The Borowitz Report has the scoop.

Dahlia Lithwick (Slate) has a funny, readable, and interesting report of the oral argument.

if you just focus on the right denominator. My former student Kevan Choset points to this AP item, on the MSNBC site:

Although "Titanic" soared at the box office in 1997, according to a recent survey, it's most memorable line -- "I'm the king of the world!" -- sunk..

British baker Warburtons posed the question "What are your top three cheesiest moments in film?" to 2,000 U.K. moviegoers in celebration of the launch of their new cheese flavored crumpets. . . .

Warburtons reports that surveyed women opted for romantic comedy moments from films such as "Notting Hill" and "Jerry Maguire" while men preferred silly scenes from action flicks like "Top Gun" and "Braveheart." Despite the gender divide, 33 percent of the overall vote unanimously agreed on the "Titanic" yell as the cheesiest moment.

CNN did better; I take it they noticed the error.

I e-mailed Jacob Weisberg to ask what he thought was Bushist about yesterday's Bushism of the Day, and he graciously responded:

The White House transcript didn't have "to." Hard to know what he actually said, but I'll switch to the Post version to make it more readable. In any case, that is not the joke. I define Bushisms as things Bush says that are funny for whatever reason, not merely mistakes.

Hmm -- that's not how I had understood the series. Here's the start of the Introduction from Weisberg's Bushisms book:

The question I am most frequently asked about the Bushisms series is, "Do you really think the President of the United States is dumb?"

The short answer is yes.

The long answer is yes and no.

Dipping into this volume may leave the impression that George W. Bush is a simple dimwit. . . . If you don't care to pursue the matter any further, that view will serve. . . .

In reality, however, there's more to it. The assemblage of a presidential term's worth of malapropisms, solecisms, gaffes, spoonerisms, and truisms -- drawn together here from the best of Bushisms old and new -- tends to imply that Bush's lack of fluency in English is tantamount to an absence of intelligence. But as we all know from experience, the inarticulate can be shrewd, the fluent fatuous. In Bush's case, the symptoms indicate a specific malady -- some kind of language-skill deficit akin to dyslexia -- that does not indicate a lack of mental capacity per se. . . .

But perhaps the Bushisms column has a broader mandate than the Bushisms book, or both are meant to be a mix not just of "malapropisms, solecisms, gaffes, spoonerisms, and truisms" -- which are either mistakes (the first four) or vacuousness, which one might think of as a substantive mistake -- but also just things that are "funny for whatever reason."

Still, isn't this line funny largely because it is taken out of context? Would it really be that funny if read with the surrounding lines, as I quote them above, and understanding that it was a response to a question about beef import policy?

And in any event, might it not be better for the Bushisms column to include links to the transcripts, so that readers can see for themselves what the context might be (especially if they assume that most Bushisms are indeed "malapropisms, solecisms, gaffes, spoonerisms, and truisms" rather than just "funny for whatever reason")?

A very interesting exchange, between columnist Paul McMasters (of the First Amendment Center) and U Chicago lawprof and First Amendment maven Geoffrey Stone.

In today's Slate:

"I believe that, as quickly as possible, young cows ought to be allowed go across our border." — Ottawa, Nov. 30, 2004

Now this one just puzzles me. Here's the relevant excerpt from the transcript. Bush was apparently responding to a question about the importation of beef from Canada to the U.S. (I can't quote the question, because it isn't included in the transcript, presumably because it's in French):

Look, the prime minister has expressed a great deal of frustration that the issue hadn't been resolved yet. And I can understand his level of frustration. There's a series of regulations that are required by U.S. law, and the latest step has been that the Agriculture Department sent over some proposed regulations to handle this issue to what's called the Office of Management and Budget. It's a part of my office.

I have sent word over that they need to expedite that request as quickly as possible.

I fully understand the cattle business. I understand the pressures placed upon Canadian ranchers. I believe that, as quickly as possible, young cows ought to be allowed to go across our border. I understand the integrated nature of the cattle business, and I hope we can get this issue solved as quickly as possible. . . .

What's "Bushist" about this? Is it that "young cows" sounds odd? Apparently it's a common industry term (see, e.g., "Management of Young Cows for Maximum Reproductive Performance," noted on a USDA site). Is it that it sounds stilted to talk about allowing the cows to go over the border, as if it's the cows' desire? But this is a pretty standard locution — speaking of goods going places, rather than people shipping goods places — and in context I doubt that it sounded at all odd.

