Thursday, July 23, 2009

The awe inspiring

I promised a friend that this week's post would be something about physical fitness. Why not? Everyone loves an athlete.

This blog is dedicated to a handful of the greatest athletes in history, all wrestlers.

Ironically, Alexander Karelin(e) came to the attention of Americans by losing. It was the 2000 Olympic games and the ancient sport of Greco-Roman wrestling (which differs from freestyle wrestling in that the athlete's need to stay on their feet) was suddenly on everyone's radar. A huge American farm boy named Rulan Gardner defeated Karelin in the finals of their sport 1-0. That is - he only scored 1 point and Karelin none. Doesn't sound like a big deal, does it? That's because you don't realize how good Karelin was and how startling one point could be.

Karelin had started wrestling internationally in 1987. It is hard to find records but he apparently lost at least once that year but became the world junior champion. The year prior he had one loss to the world champion (who he later regularly beat). In 1988 he never lost a single international match. He went into the the 1988 Olympics and won every match right through the finals. He did the same thing in '89, '90, '91 and '92, another Olympic year. Never lost a match, not one right through the Games and picked up his second Gold there. Then, in '93, and '94 he again never lost a match. Not one. Astonishing. Even Michael Jordan missed shots. Even Greg Louganis lost diving competitions. Even Muhammad Ali lost fights. Karelin just never lost.

Going seven years without a loss would make anyone an all time great. Here's what makes Karelin greater still. In '94, he not only didn't lose a match in international competition, he didn't lose a point. That seems almost impossible as he fought huge powerful men determined to beat him. And then in '95 and '96 he again never lost a point including in the Olympic games, taking his third gold.

And he kept not only winning every single match, but winning them without losing a single point. A SINGLE POINT! And again in '97, '98 and '99 and into 2000. Only a pulp fiction writer could conceive of someone so dominant in his sport. Bobby Fischer lost chess matches. Tiger Woods loses all the time. So does Federer and Nadal. Everybody loses. Not Karelin, not even a point.

In 2000 Karelin was now nearly 33 years old and still a phenomena. He had always been astonishingly strong. More than one sports enthusiast thought him the toughest man in the world. His signature move was a reverse suplex, virtually unknown in the heaviest Greco-Roman weight division, 286 pounds and up, because you had to lift 300 pounders off the ground into the air and body slam them into the mat. Not like in pro-wrestling where the victim was giving you a helpful bounce off a friendly surface from a standing position, but bending over and picking up a huge mass of resisting thrashing athlete like a sack of potatoes and . . . .

With all these years of not losing, for many of them not even a point, his opponents did not know what to try anymore. They literally feared him physically (it hurts when you are lifted in the air and smashed down on the ground) and were in awe of him. It is quite possible that no athlete, at least since there are regular leagues and events, has ever had the same dominance in any sport for so long a period of time.

His competitors called him "The Experiment," as in science experiment, giving an explanation as to why he was so much better than they were. Karelin had his own reason. He simply said he worked out harder each day than any other athlete did any day of their life and maybe so. As so often happens, he is actually rather intellectual and a nice guy. A Siberian whose parents were exiled there because they were intellectuals, he was elected to the Russian parliament in 1999.

The 2000 Olympic games would be Karlin's last. He started out as usual winning all his matches without losing a single point.

That's when he met Rulan Gardner, a less classical looking but great athlete himself with a wonderful story, but with nowhere near the career Karelin had. In fact, he was probably the second best wrestler in his family, although his older brother, Reynold, was no longer competing. But, he was four years younger than Karelin and a huge man, virtually unmovable. He had missed the last Olympics because he missed the weigh-in by, literally, seconds. He had never won a world championship or an Olympic title (although almost few had other than Karelin for well over a decade). They had met only once before and Karelin, of course, had won.

Gardner acknowledged later that Karelin was much stronger than he was, but he got his one point early on, by escaping from Karelin's grip, not by scoring himself, adopted a low center of gravity and beat perhaps the most dominant athlete of all time. Even still, he later admitted, although he kept telling himself he could win, he never really believed it until it happened. And his own fame came not so much because he won, but because of who he beat.

Despite that one single point at the end of his career, I nominate Karelin as the most dominant athlete in any modern sport period. But, now that I said that, let me name two other wrestlers who can challenge that assessment.

Dan Gable is another wrestler whose career is legendary, and some would say as amazing as Karelin's.

Gable was a free-style wrestler. His legend started young. As a high school freshman, he wasn't allowed to wrestle varsity and lost one unofficial match to a teamate. The next year he started wrestling varsity and didn't lose a single match. The key to his greatness was similar to Karelin's. It all had to do with working out. He said that if he could walk off the mat, he considered the workout a failure. That was a slight exaggeration, but not by much. He won every match the next two years and all three state championships.

On to college at Iowa State. Gable wasn't allowed to wrestle varsity as a freshman there either, but did his sophomore year. He not only won every single match but the NCAA championship. He repeated the performance the next year. No losses. NCAA champion. Then, as a senior, the same thing happened right through the NCAA championships up to his last match as a collegian. As Karelin had his Gardner, Gable had his Larry Owing.

Owing was a little younger than Gable. When he was a high school senior, Gable was a sophomore and they both tried out for the Olympic team. Gable blew him off the mat. When Owing went to college he wrestled in a different weight class his first time he could have faced Gable, but the next year, he deliberately dropped two weight classes just to face him in the championship. Gable was famous for his conditioning. Owing decided to match him in that department and seemed to do it.

Owing let it be known - he wasn't there to win the championship, he was there to beat Gable. At his coach's persistent persuasion, he was seeded no. 2 after Gable, which meant that he would face in the finals (142 pound class) if they both won, and they did.

Gable, the invincible wrestler, had heard about Owing's message, and admits that somehow, it got to him. For the first time in his career, someone else was in his head. He watched Owing wrestle. He thought he made mistakes but nevertheless he kept pinning everyone, often using a move called an inside cradle.

The final came. The word was out. This would probably be the greatest match in wrestling history.

Before the match, Gable even gave an interview, something he had never done before. Gable kept waiting for the inside cradle and distracted, he found himself down 7-2 at the end of the second period. He had only one period left against a wrestler who might possibly have been in as good as shape as he was.

That's when Gable put on a performance of a lifetime. He quickly score 8 points to Owing's 2 and he had time to spare. With 30 seconds left, he had a 10-9 lead. It looked like he could just ride the time out, but he got up and wrestled. With seconds left he went for an arm bar. Owing countered the move by grabbing Gable's leg and sweeping it. He had never done that move before. Gable went to the ground in slow motion. Later he said it was a judgment call to count it, but the referee did. Owing won 13-11.

There was a 15 minute ovation as people recognized the greatness of the match they had just seen. At the awards ceremony, Gable got many more minutes of applause for his career. But he had lost and "The Machine" and finished his college career 181-1.

30 years later, Gable said the match wrankled still. But, he also said it changed him as a wrestler and later as a coach. He never let his guard down again. He met Owing one more time, in the Olympic trials two years later - 1972. No one had scored a point against Gable in the trials yet when they met. Gable wiped the mat with him and won 7-1. But Owing could be happy that he had scored the sole point against him as Gable went on to the Games and took gold without losing a single point there. In fact, in his post-college free-style wrestling career he lost only a handful of times through 1976, when he retired.

In my humble opinion, Karelin's record in the sister sport is more amazing than Gable's (see my one reservation below). He never lost for 13 years until his very last match and went 6 years with out giving up a point, almost doing the same thing in consecutive Olympics. He won the European championship twelve years straight. Besides, he was not only the dominant wrestler for all those years in his country, but in the world. Gable wasn't but that one Olympics. I say all this being a little emotionally partial to Gable, as I had watched his career when young and had even remember his legendary match with Owing (I can't remember if I saw it live on tv or on tape the week after).

However, there is one thing Gable did with which Karelin can't compete. Gable turned coach. He coached Iowa State, his alma mater, for 21 years. During those 21 years, his team won the Big Ten Championship 21 straight times. 21 out of 21. During the same period they won 15 national championships, at one point 9 in a row. That probably makes him the greatest college coach in history (better than John Wooden at UCLA) on top of being possibly the greatest freestyle wrestler in history.

