That Heckler's Veto. In a column, linked to by InstaPundit, Steve Chapman writes:

"It's a heckler's veto," says UCLA law professor Eugene Volokh. "Anytime I threaten a guy, he gets arrested and I don't."

But the heckler's veto has been rejected by the Supreme Court over and over, in cases where the threat to public order was far greater than it was this time. In a 1949 case, for example, a man was arrested for disorderly conduct after delivering a speech so inflammatory it produced disturbances in a crowd of some 1,000 people outside the Chicago auditorium where he was speaking. But the court threw out his conviction.

But it's not true that the Supreme Court rejects the heckler's veto. Why, just yesterday, the Court upheld a lower court decision ratifying the heckler's veto, as I noted below. It would be nice if the Court were consistent about this, but some rights are more favored than others.

My Scores. Oh, I love these things, though I don't know how reliable or valid this one is. But, via a shot across my bow, here's a Ethical Philosophy Selector

My scores:
1. Augustine (100%)
2. Aquinas (76%)
3. Kant (75%)
4. Spinoza (70%)
5. Rand (68%)
6. Plato (67%)
7. Aristotle (61%)
8. Bentham (61%)
9. Mill (61%)
10. Sartre (59%)
11. Stoics (56%)
12. Ockham (51%)
13. Hume (50%)
14. Nietzsche (50%)
15. Prescriptivism (47%)
16. Cynics (45%)
17. Epicureans (45%)
18. Noddings (44%)
19. Hobbes (22%)

Yeah, why not, I'll take it.

Breyer on Intellectual Property. The National Journal has a good article covering the importance of being Breyer in the upcoming review of the extension of copyright protection. While Breyer has been uneasy with it, I'll bet he defers to Congress.

Thoughts on the party. My thought at seeing the first report on the "1st British Blogger Bash in London" was that Andy Lamey was right: Libertarians can't get dates. I guess that's why the later pictures were posted. Or are these really from the party? It should be noted that only Perry is in the picture with babes ladies.

[what's the html code for just kidding?]

New Word. In a column a few weeks ago, Peggy Noonan sought contributions:

My second is more frivolous but I've been meaning to mention this for a while, and actually it's not frivolous. Since we have entered the age of weapons of mass destruction, since we are immersed in the fact of them and will no doubt be shaped in part by their existence, we need a way of speaking of them with a phrase that is easier to say and easier to grasp than "weapons of mass destruction" or WMDs. Ideas for a new name for WMDs are welcome, and will be forwarded to the administration.

The way I see it, there are basically four approaches to doing this, the first is to create a new word out of whole cloth, with no antecedent. I'm not feeling particularly creative in that regard, so I'll pass on that one. The remaining three build on existing words or concepts.

One way is to use an acronym, like NIMBY or MEGO, but in this case it doesn't quite work. You could do "madweps" (MassDestructionWeapons), which ain't bad. Then there is always the popular using someone's name, for example, boycott or gerrymander. The obvious choice would be "laden" or "qaeda." I'd reject laden for three reasons: (1) its already a word (2) it is a last name of innocent people, not just muslims, and (3) we don't want bin Laden to be remembered. And while you could apply that last rationale to qaeda, I like the idea of turning their name into a curse.

Oh, and the last approach is the borrowing from older words in combination to form a new one. In this case, you could take from latin as follows. From trucido (-are) meaning "to slaughter , massacre; to demolish, destroy" and arma (-orum) meaning "weapons of war" comes the following: "armatruci." My problem with the last is, as I understand it, and I have no training in Latin, is that arma has more of a defensive meaning, such as its use in armor, and does not adequately convey the aggressive nature of these weapons.

So what do you think? Should I pass these choices on?

Supreme Report. Not much to report from the Supremes today -- all the action seems to be cases which were rejected: the Florida voyeur dorm case (therefore, the webcams will stay on), the Indiana Ten Commandments case (which leaves in place the lower court order barring the replacement of a monument of the decalogue which had been defaced).

Zapped. Something happened to my stellar post on Stuart Taylor's article regarding the Pickering nomination. I'm still trying to figure out if I can retrieve it from the ether.

Cover Watch. Standing in the checkout line, seeing a nearly identical Time and Newsweek cover (Jamie Sale and David Pelletier) last week got me thinking which one I would buy. Time magazine's cover seemed to focus on justice and redemption for the skaters, whereas Newsweek's cover focused on the Sleazy side of skating -- with the emphasis on sleaze. In my mind, then, there was no question that Time was the winner.

This week, Time features Bono of U2 and asks whether Bono can save the world. On the otherhand, Newsweek hits the sleaze angle again -- "Sex, Shame, and the Catholic Church."

Advantage: Time.

Attack of the Alpha Girls. Seems to be the subject of the weekend. See this long piece in the NY Times and this shorter one in the Washington Post.

School Prayer. Back when the Supreme Court disclosed that the First Amendment banned organized prayer in schools, Engel v. Vitale, a young Catholic priest denounced "...the alliance of Protestantism, secularism, and Judaism which controls the public schools."

Who was this early version of Jerry Falwell? Click here or here to see what this guy is up to today.

Source: Religion, The Courts and Public Policy (1963) at 120. (as quoted in Goldberg Reconsecrating America 65 (1984).

Problems. Having a few computer problems -- mostly with MSN -- just got a huge batch of back mail -- so if I haven't responded, that's why -- I went through the first 20 and realized I still have 95 more. Back tomorrow -- or Sunday.

Go home already. So now the Ruskies want a gold medal for Slutskaya. "'We filed the protest last night because we think the judging was biased,' the head of the Russian delegation in Salt Lake City, Viktor Mamatov, told The Associated Press on Friday. 'Canadian pairs skaters were awarded their gold medals. Now that subjective judging harmed us, we want the same for Slutskaya.'"

Look, Anton Sikharulidze and Elena Berezhnaya fell during their competition, while the Canadians were flawless. Second, Russia swapped votes and pressured the spineless French (sorry about the redundancy) judge. We're dumb Americans, Viktor, but we're not senile -- our memories last more than a week. Third, Sluts wobbled around the rink like she'd been out bar-hopping with Oksana Baiul. Speaking of Oksana, maybe we should give Nancy Kerrigan a gold as well, eh, Viktor? After all she tied with Oksana -- Baiul got the gold by the tie-breaker.

At last, new reasons to hate the Soviets, err, Russians. Just in time for tonight's hockey game.

BTW, some of my earliest political/international memories were of the Russian tanks rolling into Prague in '68. Something that many of us will never forget. See Jaromir Jagr who wears number 68 on his back for that very reason.

Update Admiral Hailey writes something very similar -- and posts it at the same time -- too weird.

More. USA holds on to beat the Russian men in hockey -- setting up a gold medal game with the Cannucks. Also, the Russian protest over the skating results was rejected.

After this brief message, we'll be back with traffic and weather.

The Ninth Battle of Manassas. (Everytime the subject of development in Manassas comes up, it's always billed as the "Third Battle of Manassas.") I just wanted to tip my cap to Rich Hailey for his last shot across my bow. He has a very good, very thoughtful and thought-provoking response to my last ramble through the cause of the Civil War. If anyone read my note but didn't read his reply, you should.

Besides, he does great stand-up.

Stats. Iain ("the Edge") Murray sets forth five rules for dealing with statistics, based on an article by Wendy McElroy. Make that five and a half rules. He has some reservations about her sixth rule "who says so?" and I see his point. This was something that came up for me about a week or two ago when there was the inter-blog discussion about the harm caused by pornography. The opponents of the propostion ("porn is bad") demanded proof of the proponents (and I agree, to a certain extent, that the burden is on the proponents). I did find some evidence which would support my contention, but since it was coming from anti-pornography organizations, I could see it would be discounted out of hand. The Edge notes "To dismiss a study because of the authors' prejudice is a variant of the ad hominem fallacy. If the data appear to have been skewed, that, and only that, forms legitimate grounds for suspecting bias."

