Man Without Qualities


Saturday, November 02, 2002


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

Today's report by Matt Drudge seems to confirm that the margin for error in national polling is probably much bigger than such margins normally are.

Drudge is reporting that the NYTCBS Poll to be released tomorrow will show that 47% of likely voters will vote Republican in the next week's election; and 40% of such voters will vote Democratic. This serious tilt to the Republicans is consistent with the same poll reportedly finding that 34% of likely voters (at least, I think his squb is still refering to "likely voters) said Democrats presented a "clear plan for country", where about 40% said same thing about Republicans. [UPDATE: OOPS! Drudge has removed his report about tomorrow's NYTCBS Poll. What does that mean?]

On the other hand, Drudge also notes that the Zogby Final is predicting that likely voters favor Democrats in the Congressional races by 51% to 49%. The Zogby Poll otherwise confirms with various ancillary findings its suggestion that neither party is favored.

Of course, the details of the NYTCBS Poll released tomorrow may show that poll is more consistentwith the Zogby results than seems possible at this point. at least technically.

But as to the general impression these polls suggest, the nation's likely voters cannot both be spitting equally between the parties with a slight Democrat tilt and be rather strongly favoring the Republicans. There are probably some big errors in there.

UPDATE: CBS and the New York Times have each now posted their vewrsion of the poll.

The New York Times has recently acquired a justified reputation for grossly misinterpreting its own polling data. One wonders why the Times bothers to pay for the polls if they have such a determination to misrepresent the results. The spin on the current poll is no major exception, but I'll leave it to others to unpack the details of how the Times' story twists polling results which are consistently negative for Democrats to fit a predetermined "plague on both their houses" theme apparently invented in the Times newsroom.

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Friday, November 01, 2002


Political Science Exercise

Compare:

Some counties, such as Ramsey and Hennepin, have been mailing new absentee ballots all week. Others had refused, citing a state law that explicitly prohibits officials from mailing replacement ballots. That law makes no sense, argued all three parties in the case — Attorney General Mike Hatch, DFL counsel Alan Weinblatt, and GOP counsel Tony Trimble.

And contrast:

"It clearly opens up the potential for chaos and craziness,"said David Schultz, a professor at Hamline University in St. Paul, who has tossed out the syllabus for an election-law course he is teaching this semester, just as he did in the never-ending presidential contest in 2000. "I see a lot of potential for Bush vs. Gore in Florida reappearing in Minnesota."

I wonder why not one of the parties to the case before the Minnesota Supreme Court - Attorney General Mike Hatch, DFL counsel Alan Weinblatt, and GOP counsel Tony Trimble - thought the Minnesota legislature might have included the law that "makes no sense" to avoid some of that "potential for chaos and craziness." And not a single judge on the Minnesota Supreme Court seems to have been able to figure that out, either.

Are "chaos" and "craziness" words one likes to see associated with elections - especially an election of a United States Senator?

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Lies, Damned Lies and Campaign Chairmen Regrets?

"It was not our intent to inject that [partisan tone] into the service. I take responsibility for that and I deeply regret it."

- Paul Wellstone campaign chairman Jeff Blodgett


Political operatives at the Democratic National Committee in Washington developed the plan to turn the memorial service for Minnesota Senator Paul Wellstone into a political rally, top party sources tell Capitol Hill Blue. The party also urged the Wellstone family to ask Vice President Dick Cheney to not attend the service and concocted the excuse that security for the VP would disrupt the event even though Secret Service security was required for former president Bill Clinton, who was invited and who did attend. .... Jeff Blodgett's apology Wednesday afternoon was also part of the plan, designed to provide party deniability, the sources said.

