Monday, June 30, 2003

This Brave New World.

Professor Wagner at Ninomania archly observes:

Well, Rick Santorum may as well save that little list of his. It's going to be the syllabus of much of the Court's agenda over the next few years. Assuming, that is, that the Court views what it says today as binding in the future. "You can't assume a g__d___ thing in this Navy," said Capt. Queeg, or in the Court, say I.


Meanwhile, Dale Price is sponsoring a game called "just try and articulate a principled reason for distinguishing between a Homosexual's constitutionally protected privacy interest and a polygamist's constitutionally unprotected privacy interest." The early favorite offered by G. Thomas Fitzpatrick seems to boil down to "two's company and three's a crowd."

On the other hand, Arthur Silber offers this reasoning in support of the decision:

I know it's probably not a very attractive quality to admit (although on the other hand, perhaps it's simply a matter of justice), but now that the Supreme Court has struck down the Texas sodomy law 6-3, I just keep thinking how absolutely miserable and apoplectic people like Santorum and Stanley Kurtz must be. "Oh, no, everything is permissible now! The sky is falling! The sky is falling!"

I hope they're having one of the most miserable days of their lives. It would serve them right.

More after I have a chance to look at the opinions, and see what the Court said and what its reasoning was.

(A lot about Santorum and his disgusting, theocratic beliefs here...)


Elsewhere, he neatly proves Scalia's point that the Court is flushing legal principles whenever convenient for elite cultural opinion with this telling observation:

"The court has taken sides in the culture war," Scalia said, adding that he has "nothing against homosexuals."

What an unmitigated bastard. I don't suppose the invalidation of this law could have anything to do with individual rights, could it? No, of course not: it's "the culture war." Much more later.


Get it? Anyone who opposes the Lawrence decsion is a theocrat opposed to individual rights. Of course, what Scalia really said was he had no objection to homosexuals using the mechanisms of democracy to achieve their policy objectives. (The crazy, theocratic, "unmitigated bastard!!!") But, then, who needs democracy when you know the right answer?!? Oddly, that is exactly Scalia's point - if you have the right answer, you can always cut legal principles like statutory construction, stare decisis and historical exegesis to suit. It's only lesser mortals who don't think they have the final answer to social questions who presume to leave questions concerning the "ultimate mysteries of life" to the democratic system. But, hey, let's leave it to 5 out of 9 lifetime tenured civil servants. After all they will never be out of touch with Eastern Seaboard Elite Values, will they?

Now the truth is that sky will not fall. For absolutely no principled reason at all, the Supreme Court will not extend the Lawrence holding to any other private consensual relationship. Certain categories are given sui generis treatment by the Supreme Court. Abortion, AIDS and Homosexuality, oddly enough. For example, could you imagine the Supreme Court upholding a rule that prevents education about the evils of racism within 5 feet of a segregated lunch counter? Probably not, but abortion clinics are just different. Likewise, can you imagine the Court's reaction to the police moving into an anti-war protest to arrest only the Stalinists? But protests against abortion are different.

Likewise, with respect to any other medical condition before you could obtain protection under the Americans with Disability Act, you would have to show a "substantial impairment" of a "major life activity." But in Bragdon v. Abbott the Supreme Court held that a person with "asymptomatic AIDS" - in other words, no symptoms - was covered by the ADA because of her voluntary decision not to reproduce resulting from her fear of the 20% chance of passing the virus. You can therefore imagine my surprise on learning that the ADA did not cover people with, say, diabetes because they were controlling their condition through treatment and thus, oddly, had no symptoms. Further, their possible choice not to control their condition would not have been a factor in the ADA analysis of their case. Their ADA status must be considered after "mitigation." [Sort of like determining the question of whether Abbott was "disabled" after assuming that she had decided to have children.]

Like it or not, there is simply no principled basis for these decision. They exist sui generis by Supreme Court fiat. And if you don't get that, then you don't live among the elites.

Nonetheless, the Lawrence decision will be a sui generis decision. The next case for pedophiles or incest or necrophilia or polygamy will be turned down without effort, and everyone will breathe a sigh of relief.

But it's not like the Supreme Court is taking sides in the Culture Wars or anything. It's all about individual rights.






Friday, June 27, 2003

Consumer Alert

The "Fresno Criminal Lawyer" advertised at the top of the page isn't in the local directory. Looks like a "One Eight Hundred" lawyer.

Thursday, June 26, 2003

This Just In: SCOTUS Finds Long-standing Constitutional Right to Practice Incest and Necrophilia!!

For the record, I oppose sodomy laws. Since they're essentially unenforceable, they can be used abusively. Further, I am enough of a libertarian to find the idea of criminalizing sexual conduct to be distasteful and silly.

But silly doesn't mean unconstitutional. I expect the law to be developed based on neutral principles, not simply because a majority of justices have an epiphany.

I initially thought that I would list the different reasons the decision was intellectually suspect. Leading the list would have been the buggery done to the concept of stare decisis. Although this sound dry and academic, it is really serious stuff. It was not that long ago in the case of Casey that Roe v. Wade was upheld because of the "paramount importance" of the doctrine of stare decisis. The Supreme Court, we were told, had to stand firm in defending Roe lest the forces of reaction and anarchy strip away the thin red line of law and order from civilization. Settled law had to be protected because it was settled law.

OK, I thought, there's a neutral principle that I can accept. Perhaps it's silly and hysterical, but at least you can trust it not to be manipulated to suit the passing fancy. It at least meets my definition of law as something other than the whim of 5 justices. So what happened to Bowers - which had held that there is no privacy interest for non-procreative sexual activity - as precedent for the the present case? Answer: it got overruled without hesitation.

Thank God for Scalia. Scalia's dissent leads off with that same observation:

I begin with the Court's surprising readiness to recon-
sider a decision rendered a mere 17 years ago in Bowers v.
Hardwick. I do not myself believe in rigid adherence to
stare decisis in constitutional cases; but I do believe that
we should be consistent rather than manipulative in
invoking the doctrine. Today's opinions in support of
reversal do not bother to distinguish?or indeed, even
bother to mention?the paean to stare decisis coauthored
by three Members of today™s majority in Planned Parent-
hood v. Casey. There, when stare decisis meant preserva-
tion of judicially invented abortion rights, the widespread
criticism of Roe was strong reason to reaffirm it...


After ventilating the supposed diferrences between Roe and Boswick, Scalia concludes:

To tell the truth, it does not surprise me, and should
surprise no one, that the Court has chosen today to revise
the standards of stare decisis set forth in Casey. It has
thereby exposed Casey's extraordinary deference to prece-
dent for the result-oriented expedient that it is.


Which, of course, is true of Lawrence v. Garner. Thus, for example, there is a remarkable passage where Kennedy seems to imply that (a) the concept of homosexuality did not exist until sometime in the 19th century and (b) therefore, there is no historical tradition criminalizing distinctively homosexual conduct and (c) "public criticisms" against homosexual are of recent vintage such that (d) (I assume) that framers of the Fourteenth Amendment really intended to protect gay sex.

Huh????

Even if "homosexuality" as a continual, steadfast preoccupation of a self-identified group didn't develop until the late 19th Century, I rather suspect that the idea of "perversion" was understood by the Framers of the Fourteenth Amendment to include anyone who occasionally or regularly engaged in "buggery" or "pederasty." Clayton Cramer effectively demonstrate the Court's spurious abuse of history on this subject. I'll second that point with this observation - no one with an objective interest in history cannot read the Majority's decision without wincing at the semantic sleight of hand employed to find some historical precedent for its result oriented decision.

Well, I will once again issue my challenge: if non-procreative consensual sex is protected by the Fourteenth Amendment, why doesn't this principle include necrophilia and incest?

As Scalia observes, the legal system should be busy for years sorting this one out.

Wednesday, June 25, 2003

nathan lott has an even handed analysis on the problem of Episcopalians and the homosexual lifestyle.
Jonah Goldberg hits the nail on the head with respect to O'Connor's fatuous "affirmative action may be unconstitutional in 25 years" comment.