Yet, there is another freestyle wrestler who is probably as great as he was, and more recent in time too, but who has nowhere near Gable's fame outside of wrestling circles.

His name is Cael Sanderson. He started with a high school career almost as great as Gable's, only he wrestled varsity for four years, not just three, as the rules had changed. Wrestling was a family thing with him. His father was his coach and three of his brothers won state championships too. Cael won four state championships himself and finished 127-3 (Gable did not lose in high school). Off to college, he also wrestled at Iowa State and smashed Gables records, winning 159 matches while losing none (Gable was 118-1). Gable won two NCAA championships, and one second place in three years and Sanderson won four (although Gable was not allowed to try his freshman year). Although it did not seem possible, Sanderson eeks him out in their college careers, almost like Robin Hood splitting the arrow.

Cael's Olympic shot came in 2004 in Greece, where he won fairly handily (strangely, he won each match 3-1) but not good enough to match Gable's shutout performance (or come close to Karelin's 6 years of doing so). He also won a silver medal in the world championships and three national championships before retiring to become a coach too. It is still too soon to know if he will be the coach Gable was, but in three years his team won three conference championships and came in second in the NCAA championship's once.

Is it possible Sanderson isn't as famous as Gable or Karelin because he didn't have his Gardner or Owing? Maybe. I haven't given John Smith his due either,(I won't dwell on him but there are those who consider him the greatest freestyle wrestler ever), as he was the first to win four NCAA championships, and also won four world titles (Sanderson never did) and two Olympic Golds, plus coached 5 NCAA championship teams. On the other hand, his 5 losses in college are 5 times as many as Gable's and Sanderson's put together. Still, it would not be unfair to give him the nod over them given his international record.

Who was the best of them? I'd have to go with Karelin (setting aside coaching; if you include coaching, then it is Gable). Leaving aside the 13 years undefeated and the 6 years unscored upon, Karelin won nine World championships, more than the other three put together, and has only one less Olympic Gold than the three of them too. Add 12 European championships, and that he is the greatest wrestler in Russian/Soviet history. That's important because the history of the world championships in both freestyle and Greco-Roman wrestling has been the Soviets and then the Russians winning the team title virtually every year with a few exceptions (fewer in Greco-Roman). Thus, just to get to where he was in the international world, he had to first defeat the best wrestlers in the world from his own country. My only reservation is I can't get his domestic record although it appears that it would make little difference. I will update this post someday if I can obtain it.

Are there any athletes in any sport I'd put up against Karelin for sheer dominance? Edwin Moses won 122 straight 400 meter high hurdle races over almost ten years, two Olympic Golds (and it would have undoubtedly been three if the U.S. competed in 1980) and a bronze in the last race of his career in 1986. He is almost in Karelin's class. I've written here about Paavo Nurmi, the Finnish long distance runner who revolutionized the sport (posted 4/11/2007) and he might come close. Most boxers stayed too long and ruined their records. Dempsey had his Tunney, Ali his Frazier. Marciano was undefeated but fought an old out of retirement Joe Louis and made his record on the "bum of the month" club. I'm partial to Louis among them but he was knocked out by Max Schmeling once and then tried to come back when old. Arguably, Wilt Chamberlain was so dominant in basketball for a few years that he set records that almost certainly will never be challenged unless the game totally changes. Yet, his teams consistently lost to the Celtics. Michael Phelps would have to swim at the same level for nearly a decade to match Karelin. The astonishing sprinter Usain Bolt would have to continue to blow everyone's doors off (and I mean that literally) for another dozen years to match Karelin. I doubt either of them will do it for that long.

I'd say Karelin tops them all. Name your challengers and we will debate them. You better tell me why though. Names aren't enough.

Friday, July 17, 2009

The Passion Play of Sonia Sotomayor

Like most like most political processes on television these days, the Senate confirmation is a grandstanding joke, where both the Senators and the nominee, Sonia Sotomayor, act dignified and grandiose, while superficially touching on important issues. It is a performance, a play, a passion play, if you will, where the opposition tries to nail the nominee to a cross and the majority tries to resurrect her.

I don't blame Judge Sotomayor or any nominee for that at all. She's a guest. The Senators, many of them anyway, are trying to score ideological and political points, and it gets ri-goddam-diculous, as John Wayne would say.

If you weren't interested enough to watch the hearings you don't want to be overly bored about it with me, so I will just give a very general summary and then go onto a few little things I noticed, of which I doubt you will read much about in the mainstream media, although you might in some blogs. These issues sort of jump out at you if you read constitutional law and legal theory.

Summary opinion: Obviously, the judge is a highly accomplished person. Unlike Supreme Court justices in New York (that's the trial level) with whom I've mostly dealt, federal District Court and Court of Appeals judges can't just be political appointees, but do have to know quite a bit. After enough cases, I would expect most know an awful lot of law. Some, of course, are better than others and there are always exceptions. I'm sure on the average though they have forgotten more than most lawyers know, and I mean that literally. Practicing lawyers tend to specialize in a field, and often come to rely on experience as opposed to legal knowledge, but these judges must learn about every subject from admiralty law to patents to international law to personal injury and so on, and deal with thousands of cases over decades sometimes This is why I was so surprised she completely blew some very basic constitutional law (see below).

Sotomayor's background shows she was always a very high achiever, and leaving aside whether you disagree with a small handful of cases she decided on hot button issues, she seems to have accomplished a lot as a student, prosecutor, corporate lawyer and judge. She is famously driven and hard working, as many federal judges are. She has a reputation for being a bully on the bench and Senator Graham of South Carolina probably embarrassed her, although his manner was quite pleasant, by reading a list of descriptions lawyers polled by a federal almanac gave for her. As Graham pointed out, other judges also ask tough questions and make the attorneys stick to ten minute arguments, but she is the only one who is repeatedly talked about like this on her bench. I have read or heard a few attorneys describe her this way too. Lawyers have the same biases, wackiness and differences between them that every other group of people do. But, one thing they tend to agree on, in large part anyway, is who are the nasty or crazy judges. However, the only person I know personally who has been before her thought she was one of the most intelligent judges (although he bases it on one appearance), and Senator Graham pointed out himself that many people say wonderful things about her. In case you think the criticism of her is sexism - first, why do you presume it is male lawyers who feel this way? And second, there are four other female judges on the second circuit bench who are not viewed the way she is.

I think she should be confirmed. I don't see the difference intellectually between her and Alito, for example, other than he appears to be somewhat more ideological than her. While I agree with Barack Obama (when he was a Senator) that there is nothing wrong with voting against confirmation over ideological differences, I probably personally would not do so unless it was something I thought crucial, like if they believed that the courts can't hold laws unconstitutional or that the administration or states weren't bound by Supreme Court decisions among many other possibilities or that separate but equal is a good way too go. Frankly, I have never seen a confirmation hearing (and I've seen it for everyone on the bench now thanks to C-Span) where I would not have voted to confirm.

Which brings us, as almost all things political do eventually, to abortion. The suspicion is, because a liberal president appointed her, that she is pro-choice, and if you put a gun to my head, I would guess she was too. Apparently, no one really knows - I imagine she has been careful about what she says about it since she was first nominated for district court - Only the head partner in a firm she worked at when a practicing lawyer says he is sure she is pro-choice, but she testified, and I thought credibly, that she never discussed abortion of any topic like that with him at any time. I tend to believe her. It does not seem like the type of thing she would be discussing with her boss in a big firm.

Now for the interesting stuff.

A legal realist?

I found one early exchange quite fascinating, because she pretended to know what she was talking about and had not a clue. Senator Graham asked the judge in the first round of questioning whether she considered herself a legal realist. Here's the exchange:

"GRAHAM: And that's what we're trying to figure out. Who are we getting here? You know, who are we getting as a nation? Now, legal realism, are you familiar with that term?


GRAHAM: What does it mean for someone who may be watching the hearing?

SOTOMAYOR: To me, it means that you are guided in reaching decisions in law by the realism of the situation, of the -- it's less -- it looks at the law through the...

GRAHAM: Kind of touchy-feely stuff?

