Saturday, November 6, 2004

Evan Thomas' great Newsweek story about the two campaigns.-- I have been reading the very long online Newsweek story about the election, which is apparently the heart of their special election issue. Although navigating through it is a bit of a hassle and the final chapters are not online (unless I've missed them), there is some great reporting by a host of Newsweek stalwarts and some first-rate writing by Evan Thomas, who wrote it up.

This is the MSM at its best, which (we need to remember) is awfully good.

Surprisingly, the only weak section is the clunky introduction, which is more speculative and not as strongly written as the rest. Once Evans gets into the details of the campaigns, it is a rolling good read with lots of amusing moments.

NEWSWEEK reports that it got special access on condition of not revealing information until after the election.

To read most of the sections, click on each of these, then continue to the other pages in each chapter:


Ch. 1

Ch. 2

Ch. 3

Ch. 4

Ch. 6

As a teaser, here is just one of many stories about Bush or Kerry that I haven't heard about before:
On Dec. 9 Al Gore showed the political fingertips that lost him the 2000 election. He endorsed Howard Dean, probably at the precise moment when Dean had peaked and was about to head down. Gore's endorsement came as a blow to Kerry, who had thought Gore was his friend, or at least his political ally. When the Kerry camp heard the rumors that Gore was endorsing Kerry's opponent, Kerry tried to call the former veep to find out if it could be true. Kerry had Gore's cell-phone number and called him. "This is John Kerry," he said when Gore answered. The phone went dead. Kerry tried to call several more times and never got through. He was hurt. "I endorsed him early. I was up for consideration as his running mate," he complained to an aide.
UPDATE: On balance, Kerry comes off as a very decent (if indecisive) man. There was one passage that dealt with his willingness to see the Iraq War through to conclusion that bears reading:
Former Clinton pollster Stan Greenberg had been pressing Kerry to tie the war to domestic needs—to declare that $200 billion spent on Iraq meant that much less funding for education and health care at home. Kerry used the line in a few speeches, but reluctantly. He didn't really believe it. In truth, he was willing to spend whatever it took to win in Iraq, or at least to extricate the United States with some semblance of honor.

Still, he was appalled by the carnage in Iraq and the waste of the war. On Sunday night, Sept. 19, the campaign staff met to discuss, one more time, the candidate's position on Iraq. The Clintonistas pushed a harder line against the war. But the campaign's old guard wasn't so sure. Couldn't Kerry play it both ways? Shrum cautioned against appearing too dovish. Kerry seemed to let the debate go on, circling around and around.

But then he spoke. "It's gut-check time, folks," he said. "This is not about whether it's politically expedient. This is a f---ing war. Kids are dying out there, and this president continues not to tell the truth. You'd have to be out of your mind to go in there the way he did. There was no WMD, no imminent threat, no ties to Al Qaeda. The answer is no. Anything else is crap."

Kerry had decided to be the antiwar candidate. Not for the first time, to be sure. He had called himself an antiwar candidate when he was trying to peel off the Dean vote in January. But he spoke without any equivocation this time. The next day he gave a blistering speech at NYU, attacking Bush for the folly of invading Iraq.
A Tragic Story of Wrongful Conviction:

Details here. Thanks to Talkleft for the link.

Debka on plans for Arafat's funeral.-- Some of us rarely link, an Israeli site run by former Time Magazine reporters, despite its record of important scoops, because it also publishes some farfetched and ridiculous stories. Its strongest reporting is on Israeli politics, followed by Palestinian infighting. Here it seems pretty reliable and extremely insightful. Once it moves out of that realm to Iraq, Africa, and Afghanistan, it becomes increasingly unreliable and sometimes ludicrous.

With that caveat and a grain of salt, here is some of what Debka is saying about plans for Arafat's funeral:
From the moment on Thursday, November 4, when a French official stood outside Percy military hospital and solemnly declared "Mr. Arafat is not dead," preparations rushed forward for his funeral. The immediate outcome was a split that rent the Palestinian leadership and Arafat's associates into two camps.

Jihad Islami, Hamas, Al Aqsa Martyrs Brigades and the other Palestinian organizations with a vested interest in continuing their campaign of terror against Israel were quick to plant a concocted rumor in the Palestinian street and mosques that Israel had slowly poisoned Arafat. This stratagem was intended to fan the flames of anti-Israeli violence and discredit moderate Palestinian leaders with thoughts of dialogue or peace - or even the ceasefire which Mahmoud Abbas is trying to broker. It was meant to make the Palestinians angry enough to refuse any accommodation with the Jewish state and insist on stepping up its war. This would tilt the succession struggle against the moderates and for the champions of continuing confrontation.

The failure of the Percy hospital's physicians to publicly diagnose the ailment that brought Arafat to their institution - contrary to custom for public figures - gave wings to all kinds of vicious rumors about his illness. It enabled the Palestinian extremist factions to blacken Israel to gain an edge in round one of their fight for the succession.

DEBKA-Net-Weekly's sources in Ramallah and Paris describe the first camp as consisting of his wife, Suha Arafat, and personal aide Ramzi Khouri, who share a longstanding bond as members of the Christian faith, joined by Arafat's nephew Nasser al-Kidwa, the Palestinian UN observer, and Dr. Amar Daka, his personal physician.

Only this foursome was allowed near his bed. They will decide when to disconnect the life support system and declare Yasser Arafat dead. By French law, the final word rests with his wife, Suha Arafat. She is buffeted by contrasting pressures from Palestinian leaders as well as considerations of her own financial future. The funeral will be arranged by Palestinian officials in consultation with the Israeli government.

After Arafat was hospitalized in Paris, members of the second camp, the confidential aides who accompanied him to Paris, were thrust aside and not permitted to visit him - among them, Mohammed Rashid, probably the only person privy to his personal financial secrets, his bureau chief, spokesman constant shadow Nabil Abu Rodeina, and Mohammed Dahlan, the protégé- turned-rival and former head of Palestinian "security" services in the Gaza Strip.

Once the funeral is out of the way, this second group will step into the leadership contest.

In Ramallah, Palestinian leaders sat in around-the clock conclave in a desperate attempt to make the transition orderly and agree on the funeral arrangements. To bridge the period of uncertainty, they assigned prime minister Ahmed Qureia with provisional responsibility for security and finances in the Palestinian Authority, and former prime minister Mahmoud Abbas the chair of the Palestinian Liberation Organization's Executive Committee.

Israel has demanded that a burial with the trappings of a state funeral must take place in the Gaza Strip. The Palestinians, with some support from their European friends, are insisting on his burial in Abu Dis, the Palestinian suburb of Jerusalem that has a view of Temple Mount. Arafat had a building constructed there to house a future Palestinian parliament. It stands empty and could serve as a tomb. In Gaza, the funeral procession would follow the route taken by Arafat a decade ago on his arrival there from Tunis in the wake of the Oslo peace accords. Qureia will be in Gaza Saturday to discuss funeral arrangements with the local heads of organizations.

Both venues pose colossal security problems. Who will control the hordes of Palestinians on the move between the West Bank and Gaza Strip to attend the funeral? Who will guarantee the safety of the VIPs coming to the funeral - Western and Arab?

It has been suggested in some capitals, including Washington, that the funeral and the presence of international figures will provide an opportunity for discreet diplomacy. Americans officials may come to show their respect for the Palestinian people and mark the end of the Arafat era. ...
If true, this involves some interesting choices for the US to make:

Do we go to honor the death of a terrorist such as Arafat if it might help with peace in the Middle East?

Who would be willing to attend, given the awful security problems?

AP Picture of Arafat on way to hospital:

AP is not sure what Arafat's condition is, but Palestinian spokesmen for Arafat are saying that he is in a coma, but not brain-dead. As I discussed in my earlier post on brain-death, even if Arafat was worse than simply in a coma, but instead in a persistent vegetative state (PVS), he would not be dead. Some doctors or family would pull the plug in such a case and let the patient die, while without such a decision some patients (such as in the Cruzan case) can stay alive in a PVS for years. Years ago it was estimated that there were 10,000 people in the US being kept alive in a PVS.

So, even if Arafat is in worse shape than his Palestinian spokesmen are saying, that does not mean that he can't be kept alive for years--unless he is indeed "brain-dead," in which case he is already dead.

The Belmont Club has further thoughts on what might be going on behind the scenes (tip Instapundit).

A New Scopes Trial Atmosphere?--

In David Brooks' latest editorial in the New York Times, he rightly dismisses the conventional wisdom about the election, noting that evangelical turnout this time was about the same percentage of the vote as last time (tip Instapundit). He also notes:

It's ridiculous to say, as some liberals have this week, that we are perpetually refighting the Scopes trial, with the metro forces of enlightenment and reason arrayed against the retro forces of dogma and reaction.

