Saturdays tend to be quiet days in the blogosphere, but I've come across two entries that are worth noting. First, Armed Liberal offers part four of his series on terrorism, in which he concludes that it would be impossible to satisfy the demands of modern terrorists because "it is the act of warring against the West and modernity that matters, not any specific goals." And Atrios features a long guest commentary that sees in Bush's Iraq strategy a replay of the hubristic "landslide" strategy that Karl Rove employed, to near-disastrous effect for the Bush campaign, during the final days leading up to the 2000 election.
Saturday, August 24
Friday, August 23
David Yaseen notes a UPI piece that compares President Bush to Herbert Hoover. The piece is notable because, as David writes, UPI, like the Washington Times, is owned by Sun Myung Moon, a supporter of Republicans in general and the Bush family in particular. If UPI is "hissing the 'H' word at Bush," it bodes ill for the president.
As much as the article suggests that at least some conservatives are growing displeased with Bush, though, it also signals how far the once-mighty UPI has fallen. The passage in the article that caught my eye was this:
Even worse, Bush has already enthusiastically echoed Hoover -- and abandoned the great William McKinley, William Howard Taft, Warren G. Harding, Gerald Ford and Ronald Reagan traditions of tough, cool-nerved and reassuring leadership in difficult times.
Now, I'm old enough to remember Gerald Ford's presidency, and I don’t recall people being terribly reassured by Ford's call to "whip inflation now." But put that aside. Great? Leadership? Warren G. Harding? If Bush is supposed to aspire to reach the level of Warren G. Harding, we're all in very, very serious trouble. Either UPI has gone into the satire business, or it has lost touch with reality.
I was planning to write this morning about the extraordinary opinion just released by the Foreign Intelligence Surveillance Act court, which rejected the Justice Department's bid for new powers on the grounds that the FBI had consistently misused its powers under the existing statute. But Jason Rylander beat me to it:
It always amazes me how conservatives deride the government in matters economic and scoff at the prospect of a bureaucrat saying "I'm from the government; you can trust me." And yet in criminal cases--be it counterintelligence or run of the mill drug seizures--the first reaction is to give the authorities more power, which ipso facto undermines individual rights. There was nothing patriotic about the ironically-named USA Patriot Act, which expands Mr. Ashcroft's powers to combat terror. The government must never have unfettered power to investigate its citizens. And yet, we're just supposed to take it on faith, for example, that a two-page memo from an underling at the Defense Department is sufficient evidence to justify the indefinite detention--without access to a lawyer--of American citizen Yaser Esam Hamdi. When dealing with law enforcement, American citizens must demand--as we once did with the former Soviet Union--some accounting of their claims. Mr. Ashcroft wants trust? Fine. Trust, but verify.
"Are we fighting the Muslim Arab world in a replay of the Siege of Vienna? Or are we struggling with issues endemic to both the developing and developed world, which are, for specific reasons, more apparent right now in the Arab world?"
His conclusion is profoundly alarming.
Thursday, August 22
The Mets, who were lurking on the fringes of the wildcard race two weeks ago, are now in free-fall, having lost ten straight games. ESPN's Sportscenter ticked off the Mets' failings this morning, noting their bad offense, bad defense, bad pitching, and bad intangibles. Actually, the pitching hasn't been all bad—the Mets surrendered only four runs total in their last two games. But they still managed to lose both games because (a) the offense could generate only a single run over those eighteen innings, (b) Rey Ordonez made an appalling baserunning blunder on Tuesday to kill a potential rally, and (c) Mo Vaughn made an incomprehensible mental error on a cutoff play to allow the Giants to score their only run in a 1-0 Mets loss.
The Mets' problems are deep and systematic. An ill-fitting collection of pieces, they play with no sense whatsoever of baseball fundamentals. For the second straight season, no Met is having a career-best year at the plate, and few are even approaching career-average years. Responsibility for this failure ultimately has to rest with the manager and his coaches, and yesterday Bobby Valentine said the right things, accepting blame for the Mets' dismal season. Alas, Valentine isn't going anywhere, if Mets owner Fred Wilpon is to be believed. Responding to Valentine's comments, Wilpon stated: "I don't hold the season as his problem or it's his to blame and I don't hold [general manager] Steve Phillips either. We all are responsible and the buck stops with me." It's nice of Wilpon to accept ultimate responsibility, but it's cold comfort for Mets fans, as Wilpon (who only just became full owner of the team) isn't going anywhere, either.