Tuesday, June 24, 2003

Stuart Buck looks at the affirmative action decision from multiple perspectives.
Mark Shea had a useful post on how to do "do-it-yourself-adult-continuing-education." So let me put this out there for people in the Central Valley. In Fresno, we have a small group that meets at the Holy Child bookstore every Thursday night. One night of the month, it is a Chesterton reading group. Another night is a Communio reading group. The rest of the time it is just people who get together to talk about philosophy, theology, literature and other stuff that you don't generally talk about once you leave college. It's relaxed, with a lot of good natured but sardonic shots taken at various participants so as to keep the whole thing grounded. [We've got to do one night devoted to "the 10 Reasons to despise Hegel" some Thursday.] Maybe it's pretentious. Perhaps, for 99% of the population, it's an egghead taffy yank. But I learn something every week. If you're in the Valley and you're looking for an occasional life of the mind, drop me a line.
Junkyard Blog notes the deafening silence in Certain Quarters about Dick Gephardt's remarkable call for Presidential Fiat to overrule Supreme Court decisions. Sure, Trent Lott talks stupid and the conservative element call for his resignation. Orrin Hatch talks stupid and is roundly criticized by his right flank. But Gephardt call for Government by Ukaze and his liberal base yawns.

Mark Byron has an insightful post that crystalized unformed thoughts that had been going through my mind when I read the Junkyard Blog post. Why the different reactions in the Lott case and Gephardt case with respect to their respective constituencies? Mark's answer is that the organizing principle for the left seems to be "Just Win, Baby." I think this is probably right. If the Norma McCorvy attempt to reverse Roe v. Wade by a stale motion had involved a liberal issue, would liberal bloggers have lauded the neutral application of legal precedent, as I did, or would they have hinted darkly at corruption and the need to "fix" Rule 60? Would there have been an ad hoc committee of historians who would have churned out a quick thesis on how Rule 60 was never intended to apply to that (hypothetical) liberal cause celebre? I sadly suspect that the answer is obvious.

"Just Win, Baby."

Monday, June 23, 2003

The end of an era.

It really is the end of an era. Thirteen years ago the "homeless problem," which had been an item of daily news for the preceding decade, could silently disappear with the election of Bill Clinton. Now, the media can't run its game of reusing the same shill for the same reliable soundbite. First, Ann Coulter unmasks "Mr. First-in-Line-loves-Hillary's-book." Now, the Media Research Center unmasks two networks use of the same woman complaining about different health ailments being adversely affected by different Republican policies.
Communio Thursday.

Last Thursday's Communio discussion group had a healthy ventilation of the subject of apparitions and holy places and what they are good for. Mike, our future seminary student, argued that apparitions and holy places are essentially useless, that holiness is found everywhere in creation, that the connection with God is found in prayer and not in things you see or places you visit, and that apparitions must have some spiritual message or meaning for the observer. Mike's argument was direct and really quite effective. Nonetheless, Jeff and I, after registering a strong provisional skepticism as to any particular claim of apparition, argued that Catholic theology does not partition the divine from the mundane. Sacraments, for example, involve a physical aspect - water, oil - and a heavenly grace. God's Will sustains the universe; He didn't simply wind the watch and leave it running. So it is not surprising to think that the sacred might manifest itself in the mundane world in apparitions without regard to whether the apparition would have meaning to any paticular observer. Likewise, although all of God's creation is holy, all of God's creation cannot be treated with identical regard, and, so, we cordone off special areas of physical reality in our churches and holy places and call them sacred. All of this furthers the middle path that orthodox Christianity has staked out, denying an exaltation of the spiritual to the degradation of the material, or of the material over the spiritual. I think our argument was deep and nuanced.

All that said, however, a deep and nuanced argument can be rent asunder by a single instance of the "image of Jesus on a tortilla." Bill Cork offers a nice extension of Mike's argument with a citation to the example of St. John of the Cross. I think Bill and Mike's essential point - that placing a priority on searching for the sensational and immediate spiritual experience is a waste of efforts - is unarguable.

Update: Overall, it was a tough day for apparitions and visions yesterday. Here is Lane Core's take on the Bill Cork post:

But I know what Bill is getting at, and I agree with him. I recall a story about St. John of the Cross. His confreres wanted to go see a famous alleged stigmatist, who was later revealed to be a fraud. They all went, but the saint thought it better to go to the seashore and read the Sacred Scriptures, and that's what he did. And he was the saint among them.


[Which, note - credit where credit is due - preceded Bill Cork's citation of the example of St. John of the Cross.]
Ipse Dixit hits the bigs with his own cartoon strip.
Gosh Wow Science.

Jay Manifold provides a post and links to the subject of the "Toba Bottleneck." The Bottleneck appears to have occurred about 70,000 years ago when the total Homo Sapient was reduced to something under 10,000 members. This event is evidenced by the singular lack of human genetic diversity extant today and geologic evidence of a titanic volcanic eruption during the relevant time frame. Now for you alternate history fans, Neanderthals were around at that time and well adapted to "nuclear winter" climate. If the sapient population had been hit be disease or a meteorite, would the Neanderthals have inherited the earth and wondered about the small brain, fragile losers in the evolutionary single elimination tournament?
Bakke redux.

In sum, the Court in the Michigan race admissions case affirmed Bakke. Per the Washington Post:

In two split decisions, the Supreme Court on Monday ruled that minority applicants may be given an edge when applying for admissions to universities, but limited how much a factor race can play in the selection of students.


Which is where we were back in the late 70s.

Sunday, June 22, 2003

The Globe and Mail has 20 Questions on the Iraq War. This one's interesting:

How much was taken is a matter of heated debate. The museum's director of research, Donny George, told all who would listen that an astonishing 170,000 objects -- almost the museum's entire collection -- was gone, a historic cultural loss. Mr. George accused American soldiers of turning a blind eye.
Now, it seems most valuable objects were taken out of the museum for safekeeping before the war began. While there was looting in the chaotic days that followed, Mr. George seems to have overstated the extent of it -- and neglected to mention that one reason the Americans didn't defend the museum was that it was apparently being used as a base by Iraqi snipers.
There have been calls for Mr. George to be fired.


When the story broke, I initially expressed concern, but I also expressed conditional skepticism. I wrote:

And, still, the stories circulating about the looting smack of urban legend. Certainly, they will be played up for years to come in gauchista circles as evidence that Americans care only about lucre and not art. But, seriously, when did the two events occur? Who witnessed (a) the looting of the museum and (b) the protection of the Ministry? As for the looting, why didn't the curators do something sensible like take the collection down to some secure site - like a safe - to protect it from bomb damage or looting by Americans? Did they trust Americans not to act like, well, Iraqis? By the way, how do we know that the artifacts were even there to be looted? It wouldn't be the first time that a fascist dictator and his hyennas created their own private collections. How about the curators? How do we know that they didn't find the chaos and anarchy a good cover to supplement their pensions?


Now, if all these questions seem impertinent, as suggesting that Iraqis were responsible for the theft of their own treasures in a way apart from the actual looting, well, why shouldn't they be asked? Where is it written that the burden of proof is on America?


OK, I'll ask again, why was everyone so willing to jump on the "blame America bandwagon?" It was obvious to me that the story had the earmarkings of an insurance fraud scheme. The idea that the museum's staff would not have moved these valuable objects to safekeeping seemed unlikely. The idea that the opportunity to engage in "insurance fraud" seemed not unlikely given the universality of human cupidity. So, two questions: (a) why did it take so long for the facts to come out and (b) have those people who uncritically bought into the looting argument learned anything about how easy it is to be conned?

Saturday, June 21, 2003

ethicalEsq?: has a post on the ERISA fiduciary obligations which might be useful if you're planning on taking a case involving a claim of breach of fiduciary duty in a employment related health care policy.
Between Heaven and Hell reports that Norma McCorvy's Rule 60 motion to reopen and reverse Roe v. Wade was dismissed. Frankly, this is the correct decision. There's too much water under that particular bridge for that gambit to have been proper. A belief in neutral principles requires that legal procedures be applied without consideration of the content of the subject matter involved. Now, I just hope that this adherence neutral principles is respected when its some publicity tactic promoted by the left.
Finally, the source of all that is wrong in Amerika.

Read this batty article that argues that America's submerged German heritage explains its approach to foreign policy. I particularly like this passage:

Still, the roll-call of names is impressive, Donald Rumsfeld’s being only a latecomer to the pack. George W. Bush’s partly German ancestry — Amish and Mennonite through the Demuth family, who were 18th-century immigrants from Saxony — is well-known. Surnames (if you seek them) tumble from the books of modern American history — Roosevelt, Eisenhower, Kissinger.


Ah, yes, the Mennonite influence. That explains everything.

