walter Mondale Again?

The Democrats are reported to be gravitating to selecting Walter Mondale as the replacement for Paul Wellstone in the Minnesota Senate race.

It seems a curious choice.

In the 1984 Presidential election Mr. Mondale carried Minnesota against Ronald Reagan by a margin of only 49.7% to 49.5%, and lost in every other State - carrying only the District of Columbia in addition to his home State. Reagan lost Minnesota by less than 4,000 votes.

Since that performance, Mr. Mondale has not been active in politics in any major way, although under President Bill Clinton Mr. Mondale served as ambassador to Japan from 1993 until 1996. In 1997, President Clinton also named Mr. Mondale cochair (with former Senator Nancy Kassebaum) of a bipartisan group to study the issue of campaign-financing reform.

None of that suggests a powerhouse waiting to go back on line. And the 74 years old Mr. Mondale may understand that better than, say, Tom Daschle. The New York Times reports:

Mr. Mondale's friends said the Minnesota Democrat, who was Jimmy Carter's vice president, had not decided, and would wait until after the funeral or memorial services before doing so.

Posted 11:14 AM by Robert

UPDATE: A Sea-Change Signifying Nothing in November?

In a prior post concerning the upcoming elections, the Man Without Qualities has discussed why it is likely that the margins of error for the predictions of politicians, pollsters and pundits are probably a lot higher than in the past, and a lot higher than many of them are now acknowledging. Instead, many such people appear to be concluding that nothing much new is likely to happen.

There is a widely observed apparent sea-change in the American voting populace. I believe that sea-change's potential (but not certainty) to cause some major reallignments in November is most clearly indicated in the New York governor's race, in which the Democrat may even come in third (but, in any event, seems to be heading for a very poor second), and in an apparent unusual shortage of cash for Democrats nationally. However, I am far from calling the apparent sea-change as favoring Republicans or conservatives as such or across the board. Rather, the improvement of Senator Wellstone's standing following his vote against the Iraq war resolution and before his tragic death suggests that the shift may be more nuanced - perhaps favoring those who work from principles, in contrast to the Clinton style opportunists. The November results may provide the first hard information on the nature of this apparent shift in voter attitudes.

Some pollsters say that Republicans now seem to have a distinct edge in retaining control of the House, while control of the Senate is uncertain. However, many people have not made up their minds - and if there is going be be a big change on way or the other, I suspect it is those late-deciders who will make the difference:

"It's literally just about now that the 20 percent to 30 percent of the electorate ... are beginning to tune in for the first time," said Bill McInturff, a Republican pollster.

"The people don't move and focus until the last five days," agreed House Democratic leader Dick Gephardt, hoping economic issues will trigger a late surge that delivers congressional control to his party.

Posted 2:24 PM by Robert

Textual Bono

While the Man Without Qualities is not impressed with the economic arguments advanced by opponents of the Sonny Bono Copyright Term Extension Act (the so-called "Bono Act"), the textual - or more purely "legal" - arguments have substantially more force. The best presentation of those arguments I have seen is contained in an article by Robert Patrick Merges and Glenn Reynolds, which includes the following interesting argument:

[C]an't Congress just extend patents and copyrights by invoking the Commerce Clause...? Certainly some commentators have argued that, in the absence of the Copyright and Patent Clause, Congress would have the power to create a patent and copyright system under its authority to regulate commerce among the several states.

There is much to this position, but as a criticism of our approach it has one key failing. Instead of the absence of a copyright and patent clause, we have the presence of the Copyright and Patent Clause. That Clause is generally understood to serve as a limit on congressional power, not simply a grant thereof. To allow Congress to do things under its general commerce power that it is forbidden to do under its specifically applicable copyright and patent power would in essence read the Copyright and Patent Clause out of the Constitution. Such an approach could hardly be said to be faithful to the text of the Constitution or the intent of the Framers.

[O]ne could argue that Congress possesses the power to regulate intellectual property under the Commerce Clause. The Supreme Court rejected a similar argument made with regard to the bankruptcy power in Railway Labor Executives Association v. Gibbons. "[I]f," said the Court, "we were to hold that Congress had the power to enact nonuniform bankruptcy laws pursuant to the Commerce Clause, we would eradicate from the Constitution a limitation on the power of Congress to enact bankruptcy laws." "To hold otherwise," the Court continued, "would allow Congress to repeal the uniformity requirement from Art. I, § 8, cl. 4, of the Constitution." [FN76] The same argument should apply to efforts to override the restrictions imposed upon Congress by the Copyright and Patent Clause.

This is a clever argument, and it does not appear to misrepresent or twist the quoted Supreme Court language. However, it is almost certainly wrong.