Or is it the omission of the "to" before the "go across the border"? The Washington Post transcript quotes Bush as saying "to go across the border," as do the other sources I've checked. [UPDATE: Reader Russell Steinthal points out that Slate has since inserted the "to," though it was omitted when the item originally went up.]

And why does Slate, an online publication that has long tried hard to take advantage of its online format, persist in failing to providing links to sources that it quotes? Wouldn't it be good if readers could see for themselves how the quote looks in context?

[NOTE: I added the "Or is it" paragraph after this post was originally posted.]

Marty Lederman (SCOTUSblog) blogs about it.

The Daily Ablution quotes and critiques a column in The Independent (London) that criticizes various things, including bloggers. Referring to my New York Times article yesterday, the Independent column says:

The blurring between the expertise and experience of the professional and the enthusiasm of the amateur has become part of the culture. . . . The acme of amateur achievement is the weblog -- thoughts, opinions and news items broadcast by an individual and with a potential audience of millions. . . .

More and more Americans, it is now being said, will gather news and views from their favourite blogger, no matter how mad, ill-informed and right-wing, rather than from a newspaper or the news on television. . . .

It was unsurprising to read in The New York Times this week an article by a man with a successful weblog in which he argued that we are all journalists now, that privilege under the law should apply to the humblest blogger as it does to someone working for the national media.

The approach has a sort of crazed egalitarianism to it, but it also suggests that more than just knowledge flows from professionals and their institutions in the age of the Pro-Am. The checks and balances and disciplines that keep intolerance in check may also go. If that is what the new amateurism brings, you can start the revolution without me.

Me, a crazed egalitarian! Cool. But is it really that crazy to think that people who aren't "professional" journalists might actually be one of "[t]he checks and balances" that help keep professionals themselves -- and professionals' own occasional zones of intolerance, whether towards guns or towards President Bush or for that matter towards amateurs -- in check?

See the Ablution post for more, plus a link to the Independent article itself.

Max Boot writes about this in the L.A. Times.

Reason Express writes:

It is difficult to tell exactly what message the U.S. Supreme Court sent by rejecting, without comment, a conservative challenge to the Massachusetts same-sex marriage experiment. Does the court want a better, clearer case to address the issue? Do the justices really want the states to hash it out amongst themselves? Do they need more action on the issue from Congress? Or is the Court simply stalling for time until a new chief justice is appointed?

There is little doubt that Chief Justice William Rehnquist is gravely ill with cancer, so the last theory may be the easiest one to swallow, at least at first. But the complaint itself was rather odd, essentially asking the Supreme Court to "save" Massachusetts residents from the Massachusetts high court.

With a possible state referendum on gay marriage a key topic for debate among Massachusetts state legislators, the Court may have concluded that Massachusetts was well on its way to saving itself.

There's actually no difficulty at all here. The U.S. Supreme Court has long made clear that it has no business second-guessing that decision, even if the Justices think the state court's interpretation of the state's own constitution or statutes is flat wrong.

The Court is only entitled to review state court rulings if a federal right is involved. (For instance, if the lower court decision rejected a claimed federal right to have the state recognize same-sex marriages, then the Court would have jurisdiction, though it probably wouldn't agree to hear the case unless there were a disagreement on this federal question among lower courts.) The only federal claim in this case is that the Massachusetts' decision so far departs from the proper interpretation of the state constitution that it violates the Guarantee Clause, which says "The United States shall guarantee to every State in this Union a Republican Form of Government." But, first, the Supreme Court has long taken the view that Guarantee Clause issues are nonjusticiable, which is to say not subject to review by the courts. And, second, even if the Court might want to reverse that position, it's highly unlikely to do it in order to start correcting state judges' misinterpretations of state law.

The Reason Express item is right in part -- the Justices think that if anyone is to correct the Massachusetts Supreme Judicial Court's decision, it's the Massachusetts voters. But whether the voters ultimately do decide to correct it or not is irrelevant. Longstanding and well-settled law makes clear that the Court needs to stay out of this.