Friday, June 20, 2003

Whiteness Studies - Which if I understand it means that "whites" are to be blamed for obsessing about race because they don't pay attention to race.

The Washington Post has this article on 'Whiteness Studies.' Read the article for a summary of the academic idiocy which is "whiteness studies." But there are some curiosities in the article, which might lead one to infer that the author has some kind of agenda. Let me illustrate:

But opponents say whiteness studies has already done that. David Horowitz, a conservative social critic who is white, said whiteness studies is leftist philosophy spiraling out of control. "Black studies celebrates blackness, Chicano studies celebrates Chicanos, women's studies celebrates women, and white studies attacks white people as evil," Horowitz said.


And:

Jya Plavin, a 20-year-old sophomore who is white, said the course "was really, really hard . . . both personally and as a white person, because you really want to take the focus off you and your whiteness."


Other students are identified by race.

The article asks the questions about how the Irish became "white," while asians and hispanics aren't. First, the Irish had about a hundred year head start on the process. For that matter, the teacher - a Ms. Avakian - has an ethnicity with a story that proves my point. Armenians came to Fresno in the early Twentieth Century. It was quite common for restrictions in deed to forbid sales of property to individuals "belonging to peoples who were subjects of the Ottoman Empire" until the 1950s. One local story goes that because Armenians were excluded from certain country clubs, they formed there own and excluded the Jews. Second, the question assumes an incorrect premise. Who says that Asians and Hispanics aren't "white," whatever that means. My high school buddy and post-college roommate tells the story that when he was dating a women of German ethnicity, who eventually became his wife, they went to a dim sum place in San Francisco. After a time, the woman looked around and whispered to my friend, "Rick, we're the only white people in here." Rick - a Chinese-American - whispered back "look again."
Noli Irritare Leones has a nice essay on the actual history which proves the spuriousness of the claim that Constantine was responsible for "all those pagan rituals" in Catholicism. The post, in turn, is in response to a specious assertion by a Blog for God member that Catholics are "idol worshipping Pagans."

Wednesday, June 18, 2003

From the Interntet House of Curiousities.

This is exceedingly disturbing. This is a link to Cary Stayner's website. As you will recall, Stayner was the sick monster who murdered several women in Yosemite. Why, or how, he has a website is entirely mystifying to me.
From the burgeoning "Alterman - What a Bozo" File.

Shark Blog actually reads not only Alterman's tendentious book on "conservative media bias," he reads the footnotes and within moments deconstructs Alterman's primary thesis. Nicely done.
Jonah Goldberg starts with a ridiculously mundane topic and concludes with a powerful exposition of the conservative project.
Omnibill has a cri de couer about the execrable Phoenix bishop. Here's my two cents: the beating heart of Catholic ethics is Aristotelian. It is based on the idea that virtue is the habit of making correct choices between the extremes. Vice is similarly a habit. Certainly, the example of the hit and run bishop is proof the truth of this ethical intuition. The bishop was obviously a man with a habit of making self-indulgent choices.
Starting a Communio trifecta, Dori at Communio allowed as how a co-worker was regailing her with bits of "history" and "theology" gleaned from a deep study of the Da Vinci Code. The problem with such off-hand, off-the-wall faux-historical charades is that ventilating the errors takes pages, while asserting the historical nonsense can be accomplished in sentences. In any event, here is the link to Amy Welborn's review of The DaVinci Code.

Tuesday, June 17, 2003

Against The Grain has links to "the Ratzinger Fan Club" whose motto is "Putting the Smackdown on Heresy since 1981." I have lusted for my own Ratzinger beer stein ever since Jeff at Communio got one last month.
The issue of Catholic apologetics with respect to the Mormons came up in Communio last Thursday. The perennial chestnut of "are Mormons Christian?" came up, to which my response was yes, but Arian Christians. The subject raised for me the question of the Book of Mormon. It's certainly a weighty tome and I am awed at the idea of one person in the 1820s churning that dude out. How did could Smith have kept the plot lines straight? How could he have had enough imagination to turn out so many pages without descending to utter giberish. It's a serious problem for serious writers. I understand that Melville lost track of why he had included one character in Moby Dick, so in one chapter he unceremoniously had the chap washed overboard.

The answer, it appears, is that Smith had similar problems according to this post on Making Light. By all means go to the comments comments for snarky observations and some fairly intersting and, to me, at least, educational insights into Smith's writing process.

Monday, June 16, 2003

How not to blog, Part II.

They're like roaches. I put up a consumer advisory. I try to dump them all on Peppermint Patty. But they won't go away. In fact, the Patty gambit appears to have backfired because she apparently rerouted them back to me. (As was observed in the Princess Bride, "never get into a game with a Sicilian where death is on the line" or, it appears, internet hijinks with someone named "Patty.") I think I have had about 100 plus hits from her site in the last 24 hours. These people don't care about the niceties of law, theology or literature. They want one thing only - nekkid photos of Amber. They care nothing about me, my interests, my concerns, my feelings.

I feel so used.

Well, I have two options. I can reroute them to David Heddle, where they should all shrivel and die after being exposed to 100% pure Calvinism.

On the other hand my hit counts have never been healthier. I am clearly in Kevin Holtsberry territory here. After a year of blogging, I'm finally getting noticed. That's emotionally rewarding. Plus, I could make a quick buck by going into the porn industry.

I'm soliciting some suggestions here.
I may have a trip to Ireland for a deposition this summer. So, I did a little surfing for interesting Irish sites. This one seemed pretty useful -Welcome to Clans of Ireland - Discover your Irish Heritage! * Likewise, as interested as I am in the Irish origin of the Bradley name - borne proudly by all the famous members of the Bradley Clan, such as Tom, Omar and Ed, none of whom were visibly Irish - I located this site on Bradley Surname History which had this useful information:

Some Bradleys in Ireland are of English descent, but in Ulster, again along the Derry-Donegal-Tyrone border, there are many who are descended from the Irish sept O’Brollachain. The O’Brollachain name was anglicised as O’Brollaghan and more commonly, as Bradley. The name is widespread in parts of central and south Derry, around Garvagh, Swatragh, Maghera, Draperstown and Desertmartin.


Usually, this kind of information is pandering nonsense aimed at people looking for their roots. On the other hand, my sainted grandmother, a Slevin by birth, told me many years ago that the Bradleys had decamped from Londonderry back in the latter part of the Nineteenth Century.
The OmbudsGod has something outright odd - or as our Ozzie cousins might say, "gobsmackin nuts." The Seattle Post-Intelligencer "made the astonishing declaration that: 'The constitutional standard for warfare is for the United States to face a 'clear and present danger.''" When called on this Constitutional emanation by Shark Blog the editorial page editor offered a series of explanations that were, to put it mildly, "uninformed."

I made the point in the comments that the only place that the term "clear and present danger" has a constitutional significance is with respect to the suppression of speech based on its content and the circumstances in which the speech occurs. Taranto at OpinionJournal - Best of the Web Today has it absolutely right:

It's true that "clear and present danger" is a constitutional standard, and it's even true that it arose from a wartime case. Only it is not "the constitutional standard for warfare" but for free speech. In Shenck v. U.S. (1919), the court upheld the conviction of a Socialist draft resister for distributing leaflets encouraging draftees to evade service. Justice Oliver Wendell Holmes wrote for the court that the conviction was constitutional because the distribution of the leaflets created "a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent"--namely draft evasion.


The PI has obviously stumbled into a gaffe of epic stupidity, prompting damnum absque injuria (yet another obscurely Latin titled blog) to pithily observe: "Ignoring the popular saying "[i]f you are in a hole, stop digging."" Damnum - or as we know him by his Christian name, "XRLQ," or formally, "Mr. XRLQ," has done a nice take down on the precise legal arguments offered by the PI. Check it out.
The Competition was Rigged.

Kevin Holtsberry thoughtfully republishes the official list of the 100 Greatest Books of the Twentieth Century. I clock in at about 11 on the list. I would have had more if Robert Heinlein, Poul Anderson or Roger Zelazny had received the attention they deserved.
Instapundit asks, "retromingent?"

This hails from a Jonah Goldberg's OpinionJournal - essay this weekend.

I have seen the word one time, but, given its provenance and the fact that Goldberg uses it as an insult in his essay, I am inclined to believe that he read the same book. The book was The Spike by Arnaud De Borchgrave and Robert Moss.. Note also that Goldberg's essay was on Liberal influence on the media and that the De Borchgrave book was about the media''s practice of "spiking" certain anti-communist news stories.

