Wednesday, April 12, 2017

New Miss Malaprop V

From time to time I post here on my amazing gf aka my 25 to life sentence, my girl-fuhrer, my ball and chainsaw and her favorite (which she has co-opted for me), my insignificant other. She has, among other talents, an amazing ability to mix metaphors, say things just about right - but not quite and other verbal propensities that just slay me. If you haven't read The New Miss Malaprop I, II, III or IV, they are worth it and frankly, probably better than this group. Still, below is a slice of my life. I usually say a few things first when I go do these posts: First, don't be offended for her. I understand it can be read as my being condescending to her, but it really doesn't feel like that when it is happening. Think of it more George and Gracie (she calls herself Gracie). Besides, even if I am, you have no idea of what I go through every day with my beloved - I'm a martyr, and she loves it when I tell these stories. Second, I swear I am not making them up. I write them down as closely as I can, as soon as I can. Third, most of them aren't technically Malapropisms. But who cares, if they are funny? Here we go:

One day - well, actually every day, she complains I don't help her. She's right. I can't help her because nothing I can do will be right and I don't feel like being mocked or scolded the entire time I am helping her, even if she has no idea what she's doing and I am actually right. It's too punishing. But, this day I decided to tease her about it, not even realizing myself the cunning of her mind when it comes to me:

P: I have no one to help me.
D: If I help you, you’ll say I did it wrong. If I don’t help it’s wrong too. So, I might as well do the one that’s easier.
P: I don’t say you always do it wrong. You need to learn.
D: Learn what?
P: To do things correctly.
D: And I do it the opposite of correctly?
P: Yes.
D: What’s the opposite of correctly?
P: Wrongly.
D: Yet somehow you don’t see my point. Amazing.

Once, forced to admit an error herself, she explained it more succinctly: "We were both right, but you’re wrong."

The following is another one of her famous idioms:

D: (Looking at a left over potato) I wish this was baked instead of mashed.
P: You know the old saying.
D: A bird in the hand is worth two in the bush?
P: No. Beggars can’t be choosy.
D: Actually . . . that’s not the saying.
P: Sure it is.

We do a NFL playoff contest every year in which you have to pick the games every week from the Wild Card round through the Super Bowl. Of course, every week, the teams who will play each other have changed depending on who won the week before.  She just doesn't understand sports very well. I walked in on her while she was looking at the email reminder I sent in which I asked everyone to remember to pick that week's games. 

D: Hello.
P: What are you talking about?
D: I shouldn't say hello?
P: No. With this email?
D: (I look over her shoulder) You have to pick this week's games.
P: We did that last week.
D: How is it possible someone can know as little about sports as you do? 
P: No, you asked me questions last week and I already gave you my picks.
D: Okay (holding my head), these are new games. You couldn't pick them until this week because you couldn't know who would be in them until last week's games were over.
P: Well, how do I know who is playing?
D: I sent you an email a few days ago with the games.
P: Oh, I just delete those.
D: I'll send it again. We done here? 
P: It's ridiculous.
D: I don't care.
P: It's ridiculous to have to do it again.
D: Still don't care. Bye.

The amazing thing is, she won the contest that year, which tells you how much skill is involved. Another day we are watching an NFL playoff game. She is only interested because she wants to win the contest again. She has learned that Aaron Rodgers is the Packers' quarterback and he's really good. But, at one point this conversation happened:

P: So, why aren’t they playing Rodgers?
D: Umm, because the other team has the ball.
P: So, when are they going to put him back in?
D: When his team has the ball.

I suppose if you don't watch football you don't get that one. 

Still, another day we are watching Veronica Mars. It's a show I like a lot and have told her the name of it at least twice before this when we were watching it. I can never watch anything without having to constantly explain things to her, so sometimes I am a little petulant about it and just hit pause and dramatically put down the remote to look at her:

P: What's the name of this show?
D: Same as her name.
P: Which is?
D: Okay. (I hit pause and put down the remote). Her first name is the same as one of your sisters' middle names, remember?
P: Marie? Ann? Oh, Veronica.
D: Right. Last name is one of the planets.
P: Veronica Moon?
D: Really? Patty, what are planets?
P: Stars?
D: Yes, exactly, the stars are planets. Same thing.
P: (knowing my sarcastic voice). Wait, Veronica Mars.
D: So you knew it?
P: I guess.

Yet another day and I’m listening to Bach’s Cantata no. 8 when she walks downstairs past me on one of her endless self-imposed chores.
P: You really should have been born in a different century.
D: Okay, I'll bite, why?
P: Because of the type of music you like.
D: Patty, it's Bach. Lots of people still like him. I promise you they don't record it just for me.
P: Bach?
D: Yeah, he was the composer something like 300 years ago.
P: Really. That's strange, because it sounds like a woman is singing.
D: It is a woman singing. He was the composer. How could they record him 300 years ago?
P: Okay, but that's still a woman.
D: Oh boy.

Another day and I am commenting on her strangely acute hearing. She nods and proudly says  
"I have x-ray hearing." I don't bother to challenge it. I like it.

We have plans to go to the movies one day. I usually pick the movies. I am telling her what we are going to see - a remake of a western classic.

D: So we are going to see The Magnificent 7 tomorrow.
P: Oh, okay. I saw the one they made in 2015 yesterday.
D: You did?
P: Yeah, I think it was called The Fantastic 4.

Again, please understand, she's not kidding. She doesn't do puns. And I have to admit, there is that strange logic to it - a superlative followed by a number in both cases. If it was on purpose, I'd have to say she was really clever. 

Sometimes, it is not what she says is mixed up; it's just scary. For example, she kind of likes to kill.

P: Do you know when I was coming in the garage before I saw two crickets waiting to get in?
D: Uh, okay.
P: So, I killed both of them.
D: You're mean.
P: Gonna kill them all.
D: Didn't you ever see Pinocchio? (Of course, I meant something like - Wasn't Jiminy Cricket cute?)
P: Yes. Going to kill him too.

That will do it. Check out 4/26/07, 6/1/12, 11/29/13 and 10/13/15 for previous adventures with the New Miss Malaprop.

Saturday, April 01, 2017

It's a right (says the left)

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master – – that’s all.”
(Through the Looking Glass, 
Chapter 6)    

This post was inspired by the claims of politicians lately that health care is a right. When I started this I was watching a call-in program on C-Span where it is being discussed. It is quite obvious that liberals and conservatives were thinking about “rights” in different ways. It seems like a simple question. But as I learned when I’ve asked students what “democracy” meant, there are more than one answer. And if there is more than one answer, then it is not as simple a question as it appears.

There was a time when I was young when I would have fully agreed that health care was a right. I was very liberal and also very politically uneducated. As unorthodox as I was in many ways, and relatively immune (I said relatively) to peer pressure and believing what I was told, I pretty much adopted my family’s views on politics. That’s because I really wasn’t interested and never really heard other views until I was fairly well indoctrinated. Back then, I even thought there might be a “Constitutional right” to a clean environment. You never stop educating yourself about policy or politics if you are so inclined, but my own education started when I was a young lawyer in my mid-20s. Best I can remember I started looking at the “other side,” who I thought of as the bad guys, on the right then because I was amazed that so many people liked Ronald Reagan.  I never became a conservative. Just there religious views would be enough for me to generally reject their philosophy. But, I ceased being a liberal too. In fact, it was a long slog to become a moderate because it is so hard to admit to yourself that the opinions you had formed – just might be wrong or even that there were other valid opinions out there. I’ve written elsewhere about my political development and won’t repeat myself much, but I call myself a moderate, not because I am more “fair” than others (everyone thinks they are fair) but because I seem to disagree with both conservatives and liberals roughly the same and often, sometimes even when they know me well, they tend to see me as the opposite of what they are.

But, just because you are a moderate or independent (that is, no party allegiance) doesn’t mean you don’t think that some ideas of one party or the other is plain wrong or that they haven't gone off the deep end about any particular issue or in general. I felt that way about Republicans when they were in heat over impeaching Clinton because he had sex outside his marriage and even – as if the White House was a church – in the Oval Office. And I kind of feel that way about liberals right now (although both parties gave us the worst choices for president in history).