SOTOMAYOR: That's not quite words that I would use because there are many academics and judges who have talked about being legal realists, but I don't apply that label to myself at all. As I said, I look at law and precedent and discern its principles and apply it to the situation... "

Here's the problem. The theory of legal realism has NOTHING TO DO WITH JUDGES REACHING DECISIONS BY THE REALISM OF THE SITUATION. She just heard familiar word words - legal and realism - and figured it was easy to guess right. It's possible she thought she knew, but then she is just plain wrong.

Legal realism is actually is a theory of law which, admittedly, is somewhat hard to define as it is a school of thought and there can be differences of opinion, but it's certainly not what she said. It recognizes that judges are human and that in coming to decisions they impart a lot of who they are into their decision, including their experiences and ethics. Now, it is important to note, that being a legal realist doesn't mean that you decide cases a certain way because of your biases whereas a legal positivist does it based on the law. I think that is what the Senator was hoping to show. Both theories allows for judges to try their hardest to be impartial and follow the law. But, either the legal realist is right and both are imparting part of themselves in their decisions or the positivist is right and their decisions are totally divorced from ethics, etc.

If she really knew what it meant, then she gave a ridiculous response and was afraid that being a legal realist would make her seem like she was partial in her judging. That may have been politically wise, because some legal realists also believe that the judiciary is a way to change society and perhaps that is what the Senator was angling at. I think Senator Graham at least understood that aspect, because he also questioned her at that time about what is the best way to change the culture in America. She had no idea what he was talking about but he finally said that he meant the legislature - that is, through the democratic process as opposed to the bench. It is a position that most legislatures give lip service to although many people are very happy with the judiciary shaping policy. She herself has said in the past that they make policy at the Court of the Appeals level, which we know makes conservatives crazy and liberals giddy. It is certainly true and has been for a long time. I do not buy her response that she just meant District Court cases only involve the case in front of them, but Court of Appeal cases make the law for all the courts below them.

Here's the truth. Regardless of what she said - she is a legal realist. I'll get to how I know this in a bit.

The Wise Latina

When I first heard the words from her speech - that, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life" - I thought, uh oh, that doesn't sound good.

I couldn't wait until I heard how she tried to get out of that one and I'm not surprised that the conservative Senators jumped all over it. Could she possibly really believe it?

So, I watched the hearings. The left all pooh-poohed it as just a speech and the some on the right acted as if she said, when I'm the judge, the minorities win. Senator Graham, who I thought handled himself quite well in these hearings, politically speaking, pointed out to her, and she agreed, that if he or others like him (that is, white males) had said something comparable, their career would be over.

Her defense, and I had trouble with it, was that if you look at the whole speech, she was saying the opposite - that you don't let your personal biases affect your decision and that her whole career as a judge shows that. More, she sad the way she phrased it was "bad". She was trying to inspire group of young Latina women and thought this was a good way to say it. I didn't buy it. Now, the truth is, the right wing Senators on the committee did not put a dent in her record, in my opinion, in terms of bias. But, how could she mean the opposite of what she plainly said? How can she deny something she said so clearly in multiple speeches.

I thought her defense of this issue so poor that I finally bit the bullet and decided to read the speech, which took all of five seconds to find online, but which I bet, and I mean this, few, if any of the Senators on the committee did at all. Such is the cynicism I have for this process. So, I read it, and . . .

You know what? She wasn't lying and doing a bad job of it. She was telling the truth and just defending it badly. When you read the whole speech, you see that what she was trying to say was - we judges are human. Some of our experiences goes into our decisions. We have to guard against that. In fact, you should be aware of who you are and try to do nothing but follow the law. But, since it is going to happen, all the judges shouldn't be white males. They should be women and people of different ethnic groups, including Latinas, who will understand racial and gender bias cases better than white males.

Do you know what this type of belief system this falls into (except that last part)? Legal realism. Her speech is a perfect example of it even if she doesn't know what it means. And she, theoretically, is a legal realist.

Let me give you two paragraphs from her speech which shows her legal realistic approach, and, while reading it, remember that she does say that judges must aspire to be impartial:

"While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought. Thus, as noted by another Yale Law School Professor ... there is not a single voice of feminism, not a feminist approach but many who are exploring the possible ways of being that are distinct from those structured in a world dominated by the power and words of men. Thus, feminist theories of judging are in the midst of creation and are not and perhaps will never aspire to be as solidified as the established legal doctrines of judging can sometimes appear to be.

That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judge Resnik describes it, 'to judge is an exercise of power' and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states 'there is no objective stance but only a series of perspectives -- no neutrality, no escape from choice in judging,' I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that -- it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging. The Minnesota Supreme Court has given an example of this. . . As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging."

Now, I happen to agree with much of the legal realist in her (although it is not presently a very fashionable theory in law). I do think that judges are invariably affected by the experiences of their own lives and whether they want to or not, it affects their decisions. I also agree with her speech that it must be guarded against to the extent possible and the only way to do that is to try to recognize your biases and not to let them affect your decisions. I also think it is a good reason to have diversity on the bench. For any conservative who just had a stroke at the last sentence, no that doesn't mean that I think there should be unqualified judges on the bench, but that over time, having a more diversified qualified bench will be fairer. Clearly, that is the direction we are headed.

Now, nowhere in her speech did she say that, when I judge, I am partial to Hispanics or any other minority, although that is the way Jeff Sessions seems to have taken it. You know why - because his experiences in life affect his judgments too.

I know there are people who believe that there is a black and white law out there that can be easily followed. I thought so too, even through law school, until I became a lawyer. Every lawyer before every judge knows that the judge has a perspective and you can't help but hope it favors your client. Now, the fact that Judge Sotomayor and the entire committee pretend that is not the case, that doesn't make it true or not. They are politicians and entitled to all the credibility of anyone who will say or do anything to be re-elected.

I don't believe her record shows racial or sexual bias and it did not seem to me that any points were scored by that with one possible exception - the Ricci case, and I will get to that in a bit. I thought Senator Schumer did an excellent job using her immigration law cases to show that she was exactly in the middle of judges on her bench in terms of deciding asylum appeals for or against the petitioner and that she turned down far more requests than she accepted (I believe 83%). If his analysis (really his staff's analysis) is wrong, then some other Senator has to show that is so.

Before I get to Ricci, I'd like to more quickly cover three more interesting points.

A fundamental what?

This one surprised me. Supreme Court justices are appointed so that they can rule on the constitution. One of the most important things they have to decide, at some point is whether states are subject to the bill of rights in the constitution. Let me explain what this means in a couple of paragraphs.

The bill of rights contains the first ten amendments to the constitution and were added soon after the constitution was ratified. It was done because a few states and many people were unhappy that there weren't more restrictions on what the federal, not the state, government could do to them. The first eight of the bill of rights covered issues like free speech, religion, bearing arms, search and seizure, criminal rights, and so forth (don't worry about nine and ten right now). The constitution makes it clear that they applied ONLY to the federal government, although states had their own constitutions and many restricted themselves likewise.

So, how is it that some of these restrictions have come to be held to apply against the states by the Supreme Court too? Early last century Supreme Court justices applied some theories as to how some or all of the first eight amendments were "incorporated" by the "liberty" clause in the fourteenth amendment. This amendment, made after the Civil War, was added in order to prevent the states from doing certain things like depriving someone of life, liberty or property without "due process" of law. I don't want to go into what "due process" means, because that's really complicated, but for now, just think of it as meaning before the government can kill you or take your liberty or stuff, they have to give you some fair chance, like a trial where you have a meaningful opportunity to defend yourself. But, what does taking "liberty" mean?

One theory of how certain rights, say free speech for instance, gets incorporated in the meaning of liberty in the fourteenth amendment, is that liberty contains those rights in the first eight amendments which are "fundamental."

Getting back to our nominee, when she was asked what "fundamental" meant, she took a very professorial tone and explained:

"That legal doctrine uses the word fundamental, but it doesn't have the same meaning that common people understand that word to mean. To most people, the word by its dictionary term is critically important, central, fundamental. It's sort of rock basis.

Those meanings are not how the law uses that term when it comes to what the states can do or not do. The term has a very specific legal meaning, which means is that amendment of the Constitution incorporated against the states."