In any event, these five simple rules should be affixed to the frame of every computer monitor for easy reference.

My Scorecard. Yes, Sarah Hughes deserved the gold medal. Her performance was by far the best, both in terms of performance and style. Also, I thought her short program was better than she got credit for. You can see the judges scorecards for the top five performers from last night here. The scoring for the whole event is a little convoluted with it's mix of short and long program, weighted ordinal scoring, instead of cummulative combined points. It's a system that an IRS agent might love, but it leaves a lot to be desired.

USA Today reporter Christine Brennan indicates that the judges may have given Irina Slutskaya high enough scores to place second because that would be the only way to knock Michelle Kwan out of first and give Hughes the gold she earned last night.

My own scorecard borrows from the boxing 10 point must system. The best performer would get the top score -- a 6.0, and the next best a little below that, 5.9, and so on:
Kwan ------- Slutskaya ----- Cohen ------- Hughes
Tech. Pres. * Tech. Pres. * Tech. Pres. * Tech. Pres.
5.8 -- 5.9 ---- 5.9 -- 5.7 ---- 5.7 -- 5.8 --- 6.0 -- 6.0
or a combined:
11.7 (Kwan) 11.6(Slutskaya) 11.5 (Cohen) 12.0 (Hughes).

But I don't know, under my system, who would get the gold, because I didn't see all the performances on Tuesday night.

Bye-Bye Boris. The obvious solution to the Soviet, err, Russian temper-tantrum. Go ahead and forfeit the hockey game -- right.

More. The Russians ". . . have been gravely insulted by the fact that one of their athletes tested for high hemoglobin levels, and one of their judges is alleged to have been involved in rigging figure skating results."

Obvious Solution. The Sun-Sentinel reports on the latest challenge by those seeking to kill the "Choose Life" license plate in Florida: "Pro-choice groups are challenging the distribution system because they aren't eligible for any of the money under a state law reserving tag profits for agencies offering adoption services but not abortion services."

Maybe they should start a "choose death" license plate.

I didn't expect a kind of Spanish Inquisition. Neil Addison, writing in the Times, points out a provision in the UK, "religiously aggravated harassment," may have made outlaws of the Monty Python troop. Should they expect a Spanish Inquisition the next time they perform that skit?

<diabolical laughter>Ha ! Ha ! Ha ! Ha ! Ha !</diabolical laughter>

Top 10. Rich Hailey's Top Ten Signs You've Blogged Too Much is a classic.

Lovin' It. I love Kirk Franklin'snew album The Rebirth of Kirk Franklin. Nevertheless, I can't help but thinking the last track on the disc, the "hidden" track, Throw Your Hands Up has a line that sound's like it was taken straight from Smells Like Teen Spirit. ("...Here we are now, entertain us...")

Disappointed. The new head of the National Religious Broadcasters, a trade association of theologically conservative Protestant and Pentacostal broadcasters, resigned after making the following statement to the Minneapolis Star: "We get associated with the far Christian right and marginalized. To me, the important thing is to keep the focus on what's important to us spiritually. . . . We need to not be pulled into the political arena." [The article is not on-line, but the larger quote can be found here.]

I am disappointed that he resigned (or was forced out). FWIW, I think he was correct.

Sources: Christianity Today Weblog, WaPo.

Update: Google has the Star Tribune article cached.

CPCs. This morning's Washington Post has an article on the battle against Crisis Pregnancy Centers ("CPCs"). Except the Post can't quite admit that this is what's happening. The article explains that the NY Attorney General ("NYAG") is investigating complaints of deception at CPCs.

What is left unsaid, until the end of the article, and even then, only in the mouth of a CPC director, is that this is a political vendetta being carried out by the NYAG.

To put it in context, imagine the US Attorney General, John Ashcroft announced that, due to complaints he received, he was undertaking a review of every abortion clinic in the country. His speeches and quotes to anti-abortion groups would be included in the context of the news article and the thrust of the article would probably revolve around whether this was an attack on the fundamental right of abortion. There would be no coverage concerning the lack of regulation or oversight of abortion providers. (This latter point has actually puzzled me for years -- the abortion industry is one of the least regulated in the country, with even minimal regulations being tossed due to Roe. Generally speaking, most abortion advocates also favor a larger governmental role in business and in people's lives, except in the case of abortion. Is this a tacit admission that regulation is evil?)

What a day. I was awakened a little early this morning by our baby -- 4 am -- I'm usually up at 4:40. So I got an early start -- got a little work done. Posted a note here, which generated a lot of traffic. Thanks to everyone who stopped by -- 1430 hits today -- normally I get about 60-75. Then I had a great, but very busy, day at work. Worked straight through lunch, which is why there was nothing else added, then into the evening. Very productive. Nice evening at home with the kids, then doing a dance pick-up and run to the store for my oldest daughter. At about 9:30 the middle daughter was complaining about a pain in her stomach. It turned out she had a tick there and it was embedded. So we made a quick run to the night care and back home at 11:30. Long day. I'm closing up the computer and the house and going to bed.. Thanks again to everyone who stopped by.

Supreme Court Report. One case released so far -- the Court (Ginsburg, writing) upheld Wisconsin rules that prevent the sheltering of assets from Medicaid means testing. What's notable about this case is the split: 6-3, with Stevens, joined by O’Connor and Scalia, dissenting. "left," "middle," and "right," respectively. Decision in PDF (so far, not on the LII).

New Front on the Judicial Attacks. In the WaPo this morning, there's a new attack on yet another nominee (I wonder if this means the Neas-led coalition is pulling back on Charles Pickering? -- nah). The jist is that D. Brooks Smith, chief judge of the U.S. District Court for Western Pennsylvania, issued orders on a case assigned to him for a period of 30 days before recusing himself because his wife worked for a bank where funds were held by the defendant in an SEC case. The bank was not a party to the action, which the Post discloses -- in the 15th paragraph ("Mid-State Bank was not a defendant in the case and was not accused of wrongdoing by the SEC. The school districts were inconvenienced, but eventually gained access to all of their money when another judge lifted the freeze.")

The Post quotes two "ethics experts" (my quotes). The first, Steven Lubet ($1,000 to the Democratic National Committee in 2000, $0 to others) calls Smith's delay in recusing "an inexplicable lapse." Whereas Stephen Gillers ($1,700 to Democratic candidates since 1992, $0 to Republican, Libertarian or other) concludes the article "I can't say [Smith] certainly had to recuse himself . . . I can say that a serious argument for recusal is present in these facts, so that Judge Smith should have revealed the information" before making any rulings."

[Source for contributions: http://www.opensecrets.org/indivs/index.asp ]

Sled or Sleigh? Putting and end to that tiresome soap opera that was known as USA-1, Bakken and Flowers take the gold. Sometimes things work out.

Chesterton on Ritual:

. . . humanity is divided into conscious ritualists and. unconscious ritualists. The curious thing is, in that example as in others, that it is the conscious ritualism which is comparatively simple, the unconscious ritual which is really heavy and complicated. The ritual which is comparatively rude and straightforward is the ritual which people call "ritualistic." It consists of plain things like bread and wine and fire, and men falling on their faces. But the ritual which is really complex, and many coloured, and elaborate, and needlessly formal, is the ritual which people enact without knowing it. It consists not of plain things like wine and fire, but of really peculiar, and local, and exceptional, and ingenious things-- things like door-mats, and door-knockers, and electric bells, and silk hats, and white ties, and shiny cards, and confetti. The truth is that the modern man scarcely ever gets back to very old and simple things except when he is performing some religious mummery. The modern man can hardly get away from ritual except by entering a ritualistic church. In the case of these old and mystical formalities we can at least say that the ritual is not mere ritual; that the symbols employed are in most cases symbols which belong to a primary human poetry. The most ferocious opponent of the Christian ceremonials must admit that if Catholicism had not instituted the bread and wine, somebody else would most probably have done so. Any one with a poetical instinct will admit that to the ordinary human instinct bread symbolizes something which cannot very easily be symbolized otherwise; that wine, to the ordinary human instinct, symbolizes something which cannot very easily be symbolized otherwise. But white ties in the evening are ritual, and nothing else but ritual. No one would pretend that white ties in the evening are primary and poetical. Nobody would maintain that the ordinary human instinct would in any age or country tend to symbolize the idea of evening by a white necktie.