Retromingent? According to De Borchgrave, it means "backward urinating."

Now you know.

Sunday, June 15, 2003

Do Liberals want to impose a Test Oath for the Judiciary, or are Catholics unfit to be Federal Judges?

I don't really pay attention to judicial nominations, but CrimLaw called my attention to the Pryor nomination. Apparently, Pryor refused to back down on Roe v. Wade, calling it a mistake that has killed millions. This has naturally exercised the Gauchistas. TalkLeft inveighs:

While he admitted that his calling the Supreme Court Justices ""nine octogenarian lawyers" a mistake, he refused to abandon or distance himself from his other controversial views:

At yesterday's hearing, Pryor was asked several times about his past assertions that Roe v. Wade "is an abominable decision" and "the worst abomination of the history of constitutional law." He said he still believes that. "I believe that not only is the case unsupported by the text and structure of the Constitution, but it has led to a morally wrong result," he said. "It has led to the slaughter of millions of innocent unborn children. That's my personal belief."

Call your Senators now....toll free...1-800-839-5276 and protest Pryor's confirmation. This man does not belong on the federal bench--especially when his appointment would be for life.


Ruminate This provides a "parade of horribles" including Pryor's membership in the super-conspiratorial "Federalist Society" and his "long record as an opponent to Roe v. Wade and women's reproductive rights." Pryor also - gasp - opposed the Family Medical Leave Act and Disabilities Law. [Which makes him unfit for the judiciary exactly how?]

There has, however, been no claim that Pryor would not follow stare decisis - although there may be a liberal undercurrent against stare decisis on their beloved issues. Pryor testified that:

"I have a record as attorney general that is separate from my personal beliefs," he said. "I have demonstrated as attorney general that I am able to set aside my personal beliefs and follow the law, even when I strongly disagree with the law."


In fact, Pryor as Alabama Attorney General counselled that certain provisions be construed liberally in deference to the decision in Casey.

So, what's going on here. Is there a thought control litmus test for liberals. Do they really believe that a member of the judiciary can only think one way about certain issues?

The more important point, though, is that this test would construct an unconstitutional Test Oath. No practicing Catholic could be a federal judge, even if committed to stare decisis. Significantly, Pryor is a Catholic:

Unlike many nominees, Pryor did not try to obscure his views on abortion at his Judiciary Committee hearing. He was asked several times about his past assertions that Roe v. Wade "is an abominable decision" and "the worst abomination of the history of constitutional law." Pryor, who noted his Catholic faith, said he still believes that.

"I believe that not only is the case unsupported by the text and structure of the Constitution, but it has led to a morally wrong result," he said. "It has led to the slaughter of millions of innocent unborn children. That's my personal belief."


It is absolutely amazing that the Left, which is usually so good at gleaning the barest hint of an establishment of an official creed and can winkle out the barest hint of censorship seemingly at will, has missed the civil rights aspect of this interrogation.

Pryor is allowed to believe what he wants. He is constitutionally allowed to be a practicing Catholic. So long as he agrees to follow the rules - the law, stare decisis, constitutional precedent - then he is fit to be a federal judge. But to declare him unfit because of his exercise of his First Amendment rights in expressing the personal beliefs formed in accordance with his religious tradition raises some serious questions about religious liberty in America. The Left constantly plays the "slippery slope" theme and argues that we are on a dangerous path to tyranny because non-citizens who engage in acts of war are not given full protection under the Bill of Rights. But, when the proposition is made that a Catholic is unfit to a federal judge because of his religious faith, the Left not only doesn't protest, it acts as a cheerleader for the forces that seek to civilly disable 25% of the American population.

[Further resources: See also Lumpkin v. Brown, 109 F.3d 1498 (9th Cir. 1997) in which the Ninth Circuit upheld the termination of Rev. Lumpkin from San Francisco's Human Rights Commission. Lumpkin was a Baptist minister who was crudely mousetrapped into vouching for his literalist reading of Leviticus by gay activists. Although the tactics used to undermine Lumpkin were nothing more than the basest form of "red baiting," Lumpkin's termination was probably justifed by the fact that he was part of the executive department of San Francisco and, ultimately, the mayor had the right to control the message expressed by city officials about subjects within their department. The Left had better be careful about this approach, however, since the principle is that the private beliefs and utterances of their candidates on a variety of issues are equally fair game.]

Update: Other bloggers have picked up on the "NCNA" ("No Catholic Need Apply") aspect of this story. Dodd at Ipse Dixit (another lawyer with an obscurely titled Latin blog name) writes:

My old Con Law professor Douglas Kmiec has some comments today on Pryor's nomination specifically. He points out, as I did the other day, that Pryor presents a problem for the Left - because he's been scrupulous about upholding the law even if he disagrees with it - and wonders if the fact that two of the four are Catholic has something to do with it.


Said Kmiec opines in OpinionJournal:

There is a last point that should not be swept under the rug. Mr. Pryor (and Ms. Kuhl) are practicing Catholics. Some of the opposition to both comes dangerously close to a religious exclusion, or at the very least, indulges the tired belief of the Legal Realist school that it is impossible to separate who you are from how you judge. One thought that John F. Kennedy had put this kind of sophistry to rest in his 1960 presidential campaign


Incidentally, I know that this all sounds perilously close to playing the "victim-identity" card. But there is an interesting angle here pertaining to the way that jurisprudence is approached from the left and the right.

Conservative judges tend to hold to the "archaic, premodern notion" that there is something called the "Law." Conservatives reify the law into something that has kind of a tangible external existence, which purportedly controls their analysis.

Liberal judges are more inclined to look at the law as a set of policies and guidelines which may be used to solve problems. They will ask what the underlying policy of the law should be, and then solve the problem.

Both approaches have their drawbacks. One of my published decision reverses a formulaic approach to a legal issue. The judge is known to be judicially conservative. (A very intelligent, younger judge, incidentally, so don't play on those stereotypes, but he felt bound by a prior decision even though the legal regime had changed after the prior case because of the enactment of the Uniform Commercial Code. See Serian v. Agri-Sun. In oral argument the judge admitted that the precedent "made no sense," but it was precedent and as a consistent judicial conservative he passed it up to the Fifth DCA to change its position, which is an example of the conservative judicial tempermant in a nutshell.)

In short, a conservative judge would probably be more inclined to adhere to stare decisis than a liberal, but liberals projecting their own attitudes onto individuals such as Pryor are truly playing the "legal realist" game alluded to by Kmiec. They can't really believe that a Catholic could dissassociate his personal beliefs from his approach to the "Law" because liberals don't really believe that the "Law" is anything more than a tool for social reorganization. In other words, liberals may be inherently predisposed to play the game of "test oaths" based on a nominee's personal identity.

If that's the case, per Kmiec, the fact that liberals can't "separate who you are from how you judge" may eventually force Catholics to form a "victim-group identity" opposed to liberalism. And, I ask again, do they really want to do that to 25% of the population?


Saturday, June 14, 2003

Blogging Tips.

IMAO has some fairly insightful tips for blogging fun and success.

On the other hand, Mac, who I have absolutely nothing against notwithstanding the inane throw-away attempt to link me to a mass murderer, is providing a case study on how not to blog. Apparently, Mac-a-roni has been playing the McCarthyite name-smearing game over to the left and is being delinked over there. Over at OmniBill, I learned that Mac was advocating having someone put under surveillance. The principle may be something like "be a good neighbour."

Also, I'm impressed by the fact that the delinker - Lean Left - is willing to delink an "influential blogger" as a matter of principle. So, maybe there can be enemies to the left for some.

Thursday, June 12, 2003

There are still no nude photos of Amber Fry at this site.

Although I appear to have jumped to the top of the list for Yahoo! Search Results for Amber Fry despite my Consumer Advisory. OK, just to help out those of you who would otherwise be subsidizing that walking - er, rolling - skinful of moral leprosy named Larry Flynt, I think you might find what you're looking for at this site.
Road Trip to Geraldo Country.

I've got an early morning Ex Parte in Stanislaus County Superior Court tomorrow. That's Modesto for you Easterners. I'll let you know if I spot Geraldo or Greta or any of those other Big City Slickers.
A Round of "Amens" and "Preach it, Brother."