Democrats like Nancy Pelosi, Elizabeth Warren, John Lewis and Bernie Sanders have been very vocal that health care is a “right.” I find that preposterous, unless we mean by a "right," something the government has provided by legislation that we are “entitled” to as a member of our society or class. But, that’s not what they mean, because there is no such law right now which says healthcare is a right – not even Obamacare.

When they say it is a right, or someone else says it is not a right, I’m pretty sure they mean by it the same thing they mean when they talk about a right to free speech or other rights that some people think are “God given,” and others think are just part of our social contract. It is something you have, not something you are given or can be taken away. And that’s generally what I will talk about here. But, to determine if people have a “right” to health care, you have to better define what it is. In this case, I will try to define what liberals and conservatives each mean by it.

When I bother to try to define something, I am not always that interested in the dictionary definition, but what I think people really mean by it. Sometimes it is the same, but sometimes different. Words do not exist except as symbols, which are concepts in our minds, or ideas. We seem programmed to learn language, at least most people are, and most young people can effortlessly learns several at a time. Just as example, the letters of the word “key” in that order do not have to mean a tool for opening a locked door or critical information in order to understand something or an island on a coral reef. In fact, the word “key,” as a door opener, is not so in French (“clef,” if my high school French is still current) and the sound of the word in Spanish can mean “who?” And, of course, as with “key,” one sound often has different meanings. A “right” too has different meanings. For example, it is a means of orienting as in right and left. But, even when talking about it in the political sense, people mean different things when they use it.

Consequently, when we say what a word means, or answer a question like “what is a right?” we have to acknowledge that it can mean different things to different people and at different times and places. And even a single person in one place and time can use it in different ways.

Conservatives and liberals, which probably describe the majority, but not a plurality of voters, use “right” or “rights” very differently, although it might also be said, as Humpty did, that it means exactly what they say it means. If we are talking about political parties or ideologies, there is not a lot of consistency. They change their own minds if it is politically expedient, and then cite the opposite as authority. So, there are always exceptions. I’m making generalizations, because that is usually the best you can do.

What is a right is an important question because it is fundamental to understanding liberals and conservatives as well. You could take the essence of the meanings (and I haven’t even gotten there yet) and apply it to other issues. For example, the purpose of government is closely related. So is the issue of Constitutional interpretation.

And, I am only speaking here of the broadest sense of rights, that is, the individual’s relationship to government, not particular rights found in positive laws.

Conservatives generally have two related ways of defining rights in the larger sense. One is -- those prohibitions on the government that are embodied in the Constitution or so generally recognized in the nature of our type of government such that we are entitled to them, many of which are embodied in the Constitution. The other is – those prohibitions on government to us given to us by God (I am having the argument here about whether God exists – they believe he does and have assigned this role to him). Another way to say that is that there are prohibitions on government and freedoms that “God” gave us, or are “unalienable” and no one can take away from us. Note that it is almost always framed in the idea of a prohibition against government.  The government can’t make us do something or deprive us of something we have. I’ll leave aside limitations for now. This view explains why so many conservatives believe in textualism or originalism. It is a fixed number of rights that do not change over time unless the Constitution is amended. The Constitution set a template and congress can make laws provided for in it, which are sometimes called “powers.” Limits are, in the abstract anyway, are found in the text or as historically preserved or as reason would dictate.

Liberals also generally have two related ways of defining rights. One is the same as the first one I stated Republicans believe concerning the Constitution and our society. The other is where the real differences lie. Liberals tend to believe that rights include those things which are consistent with what they feel is “good government” or make sense in the modern world. They tend to read these into the Constitution. Whether a theorist might say that it is because the Constitution is a “living document” (and no, they do not think it has consciousness or is actually alive – it is a metaphor) or that the founders set a template and it has to be interpreted by reference to modern values, doesn’t matter so much as the result. It is a broader reading which does not require amendment for change to occur, because it allows congress to go beyond what is expressly stated in the Constitution (powers). Some seem to think that there are no limitations on what congress can do if there is a rational explanation why it needs to change. Congress knows few bounds beyond what is expressly restricted (and even there, the restrictions are looser, even where express). That also means “rights” can be prohibitions against government, but also entitlements from government.

Again, whether we are talking about rights, or Constitutional interpretation or the purpose of government, the very same general approach applies to each parties. Even the way they speak of the general welfare clause in the preamble to the Constitution (the “We the people” clause), reflects this understanding. They agree that government can be restricted from doing certain things. Sometimes they even generally agree (as when the NSA was recording data from our phone calls). They more so disagree more on the other end – whether rights includes entitlements.

I will say here that generally, I think in the abstract that the conservatives are more right, solely because, if limits do not have some firm, if not arbitrary, boundaries, it lends itself to government being more important than individuals. Moreover, the Constitution provides for its own modification. 

That being sad, conservatives are always fighting a rear guard action. It is the nature of the two ideologies that one is more offensive in changing our culture or overarching laws – the liberals (because they are trying to change or progressive) – and the other more defensive  – the conservatives (trying to conserve or keep the status quo). I didn’t come up with that myself. It’s inherent in their philosophy.  I always recommend the essay “Why I am not a conservative,” by Hayek, which you can find online. I’ve written on it before. It is a poorly named essay because it presupposes people knew he wasn’t a progressive – in fact was closer to the conservatives. It is also a difficult essay to understand if you don’t understand by “liberal” he meant what we call “libertarian.” What we call liberals or progressives, he calls “progressives” or “socialists.”  I refer you to my previous posts (5/23/11, 7/25/11 and 8/28/11) if you want to know more. I haven’t re-read recently (I frequently go back and correct my embarrassing grammar I didn’t edit when I posted) but I believe I set out much of my political philosophy.

So much for the abstract. In reality, the liberals have their own claims. If you believe that the Declaration of Independence helps illuminate the Constitution, and many scholars and commenters have thought just that, numerous phrases come to mind, particularly from the second paragraph – “all Men are created equal,” “Life, Liberty and the Pursuit of Happiness,” “Safety and Happiness,”  -  and you consider the general welfare clause in the preamble of the Constitution, there is an argument to be made that the more expansive view of rights is what moves us towards “a more perfect union.” think of all of the social advancements our society has made since Teddy Roosevelt, and in so many cases I can’t help think, thank God (said the atheist) for the liberals. The end of many forms of discrimination, the right to collectively bargain (although as applied I often rue it), the increased sexual and concomitant freedoms, not to mention the loosening of social mores. The reason the liberals seem to always win in the end is because people like these things in general.

I’m not suggesting the conservatives also don’t play an important role too though. But for them, the progressive notions of the left would have swapped out capitalism and a number of individual rights for socialism and the demands of the state long ago as has often happened in places where it has been tried. And even now, it seems to me that having succeeded with so many changes in our society for which I am glad (and I think most Americans are), they want to enforce these views on everyone, not just in terms of prohibitions, but personally. That’s what the health care mandate is; that’s what hate crimes laws are, that’s what some supposed anti-discrimination laws are. You are now required to participate in something; in some cases you are now required not to think a certain way and forced to participate.

Since 1788 we’ve been slowly trying to balance the two ideologies under different names, but usually represented by two dominant parties. And like many things on a long path, they ebb and flow, while heading in a general direction. Unfortunately for conservatives, even though there are periods of push back, the general direction is left. And to make those new ideas into Constitutional law, liberals have relied on a number of strategies, the most successful of which has been deeming certain rights in the Constitution as “fundamental,” that is, to put it one way, inherent in our system of government. Conservatives, or at least many of them, have jumped upon that bandwagon in order to find their beloved 2nd Amendment fundamental status. In doing so, they have abandoned the argument that there is no such thing as a fundamental right in Constitutional law.