Taken from Heretics.

Foghorn Leghorn Update. Virginia's beloved senior senator, the former Mr. Elizabeth Taylor, also known as Foghorn Leghorn or Sen. Claghorn has announced he's running for re-election. sigh. The guy doesn't have an honorable bone in his body. I remember when Foggy voted against Judge Bork he gave all kind of high-falutin' reasons why, but we all knew it was because he liked getting Sen. Dodd and Sen. Kennedy's cast-offs. He had to remain in good graces with his buds. At the time, Dick Obenshain's son acknowledged that his father would've voted for Bork. Richard Obenshain was the last man to beat Warner, but died in a plane crash.

Fodder for the Bias Watch. The AP story on the school paper grading case, mentioned below, contains the following three sentences, in this order:

The Bush administration backed the school district. Falvo's[the child's mother] lawsuit became an ideological contest between the rights of parents and the rights of teachers to run their classrooms, and between social conservatives and teachers' unions.

So then, are we to assume that the Bush administration backed the "right[] of teachers to run their classrooms" and the unions against parents and social conservatives?

I don't think so. It sounds to me like the AP reporter Anne Gearan is putting in something that isn't there. I did talk to a few "social conservatives" a while back, when the case was argued, and all thought this was a case of "those ACLU types" trying to meddle where they weren't welcome. In fact, I hadn't talked to anyone supportive of the parent in this case -- not that the parent might not have a sympathetic case. At worst, the thought was, if the statute did forbid this type of practice, it was an unseen consequence and deserved an amendment to permit such grading.

[More] I think I see Gearan's error. She must have dropped her "education" notecards and got this case mixed up with the school voucher case, to be argued tomorrow. That one does pit parents versus the teacher's unions. There's an essay on it in today's WSJ.

Standdown. My last note, now deleted, was in error. The case I was mentioning turned out to be two certs. on copyrights and sex offender lists posted on the internet. In addition, the Court held that having students grade each others work does not violate federal statutes on privacy.

Update. On the school case, the decision was unanimous. Also, it should be noted that the LII of Cornell was faster getting this up than the Supreme Court (as of 10:50 am, it's still not on the Supreme Court web page).

Scalia concurs in the judgment and writes a brief concurrence:

I agree with the Court that peer-graded student papers do not constitute “education records” while they remain in the possession of the peer grader because, as the Court explains, a student who grades another’s work is not “a person acting for” the school in the ordinary meaning of that phrase. Ante, at 6—7. I cannot agree, however, with the other ground repeatedly suggested by the Court: that education records include only documents kept in some central repository at the school.

FWIW, I think he's correct.

Sharkman Six. Okay, I'm not quite finished with the book (Sharkman Six), but I'll tell you it's a good one. I've alluded to it once or twice in the past few days and this morning I had to force myself to put it down, or I'd be late for work. It's the debut work of Capt. Owen West, USMC (Ret.) about the first Marines in Somalia. You can read the first chapter on-line (although, to be frank, the rest of the book is much better than the first chapter). In brief, Sharkman Six is a first person narrative of a Marine Lieutenant trying to lead his men and do right and good in Somalia, 1992, and the constraints of the Rules of Engagement. It's a book of honor and duty and the United States Marines.

In a recent issue of Book magazine, in the list of ten new authors to watch in 2002, Owen West is listed as "The New Tom Clancy." Not quite. He's unique, thankfully fresh; if I had to categorize him I say he's a cross between Jim Webb (Fields of Fire, A Sense of Honor, Something to Die For) and Pat Conroy (The Great Santini, Lords of Discipline).

This is a good book. (and I will let you know if the ending disappoints me).

Military Operations Other Than War -- what a concept.

Gruden Gone. Frankly, I'm stunned by the announcement that John Gruden has left the Raiders for the Bucs. I'm not surprised that he's leaving -- he's at his high point with the Raiders -- it's doubtful they could win the Division next year with the retirements and the continued aging of the oldest team in the league. What puzzles me is: Tampa Bay -- this isn't exactly sound management, as Tony Dungy found out.

ESPN is reporting that the Raiders will receive first- and second-round draft choices in 2002, a first-round choice in 2003, and a second-round choice in 2004.

So who's next? My favorite is Art Shell -- but I'm not sure where he is, or if he's even interested. ESPN, in addition to mentioning Shell, also lists former Viking coach Dennis Green and current Raiders offensive coordinator Bill Callahan "a seven-year NFL veteran whose primary area of expertise is the offensive line. But he has worked with Gruden since the two were Philadelphia Eagles assistants together."

And, since I'm talking football, let me say that the Texans made a great first pick of Tony Boselli.

Why Not? Kevin Holtsberry has a short, sweet explanation as to why he's not a libertarian. For the most part, I'm in agreement. I've seen a libertarian society -- it took place in the country called Somalia, 1992, and it wasn't pretty. Nevertheless, I think I've mentioned before, isn't God a libertarian? I'll explore this in a few days. [stay tuned - grin]

Lincoln's Best Speech? Not the Gettysburg Address, but the Second Inaugral Address says Ronald White. I agree (although it's a close call). Lincoln backed off from claiming the righteousness of the North and noted that both North and South

looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible, and pray to the same God; and each invokes his aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces; but let us judge not, that we be not judged. The prayers of both could not be answered--that of neither has been answered fully.

(I would continue on, but then my discussion would be longer and less sufficient than his address.) Lincoln concludes with these famous words:

With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace among ourselves, and with all nations.

And it is these words which have echoed throughout our history, in the restoration of our enemies to seek a "just and lasting peace..." It will happen again -- indeed, it is happening in Afghanistan today.

Sandra Day O'Connor. The WaPo has a good article on Justice O'Connor in Monday's paper. While it contains some pretty standard analysis, there are some excellent sound-bites (print bites?) by Eugene Volokh

Church and State II. I'm of two minds regarding the prayer in school issue. On the one hand, I don't think government schools should be dictating prayer for the students (and teachers). On the other, I think the Supreme Court was wrong to determine that devotional readings, without comment, or even non-sectarian prayer in schools was the equivalent of the establishment of religion, and therefore, in violation of the First Amendment.

In the WSJ Opinion, Gen. Josiah Bunting III, superintendent of the Virginia Military Institute takes issue with the finding of a federal judge that VMI's prayer before meals violates the First Amendment. When I first heard this, I thought it was a no-brainer: under the recent history of the "school prayer" cases, there was going to be no way that this practice would survive. However, Gen. Bunting introduces the following facts which lead me to believe the practice should survive the challenge:

Just before entering the mess, all but our new cadets may fall out of formation and go their own way. They may enter the mess hall later, while the meal is still being served. Those who proceed into the mess hall are called to attention while the senior cadet presents the corps to the officer in charge. Then they are ordered to "rest," a position that requires them to remain standing, but not attentive.
A brief, nonsectarian, inclusive blessing is then recited over the loudspeaker by a cadet. . . After grace, the cadets continue with their meal.
VMI requires no participation in this grace. There is no mandatory head bowing, hand folding, eye closing or other manifestation of a prayerful attitude. In fact, cadets at rest can talk quietly, eat, drink . . . in short, disengage from the point in the ceremony where the prayer is recited. They are merely expected to remain standing until the ceremony is concluded. Such deportment is similar to what will be expected of them should they choose a military career; and it is a mark of respect that we would expect of them in any civilian setting.