That would be great except IT'S COMPLETELY WRONG. WRONG AND BACKWARDS. Fundamental, as in fundamental rights, pretty much does actually mean exactly what we lay people think it means. In fact, a "critically important" right would be a perfect way to describe it (the Supreme Court has used a few different formulations including one Senator Hatch relied on, beginning "deeply rooted in . . . ". It definitely doesn't mean the right is "incorporated" although, that may be the result. It is just one theory some judges have used to determine whether the right is incorporated or not. To say fundamental rights are those that are incorporated is to completely beg the question. It is a theory about why some rights are incorporated and applied against the states. There are other theories, including that all the first eight are automatically incorporated, and, that no rights are incorporated.

Now, you might think (if you are a liberal, Democrat, or otherwise just want her to be confirmed and could care less what she says) that, so what -- she made a mistake in defining it and jumbled the words up, I'm sorry, that is not correct. She not only got it wrong, but so wrong, I have trouble believing she actually remembers this basic constitutional tenant. Her answer is one that, if she were the judge (and she knew the law) and an attorney in front of her said it, she probably would lambaste him or her for being so unprepared. Remember, she's not trying to pass the bar; she's supposed to be the best. This is like a professional boxer not knowing he has to go to a neutral corner when he knocks down his opponent.

Now, personally, I still don't think that disqualifies her from being a Supreme Court judge, because I believe she is very knowledgeable and has a fantastic work ethic. I can't explain why she doesn't know this, but, she'll learn, like everyone else. Nothing in her record indicates that she doesn't learn the law she needs to for a case.

Baker v. Nelson

Ready for another one where I believed she tried to play the brilliant scholar and bolloxed it up. Senator Grassley asked her whether she was familiar with the case of Baker v. Nelson, which he explained, was a same sex marriage case from the 70s which the Supreme Court refused to take because there was no federal question involved. Now, his reason for asking her was the typical political nonsense. He wanted to get her to commit now that this is precedent so that he could box her in to agreeing that she will never allow a same sex marriage case to be heard by the Supreme Court. Naturally, she wouldn't cooperate and gave the usual, it depends on the facts and case answer they all give. Doesn't matter as it's not my point. Now, when I heard him talk about the case in his question, I thought, well that was probably a one or two sentence decision which says, we refuse to take this case because .... There are thousands of Supreme Court cases which say that and there is no reason for a judge or lawyer to know them at all. They were rejected.

So, her answer surprised me. She said she hadn't read it in a long time, perhaps since law school. She didn't say, I think I may have read it, she said she had.

Now, I'm sitting in my living room watching this, and, unlike her, I have a laptop. So I look up the case, and sure enough, it was in fact a one sentence rejection which actually said even less that Senator Grassley thought it said. I would have bet anything right then if I could have my hands on a copy of her law school constitutional law text book that not only would it not have this case in it, but that it would make no mention of it. Why should it? At the time this was not a hot button issue (early 70s) and no one would have thought twice about it except the litigants. She certainly never read it. She just didn't want to look like she wasn't up on important cases.

I was disappointed that they agreed that they would talk about it the next day. And they did. And, sure enough, having looked at it, she said that she probably never read it.

This is really no big deal as I don't believe that Supreme Court justices are any more honest than anyone else. She was just participating in the horse and pony show.

The controversial cases

I will just cover quickly the two cases that the Republicans seemed concerned about, or at least thought they could cause her grief about.

The first is the Ricci v. Defestano case, recently decided by the Supreme Court. The argument is that because the Supreme Court determined that the decision which Justice Sotomayor joined in with her two colleagues was overturned, she is not qualified to be a Supreme Court judge (or, if they adopt the Obama standard of ideology counts, it shows she has an ideology that they don't like). This was a civil case where the city of New Haven, a city with more minorities (black, Hispanic, etc.) than majority white, threw out the results of some promotion tests for firefighters, because the pass rates of whites roughly doubled that of minorities.

People are often surprised to learn that the Civil Rights laws not only forbid intentional discrimination by the government, but also acts which lead to disparate impacts or results. And, they don't have to be that disparate. The EEOC uses an 80% standard. The disparate impact hear far exceeded that. The lower court wrote a long decision and determined that it was okay for the city to intentionally discriminate against the white (and 1 Hispanic) test taker who would have been promoted based on disparate treatment (intentional discrimination), by throwing the tests out, in order to avoid a likely lawsuit by minorities based on disparate impact (unintentional discrimination). Confused yet?

Judge Sotomayor's three person panel voted to affirm the district court in a summary decision. A vote to have the whole panel of second circuit judges rehear the case lost. The Supreme Court took up the matter.

In the usual five to four majority the conservatives on the court won a reversal, finding that the test was job related and business necessary (that is, we want firefighters promoted on merit, not race decisions). I agree with them, not necessarily for the reasons they give. The law is actually much more complex than I just summarized though, and I am not going into further analysis. Feel free to read the case. Title VII law is mind boggling and in my opinion, highly subjective.

I do not think that because the Sotomayor was reversed that she is not qualified to be a judge. Of course not. If so, what of the four Supreme Court judges who saw it her way (I expect my conservative friends to say, yes, they are incompetent too). But, if Obama gets to replace a conservative judge on the high court with a liberal, will that mean that no conservative judge who gets overturned will be qualified (I'm sure my liberal friends would say, yes, they would be incompetent)? If you add the two other judges on the panel with Sotomayor, the score would be 7 go 5 in favor of the city. She doesn't look so incompetent then. Sotomayor states that she just followed the law and that the Supreme Court decision changes the law. That is arguable, but not invalid.

Here's the ironic thing. The fact that the Supreme Court keeps ruling five to four with the same judges on each side shows the merits of the legal realism theory. I accept that each side believes it is just following the law (Sotomayor and the committee all acted as if the law has written in stone meaning, as if it was a brick you could put your hand around). Why do they keep ending up voting in this five to four pattern? I know. It's because of who each judge is, including their experiences and beliefs, which has an effect on their decisions. Legal realism.

The other case which was used to attack Sotomayor I can be briefer about. In Maloney v. Rice (there is another case too, but this one is enough for now), a New Yorker challenged the constitutionality of a law against possessing nunchuks (if you don't know what they are you are no Bruce Lee fan) which are two sticks or tubes tied together with a cord or chain and which can be very lethal. The challenge to the law is based on the argument that now that the Supreme Court ruled last year that the right to bear arms found in the second amendment to the constitution is a private right, to bear arms with respect to the federal government, that it should be found to be incorporated in the liberty clause of the fourteenth amendment and applied against the states. Sotomayor and her colleagues found that since the Supreme Court had not incorporated it (they declined to decide that yet), they aren't going to do it for them. However, as was pointed out during Sotomayor's hearings, conservative Court of Appeals' judges have made the same holding she did. I disagree with all of them that they did not have the right to make that decision (if they believe that's what the constitution means, then that's what they believe) but it is certainly not an anti-gun position, as her opponents seem to want us to believe. For all we know, she'd like to own a gun.

Of course, many conservatives, generally speaking, will be clamoring to find that the second amendment is a fundamental right and needs to be applied against the states. Pure hypocrisy, of course, as conservative theory has always been against the fundamental rights theory. And many liberals will be clamoring to find that it shouldn't be found fundamental, although it is, generally speaking, the only one of the bill of rights they don't seem to think should be. Pure hypocrisy, of course. If you missed the argument, if the goals of the idealogues on either side is to be hypocritical, they have succeeded beyond measure.

Isn't that what this blog always comes around to concluding?