The case could be as clear as possible; Congress could be unable to act; the Chief Justice could be in the best of health; but the Court still wouldn't reconsider a decision such as the Massachusetts one. And that's because, yes, the states are entitled to decide this particular question on their own, at least without the Supreme Court second-guessing them on how their own constitutions need to be interpreted. Lyle Denniston (in Slate) also has a good piece about this.

with talk of Plame and blogs and more, are in this morning's New York Times, squeezed into 840 words.

Going through a draft of my Child Custody and Speech Restrictions paper -- it's the one I should be working on now instead of blogging this -- I realized what it was missing: Verve. "Energy and enthusiasm in the expression of ideas . . . . Vitality; liveliness."

My writing was the usual lawyerese, flabby and clausy. The substance was getting there (though it still needs a lot of work), but it was missing vigor, concreteness, punch. So I've been doing Vervification Edits as part of my substantive editing passes. Let's see if I can put some zip in. If only the verve could flow off my fingers in the first place, rather than having to be laboriously added.

"SCOTUS" is what some people call the Supreme Court Of The United States. (Some use POTUS for the President as well.) We see evidence of that in the name of SCOTUSBlog, a first-rate blog written by Supreme Court litigators, though in my experience the term "SCOTUS" is actually fairly rare among clerks and Supreme Court lawyers (who usually call it "the Court," pronouncing the capital C).

For some reason, I was just reminded today of the fact that (1) in 2001, while looking for the Supreme Court site, I foolishly went to scotus.com, rather than supremecourtus.gov, and (2) the Internet Wayback Machine can largely reproduce the mildly amusing item I found there, though unfortunately the photos (nude, but they would have been work-safe) are missing.

Howard Bashman (How Appealing) notes, apropos a Solomon Amendment case, that "In the Third Circuit, however, rehearing en banc is not available if a majority of the judges in regular active service is recused from hearing a case. A notice enclosed with the copy of yesterday's Third Circuit ruling that the court sent to me by mail indicates that a majority of the Third Circuit's active judges is recused from the case." Therefore, while I predicted that the case would go to the U.S. Supreme Court if the Third Circuit doesn't rehear it en banc, it sounds like I need to get rid of that "if" clause. Howard agrees:

Often the U.S. Supreme Court will refrain from hearing cases that involve the grant or denial of a preliminary injunction, because that relief will be superseded once the trial court issues its final adjudication. In this instance, however, that usual reluctance may not exist, because yesterday's Third Circuit ruling leaves little doubt how the case must be resolved on the merits in the district court.

What's more, because the case holds unconstitutional the application of a federal statute, the U.S. Supreme Court is especially likely to review it. Just as the Court tends to want to review "splits," which is to say solid differences of opinion, among lower courts, so it tends to want to review splits between the legislative and executive branches on the one hand and the lower courts on the other.

By the way, if anyone has any well-informed thoughts about why so many Third Circuit judges recused themselves, please let me know.

UPDATE: Several people suggested that some of the judges may be on the Boards of Trustees (or, in some schools, Boards of Visitors) of some of the private schools involved in the litigation, or might possibly teach at those schools at adjunct professors. But at this point this is just speculation; I've seen no concrete evidence. I suppose it's also possible that some might have children at those schools; I take it that's why Justice Thomas recused himself from the Virginia Military Institute case -- I doubt that recusal would be strictly required in such a situation, but maybe some judges are erring on the side of caution there.

From an AP story yesterday:

[An AP] poll found that 59 percent [of respondents] say Bush should choose a nominee who would uphold the 1973 Roe v. Wade decision that legalized abortion. . . . 31 percent, said they want a nominee who would overturn the decision . . . .

Sounds pretty striking (and I should note that it's important even given the substantial correction that I note below). But here's what the poll actually asked, courtesy of the ever-valuable PollingReport.com:

"As you may know, President Bush may have the opportunity to appoint several new justices to the U.S. Supreme Court during his second term. The 1973 Supreme Court ruling called Roe v. Wade made abortion in the first three months of pregnancy legal. Do you think President Bush should nominate Supreme Court justices who would uphold the Roe v. Wade decision, or nominate justices who would overturn the Roe v. Wade decision?"

But wait — Roe didn't just make abortion in the first three months of pregnancy legal. It also made it legal at any time before viability (limiting government regulation to that related to protecting "maternal health"); the Court said viability would be at about six or seven months (though over time, the line has moved up a bit, as the 1992 Casey decision recognized). I suspect that such months-four-to-six abortions would be considerably more controversial than ones in months one through three.