I agree. The fact that the cadet can disengage from the prayer and may even begin eating and drinking -- thereby manifesting non-participation -- means the practice should be allowed, even though it is taking place on a state school.

What a contrast from Berkeley.

Church and State I. This article in a small Kansas publication notes a speech by a Christian activist notes

that original manuscripts and artwork showing the founding fathers as men of faith are systematically being lost or locked away.
In some cases, altered representations of the material is being passed off as original. And the alterations all remove references to faith or religious belief.
[Catherine] Millard said her research has uncovered enough instances to prove a pattern of quiet government censorship that tends to support more recent historical revisions portraying the Christian historical figures as either non religious or degenerate.

I seem to recall a former classmate of mine did some research along those lines and came up with similar findings.

testing don't know if this will get through -- having trouble today, both posting and opening the page.

More sanity. Louder Fenn has a couple of great insights on the porn discussions. I particularly liked this thought:

While evidence of damage can alert us to and help us establish the badness of a thing, such evidence -- whether anecdotal or statistical -- is never determinative. A thing is bad not because it causes damage; a thing causes damage because it is bad. Proving damage is only subsidiary to proving badness. In other words: It is the philosophical and moral proof that matters in the end. Convincing others of that proof is especially hard these days, since so many people believe no more than: "Moral = Pleasing; Immoral = Painful." But that is only the Philosophy of the Animals and we are all of us better than that.

I, for one, am looking forward to a next installment, Mr. Fenn.

Problems I seem to be having problems with Blogger and/or blogspot this morning.

Golden at Last. Now that the Olympic officials have rectified a wrong, it's time to do the same for Roy Jones, Jr.

Concur on ROE. I'd like to concur with Prof. Reynolds comments on having attorneys involved in the application of the Rules of Engagement ("ROE"). If I disagree, it would be in also having lawyer write them. The last thing our Marines need to be carrying when they hit the beaches is the frickin' IRS code. Of course, maybe that's what happened at Tarawa, not the tide and the reef.
It happens that I am currently reading an interesting novel on the ROE in Somalia in December 1992. More on this book later.

Slavery and States Rights, II Tennessee Volunteer Rich Hailey and I are in mild disagreement regarding the proximate cause of the Civil War. As you may recall, I took issue with "so-called libertarians who... defend the [C]onfederacy and states rights, all of which were argued so that a government could maintain a system of laws whereby one man could enslave another man." I believe that slavery, not states rights were the proximate cause of the Civil War.

Hailey responded

State sovereignty was an issue long before slavery became an issue. Remember, nullification was raised as an issue over tariffs, not the slave trade, and it was a very close fight. The Union chose to portray slavery as the issue driving secession, as it gave them a semblence of the moral high ground. As long as the fight was about slavery, Lincoln could keep support for the war. When the issue drifted to State sovereignty, the war lost support. Slavery was an issue, and an important one, but it was not the proximate cause.

I agree that nullification was about tariffs and the Kentucky and Virginia Resolutions, which laid the groundwork for nullification, was in response to the passing of the Alien and Sedition Acts. However, we still disagree over the proximate cause issue. If the States had left the union at the end of the 18th century (not that there was any threat of that), the proximate cause would have been the Alien and Sedition Acts and the vehicle for departing would have been the theory set forth in the Va and Ky resolutions. Similarly, in 1832, had South Carolina withdrawn, the proximate cause would have been tariffs and the vehicle would be nullification. In the civil war, it was slavery, more particularly the foreseeable abolition thereof, which prompted the States to climb in their vehicle and depart from the Union.

Any way, that's the way I see it, but I've lived in Northern Virginia for a long time -- and NoVa hasn't been considered part of Virginia since the feds seized the Custis-Lee mansion.

And one more thing. Isn't in correct to say that if the individual States have any power and authority, they draw it "from the consent of the governed?" The source of the power and authority of the Constitution of the united States is set forth in the very first clause: "We the people of the United States..." When I read the different documents mentioned above, as well as others, I see reference to this source. For example, in the South Carolina declaration of 1832, the state sets forth the source of its authority: "We, therefore, the people of the State of South Carolina, in convention assembled..." However, we all know that the assembly was only selected by a portion of the adults residing in South Carolina. Specifically the free males. So how valid does that make any declaration of secession?

It is argued that individual States have the authority to withdraw from the Union. The first state to secede from the Union, South Carolina, in its Declaration stated:

The people of the State of South Carolina, in Convention assembled, on the 26th day of April, A.D., 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other slaveholding States, she forbore at that time to exercise this right. Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue. [emphasis added]

Further on in this Declaration, SC states:

They further solemnly declared that whenever any "form of government becomes destructive of the ends for which it was established, it is the right of the people to alter or abolish it, and to institute a new government." [emphasis added]

Similarly, Georgia began its Declaration: "The people of Georgia having dissolved their political connection..."

Now, it would be nice to say that Mississippi also began by talking about people of Mississippi, but they didn't. Instead, the Mississippi Declaration in the second paragraph advises us:

Our position is thoroughly identified with the institution of slavery-- the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization. That blow has been long aimed at the institution, and was at the point of reaching its consummation. There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin.

Texas does return to the "people" formulation, but also adds in its declaration:

[Texas] was received as a commonwealth holding, maintaining and protecting the institution known as negro slavery-- the servitude of the African to the white race within her limits-- a relation that had existed from the first settlement of her wilderness by the white race, and which her people intended should exist in all future time.
* * *
In all the non-slave-holding States . . . based upon an unnatural feeling of hostility to these Southern States and their beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of equality of all men, irrespective of race or color-- a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of Divine Law. They demand the abolition of negro slavery throughout the confederacy, the recognition of political equality between the white and negro races, and avow their determination to press on their crusade against us, so long as a negro slave remains in these States.

I should have started off quoting these, instead of looking at them at the end. Maybe it's because it's not an area I spend a lot of time on. Anyway, I think I'm right when I say the proximate cause of the Civil War was the institution of slavery.

More Baseball. (Isn't it time for pitchers and catchers yet?). Brer Orrin Judd disagrees with my choice for best baseball novel(s). In his opinion (links to his reviews), the Kid from Tomkinsville series by John R. Tunis, Shoeless Joe by W. P. Kinsella, the Southpaw series (including: Bang the Drum Slowly) by Mark Harris, Universal Baseball Association... by Robert Coover, You Know Me, Al by Ring Lardner and The Year the Yankees Lost the Pennant are all better choices. I have not read all the above books, but I do agree that Shoeless Joe is a wonderful book. However, I would pick the Iowa Baseball Confederacy, also by Kinsella, as my third favorite book.

So let me give you a short explanation for my top three, and you'll see that I am subjective enough to be an international skating judge (although not significant enough to be pressured). When I was a pretty young kid, I remember thinking 'wouldn't it be fun to re-write the King Arthur Story as a baseball story. I didn't find out that Bernard Malamud had pre-empted me until I was a junior in high school, when I had a friend who became a Malamud fan after reading The Fixer. Malamud's book was far different than what I had been contemplating, but I fell in love with it. So many highs and lows and wonderful devices like Wonderboy and Pop Fisher. In any event, based on his review of the Natural, I don't think his dispute is my picking that one, rather it is picking The Great American Novel by Philip Roth. Now I concede that the book has its critics and its flaws (see the NYTimes review for an example of a mild critic). But it is so packed with baseball history, legend, and lore, a rollicking story line, and zany humor, that I love it. Not to mention the subtle and not-so subtle fun it has with literature in general (one of the key players is Gil Gamesh, get it?). The opening lines poke fun at Melville, ("Call me Smitty."), there's a brief essay (or a long monologue) on triples by Luke Gofannon, and the Wandering Ruppert Mundys. Almost every page had me laughing out loud -- and I was constantly flipping through a baseball encyclopedia to check his references (but it's fun -- and accessible without that).