Friday, July 10, 2009

Top Ten II


We’ve done this before. Here are my new, random and exciting top ten lists:

Guitar Oriented Rock Songs

10 Layla by Derek and the Dominoes (Clapton/Allman)
9 Hocus Pocus by Focus
8 The Harder They Fall by Jerry Garcia (concert version)
7 Wham by Stevie Ray Vaughn
6 Freebird by Lynyrd Skynyrd
5 Legs by ZZ Top
4 Green Grass and High Tides Forever by The Outlaws
3 Jessica by The Allman Brothers
2 Smoke on the Water – Deep Purple
1 Sabre Dance – Love Sculptre (Dave Edmunds)

Movie/Television Karate Guys

10 Steven Seagal (His first five, Above the Law, Hard to Kill, Marked for Death, Out for Justice, Under Siege and then a short role in Kurt Russell's Executive Decision were his best)
9 Jackie Chan (unique combination of kung fu and comedy)
8 Jean Claude Van Damme (Bloodsport was his class the classic, but there were many great ones)
7 Keanu Reeves (What? The Matrix trilogy dummies; I don’t care if it was computerized)
6 Chow Yun-Fat (Crouching Tiger, Hidden Dragon, etc.)
5 Bolo Yeung (a muscle bound Bruce Lee protégé – Enter the Dragon, Chinese Hercules, Bloodsport, etc.)
4 Yuen Biao (I don’t think he ever made a Hollywood movie, but a Bruce Lee type)
3 David Carradine (Kung Fu)
2 Chuck Norris (Walker Texas Ranger and the last standing bad guy in The Way of the Dragon)
1 Bruce Lee (I mean, there’s no question – all the movies plus Kato)

Obviously, I'm not a Jet Li fan. I thought his best role was was as a bad guy in one of the Lethal Weapon movies.

Movie sword fights

10 Rob Roy (Liam Neeson v. Tim Roth)
9 House of Flying Daggers (Takeshi Kaneshiro v. Andy Lau)
8 Crouching Tiger, Hidden Dragon (Zhang Ziyi v. Michelle Yeoh)
7 Star Wars II (Christopher Lee v. Yoda)
6 The Three Musketeers (Gene Kelly v. Some unknown actors playing one of the Cardinal’s Guard)
5 Pirates of the Caribbean (Orlando Bloom v. Johnny Depp)
4 The Princess Bride (Cary Elwes v. Mandy Patinkin)
3 Robin Hood (Errol Flynn v. Basil Rathbone)
2 The Court Jester (Danny Kaye v. Basil Rathbone – please watch the video; both a great fight and hysterical; Danny Kaye could do anything)
1 The Mark of Zorro (Tyrone Power v. Basil Rathbone – you get the point about Basil Rathbone yet)

Historical Generals preceding Napoleon (non-American)

10 Saladin (the great Kurdish warrior who showed the Crusaders what chivalry meant)
9 Gyllipus (a Spartan general, sent to Sicily, helped the colony beat the supposedly vastly superior Athenian Navy)
8 Julius Caesar (perhaps Rome’s greatest general other than Scipio)
7 Attila the Hun (if not murdered, maybe history would be different and we’d all be speaking modern Hunnish now instead of a Germanic language)
6 Themistocles (maybe the key figure in stopping Persia from conquering Greece in the early 5th century BC)
5 Subotai (Ghengis Khan’s greatest general; used tactics Eurpope hadn’t even thought of; I may be underrating him)
4 Charles XII (Sweden’s King; he was Europe’s greatest general of his era; I've posted on him before)
3 Alexander the Great (lots of old Greeks here, I suppose, but I like old Greeks)
2 Hannibal Barca (he virtually broke the mold and made fools of the Romans)
1 Scipio Africanus (because he beat Hannibal)

lines from Shakespeare

10 Now is the Winter of our discontent. (Richard III)
9 Brevity is the soul of wit. (Hamlet)
8 Et tu, Brute. (Julius Caesar)
7 Hoisted by his own petard. (Hamlet)
6 Double, double toil and trouble; Fire burn, and cauldron bubble. (Macbeth)
5 Out, out, brief candle! Life's but a walking shadow, a poor player that struts and frets his hour upon the stage and then is heard no more: it is a tale told by an idiot, full of sound and fury, signifying nothing. (Macbeth)
4 Cry “Havoc” and let slip the dogs of war. (Julius Caesar)
3 This above all: To thine own self be true, and it must follow, as the night the day, thou canst then not be false to any man. (Hamlet)
2 There are more things in heaven and earth, Horatio, Than are dreamt of in your philosophy. (Hamlet, again – because it was the best)
1 But soft, what light through yonder window breaks? It is the east and Juliet is the Sun. (Romeo and Juliet)

historical mysteries that we’d like to know the truth about

10 Did space aliens crash land in Roswell, New Mexico? (no)
9 Are aliens stored at Area 51? (no)
8 Did Shakespeare write his plays? (of course, he did)
7 Who was Jack the Ripper? (I have no idea)
6 Who was Homer, if anyone? Man, women, a group of poets, etc.? (my guess is that there was a Homer, but he is only one of many poets who added to the story or was just a well known singer)
5 Was there an Atlantis? (No; possibly Crete or some other island off an advanced civilization [Egypt? Phoenicia?] inspired the belief. Plato mentions it in two dialogues, but as he places it nearly 10,000 years previous to his time, his account lacks credibility; but; in any event, it wasn’t a continent in the Atlantic Ocean)
4 What happened to Judge Crater? (This is a long and fascinating story, but, essentially, in 1930, this NY Supreme Court Judge had dinner with a couple and disappeared into a cab – forever. I like to think he ran off with a showgirl)
3 Was there an historical Jesus? (I’ve posted on this question and argued yes)
2 Was there an historical Buddha? (a much tougher question; who knows)
1 How did Marilyn Monroe die? If there really was a Kennedy connection, that would make news)

favorite words

10 angel (not a rare word, but I’ve always like it)
9 jeremiad (from the biblical prophet; a long angry complaint)
8 quixotic (a few meanings from Don Quixote’s character, overly romantic or fanciful)
7 sycophant (a suck up)
6. fulgent (very bright or shiny)
5 niddering (a coward)
4 muliebrity (being a woman)
3 velleity (a mild desire to do something)
2 apotheosesis (the sudden breaking off of thought; the last three words I learned from the author Bill Bryson's wonderful The Mother Tongue)
1 mellifluous (something like eloquent, but sweeter – melli means honey)

Mythological characters

10 The two angels from Jehovah who visit Lot in Sodom in the Bible. No names. A great mysterious touch to the story
9 Bellerophon (tamed Pegasus, slew a chimera and other great feats)
8 Skinnr (a servant of the Norse god, Freyr, he goes to woo a giantess for his boss with a few magical instruments)
7 Ganesha (Hindu elephant headed god)
6 Loki (the Norse trickster; he’s what made the Norse saga interesting)
5 Andromache (I have a soft spot for the wife of Hector, whose husband was killed by Achilles in the Iliad; Hector and Andromache are the most sympathetic couple in all mythology)
4 Prometheus (the titan who gave man fire; he was tortured by the gods until freed by Hercules)
3 Enkidu (this half man, half beast from the Epic of Gilgamesh was far more noble than the hero of the epic and paid for his friendship with his life)
2 Odin (the mysterious old one eyed father of the gods, wandering among mortal men with his staff in hand, who sacrified himself more than Zeus would ever consider)
1 Thor (I always loved this incredibly strong, sometimes angry, but heroic Norse god; often ranked below his father, Odin, but at an earlier time before Odin's worship came to Scandinavia, he was a more important god and probably always the favorite)

You might not care, but it bothers me that I had to leave out Beowulf, Sigurd, Pan, Cheiron the centaur and the American Indidan trickster, Coyote.

American Icons

They must be dead, have been born or lived in America for a significant period of time and their image must be imprinted in our heads.

10 Mae West
9 Babe Ruth
8 Teddy Roosevelt
7 Albert Einstein
6 Dan Rice (A 19th century clown who was the model for Uncle Sam)
5 Humphrey Bogart
4 Jackie Onassis
3 Mark Twain
2 Elvis Presley
1 Marilyn Monroe

Sitting Bull almost made the list and Michael Jackson, freshly dead, might put out someone at some point. The list though is probably geered to my age group and older. I don't know if a 35 year old would know many of them. It be a good test.

