Interesting observation by the head of the American Farmland Trust that Kelo may have an unexpected negative effect on conservation of open space: "With so much farmland on the urban edge and near cities still in steep decline, ex-urban towns could be tempted by this ruling to make farmland available for subdivisions."

The story on Commons Blog.

The Chief answering questions on whether he'll retire. (HT Drudge).

Given the subject matter of Eugene's last three posts, is anyone else wondering whether maybe he needs to get a babysitter for the kids and have a nice romantic evening out with the wife?

I have become increasingly frustrated with the infatuation of many conservatives with "intelligent design" theory. Ben Adler has a series of Q&A sesssions with various conservative plenipotentiaries on The New Republic web site on the topic of evolution and intelligent design. While some of them acquit themselves well (by my subjective assessment), others do not. There is much nuance in their responses.

It is not precisely clear what Adler's intent is, whether it is to simply gather information or to try to embarrass conservative leaders. My strong impression is that it is the latter, as he invokes the old argument from authority at the header of the story to demonstrate this as the settled opinion of science and so intelligent design theory is non-scientific. If the effort was to embarrass, then with respect to some participants, it is evident that they should be embarrassed. I personally have little patience for the intelligent design argument. As for the political questions, given all the crackpot things taught in schools these days across the curriculum, and given that for some reason we choose to run our schools through political bodies (school boards) it is not obvious to me why this particular politically-motivated curricular innovation is really that much different from many other questionable curricular questions--unless it is because it is argued that "intelligent design" theory is religious theory rather than science (note that this is a claim, from what I can tell, that intelligent design theorists reject).

But if the problem is the influence of religious belief over science, then there is a more important point here that is relevant--the left (such as The New Republic, which conducted this survey) plainly have their own "religious" beliefs when it comes to scientific questions. If we understand "religious" in this context along the lines of "unquestioned truths taken on authority" that render "taboo" certain scientific topics of inquiry or which is impervious to rejection by evidence, then it is plain that in some areas the left has elevated "religious" belief over scientific inquiry by turning certain scientific questions into unquestionable articles of faith, rather than open questions subject for scientific inquiry.

Here's a list of questions on which I suspect that if asked of leading leftist intellectualspolitical leaders would reveal among some of them the triumph of their "religious" faith over scientific inquiry:

1. Are differences between men's and women's aptitudes solely a result of society and culture, or is there an evolutionary basis for some of those distinctions?

2. Do you think that schools should expose children to the scientific hypothesis that evolution has produced innate differences between men and women that partially explains differences in interests and aptitudes, or should they teach that all differences are socially-constructed?

3. Do you believe that Harvard's faculty was correct in censuring President Larry Summers for offering the hypothesis that differential performance by men and women in math and science achievement at elite universities may be in part the result of differential distribution of natural abilities in math and science between men and women at several standard deviations above the mean?

4. Do you believe that the theory of evolution applies to the evolution of mental traits as well as physiological traits?

The last question I refer to elsewhere as the question of "Neck-down Darwinism"--the idea that evolution applies only to the evolution of physical, but not mental, traits. I also want to make crystal clear that at all times I am referring to the question of whether men and women have selected-for evolutionary adaptations that make them different, not "better" or "worse" (in the same way that a female's ability to produce milk to nurse a baby is simply different, not better or worse than males who lack this ability).

My hunch would be that such a survery would reveal that the left's religious faith in political correctness and its trump over scientific inquiry would prove as powerful for some liberals as traditional religious faith seems to be for some conservatives. And to my mind, equally embarrassing.

As a policy question, there is one difference between religiously-motivated science on the left and the right may or may not be relevant. This is that the right's program is to add new (dubious) ideas to the educational system (i.e., add intelligent design to the teaching of evolutionary theory) whereas the left's goal is to censor and exclude investigation of certain (potentially explanatory) scientific hypotheses from the educational system. As a policy question, my sense is that most people ascribe to something like a "free marketplace of ideas" conceptualization of education, meaning that they would prefer to err on the side of including erroneous ideas if they are also countered by better ideas, rather than the exclusion of potentially true ideas. I personally would have no problem with excluding ID and including EP, but then I think that these investigations should be questions of science, not religion.

[For those looking for an accessible introduction to Evolutionary Psychology, I recommend "Evolutionary Psychology: A Primer" by Leda Cosmides & John Tooby.]

