Posted 9:09 AM by Robert

Going Off The Grid With The Ninth Circuit

"Grid computing" - roughly, the harnessing of the collective processing power of many computers in different places - has been around for a while and is now anything but exotic. The idea was specifically and intentionally created in the 1990's to be analogous to an electric power network (grid) where power generators are distributed, but the users are able to access electric power without bothering about the source of energy and its location. Instead of maintaining a supercomputer (or nuclear power generator) in one's basement, one can obtain one's computing or electric power from the "grid." Of course, there are various concepts for working computers together, including "clusters," which some experts distinguish from grids:

The key distinction between clusters and grids is mainly lie in the way resources are managed. In case of clusters, the resource allocation is performed by a centralized resource manager and all nodes cooperatively work together as a single unified resource. In case of Grids, each node has its own resource manager and don't aim for providing a single system view.

The exact definition of a computing "grid" has given rise to some marketing issues (discussed here), but the by now well-established use of computer grids makes perfectly clear that the existence of a centralized server is not a central or key element in modern information processing. Grid computing has come into its own since the 1990's, and that obviously requires some fairly straightforward adjustments in applications of legal precedents dating from the 1980's and before. As the saying goes, none of this is rocket science.

So why can't the United States Court of Appeals for the Ninth Circuit - which includes California and Washington State, and many of the software and technology heavy regions of the country - figure any of this out? The situation is made all the more embarrassing for the Ninth Circuit by the fact that it was another Ninth Circuit panel that correctly demolished Napster.
But that court's opinion in MGM v. Grokster reflects an appalling fixation of the importance of centralized servers and other centralized features in applying the Supreme Court's 1984 Sony-Betamax decision, the high court's last major decision regarding the scope if copyright protection in connection with electronic copying technology. The New York Times correctly summarizes the Ninth Circuit reasoning:

The Ninth Circuit had found Napster liable because the company itself maintained and controlled the servers that searched for the digital files its users wanted to download. Grokster and StreamCast, by contrast, operate decentralized systems that allow users to find each other over the Internet and then exchange files directly. Consequently, the appeals court said, the two services did not exercise the kind of control that could lead to legal liability for infringing uses.

Common sense is about 80% of what it takes to be a good judge. The Grockster-like software would, in fact, economically gut many copyrights through infringement and is, in fact, generally believed in the recording and entertainment businesses to be doing just that. The Ninth Circuit says that gutting is OK. But copyright law is intended by Congress exactly for the purpose of keeping that kind of gutting from happening. Common sense is not always the law, but common sense should tell any good judge that in such circumstances Grockster et al must lose unless there is a huge, weird, unintentional and unavoidable hole in the copyright statute. But there isn't. The only huge, weird hole in the copyright statute is the one that would be created by the Ninth Circuit in MGM v. Grockster, one which the Supreme Court must now fix. And, sure enough, the Supreme Court has now positioned itself to clean up yet another witless Ninth Circuit embarrassment.

Sony-Betamax can be sensibly construed to have held that home video machines do not violate the copyright laws because they are intended mostly to be used for purposes that clearly do not infringe and do not, in fact, have infringement as a major effect. ("A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work.")
The file-sharing software provided by Grockster and the like is nothing more - and was specifically intended by their creators to be nothing more - than a decentralized, grid computing version of the old, discredited Napster scam.

So don't be surprised if the Supreme Court fix takes the form of yet another dismissive, unanimous, per curium reversal of the Ninth Circuit by a high court that can barely conceal its contempt.

Posted 2:34 PM by Robert

War Of Religions

As noted in prior posts, the present state of medical research refutes any belief that Freudian psychoanalysis is "scientific" in any acceptable modern sense. In fact, the materials documenting the lack of psychoanalytic efficacy are extensive and persuasive. The field itself harbors a truly disturbing focus on its founder, Freud, bearing a strong similarity to the focus of a religious cult on its main prophet. In this sense, psychoanalysis is at a distinct disadvantage to chiropractory. Indeed, the evidence of psychoanalytic therapeutic value seems to be somewhat less persuasive than the evidence of the therapeutic value of traditional prayer. Psychoanalysis is, in short, a kind of religious cult - and will remain a cult unless and until scientific evidence is amassed demonstrating its predictive and therapeutic value - and we are very, very far from having such evidence.

Given the religious cult status of psychoanalysis, it is hardly surprising that adherents to its dogmas find themselves increasingly at war with adherents of other, older religious traditions, as described in this interesting article from the University of Chicago Magazine concerning the escalating clash of psychoanalysis and Hinduism:

Rajiv Malhotra, an entrepreneur and activist living in New Jersey. Malhotra, who studied physics at India’s St. Stephens College and computer science at Syracuse University, now works full time at the Infinity Foundation, a nonprofit he founded in 1995 to “upgrade the quality of understanding of Indian civilization in the American media and educational system, as well as among the English language educated Indian elite.”

.... His ... essay, published on the Indian community Web site Sulekha.com, has become a pivotal treatise in a recent rift between some Western Hinduism scholars ... and some conservative Hindus... Since G. M. Carstairs’s 1958 book The Twice-Born (Hogarth Press) scholars have noted Freudian themes in old Indian texts and stories, arguing, for example, that the god Ganesha can be read as having an Oedipus complex. ... In two years Malhotra’s essay received more than 22,000 hits and generated 445 comments (several by Malhotra himself) and two response essays. ... The adamant, at times violent responses parallel a political movement in India, where conservative Hindu nationalists have gained power since the early 1990s. ... [I]n “Wendy”s Child Syndrome” Malhotra condemns “the eroticisation of Hinduism by Wendy Doniger, who is un-doubtedly the most powerful person in academic Hinduism Studies today,” and “her large cult of students, who glorify her in exchange for her mentorship.” ... “Under Western control,” he argues, “Hinduism studies has produced ridiculous caricatures that could easily be turned into a Bollywood movie or a TV serial.” ....

ALTHOUGH ACADEMICS FREQUENTLY INTERPRET religions through a sexual lens (see, for example, Theodore W. Jennings Jr.’s The Man Jesus Loved: Homoerotic Narratives from the New Testament [Pilgrim Press, 2003]), for some Hindus such scholarship has hit a sensitive chord. Online writers complain that psychoanalysis has been discredited in psychology, and applying it implies that Hindus are “sick.” But “historians of religion are not doing therapy; they’re interpreting texts,” Kripal argues. “A model can be accurate and therapeutically unhelpful” (though for him personally, he says, psychoanalysis has been an effective therapy). “People use psychoanalysis or Foucault because it’s the most sophisticated language we have in the West to talk about the questions we have.” In Kali’s Child, he says, he doesn’t apply a strict Freudian analysis but also interprets Ramakrishna’s story through the Hindu tantric tradition. “Both are languages,” he says, “that turn to sexuality as the key to human religious experience.”

But in what sense is it correct to assert that "a model can be accurate and therapeutically unhelpful?" This can be true if one takes "accurate" in a religious sense - religious truths are often presupposed to be beyond scientific verification. But in a modern scientific sense, a model is "accurate" only to the extent it has predictive (that is, "therapeutic") value; otherwise it is mere speculation. And not applying such a model "strictly" or applying it in conjunction with another, traditonal, religious approach hardly renders the analytic effort scientific.

The current highly problematic status of that portion of string theory that goes beyond previous theories, for example, is instructive (discussed in this New York Times article). String theory at least predicts what its antecedent theories predicted - and to that extent is "scientific." That much cannot be said of psychoanalysis or Hinduism. But, as the linked Times article discusses, verifying that string theory adds anything to what came before is much tougher - and it, too, has been labled a "colossal failure" despite its huge ambitions. But if string theory cannot be demonstrated scientifically (that is' "therapeuticlly"), there is little doubt that physicists will not be cheeky enough to argue that it retains value because "a model can be accurate and therapeutically unhelpful."

The escalating wars between the Hindu and psychoanalytic religious traditions are instructive to a non-Hindu because one normally sees the pseudo-scientific psychoanalytic model juxtaposed against the Judeo-Christian model, a confrontation in which most Westerners have a considerable personal investment that can make objectivity much harder to obtain or maintain.

Posted 6:20 PM by Robert

Will Mohammed Go To The Seven Storey Mountain, As Promised?

In an interview just before the election, asked what he would do if George W. Bush won another term, George Soros lamented: "I shall go into some kind of monastery."

OK, brave words. But did Soros "go private" yet as he promised he would? Of course, I assume he'll choose a place famous for its fruitcakes! Perhaps one that honors a vow of silence (we should be so lucky)? But just how does he plan to handle that "vow of poverty" detail?

There is evidence that Mr. Soros has been planning his "retreat" for some time! It turns out that way back in 2000 - when the nation faced the prospect of the first George W. Bush win - George Soros opened an Internet centre in a Russian Orthodox monastery funded by his philanthropic association, the Segodnia daily reported ... And it turns out that the Independent has reported that "no women, spartan food, whitewashed cells and a 3am prayer bell are just some of the ascetic delights drawing ... George Soros, to a remote peninsula in northern Greece ... to seek solace in the Orthodox monastic republic of Mount Athos."