This jumped out at me, both because of my recent posts on William Jennings Bryan and because most people understand very little about what was really going on at the Scopes trial. The book that Scopes was teaching was a popular biology book of the day--George Hunter's Civic Biology (1914). Bryan was not just disturbed by the teaching of evolution but more broadly by the whole social Darwinist agenda, including both capitalism and genetic superiority. Civic Biology was a vicious social Darwinist tract. Here are some excerpts from the book, courtesy of Eugenics Watch:

Hunter's Civic Biology, p. 195-196

The Races of Man. — At the present time there exist upon the earth five races or varieties of man, each very different from the other in instincts, social customs, and, to an extent, in structure. These are the Ethiopian or negro type, originating in Africa; the Malay or brown race, from the islands of the Pacific; The American Indian; the Mongolian or yellow race, including the natives of China, Japan, and the Eskimos; and finally, the highest type of all, the caucasians, represented by the civilized white inhabitants of Europe and America.

Hunter's Civic Biology, p. 261-265

Improvement of Man. — If the stock of domesticated animals can be improved, it is not unfair to ask if the health and vigor of the future generations of men and women on the earth might not be improved by applying to them the laws of selection. This improvement of the future race has a number of factors in which we as individuals may play a part. These are personal hygiene, selection of healthy mates, and the betterment of the environment.

Eugenics. — When people marry there are certain things that the individual as well as the race should demand. The most important of these is freedom from germ diseases which might be handed down to the offspring. Tuberculosis, syphilis, that dread disease which cripples and kills hundreds of thousands of innocent children, epilepsy, and feeble-mindedness are handicaps which it is not only unfair but criminal to hand down to posterity. The science of being well born is called eugenics.

The Jukes. — Studies have been made on a number of different families in this country, in which mental and moral defects were present in one or both of the original parents. The "Jukes" family is a notorious example. The first mother is known as "Margaret, the mother of criminals." In seventy-five years the progeny of the original generation has cost the state of New York over a million and a quarter dollars, besides giving over to the care of prisons and asylums considerably over a hundred feeble-minded, alcoholic, immoral, or criminal persons. Another case recently studied is the "Kallikak" family. (Footnote: The name Kallikak is fictitious.) This family has been traced back to the War of the Revolution, when a young soldier named Martin Kallikak seduced a feeble-minded girl. She had a feeble-minded son from whom there have been to the present time 480 descendants. Of these 33 were sexually immoral, 24 confirmed drunkards, 3 epileptics, and 143 feeble-minded. The man who started this terrible line of immorality and feeble-mindedness later married a normal Quaker girl. From this couple a line of 496 descendants have come, with no cases of feeble-mindedness. The evidence and the moral speak for themselves!

Parasitism and its Cost to Society. — Hundreds of families such as those described above exist today, spreading disease, immorality, and crime to all parts of this country. The cost to society of such families is very severe. Just as certain animals or plants become parasitic on other plants or animals, these families have become parasitic on society. They not only do harm to others by corrupting, stealing, or spreading disease, but they are actually protected and cared for by the state out of public money. Largely for them the poorhouse and the asylum exist. They take from society, but they give nothing in return. They are true parasites.

The Remedy. — If such people were lower animals, we would probably kill them off to prevent them from spreading. Humanity will not allow this, but we do have the remedy of separating the sexes in asylums or other places and in various ways preventing intermarriage and the possibilities of perpetuating such a low and degenerate race. Remedies of this sort have been tried successfully in Europe and are now meeting with some success in this country.

Blood Tells. — Eugenics shows us, on the other hand, in a study of the families in which are brilliant men and women, the fact that the descendants have received the good inheritance from their ancestors. The following, taken from Davenport's Heredity in Relationship to Eugenics, illustrates how one family has been famous in American History. ...

For me, this irony cuts many different ways. The ACLU and Darrow were right in principle that the legislature shouldn't be determining what is or is not good science, but the version of evolution (white genetic superiority) that was being taught in Scopes would be viewed as very bad science today. This also illustrates that the spirit of free inquiry works, not because it is always right, but because people are free to put ideas out and have them refined and corrected. [UPDATE: Here 1920s science was right about the basics of evolution, but was wrong about social Darwinism and white genetic supremacy and was immoral to advocate eugenics.] It also reminds us that eugenics was a "progressive" idea in the 1920s. Last, of course, it suggests that the enlightened are often much less enlightened than they think they are. Sometimes neither the enlightened nor the supposed unenlightened are right.

UPDATE: Clarence Darrow and William Jennings Bryan (from Jeff Epstein):

John Scopes (from Jeff Epstein):

Is Bush a cross between Woodrow Wilson and William Jennings Bryan?-- I posted the maps that Ralph Luker and David Beito had suggested looked like mirror images--1896 and 2004. Two correspondents, Ash Valentine and William Quale, have pointed me to the 1916 map, with Bush playing the role of Woodrow Wilson.

Here is the 1916 map from

It is kind of sobering to see George W. Bush as a cross between Woodrow Wilson (a big-government wartime President) and William Jennings Bryan (a religious populist). The interesting question is not the men, but the complete shift in the sources of party strength.

Another noteworthy thing is that most of the historical political map makers still use the long traditional colors for party maps--red for Democrats and blue for Republicans, blue perhaps suggesting bluebloods and red perhaps suggesting socialism. If you called someone a "red," you would think him on the left (consider the movie "Reds"). When I was young, all the TV networks did the same (red for Democrats, blue for Republicans), but I am guessing that this consensus broke down sometime in the 1970s or early 1980s, and was completely switched over on all networks at least by the 2000 election. It was probably a conscious decision to reverse the implications of the standard red=left, blue=right imagery, but I have found it awfully confusing. It's nice, however, for making the comparisons to 1916 and 1896.


It is even more sobering to see this map showing the free states and territories compared to the slave states, posted by Kevin Drum, following a comment by Ken Layne.

Friday, November 5, 2004

The Distribution of States in 2004 closely matches 1896.-- Ralph Luker suggested that the 2004 election looked much like the 1896 election, with the Republican and Democratic states switched. What makes George Bush like William Jennings Bryan? David Beito has these maps:

1896 (from David Beito):

2004 (from David Beito):

A comment to Beito's post:
[A]lthough the geographic divide remains the same, the parties themselves have traded places and survived the process. Understanding this switch is to me, at least, one of the most important stories in the past 100+ years of American politics.
Another comment says that Kentucky should have been assigned to McKinley.

Chutzpah: reproduces a complaint letter from the owner of to google, apparently asking google to remove links to a competing site that allegedly illegally copied some of the sender's copyrighted content. My heart bleeds for this poor victim of copyright infringement.

Moral values vs. terrorism as important issues for voters:

Politics professor Paul Freedman argues that gay marriage and similar issues didn't sway voters much (contrary to my claims here), and that terrorism did (which is consistent to my claims here). Not sure whether he's right, but it seemed worth passing along.

Hispanic Senators:

As best I can tell from a cursory online search, Mel Martinez (R-Fla.) and Ken Salazar (D-Colo.) are tied for being the four Hispanic Senator in U.S. history. Octaviano Larrazolo (1928-29), Dennis Chavez (1935-62), and Joseph Montoya (1964-77), all from New Mexico (the first a Republican and the other two Democrats), are numbers one, two, and three.

On the other hand, my search has been far from thorough, and "Hispanic" is a notoriously slippery term (see here for a slightly facetious example), so I might be mistaken.

Judge Michael McConnell:

My friend and fellow lawprof Mike Rappaport (The Right Coast) suggests that Judge Michael McConnell, a leading constitutional scholar who has served on the U.S. Court of Appeals for the Tenth Circuit since January 2003, would make a great Supreme Court Justice (in particular, Chief Justice, when the spot opens up). I agree entirely, and have for a while.

[Rick Sander (visiting), November 5, 2004 at 3:41pm] Trackbacks
Affirmative Action in Law Schools:

My long-time colleague Eugene has invited me to guest-blog for a few days about my soon-to-be-published but already-leaked-to-the-media-by-my-critics article about affirmative action (you can download a copy here). I'm delighted to particpate, especially if it leads to some lively discussion and feedback. The article is long, even by the bloated standards of legal academia, so my plan is to write four short pieces, next Monday through Thursday, on four different aspects of racial preferences by law schools:

--How does affirmative action in law schools work? (Monday)

--How do racial preferences affect the performance of blacks in law school and on the bar? (Tuesday)

--How do racial preferences affect how blacks do in the job market for lawyers? (Wednesday)

--What would the black bar look like if we abolished or limited racial preferences? (Thursday)

Each day, I'll end by responding to comments on earlier posts. As Eugene suggested, there are a few things that make my work on this topic unusual. First, I'm somewhere in the liberal-left spectrum on most issues, and I've worked actively in civil rights (especially on the issue of housing segregation) through most of my career. So my generally negative conclusions about affirmative action put me at odds with many close friends (not to mention former funders). Second, the study is heavily data-driven. Good longitudinal datasets on law students and lawyers have only recently become available, making it possible to ask questions that we could only speculate about before. Third, my interest in affirmative action policies of law schools is not whether they betray general normative goals, whether they are unfair to whites, or whether they have subtle negative effects on blacks — instead, I'm focused on whether the policies meet their simplest goals of producing more and better black lawyers. I was surprised and dismayed to find that, in most cases, the policies fail at this basic level.