For one thing, the Commerce Clause has its own limitations. It is a grant of power over "commerce" - but that grant is limited by the requirement that the 'commerce" regulated must be "among the several states." The Commerce Clause does not grant power to Congress to regulate intra-state commerce. Does that mean that Congress cannot pass a law using its Copyright Clause powers to the extent that law regulates intra-state commerce? After all, if Congress cannot evade the limitations on its powers contained in the Copyright Clause by legislating under the Commerce Clause, then it should also be true that Congress cannot evade the limitations on its powers contained in the Commerce Clause by legislating under the Copyright Clause.

Of course Congress can evade the limitations on its powers contained in the Commerce Clause by legislating under the Copyright Clause. Not even the nineteenth century Supreme Court would have imagined anything else.

Indeed, prior to the 1930's the Supreme Court excluded even such things as intra-state mining of ore from its definition of "commerce among the several states." Under the pre-1930's Supreme Court cases, making and publishing copies only within one state would probably not have constituted "commerce among the several states." But the Copyright Clause has always allowed Congress to regulate such intra-state and at-home copying. Simply put: Under the Supreme Court's pre-1930's construction of the Commerce Clause, the Copyright Clause authorized Congress to regulate very substantial activities which could not be regulated under the Commerce Clause.

Even today, the Lopez cases show that Congressional power under the Copyright Clause is not included in Congress' Commerce Clause power. In fact, under the Lopez cases merely making photocopies of copyrighted pictures in one's home is probably not "interstate commerce." But it could be regulated under the Copyright Clause.

And it will not do to argue that the Commerce Clause confers a "general power" but the Copyright Clause confers only a "specific power." The Commerce Clause creates no more of a "general power" than does the Copyright Clause, as expressly observed by the Chief Justice in the recent oral argument. The equality of these Clauses was more evident under the Supreme Court's pre-1930's precedent, but it is still true today. Moreover, if the Commerce Clause is such a "general grant" of Congressional power, then the Lopez line of cases is probably wrong, which makes it doubly odd that the anti-Bono forces rely so much on the analogy to Lopez.

For a truly "general grant," it's hard to beat the Article I grant of power to Congress "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States." The construction of the Copyright Clause advanced in the article discussed above seems to imply that Congress could not legislate an unlimited copyright law applicable only to the District of Columbia even if Congress wanted to do that - but Congress could allow each State to legislate unlimited copyright laws applicable only within that State. Does that make sense? Would such a subtle, implied restriction on Congressional power be likely to come from the same people who included the express grant to Congress of the right to exclusive Legislation in all Cases whatsoever over the district?

Professor Reynolds, reasonably, doesn't seem to agree.

In addition, one might consider the a peculiar consequence of the construction advanced by Professors Merges and Reynolds: Under their interpretation, Congress appears to be free under the Commerce Clause to create and regulate forms of intellectual property other than patents and copyrights, and those other forms of intellectual property need not be subject to the Copyright Clause constraints.

Congress has actually done this by creating indefinite federal trademark rights. While trademark rights are not included in copyrights, there can be no question that much of trademark law is regulation of the use of copies of the trademark. In other words, there is a lot of overlap between trademark rights and copyright.

The anti-Bono forces find it outrageious that Disney will be able to stop people from copying Mickey Mouse for another 20 years. Fine.

But then why can the same Disney stop people from using Mickey Mouse as a trademark forever?

Posted 11:05 AM by Robert

The Continuing Burden of FISA

In the aftermath of the arrest of Zacarias Moussaoui, there was widespread discussion and confusion about the role of the Foreign Intelligence Surveillance Act (FISA). Stuart Taylor does a fine job as a voice in the wilderness clearing up some of the confusion in his recent column. The column opens with:

I vote for dumbing down the rules. Or watering them down, if that might help our all-too-human FBI prevent mass murders. First we should water down the Foreign Intelligence Surveillance Act (FISA), which -- even as amended in the wake of 9/11 -- makes it harder than it should be to investigate suspected international terrorists such as Zacarias Moussaoui.

I completely agree. The whole column is well worth reading.

The problems with FISA have not been fixed, and those problems will lead to further massive American deaths and additional vast destruction.

Posted 10:43 AM by Robert

Two Men Arrested in Sniper Case

"We're positive it's these guys," the official told The Associated Press on condition of anonymity.

Posted 10:37 AM by Robert

UPDATE: Could They Have Saved Themselves The Trip?

An astute reader points out that The Man Without Qualities exhibits religious confusion with this post.

The New Testament mentions at least two persons named "James", probably at least three, and perhaps as many as eight. In particular, there were two Apostles named "James:"

The first Apostle James was the son of Zebedeethe, and that Apostle is called the Greater (or Major).