Well, that's why he's a genius. Always thinking ahead. On the other hand, what does it mean for fruitcakes if the monastic menu is limited to "spartan food?" Has Mr. Soros really thought this thing through?

Posted 10:43 AM by Robert

Divide The Ninth Circuit To Make It Less Immodest III

Prior posts in the Man Without Qualities (here and here) have taken strong exception to an article in the Wall Street Journal by Ninth Circuit Judges Alex Kozinski and Sidney R. Thomas objecting to the proposed division of that Court. Now the Journal has published a letter by two other, more sensible, Ninth Circuit judges expressing exceptions substantially similar to those expressed here (albeit expressed with an appropriately more judicial, restrained tone). From the Wall Street Journal - November 23, 2004; Page A19"

Congress has a strategic opportunity to do what it has been discussing since long before we were appointed circuit judges by Presidents Reagan and Clinton: reorganize the Ninth Circuit. Compared with the other federal appellate courts, the Ninth Circuit Court of Appeals employs more than twice the average number of judges, handles almost triple the average number of appeals, and is fast approaching three times the average population served.

Last month the House passed and sent to the Senate a bill to restructure this goliath into three: a Mountain Circuit comprised of Arizona, Nevada, Montana and Idaho; a Pacific Northwest Circuit of Oregon, Washington and Alaska; and a new Ninth Circuit of California and Hawaii, which, as reduced, would still be the largest circuit in the country in population, caseload and judges. Nevertheless, in a Nov. 10 Rule of Law commentary ("Don't Split the Ninth Circuit!"), two of our colleagues, Judges Alex Kozinski and Sidney R. Thomas, spied skullduggery afoot. Congressional progress, they say, was "by stealth and procedural manipulation." House passage last month, they say, was a "surprise move before the Nov. 2 election." And the purpose of the split, they say, was for the "increased convenience of a few judges."

Contrary to our colleagues' challenge, this largest federal judicial circuit in the nation has been the subject of lengthy and repeated hearings in the current as well as prior sessions, congressionally mandated study commissions, white papers and even passage in certain sessions by one body of Congress or the other; now is the time for the Senate to act. A substantial number of circuit and district judges support the legislation. More importantly, in statements to the White Commission, four justices of the Supreme Court have advocated restructuring as well. In any event, Congress ordains the creation and structure of federal courts; judges don't get to do that under the Constitution.

By any measure, the circuit is too big to handle its caseload effectively and efficiently. This point is underscored by its consistent ranking at the bottom of all federal appeals courts in the length of time it takes to process appeals. More importantly, size adversely affects not only the speed with which justice is administered, but also the quality of judicial decision making. Consistent interpretation of the law by an appellate court requires a reasonably small body of judges who have the opportunity to sit and to confer together frequently, and who can read, critique and, when necessary, correct each others' decisions. That kind of collegiality is no longer possible in a circuit of this size.

The 47 judges who hear and decide Ninth Circuit cases sit on three-judge panels together so infrequently that judges often go for years without sitting with each of the judges with whom they serve. We also deliberate without the benefit of a thorough command of the developing law of our own circuit. An estimated 14,000 appeals are expected to be docketed this year, and it is simply impossible for even the most diligent judge to read critically his or her colleague's dispositions while simultaneously resolving one's own assigned cases.

Smaller circuits would allow us to correct more of our mistakes. The Ninth has grown to such a size that it cannot perform the en banc (or full court) review process that is an important error-reviewing function for every other court of appeals. Even the roughly two-dozen cases that are reheard each year are not subject to a true en banc process. The Ninth Circuit is simply too big to rehear an erroneous three-judge panel decision as a full court. Instead, we are the only circuit to sit on "limited" eleven-judge en banc panels drawn by lot, so that a "majority" consists of six judges who may actually represent the minority view of the full court. It is unacceptable in a democracy that a mere six judges could potentially override the views of the other twenty-two active judges.

Diarmuid F. O'Scannlain
Richard C. Tallman
U.S. Judges for the Ninth Circuit
Portland, Ore.

Judges O'Scannlain and Tallman demonstrate persuasively that some judges on the Ninth Circuit can get things exactly right.

Posted 10:14 AM by Robert

Why Not Change "Democrats" to "Predictables"!?

From the Man Without Qualities - November 13, 2004:

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

From Boston.com - November 24, 2004:

Democratic National Committee Chairman Terry McAuliffe is on the verge of appointing members to a national Democratic commission that will consider whether the primary calendar should be changed for the 2008 presidential election. U.S. Sen. Carl Levin of Michigan, whose pressure helped create the commission, hopes it will challenge Iowa and New Hampshire's status as the leadoff states. Iowa holds its presidential caucus first, usually in mid-January, followed eight days later by the New Hampshire primary, a schedule that's followed by the Republican Party as well. .... "Most states think there ought to be fairer system where no state or two states have a privileged position every four years," Levin said Wednesday. "We're not a party of privilege. We don't like people having privileged positions. And that applies to our own primary and caucus system, I would think." Dingell, who's married to U.S. Rep. John Dingell, was more critical of the part Iowa and New Hampshire played in this year's election. Both states helped Massachusetts Sen. John Kerry win the Democratic nomination, but President Bush narrowly won Iowa in the Nov. 2 national election and nearly won New Hampshire on his way to defeating Kerry.

From Opinion-Journal - The Grassroots Can Save Democrats by Joe Trippi:

[T]he problem for Democrats is not Mr. Rove; it's that they're doing the same thing over and over again, expecting a different result. That's the definition of insanity.

On the other hand, Mr. Trippi's support for Howard Dean (Mr. Trippi managed Howard Dean's presidential campaign) again demonstrates that the definition of "insanity" has many application in the particulars. The path Governor Dean and his supporters took itself seems a lot like the path taken by George McGovern and his supporters - the same thing over and over again, expecting a different result.

MORE: On the Trippi disconnect.

Posted 9:43 AM by Robert

Parallel Lives

From The Haunting of the Presidents - A Paranormal History of the U.S. Presidency:

Publicly, Richard Nixon professed no interest in the paranormal or supernatural. Privately, he had more contact with the subject than people ever realized. We said earlier that when Nixon was besieged by the Watergate scandal he roamed White House corridors at night talking to portraits of late Presidents, perhaps hoping for advice from their spirits.

From The Hollywood Reporter - Rather deserves respect By Ray Richmond (link from DRUDGE):

Describing his love of CBS and CBS News, Rather observed in the interview last year: "In my mind and the minds of the people I work with, this is a magical, mystical kingdom -- our version of Camelot. And we feel we are working at a kind of roundtable of King Arthur proportions. Now, it may be that this kingdom exists only in our minds. But that makes it no less real for those of us who live it every day." And then there was this: "Ed Murrow's ghost is here. I've seen him and talked to him on the third floor of this building many times late at night. And I can tell you that he's watching over us."

From The New York Daily News - Dan's fall is Nixonian by Michael Goodwin:

To the end, Gunga Dan liked to play the part of the crusading journalist, a regular reporter just digging up the facts. That was his TV persona. In real life, his hubris made him more like Richard Nixon than Walter Cronkite. And like Nixon, the coverup was his downfall.

Posted 1:20 AM by Robert

Remembering Values, Issues And Internals

A Man Without Qualities post that appeared hard on the heels of John Kerry's preposterously incompetent Democratic Convention acceptance speech included this passage:

Kausfiles points out that Donkey Rising's Ruy Teixeira and Slate's William Saletan have been busy, busy, busy cobbling up yet more ad hoc special purpose arguments explaining why Kerry-Edwards really did get that bounce most other observors missed and why the Democrats really scored big on those now-to-be-construed-as-all-important poll "internals" and "issues." ... There is the basic problem that neither Messrs. Saletan nor Teixeira offers up any historical or other justification for considering an "issues and internals" bounce to be of electoral significance - especially where such an ad hoc bounce fails to correspond to a significant bounce in net support. It's all very nice to pick out some poll question on which one thinks one's candidate has done well, call it an "issue" and proclaim it's significance ... How about any argument that an "issues and internals" bounce has ever meant anything?One big problem with "issues and internals" is that there are so many of them, and they deploy themselves like guests at a cocktail party at which the pundit speaks only to his friends. For example, does any sensible person think Kerry-Edwards would score well on an "issues and internals" poll question that probes who would best keep the nation's courts from imposing gay marriage a la Massachusetts? Of course, that question is not driving this election - yet over 70% of voters in the "battlefield state" of Missouri just voted for a constitutional amendment to keep that from happening. Why don't Messrs. Saletan and Teixeira spend time chatting up that issue at their "issues and internals" cocktail parties posing as pundit columns?

Considering all the fuss that's been going on in some quarters about how this election was supposedly decided on "values" - with gay marriage supposedly being the flashpoint for a deciding number of "values" voters - I was just wondering if either of Messrs. Saletan or Teixeira has ever actually offered an argument that an "issues and internals" bounce after a convention has ever meant anything, or meant anything this time, or if either of them has explained why their "issues and internals" cocktail party roster didn't include anything on gay marriage - or on "values" at all?

Just asking the professionals. Mr. Saletan? Mr. Teixeira? Yoo, hoo!

