Marriage and Baptism. I'm posting this link and note quickly, because I don't want to forget about it. Ben Domenech asked a question the other day about reconciling difficult theological issues between spouses. Specifically, the issue was infant baptism when one takes more of a reformed position and the other an anabaptist position.

I want to get back to this -- I was hoping to see what others had responded.

In the meantime I'd invite Ben to our church -- our minister was raised a Baptist and ended up becoming an Episcopal minister. :D

The Ultimate Link. Fellow blogger Fritz Schranck got what I consider to be the ultimate link the other day when his counter rebuttal to the Chait article (trashing Delaware) was referenced on the Arts and Letters page. I am insanely jealous.

In fact, I'd rather have that than fall into the "Higher Being" category on the ecosystem rating -- sometimes quality beats quantity (of course, I'm not even mentioned in the ecosystem -- which hasn't been updated since the late Pliocene epoch.

BTW -- I just realized I have a broken link over there for the Arts and Letters Daily page -- I'll fix that and add a couple of other bloggers who I like to visit, but haven't gotten around to adding because I've been too vexed over the whole comments feature. (Am I obsessive or what?)

Testing. Played with the postioning of the comments feature a little. I think I'll try this.

Comments are back! And I'm thrilled by the rapid response of haloscan. If I knew it was that easy, I would've done it sooner. Now, I'll play with the comment feature to get it looking nice, like Ann Salisbury did.

Dog gone it. Whenever I work myself into a state of righteous anger -- I blow it. Right Chris Burgwald? Sigh.

Everyone please wish Dawn a happy birthday.

Homeschooling. Someone named Dawn, who I've never read before and am not likely to read again, had some vapid thoughts about homeschooling. She writes:

My sister is an elementary school teacher with two children. She is currently teaching kindergarten. She has some definite ideas about how education and socialization of children should be implemented. She also entertains the idea of homeschooling her two children, 7 and 3.

Okay -- fair enough -- this could be the David Guterson (author of, inter alia Snow Falling on Cedars) story. When Guterson wrote Family Matters: Why Homeschooling Makes Sense he was a teacher in the public schools who had decided to homeschool his kids.

But of course, Dawn, who acknowledges she is "prejudice[d] against homeschooling," plunges in with "no looking, no research." Unfortunately, her arguments show that she betrays that she has not thought about this beyond a surface knee-jerk reaction. It is a shame that her sister has to endure this waste of time being offered by this whiny lady. But I guess that's family. In any event, the blogosphere has given Ms. Dawn a thorough and well deserved Fisking, (albeit, much politer than she deserved -- that's the problem with these kids who are homeschooled -- they're too darn polite. I was educated in the public schools, so I don't have that problem -- I'm well socialized) therefore, most anything I add would be superfluous.

I do want to address one point, however, Dawn writes:

I may be prejudiced, but if I saw on a resume that someone was homeschooled, I wouldn't even give him or her an interview: too likely that the person would be socially challenged, and that is a HUGE liability in the work place.

In fact, you would not only be prejudiced, perhaps putting your company at risk in some places in California and Washington, DC, for example, you would also be wrong. Professional Human Resource specialists are coming to realize that individuals who are homeschooled are valuable potential employees. Consider this article in HR [i.e. "Human Resource"] magazine published by the Society for Human Resource Management. The following quote comes at the conclusion of article:

In the final analysis, if you’re hiring, homeschoolers may be a good investment. Cutting through the stereotypes, [Patricia] Lines, who has studied the movement for many years, perhaps says it best. “If I didn’t know anything about someone other than their education background, I’d rather hop into a foxhole with a homeschool kid than one from public school. The homeschool kid will be a little better educated and dependable. It’s just the law of averages.”

That's all -- you can go back to discussing more important matters like green hair and stuff.