I've heard a number of Mets fans yearn for a strike that would bring this miserable season to a premature end. I love the game too much to want that (plus, I want to see Commissioner Selig squirming in the stands at the Metrodome, watching the Twins play in the postseason). But drastic action is needed, because last year and this year feel far too much like 1991 and 1992 for comfort. And that action should start with Valentine's and Phillips's dismissal.
Update: Oh, this hurts.
(Link via Eric McErlain).
I meant to add a link to Lynn B.'s In Context when I updated my blogroll over the weekend, but it slipped through the cracks in my brain. I've done so now.
Armed Liberal posted part two of his series on the roots of terrorism yesterday afternoon. A.L.'s reading of liberation theory (which he sees as underlying much of the domestic and international terrorism over the past half-century), combined with his observation that "almost all of the leadership of the Palestinian/Arab terror movement has been from the highly Westernized upper-middle class," leads him to wonder "if we are trying to fight the wrong war." It's a thought-provoking essay, and apparently there's more to come.
Two separate intellectual-property stories yesterday demonstrated the ways in which large corporations use intellectual property claims (and, not coincidentally, expensive lawyers) to bully smaller entities. In both cases, the corporations may well be right on the law, but their ham-fisted handling of the matters betrays a curious lack of concern for public perception.
Josh Marshall, D.C.-based author of the superb Talking Points Memo, was understandably upset when the Washington Post began an online column of political commentary by Terry Neal called "Talking Points." Josh conceded that he did not have a claim to exclusive use of the phrase "talking points," but argued that use of the phrase for a D.C.-based page of political commentary by an outfit that was well aware of Josh's site was inappropriate.
Like many fans of Josh's site, I wrote to Terry Neal suggesting that he and the Post consider an alternative name for his column, using care to phrase my suggestion in friendly and temperate language. Yesterday, I (along with others who wrote to him) received a reply:
In response to your e-mail about our use of the words "Talking Points" for my column, please see the letter below that we sent to Marshall yesterday. The bottom line of this letter is that someone else, a Washington attorney named Alan R. Schwartz, was running a political website called www.talkingpoints.com, for three years before Marshall began writing his blog. That site is now inactive, but it was active at the time Marshall registered the domain name www.talkingpointsmemo.com in January 2001. In addition to that, Bill O'Reilly of Fox News adopted the intellection property "Talking Points Memo"—the exact same words of Marshall's site—for his daily news show and online column as far back as 1998. Nonetheless, Marshall argues that he should have exclusive rights to the words "talking points" and all variations of the same. We disagree.
Below, you will find the letter—with links that firmly document our position—that we wrote to Marshall and below that, you will see an e-mail exchange between Marshall and Schwartz, which Mr. Schwartz copied me on today. And finally you will see what the Wall Street Journal's Opinion Column had to say on the subject.
Have a good day.
It's hard to imagine a more graceless reply coming from a major media outlet. In the letter, Neal baldly mischaracterizes Josh's position, and while he makes an observation—that a D.C.-area attorney was operating a political website called "Talking Points" at the domain www.talkingpoints.com at the time Josh began writing Talking Points Memo—that tends to undercut Josh's legal position, I never read Josh as making a purely legal argument. Neal's letter uses an aggressive tone that is ill-advised, given both the mild tone of my original letter and the fact that the dispute between Josh and the Post has been the subject of a fair bit of discussion in the blogosphere—Neal had to know that his letter would be circulated beyond those to whom it was directly addressed. Neal's letter is also badly written; were I a journalist, I would be embarrassed to send such prose over my name (if someone can explain the nature of "intellection property" to this poor lawyer, I'd be grateful—I seem to have missed that course in law school).