The second Apostle James was the son of Alphaeus, and that Apostle is called the Lesser (or Minor). James the Lesser appears on lists of the Twelve Apostles (usually in the ninth place), but is never mentioned otherwise.

Tradition has it that James the Greater made a missionary journey to Spain, and that after his death his body was taken to Spain and buried there at Compostela. It is the grave of James the Greater that the pilgrims in the Middle Ages visted.

The ossuary may have held the remains of yet a third "James": James the Just. By some traditions, James the Just may have been the same person as James the Lesser, but definitely was not James the Greater. So all those Compostela pilgrims were not trying to visit the grave of the same person whose bones may have been in the ossuary. What a relief!

James the Just is called "the brother of the Lord." He appears in Acts 12:17 and thereafter (A 15:13; 21:18; 1C 15:17; Ga 1:19; 2:9,12) as the leader of the Jerusalem congregation. He is counted by later Church historians as the first bishop of Jerusalem. According to the Jewish historian Josephus, James the Just was put to death by order of the high priest during an interval between Roman governors, over the protests of the Pharisees. James the Just is sometimes called "James of Jerusalem" or "James Protepiscopus" (first bishop) or even "James the Brother of God, Vesperal Divine".

James the Just was, according to some, a son of the same Joseph who was husband of the Virgin Mary. By that tradition the mother of James the Just was not the Virgin but a wife that Joseph had before he was betrothed to the Virgin Mary. This is how the tradition justifies calling James the Just "the brother of the Lord" (Matt. 13:55). This tradition leads to the conclusion that James the Just was not James the Lesser, since James the Lesser was the son of Alphaeus.

But another Christian tradition says that James the Just was a nephew of Joseph, and the son of Joseph's brother Cleopas, who was also called Alphaeus, and his wife, who was the first cousin of the Virgin Mary. But even according to this genealogy, James the Just is still called the Lord’s brother because of their kinship. This tradition seem to lead to the conclusion that James the Lesser was the same person as James the Just (and therefore possibly the person referenced on the ossuary). But this tradition also leads to the conclusion that the ossuary - which identifies its contents as the reamins of "James, the brother of Jesus" - was written according to a then new church tradition but contrary to biological genealogy, which to me, at least, would be a pretty strange thing to do.

FURTHER UPDATE: The Wall Street Journal has more.

Posted 10:27 PM by Robert

The Great Pyramid of Bono

The Great Pyramid of Cheops (Khufu) is thought to have been built between 2589 - 2566 BC, so it is now approaching 5,000 years of existence. To build it took over 2,300,000 blocks of stone with an average weight of 2.5 tons each. The total weight would have been 6,000,000 tons and a height of 482 feet (140m). It is the largest and the oldest of the Pyramids of Giza. Not much is known about Cheops (Khufu). He was buried alone in this massive tomb. His wives may have been buried nearby in smaller mastabas. The encasing marble which covered the outside of the pyramid has eroded or been removed over time. With this casing off, the pyramid lost 33 feet (11m) of all of its dimensions. The top platform is 10m square. The base of the pyramid is 754 feet and covers 13 acres. The original entrance to the pyramid was about 15m higher than the entrance that is used today.

And yet, thanks to Professor Lessig and the others challenging the Sonny Bono Copyright Term Extension Act (the so-called "Bono Act"), we now know that the pyramid's endurance for all this time was all a silly mistake, since Cheops' life plus only seventy years was already functionally equivalent to infinity. Cheops simply had no rational incentive to construct a tomb that lasted the extra four thousand plus years that the Great Pyramid has been around.

If only this terrible mistake hadn't been made, Cheops could have substituted something like mud or plaster of Paris for the more than 2,300,000 blocks of stone it took to build his tomb. After all, with the desert conditions obtaining where the Pyramid sits, such materials could probably have lasted seventy years. It could have been painted very nicely to resemble its original marble skin, which would have further prolonged its life at almost no extra cost! If only Cheops had had access to an MBA to fill him in on all this!

Of course, there is another possibility: maybe interest rates in ancient Egypt were very, very low.

And, to make matters worse, all those other Pharaohs also had the same wrong idea and built really elaborate tombs and temples that were clearly designed to last a lot longer than the funtional equivalent of infinity! And then the Romans seem to have got misled, too, since Emperor Hadrian, for example, built his tomb in the Second Century - and its still inefficiently around!

And, wouldn't you know it, pretty ordinary people started getting confused, too. Like poor old Marius Gratidus Libanus and his wife who lived in the First Century. Knowing the husband was very sick and terrified he was not long for this world, they commissioned a stone monument (Can you believe it? Stone!) in which the artist conveys the fraility of the man and his extreme anxiety as his worried young wife tries to comfort him. This monument is still around to charm and move us today. If only Marius had realized that seventy years following the end of his (or at least her) life was the functional equivalent of infinity. They could have had the monument made of clay - or at least cheap-and-easy-to-carve sandstone or pine, which could have been painted up and made to last for another seventy years (not that either of them rationally cared anyway, their being dead and all).