Surprise. In the past week, I was talking with an acquaintance of mine and we got to talking about the fall elections. He's a Democrat and works for his party; he said that his personal fear for the election isn't an October surprise involving Iraq or a further terrorist attack -- he doesn't think either would have an impact. He said he does have another fear of an event taking place in October which could have a dramatic impact on the election. I was intrigued. He said he doesn't mean to sound crass and gave all kind of disclaimers -- I understood -- while he gets consumed by things like elections, he's a really decent guy.

So what was it? He said the thing that could swing a large block of undecided or centrist voters against his candidates and party would be if Ronald Reagan passed away after October 15. He quite frankly stated that while he would never vote for Reagan, the guy was a hero and a great President and the nation as a whole understood that. He further said that so many media people and Democratic activists could never understand that and hated Reagan. He thought that their reactions -- which would come across as negative and "mean-spirited" would have slingshot (that wasn't quite the word he used -- I can't recall it now) effect and would actually provoke people into going out and voting for the candidate of Reagan's party or more like Reagan.

He also said to read Peggy Noonan's book on Reagan, that she seemed to comprehend the things that made him so successful and distilled it very well.

Where are you going? --said Hamish to William Wallace in the incomparable movie Braveheart. The response? "I'm going to pick a fight."

Last week, toward the end of a column mostly about Gore and Lieberman, Peggy Noonan wrote:

The most successful conservatives (George W. Bush, Ronald Reagan) have been Lovers. They may carry the sterner message, but they put it forward with a certain joy and moral confidence. Fighting conservatives don't last so long or do so well. (Ask Fox News analyst Newt Gingrich.)

But there's a downside to Lovers. They can get too soft. A few months ago I asked a Republican senator what President Bush should do next. He said, "Veto something." I asked, what? He said, "Anything!" Meaning: Loverboy ought to show some muscle, jab someone, show 'em who's the man.

I agree, to a certain extent -- it's time to pick a fight. George W. Bush needs to show there's iron in his backbone and in his grip. But he must do so wisely. Vetoing anything is not the right way to go about this.

William: I said I have an offer for you.

Lochlan: You disrespect a banner of truce?

William: From his king? Absolutely.

The best fight to pick right now would be to recess every nominee he has made to the judiciary who's nomination has been pending for over a year. As prescedent he can cite presidents from Clinton on back. President Clinton would be noteable since Bush renominated his judges who were recess appointees and they were quickly confirmed by the Senate. On one hand, this is unusual, on another it's not. William Brennan was originally a recess appointee to the Supreme Court, if I remember correctly, who was subsequently confirmed by the Senate. Yes, this is tough, but the Senate has it coming by refusing to hold hearings on these nominees. And Bush can pull out statements from each member of the Judiciary committee indicating that a year is too long to wait for a hearing..

. . . Here are Scotland's terms. Lower your flags, and march straight back to England, stopping at every home to beg forgiveness for 100 years of theft, rape, and murder. Do that and your men shall live. Do it not, and every one of you will die today.

Cheltham: You are outmatched. You have no heavy cavalry. In two centuries no army has won without--.

William: I'm not finished. Before we let you leave, your commander must cross that field, present himself before this army, put his head between his legs, and kiss his own ass.

Establishments 'R Us. Howard Bashman has a good summary of an interesting case -- does the issuance of construction bonds for a private, religious college violate the First Amendment's Establishment Clause? The 6th Circuit Court says no. I actually tend to lean to the dissent (I'm no knee-jerk church supporter). Nevertheless, I can see the argument that the economic assistance will provide benefits for the community as a whole and not merely a sectarian institution.

Part of the reason I may lean with the dissent might be that I'm not really in favor of municipalities financing non-government projects, like private schools or stadiums for sports teams.

Anyway, that's my very quick off-the-cuff thought.

Update If you would like to read some good solid analysis, see Sneaking Suspicions by Fritz Schranck.

And while you're there, please be sure to read Fritz's rejoinder to the cover story in TNR bashing Delaware. This is an excellent example of fact checking. After I saw this cover story, I knew I could count on Fritz to respond in a fair manner. What really surprised me was to see how poorly researched Jonathan Chait's piece was on one pretty key point. [If you click through to the TNR story, you'll see it now has a prominent correction at the top -- was Fritz responsible? -- of course, this is on the web-site only.] Especially after the Glass affair, you'd think the editors would do some minimal fact-checking.

