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November 30, 2004

The Third Circuit of UnSolomonic Wisdom, or I'm With Althouse on This One

The Third Circuit just struck down the Solomon Amendment, the law which stated that any law school not allowing military recruiters would not receive federal funding. I think the two justices in the majority were a bit high on the cutesy value of their decision. Prof. Althouse pulls out the most risible bit of the decision:

Just as the Boy Scouts believed that "homosexual conduct is inconsistent with the Scout Oath," the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness. Just as the Boy Scouts maintained that "homosexuals do not provide a role model consistent with the expectations of Scouting families," id., the law schools maintain that military recruiters engaging in exclusionary hiring "do not provide a role model consistent with the expectations of," id., their students and the legal community. Just as the Boy Scouts endeavored to "inculcate [youth] with the Boy Scouts' values--both expressively and by example," the law schools endeavor to "inculcate" their students with their chosen values by expression and example in the promulgation and enforcement of their nondiscrimination policies. And just as "Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior," the presence of military recruiters "would, at the very least, force the law schools to send a message," both to students and the legal community, that the law schools "accept" employment discrimination "as a legitimate form of behavior."

(emphasis added) The Third Circuit judges are off their trolley if they actually believe this last sentence. Let me tell you from experience, there's nary a notice out of Career Services here that doesn't shout loud and clear--in ALL CAPITALS, in the case of our on-line recruiting site last year--that Columbia doesn't think that this is acceptable behavior. We received an email from our Dean last year pointing this out explicitly. And of course, anti-Solomon signs put up by student groups outnumbered pro-Solomon posters by about thirty-thousand reams to zero. If the Third Circuit thinks that Solomon was somehow gagging some of the most expressive people in America, it has a highly inflated view of government power. And anyone who thinks that Columbia, Solomon or no, supports even a shadow of Don't Ask, Don't Tell is playing the willful ignorance game. That last sentence is jurisprudence as a bad joke.

But Althouse makes a more important point, and one which has bothered me ever since I read the decision. Why is a law school like the Boy Scouts? The Boy Scouts exist as a private organization to foster certain civic and moral ideals. But that's it: there is no Scout badge that is the requirement for professional accreditation, nor does the state support Unauthorized Practice of Traditional Morality statutes. And if you want to practice a different set of values, there's always the possibility of setting up an organization to rival the Scouts.

None of this is true with regards to law schools. However "private" an institution like Columbia might be, it still earns its bread and butter off of what is nearly a state-sponsored monopoly: most states still require law school to practice law, and that school will normally have to meet the standards of the ABA. If you want to go to an ABA-law school, it cannot descriminate on the basis of sexual orientation. (See The American Bar Association, Standards and Rules of Procedure for Approval of Law Schools, Standard 210.) Unlike the Boy Scouts, you can't just go out and set up your own law school by different standards, at least if you want your students to have easy access to the profession.

The Third Circuit has presented law schools as a monolithic block of opinion: after all, the Solomon Amendment is inconsistent with "their students and the legal community." (Any JAG attorneys--presumably members of the legal community--religious lawyers or scholars, or anyone else who may be pro-Solomon, we can safely presume, don't count.) And I suppose that given the recent studies showing the overwhelmingly liberal tendencies of faculty in higher education, perhaps they're not entirely unjustified. But if any opinions are being stifled by the Third Circuit, its those of the minority of students who do back the Solomon Law, or merely don't care enough about it to find it worth losing access to military recruiters. After all, those students can't go join a law school which backs their own views--whysoever they may hold them--so long as the ABA holds sway. In a very real sense, they are actually powerless to go elsewhere.

Instead the Third Circuit goes along with the idea that law schools are being forced to express something. They're not--like the Boy Scouts were--being forced to elevate pro-Solomon scholars to their leadership. They're not even being told when recruiters come they must be allowed on campus without comment: indeed, the schools use every form of disapproval short of special WARNING: SUSPECTED HOMOPHOBE t-shirts. (And now that I've raised the idea, it'll probably be used next year.) They're merely saying that recruiters must be given access. Of course, there are students who, for whatever reason, think that the Solomon Amendment might not be such a bad idea. But if they do exist, they'd better shut up about it. Don't you know? Their expectations are not part of the law school.

November 29, 2004

Build Your Own Old-Fashioned

In a few hours, I'll start writing a bit about my trip to and from Michigan this weekend. Over the Thanksgiving holiday I gained a lot of important insights, such as: It is much easier to read and absorb 350 pages of Property while sitting in front of a roaring fire in an old stone fireplace, sipping a well-mixed Manhattan [1], than trying to do the same in Columbia's law library. From this we can conclude that the library would be markedly improved by the addition of large fireplaces, comfy chairs, and a staffed bar. At present it has none of these things.

I also encountered stunning displays of incompetence, mostly from American Airlines, who were kind enough to cancel, delay, or otherwise screw up my flights, mostly due to inadequate staffing. My planes literally spent more time on runways due to mechanical failure than in the air.

But hard as American Airlines tried to win the So Pathetically Incompetent We Can't Believe They've Not Immolated Themselves By Accident Already Award, the winner actually goes to a bartender at the sports bar in Grand Rapids airport. This sterling example of evolution delayed managed to cock up one of the simplest drinks ever devised by man: an Old Fashioned.

Really, there's only whiskey, bitters, sugar, a cocktail cherry... this is not chemistry at its finest. But I should have just ordered a beer when he said, "I don't think we know how to make that." I shouldn't have replied, "Trust me, I'm sure your bartender knows how to make an Old Fashioned."

What did the young man bring me? A strong glass of whiskey mixed with some kind of sweetish soda water (quite possibly Sprite), a lone cocktail cherry languishing at the bottom. No sign of bitters anywhere evident. And three packets of sugar, presumably so I could sweeten to taste.

Ah well. At least my family had something to laugh at before I got on the plane. For those cocktail enthusiasts who are flying the friendlier skies at the holidays, though, may I recommend the bar between gates B18 and B19 at O'Hare Airport? I met up with my brother there on his way back to Phoenix, and the bartender does a surprisingly fine martini.

[1]: Will Baude mentions that the idea of dry vermouth in a Manhattan had never occurred to him. I actually prefer my Manhattans with dry vermouth, having been converted to the cause by the bartender at the American Bar at the Savoy. If you ever have the chance, I recommend it.


I just received a particularly vile porn-spam to the site, which somehow slipped past my daily update of MT-Blacklist. It's gone now, and it was on a particularly old entry, but I'm not 100% certain it's gone. Please rest assured that when I find these things, I delete them, and they do not represent my views, preferences, or what have you.

Blech. Some things really shouldn't be seen before I have my first cup of coffee.

November 26, 2004

First Up Against the Wall When the Revolution Comes

OK, so I'm not blogging much over this weekend: any time that I have is either being devoted to Property and my Clinic, or visiting my family. But Matthew Homann, the sterling fellow who runs The Non-Billable Hour, asked me to contribute to one of his Five by Five discussion panels last week, and he's just put the results online. Besides my own thoughts, there's Jeremy Blachman, Mr. Poon, Buffalo Wings & Vodka, and Ambivalent Imbroglio. Grab a cup of coffee, because we seem to have had a lot to say. If you're interested in the best twenty-five changes to law school that no one's every going to make, you could do a lot worse.

Or if that's too serious for the day, look at the recipe for Turducken, quite possibly the greatest subsidy to cardiologists ever devised. (UPDATE AND WARNING: If you're a vegetarian or your name is Heidi Bond, do not click the previous link. Thanks to my brother for pointing out Black Table's 'How to Do Idiotic Things' page.)