Okay, my third choice is also kind of sentimental. My mother is from Iowa City, IA, from which you take a short ride on the baseball spur to Onamata (once known as "Big Inning"), the fictional city where The Game takes place. The Game is an epic exibition game between the all-stars from the local baseball league and the Chicago Cubs on July 4, 1908. It seems that in Johnson County, Iowa, there are "cracks in time... weaknesses, fissures..." and through one of these, Gideon Clarke and his best friend, Stan, go back to that game -- the game that lasts over 2,000 innings (and over 40 days). There are all kinds of wonderful Iowa City references, (Pearson's Drug Store "Tall chocolate malts, thick as cement, served in perspiring glasses" and the Black Angel, to mention but two) and Kinsella's writing is lyrical:

"If you're lucky, in a lifetime you get one moment in which you'd like to live forever," my father said each time he recounted the story to me. "One moment when you'd like to be frozen in time, in a landscape, a painting, a sculpture, or a vase. That was my moment. If I had it all to do over again, Gideon, I'd do it the same way. Even if I knew then what I know now."

BTW, like the main character in Shoeless Joe, I often wanted to track down and elusive author, although in my case, it wasn't Salinger, it was Kinsella himself. I keep thinking the W.P. must be the same as my W.P. -- William Patrick.

Prosecuting Slobo. Robert Harris (is this the novelist who wrote Fatherland and Enigma, among others?) writes comparing the trial of Slobodan Milosevic with that of Hermann Goering.

Convicting Goering turned out to be much more difficult than the Allies imagined, as Harris indicates. This surprised me when I researched the Nuremberg trials. I have long been a fan of (Justice) Robert Jackson and had the opportunity to watch about 5 or 6 hours of videotaped cross by Jackson (with captions) and was dismayed at how poor Jackson turned out. I kept thinking I could do better than this. But litigating can be very difficult -- I agree with Harris, this is going to be a difficult prosecution (well, unless you have the international skating judges at the Hague).

Valentine's Day, India, and a bank. This morning, a co-worker who is from India asked me about the origins of Valentine's Day. I vaguely recalled it was related to a very early Christian martyr who had sent love letters to his family, or something. He asked because he said that he was watching several news reports from India on his new satellite dish and saw reports of "fundamentalists" protesting the appearance of Valentine's Day in the larger cities. He indicated that he thought it wasn't so much a protest for religious reasons as it was cultural -- concern about the dilution of culture.

I'm probably burying the lede, but I think satellite dish TV is going to have a big impact on culture in the future. My friend said that he can now get at least three channels from India (IIRC, they were Zee TV, Sony, and Bollywood). At the very least, I think it will have a greater impact than the Enron debacle, despite what former Enron adviser Paul Krugman says.

By the way, does anyone remember Penn Square Bank? I was in Oklahoma city last November and had lunch at a shopping mall in Penn Square, when it dawned on my that this was the location of the bank that nearly took down the banking system. Yet how many remember Penn Square today?

The Bus Froze. Waylon Jennings, who gave up his seat on the plane 43 years and 10 days ago, just passed away. Rest in Peace.

Still Out. But skimming through Kathy Kinsley's blog, I saw the link to Eve Tushnet's mention of Phillip Roth. Which means that I have to put in a plug for Roth's The Great American Novel, which, in my opinion, ties with Malamud's The Natural for the Best Baseball Novel ever.

Out for a little bit. Tuesday nights are very busy for me, then tomorrow is Ash Wednesday (the day that Christians burn all their porn, accounting for all those ashes. v/b/g). And Thursday is Valentine's Day. I might be in and out, but if not, that's why.

Oh, and Friday is Susan B. Anthony Day, so I'll need to get together with the Radical Left Feminists to think up new ways to bedevil everyone.

Porn Redux. First, thanks to Kathy Kinsley and Natalija Radic for their responses to Kevin Holtsberry's thoughts on pornography. I'm also grateful to be included in the discussion (and not just to get hits, although that's always nice, isn't it?). Without meaning to sound like a Weekly Standard parody, I appreciate the point raised by Kinsley, and echoed by Dale Amon, that it's interesting to see two men attacking porn and two women defending it. However, I think that Amon's relegating all those oposed to pornography as either Radical Left Feminists or Extremist Right Christians is simplistic (but I agree with his comments about Tom Lehrer).

Okay, now let me respond directly to Kinsley. Her inital comments are directed to Holtsberry, so I'll pass on those, with one exception. She writes

I think the whole disagreement between Kevin and Natalije really hinges on her statement that "the truth is that sometimes sex is the banquet at the wedding feast and sometimes it is just a quick trip to McDonalds." I see sex the same way Natlije does, as a natural human urge -- not sacred. Kevin sees it as something sacred, and understandably sees pornography as -- essentially -- blasphemous.

Perhaps this is the case -- I'll let Kevin take that on. However, perhaps there's a third way. To quote ("I always have a quote for everything, it save original thinking" - Dorothy Sayers) G.K. Chesterton: "All healthy men, ancient and modern, Eastern and Western, know there is a certain fury in sex that we cannot afford to inflame, and that a certain mystery and awe must ever surround it if we are to remain sane." Elevating sex to the level of the sacred will lead to the error that Kinsley mentions. (As an aside, I have the same problem with elevating the flag, the state, mom, apple pie, etc. to the level of the sacred.) Yet, perhaps dropping sex to the mundane will cheapen it. Does it really have to be as common as puddles after a rain?

Ms. Kinsley doesn't like my definition of pornography; as to where I got it, I did include a link to show where I got it from -- http://dictionary.law.com/definition2.asp?selected=1551&bold=pornography -- the legal dictionary at law.com. Yes, I did choose it because it was most supportive of my argument -- but I also thought it was the most detailed and least euphemistic. Pornography isn't limited to just gauzy photos of beautiful men and women. It extends out and encompasses pictures and writing of bestiality, incest, rape, degradation, humiliation, domination, dismemberment, excretment and probably a few other fetishes that I'm leaving out.

I have encountered people who have had their lives wrecked by pornography. Yes, you can dismiss that as "anecdotal evidence," I guess I see it as testimonial evidence and we disagree. I understand you need more for persuasion. I understand. Perhaps I will gather it -- perhaps not. Perhaps I should ask what level of evidence, if any, will persuade that some pornography is bad. Or would you persist in labeling it all good?

Last, as to Radic's statement that "...women overwhelmingly agreed with me whereas men were more evenly divided," I might guess that has to do with the way we are hard-wired. Maybe men and women react differently to it, and that accounts for the differing reactions.

Anyway, thanks for listening.

Sweet Sweep. Hail to Powers, Kass, and Thomas.

And, in other sports news, why would anyone want to coach in Tampa Bay? I mean, they fire a guy that took them to the playoffs consistently, then their ownership plays games with their coaching prospects. Sheesh.

Libertarians ♥ Slavery? Now, having made clear my great affection for libertarians, it's time to return to the fray. In a post today on Samizdata, Johnny Student makes the following statement:

6. The US Civil War started over the role of the state versus the role of the federal government – not slavery.

Okay, let me be clear -- this is the sixth point of the argument that JS makes -- and some of these points have subpoints. I know the argument y'all are making -- I've read it all -- the Articles of Confedration, the Constitution of the Confederacy, with its line item veto, six-year presidential term, and ban on international slavery (yes, it's in the Constitution - Art. I, Sec. 7). I'm deeply familiar with Calhoun and nullification and all that.

Nevertheless, it is impossible to deny that slavery was the proximate cause of the Civil War.

But that's not my immediate concern. My main point is I can never get over the number of so-called libertarians who will defend the confederacy and states rights, all of which were argued so that a government could maintain a system of laws whereby one man could enslave another man. Please, you can argue all that other stuff, just don't defend the right of the government to defend slavery and try to call yourself a libertarian. You don't love liberty.

[update: In my fatigue last night, I made a horrible error, which I amended.]