Again, I have to point out, that because of the nature of political parties with their win-win mentalities, these are all generalities, and either party, often both at the same time, will spin on a dime theoretically to try to win something it wants. I usually use as an example Bush v. Gore, when all of a sudden the Republicans thought that the federal government would decide the outcome of Florida’s election though normally they are all about state’s rights and the Democrats all of sudden thought the state should decide, though they are normally all about federal control of pretty much everything. The reason – Republicans had a majority of judges on the Supreme Court and Democrats on Florida’s high court.

I do have a personal opinion. I don’t know anyone (I think) who would not like to have good health care for everyone if they thought it possible. I mean, why not, if we could afford it as a country. Some obviously believe it is a right, but, in order to do so, they have to argue that it is a new one based on principles of natural law. And to some extent this just means they want what they want, and calling it a right is an effective way to get there. Ultimately though, I can’t adopt this meaning of right, at least when I use it. Because if we can have anything anointed Constitutional, then all bets are off – there is no rule of law, just the rule of men and what they think should be a right as defined by the political majority. I doubt very much the left would like a right to life extended to fetuses (which it has not been), or a right discriminate. I’m sure we can go on.


As always, I await your comments (usually when I say that, no one has one – but . . . .)

Friday, March 24, 2017

My feelings have nothing to do with it! The Gorsuch nomination hearing.

I was expecting Justice Gorsuch to be a little more stoic. He was friendlier, smiled more and was quicker to engage with the usual lack of wit it seems most public figures are saddled with than I had expected.

I just spent four days watching the hearings. The first day was speeches by the senators and the last one by the judge. The second and third day was the senators questioning the judge - the left trying to make him sound like a nightmare and the right like the Lord's right hand man. If you read The Passion Play of Sonia Sotomayor, which I wrote after her nomination hearing (like him, I thought her qualified) you will see it is all nonsense. There it was the Republicans trying to make her sound biased and unsuitable for the job and the Democrats finding her not answering questions just fine - the exact opposite of this week's hearing. Today, for example, Senator Grassley, the chairman, prepared the judge to be asked a lot of questions he couldn't answer. With Sotomayor, Grassley was one of the senators trying to pin her down so that she could never rule in a way he didn't like. It never works! To be fair to him, he admitted in this hearing that he has done what the Democrats did at Gorsuch hearing himself. Read the Sotomayor post for more details. And Sen. Schumer, who has taken the floor to excoriate Gorsuch, did exactly the opposite when Sotomayor took the same stance as Gorsuch on answering questions.

Senator Graham also spent some time criticizing his left leaning associates for how they were treating the judge. But, if you watched the Sotomayor hearing (or read my post) you will see he too has played the same game. There is a difference in that Graham and Grassley were a lot more polite than some of the Democrats, particularly Sen.Whitehouse and Franken. The other Democrats on the committee were at least polite, if critical, which is always fine.

Frankly, the side that is defending the judge always looks nicer and the other side always looks angry and ideological. But, most are biased. There questions and demeanor often depends on who is nominated. I have no doubt that if Justice Garland had had his hearing, the roles would have been reversed.

I did go back and read my Sotomayor post. I think I was fair. I criticized her a lot (because she did seem a little more ignorant of constitutional law and legal philosophy than other past nominees), but I thought she was qualified too. The one thing I got wrong about her was that I did not think she would be as ideological as others thought. She is, as much as any of the rest of the them, if not more so than some others.

Gorsuch is obviously qualified by education and experience. His adversaries acknowledge that. What they are doing is attacking his character and judgment by taking a few cases of his 2700 - maybe 3 or 4 of them, and thereby finding him "for the big guy" and to have poor judgment. To the contrary, his former clerks, his judicial peers and friends assure us he is the nicest man who ever lived and "only follows the law" - ruling sometimes for the little guy, sometimes for the big guy, and never taking into consideration the "identity" of the litigant. And that is clearly what this is about, as are many conservative-liberal issues. If you listen to the Democrat senators questioning him, that is pretty much the nature of the opposition. The result, not the analysis matters to them. If he will not become a liberal and pledge to rule for unions, LGBT, minorities, plaintiffs, etc., then he is too biased to be a judge, in their view. It's ridiculous, of course, and they don't actually say it out loud, but that's the way these hearings always are for a long time.

I am critical of Gorsuch for a number of tactics which are mostly common to all nominees. First, his mantra that he is following the law and his personal views don't matter is ridiculous, whatever the measured tones he repeats it in. What does follow the law even mean? They all say they are doing that. They obviously differ as to what the law means. It is a fantasy that who they are and what they think does not fit into it. There is no coal black line for the justices to follow in controversial cases. To be fair, every Supreme Court nominee and judge, every senator, insists on the same fantasy. I covered this in detail in the Sotomayor post and won't repeat it all here, but, in short, judges are humans who bring their experiences to the bench. To suggest that they are stoic marvels who do not let emotion affect their opinions is like saying athletes who perform well under pressure do not feel any. The only bigger fantasy is that some hard-rock law exists that they can follow. 

Another phony mantra is that precedent controls. All hail precedent. Well, clearly we need precedent or none of us would have any idea what the law is at all. We need consistency, even when it is arbitrary, as it often is. But, most of us don't want the courts to follow precedent when we are passionate about the result. For example, some judges break the rules about not saying whether they approve of cases when it comes to Plessy-Brown, Dred Scott and Griswold (prophylactics). Some go as far as saying they agree with them. I think they do this not because they are settled law now, but because they are culturally settled and no one will blame them for saying it. Some just say that they are precedents that are due great deference. But, in truth, most of the controversial cases are about overturning precedent or finding some way to diverge from it. For example, Brown overturned Plessy. Roe diverted from the traditional rule of law that only actual cases or controversies could be decided, as it had to in order to make a decision - after all, the pregnant woman had to have long delivered a baby or aborted it at the time of the court's decision. We now know in fact she had an abortion.

Gorsuch followed this tactic with Roe. We can reasonably surmise that no Republican president is going to nominate a judge unless he knows he or she is is pro-life, even if they wouldn't talk about his personal feelings. But, Gorsuch, recognizing he had to say something, was effusive in stating that Roe was long held precedent, upheld numerous times. He did the same with Brown. When asked why Justices Roberts and Alito said they agreed with some cases and he wouldn't he fell back on - there is no daylight there - in other words he feels the same as them, but he felt he shouldn't say it out loud. So, wink, wink, nudge, nudge, as long as I don't say it, I can hint it. The truth is that it is hard not to say that you agree with important cases that virtually everyone agrees with when a senator is asking you to do so. He could have said, Roberts and Alito bowed to pressure when they felt it was safe and that he would not. 

Both sides hate precedent when it results in a ruling they don't like. It is rich to hear these senators and witnesses complain about what they see as fixed precedent. Almost all of the revolutionary cases involving the bill of rights, free speech, religion, freedom of unlawful search and seizure, right to counsel and so on or the 14th amendment (due process and the like). Many were decided in the Warren Court years, and involved overturning long held precedent. The liberals won these cases over conservative opposition. Now, there are many conservatives who are more passionate in defense of these rights than Democrats. Not only Brown, but many of the cases involving voting rights or the Civil Rights Acts involved overturning precedent. Sometimes they carve out exceptions, in other cases they twist words, and sometimes they expressly overturn rules. It all comes down to the same thing. They change the law because it has become socially or politically untenable.

The law of precedent is a labyrinth which can be summarized briefly. Justices follow prior case law up to the point that they feel they can substitute it with rulings with which they are more comfortable. There is almost always a way to justify it with precedent. If they can't find any, they just ignore it and apply "common sense," or accepted American values or some such other nonsense. 

But, back to Gorsuch's demerits. He is wrong that Bush v. Gore was precedent. It has been used as precedent, but it expressly states that it was not precedent.  

His answers were often robotic. Perhaps he thought giving the same slow answers about his feelings not mattering and precedent controlling was effective. It was not. It did make him look like he was trying to drag it out. Once he gave that answer, he could have just said same answer and not wasted time. But that would mean more questions, so it is probably taught to them. 