There's been so much frantic typing by these two since the November 2 Kerrydammerung that it almost seems to be employed as a form of therapy: here and here and here, for Mr. Teixeira. But I don't see much in the way of explanation for their post-Convention "issues and internals" columns. Does silence mean consent to those columns having been totally wrong? Or is there a more (I struggle to write the word) nuanced explanation?

Posted 10:25 PM by Robert

An Odd Way To Economize

In the movie (and novel)"The Player," a Hollywood studio exec expounds at length on how writers might be completely eliminated from the process of creating a movie. An astute reader points out that The New Republic seems to be economizing by completely eliminating editors from the process of creating that magazine. Surely a harsh charge. But here's the latest evidence:

Page 6: It's been a week since George W. Bush defeated John Kerry, and
something strange is happening: Democrats aren't beating each other's
brains out.... Oddly enough, the Democrats seem almost as united in
defeat as they were during the campaign.

Page 17: It's that time again for Democrats. Kerry aides and party
strategists have thrown themselves into their quadrennial post-campaign
ritual of recriminations. Old scabs are being picked. Scores are being
settled. Clintonites point fingers at the Kennedy wing. Longtime Kerry
aides throw accusations of disloyalty at the Clintonites. Staffers from
the DNC lob bombs at staffers from the campaign. Policy wonks gripe
about inept political consultants. Kerry aides who traveled on the
camnpaign plane snipe at the aides who were based in Washington. Democrats, out
of power and out of jobs, are doing what they do best: turning on one
another.

I'd say that's enough for a directed verdict, maybe even for summary judgment.

Posted 8:06 PM by Robert

Subtraction

According to a recent report by the New York Times, the Iraq "resistance" before the just completed Fallujah assault numbered between 8,000 and 12,000 rebels, counting foreign fighters, the network of Jordanian militant Abu Musab al-Zarqawi, and home-grown insurgents.

In one week in Fallujah about 1,200 insurgents were killed and another 1,000 taken prisoner.

In other words, about 2,200 insurgents were subtracted from the 8,000 to 12,000 estimated total - for a subtraction of about 18% to 25% of all insurgents in one week.

Not a bad week's work. Not bad at all. That suggests that if the insurgents keep up the fight in Mosul, Baquba, Kirkuk and Suweira, their total numbers should be getting pretty darn low in a few more weeks.

Their total number should be getting pretty small well before Iraq's upcoming election day.

Unless, like Maureen Dowd and other Timesfolk, one believes in the spontaneous generation of Iraq insurgents from sweaty underwear and husks of wheat.

UPDATE: This tendentious Associated Press report presents almost no support for its proposition that because the recapture of Fallujah has not "broken the insurgents' will to fight," it may not "pay the big dividend U.S. planners had hoped" and, instead, "has sharpened divisions among Iraq's major ethnic and religious groups, fueled anti-American sentiment and stoked the 18-month-old Sunni insurgency."

It does not appear to be at all necessary to break the "insurgents' will to fight" and the AP cites not a single American military source as saying the US was counting on such a development in Fallujah. Indeed, the allied position seems to be well served by the insurgents fighting openly and vigorously - that way a lot of them die in combat with the far more formidable allied forces, or are captured, as happened in Fallujah. As noted above, recent most pessimistic, estimates put the total number of insurgents at 12,000 presumably now minus the 2,200 killed and captured in Fallujah activities. If that trend continues, simple arithmetic shows that the insurgency will be soon broken even if the allies have never "broken the insurgents' will to fight." One can, instead, break the insurgents.

The AP argument that the Fallujah action "has sharpened divisions among Iraq's major ethnic and religious groups, fueled anti-American sentiment and stoked the 18-month-old Sunni insurgency" appears to be nothing more than a warmed-over version of the standard "Arab street" nonsense that the mainstream media and their eternal and often nameless analysts have been serving up about Afghanistan and Iraq for years. The Afghan elections went forward just fine in the face of that country's inflamed "street." If a big portion of the 12,000 trouble makers in Iraq can be sent to their maker in the next weeks, those elections will go just fine, too.

Posted 11:24 AM by Robert

The Next Tom Daschle: Byrd On A Wire?

The website of West Virginia Senator Robert C. Byrd boasts:

In 2000, West Virginia voters elected Senator Byrd to an eighth consecutive six-year term in the Senate, making him the only person in the history of the Republic to achieve that milestone. Senator Byrd has carried all 55 West Virginia counties three times (1970, 1994, and 2000), making him the first person to do so in contested statewide general elections. In May 2001, Senator Byrd cast his 16,000th roll call vote, giving him the distinction of casting more votes than any other Senator in history.

The New York Times refers to the old onetime Ku Klux Klansman, who as recently as 2001 casually used the phrase "white nigger" twice on national TV in a single weekend, as the Democratic Party's "revered elder statesman."

So on the face of it, Senator Byrd is anything but the next Tom Daschle - likely to be turned out by an electorate from whom he grows ever more distant.

But could Senator Byrd be next Tom Daschle after all? President Bush trounced Mr. Kerry in West Virginia by 13 percentage points, doubling his margin of victory in West Virginia from 2000. That's not a good as the 22 percentage point lead Mr. Bush racked up in South Dakota, but its still a huge lead and its 100% increase since 2000 is striking.

The electoral game played by Senators Byrd and Daschle have been similar: support for a Washington Democratic Party far to the left of their home states, balanced by huge loads of pork brought back to grateful home state voters. But like Senator Daschle, Senator Byrd's pork supplies have been trimmed by the persistent Republican control of the Senate.

Senator Byrd has another characteristic in common with his South Dakota counterpart: ambition to assume high office that puts him in the spot light and may obligate him to take positions a lot more consistent with his Washington, D.C. role than the views of his West Virginia constituency. For example, Senator Byrd has been very proud of his role as a rock ribbed "defender of Senate traditions." If the near future brings more Democratic filibuster of conservative judicial nominees, and the Republicans seek to relax the rule permitting such filibusters, Senator Byrd could find himself making some very dicey statements defending his colleagues' actions.

And Senator Byrd has one burden Tom Daschle did not have to bear: advanced age. Robert C. Byrd was born in 1917 - he's now 87years old and will be 90 years old when next up for election in 2006. Even by Senate standards, that's old, especially for someone who has to adapt to a rapidly changing constituency.

Perhaps Senator Byrd will avoid his Daschle problems another way: perhaps he won't run in 2006. But I wouldn't count on it.

Posted 7:00 PM by Robert

Supreme Court Bobblehead Dolls!

Just in time for the holidays!

Choose from the Chief Justice, BobbleStevens, and Bobble-O-Connor! To see each one in action, click the image.

Annotated! Evocative! Collect the entire set on E-Bay!

Posted 1:09 PM by Robert

The New York Times Reaches Across The Aisle

In today's Times' report that Senator Harry Reid of Nevada was elected the Senate's minority leader:

Mr. Reid has demonstrated an ability to reach across the aisle. In the spring of 2001, he played a big part in persuading Senator Jeffords to leave the Republican Party.

So that's an example of what the Times views to be the kind of "bipartisan cooperation" we can expect to see from Senator Reid?

Given what we now know of how the Times interprets "reach across the aisle," we can conclude that the Times should also agree with the interpretation placed on the quote from Jesus in Matthew 25 by the likes of the store owner who over charged a new customer twenty-fold for a horse blanket: "He was a stranger, and I took him in." So very true in it's own Timesian fashion!

Perhaps Marc Rich used exactly that biblical construction to explain his $48 million tax fraud and other crimes to the magnanimous Bill Clinton - who pardoned Mr. Rich despite his being ineligible for a pardon, since he never took responsibility for his actions or served any sentence. Indeed, following it's interpretation of "reaching across the aisle," the Times surely considers Mr. Clinton's pardon of Marc Rich to have been an act of purest agape - or "unconditional love."

After all, didn't Mr. Rich himself "reach across the aisle" - if only to pick the government's pocket?

Posted 9:36 AM by Robert

A Peculiar Delicacy

This New York Times article and Associated Press report appearing in the New York Times each recount President Bush's choice of Ken Mehlman, who managed Bush's re-election campaign, to now head the Republican National Committee. They are both oddly "delicate" on a point that warrants no deliacy whatsoever: Mr. Mehlman is jewish. Neither item mentions that fact at all, not even in an aside. But the Times and the AP often find ethnic and gender identification of appointees newsworthy, as in today's AP/Times coverage of Condi Rice: If confirmed by the Senate, she would be the first black woman secretary of state. Rice [was] raised in the segregated South ... And other media have had no trouble finding the newsworthiness of Mr. Mehlman's ethnicity or its relevance to the Republican agenda:

"I think there's an opportunity, based on the president's leadership, to significantly expand our level of support" in the Jewish community, Mehlman told National Journal. "Good policies are good politics."

Little wonder that Mehlman, who is Jewish, and other top campaign officials have been using the more intimate setting of small meetings to woo Jewish donors and leaders. On several occasions, such as a November gathering in Baltimore, Mehlman and other campaign officials have skillfully used "pre-sells" -- the hosting of potential Jewish contributors in the weeks running up to a big fundraising event that features Bush.