And, unless I'm mistaken, some of this kind of thing is still going on today. This is true even though the modern attitude is pretty well summed up by Woody Allen: "I don't want to achieve immortality through my work. I want to achieve it through not dying."

Posted 4:10 PM by Robert

A Sea-Change Signifying Nothing in November?

Peggy Noonan recently opined that "Even though everyone says Sept. 11 changed everything in America, I'm not sure we've fully noticed how much it's changed everything. And here's a paradox: All that change may well yield a kind of stasis, at least immediately, at least in the midterm elections." Ms Noonan may very well be right to see all changed, changed utterly, but passing in November as a terrible stillness.

Here I want to raise the possibility of another kind of change born of September 2001 - a sea-change in the American voter, and how that sea-change might induce a lot more change than Ms. Noonan and other pundits foresee:

Those are pearls that were his eyes:
Nothing of him that doth fade
But doth suffer a sea-change
Into something rich and strange.

Politicians, pundits such as Pete DuPont and pollsters are addressing the upcoming election as one held in ordinary times - with all efforts made, not to ignore the consequences of September 11, but to treat them as ordinary events to be analyzed and dealt with by ordinary means. For the most part such people can do nothing else - their skills and tools are derived from and dependent on past experience - mostly past, ordinary experience. But no matter how much we would prefer to act and believe otherwise, these are not ordinary times, nor this an ordinary election, nor are the consequences of September 11 ordinary in any sense.

Simply put: A necessary reliance on past voter trends and behavior make the predictions of politicians, pollsters and pundits - even those as astute as Ms. Noonan and Mr. DuPont - far more likely to be way off the mark in this election than is normally the case.

There are signs that the widely but vaguely perceived change in voter attitudes may have consequences in these elections that are not being clearly identified by ordinary methods. For example, politicians who have treated the current mix of national issues as a matter of principle, such as Senator Paul Wellstone may have benefited even while going against the public by voting against the Iraq war resolution. But politicians who have tried to treat that mix in ordinary Beltway fashion - most notably, Senator Daschle - have clearly suffered severely. In Senator Daschle's case, this seems to have shown itself in polling, but only indirectly - through a serious and probably fatal drop in South Dakota voter support for junior South Dakota Senator Johnson. Pollster John Zogby attempts to "explain" this effect by breathlessly suggesting we are seeing "A proxy race in South Dakota - Johnson (D) vs. Thune (R) really equals Daschle vs. Bush!" Mr. Zogby advances this view even as he also advances the view that "While some view the Florida Gubernatorial contest as a reprise of the 2000 Bush-Gore race (with Jeb Bush as a stand-in for his brother and Democrat Bill McBride as a replacement for Al Gore), in reality the race is a referendum on the incumbent." Left unexplained is the question of why the South Dakota race should become a "proxy" vote on President Bush, where the Florida race - in which the President is obviously much more closely identified with his own brother, the Governor, is "in reality ... a referendum on the incumbent." The obviously ad hoc nature of these views makes them almost a joke. Mr. Zogby detects some significant changes in voter attitudes, but he has no plausible model to explain those changes. And he far from alone among pollsters.

And even some polling seems to suggest major electoral effects. For example, if it is true that voter attitudes have changed profoundly, the advantage of incumbent office holders, who were selected in prior elections on the basis of prior voter attitudes, should weaken. And, indeed, some pollsters believe that "incumbents in trouble virtually everywhere." And it is at least possible that the huge jump in early voting in Democrat-heavy Texas counties represents an increase in Democrat participation rather than merely a shift in how people vote (as noted by Mickey Kaus), in which case the substantive change could be far from marginal.

An explanation as to why pollsters are likely to be having unusually large problems with this election probably starts with the related questions of poll sample selection ("built-in bias") and what John Zogby calls the polling industry’s "dirty little secret," ... the non-response rate. In the 1980s, about 35 percent of those called refused to answer. By 1999, the non-response rate was as high as 65 percent. That these factors may more profoundly skew polling results in this election than in the past has been noted by commentators on both the left and the right, although they draw different conclusions. For example, the conservative commentator linked above invokes both factors in noting that some polling practices may skew results against conservatives: Polling over the weekend tends to favor Democrats...[C]itizens who are married with children are 2-to-1 more likely to be Republican. These individuals are too busy on weekends to talk to a pollster for 20 minutes. However, the linked liberal commentator writes:

