Email. Is now back to normal.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Japanese Suicide Bombers. The idea of using children as human bombers isn't new to the PLO. A new book by Tim Maga shows that Japan considered the idea in WWII. According to this book review, the Japanese were making little bombs disguised as small ceramic pots. They intended to have their children: "offer unsuspecting American GIs these particular gifts, and then trigger the detonator as they accepted. Both the child and the American invader would be killed together."

Denver: Raiders Better. I hope this Denver columnist is right:

The Raiders will win the AFC West, just as they did in 2000 and '01. Oh, it will be a two-team race and all, but the Denver Broncos won't win it. Al Davis will. You might as well deal with it, because it's going down.

It isn't that tough to figure out. The Raiders happen to be better than the Broncos. The post-Elway Broncos have yet to win three straight games with Brian Griese at quarterback. The Raiders? Rich Gannon, a journeyman-turned-MVP candidate, has run off five- and six-game winning streaks in the past two seasons. No coincidence, just fact.

Says here the Raiders would have won the Super Bowl last year if the officials hadn't made up the rules as they went along on that snowy night in New England. The Raiders were very good then, and they're better now. Fact is, it's not even close.

Rednecks of the 17th Century. Anyone missing Ben can catch up on his essay here.

Local Race. There was a local Senate election in my district yesterday -- the incumbent GOP senator was selected by Gov. Mark Warner to be on the ABC. The race was between a former librarian/head of the PTA/school board member (Democrat) and a young patent attorney (GOP). The teachers union came out very strongly for the Democrat who ran on a platform of experience and touted all her endorsements, included the former senator, who, as I said, had been a Republican. The young Republican ran a campaign that emphasised two issues: no new taxes and the need for a pro-life prescence.

To my surprise, the Republican won a decisive victory -- 55 to 45%. In the past, the district has leaned marginally Republican, as it's a pretty middle-class segment of a very wealthy (and Democratic county). For example, while it went for the Republican in the governor's race, it has elected Democrats to the school board, to the General Assembly, and to the Board of Supervisors (it's not quite that easy to pin down the district, since all the districts are overlapping). I sort of figured the unions would get out their people for their candidate (they gave her a ton of money) and kept hearing how the GOP's unwavering pro-life message (he never shied away from this) would alienate the supposed pro-choice district.

I looked around for some commentary elsewhere -- NRO or any of the blogs, but haven't seen anything yet (I'm sure Ruffini will have something soon). I think it's a pretty big GOP victory.

Oh, and his name is Ken Cuccinelli.

Rest in Peace.

From the Daily World

Thomas Blair Jr.

Funeral services for Mr. Thomas Craddock Blair Jr., 75, will be held at 2 p.m. Sunday in Louisiana Memorial United Methodist Church in Opelousas with burial in Bellevue Memorial Park.

The Rev. Dale Hensarling will conduct the services.

Mr. Blair, a resident of Opelousas, died at 8 p.m. Thursday, August 1, 2002, at his residence. He retired from Mobil Oil Corp. after 35 years and was a veteran of the U.S. Army. Mr. Blair was a veteran of World War II having served in Japan. A member of the Gideons International, Treasurer of the Louisiana Memorial United Methodist Church and a graduate of North Texas State University.

Survivors include: his wife, Anita Amy Blair of Opelousas; two sons, David Brian Blair and his wife Jennifer of Victoria, Texas, and Mark Winston Blair and his wife Jenny of Opelousas; a daughter, Connie Blair Savoy and her husband Chris of Church Point; three brothers, Oliver Blair of New Orleans, Joseph Blair of Washington, D.C., and John Blair of Boerne, Texas; two sisters, Nancy Burke of Midland, Texas, and Mitzi Blakeley of Lubbock, Texas; and nine grandchildren, Jared, Aaron and Dylan Blair, Elizabeth and Rebecca Blair, Tyler, Brandon, Christopher and Stephanie Savoy.

Mr. Blair was preceded in death by his parents, Thomas and Elizabeth Blair; and a sister, Margaret Bennett.

The family requests contributions be made to Gideons International, P.O. Box 385, Opelousas, La. 70570.

Visiting hours were observed from 2 to 10 p.m. Saturday and will be observed from 8 a.m. today until time of services.

Lafond-Ardoin Funeral Home on the Old Sunset Hwy. in Opelousas is in charge of arrangements.

Hugo Black and the Wall of Separation. Here's a link to a story in the Washington Times noting that Justice Hugo Black hatred of Catholicism was behind his building of a Wall of Separation, whereby the State could push around religion. I meant to bring it up yesterday -- however, this really isn't a new finding. Black's hatred was well documented years ago -- I was going to cite to some passages in a bio I have of Black, but I can't seem to locate the book. FWIW, the book is by Gerald Dunne -- Hugo Black and the Judicial Revolution.