Mr. Melhman did a terrific job running the Bush-Cheney campaign, and his new appointment is clearly intended in part to faciliate the Republican outreach to jewish voters, who this time gave a larger share of their votes and financial support to President Bush than they normally give to Republicans. That's obviously all worth a mention by the the New York Times, etc. Instead we get odd circumlocutions like:

Mehlman, 38, a protege of Rove, said he also hopes to expand the GOP base and help Bush enact his agenda, including changes in the tax code and Social Security. While winning re-election with 51 percent of the vote, Bush improved his support among Hispanics, Catholics, women and others [sic] key voting blocs.

Other Democratic "key voting blocs?" - you know, like jewish Americans.

This "delicacy" concerning Mr. Mehlman and his partial mission to advance further Republican inroads with jewish voters is nothing sort of weird. In contrast, the Times has absolutely no problem running items that insinuate - often employing standard antisemitic code language - that spooky "neoconservatives" in the Bush administration are mysteriously deforming American foreign policy, as in this Times book review, just by way of example:

At the end of the book, Hersh confesses that he still hasn't got the whole story. "There is so much about this presidency that we don't know, and may never learn," he writes. "How did they do it? How did eight or nine neoconservatives who believed that war in Iraq was the answer to international terrorism get their way? How did they redirect the government and rearrange longstanding American priorities and policies with so much ease? How did they overcome the bureaucracy, intimidate the press, mislead the Congress and dominate the military? Is our democracy that fragile?"

Yes, our democracy is that fragile. Checks and balances in the American constitutional system are functioning poorly.

One might also look here and here and so many other places in the Times.

So why be so "delicate" with respect to Mr. Mehlman?

Posted 11:25 PM by Robert

Death From Bifurcation

A new ad campaign urges amendment of the U.S. Constitution to remove limits on the presidency to natural U.S. citizens.

This particular effort is tied to California Governor Arnold Schwarzenegger, who was born in Austria but became a U.S. citizen in 1983. And that's why this effort will almost certainly fail. Amending the Constitution based on considerations peculiar to a particular person - any particular person - is a nearly certain dead loser.

On the other hand, it is equally true that if there is no immediate and clear-cut need for an amendment to the Constitution, then that document shouldn't be amended. Of course, in the case of amendments to the "natural U.S. citizens" clause, the existence of an immediate and clear-cut need requires that there be a particular person who would be a likely candidate but is barred from the presidency because of the clause, which, of course, would cause the amendment to fail on the grounds that no amendment should be made to the Constitution based on considerations peculiar to a particular person.

That bifurcation may explain why the "natural U.S. citizens" clause remains in the Constitution even though it probably always has been a bad idea.

Posted 3:13 PM by Robert

Here's Something For John Edwards To Do ...

... now that he will soon have lots of time on his hands.

He can sue the manufacturers and distributors of computers and computer screens, which have now been linked to glaucoma!

The internet played a big role in denying Kerry-Edwards the benefits that the mainstream liberal media tried to confer during the campaign by discrediting so much of their hooey.

Now Senator Edwards can have his revenge, and make a few more million bucks, to boot!

Posted 2:54 PM by Robert

More Evidence That Affirmative Action Is A Terrible Idea

It seems from this Los Angeles Times article, one of my Los Feliz neighbors is in for some very rough times:

UCLA law professor Richard H. Sander, author of a controversial new study concluding that affirmative action hurts black law school students ... is a soft-spoken former VISTA volunteer who for years has studied housing discrimination and championed efforts to fight segregation in Los Angeles....

Sander's latest research, to be published this month in the Stanford Law Review, already is drawing widespread criticism from liberal backers of affirmative action and is roiling law schools around the country.

His study asserts that law school affirmative action programs often draw African Americans to tougher schools where they struggle to keep up, leading many to earn poor grades, drop out and fail their state bar exams.

"The big picture is that this system of racial preferences is no longer clearly achieving the goal of expanding the number of black lawyers," Sander said in an interview. "There's a very good chance that we're creating such high attrition rates that we're actually lowering production of black lawyers, and certainly we are weakening the preparation of the black lawyers we are producing."

Affirmative action opponents have made similar arguments about racial preferences in the past, but Sander's research provides new statistics on academic performance. He reports that, in his national sampling, nearly half of first-year black students received grades placing them in the bottom tenth of their classes. In addition, he found that among all students who entered law school in 1991, 45% of black students graduated and passed the bar exam on their first try, while 78% of whites did so. ....

Some critics who have read a draft of the paper say Sander is probably understating the rate at which blacks pass the bar exam. They also argue that his explanations for black students' lagging performance are based on sweeping, unproven assumptions, and they say that he fails to recognize affirmative action's far-reaching benefits. ....

Alison Grey Anderson, a friend who has taught at the UCLA law school since 1972, said she admires his intellectual integrity. "If he believes something is true, he's going to say it, and he's really not going to take into account the political consequences ... I wouldn't want to be in his shoes."

Sander, director of the Empirical Research Group at the UCLA law school, said ... affirmative action "needs to be subjected to the kinds of cost-benefit evaluation that we would apply to any social policy." ...

Sander ... lives in Los Feliz with his two children and wife ... One factor, he said, is the educational future of his 14-year-old son, Robert. University affirmative action could play a role in Robert's life because his racial background is mixed: Sander is white and Robert's mother, Sander's first wife, is black.

Sander's other child, a 19-month-old daughter named Erica, has a terminal disease.

Professor Sanders sounds like quite a guy. I hope that he is under no illusion that a commitment to the scientific method, an open-minded approach to the costs and benefits of programs viewed by liberals as central to maintaining their social and political fiefs, a personal connection to the issues he raises in the form of his own son, or the tragic status of his young daughter, is going to mean a thing when the liberals lunge for his carotid arteries.

As they most surely will lunge after that paper appears in the Stanford Law Review.

UPDATE: Let the intemperate, ad hominem assault on Professor Sander begin!

Link thanks to Mike Daley.

Read a summary of Professor Sander's article written by the professor himself here.

Posted 11:31 AM by Robert

The New York Times Is An Irresponsible Blog!

It's the only explanation for what's chronicled in this drop dead hilarious post from Maguire.

But do the Timesfolk now stay in their pajamas and do their "work" from their living rooms?

Posted 10:43 AM by Robert

Long Time Coming

John Fund has an interesting survey of the aftermath, effects and dynamics of Vietnam veteran opposition to John Kerry in OpinionJournal today, including this observation:

As the evening proceeded and one Vietnam veteran after another shared the story of how veterans felt compelled to attack Mr. Kerry for his 1971 testimony branding fellow veterans as war criminals, former CBS News correspondent Bernard Goldberg leaned back in his chair in amazement. "I think some of them are too intense," he told me. "But screwing with these guys by accusing them of atrocities was one of the biggest mistakes John Kerry ever made. Thirty years later he woke a sleeping giant."

Indeed he did.

That intensity of veteran reaction to John Kerry makes his decades-long insensitivity to their feelings and potency simply amazing. John Kerry has had thirty years to make peace with the veterans he offended in his post-Vietnam excitement. At any point in those 30 years it would not have been all that hard for him to make peace and still retain his war hero mantle. But John Kerry made no effort. Indeed, his efforts to reconcile the United States with Vietnam were vastly more energetic than his efforts to reconcile himself with the Vietnam War veterans he offended. His camp has suggested he may run again for President in 2008 - but there's still no hint of an outreach to veterans.

What's particularly strange about John Kerry's behavior over those three decades is that his failure to make peace with veterans carried obvious political risks - risks that could have been costlessly reduced. By the time he announced his bid for the presidency, it was much too late - and that, too, was obvious. For example, the Man Without Qualities predicted the Kerry-veterans train wreck way back on February 22:

So far, the media have been very weak in discussing Kerry's post-Vietnam-return antiwar activities - or the rest of his past, for that matter. After all, many of the people now involved in the mainstream media of Kerry's age participated in many of the same activities. The nation has learned to forgive them. Even Jane Fonda has apologized for some of what she did in the depths of her Vietnam era insanity - and on this point Ms. Fonda is more responsible than Senator Kerry, who does not apologize but instead just misrepresents his past. But if Kerry keeps pushing Vietnam, the Bush campaign won't be so gentle -and, ultimately, the media won't remain gentle, either. At some point Senator Kerry is going to have to stop misrepresenting his antiwar statements and outright apologize for some of them - especially his assertions to Congress that American soldiers were routinely war criminals. Veterans on the campaign trail are going to demand that of him - to his face.

Posted 9:30 AM by Robert

Divide The Ninth Circuit To Make It Less Immodest II

The modest person generally best accomplishes his or her will through persuasion, the arrogant person finds it sufficient to impose that will through fiat. As noted in the prior post, the Ninth Circuit is often reversed, often unanimously, by the Supreme Court. In other words, Ninth Circuit opinions often fail to persuade the Supreme Court - indeed, Ninth Circuit opinions often fail to persuade even a single member of the Supreme Court. Further, Ninth Circuit opinions are, relative to opinions of other circuits, not considered persuasive or well constructed by judges sitting in other circuits - who much more rarely cite to the Ninth Circuit than to other circuits. But Ninth Circuit opinions do impose themselves by fiat on 56 million Americans. The discrepancy between the persuasiveness of Ninth Circuit opinions and their fiat power is a measure of the arrogance of that court.