Now I should say the poll is still pretty significant, because it shows broad support for the constitutional protection of first-trimester abortions. But it doesn't show equal support for all aspects of Roe, especially its protection of second-trimester abortions. And while I realize that poll questions have to be kept simple, (1) I suspect that the polltakers shouldn't have oversimplified things this much — to the point of material inaccuracy — and (2) at least they should alert media organizations that the question contains this oversimplification.

And, of course, this is yet another reminder to be highly skeptical of media reports of surveys. Good thing that PollingReport.com now lets us check them more closely, though I suspect that no more than a tiny percentage of readers will ever check them this closely.

Incidentally, when will news organizations that post online stories actually start linking to the survey text?

UPDATE: Reader Paul N. points me to another poll, this one also on Pollingreport.com, done in January 2003:

"Thinking more generally: Do you think abortion should generally be legal or generally illegal during each of the following stages of pregnancy? How about [see below]?"

	Legal	Illegal	Depends (volunteered)	No Opinion
"In the first three months of pregnancy"	66%	29%	3%	2%
"In the second three months of pregnancy"	25%	68%	4%	3%
"In the last three months of pregnancy"	10%	84%	4%	2%

Note also that the question might also yield a different result if it were made clear that though "Roe v. Wade decision . . . legalized abortion" in 1973 — a few states, including California and New York had already legalized abortion, but throughout most of the nation it was largely illegal — overruling Roe wouldn't criminalize abortion as such, but would just leave the matter to the states (most of which would likely leave it legal in the first three months). But I'm not sure about that. I do strongly suspect, though, that describing Roe accurately, as protecting abortions in the first six months (or at least first five months, depending on where the viability line is drawn) rather than just in the first three months, would indeed yield a different result.

Of course, none of this goes to what the right answer should be, constitutionally, statutorily, or morally. I am speaking here only of misleading survey reports.

Remember those allegations early this month (feels like ages ago, doesn't it?) that there was something fishy in some Florida counties' being reported as voting heavily pro-Bush when voter registration was heavily Democrat? It seemed to me that this was actually fishy only to those who hadn't heard of conservative Southern Democrats, but people definitely brought it up (see the linked post above for an example). Here's what John Fund in OpinionJournal's Political Diary has to say about the latest in this saga; entire item reprinted with permission:

Pith-Helmeted Reporters Meet Bush Voters

Two Miami Herald reporters got a real education in red-state thinking when they decided to check out the Internet conspiracy theories that George W. Bush had stolen Florida because several counties with overwhelmingly Democratic voter registration edges had voted Republican for president. As one blogger put it, "George W. Bush's vote tallies . . . are so statistically stunning that they border on the unbelievable."

Not after the Miami Herald scribes decided to actually drop in on three of the northern Florida counties whose vote totals were questioned. Sounding as if they were cultural anthropologists visiting an exotic tribe, reporters Meg Laughlin and David Kidwell first visited Union County, where over 75% of voters are Democrats. They physically recounted the ballots cast in this month's election and concluded the results accurately reflected Mr. Bush's reported 72% victory. Election Supervisor Babs Montpetit explained: "People here are fundamentalist Christians who work in the prisons. Do you think they're going to vote for the liberal senator from Massachusetts?"

Having absorbed that observation, the intrepid pair proceeded to next-door Suwannee County, immortalized in the famous Stephen Foster song. Election Supervisor Glenda Williams showed them the ballots, which the reporters noted validated Mr. Bush's 70% victory there. "Most people in this county are against abortion and gay marriage. So they voted for Bush," she explained.

The final stop on the team's cultural odyssey was Lafayette County, where 83% of voters claim to be Democrats. Here the reporters didn't have to wait long for an explanation as to why Mr. Bush won three-fourths of the vote. A billboard on the road proclaimed "There is life before birth" and a neighborhood was called "The Christian Village." After quickly recounting the county's ballots, the reporters headed back to the Jacksonville airport, noting that the roadway was lined with "Snoball stands, chicken farms and anti-abortion billboards."

The Herald's excursion into Florida's Bush Country may not have turned up any election scandals, but the concept appeals to me. Perhaps more big-city media outlets should send expeditionary forces into rural and exurban parts of their states and report on what people there are thinking. Then fewer of them might be surprised every two years.

Yeah, a bit snide, but pretty funny.