Also, since I'm now into fact checking (talk about a run-on post), look at the excellent job Mickey Kaus does on the NYT's Nina Bernstein.

Socializing. We have some guests in from out of town -- had a wonderful dinner together last night. But what this means here is that there probably won't be much blogging for the next day or two. Pity -- I've got some thoughts about homeschooling and one Democrats greatest October surprise fear (hint: it ain't Iraq or war). Maybe in a day or two.

Top Ten Funeral Songs. Just in case you don't click all the way through my links, here are the top ten funeral songs, according to the BBC:

1. Wind Beneath My Wings - Bette Midler
2. My Heart Will Go On - Celine Dion
3. I Will Always Love You - Whitney Houston
4. The Best - Tina Turner
5. Angels - Robbie Williams
6. You'll Never Walk Alone - Gerry And The Pacemakers
7. Candle In The Wind - Elton John
8. Unchained Melody - Righteous Brothers
9. Bridge Over Troubled Water - Simon And Garfunkel
10. Time To Say Goodbye - Sarah Brightman

God Speaks. The least gabby member of the Volokh conspiracy, Michelle Boardman, notes a woman who is preparing to clone to have a baby believes the inability to conceive should be interpreted as the voice of God:

KATHY: I think that God really wants us to do this, that it is the next step. I can't imagine any other reason why we haven't had a child, other than this is what we were meant to do.

In fairness, there are Christian ministers who hold pretty similar views on such things.

By the way, I think He must really want me to have a NEW CAR! Otherwise my old one wouldn't keep breaking down.

Updates Two mail messages on this already! First, the title of this post is not meant to confer deity on Ms. Boardman. Second, here is a nice little essay refuting the Scalia-Thomas caricature.

Signs. (Not the movie, this time.) The Episcopal Church, after 55 years has decided to update its signs from the traditional "The Episcopal Church Welcomes You" to something it perceives will be more hip (yes, that's the way the elders of the ECUSA think) -- fortunately they haven't gone fully in the direction of abandoning tradition that they normally do -- the new signs read: "The Episcopal Church We're here for you." (get it? those Bishops can be so witty.)

Anyway, I have it on good authority that some of the rejected signs include: "The Episcopal Church: No more Mr Nice Guy"; "The Episcopal Church: Eschewing simplistic theology since 1785"; "The Episcopal Church: Catholic without all those rules"; "The Episcopal Church: No Molesters, Just Druids and Witches"; "The Episcopal Church: We only damn conservatives"; "The Episcopal Church: A Scent-Free Place of Worship"; and "The Episcopal Church: Great Funeral Music, Less Commercials."

Washington Twins. No, the Washington Senators in exile Minnesota Twins are not moving back to Washington D.C. Rather this note is about a phenomenon that is failing to draw comment: David Souter and Ruth Ginsburg are joined at the hip judicial twins -- voting more frequently than any other duo this past term. According to the National Law Journal they voted together 92% of the time and an astounding 100% in criminal cases.

Now when there was a voting pattern like this in the past -- we heard that Antonin Scalia was Clarence Thomas' svengali -- or that Thomas was Scalia's lapdog. So what will the press say about this? Perhaps Ginsburg has fallen sway to Souter's raw masculinity? or that Clinton appointee Ginsburg has seduced Bush appointee Souter? Heh -- don't count on it. In fact, not even this blithering idiot would believe such a preposterous story. Just remember that next time some reporter tries to market the idea that Thomas is subservient to Scalia.

Email. Is now back to normal.

Owen the Activist. In an otherwise pretty fair article, Jeffrey Rosen writes

In the case of Priscilla Owen, a nominee to the federal appeals court in Texas, the Democrats' concerns are arguably justified: even President Bush's White House counsel, Alberto Gonzales, called Owen's attempt to narrow a Texas law allowing minors to have abortions without their parents' consent ''an unconscionable act of judicial activism'' when he was a colleague of Owen's in Texas.