Ninth Circuit Judges Kozinski and Thomas unwittingly admit the unpersuasiveness of Ninth Circuit opinions with this argument:

People and businesses make decisions with an eye toward legal consequences, so they need a clearly established body of law. Today, a Ninth Circuit decision is binding in nine Western states. After the split, a decision of the new Ninth Circuit would leave the law unclear in the seven states of the 12th and 13th Circuits. To get the law settled for all these states, the same issue would have to be decided by the two new circuits, which could take years. More circuits also means more conflicts in the law, increasing the burden on the Supreme Court to set matters straight.

If Ninth Circuit opinions were well crafted and persuasive almost nothing would be left of this Kozinski-Thomas argument. Although federal circuit courts cannot bind each other by fiat, they are generally loathe to "split" with another circuit's opinion unless that opinion is exceptionally unpersuasive. That is known as "honoring persuasive precedent." Following a division of the Ninth Circuit the new, smaller circuits would be able to reach each other by persuasion. Indeed, their historical unity should make it easier for those circuits to persuade each other than it would be to persuade circuits outside the old Ninth.

That Judges Kozinski and Thomas are convinced that the newly divided Ninth would experience a great uptick in uncertainty and a corresponding great downtick in uniformity is all but an admission of their belief that the Ninth Circuit often does not persuade, but instead imposes its will by fiat.

Dividing the Ninth Circuit would require that Ninth Circuit judges craft persuasive opinions if they wish their written will to carry as far as it does now, since they would no longer be able to rely on such a broad fiat. An uptick in opinion quality would be an unalloyed good for everyone. The Ninth Circuit would gain respect and modesty and lose some arrogance. The burden now placed on the Supreme Court to police and correct Ninth Circuit errors would be reduced. Litigants would benefit from receiving better justice. And the 56 million (soon to be 75 million) people in the current Ninth Circuit, and their businesses, who make decisions with an eye toward legal consequences would benefit from better, clearer and more persuasive constructions of federal law.

Judges Kozinski and Thomas all but admit as much.

UPDATE: An astute reader comments:

as a former clerk on the ninth, i have some comments on your analysis (with which i completely agree):

1. as you obliquely point out, some of the judges on the ninth circuit in many ways have more power than supreme court justices, because the ninth is effectively the last stop for many more litigants (the supreme court can only hear so many cases). that's not right.

2. the ninth has far too much power not merely because it is the court of appeals for so many, but also because of the enormous geographic area it covers. e.g., maritime law on the east coast is divided up between many circuits, but on the west coast, it's only the ninth. this is a clean example, but the same principle obtains for other types of law. so you don't get the same sort of experimentation/dialogue with respect to such law as you might if the ninth were split up. it again seems wrong to have a single court so dominate critically important areas of substantive law.

I completely agree.

Posted 1:50 PM by Robert

Divide The Ninth Circuit To Make It Less Immodest

Judges Alex Kozinski and Sidney Thomas were appointed to the United States Court of Appeals for the Ninth Circuit by Presidents Reagan and Clinton, respectively. They have now scribed for the Wall Street Journal their joint explanation as to why they oppose a provision offered by Rep. Mike Simpson of Idaho, and already approved by the House, that would split the Ninth Circuit. That circuit now includes nine Western states and 56 million Americans. The proposal would replace the Ninth Circuit with three smaller circuits: (i) the new Ninth Circuit with California, Hawaii, Guam and the Northern Mariana Islands, (ii) a new 12th Circuit with Nevada, Idaho and Montana, and (iii) a new 13th Circuit with Washington, Oregon and Alaska.

The shocking weakness of the Kozinski and Thomas argument indicates strongly that Congress should immediately enact the proposal these two judges oppose and divide the Ninth Circuit - indeed, the Kozinski-Thomas article suggests the need is urgent.

Although Kozinski-Thomas insist that the issue requires more study, the need to divide the Ninth Circuit has been discussed and studied for more than thirty years. In 1973, the Commission on the Revision of the Federal Court Appellate System (sometimes called the "Hruska Commission"), was created to study and make recommendations for the federal appellate courts. It recommended that both the Fifth and Ninth Circuits be split. The Hruska Commission report noted the Ninth Circuit's "striking" size, its "serious difficulties with backlog and delay," and its "apparently inconsistent decisions by different panels of the large court." Senator Conrad Burns, Dividing the Ninth Circuit Court of Appeals: A Proposition Long Overdue, 57 Mont. L.R. 245 (1996), citing 62 F.R.D. 223, 224 (1973). The Hruska Commission "concluded that the creation of two new circuits is essential to afford immediate relief."

The proposed divisions of both the Fifth and Ninth Circuits were initially met with resistance, and Congress in 1978 authorized a half-way measure: large circuit courts were allowed to create "administrative units" to address size-related problems. The Fifth Circuit attempted this approach, and failed. Congress finally split the Fifth Circuit in 1980 - hiving from it what is now the Eleventh Circuit Court of Appeals. Kozinski-Thomas mostly derive their arguments from a parade of theoretical adverse effects these judges suggest might follow from a division of the Ninth Circuit: increased costs, less certainty, less uniformity. But more revealing and downright alarming, is their utter failure to examine - or even mention - that none of those adverse consequences followed the division of the Fifth Circuit only a few years ago.

The Fifth and Eleventh Circuits today, combined, are almost exactly the same size as the current Ninth Circuit. Neither the Fifth nor the Eleventh Circuits is today considered by any serious observer to be plagued by the failings that continue to burden the Ninth Circuit. The Fifth/Eleventh Circuit experience obviously provides an excellent testing ground for every single one of the theoretical adverse effects postulated by Kozinski-Thomas. Their failure to even mention that experience is testimony to the fact that the division of the old Fifth Circuit is considered to have been an unqualified success - with the cost of any of the adverse effects they hoist much more than outweighed by the benefits of the division. These two judges are well aware of that success and consensus, and their failure to mention it is shocking and nakedly disingenuous.

While the Fifth Circuit was being rationalized and its problems mitigated, the Ninth Circuit continued to bloat. Congress created the Commission on Structural Alternatives for the Federal Courts of Appeals (the "White Commission") in 1997. Although Kozinski-Thomas ignores the Hruska report entirely, they do cite misleadingly to the White Commission:

[The White Commission] thoroughly considered and rejected the idea that the Ninth should be split, finding it unnecessary and impractical, to once again study these issues. The White Commission recognized the Ninth Circuit's size-related problems, but it recommended that Congress create three regionally based administrative units within the structure of the Ninth Circuit.

But this particular White Commission recommendation was just what had failed in the Fifth Circuit, a gap which the Commission proposed bridging with additional procedures that were thankfully never adopted. The White Commission's suggestion that the Ninth Circuit not be divided was conditioned on the adoption of those procedures - which Kozinski-Thomas do not endorse or even mention. Among other things, the White Commission proposed another step of appellate review for litigants in the Ninth Circuit and the abolition of true en banc hearings. Instead, a "circuit panel" would have been empowered to correct conflicting opinions from the administrative units, possibly without briefing from the parties or a hearing. The radical, experimental approach proposed by the White Commission as the cost of retaining the current Ninth Circuit was immediately perceived by Congress as causing further delay, bloating expenses, and creating even more confusion for litigants. Congress thoroughly rejected the White Commission recommendation. None of that history is mentioned by Kozinski-Thomas, but that history renders their reliance on the White Commission all but fraudulent.

Kozinski-Thomas wave away all criticism of the Ninth Circuit based on its sheer size, with the argument that "big doesn't mean inefficient ... [S]ize brings into play economies of scale, so the Ninth offers innovative and valuable services to the public that smaller circuits cannot afford." Of course, exactly what those innovative and valuable services actually are just goes unmentioned (space constraints, no doubt). Nor is any consideration given to fact that intelligent observers - such as Justice Brandeis - have generally exactly inverted this argument, and considered smaller government units to be better innovators. "It is one of the happy incidents of the federal system," Justice Louis D. Brandeis wrote in 1932, "that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." But why should Kozinski-Thomas bother to meet an argument heaved up by a lightweight like Justice Brandeis and supported by much common sense?

Contrary to the Kozinski-Thomas insinuations, criticisms of the Ninth Circuit based on its sheer size don't mindlessly equate large size with inefficiency Those critical arguments are based on copious observations that the Ninth Circuit's sheer size has, in fact, been one of the important factors makig the Circuit a mess. But comparing the mere size of the Ninth Circuit to other circuits is nonetheless revealing in many specific ways, including the following:

1. The Ninth Circuit's 56 million and rapidly growing population is more than two and one-half times greater than the other circuits, which average 20 million people.

2. The Ninth Circuit contains almost 40% of the United States, covering more than 1.3 million square miles. The other circuits average about 200,000 square miles.

3. The Ninth Circuit represents nine states and two territories, but other circuits average about three and one-half.

4. There are twenty-eight judgeships authorized in the Ninth Circuit, but other circuits average about twelve and one-half - none has more than seventeen authorized.