- Capitol Hill Blue

UPDATE: Bill Quick brilliantly shows Mr. McAuliffe how to regret.
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How Not To Read A Judge

The morning edition of today's Los Angeles Times included a sentiment widely appearing in American media:

U.S. District Judge Colleen Kollar-Kotelly in Washington will make her ruling after the U.S. stock markets close, probably in both the federal government's lawsuit and in the parallel case brought by California, Iowa and seven other states that believe the proposed federal settlement is weak. Many legal experts predicted Thursday that Kollar-Kotelly would try to incorporate some of the states' requested remedies in the federal deal, making the year-old settlement at least a little tougher on the world's most valuable company. They cited the long time that Kollar-Kotelly has been working on the ruling and her request at the trial's end that the states rank their proposals by importance.

It turned out to be a case study in how to misread a judge's acts and statements.

In fact, the actual decision of Judge Kollar-Kotelly did exactly what such supposed "legal experts" had said she would not do: essentially confirm the federal settlement. As the New York Times described the actual decision:

But the judge who issued the ruling today, Colleen Kollar-Kotelly of the Federal District Court here, rejected the position of the dissident states. "The court is satisfied that the parties have reached a settlement which comports with the public interest," she wrote in the long-awaited ruling, which was handed down late this afternoon, after the close of the stock market.

What went wrong?

Well, for one thing, the supposed "legal experts" consulted by the Los Angeles Times who "cited the long time that Kollar-Kotelly has been working on the ruling and her request at the trial's end that the states rank their proposals by importance" just do not know what consitutes a significant signal on a judge's part.

Simply put: Every judge wants the parties and the public to understand that the judge has taken the time to consider complex issues, especially the ones thought most important by the parties. Further, every good judge (and nobody questions that Judge Kollar-Kotelly is one of those) in fact wants to take the time needed to consider complex issues, especially the ones thought most important by the parties. Can anyone think of a case posing more complex issues that this one?

Judge Kollar-Kotelly's request that the states rank their proposals by importance should have been read as nothing more than the judge wanting to know - and wanting the parties and public to know she knows - which issues the states thought were the most important. The amount of time she spent on this decision showed nothing more than required diligence on her part. No reasonable person should have though significantly less time was enough.

But then, "legal experts" who talk to newspapers often aren't reasonable people.


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Absentee Election

Absentee ballots really do seem to be a significant problem for Mr. Mondale's effort to return to the Senate.

The Associated Press reports: Almost 4.5 percent of Minnesotans voting cast absentee ballots in 1998, the last non-presidential election year. Officials expect absentee voters to account for 5 to 8 percent ballots cast in Minnesota this year.

The Pioneer Press says that roughly 104,000 Minnesotans are expected to cast absentee ballots this election. Absentee Wellstone votes will not count but absentee Coleman votes will count.

Although the Minnesota Supreme Court ordered all 87 counties to provide a new ballot to any absentee voter who wants one, the order fell far short of what the Democrats had requested. Despite the ruling, thousands of Wellstone votes are still likely to be cast because many absentee voters will not have time to revote before Tuesday's election. Indeed, it is hard to imagine how soldiers overseas will even receive the ballots before election day. Wellstone votes will be tallied but will not count toward the total of Walter Mondale, who is Wellstone's replacement on the ballot.

The most favorable poll I know of for Mr. Mondale is this Minnesota Poll - taken at the top of the positive media buzz in the aftermath of Paul Wellstone's tragic death and before the controversial Wellstone "Memorial" - which shows Mr. Mondale up by 8% over Mr. Coleman. MrMondale has many vulnerabilities - some of his own recent creation - so even that lead may well come down.

While it is not possible to know exactly how many votes the absentee ballot mess will cost Mr. Mondale, it is clear that the numbers of absentee votes is very much of the order of Mr. Mondale's supposed "lead" in the polls. In other words, the absentee ballot effect has the very real possibility of costing Mr. Mondale the election even if he is favored by a majority of Minnesota voters on election day.

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Thursday, October 31, 2002


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!
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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.

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Wednesday, October 30, 2002


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.

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Hey! That New York Drought...

... is over!
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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.
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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.
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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.
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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.
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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.
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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.

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Tuesday, October 29, 2002


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.
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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?



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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]
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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.
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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.
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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."

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Sunday, October 27, 2002


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.

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