I will be participating in a program next Wednesday at the American Enterprise Institute speaking on the wine cases in the Supreme Court. Brannon Denning from Cumberland Law School will also be on the panel; Hew Pate of DOJ will moderate. Information and registration material is here. My panel will be followe by one on Randy's marijuana case and closing remarks by Richard Epstein.

Rick Sander:

I'm delighted to report that my colleague Rick Sander will be guest-blogging over the next several days about his recent article on the effect of race-based affirmative action on black law students and lawyers. He will begin either this afternoon or Monday.

Rick has a Ph.D. in Economics as well as a J.D., and has been teaching at UCLA since 1989. He is also:

  1. Member, Oversight and Steering Committees of "After the JD," a longitudinal study of the careers of young lawyers, funded by the American Bar Foundation, the National Science Foundation, NALP, LSAC, and the Soros Foundation, 1999-present; Co-Chair, 2001-present

  2. Member of Advisory Committee for the National Science Foundation's Program in Law and Social Science, 2001-2003

  3. Former board Director and, for two years, President of the Fair Housing Congress of Southern California, Board Director (1990-96).

  4. Director, Los Angeles City and County Fair Housing Assessment Study, 1994-1996.

  5. President, Fair Housing Institute, Los Angeles, California, 1996-2001.

  6. Adviser to City of Los Angeles on design and implementation of Living Wage Ordinance, 1996-.

  7. Adviser to County of Santa Clara and City of Oxnard on fair housing programs, 2000-02.

  8. Author of many empirical articles on legal education, housing segregation, and other fields.

His article A Systemic Analysis of Affirmative Action in American Law Schools is coming out shortly in the Stanford Law Review.

He can be reached at sander at, but — as with the other bloggers on this site — he may be unable to respond to messages sent to him.

Varieties of Conservatism in America: The Hoover Institution just published a slim engaging paperback Varieties of Conservatism in America. In it you will find essays on "Classical Conservatism" by Mark Henrie and Joseph Bottum, "Neoconservatism" by Jacob Heilbrunn and Tod Lindgren, and "Libertarianism" by Richard Epstein and me. Although I do not consider libertarianism to be a species of modern conservatism, I think it was good that it was included as a perspective in this volume. And having read all the papers in draft I can attest to the fact that all of them are very interesting.

For professors who want to incorporate this volume into their classes, Hoover also published a companion volume entitled, Varieties of Progressivism in America.
Dissing Your Partners: Ordinarily I would rise to the bait provided by Professor Bainbridge in his post Those Annoying Libertarians. But I have learned that blogging requires not only the time it takes to compose a post. It also involves the time it takes to read email responses, responses by other bloggers, and then to reply. Because I am spending the weekend preparing for my first moot court on Ashcroft v. Raich next week at Georgetown (which is closed to the public), I cannot take the time to start something here that I cannot finish. I look forward to returning to blogging in December.

But let me offer a brief word of advice to social conservatives AND libertarians. In a 2-party, winner-take-all, first-past-the-post electoral system, a winning "major" party represents a coalition of voters needed to get past 50%. The marginal voters needed for that goal are important, as are the inframarginal voters. (In proportionate representation, parliamentary systems, winning coalitions are formed among factionalized parties rather than among voters in the electorate.)

Social conservatives are most certainly a part of the winning Republican majority and their interests and concerns must be respected and operationalized consistently with preserving the coalition. So are libertarians. The very fact that the Libertarian Party drew so few votes is evidence that libertarians who vote largely voted for the major party candidates.

I believe that libertarians were in both camps this time around. Of those who did not vote Libertarian, anti-war libertarians who believed that divided government was better to control federal power and spending supported Kerry. They also may have preferred Kerry as better for protecting civil liberties. Those libertarians who support the administration's strategy for fighting the war against radical islamicists, including the battle for Iraq, and perhaps also its proposals for private social security accounts, Medical savings accounts voted Bush. They may also prefer Bush's prospective judicial nominations to Kerry's (or not). Be this as it may, many thousands, if not millions of libertarian-leaning voters supported the President as part of his winning coalition.

It ill-behooves one constituent of a winning coalition to gratuitously insult another member. Disagree with, even passionately, yes. Belittle and ridicule, no. Doing so is a recipe from reducing a winning coalition into a losing one. All coalitions are subjected to this internal tension. Successful ones find ways to resist it by stressing what all coalition members have in common, as compared with their political opponents.

My advice goes to libertarians (a misquotation of one of whom provoked Professor Bainbridge) who want to be a part of this coalition, as well as conservatives, social or otherwise. The Federalist Society, which is itself a coalition of conservatives and libertarians understands this strategy well.

My own view on how to maintain the winning coalition is Grover Norquist's: the "leave-us-alone" strategy, which happens to fit our original Constitution (as amended). This entails leaving gay marriage (which I support) to the states, and the substance of public school curriculum (including moments of silence and pledges of allegiance) to locally-elected school boards. (My only exception would be for when the liberty of adults is at stake as in Lawrence v. Texas, but we have debated this before and I won't be drawn into another debate over this issue right now. I am just identifying this area of disagreement I have with some conservatives.)

With that, I have already spent more time composing this post than I intended and said more than I can back up in the next few days. I leave further comments on this issue in the capable hands of my fellow bloggers here and elsewhere.

PS: AUTOBIOGRAPHICAL NOTE: As a seventh grader, I debated on behalf of Barry Goldwater in front of my entire junior high school student body in the heavily Democratic town of Calumet City. And, like David, I came to libertarianism first through Rothbard, not Rand.

Update: I am happy to post this email from the reporter who wrote the story in which David was quoted:

You seem to be accusing me of misquoting David Bernstein.

That would be news to him. In his recent e-mail to me he affirmed the quote about the separation of everything and state and in fact seemed justifiably proud of it.

As for the paraphrase that follows, that was an accurate summation of his phone discussion with me about the abandonment by the Bush administraion of the limited-government reforms embodied in the Contract with America.

The paraphrase preceding the quote was not attibuted and was my own view.

Paul Mulshine
Correction noted. Another reader writes:

Yes, leave gay marriage to the states. But what about the notion that getting married in one state transfers the full rights, benefits, etc. to another state when the newlyweds decide to move? Isn't that the legal reason for a federal marriage amendment?
I agree which is why I would support a constitutional amendment that upholds the Defense of Marriage Act that leaves the decisions to the states, while opposing a constitutional amendment that adopts a national constitutional definition of marriage.

PS: The time-consuming nature of this sort of healthy and constructive exchange is exactly why I have not been blogging lately and probably should not have blogged today.

Update: Excellent post by Infidel Cowboy on This Whole Reaching Out Business.


I realize that the Slate title "Why Americans Hate Democrats — A Dialogue" was chosen to be provocative, to perhaps be an ironic commentary on the post-9/11 "Why Do They Hate Us?" that some on the Left asked, and likely to be in some measure deliberate hyperbole. But I wonder if it might at least partly be earnest — whether it might reflect an unsound worldview according to which Americans focus their political lives around hatred more than they in fact do. And in any event I suspect that it might be counterproductive hyperbole: Titles, even ironic titles, do frame the way readers (and perhaps even the writers) perceive the issue.

When the Republicans lost the Senate in 1986, or the Presidency in 1992, I didn't ask why Americans hate Republicans, and I suspect most Republicans didn't, either. We asked why Americans voted against Republicans; the answers were complex (and controversial), but I take it that they had a lot to do with policies, the way the policies were articulated, and the personalities and actions of our standard-bearers. Republicans changed their policies, arguments, and standard-bearers; some circumstances changed to favor us; and the Democrats kindly obliged by erring politically in various ways. Now we've won — but I'm not sure that we would have won if we'd focused our thinking around "Why [Do] Americans Hate Republicans?," even hyperbolically.