James Lileks attacks the Kultursmog that prides itself on its daring and wordliness. Here's the passage that resonated with me:

I have a daughter, and I want her to keep a certain sense of innocence as long as possible. Let the world reveal itself gradually, over time. At this point I’m not asking that the culture make my job easier. I’m just asking it not to make my job harder.


Well, I have three daughters - ages 5, 6 and 10 - and I am tired of, inter alia:

(a) The "Calvin urinating on things" icon. I understand that Calvin was a funny strip. I understand that some people think that references to basic body functions are the height of wit (hence, Adam Sandler.) I understand that the self-censorship of such images means that we are just one step closer to the return of Theocracy. But, my job is to teach my girls that bodily functions are private and not a source of sophisticaed humor.

(b) The casual references and depictions of sex on the media, in movies, on the radio. My job is to teach them that sex is serious business, that it has consequences, and that they would be well-advised to give it a miss until they are mature enough to handle it. [I am also tired of the "change the channel" argument. Sexual references are so pervasive and transition into storylines so quickly that an Olympic class sprinter couldn't change the channels fast enough.]

(c) Scatological or pornographich T-shirts, hats, clothes, tattoos, etc. I go to a restaurant with my little ladies and staring us in the eyes across the booth or down the aisle is some message that I don't need to explicate. What do these cretins think they're wearing? I've decided my official position is to pity these under-achievers. They decided to have a nice night out and when they went to the closet, this was the best thing they could find. Poor pathetic losers.


Ok, I'm better now. I just wish that there weren't so many people in society who are so dedicated to making my job as a parent so much harder.



No One Expects the Pro-Choice Inquisition.

CrimLaw has a very interesting post on the nomination of William Pryor. It seems that Pryor refuses to say the softly pleasing, orthodox things about Roe that are expected of a nominee, but insists on asserting his heterodox Catholic viewpoint. [That was fun reversal of adjectives.] I guess for his heresy and refusal to recant, he will be taken to the auto da fe.
The Real Cultural Divide in America.

NRO has an interview with Victor Davis Hanson on his new book, Mexifornia. The interview contains this observation:

The result is that we are seeing in the area the emergence of truly apartheid communities — like nearby Orange Cove, Parlier, Mendota, and Calwa — that resemble Mexican rather than American societies, and that are plagued by dismal schools, scant capital, many of the same social problems as Mexico, and a general neglect by the larger culture, including prosperous and successful second- and third-generation Mexican Americans who would never live there.


I think this is the first time that I have read anything like this in print. I wonder how many people have noticed this or reflected on its significance.

My soon-to-be-ex-wife was a elementary school teacher at Mendota Unified. My oldest - Boff - went to to kindergarten in Mendota. On Back to School Night, it was an easy matter to pick her blonde self-portrait out of the self-portraits of the other thirty children. The times that I went to Mendota, it was obvious that Mendota is largely a "Mexican" town. "Mexican" in the sense of being populated by people who are Mexican nationals. Mendota is a town of under 10,000 in rural Fresno county. My visits to Mendota and to other small Valley towns have caused me reflect on an odd sociological fact: it appears that the rural towns in the Central Valley are largely Mexican, again in the sense of being populated by people who are Mexican nationals. On the other hand, the larger towns - the county centers of population up and down the Highway 99 corridor - are substantially more heterogenous and filled with American nationals of whatever national origin.

Has there ever been a time when there has been a similar population pattern of centralized administrative centers being held by one population while the countryside is held by another population? I can think of several, all usually involve patterns of conquest. After the Norman Conquest in 1066, for example, the Normans would build castles in Anglo-Saxon areas in order to maintain control. On the other hand, some scholars think that the biblical conquest of Israel by the proto-Hebrews actually involved the expansion of a Hebrew rural population around Caananite urban areas.

These precedents are not reassuring.

For the record, I favor immigration. I have zero xenophobia about Mexicans coming to America and joining our population. As hard-working, rural Catholics, their values would probably approximate Republican values. [I'll also point out that I have had a couple of cases where there has been an undercurrent of prejudice and discrimination by native-born Mexican-Americans against Mexican-born Mexican-Americans, so one should take care before lobbing any charges of racism with respect to these observations. "Hispanics" are in no way a homogenous, undifferentiated group.] I think that foreign-born Mexicans in these rural areas should assimilate, though, and that state programs that retard assimilation are pernicious. (Incidentally, the stbe was a bilingual teacher.) I also recognize that the historic patterns of assimiliation mean that America, California and Catholicism will have a distinctly Mexican tilt. For example, the Virgin of Guadalupe will be a dominant religious motif and Cinco de Mayo will replace St. Patrick's Day.

But that's life.
Yikes.

This comes via Mark Shea and has probably been done to death throughout the Blogoverse, but check out Dick Morris on Hillary Clinton & Living History on National review Online. If Morris's short article doesn't make your skin crawl, nothing will.

I've already seen one comment that describes Shea's post as "Clinton hating." It's not. The Morris episode offers potential insight into Clinton, his Presidency and his policy decisions. And when it was Nixon that was being psychoanalyzed to death back in the 70's, no one considered this kind of disclosure evidence of the psychological deviations of Nixon's enemies.

Wednesday, June 11, 2003

All Things Canadian.

Mark Byron blogs on a possible annexation of portions of the Great White North.

I'm entirely for it, if it would mean that my Canadian Mennonite law partner would finally be eligible for jury duty.
This is interesting, but I'm not going to get real excited until it involves Heroin-induced Necrophilia.

From Mark Shea, who is dead on, comes this article discussing the American Psychiatric Association's proposal to remove pedophilia from the "psychiatric manual of mental disorders." (Which I assume is the DSM.) The proponents argue:

People whose sexual interests are atypical, culturally forbidden or religiously proscribed should not necessarily be labeled mentally ill, they argued.

Different societies stigmatize different sexual behaviors, and since the existing research could not distinguish people with paraphilias from so-called "normophilics," there is no reason to diagnose paraphilics as either a distinct group or psychologically unhealthy, Moser and Kleinplatz stated.


There is a nice piece of circular reasoning there. "Paraphilics" are not "unhealthy." Yet, we would view anyone with a fixation that could result in criminal sanctions being imposed for acting on the fixation to be "unhealthy." And, since we are not going to decriminalize pedophilia, one would therefore suspect that having pedophile tendencies could easily be classified as being "unhealthy" inasmuch as giving into those urges would result in jail time, social stigmatization, loss of employment, suicide or a host of other evils resulting from being caught in the act.

Unless, of course, society decriminalizes pedophilia.

The point is that - Szaz notwithstanding - social norms and psychological conditions are inevitably interrelated. For example, if I spent my time fixated on the idea that slavery is a proper enterprize and that one class of humanity was racially inferior, I would probably be diagnosed under the DSM-IV as "delusional." Unless, of course, I travelled in time to 1810, in which case I would be "normal." Both diagnoses would be correct, incidentally. What would be different would be the socially constructed world, which has as much reality as the physical world.

The article is right that this is serious stuff. Psychs rely on the DSM as their "bible." Paradoxically, NAMBLA may not be entirely happy; remove "paraphilia" and you won't be able to show pedophilia as a "disability." On the other hand, such an action would also enflame the movement to decriminalize pedophilia. Such a decriminalization would probably be required if their is a strongly defined Right to Privacy since the conduct would be "private" concensual behavior. [I presume it wouldn't be difficult to gin up a test case involving a mature, emancipated fourteen year old, who in all respects was as emotionally mature as a slow sixteen year old. Besides, the argument would go, the concept of "age of consent" is a cultural artifact which varies from culture to culture so as to make it (a) based on religious preceps and (b) unconstitutionally vague.] Also, I guess NAMBLA could eventually argue for constitutional protection for pedophiles since it would seem to be a denial of Equal Protection to extend civil rights protection to one group who defines themselves by their sexual conduct, while denying such protections to other groups who similarly define themselves by their sexual practices. [Actually, come to think of it, California Fair Employment and Housing Act already protects "sexual orientation," so pedophiles would probably be protected at the point that pedophilia became decriminalized, if not sooner.]