Do different rules apply to the Ninth Circuit than to other circuits? Do Kozinski-Thomas propose that the division of the old Fifth Circuit be undone? Why not? Couldn't all the efficiencies and "innovative and valuable services" they celebrate without much identifying be realized by consolidating all of the other circuits into circuits roughly the size of the current Ninth? The Census Bureau projects that all nine of the states located within the Ninth Circuit will fall into the top twenty growth states over the next 20 years or so. By 2025, the Ninth Circuit's population will be greater than 75 million. Is there no point at which bigger is worse? Why not just have one Circuit?

In fact, also contrary to Kozinski-Thomas, the number of judges in a circuit is widely regarded by knowledgable observers to have a huge negative effect on a circuit's ability to manage its caseload. The White Commission report advised Congress on this point in another section of that report ignored by Kozinski-Thomas as follows:

The maximum number of judges for an effective appellate court functioning as a single decisional unit is somewhere between eleven and seventeen. (White Commission Report at 29.)

It gets worse. The annual report of the federal courts, entitled Judicial Business of the United States Courts shows the Ninth Circuit to be in last place in the critical and objective measures of justice. Between 1997 and 2001, pending appeals nationwide increased by only 1% - but in the Ninth Circuit pending appeals increased by 20%. The Ninth Circuit's opinions are often uncoordinated, inconsistent and incoherent - giving rise to greater uncertainty in law than in other circuits (exactly the opposite of what Kozinski-Thomas assert), with one consequence of that uncertainty being that appeals are being filed in the Ninth Circuit at a rate more than double the national average (after all, one doesn't know what the Ninth will do - just look at their zany behavior in the California recall burlesque). The number of appeals increased by 5% nationally in 2000, but in the Ninth Circuit appeals increased by 13%. The Ninth Circuit takes much longer to issue final decisions than do other circuits: an average of almost sixteen months in the Ninth where other circuits average slightly more than ten months. The Ninth Circuit comes in dead last in time taken deciding appeals - 53% slower than the other circuits. The Ninth Circuit accounts for 60% of all appeals pending in the nation's circuit courts for more than twelve months. All of these symptoms of systemic failure of the Ninth Circuit are ignored by Kozinski-Thomas with their airy "big isn't necessarily worse" dismissal.

Also ignored by Kozinski-Thomas is the fact, indisputable in good faith, that the Ninth Circuit has earned a national reputation as a frequently reversed court, and issues a lot of really bad law. From 1990 to 1996, the Supreme Court struck down 73% of the Ninth Circuit decisions it reviewed. The other circuits averaged 46%. Jeff Bleich, The Reversed Circuit: The Supreme Court versus the Ninth Circuit, 57 Oregon State Bar Bulletin 17 (May 1997) - in 1997, the Supreme Court reversed 27 out of 28 Ninth Circuit decisions. Between 1998 and 2001, the Supreme Court reviewed 103 Ninth Circuit cases but affirmed only 13 - unanimously reversing or vacating 26 of those Ninth Circuit decisions. The New York Times noted: "Over the last 20 years, the Court of Appeals for the Ninth Circuit has developed a reputation for being wrong more often than any other federal appeals court." Adam Liptak, Court that Ruled on Pledge often runs Afoul of Justices, N.Y. Times, July 1, 2002. The Liptak article notes that in referring to the high number of unanimous reversals of the Ninth Circuit by the Supreme Court, Yale University law professor Akhil Amar bluntly said: "When you're not picking up the votes of anyone on the Court, something is screwy."

Professor Amar is right - and something is even screwier when two sitting judges from the Ninth Circuit write at length in the Wall Street Journal about the proposed division of their court without even mentioning its reputation for reversal and bad decisions. Kozinski-Thomas go on at length about minor costs (courthouses, files, etc) a division would impose, but those many crummy Ninth Circuit decisions impose costs on those 56 million people that utterly dwarf any of the costs Kozinski-Thomas fuss with. Breaking up the Ninth Circuit would limit the damage and costs any one of those decisions could inflict.

Perhaps Kozinski-Thomas implicitly mean to deny that their court makes much bad law. They would not be the first judges from their court to take that losing tact. Indeed, three former Chief Judges of the Ninth Circuit once denied that the Ninth Circuit has a poor track record in the Supreme Court, to which the Liptak article notes Justice Scalia replied: "There is no doubt that the Ninth Circuit has a singularly (and, I had thought, notoriously) poor record on appeal. That this is unknown to its chief judges may be yet another sign of an unmanageably oversized circuit."

Justice Scalia's comment leads to consideration to what may be the Ninth Circuit's worst size-related problem of all: judicial arrogance and willfullness. There is a widely observed pervasive arrogance about the Ninth Circuit judges - sensed even by many judges sitting on other circuits, who are generally far too diplomatic to speak of it publicly. The arrogance arises from the Ninth Circuit's sense that that circuit is so large and so distant geographically from the Supreme Court that it's members are entitled to operate with an independence of Supreme Court direction far exceeding what is claimed by the other circuits. The Supreme Court, however, does not agree.

But the Supreme Court can only profitably review a relatively few cases - and in those few cases it strives to give general direction to the lower courts. While most other circuits attempt to follow that direction, the Ninth Circuit tends often to dismiss most of the Supreme Court's direction-giving as non-controlling "dicta" and sail off in its own direction. Indeed, there are specific cases in which the Ninth Circuit has been reversed and given "direction" by the Supreme Court more than once in a single case - but in which the Ninth continued to set its own priorities (at one point, the Supreme Court actually had to forbid the Ninth Circuit from issuing further orders restricting a California execution without pre-approval by the Supreme Court). Such "multiple reversal" cases are even more troubling than the high number of unanimous reversals of the Ninth Circuit by the Supreme Court, since the "multiple reversal" cases indicate a higher degree of arrogant willfullness. Dividing the Ninth Circuit into circuits of more modest dimension would go a long way towards making Ninth Circuit judges themselves more modest personally - and perhaps inducing them to actions more in line with what the Constitution, the Congress and the Supreme Court all expect of a lower court.

In the face of all the evidence that their court is indeed bloated, unwieldy and ill managed, Judges Kozinski and Thomas nevertheless have the weird arrogance to compare that trouble tribunal to some of the most successful, brilliantly organized social entities the world has ever seen: "[B]ig doesn't mean inefficient, as we know from the performance of giant corporations such as Microsoft and Wal-Mart." This, surely, is arrogant insensitivity to one's own failing of a biblical scale. By that insensitivity, and by ignoring clearly applicable counterarguments and the successful Fifth Circuit experience, and misrepresenting the history, criticisms and difficulties of their own court, Judges Kozinski and Thomas make a strong case that there is an urgent need for a big dose of modesty in the Ninth Circuit.

Right now, right here.

Posted 11:51 AM by Robert

The New Conventional Wisdom

Is it just me, or is the new Conventional Wisdom that John Kerry was Pathetic ... And Bound To Lose, as expressed in this rather belated rant by feckless Marty Peretz:

For what the electorate did on Nov. 2 was essentially (or maybe just merely) turn down John Kerry, a candidate who until very late in the Democratic primaries was almost no one's choice as the nominee, the party's last option because it could rally around no one else. What a pathetic vessel in which to have placed liberalism's hopes! A senator for two decades who had stood for nothing, really nothing.

If Mr. Peretz is ever able to bring his blood pressure under control, perhaps he will want to ponder these questions in a quiet, softly lit room - preferably one with a calming water feature:

1. Why is Senator Kerry a worthy object of such scorn when he outperformed by several percentage points the share of the popular vote he was predicted to take by virtually every serious economic model - including the Fair model Presidential Vote Equation - which predicted that Mr. Bush would take 57.48% of the popular vote.

2. Why isn't the more appropriate object of his scorn those involved in this election cycle's Democratic Congressional effort? Models such as the Fair model Presidential Vote Equation are based on the historic observation that incumbent Presidents are very rarely unseated when the economy is in the state it has been, but it is also true that no such incumbent has been reelected with an increase in his party's representation in both houses of Congress since 1936. Senator Kerry - who outperformed his expectations - can't be held accountable for Democratic Congressional losses on such a historic scale. Further, as RealClearPolitics cogently points out, it is hard to find a Republican mandate in Mr. Bush's 3% lead - but it's not too hard to find a Republican mandate in that historic two-house Republican Congressional surge. Shouldn't Mr. Peretz reserve a bigger portion of his venom for Tom Daschle and, especially, Nancy Pelosi - especially since something could, in principle, be done about Ms. Pelosi, who still "leads" House Democrats?

3. Why there weren't better Democratic contenders? The natural sources of presidential contenders are state governorships and, much less reliably, Congress. But most Democratic contenders this time were drawn from the Senate - with Senator Clinton poised to repeat this mistake next time out. Why? Senators have a terrible track record of achieving the Presidency. Kerry. Mondale. Dole. Humphrey. Goldwater. Kennedy was only nominally a Senator - and he too probably would have lost without the graveyard vote. Johnson? Please - he ran against Goldwater, a Senator, only one of them could lose (Johnson redeemed the curse of the Senator-Candidate in his own way with a disastrous presidency).

Why are Democratic governors such a shallow pool these days? For example, by all historical rights Gray Davis should have enjoyed all of Ronald Reagan's advantages as the re-elected governor of the largest state. After his recall, the only thing keeping his Republican replacement from being a serious presidential contender is the "native born citizen" clause of the Constitution - and lieutenant governor Cruz Bustamante, the Republican's only Democratic challenger in the recall, was and is a clown. Does Mr. Peretz care to venture an opinion as to why the California Democratic party is such a mess at the governorship level - apparently along with every other Democrat-led state?