I did not really like his jokey manner much. He is entitled to it and I don't think it means he shouldn't be a judge, but I thought he was a little too ready to make a joke. Don't joke in public unless you are funny - and few are.  I especially disliked his Fozzy-Bear voice he uses when emphasizing something. It's not that I don't have annoying vocalizations (I've heard myself on tape), but I'm not in a nationally broadcast hearing to confirm me for one of the most sanctified, if not the most sanctified office in the world. We want sober nominees and not so much giggling ones. Frankly, he did not come off as genuine at all. I found many of the other justices in these hearings much more genuine. Sam Alito comes to mind as very matter of fact. But this is no reason to reject him either.

The Democrats fixated on a few cases where they didn't like the result. I thought this spoke very highly of him. If out of 2700 hundred cases they could criticize only a few, he must be some justice. He pointed out how often he was in the majority and even part of a unanimous decision. He had been reversed only once by the Supreme Court (though few cases get up there), in a way twice with yesterday's ruling on the education law.

And, I have to say, looking at the cases they picked on, I though he was wrong too. Foremost of them, perhaps because it was easiest, was the "Maddin" case, about a truck driver, who was fired after the brakes on his trailer froze. Against orders, he unhitched the trailer and drove the truck to safety (rescue came 15 minutes later, but he couldn't know that) rather than wait there to freeze and possibly die or to unsafely tow the brakeless trailer. He alone dissented from a ruling favoring the truck driver under a whistle-blower safety act because he said, in driving the truck, he operated it - the act protected him from refusing to drive in an unsafe situation - not driving it.  Talk about splitting hairs. The guy reported the problem and had to save his own life.  It was clear to the majority what he was refusing to drive was the truck hitched to the trailer, and that was clearly within the meaning of the Act. 

I also thought he was wrong in the education case involving the autistic boy who was not getting sufficient services under the law. The boy's father was one of the witnesses on the last day. Without going into too many details, his view of the law seemed exactly the opposite of what congress intended, as the Supreme Court found during the hearing, though on appeal of another case. The father of the boy put it best - why would they have even bothered to pass an act if the schools weren't going to really be required to do anything much?

He also disagreed with the Hawaiian Dem. Senator, Mazie Hirono, who was quite annoying, but absolutely right that in a magazine article he had criticized liberals and intimated that only extraordinary cases should be brought. He said at the hearing that it didn't sound like him. Well, it doesn't, if you go by him now, but he used to be much more partisan before he was a judge. In fact, the Democrats spent a lot of time criticizing his memos from when he worked for Bush. They were pro-torture for one thing, which is a little uncomfortable. It is not an unfair criticism, because it does describe how he felt as an adult, but it has to be tempered with the fact that being a judge does change a man (as he pointed out). His own claim sounds awfully questionable - he was a lawyer stating his client's position.

His strongest point is that he has been involved in 2700 cases and been reversed once (he says maybe once) and the Supreme Court decision yesterday would count as two, even if it is a different case. If a few cases to criticize is all they can find, that is pretty good. Even the Buddha probably stumbled once in a while.

The last criticism I have of him - though, again, I would vote to confirm - is that he would not acknowledge that it is important whether a Democrat or Republican president appoints a judge. He refused to get involved with politics and insisted that he doesn't see judges as Democrat or Republican. Nevertheless, it is so obvious it matters, how can it be denied. Trump probably would not have been elected if he did not promise to nominate conservative judges. That is something some people cared deeply about - some voted for him only because of it. And, as we know, the Republicans refused to even give a hearing to Justice Garland, who probably is as decent and impressive a nominee as could be found on either side.

The bottom line. These hearings are mostly a total waste of time. You learn almost nothing and get to hear a lot of speeches from the senators. Even floor speeches by senators are a waste of time. In the real world, if they want us to know something, they tweet it, or maybe hold a press conference. Me and a handful of other people watch C-Span. Very few people have ever listened to even one speech from a senator or member of congress.

If I haven't said it before in this evalovin' blog, I am for a constitutional amendment which would give all presidential nominees of any kind an up or down vote in a maximum of 30 days or they would be automatically confirmed, just the way presidents only have a certain amount of time to veto a bill.

Obviously, that is not going to happen. Amendments are far and few between. In the meantime, though I know Sen. Reid exercised what is called the nuclear option with respect to getting rid of the filibuster on votes for certain lower justices, it was the right call. And I hope, if the Democrats filibuster Gorsuch, that McConnell exercises it with respect to all judges - I'd prefer all nominees.

I fully expect Gorsuch will be a Supreme Court Justice soon. And I seriously doubt that all three Justice Ginsburg and Breyer are both going to last the entire four years of Trump's term, particularly Ginsburg. He will probably get another. And, if the Democrats are going to filibuster anyone he puts up and not vote for him (it used to be that almost every judge was unanimously approved), Trump may go very conservative indeed.

In modern times, even if you count Justice Garland as a 46-54 rejection (that is, count all R votes as no and all D votes as Y) Democrats have historically tougher on Republican nominees than visa versa. I start with Reagan, simply because that is when I became politically aware, or more so anyway, and also because it is reasonable to call that modern times in terms of the Supreme Court (if you go back further though, it really doesn't change much - . He nominated 5 justices. 3 were unanimous. O'Connor, Scalia and Kennedy - Scalia being the shocker, as he was already a little contradictory.

Rehnquist's Chief Justice nomination was, unlike the other 3, controversial. In the end, he won, but nowhere close to being unanimous - 65 to 33. Of the 33 no votes, 31 were Democrats.

Justice Bork, the only Justice to lose a floor vote since Nixon's two failed appointments, lost 42-58. 52 of the nos were Democrats - all but 2. Personally, I found Bork a little weird, which may not be fair, as he was "borked" and it may have given me a bad impression. I was also still very liberal. But, some of his opinions seemed so 19th century.

George H.W. Bush got two nomination. Souter won easily, 90-9, but Thomas was roasted for allegedly telling a few dirty jokes (see last week's post) and barely won, 52-48. 46 of the 48 nos were Democrats.

We now turn to the first Democrat President's nominees. Clinton nominated Breyer and Ginsburg. She was confirmed 96-3 and he was confirmed 87-9. Only a few nos, but all Republican.

George W. Bush had much greater trouble. He nominated three and two were confirmed. Harriet Miers was clearly unqualified and had to be withdrawn. Of the two that got votes, Justice Roberts (CJ), widely considered to have had the most impressive performance of any nominee, could only must a 78-22 win. All 22 nos were Democrats. Sam Alito had even more trouble. He won 52-48, but 24 senators voted to filibuster - 23 Democrats and one independent who caucused with the Democrats. In the floor vote, all nos were Democrats except for the same independent and one Republican who later became a Democrat.

With Obama, for the first time, Republicans started getting into the partisan game when it comes to the Supreme Court, but until Garland, still not as lock step as Democrats. Sotomayor won 63-31 (all nos Republican) and Kagan 63-37 (all nos Republican except Ben Nelson, who frequently voted with Republicans).

Garland, of course, the Republicans blocked, refusing to have even a hearing. But even if we count him as 54-46 against, with all Republicans voting no, historically, the Democrats clearly have given Republicans a much harder time in the last 30 or so years than the Republicans have given Democrat nominees. I think at this point, all gloves are off, although I suspect Senator Graham and a few other Republicans might have voted for Garland. He possibly could have won although doubtful.

That's all, folks.

Friday, March 17, 2017

What's a pluffer?

I’ve been on trial lately (no, I'm not the defendant, stupid – I’m representing a client) and have neglected the world’s greatest unread blog. I shall remedy that today, having been given a short respite.

I was watching C-Span the other day. A handsome 40 something man, already reaching the apex of his career, made a statement to a congressional committee. I had actually watched this statement, made over a quarter of a century ago, live. But, I had forgotten it in the crush of future events. He spoke extremely slowly, measured, and a few times excused himself as he started to choke up speaking about his family - what they had survived and how they had encouraged and helped him. Here is some of his testimony. I’ve added paragraphs to make it easier to read, corrected a couple of spelling errors and excised the speakers name for the purposes of surprise, although you will figure it out rather quickly (I think):

“. . . Much has been written about my family and me over the past 10 weeks. Through all that has happened throughout our lives and through all adversity, we have grown closer and our love for each other has grown stronger and deeper. I hope these hearings will help to show more clearly who this person [             ] is and what really makes me tick.