An analysis of the 2000 results shows that a couple of polling outfits that present their findings on the internet and mainstream as non-partisan, are obviously biased, and that their polls for 2002 and 2004 should be questioned. Other mainstream media polls in 2000 were not too wrong, especially if you look at only their final numbers, but taking a look at their cumulative findings, a bias emerges. Overall, the bias in the polls is built into the data, in the sense that they enable the myth that the US voter is turning more conservative, when the facts clearly show the opposite. That the Bush team is chasing a shrinking, over-weighted in the polls, conservative minority is not the news you'll be likely to hear from the media going into 2004, but it's true. .... [T]he problem of almost all of the national polling outfits [is], "Simply put, we had too many Republicans in our sample." ... Yes, contrary to the facts, the media does project that Republicans and Democrats are equal --another faulty trend assumption-- even though the 2000 results showed a 3% difference still exists. The root of the problem is that the polls continue to posit an extra 3% conservative Republican bias.

The other related problem, or what pollster John Zogby calls the polling industry’s "dirty little secret" is the non-response rate. In the 1980s, about 35 percent of those called refused to answer. By 1999, the non-response rate was as high as 65 percent (Consumers’ Research, September 2000). Who might not be responding? Probably latinos and african-americans, progressives, libertarians.... Who is more apt to respond? Social conservatives that want their views known, and want their views to influence society.

Pollsters "correct" for these and other skewing factors, generally using methods not revealed to the public. Ordinarily such "corrections" are pretty good. But such "corrections" depend on using devices derived from past voter behavior to first modify the methodology used to obtain raw polling data, and then sometimes modifying the raw data itself to obtain the final result. But if there has been a profound change in voter attitudes, it seems likely that using "correction" devices based on past voter behavior is simply more likely to create of enlarge errors than in prior elections. For example, the liberal commentator linked above criticizes the Portrait of America poll's supposed built-in bias towards conservatives and notes how other national polls follow a different (but still flawed, in the view of that commentator) methodology:

POA did not weight by party, but by political leanings (conservative, moderate, liberal), and accepted up to 40% conservative as a valid representative sample of data. "For a variety of reasons, our firm has never weighted by party. If they had weighted the data before the election to include an equal number of Republicans and Democrats," their results would have shown Bush up by 2%, which just about what the average of the nationally accepted polls wrongly projected. So, strip the poll of its conservative leaning, and it still sits with a Republican leaning result, just like the national polls. Yes, contrary to the facts, the media does project that Republicans and Democrats are equal --another faulty trend assumption-- even though the 2000 results showed a 3% difference still exists.

But looking at what seems to be happening in South Dakota, for example, how confident does one feel about castigating that 3%?

Another pollster (cited by the conservative commentator linked above) believes that averaging between registration and turnout in the last presidential election, rather than relying on the respondent’s self-description—is more accurate than polling "registered voters" or "adults." But does the World Trade Center now being a large hole in lower Manhattan and the nation preparing to go to war in the Middle East cause one to have more or less confidence in the significance of "averaging between registration and turnout in the last presidential election" in determining likely turnout?

I am not suggesting that current poll results must be wrong, or, if there are bigger errors here than usual, that those errors must favor one party or the other (consider Senator Wellstone, for example). But I do think that the pollsters' ability to correct reliably for many polling problems has been weakened by a profound change in voter attitudes - a change whose profundity, if not its likely effects, seems to be widely observed by many pundits.

But, while pundits such as Ms. Noonan and Pete DuPont do agree on the existence of the change in voter attitude, they can't seem to identify practical consequences, and I am concerned that their tentative conclusion that these elections will yield little change is more a reflection that their approaches - which are based on past, ordinary experience - are simply coming up short. Similarly, Walter Shapiro writes that "after traveling around the country, a political reporter comes home with a fuzzy impression of the national mood," and notes that with "so little movement visible on the political battlefield, this campaign reporter worries that he's missing something big. It's almost like an old war movie where the veteran sergeant says, ''It's quiet out there . . . too quiet.'' He goes on to observes:"With so much at stake, it is hard to find a candidate talking in standard English instead of using buzzwords tested in focus groups." Other thoughtful pundits sense that America today is "more serious" and that the events of September 11 have helped to check some serious national "illusions." If any of that is true, it should have a serious effect on the elections.

But those may not be effects that the ordinary machinery is designed to detect in advance.

Posted 9:53 AM by Robert

Another Hidden Cost of Welfare?

Or, more specifically, of one-parent families?

A report today is of another case of a mother apparently murdering her two daughters by drowning them and taking her own life with a gun. The killings were discovered by the woman's 8-year-old son when he came home from school.