Happy Thanksgiving

Sorry that you've not heard much from me: you may not for the next few days. I'm back in Michigan for the holidays, enjoying the company of my family. Or rather, working on law school things and wishing I were enjoying more of the companionship.

I had a truly miserable trip here, thanks to the disaster that was American Airlines at O'Hare Airport. But I'll tell that story later. I'm afraid that after getting rid of 400 comment spam messages (my host upgraded PERL, so not MT-Blacklist is choking), I'm too damn tired.

November 23, 2004

Ronnie Earl, Superprosecutor

Now, here's a man who's confident. Travis County Prosecutor Ronnie Earle didn't seem able to get an indictment against Tom Delay, so instead he's opted for a "moral indictment" in the New York Times. The man is nothing if not confident:

Last week Congressional Republicans voted to change their rule that required an indicted leader to relinquish his post. They were responding to an investigation by the Travis County grand jury into political contributions by corporations that has already resulted in the indictments of three associates of Mr. DeLay, the House majority leader. . . .Yet no member of Congress has been indicted in the investigation, and none is a target unless he or she has committed a crime.

(emphasis added) Surely pride goeth before that particular fall? Are the prosecutors of Travis County, Texas so astute and discerning that they have never brought a man before a grand jury unless they have actually committed a crime? Certainly he meant to write "is suspected of" a crime. Either that, or the entire process of criminal adjudication that follows an indictment is a rather expensive superfluity.

I've already written that it was dumb of the Republicans to try to change the rules to help Delay. But according to Mr. Earle--who of course hasn't a political motivation in his body--this strikes at the very rule of law, threatening our society, our social order, and the work of our law enforcement officials.

There is no limit to what you can do if you have the power to change the rules. Congress may make its own rules, but the public makes the rule of law, and depends for its peace on the enforcement of the law. Hypocrisy at the highest levels of government is toxic to the moral fiber that holds our communities together.

The open contempt for moral values by our elected officials has a corrosive effect. It is a sad day for law enforcement when Congress offers such poor leadership on moral values and ethical behavior. We are a moral people, and the first lesson of democracy is not to hold the public in contempt.

If one wanted a paragraph more finely crafted to make Mr. Earle look like a political hitman, it would be this. He so overstates his case that one would have to be excused for attributing political motivation to him, lacking any other coherent explanation.

After all, let's get one thing straight: the rule that was changed for the sake of Tom Delay wasn't a general law. It doesn't affect general citizens. It doesn't even affect all lawmakers, only members of a particular party. It's a rule for determining the standards under which they will reject their leadership, and the change was at worst one from a bright-line rule (anyone indicted must step aside) to a slightly more discretionary standard (a committee must recommend whether to remove anyone indicted within 30 days). If one believes that Mr. Earle is acting out of partisan motives, then even if hypocritical it may not be immoral to change the rule: enforcing it could be a manifest injustice.

This is the hypocrisy strikes at the very heart of our rule of law, making the jobs of enforcement officers more difficult? But if this rule is so important, certainly the fact that it's never been enforced by the Democrats upon their leadership is that much more toxic to the rule of law? Or is "hypocrisy" somehow more corrosive to more fiber than allowing an indicted man--remember, no man is even a target of a grand jury in Travis County, Texas unless he's committed a crime--hold a leadership position? Is allowing an indicted Democrat to be chair somehow moral because, hey, at least they didn't change the rules?

It's all very well to say, "Let justice be done, though the heavens may fall." But this rule is not a law, at least not in the general sense. (Do internal party rules have the force of federal law? Can they, since they're not passed even unicamerally?) Whether Mr. Earle is concerned with justice or simple politics, the heavens are not falling around him. Which, again, does the man no favors when one tries to guess his motivations.

November 21, 2004

Advice on Accepting Any New Projects While a 2L

1) Estimate the amount of time it will take you to complete the project.
2) Double that estimate. This is Estimate A.
3) Determine the number of free hours you have left in the week.
4) Halve that estimate. This is Estimate B.
5) Figure out how much trouble you'll get into if you say no. Measure this in the number of hours it will take you to get out of the trouble. This is Estimate C.
5) If Estimate A is greater than Estimate B plus Estimate C, do not under any circumstances say yes. If Estimate A is less than Estimate B plus Estimate C, go back to Step 1 and reestimate everything, because you probably got your sums wrong.

A) If the person asking you to complete the project is a cute member of the gender(s) to which you are normally attracted, expect a trap and double Estimate A.
B) If the person asking you to complete the project is a Professor or other person who might affect your grades, be very careful: these projects may have higher than estimated values for C.
C) If the project involves any kind of cash payment, add 20% to Estimate B.
D) If the project has the words "quick task," "should be easy," or "minor project" attached, double Estimate A. Any project to which those words can truthfully apply is not generally subcontracted.
E) If the project is for a journal, add 50% to Estimate A. These are never as easy as they seem.
F) Note that Estimate C may be subject to the Time Value of Trouble: that is to say, trouble that will show up tomorrow is less important than trouble that will show up today. On the other hand, trouble involving the aforementioned cute member of the gender(s) to which you are normally attracted may tend to be amusing enough to justify negative values for Estimate C.

Feel free to add your modifiers in the comments.

November 19, 2004

One Last Note for the Night

OK, one more before I leave for the night. Wow, I can't believe how good I feel having taken some time out from research and coding to write for fun.

Katherine writes about attempting to keep her birdfeeder free of squirrels. (I don't comment much at her place anymore, but it's such a good read when I'm down or stressed.) I'd advise her on how to solve the problem, but I don't want to spoil her fun.

We have more problems with rats than squirrels up here in NYC. Nevertheless, I have significant anti-squirrel experience from my time spend living in the woods in central Michigan. We have an abundance of birds, of course, and bugs that belong to the Cretaceous, and three different colors of squirrels. And there's nothing they like more than birdfeeders.

The summer before law school the squirrels got particularly frantic: I guess the birdfeeders were their tastiest source of food or something. So one of my then-neighbors tried to secure his birdfeeder by suspending it by metal wire twelve feet from the nearest tree trunk and twenty-five feet below the supporting branch. The feeder hung in isolation, and the squirrels couldn't get to it.

Well, at least not for a few days. Then the little beasties were hurling themselves in ever-closer lunges towards the feeder. Finally one would hit it, hang on just long enough to tear the bottom of the feeder open, and then tumble to the ground, surrounded by tasty goodness.

So my neighbor (an engineering professor) and my father (ex Army Corps of Engineers) start tackling the problem. The bottom of the feeder is secured. The squirrels go for the top. The top is secured, and pretty soon one of them has learned how to rappel down the metal wire. (I can only imagine this burnt the poor thing's paws.) Finally they're working in teams, hurling themselves out to the feeder, smacking it until it swung like a food-filled pendulum, getting it close enough for one of them to grasp onto. That one would then spin crazily, driving the feeder in a frantic circle until it spat birdseed from its sides.

I'm telling you, it was a battle of wits and a testament to squirrel persistence. I stopped scaring the vermin off, just to see how their thinking would evolve. And of course, I wanted to see what my father and his friend would come up with next. It's not like they're slouches at this: no, these are men whose mastery goes far beyond my duct-tape knowledge of fixology.

So I'm not going to advise Katherine in her battle with the beasts. I mean, why would I deprive her, or myself, of the fun?

I can believe how much I'm looking forward to going home for Thanksgiving...

Time Waster of the Day

Thanks to my brother, I can bring you the latest cool timewaster:

The Trebuchet Challenge: The Sport of Engineers

My brother: doing his best to make sure I never make it out of law school! Thank him, everybody!