I ♥ Libertarians. Please don't get me wrong. Despite my seemingly endless anti-libertarian posts of late, I really love libertarians. First, libertarians never try to impose their belief system on you. Sure, by nature they might want to, but once they've become a full convert to it, they won't impose it on you. Second point, God is a libertarian. But that's the subject for another day.

I think the reason for so many of my posts in opposition of late is that I do spend a lot of time considering that particular point of view -- I don't really waste much time at left-wing blogs, or right-wing blogs. So, if I seem to harp on it, maybe that's why.

Bloody Gold. This story gives a new meaning to blood doping. I think it has to be a really sick form of an urban legend.

What were they thinking? When I read that a federal judge had to issue an order permitting a 5-year old to say grace before her meal at a government school, I must conclude that the ACLU and its band of overzealous bigots, er, lawyers have too many school boards and teachers unnessarily cowed.

Porn is bad. To recap, Puritan (j/k) Kevin Holtsberry wrote a note setting forth a brief argument explaining "Why porn is bad." in which he started off writing "Porn is bad because it is a unhealthy, unnatural, and often dangerous business that leads to emotional and often physical damage." He concluded by stating

Now, I am not advocating making every type of pornography from Playboy to strip clubs illegal but I do think that a society that welcomes porn as if it were just another lifestyle choice is deeply unwise and its aquiessing in its own destruction.

To which, Natalija Radic responds (albeit without the courtesy of noting the name of the person to whom she is responding):

Porn has been around longer than written language. It has been around since humans first started drawing on cave walls. If porn is unnatural, then so is writing and agriculture and high heels and teddy bears and antibiotics. As for causing emotional and physical damage, you could just as easily be describing most close personal relationships, or football, or being a war correspondent or riding a horse come to that. Are these also things to be 'discouraged'?.

And then she concludes her rant thusly:

I don't have a problem with pornography because unlike many conservatives and their socialist-feminist friends, I do not have a problem with the reality of human nature. I just wish those conservatives and their statist allies on the left would stop trying to use the force of law to impose peculiar world views on everyone else.

Both Holtsberry's and Radic's essays should be read in full.

I have three initial problems with Radic's defense of pornography. First, she confuses sex (or sexual relations) with pornography. Second, she assumes everything natural is also good. Third, she makes a jump to "force of law," which Holtsberry explicitly disavowed.

In the first place, porn or pornography is derived from the Greek pornographos, an adjective, "writing about prostitutes, from pornE prostitute + graphein to write."
Pornography is defined as

n. pictures and/or writings of sexual activity intended solely to excite lascivious feelings of a particularly blatant and aberrational kind, such as acts involving children, animals, orgies, and all types of sexual intercourse. The printing, publication, sale and distribution of "hard core" pornography is either a felony or misdemeanor in most states. Since determining what is pornography and what is "soft core" and "hard core" are subjective questions to judges, juries and law enforcement officials, it is difficult to define, since the law cases cannot print examples for the courts to follow.

It is understandable that Radic would rather define pornography as Playboy and Vogue as opposed to bestiality and the rape of underage children. Because if she does so, she has to go on record as saying these things are "not bad." Remember that Holtsberry's original point was that "Porn is bad"

Second, by assuming that everything occurring in nature is good, Radic has to assume that war, famine, pestilence, and NFL referees are all good. In Radic's world everything is good and only "conservatives and their statist allies on the left" are evil (being things that don't occur in nature, I assume). Holtsberry, in his response to Radic, addresses her contention noting "Evil entered the world early and has been here in abundance ever since. Murder has been around since the beginning, but I hope Natalija is not set to defend it."

In her conclusion, and my third objection, Radic seems to have kicked in some sort of libertarian autopilot so she could go get the latest issue of Vogue. I hope Ms. Radic will respond with a degree of honesty that Holtsberry's two post demands rather than with a phoned-in off-the cuff statements. Show us that you are worthy of the faith that Instapundit vests in you.

Update. Ms. Radic has a response to Mr. Holtsberry's response. Two additional points, one minor (unless you are Kevin, I guess). The minor point is that she still doesn't acknowledge the original author. My more substative concern is that she still does not acknowledge some pornography can be bad, which was the point Mr. Holtsberry was originally making. Look, I don't want to ban food, but I acknowledge that some foods can be bad. Can't you at least go that far Ms. Radic?

Aside: Do you think that maybe mentioning Britney Spears and porn will boost my numbers?

Buckley on Scalia. When the elder Catholic and Conservative thinker takes on the younger Catholic and Conservative thinker, it's important. Read what William F. Buckley has to say here.

One side note, at the conclusion of the essay Buckley asks whether prospective "jurors who are Catholics should be asked if their faith would affect their reasoning on whether a defendant should be executed." It's my understanding that this can currently be done pursuant to Wainwright v. Witt, 469 U.S. 412 (1985), where the Court held that the standard for excluding a juror because of his or her views in opposition to the death penalty is "whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Id. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).

Follies. Shortly after the 9.11 attacks, I was at a seminar in which the head of OSHA (John Henshaw) spoke. He noted the difficulties of imposing OSHA rules on the rescue and recovery efforts. Basically, he indicated that while an emergency search and rescue situation was in effect, the more stringent rules would not be applied. However, once it switched to a recovery phase, the rules would be back in place, to protect the workers. Sometime after the seminar, I saw the switch take place and the number of workers, firefighters in particular, were curtailed at Ground Zero. What surprised me was that the media covered it as if the Guiliani and Bush administrations were denying the firefighters the right to honor their fallen colleagues. There was no mention as to why this policy was imposed, nor that it was an OSHA driven policy. (If the media were GOP staffed, I'm sure the angle would be those faceless, heartless bureacrats at OSHA deny . . . etc.)

So now, why am I not surprised to see that a number of these firefighters have filed claims against the city.

Britney Spears. There is a wonderful parody -- let's all link to it -- at the Weekly Standard regarding blogging. Is it true that mentioning Britney Spears will increase the number of hits?

Update. Apparently not.

Put Up. ...or shut up? No, I wouldn't go that far. But I would really like to hear why our beloved Instapundit thought Robert Bork was properly rejected from the Supreme Court. What standard does he apply? From this very brief quote: "I thought that Robert Bork deserved to be rejected. It's not because he's an original-intent scholar, but because, despite his claims, he's really not an original-intent scholar." Prof. Reynolds seems to think that only originalists need apply.

Conversely, I remember when I was in law school, I got in an argument with one of my professors (Anita Hill, btw, how's that for irony) over Bork. This was during the Scalia nomination and she opined that Bork would be next and I said he would be terrible. I based my opinions on left-over hatred of him regarding the Saturday Night Massacre. Prof. Hill, who'd had Bork as an instructor at Yale, didn't really argue philosophy so much as she argued that he was a decent man, an exceptionally bright and considerate lawyer who would hear all sides and render "equal justice under law." I was eventually persuaded to her side and was crushed when his nomination was so politicized and he was rejected. It's still a very sore spot with me. Moreover, I believe the 'tipping point' in his rejection goes back to the Shapiro Conjecture. If Roe v. Wade wasn't an issue, Bork would have been confirmed.

Anyway, all this is a lot of spilled electrons -- I just want to know what objective criteria Prof. Reynolds would apply to a judge -- and if there's a different criteria for the Supremes and the minors. Think carefully, prof. your future nomination could be in the balance. [G]

Quasi-Update. Just had an e-mail response, so there should be more next week.

Light the Torch. This is so cool -- yesterday, reading Rich Hailey's blog, he had an item about the lighting of the torch. So I thought about it and finally, about a half hour after NBC started broadcasting, I decided what I would if I were in charge would be to have the 1980 Olympic Hockey team do the lighting.

I'm embarassed to admit that I called it a night long before the actual lighting.