About five years ago, I predicted to Penner that we would be having the same discussion about pedophilia in twenty years that we are having about homosexuality today. Penner was skeptical, until I pointed out that no one in 1978 would have believed that there could be a serious discussion about whether homosexuals should be scoutmasters. Back then, the discussion was about discrimination in the workplace and the removal of criminal and social sanctions for homosexuals. But a few scientific studies, a couple of "hard cases" before the judiciary, an expansion of the right to privacy, and the next thing you know, you have the Boy Scouts in Philadelphia becoming agnostic about whether the formation of a boy's character precludes the formation of romantic attachments with his tentmates.

As for the pedophilia issue, it looks like I may have been off by about ten years.

Tuesday, June 10, 2003

Start watching for a murmur in the popular culture that judges should be "independent" of stare decisis - the common law doctrine that lower courts are bound by the precedents established by their reviewing courts. There probably will be cosmopolitan observations that stare decisis is parochial to the American legal system, that the doctrine doesn't always apply, and that there is a proud tradition of judicial rebels standing up for the Right as They See It. All of which are found in this FindLaw essay. Lest you wonder why this issue should surface now, note the conclusion:

I'll also note, finally, that questions of vertical stare decisis are likely to become more prominent as the Supreme Court swings further to the right, assuming that the composition of the lower courts does not change with equal speed. If the Bush administration succeeds in appointing a bevy of extremely right-wing justices to the Court - Scalia junior and Thomas redux - many of us may hope that Judges Reinhardt and Pregerson begin to take a stronger stand.


All of which leads one to say "huh?" and "She can't be serious." Is the author really calling for lower courts to ignore stare decisis when it feels good? Would she be as sanguine about the concept if the lower court judge was, say, Kozinski, and the decision involved, say, abortion? Or is this one of those provocative doctrines that applies only to some areas of law and not others? Would she really be willing to trade Three-strikes for the Right to Privacy?

Odd little essay, actually. As light as a feather, but somehow I think we are going to be hearing more scholarly observations about the benefits of "judicial independence" as President Bush appoints more judges.

[Thanks, Roger Ho.]
More Great Moments in Statesmanship.

OpinionJournal - Best of the Web Today has this:

The Senate has confirmed Michael Chertoff as a judge on the Third U.S. Circuit Court of Appeals. The vote was 88-1, with New York's Hillary Clinton casting the lone dissenting vote. If this story sounds familiar, that's because back in May 2001, Mrs. Clinton also cast the only vote against Chertoff's confirmation to a Justice Department post, and she did the same thing with Viet Dinh.
Chertoff is a former counsel to the Senate Whitewater Committee, and Dinh worked for the Whitewater independent counsel's office. Hillary's string of lone "no" votes is, as we said back in 2001, the lamest act of political payback we've ever heard of--succeeding only in making her look petty.


But I'm sure that there is someone, somewhere with a special plea on Ms. Clinton's behalf that will claim this is rational or principled.
All I ever needed to know about the Apocalypse, I learned from Hal Lindsey.

If your catechesis consisted of pop culture icons, check outMark Shea for the the "Four Things You Need to Know about the Book of Revelations." [I am stilled floored by the "no rapture" thing. That seemed so cool.]
How can anyone say that they believe Hillary?

At least with respect to her more incredible stories. She turned $1,000 into $100,000 without any artifice or scheme being employed on her behalf? (Remarkable) She didn't suspect - or know - that her husband was trysting with an intern despite the press coverage, the FBI taking DNA samples and his many past indiscretions?" (Incredible) Father Rob Johansen offers an explanation.

As fascinating as Hillary's behavior is, more fascinating is the fact that she thoroughly expects everyone else to swallow her fantastic explanations. More amazing is that her followers do. Repeatedly. Shamelessly. I've seen this phenomena in action on the History News Network comment boards on the reasons for "Clinton hatred." Read the thread under "Clinton followers fuel antipathy" where I have an exchange about the most likely explanation for Hillary's profits from the futures market. Weed out the name-calling, semantic hair-splitting and incoherence and reflect on the amazing suspension of disbelief that fuels the belief that (a) Hillary's behavior was entirely unsuspicious and (b) anyone raising questions is mendacious.

Now, we all engage in a "willing suspension of disbelief." I've suspended my disbelief on the question of WMDs in Iraq. It's called trust and it's a vital element in a system of representative democracy. But there is something pathological in the Hillary phenomena. Her supporters affirm and disaffirm at the same time. Hillary is one of the smartest people in America, but she didn't even suspect Bill was up to his old tricks. Hillary is a committed feminist, but she doesn't care about the sexual exploitation of a female in one of the most significant examples of workplace power imbalances in the known world. Hillary should be trusted to be President, but she doesn't have the discretion to judge Bill's candor or the resolve to follow up on her representation that she would be that woman in a Tammy Wynette song.

Support for Hillary is fine. But, frankly, more Democrats ought to be expressing even the moderate skepticism voiced bySusan Estrich:

Like her or not, there's no denying that Hillary Clinton is a smart woman. When she wrote this book, she had to know that the passages that would get the attention would be the ones about her husband's relationship with Monica Lewinsky. For a supposedly private person, she gave chapter and verse: the scene in the bedroom; the marriage on the brink; sleeping arrangements on vacation; and how her decision to run for Senate brought them back together, which I'm sure is true.

As for the rest, who knows?

Was Hillary really the last to know? Sometimes the wife is.

I've known Bill Clinton for years, and I never doubted for a minute that he had an "inappropriate sexual relationship" (that's what I called it, when I talked to him) with Monica Lewinsky. I laughed when one White House aide suggested that I deny it. The president himself all but acknowledged it to me when I asked him, in the course of giving him advice. But maybe Hillary never asked; maybe he lied to her and she believed it, notwithstanding everything that had gone before.


Estrich is skeptical of Hillary's claim that she didn't know Bill was lying until two days before his Grand Jury testimony. She is also skeptical of Hillary's motives in releasing the book during a time when Democratic presidential nominees are clawing for public attention. Estrich favorably impresses by the fact that she dares to express even moderate skepticism.

Sunday, June 08, 2003

Snarky Gal plays "guilt by association" card; Condescending Guy wonders where the condemnation of Sarah Jane Olson went.

Macoronies responded to my post below. If you recall, I called her explicitly on her linkage of murderer Eric Rudolph to conservatives and Christians. Her tendentious comment was:

I am curious to see whether the Right blogosphere, which has been quite hostile to Muslims accused of terrorism, will defend Eric Rudolph.


The burden of this throw away comment was clearly an attempt to smear conservatives, and particularly Christian conservatives, through "guilt by association." The left has played this card in the past with the Oklahoma City bombing, which was linked by some to mainstream conservative figures who had created a "culture of hate against the government." Needless to say, when I saw the opportunity to scotch this inane gambit, I took the opportunity to make a few fair points about the limits of dissent in a democracy. I ended by fairly pointing out that the Left has it's own tradition of celebrating or excusing murderers because of their political orientation.

You might think that Macaronies would acknowledge the point that her casual attempt at McCarthyite smearing was misplaced, that not all conservatives were incipient bombers, and that the Left has issues with its own "wacky fellow travelers."

You might as well believe that pigs can fly.

Macaronies response is an extended disquisition on "tone." Her thesis: my post was condescending; I called her names by calling her post "snarky;" I am ignorant of criminal law because I don't distinguish between murderers and accomplices. Now, I will grant that the paragraph she cites was condescending; it was intended to be since the throwaway comment was so slanderously irritating that a quick primer on basic principles was in order.

Here's the relevant excerpts of her post:

No sooner than I adapt to a Right Wing blogger saying a liberal blogger should be dismembered and left in a ditch than one calls me "snarky." Perhaps summer and conservatism just don't get along.
Sean Bradley at Lex Communis takes exception to the Diva wondering whether some Right Wingers will pity fellow traveler and alleged terrorist Eric Robert Rudolph. He 'schools' me. (Wink.) [Which then goes on to quote my post condemning Rudolph and anyone who kills for political motives.]


Neat. I intuited that she is implying Rudolph is a poster child for Christian Conservatives; I condemned Rudolph in strong terms; and the next thing I know, Rudolph and I are "fellow travelers." To mirror a point Mac makes below, Mac may not know me, but she does know that I condemn Rudolph - along with Mark Byron and The Mighty Barrister, at least - and yet I am a "fellow traveler" of "alleged terrorist" Rudolph.

Likewise, note the continuing "guilt by association" linkage. Some other "right wing blogger" - a vicious tempered lesbian by all accounts - said something about dismembering her and I called her post "snarky." Can"t you clearly see that the two things are identical?!? [clap hands, stomp feet, look serious.]