8 Years. It's been eight years since Steve Taylor released his last album -- and no new album in sight.

For the Children. For the most part, I have been agnostic about Iraq -- should the U.S. attack? I don't know.

However, listening to NPR's All Things Considered tonight while driving home convinced me that it's time to attack and end the Saddam Hussein regime. There were a series of reports -- Republicans dithering (do they do anything else?), the view from Bagdad, and so on. In the course of this pretty one-side brief against taking action against Iraq, there was a clip from someone affiliated with a group called Voices in the Wilderness* talking about the misery and hunger experienced by the average person in Iraq. Listening to this, I knew they were telling the truth, because it sounded so much like the reports from Tokyo and Hiroshima in September of 1945. You may recall I mentioned my wife's uncle passed away last week -- I spent considerable time this weekend listening to interviews with him -- oral history -- of his experiences as one of the first servicemen in Japan after the war. His descriptions of the civilians under Emperor Hirohito and Tojo were echoed in the description of the civilians under Hussein.

Therefore, it seems as though we have three choices: (1) status quo -- do nothing, either attack or end the sanctions, no-fly-zone, etc. (2) do nothing -- completely pull out and let Saddam build up his military and weapons capability again, or (3) commit to ending the Hussein regime by full war with his regime.

Under the first and second do nothing scenarios very little change will occur in Iraq for the average civilian. They will continue in want, starvation, destitution and sickeness. Under the status quo scenario, it is debatable whether Saddam will develop weapons of mass destruction. Under the complete abdication scenario it is certain he will develop and probably unleash these weapons, either directly or through surrogates.

Therefore, the only hope for the average civilian in Iraq is a full scale assault on Hussein -- completely removing him from power -- if he mets the same end as Tojo -- well, so much the better.

It must be realized that the anti-American leftists represented by groups like Voices are right that the cold war currently happening in Iraq is a military effort that is having an impact on the civilians. Therefore, it is time to end this war and get on to peace building. We need to be sending in troops to Iraq just as we did at the end of the Second World War to Japan and Germany to build peace. For the sake of the children, if nothing else.

Post Script. Are you aware that supposed right-wing military general Douglas MacArthur is responsible for bringing such liberal institutions as a free press, land reform (giving the land to those who farmed it), labor unions and women's suffrage to Japan (not to mention national disarmament)? Why not do the same for Iraq?

----
*Is it just me, or does anyone else remember when a Voice in the Wilderness referred to the one who pointed to the Messiah, not to the Butcher of Bagdad.

For Your Consideration. I haven't read this, but it looks promising. A Theologian's Brief: On the Place of the Human Embryo Within the Christian Tradition and the Theological Principles for Evaluating Its Moral Status.

Long Knives and Consent. The long knives are out for Priscilla Owen. The New Republic's Jason Zengerle writes that she should be rejected because she was chosen for having dissented in a parental notification case. FindLaw's Sherry F. Colb argues that Owen should be rejected because she does not believe a judge should rubber-stamp a minor's request for an abortion. (I have to add, Ms. Colb, that you have the dingy-est picture I have seen on the web.)

However, this Houston Chronicle article notes a lawsuit by a minor who obtained an abortion by false pretenses. [Specifically, she went to a store and got a check cashing card which stated she was 18, when she was only 17.]

Frankly, I think those bearing the long knives are really grasping at staws -- do you really want a judge who won't carefully scrutinize the law? This appears to be another distortion of law and politics a la the Shapiro conjecture.

Dates and Places. This is interesting -- this scholar places the appearance of Christianity in China sooner than "modern" Bible scholars believe the Gospel of John was written.

Who Killed Davey Moore? Bob Dylan has an old song based on a fighter, Davey Moore, who died shortly after a title fight on March 21, 1963. You can find Dylan's song on "The Bootleg Series Volumes 1-3 [Rare & Unreleased] 1961-1991" from a October 26, 1963, performance at Carnegie Hall. Dylan rounds up the usual suspects, the fans, the gamblers, the referee, his opponent (Ultiminio "Sugar" Ramos, although unnamed in the song). But he leaves out Mrs. Moore from the list of suspects (in fact, he attributes her words "it was God's will" to Ramos.)

Yet, according to this website, it may have been a mistake to leave Mrs. Moore out:

Dr. Ferdie Pacheco came to pay tribute and I must tell you that the man missed his calling. Dr. Pacheco is quite a storyteller, and a very funny man. Actually, he revealed a well kept secret, one that shocked most in attendance, including the champ.

Dr. Pacheco told us that the week prior to the Moore-Ramos duel, Moore's wife who was a very jealous woman, had hit Moore over the head with a baseball bat, following a domestic dispute. Dr. Pacheco feels that this blow was certainly a factor in the events that followed the Ramos fight and the death of Davey Moore. My question is this, why was this never revealed before? I suppose it doesn't really matter, does it?