My earliest memories, as alluded to earlier, are those of Pin Point, GA, a life far removed in space and time from this room, this day and this moment. As kids, we caught minnows in the creeks, fiddler crabs in the marshes, we played with pluffers, and skipped shells across the water. It was a world so vastly different from all this.

In 1955, my brother and I went to live with my mother in Savannah. We lived in one room in a tenement. We shared a kitchen with other tenants and we had a common bathroom in the backyard which was unworkable and unusable. It was hard, but it was all we had and all there was. Our mother only earned $20 every 2 weeks as a maid, not enough to take care of us. So she arranged for us to live with our grandparents later, in 1955.

Imagine, if you will, two little boys with all their belongings in two grocery bags. Our grandparents were two great and wonderful people who loved us dearly. I wish they were sitting here today. Sitting here so they could see that all their efforts, their hard work were not in vain, and so that they could see that hard work and strong values can make for a better life. . . .

I attended segregated parochial schools and later attended a seminary near Savannah. The nuns gave us hope and belief in ourselves when society didn't. They reinforced the importance of religious beliefs in our personal lives. Sister Mary Virgilius, my eighth grade teacher, and the other nuns were unyielding in their expectations that we use all of our talents no matter what the rest of the world said or did. After high school, I left Savannah and attended Immaculate Conception Seminary, then Holy Cross College. I attended Yale Law School. Yale had opened its doors, its heart, its conscience to recruit and admit minority students. I benefited from this effort.

. . . But for the efforts of so many others who have gone before me, I would not be here today. It would be unimaginable. Only by standing on their shoulders could I be here. At each turn in my life, each obstacle confronted, each fork in the road someone came along to help. I remember, for example, in 1974 after I completed law school I had no money, no place to live. Mrs. Margaret Bush Wilson, who would later become chairperson of the NAACP, allowed me to live at her house. She provided me not only with room and board, but advice, counsel and guidance. As I left her house that summer, I asked her, "How much do I owe you?" Her response was, "Just along the way help someone who is in your position." I have tried to live by my promise to her to do just that, to help others.

So many others gave their lives, their blood, their talents. But for them I would not be here. Justice Marshall, whose seat I have been nominated to fill, is one of those who had the courage and the intellect. He is one of the great architects of the legal battles to open doors that seemed so hopelessly and permanently sealed and to knock down barriers that seemed so insurmountable to those of us in the Pin Point, GA's of the world. The civil rights movement, Rev. Martin Luther King and the SCLC, Roy Wilkins and the NAACP, Whitney Young and the Urban League, Fannie Lou Hamer, Rosa Parks and Dorothy Hite, they changed society and made it reach out and affirmatively help.

I have benefited greatly from their efforts. But for them there would have been no road to travel. My grandparents always said there would be more opportunities for us. I can still hear my grandfather, "Y'all goin' have mo' of a chance then me," and he was right. He felt that if others sacrificed and created opportunities for us we had an obligation to work hard, to be decent citizens, to be fair and good people, and he was right. You see, Mr. Chairman, my grandparents grew up and lived their lives in an era of blatant segregation and overt discrimination. Their sense of fairness was molded in a crucible of unfairness. I watched as my grandfather was called "boy." I watched as my grandmother suffered the indignity of being denied the use of a bathroom. But through it all they remained fair, decent, good people. Fair in spite of the terrible contradictions in our country. They were hardworking, productive people who always gave back to others. They gave produce from the farm, fuel oil from the fuel oil truck. They bought groceries for those who were without, and they never lost sight of the promise of a better tomorrow. I follow in their footsteps and I have always tried to give back.

Over the years I have grown and matured. I have learned to listen carefully, carefully to other points of views and to others, to think through problems recognizing that there are no easy answers to difficult problems, to think deeply about those who will be affected by the decisions that I make and the decisions made by others. But I have always carried in my heart the world, the life, the people, the values of my youth, the values of my grandparents and my neighbors, the values of people who believed so very deeply in this country in spite of all the contradictions. It is my hope that when these hearings are completed that this committee will conclude that I am an honest, decent, fair person.
I believe that the obligations and responsibilities of a judge, in essence, involve just such basic values. A judge must be fair and impartial. A judge must not bring to his job, to the court, the baggage of preconceived notions, of ideology, and certainly not an agenda, and the judge must get the decision right. Because when all is said and done, the little guy, the average person, the people of Pin Pojnt, the real people of America will be affected not only by what we as judges do, but by the way we do our jobs. If confirmed by the Senate, I pledge that I will preserve and protect our Constitution and carry with me the values of my heritage: fairness, integrity, openmindedness, honesty, and hard work."

The judge was being nominated to sit on the Supreme Court. He was a Republican and a conservative, and was challenged in that hearing by Democratic committee members because of their fears of his ideology. As I so often find with myself (and I know others find this frustrating) I agreed on many of their points while finding their manner a little much. But, without suggesting the Democrats were behaving any differently than their Republican colleagues would have if the situation was reversed, my dislike of their behavior would get worse in the coming weeks.

A month later, Justice Clarence Thomas (he was a Court of the Appeals Justice at the time), was back for another hearing which was, until the O.J. trial a few years later, the most salacious public event in a long time. The committee, or at least many of them, had decided that he was the person he said he was.  Being accused of sexual harassment by a former colleague, Anita Hill, he was forced to publicly defend himself. Here’s an excerpt from his next opening statement:

“ . . . The first I learned of the allegations by Prof. Anita Hill was on September 25, 1991, when the FBI came to my home to investigate her allegations. When informed by the FBI agent of the nature of the allegations and the person making them, I was shocked, surprised, hurt, and enormously saddened. I have not been the same since that day. For almost a decade my responsibilities included enforcing the rights of victims of sexual harassment. As a boss, as a friend, and as a human being I was proud that I have never had such an allegation leveled against me, even as I sought to promote women, and minorities into nontraditional jobs. In addition, several of my friends, who are women, have confided in me about the horror of harassment on the job, or elsewhere. I thought I really understood the anguish, the fears, the doubts, the seriousness of the matter.

But since September 25, I have suffered immensely as these very serious charges were leveled against me. I have been wracking my brains, and eating my insides out trying to think of what I could have said or done to Anita Hill to lead her to allege that I was interested in her in more than a professional way, and that I talked with her about pornographic or xrated films. Contrary to some press reports, I categorically denied all of the allegations and denied that I ever attempted to date Anita Hill, when first interviewed by the FBI. I strongly reaffirm that denial.
. . . .
Mr. Chairman, something has happened to me in the dark days that have followed since the FBI agents informed me about these allegations. And the days have grown darker, as this very serious, very explosive, and very sensitive allegation or these sensitive allegations were selectively leaked, in a distorted way to the media over the past weekend. As if the confidential allegations, themselves, were not enough, this apparently calculated public disclosure has caused me, my family, and my friends enormous pain and great harm.

I have never, in all my life, felt such hurt, such pain, such agony. My family and I have been done a grave and irreparable injustice. During the past 2 weeks, I lost the belief that if I did my best all would work out. I called upon the strength that helped me get here from Pin Point, and it was all sapped out of me. It was sapped out of me because Anita Hill was a person I considered a friend, whom I admired and thought I had treated fairly and with the utmost respect. Perhaps I could have better weathered this if it were from someone else, but here was someone I truly felt I had done my best with. Though I am, by no means, a perfect person, no means, I have not done what she has alleged, and I still do not know what I could possibly have done to cause her to make these allegations.