Rights to Rites

Ah, finally, a chance to weigh in on the latest marriage debate between Carey and the (annoyingly pseudononymous) Irishlaw. And finally I get to weigh in on the side of the former (sort of) instead of siding with the clearly incorrect Irishlaw. Nonetheless, since the post below (and soon, above) this one are more interesting, I'll put this in an extended entry.

Basically, Carey is chastising IL for claiming that while same-sex marriage (SSM) is not a right, there is a right to marriage:

Irish Law says that supporters of same-sex marriage ("SSM") show "contempt" for the democratic process when they appeal to the judicial branch to preserve SSM in the face of the expressed desire of the majority to prohibit it. She claims that this tactic is legitimate only when a "right" is at stake--we can't infringe rights by majority vote--and that SSM is not a right.

That's fine, as far as it goes. But Irish Law doesn't want to say that "marriage" has nothing to do with rights at all. Predictably, perhaps, she asserts that marriage between a man and a woman is a right. This conveniently relieves herself of any obligation to do what she insists the supporters of SSM must do: persuade a majority in the public square to permit the practice, or go without.

I can't blame her for trying to insulate her version of marriage from the whims of the majority. After all, the ability to marry someone you love would be a terrible thing to lose. But why should Irish Law relax, content in the knowledge that her idea of marriage is safely ensconced behind the walls of "rights," while a gay person is forced to endure the vicissitudes of public opinion, pleading in the public square for what Irish Law is assured of having, and for what may, if won, be withdrawn in the next election?

With man/woman marriage safely protected as a right, Irish law can appear magnanimous about her willingness to debate SSM: "if I lost the overall debate in the public square I would be upset and keep working to protect marriage, but I would accept that the result had come about by democratic processes." This apparent magnanimity is possible only because she is protected from "losing" a public debate about whether her version of marriage should be legislated out of existence--she's already locked this up as a right.

First of all, Carey is factually incorrect: supporters of SSM are not going to courts to "preserve" a right in the face of a majority desire to repeal it. No right may be "preserved" that has not already been sanctioned, and the only marriages that have been are those in Massachusetts. And of course, those in Massachusetts have been sanctioned as the result of a court order, which doesn't do Carey's argument any good.

Even given that, the sensible answer to Carey is to point out that this isn't what IL should be saying. After all, heterosexual marriage is a right because it has already in statute by every state in the nation. In other words, a heterosexual couple has a right to marriage because that right is created by statute. (Though not all heterosexual couples: partners who are too young or too closely-related are forbidden.) Indeed, without that statutory right, there would be no legal case for SSM to begin with: the only way that Goodridge and fraternal arguments make sense is by applying a right to equal protection to the existing statutory right to marriage.

This can be demonstrated easily by the following thought experiment. Let us suppose that in a fit of insanity the entire country starts reading my blog, remembers that my preferred position is the abolition of (legal) marriage, and legislatively repeals every marriage statute in the country. Would Carey seriously suggest that a legal case could be made supporting some kind of "natural" right to legal matrimony? And if the state has withdrawn all legal benefits of marriage, of what would this right consist?

In other words, Carey is wrong to think that IL has a burden to persuade the rest of the country that marriage statutes are legitimate. They have been passed democratically in every state legislature, and thus her side has already won that battle and need not refight it. Indeed, what Carey might say is that my side bears a burden of persuasion--which I agree, it does. Or, if Carey really wanted to repeal heterosexual marriage and recognize only SSM, he'd bear that burden. Laws, once passed, don't automatically have sunset provisions.

The trouble is that IL doesn't take this position. Instead, she makes an argument for marriage being some form of natural right:

We could start with how the Supreme Court assesses fundamental rights for purposes of constitutional analysis. I'm not a big fan of tests like this, but I think it is generally accurate in looking at the rights our country values and protects. The test for fundamental rights, from Moore v. City of East Cleveland, Meyer v. Nebraska, and others, is whether something is "deeply rooted in the Nation's history and tradition" and "essential to the orderly pursuit of happiness" or "implicit in the concept of ordered liberty."

The cases that IL mentions are, of course, all Fourteenth Amendment cases, and substantive due process cases. And of course, this is the pernicious curse of substantive due process: under the Court's current jurisprudence, the "rights" which we enjoy under the 14th Amendment are defined primarily by what a cadre of Judges at any particular time consider appropriate. In the 19th century this was unfortunate if you were a worker but fairly useful if you were a robber baron; these days it's fairly useful if you're a liberal and a bit annoying if you adhere to a religion. But under the kind of jurisprudence that brought us either Lochner or Loving, the decision sits with nine members of the court.

Which brings us to Carey's next point:

[The argument that marriage has always been defined as between man and woman] is simply arbitrary. Definitions are (by definition?) always capable of being contested. Grounding a right "anterior to the state" (whatever that might mean) in a definition just begs the question of whose definition we should privilege. Irish law wants to privilege hers.

And if you read her argument, perhaps she does. But she doesn't have to. Carey is overlooking the fundamental question when it comes to the definition of marriage: not "what is marriage?" but "who decides 'what is marriage?'"

IL can be wholly consistent and state that marriage is a legal right for heterosexuals simply because there's a legislative right. She doesn't have to make much weaker arguments. Indeed, when she points out that: "Were it so, why wouldn't we see a great diversity around the world and in history where "marriage" meant all sorts of different unions or various arrangements?" she begs for factual dismissal. Marriage has always meant different things in different anthropological contexts. One trouble with translating The Tale of Genji is determining who is "married" or not, given that relationships between the sexes were regulated entirely differently, and for largely different purposes. (See generally, Ivan Morris, The World of the Shining Prince.) Closer to home, marriage among many in Utah doesn't mean "marriage between one man and one woman," or at least it didn't until we (legislatively) decided that Utah had to recognize it as such before admitting it to statehood. Throughout the world polygamy of various sorts and even relationships that we would consider incest have held official sanction.

Of course, any of the arguments that IL gives may be good or bad policy arguments, but they're not justifications for a universal right, and they don't provide a justification for recognition of a right to marriage outside the statutory. Which brings us to the final--and far more vicious than it ought to be--comment that Carey makes:

Chris Geidner is correct to characterize the SSM issue as fundamentally about equality. What I'm curious about is why Irish Law seems so afraid of equality. Is it because she fears that gays will demand that the Catholic Church sanction gay marriage?

I've never thought one should ascribe fear to an opponent unless one has to--it's just déclassé. And in this case, it's entirely unnecessary. After all, reframing the question takes it wholly out of the realm of "equality." No statute currently bars a man from from marrying a man because he's a homosexual. [1]. What the laws do is constrain him to marrying a woman, because marriage is given a certain definition. But as already noted, our marriage laws don't allow you to marry any partner you please, only those recognized by statute. A man marrying a man isn't unequal, it's simply impossible as a matter of fact until the definition changes, a change which is possible at the whim of a legislature. (No one has made an argument that same-sex marriage is judicially impossible.) One might as well reframe the question and ask what terrifies Cary so much about "democracy" or "legislation"--but that would be both silly and mildly offensive, since he's obviously scared of neither.

And of course, neither is IL. She has a preferred defintion of marriage, which within its definition is as equal as any other. Carey has his own. The only reason for my standing with IL in these conversations--I disagree with her on almost every policy point--is that in the end, what's decided here isn't as important as how we decide it. Carey wants to turn the world on its head, and make IL justify her laws to him. But our society hasn't recognized that right, and until it does, it should fall upon Carey or Chris (and, incidentally, to me once the movement gets off its judicial bandwagon) to convince it to do so.