But did Gonzales really label Owen's opinion ''an unconscionable act of judicial activism?''

If you ask that as a yes or no question, I'd say the answer is "no." At best, Rosen's statement is misleading, at worst it's just sloppy re-writing of a press release without reading the opinions.

This issue -- whether Gonzales labeled Owen an activist -- was first raised by the group known as People for the American Way ("PFAW") in a "report" opposing Owen wherein the group wrote: "In fact, even current White House Counsel Alberto Gonzales criticized a dissent joined by Owen in one case as “an unconscionable act of judicial activism.” This charge was then echoed in an essay by Jason Zengerle in The New Republic, when he wrote:

Indeed, one of the nomination's more curious aspects is that while on the Texas court, Owen frequently clashed with Gonzales--who as White House counsel is theoretically in charge of judicial nominations. In one parental- notification case, Gonzales went so far as to blast Owen's position as an "unconscionable act of judicial activism."

In response to the PFAW "report," Terry Eastland wrote an opinion piece published in the Dallas Morning News on July 22, 2002, where he discussed precisely who was being labeled an activist by Gonzales:

The opinions in the case mostly concerned how judges should go about interpreting the notification act. In a concurring opinion, Justice Gonzales felt compelled to respond to "the dissenting justices" who "suggest that exceptions to the general rule of notification should be very rare and require a high standard of proof." Two of the three dissenting opinions suggested that, and one of the dissenters, Nathan Hecht, got under the majority's skin, accusing it of substituting its own policy views for those of the Texas Legislature--judicial activism, in sum.

Justice Gonzales defended the majority against Justice Hecht, contending that nothing in the language or history of the law shows "the Legislature intended such a narrow construction." Thus, he continued, "to construe [the act] so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the state, would be an unconscionable act of judicial activism"--one that he said he couldn't engage in. By implication, the dissenting justices advancing the narrower interpretation stood accused of just that.

But Justice Owen didn't stand so accused for the simple reason that in her opinion she didn't undertake an inquiry into the law's intent. Her concern lay elsewhere--with the majority's treatment of the lower courts.

The majority, she wrote, "has usurped the role of the trial court, reweighed the evidence and drawn its own conclusion"--a practice at odds with "more than 50 years of precedent regarding appellate review of a trial court's factual findings." Under well-settled Texas law, she argued, the court may not disturb a trial judge's findings unless no reasonable person could have reached the same conclusion. And, she explained, a reasonable person could have.

"The question in this case is not," she wrote, "whether this court would have ruled differently when confronted with all the evidence that the trial court heard. The question is whether legally sufficient evidence supports the trial court's judgment. The answer to this latter question is yes."

Eastland is more accurate than either Rosen or Zengerle when he notes that Gonzales broadly responded to the "dissenting justices."

Indeed, the entire paragraph in question from Gonzales' opinion demonstrates some ambiguitiy as to who was being labeled:

The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof. I respectfully submit that these are policy decisions for the Legislature. And I find nothing in this statute to directly show that the Legislature intended such a narrow construction. As the Court demonstrates, the Legislature certainly could have written section 33.033(i) to make it harder to bypass a parent's right to be involved in decisions affecting their daughters. See ___ S.W.3d at ___. But it did not. Likewise, parts of the statute's legislative history directly contradict the suggestion that the Legislature intended bypasses to be very rare. See id. at ___ (detailing legislative history). Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism. As a judge, I hold the rights of parents to protect and guide the education, safety, health, and development of their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so.

(emphasis added.)
Yet at the opening of the concurrence, Gonzales indicates his bone of contention was with Justice Hecht, writing:

Only in this, an appeal after remand of the first of four Jane Doe cases, has the Court granted a minor's application to bypass notifying her parents before she consents to an abortion. Yet in each case, the Court has struggled to render the correct decision, and some members of the Court have strongly disagreed. The tenor of the opinions have been unmistakably contentious. It has been suggested that the Court's decisions are motivated by personal ideology. See ___ S.W.3d ___ (Hecht, J., dissenting). To the contrary, every member of this Court agrees that the duty of a judge is to follow the law as written by the Legislature.

Owen's opinion, as noted by Eastland, focuses on the Texas high court's review of the lower court's opinions as opposed to legistlative construction:

I strongly dissent from the methods employed by the Court in rendering that judgment. The Court summarily reversed the lower courts, without an opinion and without the opportunity for considered, substantive deliberations. Now that the Court has, after the fact, issued an opinion, it has obliterated, with the stroke of a pen, more than fifty years of precedent regarding appellate review of a trial court's findings. The Court's actions raise disturbing questions about its commitment to the rule of law and to the process that is fundamental to the public's trust in the judiciary.

This case has a very difficult and contentious history -- by the time of the June ruling in question, there had been at least four separate hearings before the Texas Supreme Court alone in the period of three months. [Links to main opinions from February 25 2002, March 7, 2002, March 13, 2002, March 22, 2002, April 11, 2002, June 22, 2002.]

Look, Rosen's a sharp cookie and he's ususally not one to make a mistake like this. Moreover, although he has an ideology that tend to fall on the left side of things (his ideal justice is David Souter), he generally will play things straight. Given that, I think this is just a simple mistake.

For more on the background of these cases and the Senate's reaction, see Jonathan Groner's Legal Times article (which addresses a more focused concern in any event -- did Owens try to place religious criteria in the idea of being well-informed with respect to the Texas law which required a woman to demonstrate she was "sufficiently well informed" prior to obtaining an abortion? In this article, Groner notes "In discussing the judicial bypass in the Jane Doe I case, it appears that Owen added 'moral and religious' principles to the 'philosophic and social' ones specifically approved by the Supreme Court." Groner includes a contrasting opinion from Owen supporter C. Boyden Gray: "'I don't think that's legislating. I think that's in the spirit of what the Supreme Court has said,' says Gray. 'I don't think anything in the Supreme Court cases excludes religion as a source of philosophy. In my book, philosophy includes the philosophy of religion.'"

I tend to agree with Gray. If anything, it could be that Owen just made a simple mistake in the rush to issue opinions in a rapidly reviewed case -- sort of like the mistake Rosen appears to have made in writing his article.

Peter Berkowitz. The more I read of Peter Berkowitz, the more enchanted I am with him -- not that I agree with him -- just that I find his thinking to be embracing and challenging. Consider, for example, this recent essay in the Jerusalem Post on The Complexities of Cloning, which runs contrary to the conventional wisdom on the Kass Panel. A more contrary (or cynical) person might think this is just a case of log-rolling, since Dr. Kass was a supporter of granting Berkowitz tenure at Harvard. However, based on the argument that Berkowitz sets forth, it is clear that is not the case.

Some other articles by Berkowitz: on school choice, on Tribe's critique of Gore v. Bush, his review of John Rawls, and his look at Peter Singer's ethics, among others.

I still don't understand why Harvard denied him tenure. [Here are some court documents and here is his statement in the Harvard Crimson.] There's something about this that reminds me of the shame of the University of Iowa (my mother's school) where a professor labeled Tennessee Williams "incompetent."

Personal Notes. Sorry about my absence -- the family has just returned from a week in Seattle and I'm have a wonderful time doing diapers and playing in the sprinkler. Today we spent the day at Ft. Hunt park for my 25th anniversary high school reunion. One observation by my wife: at the 10th reunion, everyone talked about jobs -- what were you doing? and so on. By the 25th reunion, no one talked jobs.

Coverwatch. Five Ways to Fix the 401k on the cover of Newsweek -- do only accountants buy magazines in September? Time says no -- and heads for the parents -- with a cover story on "Young and Bipolar" To tell you the truth -- I thought we would see a mosquito on the cover of one of these.