I'd say the same about most other claims of hatred. They often have a kernel of truth to them, as to the highest-profile cases. Some on the Left do hate America. Some people who oppose same-sex marriage actually hate gays. Some people hate fundamentalist Christians, gun owners, immigrants, the federal government, and so on. But I doubt that such claims would be accurate about Democrats or Republicans generally, or even Americans generally. Asking "Why Do Americans Hate [Group X]?" is likely, I think, to be an unhelpful distraction.

Feeling Like a 1L: Orin says listening to Charles Fried makes him feel like a 2L. As I had him for Torts, it makes me feel like a 1L.
Indian-American Congressmen:

Bobby Jindal, whose parents came from India shortly before he was born, has just been elected to Congress, as a Republican. The first Asian-American Congressman was also Indian — a Sikh, born in India, named Dalip Singh Saund, a Democrat who was elected from California's Imperial Valley (that's the Southeast corner of the state) in 1956.

Saund came to the U.S. in 1920, but only became a citizen in 1949, since before 1946 he was legally forbidden to be a citizen because of his Asian birth. (The 1946 immigration reforms, I am told, only eased restrictions on Indian and Filipino immigrants, not East Asians.) His white American wife (a daughter of Czech immigrants) had to surrender her citizenship when she married him (in the 1920s). Nonetheless, by the mid-1950s, he was able to win elected office, and served for three terms; he had to retire because of a crippling stroke.

For a more thorough story, see here.

Charles Fried on the Role of the Supreme Court:

A recent lecture on the Court and its Justices delivered by Harvard Law School professor and former Solicitor General Charles Fried is available here via streaming video. Fried was one of my favorite professors in law school; watching his lecture makes me feel a bit like a 2L again.

Related Posts (on one page):

  1. Feeling Like a 1L:
  2. Charles Fried on the Role of the Supreme Court:

Thursday, November 4, 2004

Reporting all the information about exit polls:

A Slate article argues that it was right to report the exit polls, on the theory that this way voters get to know what the journalists know. Maybe so; I have no fixed opinion on the matter.

But if you report 50-49 exit polls, and then report 51-49 numbers with subheads such as "Mucho flattering to Kerry," wouldn't it be more helpful to also report the following, from the National Election Pool page?

The margin of error for a 95% confidence interval is about . . . +/-4% for a typical state exit poll. . . . Other nonsampling factors may increase the total error.

You might also thrown in this from the Mystery Pollster (thanks to Douglas Johnson for the pointer), if you think he's right — or come up with a better analysis yourself, if you think he isn't quite right:

Even if comparable to the final numbers — which they are decidedly not — the mid-day leaked numbers would have much greater error, perhaps +/- 7% or more.

Even if you think 95% is a more demanding confidence interval, and you think 68% confidence is fine, you'd still have a margin of error half of those mentioned above. And this is the purely mathematical margin of error, i.e., accounting only for random variation, and not for the other problems that bedevil polls; you might also warn people of other possible causes of error, such as differences between early voters and late voters, or between those who talk to pollsters and those who don't, or between the true vote and the vote reported to the pollster.

So if you're really trying to inform your readers, it seems to me the story ought not be:

Updated Late Afternoon Numbers Mucho flattering to Kerry; plus Nader makes an appearance. . . . Updated Tuesday, Nov. 2, 2004, at 4:28 PM PT

Florida Kerry 51 Bush 49

Ohio Kerry 51 Bush 49 . . .

Rather, they should be (using the Mystery Pollster's 7% level, though if you prefer to use 6% the picture doesn't look much different):

Updated Late Afternoon Numbers Mucho flattering to Kerry; plus Nader makes an appearance. . . . Updated Tuesday, Nov. 2, 2004, at 4:28 PM PT

[Margin of error: +/-7% if you want to be 95% confident in the results, +/-3.5% if you want to be 68% confident; and note that the margin of error may be even greater if early voters differ from late voters, or if voters for one candidate are more likely to talk to exit pollsters than voters for the other.]

Florida Kerry 51 Bush 49

Ohio Kerry 51 Bush 49 . . .

And if you realize that, even at the 68% confidence level, the results are Kerry 47.5-54.5 vs. Bush 45.5-52.5 — a statistical tie even at this very low level of confidence — should the headline really be "Mucho flattering to Kerry"?

(Note that some of the other pro-Kerry predictions in the Slate-reported exit polls, such as those for Pennsylvania and New York, proved to be right as to the bottom line — not coincidentally, these were mostly those in which the gap was indeed pretty large, and not just a couple of percent.)

UPDATE: Martin Plissner, also in Slate, likewise has a criticism of paying much attention to exit polls that are within the margin of error.

Related Posts (on one page):

  1. Exit polls:
  2. Reporting all the information about exit polls:
  3. Exit polls:
More on Ohio and same-sex marriage:

Two conflicting reports. Patrick Lewis, a former student of mine who now practices in Ohio, writes:

I disagree that Issue 1 [the anti-same-sex marriage measure] was decisive for Bush. Indeed, locally, one of the big stories was how the black vote was split — they voted for Kerry and against Issue 1. Indeed, many Catholic voters here apparently did the same thing (around here, Catholic voters tend to be unionized workers).

Issue 1 was promoted in Ohio by Republican elected officials (most notably Ken Blackwell, who is the Sec[retary] of State . . .), but it's not altogether clear that Issue 1 actually had the effect of bringing Bush supporters to the polls. The gay marriage issue in general may have fired them up; but I'm sure it fired up religious conservatives all over the country, and was unrelated to Issue 1 in Ohio specifically. We're going to have to wait for more polls and exit surveys to come out and be analyzed to say for sure, but I would have to say that the war on terror, Iraq, and the economy were the 3 driving issues.

On the other hand, Prof. Bill Nancarrow at Curry College in Massachusetts — not an Ohioan, but then again neither am I — writes:

I told my classes . . . that as far as the electoral college goes, at least (probably less so the popular vote), you have four people to thank/blame for Ohio-the four majority justices of the Mass SJC in Goodridge. While my research on the politicization of legal issues is from the early 20th century (in Ohio, even), as soon as I saw the Goodridge case I thought "backlash." Yes, these things are difficult to gauge, but when I saw the overwhelming support for the amendment banning same-sex marriage in Ohio yesterday, I could have called the state for Bush. I told all my gay friends who were cheering over Goodridge to be careful what they wished for. The justices were way out in front of "the people" on this, and now they have 11 states with constitutional amendments prohibiting the very measure they (and I) supported. The SJC, at least for the foreseeable future, set their cause back, rather than advancing it. Moreover, I believe the "Goodridge effect" likely influenced the outcome of the election.

So there you have it. The votes from Ohio still seem to be running in favor of the "yes, Goodridge likely did influence the Ohio vote and help Bush" position (see the related post noted below), but I can't say I've got a statistically valid sample here . . . .

Related Posts (on one page):

  1. More on Ohio and same-sex marriage:
  2. Liberals from Massachusetts:
"Even Berkeley Votes for 'Morality'!"

So Vice Squad declares in reporting on Berkeley's rejection of a ballot initiative that would have effectively ended prosecutions for prostitution.

Arafat: If he is "brain-dead," he is dead.--

The Agence France-Press (AFP) is reporting:

Palestinian leader Yasser Arafat was "brain dead" and breathing only thanks to artificial life support systems, a French medical official said after conflicting reports as to whether he was alive or dead.

In strictly technical terms, Arafat was "not dead," the source told AFP on condition of confidentiality, adding that the 75-year-old leader had slipped into an irreversible coma and could only be maintained in his vegetative state through ventilation machines.

This is inconsistent nonsense, though my knowledge of medicine (depite being married to a med school professor) is not sufficient to be certain that I don't make an error myself. However, a decade ago I read hundreds of medical and legal articles and polls on end-of-life decisions and wrote a scholarly article arguing for pulling the plug when you don't know what the person wanted. Also, I can't tell from the description whether Arafat is brain-dead or in persistent vegetative state, which is quite different.

First, brain-dead is dead. Before we had ways of testing brain activity, the test was whether the heart was beating. Now (in the US at least) if your brain is dead, you are dead. End-of-story. Although some hospitals have screwed up by mistakenly asking family members if ventilation (keeping the blood flowing) may be withdrawn in this situation, the family has no legal say (since all that is left is a dead body). Sometimes ventilation is continued to facilitate harvesting organs.

Second, a person in a coma is alive, but unconscious. A person who is brain-dead would not be considered to be in a coma. A persistent vegetative state, on the other hand, is a condition where lower brain functions are still present, but higher brain functions are gone:

Individuals in such a state have lost their thinking abilities and awareness of their surroundings, but retain non-cognitive function and normal sleep patterns. Even though those in a persistent vegetative state lose their higher brain functions, other key functions such as breathing and circulation remain relatively intact. Spontaneous movements may occur, and the eyes may open in response to external stimuli. They may even occasionally grimace, cry, or laugh. Although individuals in a persistent vegetative state may appear somewhat normal, they do not speak and they are unable to respond to commands.