As for whether she should be afraid that courts might come to require the Catholic Church to sanction homosexual marriages: why shouldn't she be? Given the overt hostility to religion which is shown by much of the radical gay rights movement, such a fear isn't irrational in the slightest. At the very least the Church should be worried that in employment, the Church would be required to pay benefits to any employees who later married a homosexual, which would be an implicit recognition. Now, were we making such decisions legislatively, one might compromise, and pass laws stating that no religious organization need recognize rights which contradicted their rites. But so long as we're going through the courts, it's a serious concern.

1: I'll admit to ignorance of family law: I don't know if there's still a state that requires consummation of a marriage for it to be legally valid. Presume arguendo that this isn't an impediment or that if Paris is well worth a Mass, marriage may well be worth one night of consummation. I mean, if that were the issue, it's merely an argument for repealing consummation requirements.

Gaming Delay, or Ethics for Fun and Profit

Let's be clear: I think the move to change the rules of the House Republican Party to allow Delay to stay chairman is a political mistake, for many of the same reasons that Prof. Bainbridge does. That said, I have a standard rule: whenever one side of a political argument is getting indignant and self-righteous, check the facts. When a hardcore (see comments) Democratic leftist law professor who was nonetheless a defense attorney is calling a yet-to-be-indicted man a crook, there's definitely more to the story.

The Background
First of all, look at the coverage of the story. To get the summary from the Washington Post:

House Republicans, in an unrecorded voice vote behind closed doors, changed a 1993 party rule that required leaders who are indicted to step aside. Under the revised rule, an indicted leader can keep his or her post while the Republican Steering Committee -- controlled by party leaders -- decides whether to recommend any action by all GOP House members.

The rule change applies equally to state and federal indictments.

Republicans made it clear they will not act if they think their leaders are targeted by grand juries or prosecutors motivated by politics, which is the charge DeLay and his allies repeatedly have leveled at a grand jury based in Austin. The grand jury has indicted three of DeLay's political associates in connection with fundraising activities for a political action committee closely linked to DeLay.

So, let's see how that plays among the punditry. First, E. J. Dionne, declaring that Republican's ethics are slipping:

Shays reminds us that when and he and Gingrich were in the opposition, they gave voice to many who worried about the dangers of an entrenched majority that came to assume it had a right to power and could do whatever was necessary to keep it. Gingrich's line about the Gilded Age just may have come 12 years too early. You don't have to be a crackpot to believe that the Gilded Age is now.

Or Prof. Heller, again steaming up the Yin Blog:
Hypocrisy, thy name is Republican. Let's not forget, the Republicans originally passed the indictment rule because they said they had higher ethical standards than the Democrats . . . . Ethics, integrity, honesty -- all are negotiable when it comes to increasing Republican power. The Republicans truly have no shame.

Both are rightly, of course, accusing the Republican leadership of hypocrisy. But it's an odd sort of hypocrisy. Normally such accusations come from within a moral framework similar to the the framework of the accused. And yet the Washington Post doesn't mention what MSNBC buries in the last paragraph:

House Democrats have a rule requiring committee leaders to step aside in case of a felony indictment, but it does not apply to top party leaders. Pelosi said the rule would be expanded to include the top leadership.

(emphasis added) How does this jibe with Pelosi's accusations (let alone Dionne or Hellers?):
"If they make this rules change, Republicans will confirm yet again that they simply do not care if their leaders are ethical. If Republicans believe that an indicted member should be allowed to hold a top leadership position in the House of Representatives, their arrogance is astonishing."

But of course, until it became convenient to the Democratic Leadership (i.e., pretty much yesterday), the Democrats formally believed the same thing. Now, while the hypocrisy charge is a pretty good one--the Republicans changed their rule to illustrate "moral superiority" back in the days of Dan Rostenkowski--hypocrisy itself is a pretty venial sin. And if the accusers are, at best, saying "The Republicans are daring to lower their standards back to where ours have been since the days of [not heretofore known as moral paragon] Dan Rostenkowski," then any accusation of the sin of hypocrisy must be met immediately by a question: do you really think the substantive rule is a good idea, and if so, why are you only raising your standards now?

Doing so isn't precisely hypocritical, though a case could be made, but rather grossly opportunistic. And I suppose that's not even a venial sin, but that's a shaky soapbox from which to preach.

The Rule
Once we've gotten past the shocking discovery that Republicans and Democrats on Capitol Hill can be hypocrits and opportunists--and I don't generally go to Washington for lectures on morality, nor get shocked by petty misbehavior there--a reasonable person should look and see if the rule change makes sense. So let's start with the rule itself: what does it say? (I'll admit, I'm relying on news reports because the House Republican Policy Committee and the House Republican Conference don't mention the rule change at all.) Essentially, it states that when a leader or chairman is indicted, the Republican's Steering Committee must move within 30 days to recommend to all House Republicans whether the member should be removed from his position. It's basically put a bit of discretion into an otherwise bright-line rule.

From the point of view of justice, this is probably wise. After all, for all you hear about Delay's ethical problems, let's consider what the Ethics Committee had to say about Rep. Chris Bell, who has brought most of the House ethics complaints against Tom Delay:

The committee's Republican chairman and senior Democrat used the four-page letter to Bell to warn lawmakers that making exaggerated allegations of wrongdoing could result in disciplinary action against the accuser.[1]

That accusations of impropriety frequently have political motivation is nothing new. Indeed, the Republicans stand on a very thin reed when they mention that an anti-Delay investigation is "political." Of course it is, as was the one which felled Rostenkowski, the accusations of ethical lapses by Tip O'Neill, Newt Gingrich, Hilary Clinton (to mention only book scandals), etc. The incentive to bring such prosecutions or investigations is going to be as strong in opponents as the instinct to protect the defendant will be strong in allies. The fact remains that sometimes such politically-motivated accusations will be true.

Nonetheless, in the face of such accusations, it may be that a bright-line rule requiring leadership officials to step down would be inappropriate. After all, as Republicans rightly point out, it is giving a veto on leadership appointments to opposition prosecutors.

In Defense of the Bright Line
At the end of the day, however, I still think the Republicans should have stood with their old rule. As Prof. Bainbridge points out, this has been a media gift to their opponents. But more substantively, I'm not certain the bright-line rule wouldn't have worked better, discouraged more improper prosecutions and ethics complaints, and been on the whole more just. And frankly, Nanci Pelosi should thank her stars that Republicans don't take my advice.

Not to sound too much like the Seven Habits of Highly Effective Pirates, but one solid rule in conflict is to always consider your opponent's next move. Let's say that a Democratic prosecutor did bring a highly suspicious indictment against Delay, and the Republicans made Delay step down, making it clear that his replacement was just there until the indictment was quashed. Sure, that's a bit unjust to Delay, since given the two-year terms in the House the case might very well not be concluded before he's up for re-election. But I think the Republicans could have legitimately told him that no matter how useful he's been, he should take one for the team.

On the other hand, look where this would leave Republicans. Their response could have been, "Not only are we following our own rules, but let's note that the Democrats still aren't playing by our standards, and they're taking advantage of us. Sure, it puts us at a disadvantage, but that's why you get when the party of lawyers starts manipulating the rules of the game." Make that the top talking point for every Republican asked about it, and within days it will become almost insufferable. Look who gets painted as hypocrits now!

What's the next move? Well, the Republicans still have control of the DOJ, and thus can move around Republican-leaning federal prosecutors. We have a governor in California, a mayor in New York, and dozens of other officials who now have an incentive to instruct investigators to look into Democratic candidates. Does anyone truly think that Republicans are the only folks with skeletons in the closet? Sure, Texas politics aren't pretty, but I've lived in Detroit: how closely does one want to look at David Bonier? How about Ms. Pelosi? Chuck Schumer (assuming the Senate wants into the game) or Charles Rangel? I'd imagine that if Delay had stepped down, the Democrats would have had to prepare for a game of revolving leadership, as every leader proposed came under attack.

Yes, the bright-line rule would lead to a lousy few months, maybe a year.

But then eventually both sides would very likely see how fruitless the tactic is. Just as Congressman Bell has gotten a firm talking-to, both houses of Congress would start disciplining those who made unfounded ethics complaints. Party leadership would start reigning in rogue prosecutors. At the end of the day, the profit in the battle is very low so long as both sides join it. New rules can be put in place to discourage misuse of the old ones.

In the end, I think the final equilibrium in the system would be slightly more ethical, and less fraught with conflict, than the present system set in place by protecting Delay. The Democrats now have an incentive to bring as many thinly-backed accusations against Republicans as possible: each one gives them more "hypocrisy" headlines. And the Republicans have no incentive to be more restrained, especially if Pelosi is true to her word about changing the Democratic rules: either they enjoy Democratic hypocrisy when they change their own rules, or they nix a few annoying chairmen.

Of course, all of this fits my preconceived notions about rules against standards: that rules will lead to a lower level of deviancy in the aggregate, but end up with unjustifiable results in individual circumstances, while standards are adjustable to the individual but liable to be abused by less-than-angelic officials. So my predictions may very well be suspect. Still, it's a pity the Republicans didn't at least try.

[1]This pretty confirms the impression I received during my time in the Senate, when staff counsel were always concerned with the minutiae of our activity to make sure we couldn't contradict a set of rules so complex that very few of us regulated by them could understand them. Call me a cynic, but I'm usually against "ethics" rules (as opposed to general laws) because I've yet to meet one that hasn't evolved into a system of self-protection mixed with a weapon for political backbiting.

November 16, 2004

Mo'Blogging Open Thread

As you might have guessed from looking around here, I'm a real devotee of Pocket PCs, a habit I picked up after doing an online marketing project for one of the larger manufacturers back before I came to law school. Actually, I think the project was pretty critical in forming my mobility addiction. There's a steep learning curve with PPCs, from getting used to handwriting recognition, a particularly curious (and not always friendly) interface, and merely developing the habit of carrying around the device. Nevertheless, once you overcome these hurdles, the flexibility and speed of the PPC makes its use second nature.

Besides scheduling and tasking, my PPC now functions as a portable music player, Japanese-English dictionary, and Chinese language learning tool. (I may end up in Hong Kong for part of the summer.) When I'm in the deep recesses of some strange library looking for some strange book, the PPC can connect to the law review's source list or Columbia's online libraries thanks to a wireless connection. But the one thing I've not done with it yet is blog.

So here's a question: anyone know some good mobile blogging clients for MoveableType? I'd appreciate any experiences, tips, or tricks you might have, because I don't have time to research new technology at the moment.

If Idle Hands Do The Devil's Work...

...my beatification must be just around the corner. It was a bit embarassing to have to constantly apologize to my guest this weekend: "I'll meet you once your back from the Empire State Building. Sorry, clinic work, programming, you know." "Yeah, I had to schedule my law review work for the weekend, sorry. Shall we go to a museum this afternoon?" I'm amazed we managed to see as much as we did.

Speaking of law reviews, I've been meaning to write something on the recent Posner piece in Legal Affairs. It's still not finished, unfortunately. In the meantime, you might want to look at this critique over at Reason and Liberty, who'd get a link on the blogroll if he didn't use RSS-less Blogger...

November 14, 2004

In Case You Doubt The Existence of Evil

I bring you the Hello Kitty Massive Multiplayer Online Roleplaying Game.

(Light blogging until Tuesday owing to company having arrived from London.)

UPDATE: It's been a day of introducing strange things to my English friend. No sooner had we exited the Met than we came across the Oscar Meyer Weinermobile in all its glory. She had barely gotten over the sight of a giant hot-dog shaped vehicle than we went shopping for dinner and picked up a couple of He'Brew's at the local D'Agostino's. Though convinced she'd come across a strange country, it seemed stranger still when we found a bottle of Monty Python's Holy Grail.

Of course, the last is manufactured by the Black Sheep brewing company in Yorkshire, so it's not like she could blame us for that one.

November 12, 2004

Whoever's responsible, cut it out. You make us look bad.

Great. Not only do I have to put up with easily-Blacklistable spam suggesting that I need Cialis, Viagra, or more games of Texas Hold Em. (On the grounds, I guess, that after a four-hour erection nothing's better than a few quick hands of poker.) Now some idiot has decided to use comment-spam for Googlebombing, and it looks like this jackass is a conservative.

Oh joy.

On one of my older entries, I find this message left in the comments:

I just can't shut my pie hole.

--Whiny Communist Bitch

The spammer set the signature to link to Associate Professor Elizabeth Lane Lawley's "Mamamusings" site. The idea being that if one were to search Google for the term "whiny communist bitch," she'd pop up first. As of yet, it's not working, but give it a few days.

Whoever's doing this: I don't care what you think about Ms. Lawley, her politics, or her personality. I haven't read her site and have no clue what her opinions are. But what you're doing is wrong, annoying, and pathetic. It's not big, it's not clever, and its not going to endear you to anyone. Go crawl back into your hate-filled hole before you encourage other idiots to follow your example.

As a result of your tomfoolery I've just had to spend fifteen minutes I don't have to erase your bile and yet remove Ms. Lawley from my blacklist. Worse yet, the fact that you're calling her a communist implies you're probably a conservative, which means you're blackening the reputation of the rest of us. May the bugs of a thousand implementations of Outlook infest your file structure and may you spend the rest of your nights sharing a bed in a youth hostel with an unshowered Michael Moore. That's not quite a good enough curse, but frankly words fail me.

Lets Get Wasted and Build

I'm a sucker for anything funny out there on the net, but I have a particular fondness for web comics. From the ominous hmmmmmm of Schlock Mercenary to the "It Could Be Me If These Boston Folks Were in Law School" of Something Positive, there's a hundred of these I can flip to when one more Lexis search for The Note is going to drive me nuts.

But particularly good is today's Queen of Wands. Lets face it, anyone whose hot evening includes hand tools, flat-pack furniture, and spiced rum is my kind of people.

UPDATE: And in the real world, these are my kind of people. Get them a grant. Via Frankenstein.

November 11, 2004

Things You Hear Too Often At Law School

There are some phrases I just never, ever want to hear again. Thus, I'd like to share with you this email I received today.

TO: Three Years of Hell Blog
FROM: The Commons

Dear Mr. Hell:

Could you please tell your readers that the Commons are really, really tired of hosting tragedies. We'd like to host a comedy once in a while. Even reruns of Seinfeld. Hell, King of Queens. But for the love of God, no more tragedies, they're getting old.

Yours most truly, & cet.,
The Commons

P.S. The Prisoners asked me to pass on to you that they've solved their difficulties and face no further dilemmas.

Japanese Character Entry on an English PDA

As I mentioned a bit earlier, my new PDA couldn't do Japanese handwriting recognition because Decuma's superb kanji recognition software does not play well with Windows Mobile 2003 Second Edition. I've now solved the problem. While probably not useful to 99.9% of my readers, I wanted to put the solution here for future tinkerers. (The title of this entry is dull, yes, but it's meant for Google more than anyone else.)

Basically, I installed Monster Chinese. It eats up a ton of memory and the user interface isn't a patch on Decuma's system, but on the other hand, it works.

You'll have to install three programs. First, you'll need the basic Monster.net application. Then you'll need the Japanese entry system. You'll also need the Chinese character entry system. And if you speak Japanese, the problem will be that the instructions (and the interface screens) are mostly in Chinese. But at the end of the day, it mostly works.

I say mostly, because there's a couple of differences between Japanese and Chinese characters, and every so often I was to look something up in my dictionary that I just can't manage. But until Decuma starts supporting the new OS, this is a good interim solution.

November 10, 2004

Bring Me The Head of Bill Gates

So yesterday my new Dell Axim x50v PDA arrived. For those of my readers interested in tech, I'll give a more detailed review, but for those who don't need the details: great piece of kit, pity about the operating system.

The Device Itself: The Axim's come a long way since the clunky, clumsy days of the X5. It's a bit larger than some of its competitors, but the ability to take both SD cards and CF cards means I'm not out a couple Jacksons in accessories. I've got a few complaints about the button-placement, which seem optimized for women with spidery fingers. I think I've opened the Rhinoskin case about three times without accidentally pressing the wireless button.

Which brings me to one other question. Dell is marketing the x50v, with its VGA screen, as a "gamer's PDA." What in heaven's name are they thinking? OK, I'm sure that if I installed a game on this thing it would look great, but what am I going to play it with? The directional button would look small as a cracker topping. Unless you're going to buy some bluetooth D-pad (and by the way, the bluetooth on this thing works great), just go buy a Gameboy.

Which brings us to the best of the best: the screen. You just can't describe the difference between this and the earlier Axim models. It's bright, it's crisp, and it probably does to battery life what Nader fears Bush is doing to the environment. But what the heck, it's a thing of beauty, and I can't recommend it more highly.

The Operating System: On the other hand, that screen is supported by the new Microsoft Windows Mobile 2003 Second Edition. For that, I can give you a two-word evaluation:

Windows ME

Seriously, it's that bad. I've had this thing less than twenty-four hours, and already I'm best friends with the soft-reset button. Hell, I'm on passing aquaintance with the hard reset function, and I'm keeping multiple backups to make certain that if there's a crash I can get back to a stable position without too much trouble.

Admittedly, I'm doing some fairly rough things. I've tried to install a task manager, because despite persistent user complaints, Microsoft still hasn't provided a way to do one of the most basic OS tasks: shut down a goddamn program. I've installed a Japanese screen font (and did I mention that on a VGA screen those fonts look bloody fantastic?). And I added one of the agenda management programs that comes bundled from Dell. Anything else that I tried to add from my old PDA resulted in this error message: "This application may not function because it was designed for a previous version of Windows CE."

(Incidentally, Microsoft, can you make up your fucking mind? I'm either running a Windows CE device, a Windows Pocket PC device, or a Windows Mobile device. Could someone please go back through your OS and make sure the operating system gives me consistent error messages as to the nature of the device I've got in my hands?)

The lack of stability, the freezes, the lockups--these are inexcusable. Indeed, at one point the operating system was so screwed up that the screen was showing nothing but pin-striped lines.

But worst of all is the lack of backwards compatibility. Some of you might remember that I recommended Decuma's Japanese handwriting recognition software a few months back. Well, guess what? It doesn't work on the new version of.... whatever this OS is called. Once you install it, it disables every input system and keeps all applications from launching. And you can't remove it. Hard-reset, anyone?

So now I'm stuck. I've got a piece of kit I really like, but the primary function I hoped to use it for--a Japanese/English dictionary--can't be managed until I find a replacement for Decuma. If anyone has any suggestions, I'd greatly appreciate it.

Do You Still Hear the Silence of the Law Review, Clarice?

It's scary what a bundle of 2Ls will think up as they're running through their work late at night. I'm sure it was always thus, but nowadays it takes only a licensed copy of Photoshop, an internet connection and the infinite will to procrastinate, and these deep, dark, and horribly bad ideas can be brought to life.

You don't want to know the story behind this one. Really, really, you don't. But suffice it to say, my first online product sale is now behind me. Without further ado:

Are you a Republican looking for that perfect way to gloat about the size of your new "mandate"?

Are you a Democrat wanting to express your oh-so-sardonic contempt for how horrible the next four years are going to be? (Because, you know, no one in a blue state could take this seriously...)

Then do I have the t-shirt for you:

Renominate Bork

A slogan no one can love. In colors no one should wear.

Yours from the new Three Years of Hell Shop.

Brought to you by coffee, camaraderie, and a complete lack of sleep.

(And no, I don't expect any further sales.)

November 08, 2004

Strangest Rejection Letter of All

I suppose I should feel very, very rejected.

I just received a rejection letter from a firm that I met with while I was in Tokyo. I didn't interview with them at EIP, and so obviously I didn't get a callback. But at this point--when I can only be holding two offers anyway--they felt the need to tell me that they wouldn't be offering me employment this summer.

At least they took the time to care, I suppose.

Update: In case anyone is wondering, this is a joke. I just found it ironic that someone sent a rejection letter out this late in the game.

November 06, 2004


One more columnist come unhinged. Here's Greil Marcus doing a mock-obituary for Bush, dated 2018.

Mr. Bush's life after his presidency was marked by misfortune. He soon lost interest in his status as the standard-bearer of his party and its chief fundraiser; many believed he had again begun drinking, and in any case he seemed to spend most of his time at private clubs in Houston, where he established residence in 2010 after selling his property in Crawford, Texas. ("At least I won't have to cut that f--- brush again," Mr. Bush was heard to say after his last election.) Then on May 1, 2011, Jenna and Barbara Bush were killed in a drunken driving accident in New York City, an incident that also took the lives of seven other people, four of them friends of the Bush daughters. Rumors that a Bush family friend attempted to bribe the police to report that a person other than Jenna or Barbara Bush was driving (the body of Barbara Bush was in the driver's seat) were never confirmed.

If you're going to write a piece of wish-fulfilling fantasy, it behooves you not to fantasize that your opponent's daughters die in drunk-driving accidents, taking several people with them. It just looks churlish. (Via Spleenville.)

Things You Might Not Know About the Scopes Trial

Much as I love Inherit the Wind (both the old Spencer Tracy version and the 1998 television remake with Jason Robards, I can't help but realize that no drama ever captures the full scope of the reality underlying it. Truth is rarely so noble as fiction, much as we might wish it otherwise.

With that in mind, this post by Jim Lindgren of the Volokh Conspiracy reminds us that not every issue is as black and white as a good old movie. It's worth taking a look at just what was written in the book at issue. Reminds one of Tom's party conversation in The Great Gatsby.

November 05, 2004

Post-Election Reading

OK, here's something I can feel good about. Maybe I'm not happy about my friends' misery, but at least I can enjoy some schedenfreude by reading the press. Among the best:

  • Maureen Dowd at the New York Times seems in need of medication.
  • Over at Slate, Jane Smiley is eyeing Maureen's pill bottle enviously.
  • But the glory of glories is this analysis of Operation Clark County, the Guardian's attempt to switch Ohio from Red to Blue:
    Katz also said he knew all along that the letter-writing project could backfire. So, did it? Almost certainly, yes. In 2000, Al Gore won Clark County by 324 votes. And since Ralph Nader received 1,347 votes, we can assume Gore's margin would have been larger without Nader on the ballot. On Tuesday George Bush won Clark County by 1,620 votes.

    The most significant stat here is how Clark County compares to the other 15 Ohio counties won by Gore in 2000. Kerry won every Gore county in Ohio except Clark. He even increased Gore's winning margin in 12 of the 16. Nowhere among the Gore counties did more votes move from the blue to the red column than in Clark. The Guardian's Katz was quoted as saying it would be "self-aggrandizing" to claim Operation Clark County affected the election. Don't be so modest, Ian.

Couldn't have happened to a nicer spammer.

UPDATE: Oh goodness. Add Margaret Cho to the list. Priceless. Watching her come unglued--she's not even funny here--is just so fun. Can I still donate to Bush's re-election fund? (Via Bainbridge.)

November 04, 2004

Post-Election Thoughts

I know a lot of people won't believe this, especially in light of my endorsement, but today wasn't as happy for me as you might expect. That's not just because I woke up with a splitting headache from a ridiculous hangover. (Note: Electoral college does not imply electoral fraternity does not imply electoral drinking game. And betting against Bush for Florida did me no favors.) A victory I didn't care much about has come at the expense of a lot of folks who did care very deeply, and that's been tough to watch.

The blogosphere has been awash with people cursing the outcome. (I'm sure that's just a fraction of the links most people could manage. I've been avoiding blogs all day, mostly due to work pressures, but also because I didn't want to read it yet.) I watched the results last night in a heavily Democratic room, and felt the mood ebb. And at the end, why in the hell did it have to come down to Ohio?

Sure, the results provide me with a bit of justification. The more or less common story is that conservative Christians turned out to vote for amendments against gay marriage, the direct result of the kritarchy of Massachusetts. I can't argue with the result: as I've said, I'm not that worried about gay marriage, but this will act as a deterrent to the next round of social change that someone wants to push through courts instead of legislatures. (I'm glad I wasn't blogging today: Waddling Thunder got to make the argument before me, and he's made it very well.)

But not Ohio. In my heart of hearts, I really wanted Ohio to be the exception. Because whatever else, I knew that people I cared for were going to Ohio. I knew that Chris had been working his guts out for his cause there. And I knew that if it came out against him, he'd be cruelly disappointed. OK, that's not a rational reason to back one outcome over the other--there are a million other activists in other states who will be just as devastated, and had the decision gone otherwise there would have been enraged Republicans--but sometimes the hopes one has for the future just aren't rational. I didn't want Ohio to pass its proposition, I hoped Pennsylvania would go red so Ohio could go blue, and I really didn't want it to be the last state.

Anyway, there's a Bush presidency, a fair amount of Republican triumphalism and a lot of Democratic angst. And pundits everywhere are looking for the "lessons of the election," which seems such a doomed effort that I'm sorely tempted to try it. If I had to give my Democratic colleagues some advice for 2008, it would come down to two ideas.

First, divorce the lawyers from the Democratic Party. The backlash against gay marriage really is the smaller part of the issue. The larger part is that so much of the intellectual (and financial) support for the Democrats come from a group of people that are very bad at convincing other Americans.

I know, that's fairly provocative (although hardly original). After all, we legal types are supposed to be trained to argue, right? And we are. But we're trained to argue in a very specific way, for a very specific audience--mostly for judges. We cocoon ourselves in a profession with exclusive rules and complex norms which cut us off from the "lay" masses. And in the end, this is simply not conducive to connecting with people outside that world: on one level, we're too used to arguing within a web of preconceived assumptions about "rights" and "process," and have a hard time stepping out of that and engaging.

The thought occurred to me today as I was practicing for a presentation of a more technical than legal nature. One thing I've noticed about law reviews and the legal world is an almost allergic aversion to diagrams or Powerpoint, but here I was putting together a maze of arrows to represent information flows. And as I was dry-running the speech, I felt my brain click: I was relaxed, effusive, in-the-zone with my audience, trying to tell them why a system would make their life easier. For the first time in ages, I was outside the assumptions, not "thinking like a lawyer."

Don't get me wrong: I love the law, and I'm looking forward to my professional career. But it is a mindset, and I wonder the extent of the effect it's had on the Democratic Party.

Second, the Democrat's big "quick win" would be to learn a language of religion. There are many voters who vote with their hearts and their souls rather than their pocketbooks, but in many quarters this is seen as something fantastic. Take, for instance, David Usborne, a writer for the UK-based Independent, quoted by Irishlaw:

Voters, especially those in the heartland states, took moral values as their core standard in deciding which candidate to support. Indeed, this may emerge as the most surprising finding to emerge from this presidential race.

As IL points out, it's not surprising if you know the voters in question, people of a deeply-held religious faith. The problem is that many--though by no means all--elements of the left trivialize that. From stunningly poor arguments posing as jokes to invocations of the "Texas Taliban", there is a strong strain of the Democratic Party that is simply not interested in engaging evangelicals and providing a good home for them. And this strain is by no means a silent minority of the party. Think of how Hollywood treats religion in movies. Even if you think that's a fair and accurate portrayal, here's a hint to the next Democratic Clinton: your moment comes when you strike out loud and hard at the next clone of Saved.

Too much of the left now thinks of religion as some form of irrational fiction, that anyone hooked on the Left Behind series must be unworthy of, or incapable of, reasoning with. But each and every one of them has a vote, and in this election they were provoked and used it. Kerry's position--that he was against gay marriage, but would leave it to the states--was untenable so long as the bulk of his supporters were campaigning against DMA, where "leaving it to the states" meant "leaving it to state judges." This was not a convincing argument to someone who did care about the issue.

That doesn't mean, as one Democrat on the radio said today, that they'd be best off nominating a President who doesn't support gay marriage or abortion. There are good religious arguments for same-sex marriage that have been made, and with some force. They're not, however, silly lists from Leviticus or pointing out that Jesus never speaks against gay marriage directly. They' complex, well-reasoned, and speak within the language of faith. Most importantly, they're generally made by individuals of stong and persuasive faith themselves. It takes much more courage to embrace--not "nuance"--a contrarian position within a church than outside it.

It certainly takes more courage than the standard Kerry line of "Whatever my religious belief, it shouldn't be our nation's." That the argument makes sense to secularists does not make it a particularly useful line to woo the section of the electorate that is not secular.

Instead, "learn the language." Learn what someone of faith cares about and how to argue within that sphere. (It's not unlike learning to "think like a lawyer.") And then come out full-bore for homosexual marriage with arguments that treat religion as a source of authority and a driving factor in why such marriage must be recognized, not as an obstacle to be overcome before one gets to the secular reasoning. People resent being considered obstacles. And when naysayers complain this tactic won't work, just point out that it only has to work a very little on the margins: much as Republicans win if we can crack a fraction of the African-American vote, Democrats can make great gains quite quickly here.

I'm not sure how seriously he meant it, but the most poignant Democratic statement I read today came from Brian Leiter, who said, "I do not know the country in which I live." That statement shouldn't be an indictment of the nation, but an exhortation to learn about it.

November 02, 2004

Oh Lord, I Pledge, I Pledge, I Pledge

Jeff Jarvis and Megan McArdle have made pre-election "peace pledges" for how they'll behave after the election. For the record, I pledge myself to both of them, as well as this:

I pledge that I will not ascribe to the winner, or their opponents, moral or ethical deficiency without evidence. And by evidence, I mean enough that I'd be happy to put forward a case in a real court and defend myself against the most Scalia-esque bred with Torquemada version of Rule 11 followed by a subsequent British libel trial.

Ditto about the moral or ethical superiority of the opposition or party in power/out of power, whoever they may be.

I will not assume that my political opponents act out of ill will, greed, hatred, or any other Deadly Sin, but rather because they share a different but positive vision of American greatness.

I will, however, continue to state where one party or organization has performed clearly better than another in areas in which I have expertise. (Which is to say, I'm still going to say that Kerry's blog kicked Bush's blog's ass all over the map, especially technically. Whoever wins.)

Update: Professor Bainbridge links to the latter pledge with the comment, "In other words, [McArdle's] promising to not do what the Democrats spent the last four years doing."

Much as I hate to take a crack at a guy with good taste in wine, that's exactly the kind of comment the pledges are meant to prevent. Sure, some Democrats have spent the last four years frothing at the mouth. Others haven't, and that should be recognized. Indeed, it has to be recognized, or we never find our way out of this miserable cycle.