Well, of course they're not. Next innuendo, please.

After quoting my long passage that people who kill for political motives deserve the strongest punishment under the law because, well, people shouldn't be used for ends, Mac then demurs that statement just isn't enough for her because:
Well. . . It seems to me there was a sympathy factor for Timothy McVeigh from some on the Right, but perhaps my memory is getting fuzzy.


For crying in the church, where was the sympathy factor for McVeigh? William F. Buckley, Jr.? The Republican Central Committee? Was there a public benefit for McVeigh that was celebrated by National Public Radio? Was there a nifty cookbook with a happy smiling McVeigh offering his so clever recipes being purchased by the gross in trailer parks and Aryan Brotherhood enclaves through the miracle of the internet? Where was the international campaign to describe McVeigh as a political prisoner as has occurred for Mumia al Jamal?

I must have missed all that, unless this is simply an attempt to distract and continue a spurious smear campaign.

Mac then writes:

Brian Linse's sense of the present must be getting fuzzy, because he says some on the Right do sympathize with Rudolph.
Well shit-howdy! You think them folks realize that they's the same as them there Mooslum fy-natics blowin up shit in Israel cuz Allah toll 'em to? Same as them crazy fuckers what flew 'em planes to the towers?
The truly scary reality is that they actually just think our god can beat up their god, and our god-fearing president is just doing the work for Him here in the garden. Falwell and Roberts spoke it after 9/11, and these pathetic "believers" are back to remind us that fundamentalism is still going strong in the religious right wing.


Well, heck, I guess that proves it. Some lefty writes a parody of an ignorant Southerner inveighing against "Mooslums" and that "our God" is beating up on "their God," and you have pretty much nailed down your case about Right wing sympathy for Rudolph.

Finally, Mac reduces me to, of all things, an "ilk:"

Typical of his ilk, Sean assumes I have empathy for Mumia al Jamal, when, in fact, I don't. He also makes the mistake of confusing an accessory to murder with an alleged murderer, but I will leave schooling him on the difference to a criminal lawyer.


Well, no I didn't accuse Mac of empathy for Mumia. What I pointed out was that while there was no evidence of conservatives stumping for their "fellow travelers," there was a strong historical tradition of Lefties actually celebrating Lefty criminals. Moreover since Mac's test seemed to be political association implies support, I thought it was fair to apply her principle to her side of the politics and suggest that she should offer a condemnation of those criminals who the Left has actually supported - Mumia and the SLA. [Actually supported, mind you, unlike the illusory examples of conservative "sympathy" for McVeigh and Rudolph.]

Yet given a chance, nothing is said about the sorry support of Sarah Jane Olson by Lefties. Instead, I get a quibble that Mumia wasn't a murderer, he was an accomplice and snide shot at my not being a "criminal lawyer." I'll admit that I hadn't heard any claim that Mumia was an "accomplice" so I did some quick internet research and pulled up this:

Mumia was NOT busted and framed because he was a political threat to the establishment. He was arrested because he was found, wounded, with his gun drawn and resting near his hand, a few feet from a murdered cop.


Doesn't sound like an accomplice to me.

As for Sarah Jane Olson, some attention to the Felony Murder Rule might be warranted:

“Felony Murder Rule- In California, any killing that occurs in the commission of an inherently dangerous felony is treated as first degree murder. (Penal Code 189)”


You see, while I may not be a criminal lawyer, criminal law was on the Bar Exam. Although Sarah Jane Olson may have plead guilty to some lesser offense, in a more just world she would have been as guilty of murder as any hypothetical person who knowingly drove Rudolph to plant his bombs.

Last point, Ok, I give. Where's the condemnation of Mumia and the SLA? Are we to assume that your typical Leftist disagrees with my proposition that any American who kills another American for political reasons is "a sick, evil, distorted piece of cancer walking around in human form and deserves the harshest punishment the law can visit upon him" and that their self-perception of the purity and nobility of thier political goals is no defense.

Or is that a rule that applies only to those who don't identify themselves with the Movement?

Update - Another Rightie Condemns Rudolph:

Two if you count the comments.
Patty chimes in with her observation that she has yet to hear anyone on the Dexter side of politics utter a sympathetic note for Rudolph.

I don't want to extrapolate too much here, but I wonder if there aren't two related functions in the "Rudolph is a poster boy of the Right" meme: projection and "no enemy to the Left."

I think, and I could be corrected here, that there is a historic problem with the Left not being able to jettison its more radical factions. A case in point is the Stalinist backing of the "anti-war" protests this spring. Even when called on it, Leftists generally felt the whole issue was irrelevant. On the other hand, conservative history is replete with examples where Bircher, Buchanan, Sobran, anti-semites and racists have been "sent to Siberia." Why this is the case isn't clear to me but may come from the fact that the so-called "right-wing" socialist movement of Nazism was militarily defeated, but the "left-wing" socialist movement of Communism wasn't. A good test case in point was the disparate treatment afforded Trent Lott and Robert Byrd for, let's say, racist comments. Lott is out of leadership; Byrd hasn't been substantially criticized. How much of that comes from different core attitudes to drawing the lines of group loyalty?

The second factor is projection. In my practice, I tend to pay attention to my opponent's accusations. I learned early on that if you are being accused of withholding documents or hiding evidence, then the other side is probably doing it. I think it's natural for humans to see themselves in other people, and where you have a distinct tradition of Leftists rallying for their guilty cause celebres - Mumia, Sarah Jane Olson, the Rosenbergs, Alger Hiss etc. - they fully expect the Right to do the same thing.

That at least is my take on it. I know I am painting with a broad brush. If someone else has a different take, or, if I'm wrong, let me know.
A Hyper-Empire with ADD.

Niall Fergusson at OpinionJournal seems to be arguing that America is an empire and that's a good thing.
Crikey! More ideological abuse of history.

History News Network's News About Historians has this post:

Back to the Australian scandals, for a moment. You may recall that this past winter KEITH WINDSCHUTTLE startled the scholarly world in Australia with the charge that liberal historians had grossly inflated the number of aborigines killed by white settlers. One of those he attacked was LYNDALL RYAN, who had cited the diary of Robert Knotwood for the claim that between 1803 and 1808 Australians had slain a hundred aborigines. Windschuttle pointed out that the diary only records four deaths, not a hundred. Ryan's reaction?

Lyndall Ryan: I certainly agree that the Knopwood diaries say that, but I also had another reference referring to a report by John Oxley who was a surveyor who'd been sent down to Tasmania in 1809. He said too many Aborigines were being killed.

Reporter: Okay, but how did you extrapolate from his words saying "too many Aborigines had been killed," to "about 100 lost their lives"? Is that just made up?

Ryan: Well, I think by the way in which Oxley wrote that he seemed to think there had been a great loss of life from the Aborigines.

Reporter: So, in a sense, is it fair enough for [Windschuttle] to say that you did make up figures? You're telling me you made an estimated guess.

Ryan: Historians are always making up figures.


Or as Homer Simpson put it: "People are always making up statistics - 60% of most Americans know that." But, seriously, given the blatantly political dimension of these scandals, I think the next time historians gin up some statement about presidential sex scandals or military actions, we ought to wonder how much their political agenda is affecting their scholarship.



Friday, June 06, 2003

Consumer Advisory

There are no photos of Amber Fry at this site. There are no pictures of a naked Amber Fry here. I know that I'm located in Fresno. I know that Amber is located in Fresno. I know that Google can string together the strangest search patterns, but, I repeat, there are no naked phots of Amber here.

Incidentally, when I noticed an odd search request begin to crop up, I intuited that there must have been some new development in the Peterson case. Lo, and behold, I saw on Fox this morning a report by Geraldo that confirmed my intuition. Incidentally, was there anyone in America that didn't expect that development? But, why? And, why should Amber, who quickly unlinked herself from Peterson be expected to forfeit her privacy and dignity because of her coincidental proximity to a lurid crime that she didn't participate in. I hope Allred tears Flint from stem to stearn. Probably, isn't going to happen, though. The whole Allred scenario seems like a set up for future publicity.

I mean, it isn't like there aren't truly excellent lawyers in Fresno who could have competently handled her case.

Thursday, June 05, 2003

Fresno in the News.