So if Arafat is brain-dead, he is simply dead, no matter whether he is on a ventilator. If he is in a coma, then he is not brain-dead. If the higher cerebral functioning shows up, the person would usually be said to be in a coma. If he has little or no higher brain functioning, then he would be in PVS, but still legally alive. At least that is how I (as a lawyer) understand things.

Patriot Act Article:

Professor Richard Seamon and his coauthor William Gardner have just put an interesting draft article on the Patriot Act on SSRN: Does (Should) The Patriot Act Raze (or Raise) the Wall Between Foreign Intelligence and Criminal Law Enforcement?, forthcoming in the Harvard Journal of Law and Public Policy.

Autobiographical Note: Steve Bainbridge's post, discussed below, cites Russell Kirk's famous insult of libertarians as "chirping sectaries." This reminded me of my college days, when I was testing out various political philosophies. I decided to spend Spring Break (yes, it was a wild college life for me!) reading the three books National Review consistently referred as the foundational works of modern conservatism: Kirk's almost unreadable and unedifying The Conservative Mind from Burke to Eliot; James Burnham's racist and imperialist Suicide of the West; and Whittaker Chambers' meandering and hallucinatory Witness. I was, not surprisingly, sorely disappointed. Around the same time, I received my first Laissez-faire Books catalogue, and started reading Hayek, Nozick, Rothbard, and, especially, Milton Friedman (unlike many libertarians who get their first inspiration from Ayn Rand, I didn't read her until much later). I started calling myself a "libertarian-conservative," and the rest is history.
Barry Goldwater, Annoying Libertarian?:

Steve Bainbridge manages to write Barry Goldwater out of the conservative movement. Only "annoying libertarians," you see, think the federal government has no business dictating morality to the public, or thinks it's beyond the government's constitutional power to do so. I still remember back around 1981, when Goldwater was told that Jerry Falwell said that "all good Christians" should oppose some vote or other of Goldwater's. Goldwater responded along the lines of "I think all good Christians ought to kick Jerry Falwell in the ass." We could use more of such sentiment these days. Unfortunately, many Christian "conservatives" only support limited government when they are out of power, as is amply indicated by this William Bennett column calling for federal legislation to "promote a more decent society." I actually do see plausible a reason to sympathize more with right-wing Christian statists than with left-wing secular statists--the moral issues Christian activists want to regulate tend to have more externalities attached to them than the economic activities left-wingers tend to get agitated over (though gay marriage is a huge exception). But statism, especially when it manifests itself in a lust for federal power, is against the American conservative tradition, and you don't have to be an annoying libertarian to see that.

If You Enjoy Cat Blogging,

you probably don't want to take a look at this.

Oberlin President Reacts: An Oberlin College student passes on the following e-mail sent to the Oberlin student body from college president Nancy Dye in reponse to the re-election of President Bush:
November 3, 2004

To the Oberlin College Community:

Mark Twain once said that "If we would learn what the human race really is at bottom we need only observe it in election times." Needless to say, we could interpret this statement in many ways. But when it comes to the behavior of Oberlin students in this election, we learn that human behavior in one of the most passionately and closely contested presidential elections in American history can be admirable indeed.

Never have I seen college students organize themselves so effectively to register and to vote. Throughout the long hours of waiting at First Church and Oberlin Public Library (as a resident of Precinct 3B I will certainly never forget yesterday!) your good spirits, your patience, your persistence, and your contagious enthusiasm for playing an active role in American politics were inspiring.

Many of you, I know, are deeply unhappy with the results of the 2004 presidential election. I sure know that I am. But political and social change often takes a much longer time to bring about than we think it should.

Any group of people who can accomplish what you managed to bring off yesterday will certainly be able to make a real difference in this nation. Keep up the fight.

Nancy Dye
  I think it's great that college students are playing an active role in politics, and it's commendable for a college president to congratulate students for their efforts. Plus, Oberlin has an established reputation as a liberal institution, so it's a fair bet that most of the e-mail's recipients appreciate the kind words after a tough loss. Still, might you not feel just a bit uncomfortable receiving this message if you are an Oberlin student who voted for Bush?
Hillary's Vice-President:

Assuming that Hillary Clinton wins the Democratic Presidential nomination in 2008, who will she pick as her running-mate? Some people would say Illinois Senator Barack Obama--an excellent speaker who could help bring out the black vote.

But I'm putting my money on Colorado's new Democratic Senator Ken Salazar. Salazar is a very dull public speaker, but he's much closer to the political center than Obama. And Hillary doesn't need a staunch leftist to shore up her base.

Moreover, Salazar is a proven Democratic winner under tough circumstances. His victory on Tuesday was the only Democratic victory in a seriously contested open seat, and he won in a state which George Bush carried.

A fifth-generation Coloradan, Salazar is of Mexican ancestry, and would likely increase turn-out and Democratic voting among Americans of Mexican ancestry. He might help Mrs. Clinton carry Colorado, New Mexico, Nevada, and Arizona, all of which have large populations of immigrants from Mexico.

Hispanics are not nearly as monolithic as some political pundits claim; I doubt that Salazar's Mexican roots would mean a great deal to Floridians who immigrated from Cuba, or to New Yorkers from Puerto Rico.

But for the Democrats to win the electoral contest while being shut out in the South, they're going to need to add some more states, and Salazar could be part of a winning strategy to pick up the southern Rocky Mountain states.

P.S. A couple points in response to reader comments. New Mexico Governor Bill Richardson would also be a good VP choice, for many of the same reasons as Salazar. But he does have the burden of serving as Secretary of Energy under the Clinton administration. Another reader suggests that North Carolina Governor Mike Easley, who was re-elected this week, might make a stronger candidate in the general election than Senator Clinton; he is more moderate, and both parties do well nationally when they nominate Southern Governors.
The Mystery is (Apparently) Solved: From The Hill, via Wonkette:
  That mysterious bulge on President Bush's back during the first presidential debate was not an electronic device feeding him answers, but a strap holding his bulletproof vest in place.
   . . . [S]ources in the Secret Service told The Hill that Bush was wearing a bulletproof vest, as he does most of the time when appearing in public. The president's handlers did not want to admit as much during the campaign, for fear of disclosing information related to his personal security while he was on the campaign trail.
David Letterman's Top Ten Kerry Excuses.

Thanks to Dan Gifford for the pointer.

Lots of Provocative Posts

up right now over at Crooked Timber.

New CrimProf Blog:

Professors Jack Chin (Arizona) and Mark Godsey (Cincinnati) have started a new blog on criminal law, available here.

Gun Case in the Supreme Court; Sporting Clays Case in Virginia:

Yesterday the U.S. Supreme Court heard arguments in U.S. v. Small. The case involves interpretation of 18 U.S.C. 922(g)(1), which prohibits firearms possession by any person "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year." The question for the Court is whether the statute applies to foreign convictions, or only to American convictions.

Before buying a gun in Pennsylvania in 1998, Small had been convicted in a Japanese court of a non-violent firearms offense punishable by more than one year in prison. The procedures of the Japanese trial were grossly divergent from American legal standards of due process.

Small is represented by Paul Boas (who gave the oral argument) and Stephen Halbrook (a firearms law expert with a 3-0 record in Supreme Court cases).

The Halbrook and Boas opening brief argues that when Congress said "any court," Congress meant "any state or federal court." Halbrook and Boas muster a host of federal statutory and legislative history arguments to support their point.

They also point out that Congress has explicitly found the Second Amendment to be an individual right, and that Congress therefore would not want a person to be deprived of one constitutional right based on a foreign court conviction obtained contrary to other standards in the Bill of Rights.

Another interesting brief on Halbrook's website is the Virginia state case of Orion Sporting Group v. Nelson County. The case is currently before the Virginia intermediate court of appeals. Nelson County denied Orion a permit to use land for simulated hunting. Halbrook argues that the denial violates the Virginia Constitution, which guarantees the right to hunt.

Orion wants to operate a sporting clays facility. Sporting clays, which first became popular in the 1980s, involves firing a shotgun at clay disks. Sporting clays is usually considered much more difficult than trap or skeet shooting, because the clays fly in a wide variety of different paths--such as very steep arcs in the air, or gliding a few feet off the ground. Sporting clay fields are natural land, comparable to typical bird hunting terrain.

Bolstering Halbrook's argument are Virginia state laws which specify how local governments may regulate firearms discharge. The Orion sporting clays field would comply with all such laws.