Update:

Rereading my original post and some of the Comments, I recognize that my frustration with both sides in this debate got the better of me and caused me to present my point in an suboptimal way that obscured my central point. So I have substantially rewritten the post with largely the same content and a more useful presentation. I have retained the original post as "Hidden Text".

Update:

Oddly, Pharyngula says that I critique a straw man--while turning my argument into a straw man. Obviously there is an interaction between nature and nurture, which I thought was quite clear in my post and in my article linked in my post. And if the left is willing to acknowledge this fact, then that is great. Then we are left with an empirical question of understanding how nature and nurture interact. On the other hand, my impression is that there are many on the left who continue to deny any role for nature and instead adhere to a model of social construction of many of these traits and attributes.

Pharyngula also says:

This does not equate to asking liberals about subjects on which scientists legitimately and vigorously disagree—this is something on which we can reasonably expect to find disagreement among pundits, disagreement which is not indicative of a disconnect with the scientific community.

***

As for evolutionary psychology, I'm a biologist, and I'm in the camp that says it's a load of poorly done hokum, so I'll forgive Paul Krugman if he should think EP is junk; I'll be less pleased if he says he agrees with it, but since EP does have many proponents in academe and is taught at places like Harvard, I'll just have to roll my eyes and be understanding.

Now this is quite a sweeping indictment of the field of evolutionary psychology--the entire field is "a load of poorly done hokum." I am not aware of of any substantial disagreement among knowledgeable scientists on the following concepts in evolutionary psychology (just to name a few): Hamilton's theory of kin-group selection, Trivers's theory of reciprocal altruism, the innate ability to acquire culture, the unusual degree of plasticity of human minds relative to other species, the parent-child bond, certain types of aversion and disgust, the incest taboo, an innate ability to detect intentionality, that our brains neural circuits were designed by natural selection to solve problems that our ancestors faced during our species' evolutionary history, the specialization of different neural circuits for solving different adaptive problems--just to mention a few.

It is my understanding that there is little disagreement, much less "vigorous" disagreement, among knowledgeable scientists on these particular points. Perhaps Pharyngula is aware of raging debates over Hamilton's kin-selection theory, fo instance, of which I am unaware. If so, it would be useful for me at least to see some actual critiques of the specifics of some of these core concepts in evolutionary psychology, rather than a blanket dismissal of a straw-man version of evolutionary psychology with little more than a dismissive hand-wave and tired appeal to a purported authority.

There are also certainly plenty of other issues in evolutionary psychology around the periphery on which there certainly is disagreement (which is why, where relevant, I conditioned my claims accordingly). But it is just as erroneous to assume that all questions are unsettled as it is to deny the presence of unsettled questions. To suggest that the entire field is "hokum" or that it is all up in the air or subject to disagreement is simply inaccurate.

Perhaps most curiously of all, Pharyngula seems to be fundamentally illiterate in statistics. It is nonsensical to talk about "counterexamples" to a description of a statistical distribution. If he understood statistics, he would recognize that the "room full of counterexamples" are actually what a statistician would refer to as "observations" or "data points" in the distribution beind described. The idea of a "counterexample" is fundamentally irrelevant to this problem.

Update:

In response to PZ Myer's assertion that evolutionary psychology is "poorly done hokum" and that there is "vigorous disagreement" about the entire field of evolutionary psychology I requested (quite reasonably, I thought) that Myers supply some specific examples of scientific disagreement over many of the core principles of evolutionary psychology, such as Hamilton's theory of kin selection. He has responded to this request for specifics that would support his claim that the entire field "poorly done hokum":

That semi-random list of principles is not the same as EP. It's like saying that because Michael Behe understands and agrees that natural selection has occurred, Intelligent Design is therefore the same as accepted neo-Darwinian theory. Picking a few points of concordance while ignoring the points of divergence between two ideas to imply a unity of support that is not there is, well, dishonest.

Nah, I'm plainspoken. He's lying. There is substantial disagreement in the biological community on evolutionary psychology, and to imply that this question has been settled in his favor is either gross ignorance on his part or simple fraud. Of course there is currently an ongoing battle over EP; check out the last link in my article.

I'm actually being kind by conceding that there is a legitimate debate on the subject. I know very few scientists who don't think Pinker is full of shit.