As a purely legal matter, the Post appears to be right. But as a matter of public relations and professional courtesy, it has badly mishandled the matter. As Tapped wrote this morning:
We think Josh wins this round. The point is this: Josh has been writing a very widely-read political weblog for over a year now. (Plenty of reporters on the Post's national desk are among his readers.) Terry Neal just started his. It would have been smart and good manners for the Post and Neal not to pick up the same name, whether or not Marshall owned the copyright on the thing -- because they really aren't fooling anyone by insisting that this Alan Schwartz guy and Bill O'Reilly both had Marshall "beat," which is true but irrelevant. (Schwartz' blog was obscure and is now defunct. O'Reilly runs a TV show, not a blog.) They thought no one would notice and, even dumber, that no one would care. And when Marshall nicely asked them to find a different name, please, they resorted to the lawyers. But Marshall wasn't making a legal point or threatening a suit. He was asking them for some professional courtesy.
Meanwhile, Dan Lewis notes a USA Today article with the latest on Major League Baseball Properties' campaign against fan sites devoted to major league teams, a campaign that led to the shutdown of Mets Online.net three weeks ago. According to the article, MLBP has targeted 22 fan sites for trademark and copyright infringements, including the use without permission of team logos and photographs of players in team uniforms. Like the Washington Post, MLBP appears to be right on the law (although in the case of long-running sites like Mets Online.net, which operated with the knowledge and cooperation of the Mets, equitable defenses might apply). But MLBP is wielding a large club against sites that, let's face it, ultimately promote Major League Baseball's interests. Instead of working with these sites to formulate license terms that allow the sites to continue to serve fan interests effectively, MLBP makes demands that lead many site managers simply to give up.
At a time when the threat of a work stoppage already has fans on edge, MLBP's actions threaten further fan alienation. And they seem to realize it. From the USA Today article:
MLB vice president Ethan Orlinsky said the big-league office isn't trying to bully anyone.
"That's why we send letters, not lawsuits," Orlinsky said.
Oh, I see: they don't immediately file a lawsuit, they just send letters threatening to file a lawsuit. That makes all the difference.
Both the Talking Points Memo dispute and the actions of MLBP betray a corporate arrogance in dealing with the public that is distressing. That something is legal does not mean that it is smart, or right, or good.
Wednesday, August 21
My two courses this semester—Civil Procedure and Evidence—are large classes; one is required, and the other is practically so. I enjoy teaching both of them, but there's no question that each class contains a fair number of students who are in the class because they have to be, not because they want to be. The real fun for me will come in the spring, when I teach Legislation (for the first time) to a smaller, self-selected group.
Congratulations to Howard Bashman on the publication of his first essay at Slate (I'm confident it won't be the last). The essay takes issue with the Supreme Court's recent reliance on public opinion polls to define the scope of the Eighth Amendment in Atkins v. Virginia. Howard's argument:
Allowing the Constitution's meaning to be determined by public opinion polls not only devalues that historical document, but it also ends up undermining the majority's preferences by allowing a vehemently opposed minority to become much more influential than it would otherwise be.
I can't argue with Howard's conclusion. The Constitution is in many respects an antimajoritarian document. Some find this troubling, but I regard it as one of the Constitution's strengths. The framers themselves had seen the perils of government that gave free rein to transient political majorities; the Constitution was devised so as to limit the damage that those majorities could inflict on political minorities. Basing a reading of that document, then, on the results of opinion polls, which represent merely a snapshot of public attitudes at a particular moment (and attitudes expressed outside the solemnizing setting of the voting booth), is disturbing.
The author of the Daily Kos, who served in the army during the Gulf War, notes the discrepancy between the non-veterans who support attacking Iraq and the veterans who are, at the very least, raising serious questions about the wisdom of such a move:
Make no mistake. We were ready to serve. In fact, we were eager to put our training into action, but we couldn't mask our fears. War is dangerous business, and death is final. It is impossible for non-veterans to fully understand. A good soldier will do his or her duty, but it's a heavy burden and should not be imposed lightly. Not only does war kill, but it destroys families, and scars survivors. Thus, war is ultimately a tool of last resort, to be used when the cause is just and all other options have been exhausted.