When I stood next to the President in Kennebunkport, being nominated to the Supreme Court of the United States, that was a high honor. But as I sit here, before you, 103 days later, that honor has been crushed. From the very beginning charges were leveled against me from the shadows—charges of drug abuse, antisemitism, wife-beating, drug use by family members, that I was a quota appointment, confirmation conversion and much, much more, and now, this. I have complied with the rules. I responded to a document request that produced over 30,000 pages of documents. And I have testified for 5 full days, under oath. I have endured this ordeal for 103 days. Reporters sneaking into my garage to examine books I read. Reporters and interest groups swarming over divorce papers, looking for dirt. Unnamed people starting preposterous and damaging rumors. Calls all over the country specifically requesting dirt. This is not American. This is Kafka-esque. It has got to stop. It must stop for the benefit of future nominees, and our country. Enough is enough. I am not going to allow myself to be further humiliated in order to be confirmed. I am here specifically to respond to allegations of sex harassment in the work place. I am not here to be further humiliated by this committee, or anyone else, or to put my private life on display for a prurient interest or other reasons. I will not allow this committee or anyone else to probe into my private life. This is not what America is all about. To ask me to do that would be to ask me to go beyond fundamental fairness.

Yesterday, I called my mother. She was confined to her bed, unable to work and unable to stop crying. Enough is enough. Mr. Chairman, in my 43 years on this Earth, I have been able, with the help of others and with the help of God, to defy poverty, avoid prison, overcome segregation, bigotry, racism, and obtain one of the finest educations available in this country. But I have not been able to overcome this process. This is worse than any obstacle or anything that I have ever faced. Throughout my life I have been energized by the expectation and the hope that in this country I would be treated fairly in all endeavors. When there was segregation I hoped there would be fairness one day or some day. When there was bigotry and prejudice I hoped that there would be tolerance and understanding some day.

Mr. Chairman, I am proud of my life, proud of what I have done, and what I have accomplished, proud of my family, and this process, this process is trying to destroy it all. No job is worth what I have been through, no job. No horror in my life has been so debilitating. Confirm me if you want, don't confirm me if you are so led, but let this process end. Let me and my family regain our lives. I never asked to be nominated. It was an honor. Little did I know the price, but it is too high. I enjoy and appreciate my current position, and I am comfortable with the prospect of returning to my work as a judge on the U.S. Court of Appeals for the D.C. Circuit and to my friends there. Each of these positions is public service, and I have given at the office. I want my life and my family's life back and I want them returned expeditiously. I have experienced the exhilaration of new heights from the moment I was called to Kennebunkport by the President to have lunch and he nominated me. That was the high point. At that time I was told eye-to-eye that, Clarence, you made it this far on merit, the rest is going to be politics and it surely has been.

There have been other highs. The outpouring of support from my friends of long-standing, a bonding like I have never experienced with my old boss, Senator Danforth, the wonderful support of those who have worked with me. There have been prayers said for my family, and me, by people I know and people I will never meet, prayers that were heard and that sustained not only me, but also my wife and my entire family. Instead of understanding and appreciating the great honor bestowed upon me, I find myself, here today defending my name, my integrity, because somehow select portions of confidential documents, dealing with this matter were leaked to the public.

Mr. Chairman, I am a victim of this process and my name has been harmed, my integrity has been harmed, my character has been harmed, my family has been harmed, my friends have been harmed. There is nothing this committee, this body or this country can do to give me my good name back, nothing. I will not provide the rope for my own lynching or for further humiliation. I am not going to engage in discussions, nor will I submit to roving questions of what goes on in the most intimate parts of my private live or the sanctity of my bedroom. These are the most intimate parts of my privacy, and they will remain just that, private.”

I am not here to tell you whether he did the things Anita Hill said he did or not. I can’t read either of their minds (a lot of people I know are sure they can), and I do not think there is any smoking gun that can let us say with certainty. But, I easily remember my thoughts at the time. Without knowing, I tended to believe that what she said was true. One of the reasons is, despite all the hoopla about it, what he was accused of was so modest, so nothing in my mind, that I know that a hundred or thousand times over I have done or said things which were far "worse," and would have disqualified me from that position (as if . . . ), but which I still think were nothing. He was not accused of touching, threatening, insulting, berating or even teasing her.  The specific claims were (courtesy of Wikipedia and some other internet sources):

Naturally, there was a pile on. One co-worker said he pressured her for a date and made jokes about women’s private parts, but she never felt harassed or threatened. I should hope not. Another said "If you were young, black, female and reasonably attractive, you knew full well you were being inspected and auditioned as a female." She too never felt harassed. Neither testified. One who did said she worked literally next to Thomas for two years testified she never heard him make a sexual or offensive comment. Others testified to his character. Anita Hill herself said she was not sure if what he said amounted to sexual harassment, but she thought it unfitting for a member of the Supreme Court. She said he used words like “penis,” “breasts” and “pubic hair.” I can’t find it but I specifically remember a joke about a pubic hair on a coke can and him mentioning a porn movie he watched that starred “Long Dong Silver” (I don’t know if that is a real person). I believed her, because I thought she testified credibly and can’t see why she’d make it up, especially considering that most people would feel great pride someone they knew was on the Supreme Court, and they had still been friendly after they stopped working together.

What disturbed me most was the hypocrisy of the Senators, and not just the Democrats. Orrin Hatch defended Thomas with fervor. I’ve come to appreciate him more as he ages (and I guess I age) as his tone has become far more moderate, but I thought his defense of Bork previously had been over-zealous. During the Thomas hearing, he said that anyone who did what Hill had said would be insane. Insane! To make a joke about a pubic hair? That is remarkable because he was close friends with Ted Kennedy, who also sat on the committee and was famous even then for being very crude and sexually forward with women, probably well past most people’s personal standards for sexual harassment.

What I would have preferred is that the senators all laughed the allegations out of court – well, committee, although I’m sure that would have made a lot of women and some men furious too. Now, of course, we have a president who has said – well, I’m sick of talking about that, but let’s just say that Trump makes Thomas look like the proverbial choir boy. People tell dirty jokes. Again, I can’t know, but I would bet that every single senator sitting there, not just Kennedy, had said or done things that would disqualify them from their own seats had they been public knowledge. I’ll go further. I’m a man, so I will speak for men and say that if women could read the minds of ANY man, even the most staid and apparently sexless, they would not want to be alone in a room with them let alone vote for them. For crying out loud, we all know about the Martin Luther King, Jr.’s sex tapes. Would he be disqualified? I’m pretty sure if we could read women’s minds we all might react similarly.

Thomas was right. To this day, he is marked by the allegations even in the age of Trump as if he were an accused rapist. It was a figurative lynching. He did however make the same mistake that is increasingly made today by his adversaries. He assumed it was about race, calling it a high-tech lynching and saying that this was what happened to uppity black men. I suspect he was giving Democrats a little bit back for their own identity politics, which were a fraction of what they are today. It was not about race. It was about politics, just as now. Often I hear from Democrat friends to this day that Obama was hated by Republicans because he was black. I’m sure there are some people – which he himself acknowledged – but, if Clarence Thomas ran for president, almost all Republicans would vote for him.

If tomorrow, Thomas became a liberal, rather than the reflexive conservative he seems to be, he would also be lionized by the Democrats and demonized by Republicans. This is just the way it is. And, because Neil Gorsuch is a conservative, he will be demonized by Democrats and lionized by Republicans as Thomas actually is. So far, the Democrats cannot find anything salacious and are reaching to the bottom of the barrel to find absolutely anything they can. I hope for his sake, he never made a dirty joke or was caught looking at a women’s cleavage or turned his back on a black on video (even if he was going to get him a glass of water), because the attacks will be relentless.

Watching the Thomas video, I was reminded of so many other people I have seen testify in congress. Frankly, the behavior of congresspersons and senators is so debasing and obviously partisan, it is laughable in some ways. But, I don’t imagine it is fun if you have to sit there and take it. I don’t think I could do it. I can in court because I represent clients who need me to remain stoic (or usually). But, if it were me before congress – I have my fantasies. Of course, if I wanted the job. . . maybe I’d sit there and politely listen too. But, I do not understand why people in an adverse administration don’t tell them to stick it once they are nominated. I'd be happy to say "impeach me if you don't like it." Jusice Thomas kind of did. And, when he sits silently in court, I think he is sort of sticking it to them too - it's an I don't care what you think of me thing. Maybe not.