Ah, so now I understand--no need to respond to my request for analysis, because, well, "Pinker is full of shit." Why attack Pinker out of the blue when I never even mentioned him, rather than addressing the specifics I raised? Is Myers basing his entire attack of the field on that one book? Then, falling back (again) on the good old reliable argument from authority, he also links to an interview with philosopher David J. Buller, a critic of evolutionary psychology, who raises doubts about some aspects of the evolutionary psychology research program. Apparently citing an interview with this particular philosopher where he critiques some aspects of the evolutionary psychology research program sufficies to demonstrate that the entire field is "hokum" and that the entire field is open to question (it is not clear whether Buller is one of the scientists, actually he's a philosopher so he may not be included, who think that "Pinker is full of shit"--if so, that must be in his book because I couldn't find that particular quote in the interview he links).

If anything, it seems like the argument Myers is making is much closer to the ID argument that he critiques, than the argument I was making. As I understand the ID argument, it picks up on small holes in the theory of evolution or questions around the edges of the theory, and then proceeds to infer that the entire theory is open to question. Similarly, I have enumerated a long list of core (not semi-random at all) evolutionary psychology ideas on which there seems to be a substantial degree of agreement. Indeed, from what I can tell, he does not disagree with my assessment that there is widespread agreement on these concepts, he simply dismisses this agreement as irrelevant under his particular definition of evolutionary psychology. His response, as I understand it, is that this scientific agreement on these many core principles of evolutionary psychology is irrelevant because there are some unsettled questions around the edges of the research program, and so that therefore the whole research program itself is questionable and that there is controversy about the entire field. This seems much more similar to the arguments that I have read by ID theorists critiquing Darwinian theory, rather than the arguments that I was making. For the record, I don't know whether adherents to intelligent design theory also think that Pinker (or Darwin, for that matter) "is full of shit."

I don't see anything "dishonest" in saying--as I already did--that there is a substantial degree of many of the central points of evolutionary psychology but substantial questions remaining around the margins of the field, and that therefore we should proceed in a spirit of open inquiry and not shut off debate and study of particular hypotheses. Sure, I could be wrong (which is why I asked for specific critiques of the propositions I was citing), but that certainly seems a long way from "dishonest."

Or perhaps Myers's point is that rather than specific critiques we'll just have to take it on "faith" that evolutionary psychology is nothing more than "poorly done hokum" and to suggest otherwise is not only incorrect, but "lying" and "dishonest." But then again, that was my point in the first place wasn't it--that it appears that the problem with evolutionary psychology in some quarters is that it violates a deeply-held religious faith?

Finally, just to clarify again, when I use the word "different" I actually mean "different," not better, worse, or something similar. There is nothing normative in saying that men and women, on average and where relevant in statistical distributions, have differential abilities in the ability to lift heavy objects, throw rocks, nurse children, verbal acuity, or spatial-reasoning skills. This says nothing about the location of particular individuals within the distribution, but I suggest, could provide some explanation for the aggregate distribution of individuals along the distribution, such the paucity of women in the National Football League, for instance. But, then again, as mentioned Myers seems to be a bit confused on the concept of a statistical distribution (he thinks it is possible to provide "counterexamples" to a description of a statistical distribution), so who knows what he would make of the relative absence of women from the NFL.

Bruce Ackerman, writing in the L.A. Times today:

In retrospect, Souter and Thomas have turned out very different. Souter has developed into a moderate conservative in the tradition of John Marshall Harlan, the great dissenter to many of the activist decisions of the Warren court, but a firm believer in the right to privacy and due process of law.

Thomas, in contrast, has established himself as the most reactionary jurist of the modern era. He is the only member of the high court who claims that the New Deal expansion of federal regulatory power was a "wrong turn," that the Constitution permits a state such as Utah to establish Mormonism as its religion, and that American citizens may be detained indefinitely on the say-so of the president.

Um, yeah, David Souter--definitely a "moderate conservative."

For the record, he labels O'Connor a "conservative pragmatist" which, from what I can gather, is somewhere between "moderate conservative" and "reactionary".

Book listings on Amazon.com now list, among other things, "Statistically Improbable Phrases (SIPs)". For instance, the listing for Bernard Malamud's "The Natural," contains these SIPs: "bassoon case, dugout steps".

Can someone enlighten me as to why Amazon provides this particular bit of information?