Olympics. As I said, I love the Olympics -- I always have. The Winter Olympics less so, admittedly, than the Summer Games, in part, because they seem so European. And don't give me any of that crap about brotherhood, part of the reason I always liked the Olympics was it gave me a chance to watch someone whip the Soviets. It's a heritage that runs back through Melbourne 1956 and the blood-red pool in Water Polo, where the Hungarians, recent hosts of Soviet tanks, were ahead of the Russians 4-0 before the contest was suspended. It's almost a shame they're gone. Anyway, I'll probably be posting a little less frequently during this period (or more so, perhaps, if there's controversy).

More. Part of it goes back to when I was a boy, living at Camp LeJeune, I remember seeing two of the Olympic Boxers, dressed in their USA sweats from the 1972 team. For me, that was one of the things that really brought it all home. These were just regular guys, a few years older than me.

Benefits for the Unborn. There is a letter to the WaPo today by Tommy Thompson, Sec. of HHS, explaining the decision to provide benefits to the unborn is historically consistent -- that for over a half-century the government has provided benefits to the unborn. He concludes: "This is not a debate about abortion, and those who seek to advocate for children should stop making it so."

No Victims Here. Prof. Reynolds today praises the Clinton administration for scaling back on pornography prosecutions, calling pornography a 'victimless crime.'

This is simply not true. If your idea is pornography is Playboy magazine, that's one thing, but it's just not that simple. You can not begin to imagine the number of people who have been victimized by pornography.

I modifed my response, because of the passion I felt when initally writing. I have met too many people who have been devastated by pornography. It's not victimless -- that's a myth.

Who Belongs? There's a good essay in The Chronicle of Higher Education by the pseudonymous Thomas Hart Benton, a self-described "ex-urban, ethnic, working-class Roman Catholic," who is now teaching at "a medium-sized, Midwestern, liberal-arts college ... affiliated with a moderately conservative Protestant denomination." He writes that when asked in informal conversations where his family goes to church the response to "We're Roman Catholics," was treated as if he said "...we belonged to the Cult of Kali and attended the Temple of Doom."

This is not unusual. And the reverse can be true for moderately conservative Protestants thrown into the Catholic world. (For example, at a Catholic wedding when reciting the Lord's Prayer/Our Father/Pater Noster, all the Catholics come to an abrupt halt at "...deliver us from evil" while the Protestants trail off saying "For thine is the kingdom..." [feeling, I'm sure, like the Pope is going to come throw them into purgatory.])

In that spirit, consider this quote from Robert MacColl Adams (1913-1985):

Who belongs to the Church? Who is my true brother? We cannot always tell whether or not a man believes in Christ; but we can always ask -- Christianity is not a secret society. And if a man says he loves the Lord, why should I not treat him as my brother? If I should happen to welcome one who is only a professing Christian, who has not given his heart to Christ, what harm has it done? I will have offered the love of God to one who rejects it, and I will have given a few hours of my life to an enemy -- but our Father holds out His hands all day long to a rebellious people, and our Savior gave His life for me when I was His enemy.

-from "Receiving One Another"

BTW, the Chronicle essay is more about more than just what I noted, and should be read in full.

Confirm Him. On May 9, 2001, President Bush nominated Miguel Estrada to serve as a Judge on the U.S. Court of Appeals for the D.C. Circuit. As of today, there has been no hearing on this nomination. Mr. Estrada has been waiting for 274 days now, with no hearings in sight. Part of the reason is the obstructionist tactics of a clique of very old men who are seeking to impose their will on the country. Part of it is the desire of far left groups to throw sand in the wheels of justice, hoping to delay all hearings as long as possible to prevent the confirmation of Bush's conservatives and moderates. The fewer who are confirmed means the more open seats in the long run -- seats they hope they can pack with their people. The problem is that there is just no basis to reject these nominees, so they invent things. The left-wing group, Alliance for Justice, has a hit piece on Estrada, if you want to read the worst his enemies can find to attack him.
Complicating things for these groups and their senators are honorable men and women, also on the left, who see the injustice of delays. For example, with Mr. Estrada, Ronald Klain, former Chief of Staff for Sen. Albert Gore, has written to Senator Leahy on behalf of Mr. Estrada testifying as to his honor and merit.
Personally, I don't know anything about Mr. Estrada's views on anything. I do know that this delay in merely holding a hearing is unconscionable.

Come senators, congressmen
Please heed the call
Don't stand in the doorway
Don't block up the hall
--Bob Dylan

More on Judicial Nominations. There is also an attack on a nominee by Bob Herbert in this morning's NY Times. Andrew Sullivan has two great notes on this nominees, plus links to the differing articles. When you compare the smears with the facts, the lack of credibility of these extremist groups, like People for the American Way (they must equate the American Way with lynching), is exposed.

It's no big deal. "I'm going to speak out in defense of Attorney General John Ashcroft. He's getting batted around by Maureen Dowd in the New York Times and by others who say he's turned out to be that wing ding fundamentalist Christian prude they all predicted he would be." says John Gibson of Fox "Well, I think Ashcroft is right. I know something about appearing before thousands of people. Do you see me sitting here competing with any bare breasts? No."

And I still think this says more about his critics, who are willing to leap on the smallest things to try to discredit him. Although he should give his next address from that room with the curtains down.

I ♥ the Olympics. That's it, I just disagree with those who dislike it.

Continuing. The Shapiro Conjecture continues to receive support. ABC News reports the abortion dogs are attacking Bush judicial nominee Charles Pickering as being "anti-choice." See also: this report by Byron York.

Once again, Gilbert Keith Chesterton: "What is the good of telling a community that it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people." [Heretics]

DC Update. As best I can tell today the talk in DC isn't the budget or terrorism, it's the Redskins new uniforms. Also, there's a good article in the WaPo about one of our suburbs, straight out of the Coen Brothers.

Scalia, Part III. Continuing our discussion, Rich Bailey writes (in part, read what he writes, he's very good) "if a judge declares his opposition to any law, and acts in a manner to circumvent that law, then he should be removed from the bench, no matter what his reasons are." It appears that Scalia is in agreement with this statement. According to this from Kathryn J. Lopez, of NRO:

...what Scalia said in regard to Catholic lawyers resigning is that if a judge is going to reject the death penalty as a matter of law, then he should resign: According to USA Today, he said in answering a student’s question, "In my view, the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty." Scalia said that "any Catholic jurist (with such concerns) ... would have to resign." He said that "You couldn't function as a judge" if you were going to choose to ignore the law. I'm not sure he can be faulted for that. If you reject the law, and believe it is against Divine Law then there is a legitimacy question in your mind about the very law you are sworn to uphold. So yeah, resignation would be called for if you are a judge and have made that choice.

Tear Down That Wall. For too long, there has been a selectively maintained wall around a myth. I'm speaking of the "so-called Red Scare" in Hollywood. Yes, there have been breaks in the wall and the light of truth has been let in, here and there. But the Wall still stands, carefully maintained by the myth-makers of tinseltown. Perhaps, with the publication of this essay in the LA Times, Hollywood will be forced to confront the reality. There's also a great quote from Arthur M. Schlesinger Jr., which I had not seen before: "Stalin probably killed more innocent people than Hitler did, but the defenders of Stalin, unlike the defenders of Hitler, were somehow deemed within the circle of civilized people"

Axes to grind. This is pretty cute.

New War. The National Post has a good editorial, first setting forth the problem faced by nation states in dealing with terrorists, then proposing the need for a new rubric for dealing with terrorists. Here's the concluding paragraph:

What is needed is a new legal rubric for fighting terrorism -- one that properly accounts for the hybrid military/criminal nature of terrorism and that does not encumber Western governments with a confusing welter of overlapping legal precedents. While, fortunately, Western nations will prosecute the war against terrorist groups regardless of what roadblocks international lawyers seek to erect, it would be better if an obsolete legal baseline did not offer NGOs and other nations -- each with their own diplomatic and political biases -- a platform from which to criticize, erode support for and otherwise hobble the just prosecution of a wholly new type of war.