Unfortunately, I will miss the Gorsuch live hearing and may not get to watch it for a week or so. I think I’ve seen every single nomination hearing, many on videotape long after they were held, since they’ve been taping them. If I remember correctly, Rehnquist’s hearing for the Chief Justice position was first, then Scalia.  For the most part, they are a waste of time. The Justices know what they have to say to be confirmed and usually they are. These are not normal times, however. There is blood in the water and hysteria in the air.  I expect Gorsuch to be phlegmatic, but if you have never seen one before, this might be a good one to start with.

Oh, and what's a pluffer, Justice Thomas?

Thursday, February 23, 2017

Birdies

So, I like birds. You want to make something of it? But, seriously, I do spend a lot of times watching them. Often I do so at The Bluff, which I wrote about here on 8/6/13. Lately, after my bagel with butter is done in the morning, I drive about a half mile down the road to a pond, big enough so you can't see the whole thing from one spot. It is sometimes a center for dozens, often hundreds of aquatic birds, mostly geese and gulls.

But, I've also seen some more exotic birds there too, One morning I was sipping my coffee when I saw a small flock of duck-like birds land on the water. They were far smaller than even the mallards. They were also very shy of me. Unless they are used to being fed, most birds are shy of humans. But, they know they can fly and if you stay in your car, they also seem to know you aren't coming into the water and stay put. If you get out of your car, they start moving around a bit more and if you get too close, they fly away, except for the geese who expect to be fed and can be quite aggressive. But, this flock of little birds was really keeping their distance. I do have a camera with a long lens, but I often don't keep it in my car. So, I'm left with my camera phone. It's pretty good, but not so good with distance. 

Now, I am not one of those people who thinks birds, even crows and some parrots, are smart the way people are. But, they obviously are conscious in some fashion. Everything I know about myself and other humans tells me that some behavior in higher animals at least means they think in a manner of speaking. If it is not so, then I can't imagine what their advanced nervous systems do, or why evolutionarily speaking, humans would develop this trait with largely the same equipment (even if our brains are more advanced), but not other animals at all. They just often seem to behave as if they understand things that seem like they might require some traits of human intelligence or something close to it. I'm not just talking about instinct, which can look like intelligence, but decision making.  

These birds - this particular flock I was watching - seemed like they knew I was watching them and was interested in them. They would not come near the shore and seemed to turn away whenever I tried to take a picture with my phone of the distinctive white crest on some of their heads. The birds looked like they were paired off, which I presumed was male and female. That's not unusual, of course, for birds. The males looked very different than the females, which is also not uncommon.

I thought I knew this species, but probably from a book, as they clearly weren't regular visitors to Long Island or at least not as visible to us as many other species are. Something with a weird name - but what the hell was it? I just couldn't remember. Anyway, the photo below is the best shot I could get. Even when I used the telescopic feature on the phone, it started to gray out. Not enough bits.




Still, I could now see the distinctive white pattern on its head and its pointy bill well enough for me to check in some bird books. And very quickly I found it. It is called the hooded mersander. Like many birds, it frequents quite a large area. You can see it better below in a professional picture I found online. The one with the white hood (hence the name) is the male, the smaller one with the hairdo the female. Actually, in my own picture paddling away a little behind her hooded husband was his wife. It was kind of cute. They are diving birds, which always looks so much cooler than the ones who just stick their bill or neck in the water. 


I do occasionally meet other people who think this is exciting stuff, but, admittedly, like most of my interests, not that many. Still, I have to think that's because they haven't been paying close attention. Most birds are wonderfully beautiful, and not just the ones with brilliant colors. I mean take a close look at the male and female mersander. Each in their own way is fascinating. Take even a common sparrow with which we are all extremely familiar. If you just glance at it, it is a blur of brown and gray. There are many kinds of sparrows and they are all quite beautiful if you look closely. It's neither just gray or brown but an exotic mix, often with stripes, almost like a fat butterfly, such as this one I took a picture of while waiting for my banker at a drive-in window:




I live on an island, so I come across quite a few aquatic birds. Actually, almost never a duck like the kind we occasionally eat (although on a couple of bike trips I slept near a duck farm. Noisy little bastards. They never shut up all night). But, I see many "duck-like" birds. Mallards, the males with distinctive green heads, frequent the pond.



In warmer weather I see a tremendous variety of birds at the Bluff including terns, plover, herons (a night heron once with its long toreador like ponytail), hawks, osprey, swans (normally 2 or 4, but one day over 30 of them, as if they were having a convention) and once many years ago, a bald eagle. Of course, always gulls.





Below you can see at dawn a double crested cormorant, which spans the globe but is found in America mostly on our eastern coast, sunning itself on a buoy as a swan starts to drift by. The cormorant is one of my favorites, and liked the mersander, a diver. They also spend quite a bit of time spreading their wings like this.
























This is an egret, which are plentiful at the Bluff. I'm pretty sure these guys think they are invisible when they are in the bushes, being camouflaged. Maybe they are to other predators, but not to us. They are bright white and very easy to spot.



But, I go there mostly in warm weather. In the fall and winter I spend much more time down the street from where I live, watching the pond. From what I understand you call a body of water a lake or pond based on tradition and nothing else, except at a certain size I think we all say lake -  nobody calls Lake Huron a pond. The exception is the tongue and cheek reference to the Atlantic Ocean in "across the pond."


In any event, there are almost always birds at the pond and it has a quiet beauty in display in every season, although fall is most spectacular.





That includes winter, when the birds often sit on the ice in packs or float between the half frozen sheets. This is a young swan and some gulls standing on the ice. It was through my icy windshield and not the best picture. Still, looks icy.



There is regularly a breeding pair of swans at the pond. This year they had two children. The swanlings grow fast, but they look kind of like ugly duckings to tell the truth, just as in the Hans Christian Anderson fable:



Now there are only the two parents and one younger swan, although full grown.  He keeps to himself like a petulant teenager. I wonder what happened to his or her brother or sister. I call the one who stayed he and the one who left (or is dead) she. She was full grown too and one day just wasn't there.

The birds at the pond are quite amusing. Occasionally they fight - always intra-species, and I don't like that so much. One day, not so long ago I was sitting in my car having breakfast and reading a book, occasionally lifting my head to watch some mallards near the shore and a sole gull. Gulls are cantankerous and they fight with one another more than the other birds, although perhaps not given their numbers. Suddenly another gull flew over and dived at the one peacefully sitting there.  The mallards didn't budge. Wasn't their fight. I watched the gulls fight for a few seconds and decided I did not need my peace broken. It is understood I am sheriff there, at least when you come to the sandy shore, and I got out of my car and yelled - as I do more and more these days - "Hey, you guys, knock it off!"

The gulls stopped fighting immediately, as if they understood me. But the interesting thing to me was that the mallards did not react at all, even though they were just as close, as if they understood that I was yelling at the gulls and not them. Is that possible? Well, I experimented not too much later, getting out of my car and yelling at some mallards (there is no one else there to see me carry on like this) and they didn't fly off, but quickly paddled away, likely thinking, "What got into him today?"

There are more sea gulls than anything else at the pond, usually, although often many geese too. When I was much younger I read a best seller called Jonathan Livingston Seagull. It is a fantasy about a rebellious individualistic bird, with lots of meaning for us featherless bipeds. I have tried the author's other books and can't do it. But, JLS was superb, in my view. If nothing else, it makes you appreciate the flying acrobatics and individual natures of all animals.



The gulls mostly co-exist, sometimes, if it is cold, all sitting on the ice bunched up close like penguins, but they do fight with each other more than the other birds, particularly over food. One day I was watching as a flock of them sitting on the ice. I notice one of them flying with something hanging out of its mouth. It was too far to see well, perhaps one hundred yards away, but it was evidently a fish, maybe 3 inches long. Behind the lucky gull was an angry one, or so I thought, chasing it to try to get the fish. I've seen this many times and it didn't strike me as unusual.