But the fools in our country's governing junta see things differently. For them, war is a political tool, to be wielded when expedient. It's no surprise that almost none of the "invade Iraq" cabal have served: Bush, Cheney, DeLay, Wolfowitz, Perle, Fleischer, Rice, Barnes, Hannity, Kristol, Lieberman, and the master tactician himself -- Rove (Rumsfeld is the exception).
On the other hand, the veteran contingent in both parties have led the anti-war effort -- Powell, Hagel, Kerry (MA), Scowcraft, Schwarzkopf, Clark, and the entire uniformed cadre at the Joint Chiefs of Staff (Armey is the exception). This is significant.
As Perle has said, this war is no longer about achieving any notable strategic considerations. It's no longer a military campaign. It's a political effort, all about saving face:
"The failure to take on Saddam after what the president said would produce such a collapse of confidence in the president that it would set back the war on terrorism.
* * * As the vast majority of the Bush Administration's veteran contingent have determined, saving Bush from his own overheated rhetoric can't justify the death of a single US servicemember.
I continue to be amazed by the enthusiasm for warfare displayed by many neo-con hawks who did not themselves serve, and by their eagerness to denigrate combat veterans who disagree by labeling them an "axis of appeasement." Bill Kristol mocked Senator Chuck Hagel for asking whether Richard Perle "would like to be in the first wave of those who go into Baghdad." But it seems to me eminently fair to ask those who would begin a military action whether they believe that the action is so clearly warranted as to justify mortal risk to themselves or their loved ones. If the answer is no, that does not necessarily and entirely defeat the argument for action. But it would raise serious questions, and, at the very least, the advocates would do well to temper their enthusiasm.
Tuesday, August 20
At Slate, Jeff Greenfield recalls the Republicans' 1994 triumph in the wake of that year's baseball strike and suggests that a strike this year could create a disgruntled electorate that would favor Democrats as the party currently out of power. An interesting thought—and one that Todd Weiner expressed in his blog on July 29 and in an NRO guest comment on August 12.
Paul Musgrave of the Hoosier Review (a group blog and news site at Indiana University that was kind enough to link to me last night) believes that Rep. John Hostettler's rude treatment of a constituent lobbying group is a non-story trumped up by an irrational and biased Evansville Courier and Press, with a push from Hostettler's electoral opponent. In support of his conclusion, Paul cites a passage from an editorial in today's paper, which reads:
Since the story was published, we have received a number of calls and letters suggesting that the Terre Haute women are Democrats, or that they were sent there by Hartke's campaign, or that it didn't matter, because Terre Haute is just now coming into the 8th District. So what!
Unlike Paul, I (a relative newcomer to the state) have never read the Courier and Press before today, so I can't assess their reporting in the broader context of their prior treatment of Hostettler. That said, I must respectfully disagree with Paul's conclusion that this is a non-story, although I will agree that the story isn't worth extensive coverage over a series of days. In the presence of a group of soon-to-be constituents (the group was from Terre Haute, which is not currently in Hostettler's district but is part of the reconfigured district in which Hostettler is now seeking re-election), who were there to discuss an issue that, as breast cancer survivors, had touched each of them individually and deeply, Hostettler effectively belittled their concerns and insisted on discussing a subject, abortion, that, though highly charged, bore only tangential relevance to the nominal topic of discussion. At best, Hostettler behaved like a boor, and boorish behavior toward constituents is a legitimate topic for reporting, especially during a campaign. The fact that the constituents may have subsequently spoken to Hostettler's opponent, who urged them to talk to the press, doesn't make much difference (and to the extent it does, the Courier and Press's original report included that fact). Hostettler's comments don't deny the group's account; if anything, his comments confirm it. The Courier and Press's choice of words—"So what!"—was unfortunate. But its conclusion was sound.