Places I would love to go to

10 Hawaii (saving it for my honeymoon, so, probably never will)
9 Minnesota (since I’m a kid; why I can’t say)
8 Australia (also since I’m a kid; my first chosen destination and yet I’ve never been there)
7 Rome, Italy (been to Italy thrice, but never there)
6 Scotland (the lure of the moors)
5 Egypt (obvious reasons)
4 Zion National Park, Utah
3 Macchu Picu (I fear it may be ruined by tourism and technology by the time I get there)
2 Canyon de Chelly (you need an Indian guide to go in; a little Grand Canyon featured in the film Contact)
1 New Zealand (a hiking trip, preferably)

Places I’d love to go back to

10 The Black Forest, Germany (one of the two most beautiful forests I’ve ever been in and dotted with Hansel and Gretel little villages, not to mention Heidelberg)
9 Niagara on the Lake, Ontario (not the falls, but a little ways from there; a wonderfully pretty little town)
8 Grand Canyon (maybe the most spectacular place I’ve ever been)
7 New Orleans (exactly what you think it be; I think "fun" covers it)
6 San Francisco (took my breath away first time I saw it from a height; in my mind the prettiest city in America)
5 St. Thomas, Virgin Islands (beautiful and peaceful)
4 Florence, Italy (been there twice and could go back many times – doubt there is a better place to look at Renaissance art)
3 Santa Margherita, Italy (a beautiful town on the Italian Riviera)
2 Galeria, Corsica (a tiny fishing village with a few small hotels; a quiet paradise where you start to recognize the town dogs after a couple of days; not for those who crave night life)
1 Matala, Greece (little tourist town on the Southern Coast of Crete surrounded by little hills riddled with caves)

Powerful Senators who never became president (rated on importance and achievements, not my preferences)

10 Henry Cabot Lodge (Harvard's first history Ph.D and an imperialist, he battled Wilson over the League of Nations; a powerful figure who could never manage his way into a presidential nomination)
9 William Crawford (lost to Monroe and J. Q. Adams; one of those very prominent men we no longer ever discuss)
8 William Seward (wasn’t president because Lincoln beat him in the primaries and he became his secretary of State, serving until the end of Johnson's term, he almost died with Lincoln in the same plot)
7 Thomas Hart Benton (served longer than anyone at that time; a peer of Clay, Calhoun and Webster and quite a career – never ran though. He dueled with Jackson and then became a big supporter)
6 Richard Russell, Jr. (Nearly 40 years in the Senate, this Georgian white supremacist dominated there for decades, opposing civil rights the whole way but very strong on national defense. He tried for the presidency once, but Northern Democrats blocked him)
5 William Jennings Bryan (a great orator, prohibitionist and inventor of the stump speech; he lost twice to McKinley and once to Taft; famous for role in the Scopes Monkey Trial)
4 John C. Calhoun (protector of states rights and slavery, but considered a man of great character; he was twice VP)
3 Henry Clay (The Great Compromisor over slavery and inventor of the American System of infrastructure improvement; he ran thrice; involved in the the "corrupt bargain" that made J. Q. Adams president)
2 Robert M. La Follette, Sr. (once rated by historians as the greatest Senator tied with Henry Clay; ran for president in 1924 as a third party and actually got about one in 6 votes, but Coolidge was in office already after Harding died and ran away with it)
1 Daniel Webster (one of the greatest American orators and of the triumvirate with Clay and Calhoun; admittedly, I like him best because of the short story, The Devil and Daniel Webster, with which he has nothing to do)

Apologies to Michael Mansfield, who should be in there somewhere.

Friday, July 03, 2009

Political update for July, 2009

The economy

No surprise that the Obama stimulus projects aren't working and people are starting to get fidgety. That fact seems to have penetrated even the political armor of some on the left, according to recent polls, who in increasing numbers are questioning the logic of borrowing more or creating more money. If you are a Democrat or liberal or even an independent willing to give it Obama's plan a try, you may still have resistance to believing this. So, take the word of Paul Krugman, who presents himself as a liberal. Many on the left see him as the last word on economics in the private sector, particularly since he won the Nobel Prize.

Krugman's NY Times' column of 7/2/09 acknowledges that the jobs aren't coming although he believes that the plan hasn't been given enough time. Also not surprisingly, he wants more spending, not less. It seems to me that we've had enough of these experts - and I include the so called "geniuses" of the Bush administration along with the "pointy heads" of the Obama administration - telling us that the things that make no sense are the only things that make sense. It's part of what got the economy in such trouble - the belief that we can make money and even lots of money, by financial systems which seems to create money from nothing.

The history of stimulus approaches to failing economies seems to be, as far as my limited education tells me, one of failure, both here in the United States and abroad. With respect to the New Deal, we must remember that many of Roosevelt's large federal economic laws were found unconstitutional, leading him to his unsuccessful attempt to pass legislation allowing him to pack the Supreme Court with additional New Deal judges, and that after 1935 he never passed another major one. Towards the end of the decade, as I never tire of repeating here - his own secretary of treasury emphatically admitted that spending didn't work.

And although I won't repeat my prior screeds on the economy, I did revisit them myself (my personal favorite on 11/13/08) to see if I've evolved or changed my opinion so far (nope). But, looking back I wonder how it is that I haven't taken whatever cash I have and put it under my mattress given the bleak future I see. No doubt, right now I believe the conservatives have a better economic theory than the liberals, however much they mucked it up when in power themselves. Lefties who are still glowing in the bask of their president being elected and predicting the end of the Republican party had better take a look at recent changes in the polls already and consider how fast they can put their plans in place before the economy so tanks that the right is given back control of the house of representatives (it is much harder to change the senate as only one third of them face re-election every two years except for seats opened by death and retirement). Listening to them, I can still remember how many believed the same of the Democratic party only two short years ago.

But, I will briefly restate my basic economic premises in another way, and will probably continue to do so so long as the government won't give up this insanity. It was, after all, a long time coming and with constant complaint that the Bushies finally figured out a few years ago what everyone else knew - that the plan in Iraq wasn't working and a change was needed. Don't expect Obama and Co. to be any less dense with the economy. It would mean admitting they were wrong.

- Economists can explain what happened economically in the past with some success. They have no greater ability to predict the future than Nostrodamus did. If you believe Nostrodamus could in fact predict the future, you should disregard everything I write on every subject - for among my base philosophy is that "magical" thinking doesn't work, and that our collective way of thinking is consumed with it.

- Our economic problems are cultural, involving greed following uncommon success, a desire to live over our head, lack of individual planning, the belief that things too good to be true are true including that value can be created by everyone saying it is so - like with housing or stock market bubbles - and confidence that our government leaders "know" what they are doing and have our best interests in heart as opposed to just achieving political control, to name a few.

- F.A. Hayek's The Road to Serfdom seems to accurately describe how a socialistic system could arise in a Democratic country- not by military takeover, but a slow surrendering of individual rights to the government; by the same government swerving from the law (such as by "bailouts," picking economic winners, taking over control of the economy, and other post hoc changes) under the guise that "we have no choice" and, when the economy continues to fail, sory, but now we really have no choice. Indeed, that is exactly what Krugman and others like him seem to be saying. "We're not climbing out yet? Keep digging and someone hit those guys trying to build a ladder over the head with a spade".

- Even when government is completely screwing up, the economy can move on its own and the worst thing that can happen right now is a recovery, which will not be permanent, but encourage more bad planning and economic policy.

My short term recovery plan, as it stands now is as follows:

- end the bailouts now;

- stop all stimulus activity that is not directly related to producing jobs such as infrastructure projects; don't use it to stop companies from failing - that's why we have bankruptcy. No company is too big. How else are we going to get people to be careful with their money. If we don't let businesses fail when they should (and it seems like they do anyway after they take our money) then we can't learn how to avoid the problem or fix it;

- put in a regulated voluntary assistance health care plan, essentially allowing a fixed amount of charity to go directly to alleviate healthcare cost by giving donors a tax credit (I posted on my plan on 5/28/09 to thunderous non-support);

- reduce individual and payroll taxes across the board. Why not at least try that before the government spends money it can only get from its citizens;

- completely throw out the budget and start over. I'm for PAGO except in cases of national emergency;

- let's suffer through the problems of business failing and people losing their houses; the economy will find a botton level and start to build again. That might sound Hooverish to you, but I'm far from convinced that this wasn't the better approach after all.