The final agenda for the July 14-15 Joint FTC-HHS Workshop on "Marketing, Self-Regulation, and Childhood Obesity" has now been posted.

Shirley Abrahamson is a new addition to Tradesports Supreme Court Nominee market (at least I assume that is the correct Shirley Abrahamson).

It isn't clear why she was added to the market though, as no one has actually made a trade on her.

My intuition that there is little political gain to be had with Court appointments is reinforced by this story during the filibuster of the Miguel Estrada nomination, which reinforces my perception about the low salience of these sort of political questions regarding the courts:

Mr. Bendixen's poll found that 28 percent of Hispanics support the nomination, while 11 percent opposed it and 61 percent weren't aware of the nomination or didn't have an opinion.

He said that, based on listening to some of the poll interviews, it was clear many of those who supported Mr. Estrada were also confusing him with actor Erik Estrada, who was on the 1977-1983 television police drama "CHiPS" and is now a popular Spanish-language soap-opera star.

"Many of them think President Bush nominated Erik Estrada — I'd say a good third think that way," Mr. Bendixen said, adding that he heard one person say Mr. Estrada should be confirmed because he did such a good job playing a policeman on "CHiPS."

Republicans' own numbers confirm that most Hispanics aren't aware of the situation. A poll released last week of 800 Hispanics, taken by Alexandria-based Latino Opinions and not limited to registered voters, showed that just one-third were aware the Estrada nomination is pending and being blocked.

I suspect that the American public in general was even less aware of all this than those in the poll (of course, most Americans probably couldn't recall either Erik or Miguel). Of course, the Supreme Court is much higher-profile in the public's perception, but it does raise doubt in my mind about the likely political impact of such an appointment on Hispanic voters.

Some, such as the Washington Post today, have argued that a possible Gonzales nomination forces the President to choose between two goals--making the Court more conservative vs. "reaching out" to Hispanics on behalf of the Republican Party.

This seems to reflect the conventional wisdom. With respect to the latter, is there any evidence that Supreme Court nominations actually result in any political gain? For instance, is there any evidence that Reagan's appointment of O'Connor has actually made women more likely to vote Republican? Or that Clarence Thomas's appointment helped Bush with black voters? Or that Scalia's appointment as the first Italian-American increased the Italian-American vote for Republicans? (I'm actually serious about this one--some of the Nixon tapes reveal that Nixon considered appointing an Italian-American, Polish-American (for obvious reasons, Nixon's mention of "a Pole" sticks in my head), or similar "ethnic" American to the Court for these political reasons). Or that appointing the promised southerner Powell, had any positive impact for the Republicans in the South?

I've genuinely looked for empircial evidence on this, but have never been able to find any evidence. I would welcome any info that anyone can provide.

My instinct is that these political calculations are largely invalid when it comes to the Supreme Court. I just don't think the public's thinking about Supreme Court Justices run this way. 65% of Americans can't even name one Justice (although of those who can be named, O'Connor and Thomas are the two most-frequently named). I am skeptical that the political party that appoints a "first" sees any long-lasting political effect.

My perception is that there is not much political gain available here. So to return to the purported political "tradeoff" mentioned at the outset, the President's choice here seems to be between a tangible political loss with conservatives versus an ephemeral or even imaginary political gain with Hispanics. Not to mention that such an appointment would leave the President potentially vulnerable to losing political support by being attacked as "anti-woman" for replacing the "first woman Justice" with a man.

Of course, this is just the political tradeoff, leaving aside the more important issue of who is the best person available. Recall that when last confronted with a similar monumental choice, President Bush ignored the conventional wisdom when he chose Dick Cheney as his running mate. In that choice, I think that Bush probably was aware that even though the conventional wisdom was that there is all kinds of political calculations in picking a VP, it is my understanding that there is little empirical support for the proposition that the VP choice makes much of a political difference.

If anyone has any empirical evidence on the political effect of prior "firsts" please send it my way.

From Gail Heriot on the Right Coast.

Subject to all the usual caveats, an extensive discussion of a new Gallup Poll on the Supreme Court nomination. Lots of interesting stuff.

The FTC has released its report on gasoline prices. The Press Release and link to the report (as well as Comm. Liebowitz's concurring statement) can be found here.