Howard Bashman notes a decision by the Seventh Circuit, written by Judge Richard Posner, that demonstrates the danger of taking procedural issues for granted. In May Department Stores v. Federal Insurance Co., the parties and the district court accepted without question the plaintiffs' jurisdictional statement (the part of the complaint that explains why the case is properly brought in federal court); that proved to be a mistake. In explaining why, Judge Posner also rebuked lawyers at my old law firm, who really ought to have known better:
It seems that we shall have to keep repeating until we are blue in the face that whenever a party to a diversity suit is neither a business corporation nor a human being, the district judge and the lawyers for the parties must do careful legal research to determine the citizenship of the party rather than content themselves with making a wild stab in the dark, as the parties did in this case when they chose the principal place of business to be the state of citizenship of a pension plan, a choice for which there is no basis in law. While we are about chastising the parties for their insouciance regarding the existence of federal jurisdiction, we note our displeasure at the conduct of the appellants' counsel, Covington & Burling, in having without our authorization appended to its response to our jurisdictional query what amounts to a second reply brief, purporting to correct a factual error in its previous briefs; and in having, in its opening brief, used ellipses in quotations to create a misleading impression of the meaning of the quoted passages. These tactics are especially unworthy of so distinguished a law firm.
The case reminds us that federal courts are courts of limited jurisdiction, and that in the absence of statutory jurisdiction the federal court cannot hear the case even if the parties want it to. Parties, and indeed courts, have been botching jurisdictional questions for some time—in the 1908 case of Louisville & Nashville Railroad v. Mottley (a staple in civil procedure casebooks), the case got all the way to the U.S. Supreme Court before anyone thought to question whether there was federal jurisdiction (and it was the Court, not one of the parties, that raised the issue). I like to think that my students will know better than to make this kind of mistake, but I'll be sure to refer them to Judge Posner's opinion to reinforce the point.
A group of breast cancer survivors who met with Rep. John Hostettler, R-Ind., to ask for his support of breast cancer research said all he wanted to talk about was some controversial studies that have linked breast cancer to abortions.
"He was obsessed with that," said Coral Cochran, a Terre Haute grandmother who has had two battles with breast cancer and was one of 11 women at the meeting.
"We were extremely disappointed," she said. Some of the women said they felt Hostettler was implying that they had abortions. One woman said she cried.
Hostettler said in an interview that he felt it was important for the women to know about the studies linking abortions to breast cancer. But, he said: "They didn't want to hear it."
The meeting with the women, he said, was "a discussion of breast cancer research and other issues. They did not want to talk about certain issues and I wanted to."
A young woman who accompanied the women to the meeting stood up and cried. "It was very cruel, very cruel," said 69-year-old Joan Teter of Terre Haute. "You'd think a congressman would have spoken a little better. He was just very rude."
I am the son of a two-time breast cancer survivor. That people like Hostettler (and Dan Burton, but that's for another time) continue to be elected to the House makes me ashamed of my adopted state.
Monday, August 19
Eugene Volokh quite properly takes issue with my hastily-written post from last Friday noting a bill presently under consideration in the House that would allow houses of worship to endorse political candidates without endangering their tax-exempt status. In my post, I opined that the bill was a bad idea and suggested that religion and politics should not mix. Eugene writes:
[I]f a church's theology leads is to think that some behavior in the world is evil -- whether it's slavery, or discrimination, or a war, or supposed oppression of labor by capital, or abortion -- then it seems to me quite proper for the church to urge its congregants to act on this moral imperative.
Quite so, and (the implication of my Friday post to the contrary notwithstanding) I have no problem with that. Houses of worship, however, should not be singled out among the vast range of non-profits and alone be permitted to endorse individual political candidates. That is what the House bill would permit, and that is what I oppose, both because it would represent special treatment for religious organizations and because, frankly, I find direct arguments that God supports one or another candidate for political office offensive.
Every once in awhile, I begin to fancy myself a writer. But then I come across something that shatters my illusions utterly.
On Friday, Dave Trowbridge delivered a haunting post on motorcyclists, winding mountain roads, and death.
Sam Heldman posted some thoughts on Friday about the politicized judiciary that are worth noting (Sam's archives are broken; scroll down to August 16). Sam was responding to my comments on a post by Howard Bashman, in which Howard suggested: "One way to improve the federal method [of selecting judges] is to restore federal judges to the traditional role of judging rather than forcing them to be arbiters of the most difficult social/legislative issues of the day." In my comments, I asserted that the courts had become involved in social and legislative issues not so much because of judicial activism but because, with the expansion of federal legislation beginning in the New Deal Congress had forced them to assume that role. Sam adds three points:
* Courts have always been involved in policymaking through the development and evolution of the common law. Sam is absolutely right here. Although the realm of the common law was and is considerably narrower than that of today's public statutory law, and tended to define private citizens' obligations to each other rather than the terms of their interaction with the government, judge-developed common-law rules played a tremendous role in the development of the American economy. Consideration of public policy, in other words, is part of "the traditional role of judging."