The Nelson County government argues that since Orion is a corporation, it is not a person, and therefore has no right to hunt. Halbrook answers that "the constitutional right to hunt implies a right to make and provide the goods and services that make hunting possible, just as the right to a free press includes a right of corporations to print newspapers or communicate on signs. Corporations manufacture firearms, ammunition, clay pigeons, blaze orange clothing, and other items necessary for hunting, and corporations sponsor hunting safety classes, opportunities for simulated and actual hunting, and other services. "

These days, even anti-gun groups claim that they support "gun safety." An isolated 450 acre rural tract is certainly a safe place to shoot sporting clays, and to improve the shooting skills that are important to safe hunting.
"Affirmative Action Hurts Black Law Students, Study Finds":

The Chronicle of Higher Education (article available to nonsubscribers free for the next five days; for subscribers, its permanent home is here) writes:

Affirmative action hurts black law students more than it helps them, by bumping applicants up into law schools where they are more likely to earn poor grades, drop out, and fail their states' bar exams, according to a forthcoming study by a law professor at the University of California at Los Angeles.

The author, Richard H. Sander, argues that ending racial preferences in law-school admissions would increase the number of black lawyers because it would help ensure that students attend law schools where they are more likely to succeed.

A report of the study, scheduled to appear in the November issue of the Stanford Law Review, has sparked a contentious debate among supporters and critics of affirmative action. . . .

His report, "A Systemic Analysis of Affirmative Action in American Law Schools," says that:

  • After the first year of law school, 51 percent of black students have grade-point averages that place them in the bottom tenth of their classes, compared with 5 percent of white students. "Evidence suggests that when you're doing that badly, you're learning less than if you were in the middle of a class" at a less-prestigious law school, Mr. Sander says.
  • Among students who entered law school in 1991, about 80 percent of white students graduated and passed the bar on their first attempt, compared with just 45 percent of black students. In a race-blind admissions system, the number of black graduates passing the bar the first time would jump to 74 percent, he says, based on his statistical analysis of how higher grades in less competitive schools would result in higher bar scores. Black students are nearly six times as likely as whites not to pass state bar exams after multiple attempts.
  • Ending affirmative action would increase the number of new black lawyers by 8.8 percent because students would attend law schools where they would struggle less and learn more, and earn higher grades.
  • With the exception of the most-elite law schools, good grades matter more to employers than the law school's prestige.

. . .

I had read Rick's article, and found it extremely interesting and highly persuasive. (I have not checked his raw data, but he has an excellent reputation as a quantiative scholar.)

In case you're interested, Rick is, among other things, a specialist on housing segregation, and former board member and President of the Fair Housing Congress of Southern California, serving the last two years as President, as well as a noted quantitative analyst of legal education. I'm pretty sure that he's being driven by the evidence here, not by political preconceptions.

Moral values as most important issue for voters?

According to the exit polls — and take them with a grain of salt — moral values was given as the most important issue by 22% of voters. But 20% and 19% said economy/jobs and terrorism, respectively; and though theoretically these numbers are likely outside the mathematical margin of error for the entire survey (there were 13,000+ respondents nationwide, which means the purely mathematical margin of error would be roughly 1%), given all the nonmathematical imprecision inherent in this sort of survey, I'd say that it's a tie.

What's more, even if the 22% constitutes a plurality, that doesn't tell us much about just how important the issue to a majority of voters. Among other things, look how sensitive the plurality question is to the way the options are given or classified: If you combine terrorism and Iraq under the rubric of "national security," and combine their 19% and 15%, moral values gets displaced as the plurality winner. Likewise if you combine health care (which presumably means making health care more affordable) and economy/jobs, which put together count for 28%, into a single economic well-being category.

Now I'm quite sure that moral values are very important to many voters — to some, they are the most important issue, and to others they may be a close second. (My post about the possible importance of the same-sex marriage question in Ohio reflects that.) But their garnering a 22% plurality as the most important issue tells us relatively little about how they actually stack up to other matters, such as national security, economic well-being, and so on. It seems to me that people pay more attention to these "most important issue" surveys, where the "winner" has less than a quarter of the vote, than the surveys deserve.

Finally, note that a Cox News Service service story, reprinted in the Atlanta Journal-Constitution and perhaps elsewhere, reported that "Of 12,649 voters who participated in exit polls nationwide, 76 percent of Bush voters said 'moral values' was the one issue that mattered most in their selection"; but I couldn't find any such report, and it's directly contrary to the CNN account of the exit polls. I think this might have been an error; please correct me if I'm wrong.

Bush & the "Gay Vote"

An interesting report from the Washington Blade's Blade Blog:

Perhaps the most surprising news for gay observers of the presidential election is that exit polls show President Bush received the exact same percentage of gay votes — 23 percent — as he did four years ago. This despite the president's vocal support for a federal constitutional amendment banning gay marriage.

You Can't Say That! Review:

A nice review of my You Can't Say That! in Choice, which publishes reviews for academic libraries. Excerpt:

How does US political culture in the 21st century accommodate the conflicts between freedom of speech, association and religion, and the various state and federal antidiscrimination laws? Bernstein (law George Mason Univ.) superbly navigates the rough waters of the statutory and case law that attempt to curb discriminatory practices by both public and private organizations.... Bernstein carefully leads readers through specific problem areas such as the threat to free expression in the workplace and to artistic freedom, the censoring of campus speech, interference with freedom of association, and diluting the autonomy of religious organizations.... One cannot gainsay his contention that a society that undercuts civil liberties in order to attain equality will end up with the loss of both. A solid effort that deserves a wide readership. Summing Up: Highly recommended.

Wednesday, November 3, 2004

Learners vs. complainers:

Michael Totten (guest-blogging at InstaPundit) posts a rundown of "left-wing blogosphere reactions" (oddly enough including the not generally left-wing Andrew Sullivan, so I suspect this is really "Kerry-supporter blogosphere reactions").

Some, it seems, ask "What can people on our side learn from this?" Others just keep complaining about how bad Bush and Bush supporters are. As a purely practical matter, Republicans have much to fear from the first group, and very little to fear from the second.

Congratulations to Brian Morris,

the second of the October Term 1993 Supreme Court clerks to become a judge (Mark Filip is a district court judge in Chicago; Brett Kavanaugh has been nominated for the D.C. Circuit, but his nomination is bottled up). He's now a Montana Supreme Court Justice. The only downside: He won by more than 3 votes, which suggests that the Conspiracy's efforts did not make the difference.

Post-election news:

From The Onion:

Nader Supporters Blame Electoral Defeat On Bush, Kerry

WASHINGTON, DC — Supporters of presidential candidate Ralph Nader blamed his defeat Tuesday on George W. Bush and John Kerry, claiming that the two candidates "ate up" his share of the electoral votes. "This election was stolen out from under Mr. Nader by Bush and Kerry, who diverted his votes to the right and the left," Nader campaign manager Theresa Amato said. "It's an outrage. If Nader were the only candidate, he would be president right now." In his concession speech, Nader characterized Bush and Kerry as spoilers.

Gay Marriage and the Cheneys:

If, as Eugene and others have suggested, it was voters who turned out to vote against gay marriage who gave Bush his margin of victory in Ohio, it lends credence to the theory that the reason Kerry and Edwards both noted that Dick Cheney has a lesbian daughter was to discourage turnout among precisely these voters.

A Public Service Announcement: For the benefit of our law professor readers:
From: Carl Monk
Sent: Tuesday, November 02, 2004 5:16 PM
Subject: 2005 AALS Annual Meeting
To: Deans of Member and Fee-Paid Schools and Members of the House of Representatives

Greetings to all:

Many of you are aware of the fact that the headquarters hotel for the Annual Meeting, the San Francisco Hilton, is currently involved in a strike/lockout with one of its unions. Although negotiations are in progress it is unclear whether the strike/lockout will continue at the time of our Annual Meeting on January 5-8. The Hilton has indicated that it is continuing to provide full service during the strike/lockout.

A few Section leaders have already advised us that they would lose speakers and attendees for any program scheduled in the Hilton. To assure that the Annual Meeting content is not affected by cancellation of speakers, and that faculty who would not cross picket lines are able to attend the Annual Meeting and programs in which they are interested, the AALS has developed a "Plan B" that will be implemented if the strike/lockout is still in progress at the time of the Annual Meeting. This afternoon our office consulted with the AALS Executive Committee and all committee members support this option.

Under Plan B virtually all of the events scheduled in the Hilton would be moved to Hotels Nikko and Parc 55, neither of which are affected by the current strike/lockout, and are located directly across the street from the Hilton. Thus, Annual Meeting registration and all regular Section programs would be moved. In addition to all regular Section programs, all but three Section meal events (breakfasts and luncheons) would be moved. We will attempt to make alternative locations available for these three Section meal events as well. Due to space constraints, exhibit booths and perhaps childcare facilities would be required to remain in the Hilton.