From the Press Release:

One of the Report’s conclusions is that over the past 20 years, changes in the price of crude oil have led to 85 percent of the changes in the retail price of gasoline in the U.S., while other important factors have included increasing demand, supply restrictions, and federal, state, and local regulations such as “clean fuel” requirements and taxes.

Some interesting findings in the report(my idiosyncratic list of things I found interesting, there's a lot more in the report):

1. Increased demand for world oil supplies, especially as the result of rapid economic growth in India and China, have dramatically increased the demand for crude oil. Crude oil prices are 85% of the cost of gasoline. World demand for other raw materials that form the basis for expanded growth in developing economies, such as steel and lumber, has also risen.

2. For most of the past twenty years real average annual gasoline prices, including taxes, have been lower than for any time since 1919.

3. In some situations, environmental regulations that require the use of boutique fuels lead to increased price variability, especially in California.

4. The presence of "Hypermarket" sellers of gasoline in a market, such as Wal-Mart and Safeway, tend to reduce prices because of their lower costs.

5. In 2004, the average state sales tax on gasoline was $0.225 per gallon which increases the cost of gasoline (duh).

6. Bans on self-service sales, such as in New Jersey and Oregon, increase prices (duh again).

7. Bans on so-called "below cost" sales of gasoline appear to raise gasoline prices by chilling competition. (I commented on Maryland's vigilance in protecting its citizens from low gas prices some time ago).

The whole report is long, but well worth reading for anyone interested in this issue.

I suspect that there's not much about the coming Supreme Court confirmation battle on which Peter Rubin and I will agree, but the fact that the filibuster deal will have little binding force on the nomination circus seems to be one.

Commenting on the same Washington Post story I referenced this morning, Peter Rubin argues on the ACS Blog that the impending Supreme Court nomination showdown makes clear that the filibuster deal was an "enormous win for the Democrats":

The Post’s analysis, though, does not withstand scrutiny. Everyone knew at the time the compromise was struck that “extraordinary circumstances” were not defined; and everyone knew there might be a dispute about whether those words included, for example, replacing a moderate Justice with a very conservative one who would tip the Court’s ideological balance with respect to certain fundamental constitutional values. * * * This leaves Democratic members of the Gang of 14 to decide for themselves what they believe qualifies as extraordinary circumstances, and to act as their consciences dictate with respect to the filibuster.

Hmmm, sounds familiar.

Rubin argues that the deal is a net winner for the Democrats, because it enabled them to preserve the filibuster until a more fortuitous time, in that his view is that the public will not stand for "changing the rules in the middle of the game" when it comes to the Supreme Court, and that the time for Republicans to strike would have been when the issue surrounded lower-scrutiny appellate court nominees.

He could be right, and I suspect neither of us have a great sense of how this would all play out across the country if the constitutional/nuclear option resurfaces, but my personal intuition runs the other way. My intuition is that to the extent that most people care, they will be more prone to seeing a debate over the filibuster and procedural gamesmanship as inside the beltway silliness. I think that the American public generally are not "proceduralists" when it comes to evaluating government activity and don't care too much about this stuff. Witness the hostility toward Gingrich in the 90s government shutdown, the popularity of guys like Arnie and Jesse Ventura in promoting themselves as a problem-solvers impatient with procedural obstacles, and the longstanding of Perot-types who oppose "gridlock" (otherwise known as bicameralism and separation of powers) and special interests. So, notwithstanding the possible fairness appeal of "don't change the rules in the middle of the game," my personal intuition is that a line of attack that tries to defend the filibuster in the context of a refusal to hold an up or down vote on a Supreme Court nominee strikes me as a loser for the Democrats.

In part this is because, as I noted some time back, the longstanding American tradition has been that where the filibuster has been abused to systematically frustrate the majority (such as with anti-lynching or civil rights legislation), rather than being used simply to promote true extended debate by the minority, my reading of the history has been that the response has been to change the filibuster rules to prevent future such occurrences.

Majority vote, up or down, has a very deep claim on the American imagination.

So, leaving aside whether it is actually an unfair changing of the rules in the middle of the game to invoke the constituitonal/nuclear option in the event of a filibuster of a Supreme Court nominee, my intuition is that is an argument that won't win with the public if it comes to that. It seems hard for me to see how it could be a winner for the Democrats to go to the public with the issue that a new Supreme Court term should start one Justice down the confirmation of a successor should be delayed because they oppose an up-or-down vote on a nominee.