There is no mention of a father or husband or other adult on the premises. But neither does the article actually say that the now-deceased mother was a single parent. But that is not critical to the point I want to raise here.

Isn't it reasonable to ask seriously whether a single parent, especially one rearing several children in reduced economic circumstances, is much more likely to abuse them physically - or worse - than those in a two parent household? How common is serious single parent - especially single mother - abuse of children? Violence against women in the family gets a lot of play, but there seems to be a common and curious reluctance to focus on maternal violence against their own children. For example, the Medical College of Wisconsin "Family Violence Fact Sheet" takes great pains to stress how women are victimized by family violence, and explores in detail various aspects of male perpetrated family violence - but the "Fact Sheet" includes no mention of maternal violence rates. (The "Fact Sheet" also includes "control of money, transportation, activities and social contacts" as types of "family violence." Is parental refusal to allow children to visit with "bad influences" now to be considered "family violence," as many now consider once-normal spanking?)

Official statistics indicate that women commit the great majority of crimes against children. But it is my impression that one of the lingering biases in the United States today is common refusal to acknowledge maternal child abuse, including by police. My guess is that existing statistics are probably seriously biased towards under reporting of maternal child abuse: 61.8 percent were female and 38.2 percent were male - although some studies suggest that 80% of child battery is committed by women. Almost all female child batterers seem to be the actual birth mothers of the child. But even these statistics may be highly skewed against reporting materal violence. For example, there is this report from Canada:

Physical assaults on children outnumber sexual assaults more than two-to-one (Statistics Canada, 2000). However, despite mandatory reporting laws across the country which require any individual who becomes aware of abuse or neglect of a child to report such cases to the appropriate authorities, it is likely that upwards of 90% of cases never reach the child welfare system. Nevertheless, reported cases of assault of children still represented 20% of all physical assaults reported to police during 1999. Family members were the suspected perpetrators in 22% of these instances. Parents were responsible for child assault in 66% of these reported instances, with fathers as the accused parent in 71% of cases.

Child murders are somewhat more difficult to conceal or ignore than child battery. One report claims:

A hospital in Great Britain installed hidden cameras to survey children who they feared to be at risk of abuse by their parents. They found dozens of cases and made headlines about abuse by « parents » and « step-parents ». ... What all the commentators carefully hid was who these « parents » were: there was one grandmother, one father... and thirty-seven mothers. Judging from the references to « step-parents », I suspect that the man wasn't really a father either. .... Every case involved previous children who had died in mysterious circumstances. To be more precise, 37 killer moms murdered 40 children. Total jail sentences imposed: 0, even though some of the women confessed when confronted afterwards. About 1300 child murders took place in the US last year. About 500 perpetrators were non-parents, roughly divided between men and women. Of the rest, only 30 (!) were fathers. In other words, mothers were more than 25 times more likely to kill their progeny than fathers. Yet somehow, men are viewed as being more dangerous to their children than women.

But others argue that men, not women, commit most family child murders:

There certainly are suggestions that the problem is much more widespread than is commonly - and disturbingly - reported. For example, this article reports:

"It's very rare for females to shoot themselves in this manner," Livingston County Undersheriff Robert Bezotte said.

The fate of the children apparently didn't warrant a comparable observation from Undersheriff Bezotte. It's an anecdote, of course.

Posted 6:53 PM by Robert

Crystal Gazing

In general, Larry Sabato seems to be saying that things are slipping for Republicans - especially in the Senate races.

And some other polls seem to be saying the same thing.

Posted 5:33 PM by Robert

Could They Have Saved Themselves The Trip?

In the Middle Ages, Santiago de Compostela, in northern Spain, was a high holy city along with Jerusalem and Rome, and an important center of religious pilgrimage. During those centuries, almost half a million people a year came to view what they believed to be the grave of James the Apostle

But an empty ossuary (a limestone burial box for bones) recently discovered in Israel and dating to the first century bears an inscription in the Aramaic language: "James, son of Joseph, brother of Jesus." Andre Lemaire, a specialist in ancient inscriptions at France's Practical School of Higher Studies, said it's "very probable" the writing refers to Jesus of Nazareth. He dates the ossuary to A.D. 63, just three decades after the crucifixion.

But, then, the recently discovered box is empty.

Posted 5:02 PM by Robert

Just a Bit More Bono

Turning again perhaps for the last time to the economic arguments (as distinguished from the textual and more purely legal arguments) against the Bono Act, the Man Without Qualities is struck by the failure of the Act's opponents to come to grips with similar statutes, expecially the body of federal communications law.