Lodging arrangements can be made at Nikko, Parc 55, or Hilton. Once Nikko and Parc 55 are full AALS will attempt to add additional hotels for those of you who prefer not to stay at the Hilton. You are of course also free to arrange for your own lodging at one of the many hotels in San Francisco not affected by the strike/lockout.

Although the ideal solution would be that the strike/lockout no longer be in progress at the time of our meeting, "Plan B" provides an option for presenting virtually the entire Annual Meeting in hotels that are not subject to the strike/lockout and thus have no picket lines. AALS is pleased to have been able to arrange this backup plan and we look forward to seeing you at the Annual Meeting January 5-8.

PLEASE SHARE THIS WITH YOUR FACULTY AND STAFF. I look forward to seeing you in San Francisco.

Carl C. Monk
Executive Director
Association of American Law Schools
1201 Connecticut, Avenue, NW, Suite 800
Washington, DC 20036

According to the final tally, I see that the Libertarian Party candidate Michael Bednarik got almost as many votes nationwide as Nader. Curious that the media nonetheless covered Nader throughout the race, while ignoring Bednarik (for instance, on the Washington Post web site with the tally, you can link to background stories on Nader, but not Bednarik). Of course, the number was quite trivial for both, but the difference in attention garnered by each also-ran is striking.

Another perennial libertarian favorite, "None of These Candidates", finished a strong 11th nationwide with 3,646 votes.


A reader alerts me to an additional layer of irony, which is that I managed to misspell Badnarik's name in my initial post. Hey, I didn't say I voted for the guy, and not because I couldn't recognize his properly-spelled name on the ballot.


Even better, I'll adopt the observation of another reader: "You can blame the media: 'Had they covered this guy as much as they did Nader, I'd know how to spell his name!'" I wish I could have been that clever on the last update.

It's a Question of the Separation of Everything and State:

The Volokh Conspiracy and I are featured prominently in this post-election column in the Newark Star-Ledger. Money quote:

That idea [that the Federal Government should embrace "traditional values"] is anathema to those who take the Constitution seriously. It's not simply a question of separation of church and state, said Bernstein, but "a separation of everything and state." The conservative idea of limited government has been all but abandoned by Bush, Bernstein said.

Liberals from Massachusetts:

It's always hard to tell about this, but it seems possible that the Ohio amendment banning same-sex marriage brought more religious conservatives to the polls, perhaps enough to make the difference — or at least to contribute substantially to the difference — in the close presidential race there. It's not certain; among other things, some speculate that this may have brought out many black voters who are anti-same-sex-marriage but who vote Democratic.

Still, if it's so, then it suggests that the Goodridge decision, by making people feel that traditional marriage rules are in jeopardy from courts, may have ended up costing (or helping cost) Kerry the election. And the decision may have had a similar effect not just in Ohio, but in other close states in which some voters associated Democrats with likely support for same-sex marriage, and assumed that Kerry appointees would be more likely than Bush appointees to implement Goodridge on the federal level.

Now, as I've blogged before, I'm tentatively in favor of allowing same-sex marriage; I would have voted against the Ohio ballot measure. And of course if one thinks that the Constitution really should be interpreted to ban opposite-sex-only marriage, then one may well support courts' deciding this, come what may. But I think that even supporters of same-sex marriage should recognize the possible political backlash that may come from such decisions being made by judges, based not on text or history, but on a moral argument (about the constitutional equality of same-sex and opposite-sex marriage) that faces broad, nationwide opposition.

UPDATE: John Fund in OpinionJournal's Political Diary takes a similar value. Likewise, my student Sean Hayes, whose parents are from Ohio, says that the anti-same-sex-marriage initiative was indeed a big issue there, and he thinks it could have indeed swayed 130,000 votes, and another reader makes the same point. Impossible to tell for sure, of course — but it does seem like this election might indeed have turned on the anti-Goodridge backlash.

Related Posts (on one page):

  1. More on Ohio and same-sex marriage:
  2. Liberals from Massachusetts:
"Exit Polls" in Daily Life:

The apparent inaccuracy of the exit polls yesterday makes me wonder whether the phrase "exit poll" will now enter the American vernacular to mean "a quick impression that is probably wrong."

Close election:

The electoral vote is certainly close, and turns on a close race in Ohio (though at this point it seems quite unlikely that Bush's 130,000 vote lead will be overcome). But the 51-48 popular vote margin, while far from a blowout, is larger than the 1976 Carter-Ford margin, or the 1968 Nixon-Humphrey margin, plus of course the famously close 1960 and 2000 margins.

Justice O'Connor Bobblehead for Sale: My wife is selling an O'Connor bobblehead on Ebay. We will donate the proceeds from this one to Israel's Red Magen David, the Israeli equivalent of the Red Cross. Its resources have been stressed by its role as the first responder to terrorist attacks (the organization runs Israel's ambulance service). If you don't want the bobblehead, you can still donate here.
Clark County, Ohio moves toward the Republicans.--

According to the Guardian, in 2000 Clark County went 0.3% for Gore while Ohio went 3.9% for Bush, so it was 4.2% more Democratic than the rest of the state. In 2004 Clark County went for Bush by 2.4% over Kerry (compared to about 2.7% for Ohio in 2004).

So Clark County moved 3.9% toward the Republicans compared to the rest of the state. I wonder if the Guardian's letter writing campaign had any effect. Tim Blair comments as well.

UPDATE: Just to clarify, the 2000 data above comes from the official vote counts because I found a problem with the Guardian rounding 0.3% up to 1%.

Provisional Ballots in Ohio.--

At 4am ET early Wednesday morning, this official list of the number of Ohio provisional ballots by county does not have anything listed for Cuyahoga County.

Assuming that there is no way to manufacture new provisional ballots in the next few hours, it appears that Americans were lucky this time that the results in Florida and Ohio were not close. At 4am Wednesday, with 100% of the Ohio precincts reporting, Bush leads Ohio by 145,000 votes (51.1% to 48.4%)--very different from the effective tie in Florida in 2000 (just a few hundred votes difference then). People were so strongly expecting a razor thin result in Ohio that they haven't yet fully adjusted to the fact that it wasn't too close. Wins by more than 2% are completely ordinary and--absent special evidence that I am not privy to--not the sort of situation that should merit special scrutiny.

If I were Kerry, I would wait to see how many provisional ballots there are in Ohio (just to be reasonably cautious), assess whether Bush won any one of Iowa, Nevada, or New Mexico, and then make a quick decision. By the way, as I go to bed, Bush is leading by 3% in Nevada with 100% of the precincts reporting (and CNN just called Nevada for Bush).

UPDATE (4:40am Wed.): In just the last 45 minutes, almost half of the missing counties have added counts of provisional ballots, raising the total from 76,000 to 110,000.

2d UPDATE (4:50am): The official Ohio website shows a 134,000 vote difference between Bush and Kerry.

3d UPDATE (5:25am): The Ohio website still has 10 counties outstanding, but Cuyahoga has come through with a plausible number of provisional ballots. The total is now 135,000 but is likely to stay low enough that a Kerry concession on Wednesday is likely--perhaps with the slightest of reservations on his part just in case the count comes out shockingly in his favor.

4th UPDATE (11:35am): Kerry has conceded and the reporters (particularly Jim Acosta of CBS, whom I am watching right now) are saying that they are hearing that the Kerry camp's analysis was essentially the same as what I was saying last night. Unlike Hugh Hewitt, I don't at all fault Kerry for waiting to see how many provisional votes there were in Ohio. But, as is being reported, Kerry determined that the existing difference in Ohio was just too steep to be overcome. Kudos to Kerry.

Tuesday, November 2, 2004


A Slate commentator writes a piece about whether Bush would run again in 2008 if defeated in 2004; and in the middle, he has this line:

For Republicans, remember, Bush's presidency began in a monarchical spirit -- restoration of the House of Bush -- and though Dubya's conduct in office proved much more irresponsible than his father's, the urge to continue the bloodline could well persist."

Near the end, he suggests a second George W. Bush presidency followed by a Jeb Bush presidency, and writes "What would matter would be maintaining the dynasty, not the presidency of one individual."

Oh, yes, the House of Bush. That's right, we sing "God Save the King" every night over dinner. Seriously, when someone has these sorts of views about how Republicans think, why should anyone find his other predictions about Republican behavior (the whole point of the column) remotely credible?

Channel Surfing:

The Washington Post has set up this useful site that tracks in real time what states the different TV networks have called for Bush and Kerry.

When will we know?

Someone I was talking to at 4 pm Pacific today -- a thoughtful and intelligent person who knows quite a bit about probabilities and predictions -- predicted that by 9 pm Pacific the major networks would be calling a winner. (He said he believed this with 80% certainty; I set aside the mathematico-philosophical debates about what exactly that means.)