I think the proceduralist arguments were losers when the Republicans made them when the Democrats controlled the Senate (after the Jeffords switch) and I suspect that they would be losers for the Democrats now. For better or worse, I suspect that the public has little patience for these issues when they seem to stand in the way of getting things done.

And while we're at it maybe we can come up with a new neutral term for whatever the "___ option" is.

Update:

Doh--A Commenter reminds me that O'Connor's resignation is effective as of the confirmation of her successor, so there wouldn't be a vacancy, just a delay in the confirmation of a successor. I apologize and have changed the post text accordingly.

It's official.

There are many good things about living in Washington, D.C., but sometimes it all gets a bit tiresome:

A free association exercise: Think of a Washington Nationals baseball cap. What's the next thing that pops into your head?

Some people think of the old Senators, whose caps inspired the new team's logo. Some think of the first-place team they now root for, or of hometown pride.

Then there are those steeped in the kind of partisan perspective that forced the french fry to decide whether it was with us or against us. They can't get past the "W," as in the president's trademark middle initial.

That can be good: "My immediate reaction was, 'W! Perfect!,' " said Dan Mintz, 57, of Bethesda. "Not only do I get to root for Washington, but I get to root for George."

Or it can be bad: "I just couldn't get myself to wear the red hat with the 'W' on it," said Jerry Stewart, 41, of Sterling, who bought a replica of the cap the Nationals wear for away games. Those hats are Democrat blue; the home caps are Republican red.

Give me a break. Can everyone around here just knock it off for once?

"Vacancy Starts a Fundraising Race: Court Nomination Battle Could Rival 2004 Election's Totals":

The effort to fill the Supreme Court seat being vacated by Justice Sandra Day O'Connor has already become a fundraising magnet for both left and right that promises to rival the 2004 presidential campaign for the rate of cash flow, if not total dollars raised.

The prospect of shifting the Supreme Court to the right has fueled a quest for dollars by conservative and liberal interest groups that will halt only if President Bush does the unexpected and nominates someone acceptable to all sides.

Under the scenario of an ideological battle, participants predict the competition for cash will turn the Senate confirmation into the most expensive nomination fight in the nation's history, certain to break $50 million and, if the nominee is especially controversial, likely to approach $100 million.

Most of the money raised would not be publicly reported. With the exception of such groups as MoveOn PAC, many organizations active in the fight are tax-exempt and have few, if any, disclosure requirements.

In a recent symposium published in the Richmond Law Review (available on Westlaw), Edith Jones commented on the judicial confirmation process:

These observations would not be complete without some prediction of what the future will bring or some prescription to resolve the current impasse. In a previous article, I concluded that:

The problems of judicial selection, in my view, are not so much a cause as a symptom of the deeper division in views as to what constitutes the rule of law. If the purpose of law, broadly speaking, is to effectuate political change, then, clearly, judges are political actors who must be accountable to the public like other politicians. If, on the other hand, the principal role of judges is to interpret existing law, while changes of legal policy are within the province of the executive and legislative branches of government, then judges have a more limited, though still essential, role in democratic government. For much of the twentieth century, mandarins of the law viewed the courts as agents of social change and the law as contingent, evolutionary, and ultimately subservient to political expediency. Federal judges long ago caught on to this heightened view of their power, and it was inevitable that state judges would do the same. As judge-made law became more involved in politically sensitive areas, the appointing authorities reacted accordingly. The politicization of selection processes followed the politicization of judicial decision-making, which in turn followed twentieth century currents of judicial philosophy. Today's "ethics" of judicial selection recognizes the politicization of the judges' role.

The restoration of more civil and objective selection processes will not occur until the reigning legal philosophy becomes less ambitious and overweening. That is to say, when the rule of law is again tethered to respect for the executive and legislative branches of government; to traditional legal craftsmanship, to continuity, to moral values; and to limited social aims, judicial selection will not provoke such battles. Philosophical change of this dimension often takes decades to mature and influence society's thinking.

Three years later, my diagnosis of the root problem and the timeline for its ultimate solution remain the same. The prospect for a short-term remedy to the politicized judicial confirmation process is grim, however, barring a decisive change of personnel or rules in the Senate. The indiscriminate use of the filibuster and the resort to public character assassination in hearings are reminiscent of tactics employed fifty years ago by southern senators and Joseph McCarthy to achieve their ends. We now know, of course, that those tactics represented the dying gasp of doomed movements. Politicizing the selection of federal judges ought to share the same fate.