They wheeled, turned and swooped just like in JLS. It is really impressive, like watching the Blue Angels or Thunderbirds fly. Eventually, maybe 5 minutes or so later, the chaser gave up. Time and time again, he got close but couldn't quite make the other drop the little dangling fish. So, he dropped down to the ice a short distance from the bunch, perhaps to recuperate. The victorious gull, fish still dangling flew almost out of sight, but then circled back. Obviously, or it seemed to me obvious, he would land and gulp down his own prey. But, when he came to land, it was within ten feet of the other gull. Didn't they recognize one another? Didn't he know what he was in for? Atttttackkkk! And away they went again, fiercer than last time, but never even a glancing blow. Finally when the hunter was exhausted he went back down. I was exhausted just watching a demolition derby where there was always a last split second escape.

And then it happened again. And again. The fourth time I realized, either they were playing, or the first one was teasing like crazy. I did not know birds did that. If that was not what was happening, those gulls are loonier than loons.

Recently I saw a little gull swan drama too. The now full grown swan child was floating on icy water completely still. He didn't move for a long time. I wondered if he was dead. His head was coiled around his body. I have seen swans do all kinds of interesting things, including the mother carry her children on her back while swimming, but never sleep like that.



I wasn't the only one who suspected a dead duck(like bird). A gull flew over and landed on the ice about 10 feet away from it. It watched and watched, likely thinking - "Can I eat that?" But he hesitated while another gull flew over. I thought I was going to be sick if anything happened. The second gull waited a few minutes too. What was the tipping point? I don't know, but finally the second one took off in the air directly towards the swan. Just as he was about to reach him the young swan lifted his head. "Hey," he said. "Hey" said the gull and flew away. Okay, they didn't really say that, but that was my impression. The swan went back to sleep as the first gull also flew away.

One day I looked up and this big crane was just standing in the water near some other birds. I think a sandhill crane, but I'm sure of the first and not of the second. It hung out a little while and disappeared, maybe forever.


Just to give you an idea as to its comparative size:




Of course, Long Island is not the only place to bird watch. I got a feast of birds down in Florida the last year or so on two visits, mostly on the first one, which was also to an island (Marco Island). It is very old school there, just enough to do if you don't need variety, but the beaches and views are spectacular. We were very fortunate to stay in an apartment owned by friends of friends, right on a point overlooking islands, dolphins, a plethora of bird life and incredible sunrises and sets.




We were there about a week, and another few days down in the keys. But, sitting on the deck or by the pool gave you as much bird watching as you could want. If you looked up in the sky, you saw giant prehistoric looking birds floating on air currents high above the roof tops.



I couldn't get a view of the whole sky in my lens. But, the pterodactyls (what my friend, who had been there before, called them), which I soon identified as giant frigates, numbered in the hundreds easily.

Equally entertaining were the pelicans, an awkward looking but graceful flying bird that dives into the water from high above and make for great photos:




I was probably able to engage my love of bird watching best while I was living in Va., mostly because I had more time to sit on my porch. Birds were very habitual, often visiting the same spot at the same time every day during a season. The variety I saw is beyond number. One of my favorites were the hummingbirds who visited the feeder my landlord hung. A scarlet tanager used to visit the garden across the street from me in Virginia at the same time every day. He loved to linger at the tall stemmed flowers. I wish this picture was mine, but I also found it online.

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Many larger birds were regulars, hawks, vultures and even bald eagles. I had two eagle experiences that will likely stick with me forever. Once kayaking down the James River, I came to its most ferocious water obstacle in the area  - Balcony Falls. I went through untouched, and thought, hey, that was easy. I paddled back to the mountainous rocks in the middle of the river overlooking the falls and climbed up, dragging my kayak. Looking down, I picked a spot I thought might be more challenging and entered the water, paddling a little upstream and then letting the current pull me towards the falls. Going over a falls is easy. Gravity does everything. The problem comes when you enter the water and the high speed currents are going in multiple directions and you have to avoid rocks. But, I planned well, and headed for some shallow water I thought I would be able to just shoot over. Problem was, it was shallower than I thought when above it. As I approached as fast as you can imagine in a kayak, my mind reacted to the realization that I was going to smash into a huge rock just under the water line - perhaps and inch of draft - and I threw my paddle into the water to my left, holding it still so that I spun on a dime away from the rock. Almost. The very back of the kayak caught the rock. At that high speed (I was only a few feet from the falls) the impact sent me up in the air out of my seat, high enough so that I turned upside down as I plummeted into the water.

Hollllld everything - (readers my age will recognize the catchline from Dick Tracy uttered by the immortal Joe Jitsu). Let me take a pause here. I'm not exaggerating this at all. I made a huge mistake and risked my life, just because my first pass was so easy a mere 50 feet away. Except for the fact that you are reading this years later, you could easily imagine that I died there. But, there wasn't time to think. Back to our story. Six-two and even. Over and out.

I went into the water head first. Although I was wearing a helmet, it would not spare me if I hit a rock. But, I didn't. I smashed my hands on the rocks on the bottom of the river though, reversed course - not because of anything I was doing - and shot up to the surface, my hands still gripping the kayak as if I were still paddling, but ripped up and bleeding. The paddle bore scars too.

Holllld everything - what has this to do with birds? Be patient. Six-two and even. Over and out.

When I popped up, my head was upright and I said "Look, a bald eagle." One was flying by just as I came out of the water. Bizarre moment, at once trying to save my life, and the other part of me a spectator pointing out the majestic bird to other idiots who had spilled. It took me about a half hour to get to shore, rescue my kayak with help from some others up river, empty it, rest, and get back in. But, the eagle stayed with me, if only in my mind.

Having lived, it was a great adventure, as close a call as it was, and the eagle was a big part of it. My other eagle story is not quite so dramatic. I was driving north on the Blue Ridge Parkway (you may be more familiar with Skyline Drive, which is the northern part of the same road) which runs from Georgia to Northern Va. directly behind where I lived through wilderness. It is actually the most visited national park in the country by a large measure, although I'm sure others are better known. In any event, I decided to stop at an overlook and got out of my car.

In the distance I saw a bird flying. I thought it was a bald eagle but it was too far for me to tell. Suddenly I heard a long "creeeee." You may have had to be there, but it was a unique experience. I wish I had a picture. But I don't.

I do have a picture of a vulture in flight. They are incredibly ugly birds on the ground. Coming across a flock sitting in a dead tree or surrounding a dead animal on the ground waiting for it to rot enough to eat is one of the creepiest things in nature.  But they graceful and hawklike in the air.


I found this heron (I think) sitting at the bottom of Lace Falls at the end of the trail at the Natural Bridge like he was posing for a picture. It might be an egret, but they are usually white. Frankly, there is not a lot of difference between egrets and herons as they are in the same family, but herons vary more in shape and color. At least I think so. I didn't say I was an expert.


I do kind of have a picture of some hawks which in fall flew over my house, in their yearly migration. One day a neighbor knocked on my door, wanting me to come out and see the sky, which was magnificent.


You might be asking, where are the hawks? Well, they are there. You just can't see them. It was just too great a picture not to show off (and not for the first or last time).

Okay, that's it. After last week's lengthy footnoted entry, you deserve a break.

POST-SCRIPT MARCH 24, 2017

I was very excited yesterday to see some new ducks at the pond. Like the mersanders they were very tiny, much smaller than mallards, divers and with distinctive white markings. But, though they (there were two couples, it appeared) also kept their distance from the shore, also like the mersanders, I could just make out that the white markings were on the body, not the head and it had a more typical duck bill and shape.

I returned with my camera today and took some shots. Even with my 300mm lense, it was too far away and too small for a good picture at all, but the markings are distinctive enough that you can see it is the same bird as the professional photo. Like with the mersander, I knew I had seen a picture of this bird in a book but again did not remember the name of it (there are a lot of different kind of friggin' birds - I use to be much better with dog breeds, although there are so many of them now, maybe not anymore). It took me a few seconds to find it in one of my books. It was a ring-necked duck. Here's a close up from the internet followed by my distant shot. Look at the shape of the white plumage which shoots up vertically below the neck and the shape of the beak.


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 . . . .