4. Why didn't Mr. Peretz vent himself more in this fashion during the primaries when it might have actually had some effect? Mr. Peretz points out accurately that John Kerry's Senate and post-Vietnam record made it clear long before the primary season that he could not be elected President. So when it became apparent to all that the Howard Dean was a disaster, why did Mr. Peretz not find another better Democrat and launch a movement to draft him or her? Were there none? Why did no other influential Democrat do that?

5. What happened at the DNC? Doesn't Mr. McAuliffe and the people who put him in office deserve a share of Mr. Peretz's venom?

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

Posted 8:18 AM by Robert

The Senate's Time-honored, 200-year-old Tradition

One needs an especially strong stomach and unflappably low blood pressure to listen to United States Senators discuss the "traditions" of their chamber. The bon mots of New York Senator Charles Schumer on a proposal to limit the use of filibusters against federal judicial nominees provide a particularly septic example:

"To implement it would make the last Congress look like a bipartisan tea party," Senator Charles E. Schumer, the New York Democrat who is on the Judiciary Committee, said. "For the sake of country and some degree of comity, I would hope and pray that the majority leader would not take away the Senate's time-honored, 200-year-old tradition."

The "200-year-old tradition" of requiring a three-fifth majority (sixty Senators) cloture vote to end debate in the Senate to which Senator Schumer refers dates back only to 1975, when the Senate reduced the number of votes required for cloture from two-thirds (67) to three-fifths (60) of the 100-member Senate. But the rule allowing termination of debate upon a two-thirds cloture vote itself only dates back to 1919. Before 1919 the Senate permitted unlimited debate. Senator Schumer is perhaps referring to that tradition?

Who knew that Senator Schumer revered filibuster stunts as he now says he does? It is well known that filibusters were particularly useful to southern senators blocking civil rights legislation in the 1950s and 1960s. The record for the longest individual speech goes to South Carolina's J. Strom Thurmond who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957. The filibuster-powered obstructionism of segregationist Senators was cited as an important symptom that the democratically elected branches of the federal government could not by themselves deal with the civil rights crisis of the mid-20th Century - and therefore as justification for the liberal judicial activism. Senator Schumer is a big fan of that flavor of judicial activism. Is he trying to preserve one of its historical justifications or is he just being sentimental? It's so hard to remember those long-dead days when New York and its representatives once preened themselves as progressive!

Senate debate serves exactly one legitimate purpose: Presentation to the Senate of potentially persuasive information and argument pertaining to a matter before the chamber. Once all relevant information has been presented and all material arguments made, further debate serves no legitimate function. It is therefore particularly illegitimate for "debate" to go on against the will of the Senate majority once every Senator has made up his or her mind on the matter debated.

But then there's Chuck Schumer's reverence for the Senate's time-honored, 200-year-old tradition.

Posted 7:38 AM by Robert

Looking For Love In All The Wrong Places

The great Democratic self-flagellation proceeds apace. But like many a jilted suitor, the Democrats seem to be looking in all the wrong places for love, the cause of their losses and the solution to their problems - and determined to repeat their mistakes.

The Democrats simply should not be focusing so much on their loss of the presidential election. Once the economy recovered in earnest, it was always a very long shot for John Kerry to win. In fact, Kerry-Edwards did better than most economic models predicted - he should not be ashamed of his vote count (some aspects of his broader campaign "performance" is another matter).

But perhaps the most peculiar and potentially fatal effect of the Democrats' over-emphasis on the presidency is the resulting romanticization of the Clintons. Yes, Bill Clinton unseated an incumbent President. But Mr. Clinton mostly surfed into office on the back of an economic wave - a recession that had receded a little too late to benefit George H.W. Bush. In 1996 the by-then-burgeoning economy allowed Mr. Clinton to overcome the many flaws in his first administration.

This part of the Clinton "legacy" will at some time be repeated. In the future, both Republican and Democratic administrations will again fall victim to the uncontrollable business cycle. And in the future, otherwise unsuccessful incumbents (like Bill Clinton) of both parties will be returned to office because an uncontrollable business cycle just happens to bouy the incumbent up. But presidential business-cycle surfing had nothing to do with Mr. Clinton (indeed, his 1993 tax increase risked a double dip recession) and the Democrats need not look to Mr. Clinton to replicate the most critical aspects of "his" 1992 and 1996 successes. Even the 1992 business cycle wave that washed Mr. Clinton into office would probably not have been enough if Ross Perot hadn't declared his bizarre 1992 jihad against the incumbent. As they seek wisdom in their Clintonian apocrypha, are the Democrats going to try to replicate or institutionalize that aspect of Mr. Clinton's 1992 campaign? Perhaps John Corzine - whose function is mostly to persuade near-billionaire Democrats to run for Senate seats - might branch out a bit with a effort to persuade eccentric billionaire Republicans to run against incumbent Republican presidents?

While the waves of the business cycle will eventually carry Democrats back into 1600 Pennsylvania Avenue as flotsam if nothing else, the same cannot be said of the Capitol. That's why the election of several new Republican Senators and the ejection of key Democratic Congressional incumbents in a period of prosperity, including the defenestration of what should have been a secure Democratic Senate leader Tom Daschle, should be much more troubling to the Democrats than what happened to John Kerry. The Democrats should be trying harder to figure how to fix what's been going wrong for them in the Congress.

With respect to Congress the Clintons are especially dangerous people to romanticize. They have almost always been poisonous to Congressional Democrats. Mr. Clinton's 1992 coat tails were negative - Democrats then lost seats in the House. The 1994 Congressional elections, which awarded both House and Senate control to the Republicans, were vastly more disastrous for the Democrats than those of 2004. Yes, there was a bit of regrouping in the late 1990's - but that was mostly attributable to Republican missteps, not to Mr. Clinton. The 2000 election was a return to the Clinton norm, with Al Gore deprived of what should have been an easy "third term" - and the Senate slipping back to Democratic control only after Republican Jim Jeffords defected.

So why the focus on the presidency - and therefore the focus on Mr. Clinton as "the last big Democratic winner" and on Hillary Clinton as potentially "the next big Democratic winner?" The Clintons since 1992 are more responsible than anyone else for putting the Democrats in their current disastrous Congressional position. The Democrats' top imperative should be to make sure that nobody like the Clintons ever gets close to Democratic positions of power again. Instead, the Democrats and their media apologists seem determined to make the same mistakes all over again - just like so many hasty, jilted lovers do on the rebound.

Posted 10:51 PM by Robert

Not A Fully Satisfactory Metric

This election was characterized by an unusual number of controversies regarding public opinion polls. The point at which the polls may be least significant is the very end of the campaign when the final polls are taken. Yes, there is some speculation that final polls may affect turnout a bit, but that surely is a very minor effect. Further, by the final days preceding the election the campaign has been run, the candidates and their supporters have advanced their arguments, deployed their strategies and tactics and marshaled their positions and forces - all informed by public opinion polls taken much earlier in the campaign. Even beyond that, the early dynamics and psychology of a campaign are largely determined by reports on polling results. Those factors can seriously affect voting patterns in primaries in which strategic voting can be very significant. In contrast, the final polls are mostly curiosities, surrogates for the real thing soon to come - but not influencing that real thing much.

So it strikes me as a very odd thing indeed to measure which pollster was "most accurate" on the basis of whether the pollster's final poll "called" the election. But that's what Real Clear Politics is doing. And they are very smart guys. But consider, for example, Zogby's bizarre, outlying polling reports the week before the New Hampshire primary, which he pulled into line with the other polls in his "final" poll. Was Zogby "accurate" in new Hampshire? I don't think so, but the RCP metric says he was accurate ... and Zogby has used this trick on other occasions.

Posted 9:39 PM by Robert

La Peste

The Washington Post reports:

"We have to treat the disease, not the symptom," [James] Carville said. "The purpose of a political party is to win elections, and we're not doing that."

Uh ... Mr. Carville ... the purpose of a political party is supposed to be advancing and preserving certain moral principles chosen by its members. It is true that in a democracy winning elections is sometimes an important subsidiary component of party purpose. But many perfectly good political parties in this country know perfectly well that they will almost certainly never win an election. That doesn't deprive the Libertarians, Communists, Greens or Natural Law Parties, for example, of their purposes. Indeed, some of the most important political parties have existed and now exist in political systems in which there are no elections.

Having too many people in the Democratic Party - especially its higher levels - thinking that "the purpose of a political party is to win elections" is the disease. Indeed, the Democratic Party has become an example of a party that for too long has been able to win elections without having a purpose. Its "disease" is characterized by its ongoing dominance by technocratic functionaries without moral center and those having principles shared by an isolated minority.

The disease has long gestated. Mr. Carville is most associated with Bill Clinton, who once told Tony Blair that Mr. Clinton expected to be remembered mostly as someone who won elections. The shocked, newly-minted Prime Minister remarked that he (Blair) certainly hoped he would be remembered for something more substantial than merely winning elections. And now - thanks to his stalwart position in the international theater - he will be. That's one of the nice consequences of not contracting Mr. Carville's "disease."