As Ribstein notes, surely there is demonstrable social value in nominating someone to the bench with deep judicial experience and a well-developed judicial philosophy.

As others have noted, Gonzalez futures at TradeSports exploded sometime yesterday.

When I looked a couple of days ago, Garza was way ahead, trading at 30 with all others including Gonzalez) down in the low teens. Where Garza futures are headed also seems reflected in his large bid-ask spread.

Gonzalez also has the most trades on the market--does anyone know how much it would take to move this market significantly in a day or so?

Hanno Kaiser proposes it.

As I noted the other day, a fight over any Supreme Court nominee is inevitable because the interest groups already have the money and it is earmarked for this purpose (what are they going to do, give it back? decide not to run the ads they have planned?).

Perhaps the best analogy is World War I--once the first domino falls (O'Connor's retirement) the alliances on both sides will take on a life of their own.

Michael Barone predicts a fight for similar reasons:

Nor is there any indication that People for the American Way or the Alliance for Justice will not oppose any Bush nominee with every ounce of strength they have.

These groups exist for the purpose of defeating Republican judicial nominees, and their financial supporters -- the big money people and those sending in small amounts in response to direct mail appeals -- would be furious if they meekly accept a Bush appointee as Republican senators accepted Stephen Breyer and Ruth Bader Ginsburg when they were nominated by Bill Clinton. Not opposing nominees would be an act of self-destruction for these groups, and Washington lobbying groups are not in the habit of self-destruction.

As for Democratic senators, they have almost unanimously accepted direction from these groups. As independent-minded and candid a senator as Russ Feingold of Wisconsin was seen reading questions to a Bush nominee off the papers supplied by these groups. A major Democratic constituency, the feminist left, expects a fight against any Bush nominee. The Democratic senators surely will not disappoint.

This means that Democrats will filibuster any Bush nominee, while the left groups attempt to tar them with any charge they can dream up.

A friend who is a professor at another law school sends along this request:

I hope you don't mind another effort to pick your brain as I compile materials for my Law & Econ class. For takings, I'm assigning Thomas Merrill's 1986 article on "public use," and I'm trying to add a few short economics-minded discussions of Kelo. First, I was planning on assigning your and Eugene's blog posts on Kelo.

Second — and here's my question — do you know of any pro-Kelo articles / blog posts that are economics-minded? Most of the pro-Kelo stuff I've seen is either (1) "economic development is good, so it's 'public use'" or (2) the outcome in Kelo was dictated by precedent. I'm not too interested in those points; I'd like an economics-minded argument for a broad construction of "public use." If you don't know of any such pro-Kelo items, I'd settle for a pre-Kelo economics-minded argument for a broad construction of "public use."

I checked with Eugene and neither he nor I have come across anything along these lines in the blogosphere. If any readers have seen any economic analysis of Kelo that makes an economically-sophisticated argument in favor of a broad construction of Kelo, please send me an email with the link or post it in the Comments. If anyone comes up with anything, I'll post the links.

Thanks.

Update:

Two people have contacted me with their arguments for an economic defense of Kelo, here and here.

"Filibuster Deal Puts Democrats In a Bind: Pact May Hinder Efforts to Block High Court Nominee":

The pact, signed by seven Democrats and seven Republicans, says a judicial nominee will be filibustered only under "extraordinary circumstances." Key members of the group said yesterday that a nominee's philosophical views cannot amount to "extraordinary circumstances" and that therefore a filibuster can be justified only on questions of personal ethics or character.

Seriously, does anyone actually believe any of the 14 Senators are going to feel bound in any way by the deal? It has been obvious from the beginning that "extraordinary circumstances" is an empty term, and there is little doubt that any of the filibuster compromisers could easily cook up some reason to find "extraordinary circumstances."

As for whether "philosophical views" constitute "extraordinary circumstances," remember that those who attacked Bork simply redefined their philosophical objections as questions about his temperament. And Estrada was filibustered because of his unwillingness to respond to unreasonable and overreaching document requests.