My long term plan calls for political change that people probably aren't ready for yet but I think it's necessary:

- severely reduce non-military government employee pension plans and restructure how they are done (no one should be well off on just a government pension and they should never approach an actual salary - the country can't afford it). If you don't like that, it started happening already all over the country the last few years;

- make retirement from government at age 65, and not after 20 or 25 years. We all want to retire young, but we can't;

- amend the constitution so that no one can serve in congress for more than a combined twelve years;

- restructure the congressional rules, including by constitutional amendment if necessary, so that the political parties cannot control it exclusively and cannot raise their own salaries and benefits. I'd severly reduce their benefits to a reasonable amount related to their duties, do away, or greatly reduce their pensions (politics might be a career, but being in congress shouldn't be) and cut back their medical plans to the same level as most people can get;

- completely get rid of any congressional privileges once they are out of office (like going on the floor of either house), have complete transparency of their lobbying and financial activities once they are out of office for five years, starting now, and have complete and immediate transparency of earmarks (which aren't all bad, but need to be watched);

- require a full senate up and down vote on all presidential nominations, again by constitutional amendment if necessary, within no more than two months after nomination or they are presumed valid unless they are later voted down within four months;

- revolve committee chairpersons every two years max; require members presence on committee or the senate floor while in session with little exception (some for temporary illness, deaths in the family, etc. - if you can't be there long term for any reason they lose the seat, which was never theirs to begin with;

- limit personal fundraising appearances and electronic calls while congress is in session. I don't care if that hurts their chances of re-election; they spend the majority of their time raising money; they are being paid to work, not run again;

- modernize the parliamentary procedure. No more "laying bills on the table," and similar archaic jargon new members have to learn over time; get rid of bogus voice votes where the congressperson's staff are screaming out votes for them and the acting president automatically declares that his/her side won; no more quorum calls to delay votes, etc.;

- last, have state judicial ballots made without reference to political parties. An independent judiciary is always a good thing. Party allegiance is not.

Of course, since you need congress to do almost all of that, forget it. It's not happening. But, it should.

The Senator from Minnesota

Al Franken's rise to the Senate was delayed much too long and states should put in procedures to expedite finding a winner. I take nothing from Coleman in his right to contest the election, but, enough was enough. There was no credible argument in his favor from the beginning. As Gore learned, sometimes you just lose by a little bit.

Naturally, I'm concerned at the power this gives Democrats now. The way that congress has designed itself, political parties have the power, not the people who send their representatives there. The one power a minority has to stop a bill (good or bad) from going forward is by the filibuster power of the Senate (the House has a different system and the minority party, shy even one vote of a majority, is virtually powerless, and both parties abuse that power) and now, with the Democrats having 61 votes, it barely exists except in theory.

Middle class people on the left who have the illusion that their party cares about them more than Republicans do are in for a rude awakening. Political parties are there to serve themselves, not you. If by hurting the economy they can ensure their continued power, they will. The same is true of the opposition. If by hurting the economy they can win power, they will. If you disagree, what in our history tells you this is so?

I thought Franken was funny back when he was on Saturday Night Live and looked forward to his appearances. I have read through some of his books and still believe he is funny - when he is writing, that is. I have heard him on radio and seen him debate and find him not very funny personally. In fact, he is a bad debator who would not have won this time except for the anti-Bush sentiment.

If he will take my advice, he will not try and be funny in the Senate. He's going to find them a tough audience. Besides, his senior senator, Amy Klobuchar, is much funnier than he is. Seriously, she is very funny.

Ricci v. DeStefano

Having just posted on another Supreme Court case I will restrain myself here. This was the case where test scores for promotion in a Connecticut fire department were thrown out so that more minorities could be promoted.

I'm glad for the decision. It was, not surprisingly, a 5-4 decision, with Kennedy writing the opinion and as always, providing the swing vote. It is really his court, regardless of the fact that we always call it the Robert's Court after the Chief Justice. Only Obama has more power in America than he does and that will not change with Sotomayor taking Souter's seat. Kennedy is still the one whose vote you need to win in tough cases.

Fortunately, Justice Kennedy is a good man to have this power. While he is economically and culturally more conservative than liberal in his votes, he is apparently motivated by other things, and his jurisprudence is much more consistent than the right wingers who hate him for voting with the left sometimes would have it. I hope to find time to read Helen Knowles' The Tie Goes to Freedom which discusses his decisions and ascribes to him a modest liberatarianism. I don't think I see that, but I've listened to her on C-Span and she has some argument. I see him more as a humanistic conservative. Naturally, I don't always agree with him - sometimes I vehemently disagree. But, as far as I am concerned, he is the only one on the court who is not substantially a prisoner of ideology.

If in America, a civil service test (or the like) can really be thrown out on racial grounds, as happened to these white Connecticut firemen, then we have a racist system. Since I criticized Justice Thomas a little (praised him too) in the last post for a partially extreme position in a 4th amendment case, I throw him a bone by mentioning that his dissent in the last big affirmative action case hit it square on the nose when he asked if we had determined that we were going to act unconstitutionally for 25 years (what the majority opinion written by Justice O'Connor had said) until we feel blacks have caught up economically. I recognize that many on the left feel that the law was so unfair to blacks and other minorities for so long that we must rectify it by giving them certain advantages. I sympathize with that history, but disagree with the solution. I am not against all of what might be called affirmative action (I have no problem, for example, with some advertising which encourages minorities to apply) but am definitively against quotas, set asides, preferences or anything which would allow merit to be set aside in favor of skin color or genes.

I am doing here what I often criticize, looking at a case purely politically rather than analytically, but, as I've also said, people prefer that, and I can't go on and on about everything. I've never had a comment complaining that I've been too brief on any subject ("Please, Sir, pontificate some more").

Health Care

I've posted on my response to the health care crisis, and, realistically, it is not something that would be considered. For one thing, no one in public life has considered it. With respect to what's going on in congress, I have three thoughts.

First, the idea of a public sector alternative is not a good one, if the government is the insurance company. Naturally, government has all the advantages and there could never be fair competition. It would merely be a slow, and maybe a quick way, of driving out private health insurance companies. That might sound like fund now, but wait until government is the monopoly choice. Like with taxes, the prices would go up and up.

Second, one of biggest health care problems people face is non-coverage of prior health problems by new insurers. That means any time gap in coverage can be a huge problem, perhaps even fatal to a person. Without wanting to require it of health insurance companies, we need to address this problem, and, if possible, to eradicate it without killing the industry. I don't have an answer but I suspect that giving insurance companies some tax benefits by not having this exclusion in any of their policies might be an answer, but, you could talk me out of it if you can point out a good reason it shouldn't be the case or present a better solution.

Third, another big problem is faced by the unemployed or self-employed individual who needs health care. This should not be difficult to fix. I note that New York manages to have a public health care policy which is managed by the health insurance companies, not the government; they must all provide the same services, but can charge whatever they like for it. There is a potential anti-competitive edge to this, but, so far, I don't see any sign that it has hurt the insurance companies and the prices do vary considerably (why anyone would take any but the cheapest I can't conceive).

Sex and the governor

Dear Governor Sanford,

As a citizen of the United States who has railed against the idea that sexual unfaithfulness means unsuitability for serving in government, and as someone who had previously liked and respected you, I now ask you to stand up and say either -

"I resign my office as governor of South Carolina," or

"I am a complete hypocrite but, as such, will not resign my office."

Very truly yours,


The worst thing that the Republicans ever did, in my lifetime and memory, was the unmitigated political attack on President Clinton, wherein they sought to unseat him for his sexual hijinx. However much individual Republican members of congress protested that it was was about lying under oath, honor, trust, etc., it was pure hypocrisy, and I enjoy it whenever a politician is shown to be a hyprocrite in this regard, whether Newt Gingrich or John Edwards.

I liked Mark Sanford well enough when I heard him speak last year and I liked his attempt to avoid taking stimulus funds from the federal government this year. I would have been pleased if he had been selected as McCain's running mate, although I suspect his affair would have come out much faster and possibly hurt McCain in the long run (not that he didn't have other problems).

I'm happy the governor is suffering for his sins. Why not? He was adamant that Clinton must go and has elsewhere commented that those who commit adultery can't be trusted. Why should he be an exception? Hypocrite, hypocrite, hypocrite.