Basically, the fundamental concern is separating the wheat from the chaff. We need something which protects those under attack while not going astray and losing the principles of the righteous.

Personal Justice. It seems that Justice Scalia's comments have provoked a full scale essay by the AP -- coming to your local papers?

Some of the observations:

Other justices have also talked openly on that subject and others.

-- ``After 20 years on (the) high court, I have to acknowledge that serious questions are being raised about whether the death penalty is being fairly administered in this country,'' Justice Sandra Day O'Connor said in Minnesota last summer.

-- Justice Ruth Bader Ginsburg brought up similar concerns in a speech last April. ``I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution applications in which the defendant was well represented at trial.''

-- Justice David H. Souter told Congress in 1996 that ``the day you see a camera come into our courtroom, it's going to roll over my dead body.''

-- Scalia told a group in Mississippi in 1996 that Christians should assert their faith even if intellectuals dismiss them as simpleminded.

The Shapiro Conjecture. The AP is reporting that new Democratic whip Nancy Pelosi chooses to make her first speech on the subject of abortion. Yet another instance of Roe contaminating American polictics and giving more support to the Shapiro Conjecture.

Indictment. So, John Philip Walker Lindh, a/k/a "Suleyman al-Faris," a/k/a "Abdul Hamid," has been indicted. Rocket Docket, here we come.

Blame it on Providence. That's the jist of Michael Novak's explanation as to why the Patriots won the Super Bowl. Did Providence also blind Walt Coleman?
More: Will McDonough on why it was a good call. (I mean, besides being a Boston sportswriter.)

Scalia on a Judge's Duty. I'm still thinking about this one. It appears, from this AP report, that Justice Antonin Scalia believes that if a Judge follows the teachings of his (or her) church, and it is in conflict with the law of the land, he (she) should resign. The article notes:

In Chicago on Jan. 25, Scalia said, "In my view, the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty."

Scalia said Monday that "any Catholic jurist (with such concerns) ... would have to resign."

"You couldn't function as a judge," he said.

Personally, I've always been intellectually opposed to the death penalty -- in short, that shouldn't be a power we give the state, but I've never been able to go with the Brennan/Marshal/Blackmun view that it's unconstitutional. I mean the Constitution expressly mentions it. Therefore, a judge shouldn't try to vitiate an express provision of law, just because it goes against his personal beliefs, whether grounded in a church's teaching or some other source.

Like I said -- I'm still thinking.

More. The transcript of the Chicago Conference, mentioned in the article, is on-line.

Still More. Rich Hailey writes that Scalia should "renounce[] his faith as a Catholic, since he willfully acts against the tenets of that faith." Hmmm, but is this a matter of faith and morals? Or is this a teaching that it is okay to dissent from and still remain in the good graces of the church? I mean there are plenty of politicians who are Roman Catholic and pro-choice. As far as I know, Senator Kennedy, for example, has never been denied communion because of his pro-choice votes. Still More. Here's a quote from Scalia at the Chicago conference:

So I am happy to learn from [Cardinal] Dulles – and I have had the same advice from other canonical experts – that the statement contained in Evangelium Vitae – assuming it means the worst – does not represent ex cathedra teaching; that is, it need not be accepted by practicing Catholics, although they must give it thoughtful and respectful consideration. Indeed, it would be remarkable to think that it was an ex cathedra pronouncement, that a couple of paragraphs contained in an encyclical principally devoted not to capital punishment, but to abortion and euthanasia, were intended authoritatively to sweep aside two millennia of Christian teaching.

For the reference about Cardinal Dulles, see Catholicism & Capital Punishment in First Things.

Lay Agnostic. I don't really have a strong opinion regarding Lay's refusal to testify. On one hand, I think all the Enron folks should face the music -- but are the different congressional chambers the right place?

More superlatives. Since I seem to be handing out lot's of 'bests,' why not include U2's performance at half-time, which was the best I'd ever seen. There was this from Andrew Sullivan, that nailed my thoughts:

I was particularly transfixed by U2’s performance. This is a group not known for its conservative politics – but they showed that a liberal politics is completely consistent (or should be) with a hatred of terrorism, a deep patriotism, and a love of what America stands for. I choked up a little. At the same time, I couldn’t help but feel a little uncomfortable at the sight of cheering, grinning pop-fans going wild beneath a huge graphic detailing the names of those killed by the terrorist murderers of September 11.

To which another reader commented:

I thought it was a beautiful gesture to scroll these names, and then the crowd started cheering, and U2 egged them on. And then I was even more disgusted when they cut the list short. (around the late Cs if I recall) But then a friend of mine made a comment - The Super Bowl was THE target last night. If a terrorist could have attacked anywhere in the world, that would have been the crown jewel. And all of the thousands present knew that. Their cheering was a taunting, a recognition that the terrorists will not stop them from enjoying a game and a show, and a tribute, though not solemn, to the people who died. They cheered because they would not let the terrorists stop them. They cheered in spite of, not in support of, terror.

Monday Afternoon QB. A couple of things -- last night Pat Summerall, I think, said that no Super Bowl had ever been decided by a field goal. But that's not true -- Jim O'Brien kicked a field goal with 5 seconds remaining to win the game for the Colts over the Cowboys in Super Bowl V.

Next, with less than a minute left in the game, the Pats had the ball 1-10 their 41, Tom Brady was under heavy pressure, could not get outside the "tight-end" box and threw the ball out of bounds to the right side. However, there was no receiver within 20 yards of the ball. Why wasn't this intentional grounding? If it was, not only would it be a 15 yard penalty, but I think they would've taken 10 seconds off the clock.

That's just a question -- I loved the way the game ended and wasn't really rooting for anyone in particular -- except for that "underdog" factor, and what I mentioned last night.

Letter from Leon? So now they're Unabombers -- anyone opposed to (or probably even qualms with) stem cell research. It seems that a recent episode of ER concerned a letter bomb that killed a man and maimed his daughter. The mother/widow disclosed the bomb was intended for her because she did stem cell research.

Devious and Dangerous. As I predicted last week, the Administration's proposal to provide benefits to unborn children is drawing fire from pro-choice extremists. In this morning's NY Times Bob Herbert calls it "A Sneak Attack" "...a guerrilla attack on abortion rights" and "...both devious and dangerous."
I do think that this proposal is being floated in the manner it is, in part, because of the desire to open a new flank in the abortion skirmishes. Nevertheless, I also think it is motivated by the Bush administration's "compassionate conservativism" and abortion warriors, like Herbert really miss the boat in opening up such a counter-attack. The Bush Administration should've just said, "Don't throw me into the briar patch." This really makes the opponents look like knee-jerk abortionists. Let it pass folks, the Supreme Court's not going to withdraw Roe, and this surely won't break it.

You can see why I mentioned that 1998 column by Walter Shapiro the other day. Maybe we should hammer Shapiro's analysis into some kind of law (or conjecture, or theorem), along the lines of Godwin's Law.

At least Herbert isn't as far gone as Paul Krugman: He could've said "I predict that in the years ahead these HHS regulations, not Sept. 11, will come to be seen as the greater turning point in U.S. society."

More. Senators Bingaman and Corazine bemoan the Bush proposal, saying it tangles things in abortion politics.

Worth Staying Up For. Last thing I was going to do was check my e-mail -- and there was a note indicating that I've received a link from the Samizdata team. Now that's worth staying up for -- I am honored. Thanks!

Great Game. So poetic having the Patriots win this year. I realized that I was hoping for a blowout, just so I (an Oakland Raider fan) wouldn't be tormented by that fumble [non-] call. What a great game -- what great playing by both teams and truly incredible coaching.

Out. Nothing today -- two sick kids.

Update. 11:06 PM EST -- the kids seem to be doing better -- I'm doing about the 18th load of laundry today and leave for work in just about 6 and a half hours. oh well.