----

In another web page, there is the following description of the fight from Dr. Pacheco:

The tenth round was pure savagery. Davey finally caved in, he fell over backwards, the back of his head bouncing crazily off the bottom strand, and then, in a kind of sling shot effect, bounced off the canvas. Davey lay there, inert, asleep, unconscious. I looked at him a few feet from me. Was he dead? All of the elation I felt after the victory, left me in a flash. The doctor part of me woke up. Was he dead? As I started to get into the ring he came to. He was sitting up. His eyes were open. He talked. He motioned he was O.K. A great wave of relief flooded over me.

Now we were in the middle of the ring. Luis,the new welterweight champion was on one side, Angelo on the other, lifting Sugar who was smiling his beautiful smile out of his lumpy face. Behind us someone had brought a Cuban flag. What a rare moment of joy. Two championships in one night.

* * *

I went back to our dressing room to a resounding surprise. All had sad, serious faces.

"What is it?" I asked Sharnik.

Mort Sharnik had been in Davey Moore's dressing room. Davey was giving a brief interview when he suddenly held his head,and said to Mort,

"I've got such a headache."

It proved to be the last thing Davey Moore said. He was taken to the hospital where he died. He was a beloved champion, and in each corner of our dressing room grown men were crying.

Water, Bread, Wine and Kids. Mark Byron has some opening comments on baptism, one I'd like to touch on more in relation to communion (or The Lord's Supper or Holy Eucharist as your tradition might refer to it). Dr. B. writes, in part,

The model in Acts has the believer, not a child, being baptized, which raises an issue for believers from child-baptizing churches. I was baptized as a child as a Methodist, but I know that the baptism was initiated by my parents and not myself, and was rebaptized in a Baptist church shortly after I came to the Lord.

My wife Eileen's in a awkward spot, being baptized as a precocious five-year-old in her Presbyterian church. Was her kindergarten faith sufficient to count as a believer's baptism or does she need a redo? Does sprinkling rather than dunking matter? Now that she's hanging out with a beleiver-baptising crowd, it's an open question. I'm letting her make that call, to get baptized when and if she feels moved to do so, rather than be pressured into doing so.

For me, the issue of a child's faith first came up at communion. Our church (Truro Episcopal, if you're curious) invites everyone to the communion table (rail) for prayer during communion and for baptised Christians who would like to parttake, the bread and wine. Our children were all baptised as infants and so around the age of two began to express interest in having communion. This caused some consternation for me -- Paul's Letter to the Corinthians lays out the seriousness and sobriety necessary for partaking in the Lord's Supper (See Chapter 11). For example, verse 28 commands ". . . let a man examine himself, and so let him eat of the bread and drink of the cup." I objected to my Pastor saying that kids aren't able to do this. "They don't understand the Eucharist."

But what did Jesus say? he asked. What did He say about the children?

And He called a child to Himself and set him before them, and said, "Truly I say to you, unless you are converted and become like children, you will not enter the kingdom of heaven. Whoever then humbles himself as this child, he is the greatest in the kingdom of heaven."

Matthew 18:2-4

Now that I am on baby number four and my oldest is 13, I've begun to see that He was right -- children do have a much better understanding of communion than do I. In fact, the older I get, the less I realize I know.

We can talk more about Baptism and things like Believer's Baptism and the Baptism of Infants another day, but I would say to my brothers and sisters to not minimize the profession of faith of a child. I would strongly, yet respectfully, argue against re-baptism of persons.

There is one body and one Spirit, just as you were called in one hope of your calling; one Lord, one faith, one baptism; one God and Father of all, who is above all, and through all, and in you all.

Ephesians 4:4-6

Cover Watch. Newsweek on why we need Heaven -- sounds like a Lennonist approach to things. I figure Heaven is there -- it's not a big motivator for me. Time magazine looks at whether the Bush administration considered hitting al-Qaeda prior to 9/11. A moot point. Nevertheless, let's assume it did -- can you imagine the howls of protest from the not-so-loyal opposition? If anyone is to blame for Bush and company holding back it is these folks who from the beginning sought to undermine and delegitimatize his administration.

Tom Blair. My wife's uncle, Thomas Blair passed away on Thursday afternoon. Uncle Tom was a good man and did something pretty unique -- he sent each person in the family a birthday card every year. And I do mean each person. Soon after I married his niece, I began receiving cards. Plus he sent them to each of our kids. He was a gentle man, a wonderful story teller.

Interestingly, he was one of the first Americans into Hiroshima after the war. He was part of the Army invasion force planning for the invasion of Japan. After the dropping of the atomic bombs and the Japanese surrender, his unit was sent to Hiroshima to clean up. As he noted, they weren't given any special equipment or protection because they just didn't know anything about the danger of radiation fall out at the time. He died of cancer which he believed was a result of that exposure to the radiation. Just a month ago we spoke at the family reunion and he said he figured he was done in by the war. If it hadn't been for the atomic bomb, he would've died in the invasion -- this way he just had a life to live and a family to raise before his number came up.

We all will miss him.