There are probably other good reasons Sanford should go, of course. It looks like he apparently used State funds to pay for at least one trip to Argentina to see his girlfriend. Naturally, all this adverse publicity has set him back on his heels and he is saying some strange things, like Maria (the girlfriend) is my soulmate, but he is going to try and fall in love with his wife again, and, mentioning that he has been "inappropriate" with other women as well. As, Maureen Dowd wrote recently, his wife should make sure the doors are double locked. How embarrassing for their kids. Besides, hasn't he ever seen a movie? People would have rooted for him if he did it the right way.

I understand men who fall for younger and more attractive women (I wouldn't say Maria's among the most beautiful women in the world, but she is much more attractive than his wife in the conventional sense). I love it when a man who wanders from his marriage uses "soulmate" to describe the woman he's interested in, as if its just a spiritual connection, when it inevitably turns out that she is much younger and sexier than the wife. Although I am generally in favor of people keeping committments to their significant other (who isn't?), I have long ago come to believe that being dishonest with your other half does not necessarily mean you are dishonest in any other way, although, of course, that's possible too. Cheating is a human weakness that some flounder with and others don't. Some who don't are right on the fence and just need to meet the "wrong" person. Don't get me wrong. It is better to be faithful and honest and all that good stuff. Divorce or breaking up should always be an option before cheating and shouldn't result in death to your public life. But, I have known too many people I like and trust who have not met even their own personal standards in this regard (even adulterers usually think it's wrong to cheat, in general) to think its okay for them but no one else, based on whether I personally know them. It's a personal problem that should be dealt with personally, not legally and not even socially.

The adultery laws, still out there thanks to the cowardice of public officials, rarely, but sometimes enforced, should be repealed by state governments. The last two times I've read of them being enforced, it was against public figures and used as an example. That's not a good reason to enforce a law. Those who decide not to vote for someone because they cheated on their wife should think twice because it probably makes them a hyprocrite too. Chances are, they excuse it for those on their side but find reasons not to when its the other side. I had to laugh recently when a conservative friend told me that adultery was a liberal problem. That was just before Sanford, but after Ensign. Neither side can declare victory here and it is just foolish to believe that our political views will govern a politicians' ability to resist temtation.

And it leads to ridiculous situations like this one. If Mark Sanford fell in love with someone else while he was married, he should have been able to say so, divorce his wife, bring his girlfriend here (legally, of course) and date her, live with her or marry her while still governor. You don't stop being a person just because you are elected to office. If our forefathers could be womanizers, why can't modern politicians?

But, of course, Sanford is part of the problem, a complete and utter hypocrite when it comes to this, and he deserves what he gets. I hope he is hassled about it enough to resign and the same for any politician who shares his opinion that adultery means you can't serve. But, I also hope that we have had enough of this nonsense, and that some brave cheating politician comes forward before the press or an acquaintance ousts him and sets a new standard. After all, we have now elected a divorced president and even one who admittedly did drugs. We can handle it.
Hard to find that kind of courage in politics, so, don't count on it.

Sarah Barracuda

The girl does know how to make an entrance and exit.

Sarah Palin being selected by John McCain was not a huge surprise to anyone who was following the election closely. Her name had been bantered about. I had dismissed her towards the end because there was an ethics investigation pending. McCain, seemingly impulsively dismissed the investigation and, in the end, was proven correct in his decision not to worry about it too much when it was dismissed just before the election.

However, as they bungled most of the campaign, they seemed to bungle the way they handled that as well. Originally, SP had been given great credit for her handling of the investigation, with high marks from the investigator for cooperation. That changed dramatically as the McCain team weighed in. Obstruction, not cooperation, became the rule. And, obstruction leads people to believe in guilt. I was, rooting for McCain, pleased when the report was favorable to her for the most part. But no one seemed to care. For by then, SP had had her reputation so tarnished by her opposition that nothing could save it.

In the end, I don't believe the choice of Palin had much of an effect on the election. Anecdotally, I can tell you that with few exceptions (I can think of one), those who told me they were thinking of voting for McCain but changed their mind when he selected her, had never voted for a Republican before. No doubt they didn't like her - what liberal would want to vote for a strong conservative - but I think they were probably not going to vote for McCain anyway. We'll never know. Anyway, the Bush factor, the economy and the horrible campaign choices by McCain were certainly much bigger factors.

SP is not someone I would choose for president, but we so rarely get a candidate we really like, McCain being the first one for me ever except to some degree - Bill Clinton the second time around and that was more due to his mistreatment by Republicans. But, despite that, I have never seen such media abuse of a candidate as I did with Sarah Palin (not that she helped much). She was targeted and ridiculed more than Dan Quayle, Al Gore, John Dean and Mike Dukakis (yes, contrary to conservative claims, Democratic candidates have been very roughly handled by a predominantly liberal media).

I believe the key factor in Palin hatred was a reverse discrimination. The left, who you would think was a natural audience for a woman candidate was furious with the choice of one so far right. She violated the cardinal principal - she was pro-life.

I had many email exchanges with friends and family during the election. There was vituperation on both sides - McCain seen as a Bush clone and even an incompetent pilot (I'd love to see his critics get in a plane again after going down in one) and Obama portrayed as the Manchurian candidate. But both of these ridiculous charicatures devolved after the election, where as Palin hatred did not abate.

Palin was portrayed - and the left believed - that she was anti-woman (trying to force them to pay for their own rape kits - a falsity) and leading death to Obama chants (some correspondents told me they saw this on u-tube themselves - those videos all magically disappeared, of course, and the secret service report investigating the claim by one reporter who alone heard a third person scream out "Death to Obama" could not be corroborated by a single person standing near him (and, yes, I read the report, which was posted on the web)). It didn't matter. When the media wants you dead, you have little chance. And when the other side finds a way to successfully ridicule you, you are double dead (the John Dean yowl being a great example).

Not that she did not help it herself. Her interview with Katie Couric could have been a home run, but was a disaster. There was no attempt by Couric to get Palin. But, she appeared like a deer caught in the headlights, not even able to answer what newspaper she read. I have no doubt she had advisors in her head telling her "commit to nothing" but ultimately, it is the candidate's decision to make and she flunked.

Although she would not be my candidate, I find Sarah Barracuda fairly harmless. I am never offended by pro-life people. If there is one demonization I will never understand, it is pro-choice hatred for people who are trying to save lives. Although I am not against abortions in the first few weeks, I am not offended by those who believe a life is a life at any stage and you can't draw a line (you certainly can't draw one but arbitrarily).

And, although an atheist, and aware that we are the single most unpopular group in America (much more so than even gays according to years of polls in terms of who people would automatically not vote for president) I found her religious bearing non-offensive. She was portrayed by many as a religious zealot who would try and force people into her religion. She said all the right things as far as I remember, and I would not even have a problem if she wouldn't vote for me because I am an atheist. There are lots of people who I wouldn't vote for because of religious extremism, but she certainly wasn't one of them.

Of course, no one really knows why SP decided to quit being governor. Does she want to get out of politics or is she planning a run for president in 2012. I am guessing, but I think she is leaning towards the latter. It doesn't matter, because I don't think she will get the nomination (I was right about McCain, but wrong about Obama, who I thought would lose to Clinton). Too many Republicans, mostly moderates, will doubt her ability to win. The more right wing Republicans will have other choices without her weaknesses.

And, unless she suddenly becomes a stateswoman, I don't see her as impressing a lot of people with her knowledge and abilities. Although she showed leadership ability before running for VP in cutting spending and going after those in her own party (a big plus for me), she never really impressed anyone except with her looks. Of course, it is not a level playing field. Joe Biden, who I personally like, made far more mistakes of facts than she did in their debate and was overwhelmingly seen to have won. His buffoonery before and after the election is always dismissed as if he is a lovable but strange uncle. "That's just Joe." SP will never be given that leeway. She is too tarnished.

But, she will try and she will fail. Although a deep conviction as to the existence of God has been key to winning American presidencies, that does not seem to be the country's mood. And, if I'm completely wrong and she emerges in 2012 as the candidate for the Republicans, she will almost certainly fail.

Then again, a lot can happen in three years (terrorist attacks, wars, economic disaster, personal scandals, etc.) and we've all been wrong before.

About Me

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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .