Into the Void. Stepping into the void left by Trent Lott [actually, Cynthia McKinney] is Senator Patty Murray:

We've got to ask, why is this man (Osama bin Laden) so popular around the world? Why are people so supportive of him in many countries … that are riddled with poverty? He's been out in these countries for decades, building schools, building roads, building infrastructure, building day care facilities, building health care facilities, and the people are extremely grateful. We haven't done that.

Really? Well then what did the $275,000,000 spent on the Peace Corps go for? Or the budget request of $8,477,724,000 (yes, 8.4 billion) by that niggardly George W. Bush for USAID?

Senator Murray sits on both the Budget and the Appropriations Committees.

Christmas Movies. Last weekend, my kids and I all watched the greatest Christmas movie ever -- It's a Wonderful Life. I always revel in pointing out that's what mommy's job was -- shutting down S&L's (when she was with FSLIC). Yet, I haven't seen the second greatest Christmas movie ever -- Die Hard. I'm not sure when or if I'll be able to watch this -- of course the language complicates viewing...

Yeah, Die Hard -- it's full of Christmas references, some blatant -- Sgt. Al Powell singing "Let it snow" to the subtle (what was the name of Alan Rickman's character? Hans Gruber -- a play on Franz Gruber?). Like It's a Wonderful Life, it too ends with reconciliation and recognition of the importance of the husband/wife.

So what other Christmas movies are there? My Father's Favorite is A Christmas Story -- my son is asking for a pop gun and we all tell him "You'll shoot your eye out." My sister likes Miracle on 34th Street, the original.

Others are White Christmas, the Santa Clause, various versions of Scrooge/Christmas Carol, and The Bishop's Wife. Any more suggestions?

Two Towers. As you may have noticed, I'm pleased to have opened the Blithering Idiot to my daughter, Joy, age 13. I think I have to disagree with her slightly on this movie. (I too will try to avoid spoilers here.) Like Charlie Parks, I was probably most disappointed by the total failure to mention the Ent wives -- such a sublimely romantic part of the books could've been mentioned at least in passing. (Parks also highlighted: "One scene shows Legolas swinging onto the back of Gimli's horse (!) that is beautifully executed." This received the loudest applause from the sold-out crowd.)

Where I think Joy and I disagree is on the need to read the book before seeing the movie. I think I was a little confused because I kept trying to remember whether thus-and-such was in the book. I think the movie is faithful to the book, but it's more like a paraphrase than a translation -- there is much that is missing and a few things (one pretty significant) that aren't in the book.

I may have liked the first movie more, but then I didn't like the first movie as much until I saw it for the second time, when I could enjoy it as a movie and forget about the book (so the same complaint).

Also, I didn't think there was more of Frodo -- if anything, I thought Aragorn seemed to be more featured.


There was a lot of action and, yes, violence in the movie. There was a battle fought in the rain (homage to Akira Kurosawa's The Seven Samurai? Perhaps, perhaps not -- the Two Towers rain was more gentle). I think something that disturbed me in watching the movie was seeing a scene of extreme violence and hearing laughter around me -- even if it was Uruk-Hai being squashed like bugs by a ladder, it still bothered me. Violence may be necessary at times, but it isn't enjoyable or fun -- and I didn't think Jackson made it funny.

Maybe I'm being too picky.

I enjoyed the scenes of the restoration of Theoden, although prior to this I actually dozed off at one point. (Those chairs were so comforable and the discussions were predictible and it felt good to close my eyes...)

PapaBlog noted how apropos the messages about defending civilization and not shirking a war thrust on you are. At first I thought "the antiwar people are going to hate this." But soon I realized they will just see Dubya as Saruman, despoiler of ancient forests for the sake of a vast war machine (the vast army of Uruk-Hai warriors) -- if they haven't made this assertion yet, it won't be long.

Update: Ben also missed the Entwives -- that makes three of us. Maybe this is an Augustinian thing?

Mr. Blue Sky. I was never a fan of ELO -- but I love the new VW commercial brought to you by these folks. Mr. Blue Sky was a pretty good homage to the Beatles; the commercial is a great tribute to "A Hard Day's Night."

Ghostwriter? The other day Ben drafted a speech Trent Lott could've given and included this:

I grew up here in Pascagoula. My father was a shipyard worker here...(fifth paragraph)

According to the WaPo, in an interview with ABC yesterday, Lott said:

"I am the son of a shipyard worker from Pascagoula, Mississippi."

Maybe Trent's staff reads Ben?

Power Rankings The Bengals are still unanimous.

	No.	Team	Avg.	Hi	Lo
	1	Eagles	1.29	1	2
	2	Bucs	1.86	1	3
	3	Packers	3.57	3	5
	4	Raiders	4	2	5
	5	Dolphins	4.29	4	5
	6	Falcons	8.71	6	11
	7	Saints	8.71	6	15
	8	Titans	8.71	6	14
	9	Colts	9.29	7	12
	10	49ers	9.43	7	12
	11	Broncos	11	7	14
	12	Steelers	11.71	9	16
	13	Patriots	11.86	9	16
	14	Chiefs	13.86	10	17
	15	Chargers	14.14	12	19
	16	Jets	14.71	7	18
	17	Giants	16.29	15	19
	18	Bills	17.71	16	20
	19	Browns	20	18	23
	20	Ravens	20	18	22
	21	Rams	22.14	20	27
	22	Jaguars	22.57	21	25
	23	Seahawks__	23.43	20__	28
	24	Redskins	24	21	26
	25	Vikings	24.14	28	30
	26	Cowboys	25.29	23	29
	27	Panthers	26.71	25	29
	28	Cardinals	27.86	25	31
	29	Bears	28.14	27	29
	30	Texans	29.14	25	31
	31	Lions	30.71__	30	31
	32__	Bengals	32	32	32

Sources: ESPN, Sports Illustrated, Sporting News, War Room, CBS, Sagarin (USA Today), Sports Central,
and the AP.

The reason I like Sports Central, a fan site, is because of insights like this one:

This is 1984 all over again. That year, Dan Marino shattered nearly every single-season passing record, Eric Dickerson set a new mark for rushing yards in a season, and Art Monk demolished the old receptions record. This year, Gannon may pass Marino's mark for passing yards, Holmes is having the best statistical season ever by a running back, and Harrison has already broken the existing record for receptions in a season.

Go? Look, I just think Lott should step down as SML -- I don't think he should resign. If we're going to be throwing stones, in addition to Lott leaving we need to say buh-bye to Robert KKK Byrd and Teddy "when I returned Mary Jo and the caah were gone" (Killer) Kennedy. And that's just for starters. McCain and his Hillary-Reno-Chelsea joke? -- gone. Well, you get the idea.

Power Rankings. As of noon today, a couple of these hadn't been updated -- check back tonight or tomorrow. Sneak preview, Eagles, Bucs, Pack. Dolphins a solid number 4. Bengals at 32.

Sources: ESPN, Sports Illustrated, Sporting News, War Room, CBS, Sagarin (USA Today), Sports Central,
and the AP.

Football I'm officially out of the playoffs -- here's what Sporting News had to say about Drew Bledsoe

Bledsoe is second in the league in passing yards, so he should have had a field day against the Chargers, No. 31 in the NFL in passing yards allowed. Instead, Bledsoe waited until the fantasy playoffs to have his worst game of the year. He was 11-for-33 for 107 yards and no scores. Fantasy Spin: It probably doesn't matter whether Bledsoe's matchup against Green Bay in Week 16 is a good one or not. Most of his owners probably got knocked out of the playoffs because of today's lame performance, so they don't have to worry about next week's lineup.

There's still the loser bowl playoffs -- I guess the best I can hope for now is fifth place. I'll probably drop Bledsoe out of spite (like he'll notice).

My Raiders, despite a ragtag secondary, kept pace with Miami last week -- I think the core of the secondary should be healthy and back in time for the playoffs -- if we can hold on. This week's game against the Bronco's is the key; if we win, we'll take the Division. All of our losses are attributable to the secondary -- our four-game slide occurred when Charles Woodson and Phillip Buchanon both went out with injuries. Woodson should be back this week and Buchanon (broken wrist) might make it back for the playoffs.

Power Rankings later today.

Last -- Dick Heller looks at the so-called "Immaculate Reception." What he fails to note is that on the last play of the game the Raiders completed a long pass to Fred Biletnikoff. Also, there's no mention of the clip by Steelers tight end John McMakin on Raider linebacker Phil Villipiano. Still, it may have been one of the greatest, most physical games in pro football history. The aftermath -- an exhausted depleted Steeler team faced Miami in the championship game, which they lost. I contend that had either the Steelers or the Raiders played Miami on December 23, 1972, Miami would've lost that one. More coverage here.

Judging. Dalia Lithwick has a thoughtful essay about the personal aspects of judging in this morning's NY Times. I've never been a big Lithwick fan, but in this she eschews her normal breezy style to reflect on judging and "personal truths."

Where she misses is classifying Justice Thomas' point an "emotional outburst." In her Slate commentary last week on the oral arguments she already noted the giddiness of the proceedings, with the Chief Justice away recovering from surgery. In fact she used the analogy of students in a classroom with a substitute teacher. Accordingly, Justice Thomas' comments seem to be nothing more than a return to sobriety -- the principal walking in on the class. (Similarly, I disagree with her observation: "what Justice Thomas did is unforgivable; by hijacking the argument into the murk of personal experience, he did violence to the disinterested, lucid distance necessary for justice to be achieved.")

The subject is an intriguing one -- Lithwick's Dowdian contempt for Clarence Thomas defeats her attempt to look at the subject however. My own favorite essay is by Justice Frankfurter written about a flag-salute that can only be described today as Nazi-like in the case West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). His dissent:

One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant, I should wholeheartedly associate myself with the general libertarian views in the Court's opinion, representing, as they do, the thought and [p*647] action of a lifetime. But, as judges, we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution, and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge who must decide which of two claims before the Court shall prevail, that of a State to enact and enforce laws within its general competence or that of an individual to refuse obedience because of the demands of his conscience, is not that of the ordinary person. It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could, in reason, have enacted such a law. In the light of all the circumstances, including the history of this question in this Court, it would require more daring than I possess to deny that reasonable legislators could have taken the action which is before us for review. Most unwillingly, therefore, I must differ from my brethren with regard to legislation like this. I cannot bring my mind to believe that the "liberty" secured by the Due Process Clause gives this Court authority to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen.

Not so long ago, we were admonished that

the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books, appeal lies not to the courts, but to the ballot and to the processes of democratic government. [p*648]

United States v. Butler, 297 U.S. 1 , 79 (dissent). We have been told that generalities do not decide concrete cases. But the intensity with which a general principle is held may determine a particular issue, and whether we put first things first may decide a specific controversy.

The admonition that judicial self-restraint alone limits arbitrary exercise of our authority is relevant every time we are asked to nullify legislation. The Constitution does not give us greater veto power when dealing with one phase of "liberty" than with another, or when dealing with grade school regulations than with college regulations that offend conscience, as was the case in Hamilton v. Regents, 293 U.S. 245. In neither situation is our function comparable to that of a legislature, or are we free to act as though we were a super-legislature. Judicial self-restraint is equally necessary whenever an exercise of political or legislative power is challenged. There is no warrant in the constitutional basis of this Court's authority for attributing different roles to it depending upon the nature of the challenge to the legislation. Our power does not vary according to the particular provision of the Bill of Rights which is invoked. The right not to have property taken without just compensation has, so far as the scope of judicial power is concerned, the same constitutional dignity as the right to be protected against unreasonable searches and seizures, and the latter has no less claim than freedom of the press or freedom of speech or religious freedom. In no instance is this Court the primary protector of the particular liberty that is invoked. This Court has recognized what hardly could be denied, that all the provisions of the first ten Amendments are "specific" prohibitions, United States v. Carolene Products Co., 304 U.S. 144 , 152 , n. 4. But each specific Amendment, insofar as embraced within the Fourteenth Amendment, must be equally respected, and the function of this [p*649] Court does not differ in passing on the constitutionality of legislation challenged under different Amendments.

When Mr. Justice Holmes, speaking for this Court, wrote that

it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts,

Missouri, K. & T. Ry. Co. v. May, 194 U.S. 267, 270, he went to the very essence of our constitutional system and the democratic conception of our society. He did not mean that for only some phases of civil government this Court was not to supplant legislatures and sit in judgment upon the right or wrong of a challenged measure. He was stating the comprehensive judicial duty and role of this Court in our constitutional scheme whenever legislation is sought to be nullified on any ground, namely, that responsibility for legislation lies with legislatures, answerable as they are directly to the people, and this Court's only and very narrow function is to determine whether, within the broad grant of authority vested in legislatures, they have exercised a judgment for which reasonable justification can be offered.

The framers of the federal Constitution might have chosen to assign an active share in the process of legislation to this Court. They had before them the well known example of New York's Council of Revision, which had been functioning since 1777. After stating that "laws inconsistent with the spirit of this constitution, or with the public good, may be hastily and unadvisedly passed," the state constitution made the judges of New York part of the legislative process by providing that "all bills which have passed the senate and assembly shall, before they become laws," be presented to a Council, of which the judges constituted a majority, "for their revisal and consideration." Art. III, New York Constitution of 1777. Judges exercised this legislative function in New York [p*650] for nearly fifty years. See Art. I, § 12, New York Constitution of 1821. But the framers of the Constitution denied such legislative powers to the federal judiciary. They chose instead to insulate the judiciary from the legislative function. They did not grant to this Court supervision over legislation.

The reason why, from the beginning, even the narrow judicial authority to nullify legislation has been viewed with a jealous eye is that it serves to prevent the full play of the democratic process. The fact that it may be an undemocratic aspect of our scheme of government does not call for its rejection or its disuse. But it is the best of reasons, as this Court has frequently recognized, for the greatest caution in its use.

The precise scope of the question before us defines the limits of the constitutional power that is in issue. The State of West Virginia requires all pupils to share in the salute to the flag as part of school training in citizenship. The present action is one to enjoin the enforcement of this requirement by those in school attendance. We have not before us any attempt by the State to punish disobedient children or visit penal consequences on their parents. All that is in question is the right of the State to compel participation in this exercise by those who choose to attend the public schools.

We are not reviewing merely the action of a local school board. The flag salute requirement in this case comes before us with the full authority of the State of West Virginia. We are, in fact, passing judgment on "the power of the State as a whole." Rippey v. Texas, 193 U.S. 504, 509; Skiriotes v. Florida, 313 U.S. 69, 79. Practically, we are passing upon the political power of each of the forty-eight states. Moreover, since the First Amendment has been read into the Fourteenth, our problem is precisely the same as it would be if we had before us an Act of Congress for the District of Columbia. To suggest that we are here concerned [p*651] with the heedless action of some village tyrants is to distort the augustness of the constitutional issue and the reach of the consequences of our decision.

Under our constitutional system, the legislature is charged solely with civil concerns of society. If the avowed or intrinsic legislative purpose is either to promote or to discourage some religious community or creed, it is clearly within the constitutional restrictions imposed on legislatures, and cannot stand. But it by no means follows that legislative power is wanting whenever a general nondiscriminatory civil regulation, in fact, touches conscientious scruples or religious beliefs of an individual or a group. Regard for such scruples or beliefs undoubtedly presents one of the most reasonable claims for the exertion of legislative accommodation. It is, of course, beyond our power to rewrite the State's requirement by providing exemptions for those who do not wish to participate in the flag salute or by making some other accommodations to meet their scruples. That wisdom might suggest the making of such accommodations, and that school administration would not find it too difficult to make them, and yet maintain the ceremony for those not refusing to conform, is outside our province to suggest. Tact, respect, and generosity toward variant views will always commend themselves to those charged with the duties of legislation so as to achieve a maximum of good will and to require a minimum of unwilling submission to a general law. But the real question is, who is to make such accommodations, the courts or the legislature?

This is no dry, technical matter. It cuts deep into one's conception of the democratic process -- it concerns no less the practical differences between the means for making these accommodations that are open to courts and to legislatures. A court can only strike down. It can only say "This or that law is void." It cannot modify or qualify, it cannot make exceptions to a general requirement. [p*652] And it strikes down not merely for a day. At least the finding of unconstitutionality ought not to have ephemeral significance unless the Constitution is to be reduced to the fugitive importance of mere legislation. When we are dealing with the Constitution of the United States, and, more particularly, with the great safeguards of the Bill of Rights, we are dealing with principles of liberty and justice "so rooted in the traditions and conscience of our people as to be ranked as fundamental" -- something without which "a fair and enlightened system of justice would be impossible." Palko v. Connecticut, 302 U.S. 319 , 325 ; Hurtado v. California, 110 U.S. 516 , 530 , 531 . If the function of this Court is to be essentially no different from that of a legislature, if the considerations governing constitutional construction are to be substantially those that underlie legislation, then indeed judges should not have life tenure, and they should be made directly responsible to the electorate. There have been many, but unsuccessful, proposals in the last sixty years to amend the Constitution to that end. See Sen.Doc. No. 91, 75th Cong., 1st Sess., pp. 248-251.

Conscientious scruples, all would admit, cannot stand against every legislative compulsion to do positive acts in conflict with such scruples. We have been told that such compulsions override religious scruples only as to major concerns of the state. But the determination of what is major and what is minor itself raises questions of policy. For the way in which men equally guided by reason appraise importance goes to the very heart of policy. Judges should be very diffident in setting their judgment against that of a state in determining what is, and what is not, a major concern, what means are appropriate to proper ends, and what is the total social cost in striking the balance of imponderables.

What one can say with assurance is that the history out of which grew constitutional provisions for religious equality [p*653] and the writings of the great exponents of religious freedom -- Jefferson, Madison, John Adams, Benjamin Franklin -- are totally wanting in justification for a claim by dissidents of exceptional immunity from civic measures of general applicability, measures not, in fact, disguised assaults upon such dissident views. The great leaders of the American Revolution were determined to remove political support from every religious establishment. They put on an equality the different religious sects -- Episcopalians, Presbyterians, Catholics, Baptists, Methodists, Quakers, Huguenots -- which, as dissenters, had been under the heel of the various orthodoxies that prevailed in different colonies. So far as the state was concerned, there was to be neither orthodoxy nor heterodoxy. And so Jefferson and those who followed him wrote guaranties of religious freedom into our constitutions. Religious minorities, as well as religious majorities, were to be equal in the eyes of the political state. But Jefferson and the others also knew that minorities may disrupt society. It never would have occurred to them to write into the Constitution the subordination of the general civil authority of the state to sectarian scruples.

The constitutional protection of religious freedom terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma. Religious loyalties may be exercised without hindrance from the state, not the state may not exercise that which, except by leave of religious loyalties, is within the domain of temporal power. Otherwise, each individual could set up his own censor against obedience to laws conscientiously deemed for the public good by those whose business it is to make laws.

The prohibition against any religious establishment by the government placed denominations on an equal footing [p*654] -- it assured freedom from support by the government to any mode of worship and the freedom of individuals to support any mode of worship. Any person may therefore believe or disbelieve what he pleases. He may practice what he will in his own house of worship or publicly within the limits of public order. But the lawmaking authority is not circumscribed by the variety of religious beliefs -- otherwise, the constitutional guaranty would be not a protection of the free exercise of religion, but a denial of the exercise of legislation.

More Cross Burning. I work with an attorney who, while a young girl in the 1970s, had a cross burned on her front lawn. She said she didn't understand what was happening at the time, but as you can imagine, her parents were pretty frightened.

As a side note to the story -- her father later ended up representing the man who burned the cross. The man begged forgiveness which was granted. Since this is not my story, I'm being somewhat vague, so as to not violate someone's privacy.

Sister Kathy. The other day we celebrated my number one sister's birthday and it got me thinking about the day we lost her with the garbage. That was back when I was about 5 and she must have been 3. We lived in Tsoying, on the outskirst of Kaohsiung, China. We were actually pretty fortunate in that we had indoor plumbing and our sewage did not flow into the binjo ditch. Moreover, we had trash pick up -- a man came by with his water buffalo and picked up the trash. Well, one day he took my little sister -- at that time, my only sister -- for a ride. Panic ensued, but in the end, she was fine.

I'm not sure why I write about this -- maybe it's just the juxtaposition between lives -- my childhood with these things (we boiled all our drinking water, for example) and my kids.

Sheesh, I am getting old.

Tomorrow, I'll tell you about the adventure on the roof of the Ambassador Hotel or describe the wonderful aroma of the Love River (where do you think all those binjo ditches flowed to?).

Hotchpot. Congratulations to Mark Byron and his Florida Blogistas for their overwhelming victory over my Idiots in the first round of yesterday's Blogger Bowl 2K3 playoffs. My team, the aptly named Idiots, was representing the small township of Asylum, Pennsylvania, we are sorry to have let the town down but we appreciated all the fans who met us at the airstrip last night. We appreciated those who left their pitchforks at home.

To those Republicans down about things after the Louisiana race and Trent Lott -- things look brighter in Hawai'i: Linda Lingle may restore a second party in that state (plus actually doing good things for the state). Here's local columnist David Shapiro on how.

A good note about how the Clintonistas still running federal agencies (they are in total control of mine, for example -- no nominations over 2 years after the election) are blocking freedom and progress.

Here's an interesting note about a suppressed Disney flick -- the Small One -- a story about the donkey that brought the Holy Family to Bethlehem.

And I'll end with football -- the Redskins looked great for the first play and a half... and what was the deal with that punt block -- that guy was in there fast enough to pick the ball out of mid-air -- how in the world did he miss getting any part of the ball and still manage to rough the kicker?

Covers. It appears that blogger ate my note on the Time and Newsweek covers last night. Basically, I like the Newsweek cover with it's old picture of Trent as opposed to the Time cover of modern Trent set against the old Dixiecrat backdrop. The scarry thing about the old Trent picture is that he looks like a cross between Lee Harvey Oswald and Kevin Costner as Kenny O'Donnell in 13 Days.

Pink Candle. So why is there a pink candle in the Advent wreath -- did they run out of dye? Advent is a time of penitence and fasting -- like Lent. Christmas, like Easter, is the payoff from this time of fasting -- a time of feasting and celebration. The color the Church uses to denote a season of penance or repentance is purple.

So why the pink candle? Actually, not only should the candle be pink this Sunday, but all the vestments that are normally a color (purple, green, red) should be pink or rose colored. This is because even during -- or perhaps especially during -- a time of penance and fasting, we needed to be reminded it is God's grace that delivers us. This Sunday (and there is a counterpart in Lent that escapes me for the moment) is that Sunday of grace -- symbolized by the pink or rose vestments and candle. This is Gaudete Sunday -- gaudete being Latin for "rejoice" (I believe).

If you light candles on a Advent wreath -- and I do hope you do -- remember that is by Grace we are Saved and rejoice!