The right to transmit electromagnetic signals on a given band of "spectrum" at one time lay entirely in the common domain. Then, in the early part of the 20th Century, governments - notably the United States federal government acting under the Commerce Clause - created a set of exclusive spectrum rights. Spectrum rights have much in common with copyrights. The rights to use a particular piece of spectrum is actually a local monopoly to engage in a particular activity. As the copyright monopoly prohibits anyone but the holder of the right from copying the designated "work," the spectrum rights monopoly similarly prohibits all but the holder of that right from transmitting on the designated frequencies. Both kinds of rights are non-possessory, in the sense that although termed "property rights," there is no natural form of "possession" comparable to possession of real property or tangible personalty. Of course, spectrum rights differ from copyrights in the sense that two people cannot use a single frequency in the same locale at the same time - and in this sense, the broadcaster with the most powerful transmitter might be said to "possess" the designated naturally. But federal law has never assigned any particular significance to this kind of "natural possession." Indeed, although spectrum rights more closely resemble traditional property rights in this way than do copyrights, federal communications law is much more explicitly set up as a regulatory and licensing system for broadcaster behavior than is the copyright law.

And while many economists have many things to say about the economics of spectrum rights and how those rtights should be regulated, there is to the knowledge of the Man Without Qualities no significant economic theory that advocates the economic benefits of terminating such rights automatically after a set number of years. This is particularly striking because the Federal Communications Commission at least theoretically retains vast and technical power to terminate a licensee's rights to use designated spectrum.

So if the economy would benefit from the automatic termination of copyrights in, say, Cole Porter songs written in the 1930's, why wouldn't the economy benefit from the equally automatic termination of the spectrum rights of the broadcasters such as NBC that broadcast those songs right after they were written?

On another note: The transcript of the Supreme Court oral argument is now available. Perhaps I am mistaken, but I do not detect a great deal of sympathy for Professor Lessig's approach in any of the Justices' questioning or comments. Although Justice Scalia does seem a skeptical of at least one argument advanced by Solicitor General Olson.

Posted 12:17 PM by Robert

California's First Undead Governor?

The Man Without Qualities has long believed that the media is unduly harsh on Bill Simon and his prospects for becoming California governor.

More recently, though, Simon's gaffes have seemed more nearly fatal.

But although Simon's error was very serious, it is worth recalling that most voters will not cast their vote for a governor on the basis of his ability to identify public offices in the background of photographs, or even to choose aides who can do that. And one should also keep in mind that Mr. Simon trailed badly in the polls until just shortly before he clobbered Richard Riordan in the Republican primary. And one should acknowledge that Mr. Davis has deep substantive problems, both with his ethics and in how he has performed as governor, which go far beyond Mr. Simon's gaffes.

In short, if California's election of its governor were decided on substance, Bill Simon would win. Gray Davis' performance in the polls and with the media is a triumph of form over substance.

So it is not ultimately surprising that at least some polls now show that Simon is close - possibly in the lead.

Perhaps more important, Davis has not yet passed the 50% mark in these polls. At this time in a campaign, many professional political consultants will say that an incumbent such as Davis who has not passed the 50% mark in the polls is probably going to lose:

When an incumbent seeks re-election, the key question is whether his vote polls over or under 50 percent. If more than half the voters are backing his opponent or are undecided, he's in trouble. It's like asking someone if they will be married to the same person next year: An answer of "undecided" isn't exactly encouraging.

So Simon's showing in these polls that show him close are not the most important thing. If these polls are even with 10 % of accuracy, Davis is probably toast because of his failure to pass that 50% mark.

But I'm not taking any bets.

UPDATE: Unexpected support for the possibility of a Simon win comes from The Note: "[W]e still wouldn't be shocked if Simon won this thing."

My feelings exactly!

FURTHER UPDATE: A new poll says just 41% of Californians plan to vote for Davis - far short of the classically "needed" 50%. Chapter I of the professional political consultant's textbook says Davis is in deep trouble. Mickey Kaus asks the same question.

Posted 5:37 PM by Robert

Mind If I Change the Subject?

Keeping in mind that keeping a topic off the front pages is not the same as keeping it out of the mind of voters, it is still worth noting just how hard it is for Democrats to change the topic of the campaign when things like Mr. Tenet telling us we're all just as likely to be murdered now by al Qaida as on September 10 keep popping onto those front pages. Surely the hijinks at the United Nations will alone be good for a few more pre-election days of news dominance. And there's lots more after that.