Of course, Mr. Clinton may be mostly remembered for his sexual scandals and impeachment. But, then, irony is cheap in politics.

UPDATE: La Peste Carville progresses, inducing delusional fever:

"We can deny this crap, but I'm out of the denial. I'm about reality here," Mr. Carville told reporters at a breakfast hosted by the Christian Science Monitor. "We are an opposition party, and as of right now, not a particularly effective one. You can't deny reality here."

He said the party is desperately in need of a compelling narrative to tell voters, rather than the "litany of issues" the party stands for now.

He said Mr. Bush and Republicans presented just such a story: "These guys had a narrative — we're going to protect you from the terrorists in Tikrit and from the homos in Hollywood. That's it," he said. "I think we could elect somebody from Beverly Hills if they had some compelling narrative to tell people about what the country is."

So in the newly found "reality" of James Carville, George Bush was re-elected and both houses of Congress became substantially more Republican because the Republicans supposedly told the American people "we're going to protect you from the terrorists in Tikrit and from the homos in Hollywood. That's it." That was what he thinks the Republicans' "compelling narrative" was that the Democrats have to match.

That's very interesting. Oddly, I have no recollection of Mr. Bush ever saying anything whatsoever about "homos in Hollywood" during the campaign. Perhaps it was one of those unusual "compelling narratives" that dare not speak its name? And while there was quite a bit of effort expended by the President's people to convince voters that Iraq was a critical component of the war on terrorism, the concern (at least as I heard it) was that the persistence of terrorist states and states that sponsor and foster terrorism (regardless of whether there was a direct connection to 9-11, the narrow focus of the Democratic alternative) has to be dealt with over there of we'll inevitably have to deal with the consequences right here in the USA. If Mr. Carville has found "reality," it must be of the alternate variety,because there doesn't seem to be much overlap between his reality and mine.

But there is one point we do have in common: I also think we could elect somebody from Beverly Hills if they had some compelling narrative to tell people about what the country is. In fact, Arnold Schwarzenegger is exactly such a person. His "compelling narrative" has something to do with self reliance, low taxes and things like that - in other words a narrative that also has little in common with Mr. Carville's alternate reality.

Too bad about that "native born American" clause. Mr. Schwarzenegger will just have to make do with Sacramento.

Posted 1:22 PM by Robert

Another Day In The Life Of Terry McAuliffe II

The insanity continues:

"This party is stronger than it's ever been. We're in the best financial shape. We now have, unlike four years ago, millions and millions of new supporters of this party. We're debt-free for the first time ever, and we're beginning to build towards 2008" -- Democratic National Committee chairman Terry McAuliffe, after last Tuesday's elections.

Quote from OpinionJournal's e-mail service, Political Diary.

Mr. McAuliffe may be - at some subtle, nuanced level - a highly intelligent and talented being. At more obvious levels, the same is certainly true of Donna Brazile, Harold Ickes, Flipper and Dracula. None of those beings is an appropriate choice to be a national party chair - although Flipper and Dracula may edge out Ms. Brazile and Mr. Ickes, respectively, in that running.

It's close, though. Really, really close.

UPDATE: CBS News says that Mr. McAuliffe's "term is ending" - and that Howard Dean may want his job.

Against competition like Howard Dean candidates such as Flipper and Dracula are clearly way in the lead!

Posted 9:45 AM by Robert

News. Supply. Demand.

The New York Times ponders the growth and profitability of Fox News in a curious article that spends much space on the consequences of Fox becoming the largest cable news network:

Fox News clobbered the other cable news networks, its 8.1 million viewers more than tripling its own election night prime-time performance in 2000. NBC, ABC and CBS, on the other hand, lost millions of viewers this year, according to Nielsen Media Research. And Fox News actually came closer to CBS in the ratings than CNN did to Fox News. .... [T]he network's success could undercut the very raison d'être of Fox News: that it exists as an alternative to what its executives and some of its on-air talent call, disdainfully and often, the media establishment. Fox News has now become popular enough - with an audience whose conservative political leanings track those of the voters who re-elected President Bush - to lay claim to its own place in the establishment.

Someone might want to point out to the Times that when the reference is disdainful, the term of choice is the liberal media establishment. But who's picking?

Perhaps the most bizarre omission in the Times article is its complete failure to consider the consequences of supply and demand in its analysis of why Fox News keeps getting bigger and more profitable and the outlets comprising the liberal media establishment - including the New York Times - have become "mature" cyclical businesses whose profits tick up when advertising spending goes up generally, but mostly have profits that are at best stagnant or decline steadily in the long run.

Here's something to ponder: NBC, ABC, CBS, MSNBC, PBS and CNN all serve their news with pretty much the same political mix (calling that mix a "slant" or a "bias" or the consequence of "unbiased policies" does not change the economic fact that the mix, whatever it is called, is pretty much the same). That's a lot of suppliers to align themselves with the views of the roughly 50% of the nation who voted for for Kerry-Edwards. On the other hand, the Times completely misses the economic consequences of one of its own observations regarding Fox:

What seems less open to debate is that the audience for Fox News mirrors the majority that re-elected the president. In June, the Pew Research Center for the People and the Press reported that the percentage of Fox News viewers who identify themselves as Republican was 41 percent, compared to 29 percent who identified themselves as Democrats, and that 52 percent of Fox viewers identified themselves as conservative. (CNN, by contrast, was found to be more popular with Democratic viewers.) Mr. Ailes said he regarded the study as "a totally fraudulent survey done by a bunch of liberals."

Andrew Kohut, president of the Pew Research Center, said, "It's a classic case of shoot the messenger." Mr. Kohut said his organization's financing came from a nonpartisan source, the Pew Charitable Trusts, and the survey results had been replicated in other studies. He added that Fox News's commentators had had no problem quoting approvingly from an earlier study by his organization - one that suggested that the news media was increasingly liberal.

The Times reporter seems completely distracted by the "Is-Fox-conservative?" side show. The main economic point here - entirely missed by the Times - is that Fox is the only major television supplier to align itself with the views of the roughly 50% of the nation who voted for Mr. Bush.

Political slant is obviously not the only factor used by news consumers to choose their media. Now that the election is over, Fox's advantage and distinctiveness may fade somewhat. Or Fox's advantage and distinctiveness may not fade, since the liberal media establishment insists on flavoring all sorts of stories with what the "Bush base" would view as political bias.

Media audiences are not wholly distinct even during politically charged events like elections. Many people flip at least briefly among news channel to follow special events - and thereby create their own "balanced" portfolio of news. (One might compare this behavior to that of investors who create their own portfolios of stocks rather than purchase stock in a single "balanced" conglomerate.) But even those "media flippers" have lots of choices for their "left-of-center" litings - but Fox is the only choice on television for the "right" view. The Man Without Qualities, for example, found Wolf Blitzer's energetic and increasingly delusional attempts to present the election results as "up for grabs" and "too close to call" long after Mr. Bush had clearly carried Ohio to be hilariously entertaining compared to the obviously correct "it's over - Bush won Ohio and reelection" message Fox was putting out. Similarly, science fiction movies that defy the laws of physics can sometimes be much more entertaining and hilarious than a science documentary explaining those same laws. Part of the entertaining hilarity is that after a few martinis the science fiction movies can for moments on end actually seem to make more sense than the documentaries - until you actually think about it - just like Wolf!

The bottom line is that to the extent political slant is a factor in viewers' choice of media outlet, Fox has a huge advantage simply because it is the only television news outlet serving its 50% of the nation while the outlets comprising the television liberal media establishment are many and for the most part virtually interchangeable. Unless the television liberal media establishment actually remakes itself into the television media establishment (say, for example, CBS fires Rather, hires Hannity), that advantage will continue and Fox will likely continue to grow and make ever more money while its competitors continue to shrivel. If that transformation continues to be delayed or denied, one can look forward to lots of consolidation in the television liberal media establishment. The attempted merger of ABC News and CNN was one early attempt, an attempt that essentially recognized how fungible these two outlets really are. That merger crashed on big corporate ego rocks at Disney and Time Warner - but the economics justifying the merger have only gotten more imperative.

All of which begins to sound a lot like the current discussions about how the Democratic Party will have to remake itself into something broader if it wants to survive.

MORE: Reports concerning the workings of CBS News bear an increasing resemblance to the disconnected associations one might read in, say, Zippy the Pinhead comics:

Pre-election, the feeling in some quarters at CBS was that if Kerry triumphed, fallout from the investigation [of the Rathergate fake-document ANG story] would be relatively minimal. The controversial piece’s producer, Mary Mapes, would likely be suspended or fired, but a long list of others up the chain of command—from 60 Minutes II executive producer Josh Howard, to Rather and all the way up to news division President Andrew Heyward—would escape more or less unscathed. But now, faced with four more years of President Bush, executives at CBS parent Viacom could take a harder line on the executives involved.

So CBS News is now to be seen discharging senior people who would have been retained but for President Bush's re-election? The liberal media establishment will react with fury to that report. It's pretty clear that this story was probably leaked by the very people at CBS News who are threatened - exactly to stir up that fury and resistance to their discharge. Whether those people stay or go at this point, it's another disaster for CBS News.

And a few more bucks for Fox.