November 01, 2004

Fellow Curmudgeons

So with the election tomorrow, lawyers descending upon swing-states like the eleventh plague of Egypt (PA), and the political cacophony shooting up to fever pitch, I find myself in the busiest of weeks. A note, a clinic project, reading, laundry: too much to do, and too little time. But if my readers are bored, they might take a look through the comments on my endorsement of Bush--which, by Martin's suggestion, said very little bad about Kerry--for two items of note. First, a British person (Martin) giving perhaps the most eloquent defense of Kerry (if somewhat overstated) that I've heard yet. And then the character of commentary from quite a few American Kerry supporters, culminating with the ever-flippant Heidi Bond:

And you don't owe it to me not to be rotten; I don't care if you're rotten or not. But I'm going to guess that you'll like yourself better if you are not rotten than if you are. So maybe you owe it to yourself. And not "owe" in the sense of debt or contract; like in the sense of everyone owing it to themselves to not be a dumbass.

Now, you're not really a happy person anyways, so maybe the thought of being rotten is no big loss to you. In which case, whatever.

Such rational, elevated, and gentlemanly rhetoric indeed. But perhaps one attracts such things merely by living in New York. One bright spot in today's election coverage has been a humorous interview with Tom Wolfe, oddly enough appearing in the Guardian:
"Here is an example of the situation in America," he says: "Tina Brown wrote in her column that she was at a dinner where a group of media heavyweights were discussing, during dessert, what they could do to stop Bush. Then a waiter announces that he is from the suburbs, and will vote for Bush. And ... Tina's reaction is: 'How can we persuade these people not to vote for Bush?' I draw the opposite lesson: that Tina and her circle in the media do not have a clue about the rest of the United States. You are considered twisted and retarded if you support Bush in this election. I have never come across a candidate who is so reviled. Reagan was sniggered it, but this is personal, real hatred.

"Indeed, I was at a similar dinner, listening to the same conversation, and said: 'If all else fails, you can vote for Bush.' People looked at me as if I had just said: 'Oh, I forgot to tell you, I am a child molester.' I would vote for Bush if for no other reason than to be at the airport waving off all the people who say they are going to London if he wins again. Someone has got to stay behind."

The article is nothing if not merry and amusing, and it seems there's one kindred spirit in the Big Apple. And with that thought, I'll leave you to a happy election day, which unfortunately for me will not be spent watching results until the evening: there is simply too much to do.
I am Charlotte Simmons by Tom Wolfe

UPDATE: To answer Martin's question, yes I did go to the polls and vote today. I voted by provisional ballot, because they didn't seem to have me on the rolls yet (I'm a new voter), which means I didn't get to use the big machine with the swinging red lever, but that's not too big a deal. And in comparison to this guy, my experience of wandering to three polling places each saying I needed to vote in the other wasn't so big a deal. I mean, they're all in the same place, basically.

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If Idle Hands Do The Devil's Work... (2)
Chris Geidner wrote: I, <a href="http://lawdork.blogspot... [more]

In Case You Doubt The Existence of Evil (2)
PG wrote: I feel like evil should have more e... [more]

Whoever's responsible, cut it out. You make us look bad. (3)
Paul wrote: Anthony... you are singing my song!... [more]

Lets Get Wasted and Build (0)
Things You Hear Too Often At Law School (2)
Fr. Bill wrote: Delightful. But you knew that wou... [more]

Japanese Character Entry on an English PDA (0)
Bring Me The Head of Bill Gates (9)
A. Rickey wrote: Quite seriously cool. I'll write an... [more]

Do You Still Hear the Silence of the Law Review, Clarice? (2)
PG wrote: Cafepress coupons - reason to buy n... [more]

Strangest Rejection Letter of All (2)
The Curmudgeonly Ex-Clerk wrote: One of you law student bloggers rea... [more]

Tasteless (5)
clyde banner wrote: I think he's on the money... at lea... [more]

Things You Might Not Know About the Scopes Trial (0)
Post-Election Reading (3)
PG wrote: Schadenfreude. If there's going to ... [more]

Post-Election Thoughts (9)
Sarah wrote: "The fact that the Democrats are so... [more]

Oh Lord, I Pledge, I Pledge, I Pledge (3)
Anthony wrote: GCW: I don't know: I didn't inte... [more]

Fellow Curmudgeons (2)
Anthony wrote: Martin: I'll be trying to... [more]

Choose Stylesheet

What I'm Reading

D.C. Noir

My city. But darker.
A Clockwork Orange

About time I read this...


Projects I've Been Involved With

A Round-the-World Travel Blog: Devil May Care (A new round-the-world travel blog, co-written with my wife)
Parents for Inclusive Education (From my Clinic)

Syndicated from other sites

The Columbia Continuum
Other Blogs by CLS students

De Novo
Theory and Practice
Liberal Federalism?
Good News, No Foolin'

Nancy Pelosi covers her head and visits the head of John the Baptist.
Vlogging in from Austin.
Omikase/"American Idol"

Jeremy Blachman's Weblog: 2007
Happy Passover
Looking for Advice re: LA
Google Books

Stay of Execution
What I've Learned From This Blog, or My Yellow Underpants
The End
Mid Thirties

Legal Theory Blog
Program Announcement: Summer Programs on the Constitution at George Washington
Book Announement: Political Foundations of Judicial Supremacy by Whittington
Entry Level Hiring Report

The Volokh Conspiracy
Making the Daily Show:
Civil unions pass New Hampshire House:
Profile of Yale Law Dean Harold Koh:

Crescat Sententia
Hillary II
Politics and Principal/Agents

Law Dork
Election Approaches
Following Lewis
New Jersey High Court: 'Same Rights and Benefits'

Surveying the revival
Birds of paradise

Half the Sins of Mankind
Cheney Has Spoken Religious conservatives who may ...
Does Ahmadinejad Know Christianity Better Than MSN...
Borders as Genocide In discussions of climate chan...

For lovers of garden gnomes...and any China-freaks out there
We Interrupt Your Regularly Scheduled Programming

Does SOX explain the flight from NY?
More Litvak on SOX effect on cross-listed firms
What did the market learn from internal controls reporting?

The Yin Blog
Iowa City = Riyadh
Jeffrey Rosen's "The Supreme Court"
Geek alert -- who would win between Battlestar Galactica and the U.S.S. Enterprise?

Letters of Marque
And there we are

Signing Off

Dark Bilious Vapors
Jim (The Waco Kid): Where you headed, cowboy?
Bart: Nowhere special.
Jim: Nowhere special. I always wanted to go there.
Bart: Come on.
--"Blazing Saddles"

Technical Difficulties... please stand by....
The Onion should have gotten a patent first....

Legal Ethics Forum
Interesting new Expert DQ case
Decency, Due Care, and The Yoo-Delahunty Memorandum
Thinking About the Fired U.S. Attorneys

Ex Post
Student Symposium- Chicago!
More Hmong - Now at Law School
Good Samaritan Laws: Good For America?

Appellate Law & Practice
Those turned over documents
CA1: courts can’t help people acquitted of crimes purge the taint of acquitted conduct
CA1: restrictions on chain liquor stores in Rhode Island are STILL okay

the imbroglio
High schoolers turn in plagiarism screeners for copyright infringement
Paris to offer 20,600 bikes at 1,450 stations to rent by the end of the year

The Republic of T.
The Secret of the Snack Attack
links for 2007-04-04
Where You Link is What You Get

Distractions for stressed law students

The Other Side: Twisted AnimationsSomething Positive, a truly good webcomic

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