And while the economy is not booming, it is by no means clear that changing the topic to that topic would be a complete and unalloyed gain for the Democrats, even if they could do it - since the stock market and corporate profits seem to be doing better recently, the unemployment rate is not bad, either, the Democrats don't seem to have a real alternative plan, they've controlled half of the Congress for the last two years so share in the responsibility for the current state of the economy, and much of the current sluggishness can be traced to policies of the Clinton Administrations. Corporate governance has turned out to be a bust for the Democrats, and there don't seem to be signs that the usual demagoguery on Social Security, prescription drugs, race or class-envy is getting a lot of traction. House Minority leader Dick Gephardt just proposed increasing the federal budget deficit by over $200 Billion - including at least $75 Billion in his own kind of tax cuts. What does that say about the Democrats being able to make a big issue over the deficit if they had the chance to talk about it in the first place? And Israeli intelligence sources may be making it harder for the Democrats to argue that Mr. Bush has failed to kill Osama bin Laden. A delicate detail.

Sometimes the best thing one can say is "me, too" - and hope for the best. In this case, the "best" may be the tendency of The Party In The White House to lose some seats in mid-term elections. That considerable force just might be the Democrats' last, best hope this time around.

Posted 3:27 PM by Robert

Chafeeklatsch, Mr. Rove?

Lincoln Chaffee tells Novak that the Senator is highly unlikely to leave the Republican Party, where he feels "not uncomfortable."

And Senator Chaffee tells Roll Call that while he is not determined to be a Republican for his whole career:

"It would take an enormous situation for me to leave the Republican Party, where the issues that I care so deeply about were so jeopardized ... I just can't see that happening."

It all makes one wonder if someone from the White House has been having a little kaffe und kuchen with the good Senator recently. I hope so.

Posted 11:42 PM by Robert

Osama's Health and the Election

There are reports that "Israeli Intelligence sources" are saying that Osama bin Laden is dead "but his colleagues have decided that Al Qaida and its insurgency campaign against the United States will continue."

This report, if true, appears to deprive Democrats of yet another campaign argument: That the Administration is failing in the war on terrorism because bin Laden has not been personally captured or killed. If Israeli intelligence is the source of this report, it is generous of them towards the Republicans. Things seem to be warming up between Israel and the current administration generally, since President Bush is telling the media that Israel would be right to respond militarily if Israel is attacked by Iraq - which is quite different from his father's approach in the Gulf War. Israel has long made clear its obviously genuine support for an Iraq invasion, even as opponents of that invasion have sought to use Iraq's possible retaliation against Israel against the President's plans.

The issue of bin Laden's personal fate seems to be - and seems to be taken by many Democrat politicians as being - politically important. For over a year, a large number of Americans have viewed bin Laden's fate as an important factor in determining whether the "War on Terrorism" is being won. Already in January of this year, a CBS poll reported:

Despite strong public support for the war, most Americans do not think the United States can claim victory in Afghanistan unless Osama bin Laden, the man believed to have planned the September 11th attacks, is captured or killed. Now, 56% of Americans feel the war in Afghanistan will NOT be won unless bin Laden is captured, while 29% feel the war can be considered won regardless of whether Osama bin Laden is caught or not.

Apparently bin Laden being "caught" and his being "killed" are sufficiently similar for the purposes of this article that the CBS reporter slides from one to the other without comment. There have been some curious patterns in the public's reaction, as the same poll reported:

More women (61%) than men (51%) believe it is necessary for bin Laden to be captured in order for the U.S. to claim victory in Afghanistan. Also, Democrats more than Republicans feel the capture of bin Laden is crucial. Two-thirds of Democrats think if bin Laden is not captured or killed, the war will not have been won, compared to 48% of Republicans who feel the same way.

In February, Senate Majority Leader Tom Daschle said that the United States will have failed in the war on terrorism unless it "finds" (presumably including "kills") Osama bin Laden. Continuing in March. And he has not stopped.

More recently, Florida Democrat Senator Bob Graham, head of the Senate Intelligence Committee who has assumed a significant role opposing the President's Iraq plan, is convinced that bin Laden is still alive. Senator Graham voted against the resolution authorizing an attack on Iraq in part because Osama bin Laden remains on the loose, he has said. Indeed, the argument that capturing or killing bin Laden should take priority over and precede any action against Iraq was used by many, especially Democrats and Democrat aligned commentators, who opposed the Iraq resolution.

And, of course, the Democrat reliance on this theme fades to the ridiculous with Missouri Senator Jean Carnahan's comment: "I'm the No. 1 target of the White House. ... They can't get Osama bin Laden. They're going to get me."

Well, if Senator Carnahan and Israeli intelligence are both right, then it looks like Senator Carnahan can relax. However, since she is an incumbent trailing by 41% to 47% in the polls, it looks like either she or Israeli intelligence is probably wrong.

More generally, if Israeli intelligence is the source of the reports and they are correct, it looks like the Democrats have at least one more problem and one fewer argument.

And, if Israeli intelligence is the source of the reports and they are not correct or adequately supported and the sources know it, their gesture is perhaps even more generous to the Republicans than it would have been if they were just reporting the facts.