* A major reason for the courts' involvement in so many constitutional issues is the existence of a federal statute, 42 U.S.C. section 1983, that allows private individuals to seek compensation for the unconstitutional conduct of state actors. This observation reinforces and deepens my original point that courts find themselves involved in political issues because the political branches of government put them there.
* Any appropriate system of judicial philosophy should allow room for judges like Frank M. Johnson, Jr., an Eisenhower appointee who as a federal district court judge in Alabama in the 1960s and '70s, at great personal risk, entered a series of orders that helped to integrate Alabama's public facilities and enforce voting rights for African-Americans. Judge Johnson's activism in enforcing the law, in the face of enormous political pressure (not to mention threats of violence directed at himself and his family), made him one of the great judges of the twentieth century.
I should add, since Howard's posts have been prompted by the logjam in the Senate confirmation process, that I find the failure to schedule hearings and votes for judicial nominees as shameful now as I did when Sen. Hatch routinely used the tactic during the Clinton administration. The problem goes right to the core of the Senate rules, which, as far as I'm concerned, should be torn up and rewritten from scratch. If the president is going to choose his nominees based on ideology, then there is nothing wrong in Senate consideration of that ideology during the confirmation process. But the nominees deserve hearings, and they deserve the opportunity to have their nominations voted upon.
Sunday, August 18
Beringer Vineyards Founders' Estate Chardonnay 2000
Alice White Chardonnay (Southeastern Australia) 2001
The wines that I've discussed to date probably give the impression that I'm wealthy and living a life worthy of review by Robin Leach. Sadly, that's not the case. In the seven years after law school, I was single and spent a fair bit of my disposable income on wine, but once I met my wife my spending was redirected, and now that we have a baby (and we've gone from two incomes to one) my new acquisitions are narrowly constrained.
This meant that when I wanted to pick up a couple of whites recently, I capped my spending at ten dollars per bottle. That price bought the 2000 Beringer Founders' Estate Chardonnay; the Alice White 2001 Chardonnay was $6.50. This evening, with a dinner of poached salmon on the table, we decided to compare them.
I like Australian wine a lot, but I'm a little embarrassed by Alice White, which is a made-up American brand with a fictional Australian backstory. The grapes are indeed from Southeastern Australia, but the winery's address is in California. It's basically the Outback Steakhouse of wine: you won't find Alice White on the shelves down under, but the wine has proven quite popular in this country. And, embarrassing as I find the branding, I can understand why. The 2001 Alice White Chardonnay is competently made, with lemon, orange peel, and banana aromas and flavors over a light-to-medium-bodied frame. Ten years ago, Australian chardonnays in this price range tended to be made with oak chips, which gave them harsh, oaky flavors, but this wine is well balanced. I'm certainly not blown away by the wine—it is what it is—but for $6.50 a bottle it serves its purpose, and it paired nicely with the salmon.
So what does an extra $3.50 buy with the Beringer? One word: oak. Lots of oak. Vanilla oak. Toasty oak. Butterscotch oak. So much oak that the grapes are essentially superfluous. This wine is a tremendous disappointment to me. Seven years ago, a friend and I hosted a blind tasting of eight chardonnays from around the world, including some very expensive white Burgundies and a couple of California bottlings costing over $50 each. The tasting also included a ringer: the 1992 Beringer Napa Valley Chardonnay, which cost $9 at the time. The Beringer was the group's second-favorite wine, and several tasters placed it first. Since then, Beringer's popularity has grown, and the winery created the Founders' Estate line to fill the slot beneath the Napa Valley bottling. Last time I had it, the Napa Valley chardonnay was still a nice bottle, although it's now up in the $14 range; the Founders' Estate, however, can only be enjoyed by those who like oak juice.