The only silver lining in all this is that the filibuster deal itself was an unconstitutional abdication of the Senate's advice and consent obligation in the first place, so if this provides the triggering event for its demise, so much the better.

From today's Washington Post:

A planning document for Senate Judiciary Committee Republicans says the nominee will be counseled to avoid disclosing "personal political views or legal thinking on any issue" in an effort to put a focus on qualifications rather than specific issues, including same-sex marriage and the government's treatment of suspected terrorists.

Democrats signaled that whoever the nominee is, their three likely lines of attack will be to assert the White House did not consult them sufficiently, then paint the nominee as ideologically extreme and finally assert that the Senate had not received sufficient documents about the candidate. But Senate Democratic aides said they will focus for now on bipartisan consultation and not publicly prejudge the nominee.

In case you missed it, Richard Epstein comments on Kelo (not to ruin the suspense or anything, but he doesn't like it).

Law.com profiles those who it believes are involved in the President's inner-circle of advisors for Justice-picking.

In the Mark Steyn column noted earlier he cites the fact that Arnold, Missouri is using the eminent domain power to take 30 homes, 14 businesses, and the local VFW to put in a Lowe's and a strip mall.

More details on that project here. In addition to using the government's eminent domain power to assist the development, the city has also provided $21 million in tax incentives:

Overland-based THF Realty wants Arnold to use eminent domain, if needed, to take over about 45 homes and business to make way for a new strip mall on 38 acres southwest of Interstate 55 and Highway 141. Critics have denounced the $55 million project as corporate welfare, because the developer wants $21 million in tax-increment financing.

IJ is keeping tabs on the latest post-Kelo developments around the country.

Steyn also mentions the Newark project, which is also mentioned on IJ's site:

Newark officials want to raze 14 downtown acres in the Mulberry Street area to build 2,000 upscale condo units and retail space. The Municipal Council voted against the plan in 2003, but then reversed its decision eight months later following re-election campaigns in which developers donated thousands of dollars. Officials told the Associated Press that the Mulberry Street project could have been killed if the U.S. Supreme Court had sided with the homeowners in Kelo.

In honor of July 4, some raucus and well-timed fireworks from Mark Steyn giving the Supreme Court a well-deserved helping of derision. I recommend the whole thing--every sentence is hilarious. Here's a snippet:

Rule by the judicial interpretation of principles is problematic enough for some of us. But rule by the judicial interpretation of lack of principles takes us to dizzying new heights. Last week, in two rulings, the Supreme Court decided that (a) displays of the Ten Commandments are constitutional and (b) displays of the Ten Commandments are unconstitutional. Don't worry, all nine judges aren't that wacky, just the deciding vote in both 5-4 decisions. That belonged to Stephen Breyer, who nixed the Ten Commandments in Kentucky but gave 'em two thumbs up in Texas. His basis was that the Texas Commandments had been there 40 years and were thus part of "a broader moral and historical message reflective of a cultural heritage," whereas the Kentucky display was newer and "a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive." Really? Not as "certainly likely" to prove divisive as grandfathering the display of some Commandments but not others, so the only way to be sure yours is constitutional is to sue over it. For one thing, Justice Breyer didn't identify the year in which he believes the Commandments ceased to be constitutional -- 1968, 1973? Or maybe a sliding scale? If you put up the Commandments before 1965, you can have all Ten; between 1966 and 1979, you can have six firm Commandments plus a couple of strong recommendations; from 1980 to 1991, it's two Commandments and a half-dozen lifestyle tips? To be sure, the Supreme Court took other factors than the year of manufacture into consideration -- whether the display was inside or outside, whether it was surrounded by a full supporting cast of religious artifacts or secular knick-knacks, etc. But it's hard to discern any principles here, at least when compared to their one-size-fits-all abortion absolutism. To the best of my knowledge, Justice Breyer has never claimed you can have a first-trimester abortion in the parking lot, but for the full partial-birth you must be indoors.

He also gives an update of life for homeowners after Kelo:

Nonetheless, across the fruited domain, governments reacted to the court decision by sending the bulldozers round to idle expectantly on John Doe's front lawn: Newark. N.J., officials moved forward with plans to raze 14 downtown acres and build an upscale condo development; Arnold, Mo., intends to demolish 30 homes, 14 businesses and the local Veterans of Foreign Wars to make way for a Lowe's Home Improvement store and a strip mall developed by THF Realty.