Proving my maxim that the only time Fresno gets national attention is in stories featuring either (a) noteworthy murders or (b) subjects that are intensely embarrasing, Forbes Magazine comes through with an article entitled
Economic Death Valley. Once again, I have new reasons to be proud of my home town. Check this out:

Thanks to a trinity of highs--taxes, business costs and crime--as well as a dearth of cheap housing and skilled labor, Fresno gets our booby prize this year. The metro area of 942,000 ranks 146 out of 150 on our list of Best Places to do business, putting it in the company of burnouts like Scranton, Pa. and Atlantic City, N.J.


Woo-hoo. We're Number One. Eat our dust Scranton.

The numbers speak for themselves. Fresno, and much of the Valley, including Merced (yea, you too, Muncie), have economic numbers that place the Great Valley of the Golden State in an economic category not seen outside of Appalachia. According to Forbes:

Some problems just seem intractable. Over the last five years net migration into the area has been flat, and unemployment stuck at double digits--13.9% for 2002. Not that there's a great labor pool to pick from: Only 16.8% of Fresnans over 25 have a college degree. A terrifying 33% don't have high school diplomas, double the percentage of high school dropouts living in the Bay Area. Even a traditional strong point--affordable housing--has dried up. Just ask Fresno Mayor Alan Autry, who quarterbacked for the Green Bay Packers and spent sevenyears playing Captain Bubba Skinner on In the Heat of the Night before running for office. In 2001 his home was worth $300,000. Now he's paying taxes on a $540,000 appraisal.


A few items involved in the numbers. Education and crime are the product of the farm worker phenomenon. In the neighborhood that feeds the elementary school that my Rotary Club is actively involved in supporting there is a 100% turnover every two years. That is a phenomena probably unseen since the ethnic ghettos of New York City at the turn of the last century. The housing price inflation is fueled by the "equity refugees" from Southern California and the Bay Area who cannot believe the values they get for the money. A two bed/one bath in the Palisades will buy a mansion here.

There is also the political problem. California's true division is not North and South; it's East and West. The less populated, resource rich West doesn't have the same political power as the Coastal strip. An exception to this rule involves the Gray Davis Recall effort where the Valley is the "hinge" of the effort. The Valley is a "red state" composed of Republicans and Democrats who vote Republican in a state that is getting getting bluer by the minute.

Wednesday, June 04, 2003

Interesting. The Niqabi Paralegal is blog by a Muslim paralegal with a focus on Muslim-related legal issues.
Here's a novelty item from Ursula K. Le Guin's web site - a rejection letter for Left Hand of Darkness.

Tuesday, June 03, 2003

Slumming

Things are kind of in a doldrum in Blogville, so I decided to slice a path through the gauchista/sinister end of the internet. While there, I found this snarky post at Mac-a-ro-nies [ever notice how the Left go for cutesy names, while right-tilting blogs have sturdy, classically informed names which resonate with the Latin and/or Greek roots of our culture, such as, for example, Lex Communis] which apparently takes dextrous bloggers to task for not condemning Eric Robert Rudolph. Mac opines - under the heading "Right Wing terror suspect in custody:"

I am curious to see whether the Right blogosphere, which has been quite hostile to Muslims accused of terrorism, will defend Eric Rudolph.


Sate your curiosity here, Mac. It won't happen. From my experience, Right-tilting Blogospheriacs have the singular ability to pierce the surface to get to the deep existential truth of an issue. Let me demonstrate this technique, which is apparently very rarely seen in your end of town - just as Muslims who murder Americans are bad, so too are Americans who murder Americans, regardless of their sick ideologies or twisted grievances. To explicate this subtle reasoning even further - if Eric Robert Rudolph is the serial bomber whose bombs murdered people, then he is a sick, evil, distorted piece of cancer walking around in human form and deserves the harshest punishment the law can visit upon him. To drive this amazingly principled concept home let me offer the following: Anyone - and I mean anyone - who treats any human being as an end or an obstacle to be murdered as an impediment to the realization of their political or ideological ends in this country deserves such a fate.

Believe it or not, Mac, this country is a functioning democracy which means two things: (a) everyone has the opportunity to shape public policy through the mechanisms of democracy - even the pro-life movement, despite the best efforts of the Supreme Court to remove abortion from the arena of social policy, can pursue the constitutional amendment route, and (b) and, here's where the Left really doesn't get it, if you lose the public policy debate, too bad; it's a democracy and you have to live with the consequences of not getting your 50% plus one, or your 66%, or whatever. In other words, even if you lose, it's still legitimate, so long as it's by the rules.

Having said all that, Mac, what about Mumia or those "liberals in a hurry" who thought nothing of depriving the son of this innocent lady of his mother because she was a "bourgeois pig" and therefore not really important compared to the Movement? Yes, the Left was truly in fine form with its condemnation of murderers when Sarah Jane Olson was finally brought to justice. They showed their solidarity by throwing a fundraiser and buying her ever so preciously named cookbook. Who among them really cared about Myrna Opsahl? In your feverish dreams do you think that Eric Rudolph is going to be celebrated by giddy fundraisers feted by National Public Radio or that there will be a cookbook featuring Eric Rudolph kicking up his heels like the winner of a lottery?

Match my condemnation with a few of your own?

Update: Mark Byron (links not working) advises that tarring "Christians" with Eric Rudolph is misguided. "Christian" in "Christian Identity" serves the same function that "Democratic" did in "German Democratic Republic, i.e., misappropriate a good concept for an evil end.

It is good to hate India.

Thomas Sowell. has a column sniping at the Indian subcontinent - actually the people living there - for hypocrisy and dysfunction. Yea, I know that the Indians may be a future partner in the axis against Terror - Israel, Turkey and India - but come on, haven't the Indians always been kind of the French of the East.
Gosh Wow Science

ScienceDaily News Release: Observing The 'Wings" Of Atoms: Study Indicates It Is Possible To See Electrons' Orbital Paths Around Atoms. Must either involve really, really teensie tiny microscopes or a supercomputer that spends six months cranking out calculations.

Sunday, June 01, 2003

Mark Steyn's Iraq Travel Journal. A terrific writer, but nuts.
Relapsed Catholic asked whether this article - Reno spurs Boca's Democratic Club - was susceptible of the interpretation that Janet Reno was publicly equating the Republicans with Nazis. I think it palpably does.


CANN Anglican News has an interview with David Crawley, Archibishop of the Anglican Church in BC and the Yukon. The focus of the interview is on the same sex blessing ceremonies that are a hot topic in Canadian Anglican circles. I found the insousance of the Bishop's attitude in this passage to be noteworthy:

INT: --and some churches now looking to other-- uh-- to other leaders?

ADC: Well, the Anglican Church of Canada is a geographically-based church; that is to say our dioceses are geographical areas, and our parishes are geographical areas-- and a parish cannot leave the Anglican Chuch as a whole body-- we are not a congregational church. The members of a parish-- en masse or part of them, and in the eight parishes or seven parishes that are disaffected by this in the Diocese of New Westminster, there are people in every parish who do not approve of what their parishes are doing. Now, uh, those people could choose to leave, but they can't take the parish with them. D'you see what I mean?

They can't-- a parish can't leave the Anglican Church. The members can, but the parish itself can't go, so--

But if there's no members left in that church--
ADC: [interrupts] Yeah, but there will be always-- there are all of these places have people that are there. But you see, the churches don't belong to the parish, they belong to the, to the community of the church-- they don't belong to the congregation. The congregation at any given moment, by and large, isn't the one that built the church, and sustained it's life for however long it's life has been-- it's the congregation of the moment.
Now, there's-- there are seven parishes that are Now, there's-- there are seven parishes that are upset about this, that are disaffected, that feel that it's the wrong thing to do and are withdrawing their money from the diocese and so on, and that's very sad that that has happened, and it's very sad that they're seeking jurisdiction outside the Diocese. But in order to get jurisdiction outside the diocese, they-- they will have to leave the Anglican Church of Canada, those members who do, who wish it--

INT: [jumps in] Archb--


Is the Anglican church doing so well that it can afford to lose seven entire congregations? Having been involved in several of these cases, I wonder if the denominational leadership doesn't look at the whose thing as a good news/good news situation. If the congregation stays, great - the denomination gets it tithes. If it leaves, the denomination gets the property and can sell the property to fund the pension plan. [Or it can rent former church facilities to strip joints for $8,000 a month like San Francisco's Glide Memorial United Methodist.] The hierarchy gets richer, until its composed of a few like minded progressives.

 
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