I am skeptical, given that the election in many states seems likely to be within the margin of error of the exit polls (though I hope not within the margin of error of the balloting technology). I doubt that the exit polls and the early returns will give people enough to call the national race with any confidence by then. I hope that it would be called when most of the returns are in considerably later tonight. I fear that we won't know the answer until a good deal of recount-related activity and litigation takes place.

But if by 9 pm Pacific a winner is announced, I'll happily eat crow (though perhaps tomorrow morning, since I probably won't have a chance to blog tonight).

Exit polls:

This is a close race, and I'll certainly agree that Bush may well lose it. But the pro-Kerry inference that some people are drawing from 50-49 exit polls strikes me as mighty odd.

I suspect the mathematical margin of error on those polls is at least +/-3%. Add to that the margin of error that flows from the possible differences between the late afternoon vote and the earlier vote, or between those who like to talk to pollsters and those who don't, and the 1% difference is way, way within the margin of error. Even if you are looking for 70% confidence rather than 95% confidence, the exit polls can't give you that.

People desperately want to know the future now, even if the future is only several hours away. But let's not kid ourselves into thinking that these are anything more than wild conjectures. And, yes, I'd have said exactly the same thing if Bush were up by 1% in those exit polls.

UPDATE: The same applies to 51-49 exit polls as well as the 50-49s.

FURTHER UPDATE: Exit polls also don't include absentee ballots.

Volokh Conspiracy brings out the Montana vote:

Well, I'm pleased to say that I've gotten three messages from Montana readers, one saying that he had already decided to vote for Brian Morris for the Montana Supreme Court, one saying that my post had persuaded him, and a third saying that my post had persuaded him and his mother! I am a vote-delivering machine, I'm telling you. If the race is decided by three or fewer votes, Brian Morris will owe me . . . well, nothing, since he's an ethical guy and would quite properly refuse to be at all influenced by this.

Tort Reform and the 2004 Election:

Those interested in tort reform issues should head on over to the Point of Law blog tonight, where Wally Olson and friends will be live-blogging state tort reform ballot initiatives.

No Terrorist Attacks?: I've received lots of mail in response to my claim that there have been no terrorist attacks in the United States since 9/11/01. There have been attacks, many readers say. Most point to the mailing of anthrax letters in late 2001, and others point to the one-man attack at the El Al counter at the L.A. Airport in July 2002.

  It seems to me that this mostly boils down to a definition of "terrorism," and I don't feel I have much at stake in that debate (nor interest in jumping into it, at least right now). I do think it's worth pointing out that no one knows who sent the anthrax letters, or why. Without knowing that, I don't know how we can classify it very well. But for those who want to take a broad definition of terrorism, feel free to read my earlier post as saying something more like this:
WHO WOULD HAVE THOUGHT on September 12, 2001, that between then and the November 2, 2004 Presidential election there would be no substantial increase in the number and severity of terrorist attacks in the United States compared to what we usually have? You never know what's around the corner, of course, but the big surprise of the last three years has been the dog that didn't bark louder than it normally does.
A Panel on Blogging and the Election

featuring the likes of Daniel Drezner, Henry Farrell, and (to bring out the curious) Wonkette, will be held on Nov. 18 at Topaz in the DuPont Circle area of DC. Details here. I plan to be there; if you're a VC reader and end up attending, be sure to say hello.

What if there's an electoral college tie?

The election is then supposed to be decided by the House of Representatives, with each state delegation casting one vote -- but the precise procedures for this are apparently not fully resolved. An article in The Hill discusses this, and also notes the uncertainty about how some Representatives whose party affiliation differs from the makeup of the state might vote. (Thanks to Election Law Blog (Rick Hasen) for the pointer.)

Have It Your Way:

This blog is a cooperative endeavor, with posts from many people, each of whom has his own perspective and his own style. I think it works very well this way; I much like the posts of all my cobloggers; and I'm pretty sure that we'd have many fewer readers if there were fewer cobloggers (since each coblogger's posts often bring in readers who might otherwise never have visited, and who might now come again).

Nonetheless, I realize that some readers might prefer to read posts only from some of the bloggers. I don't recommend it; and though the feature has been publicized before, my sense (based on one review of the logfiles that contain this information) is that fewer than 1% of our visitors use it. On the other hand, I'm a big believer in letting people Have It Their Way, when that's not too burdensome for the rest of us. So just as a reminder: If you use the URL,name,name

(for instance,,orin or you will get those posts written by the named bloggers, and no others. If you use the URL,name,name

(for instance, you will get all posts except those written by the named bloggers. The names are each blogger's first name, except that the Davids' names are DavidB, DavidK, and DavidP.

I should warn you, though, that this feature is what we techies call "unsupported": If it breaks, we don't promise to fix it. (While I'm talking techie, let me also thank again Chris Lansdown for implementing this cool feature.)

Finally, I say it again: I don't advise people to use this feature; each of the cobloggers has a lot to add, especially since each has his own expertise and interests, and I think readers will be better off seeing all the posts. But I realize that readers, shockingly, have their own ideas, and I'd like to be able to accommodate them to the extent that it's convenient.

UPDATE: Reader Trent McBride writes:

I think the best part of the selective and exclusive feature of the blog URL is to search past posts. If I'm trying to go back and find a Randy Barnett post whose date I can't remember, it's nice to filter out 95% of the blog to more quickly find what I was looking for.

Bernstein for President:

This morning, I was still unhappily contemplating whether to vote for Bush or Badnarik (the Libertarian) when my wife (who has Democratic tendencies), told me that she was so disgusted with the candidate selection that she was going to write in my name, and that I would make a better president than any of them (thanks, honey!). At that point, I decided that if my wife had such faith in me, I should at least acknowledge it by writing myself in for president as well. And, to reciprocate, I wrote her name (Sigal Bernstein) in for vice-president (she did so as well, but, being a newlywed, forgot that her legal name is now Bernstein. Oops.). So, Virginians, I would announce an unofficial, last-minute write-in campaign, but that might violate federal election law. But remember, the Republicans, Democrats, Libertarians, and Constitutionalists are not your only options!

UPDATE: Several readers have written in to point out that it would be unconstitutional to have a president and vice-president from the same state (though apparently husband and wife is O.K.) [Correction: It's unconstitutional for electors to vote for a president and vice-president who are both from their stat.] Damn!

Good election day advice,

from Michael Totten at InstaPundit:

Let's get a couple of things out of the way before today's votes are counted.

You have the right to vote. You do not have the right to see the man of your choice in the White House.

If George W. Bush wins the election, the world will still spin on its axis. Canada will not grant you asylum. If John Kerry wins the election, America will still be America. Australia will not grant you asylum.

People who vote for the other guy aren't stupid, brainwashed, or evil. They are your friends and family. Someone you love will almost certainly cancel your vote. (My wife cancels out mine.)

If, by some chance, everyone you know votes for the loser it won't mean the election was stolen. It will only show that you live in a bubble.

If this thing is close (the victor could easily win by 0.1 percent) try not to read too much into it. We'll still be closely divided.

If the election doesn't go your way, don't pop off as though America were Guatemala under the generals. You'll get lots of attention, but it won't be the kind you want. People will laugh, not near you but at you.

UPDATE: I also take Megan McArdle's pledge.

Second Amendment Election Guide:

I've just published a Second Amendment guide looking at all U.S. Senate races, all Governor races, and important U.S. of House of Representatives races. You can use the guide to see how the Second Amendment is faring when election returns come in tonight.

Justice Stevens' Stay Denial: Justice Stevens denied the applications to vacate the U.S. Court of Appeals for the Sixth Circuit's decision staying enforcement of two federal District Court orders barring partisan poll watchers from polling places in Ohio. Jusitce Stevens did not, however, tip his hand on the merits of the competing claims.
Although the hour is late and time is short, I have reviewed the District Court opinions and the opinions of the Circuit Judges. That reasonable judges can disagree about the issues is clear enough.

The allegations of abuse made by the plaintiffs are undoubtedly serious—the threat of voter intimidation isnot new to our electoral system—but on the record before me it is impossible to determine with any certainty the ultimate validity of the plaintiffs' claims.

Practical considerations, such as the difficulty of digesting all of the relevant filings and cases, and the challenge of properly reviewing all of the parties' submissions as a full Court in the limited timeframe available, weigh heavily against granting the extraordinary type of relief requested here. Moreover, I have faith that the elected officials and numerous election volunteers on the ground will carry out their responsibilities in a way that will enable qualified voters to cast their ballots.
The two-page opinion is available here. For additional commentary and material, see Ohio State's Election Law @ Moritz page.
Law Schools and Democracy: University of Colorado law professor Robert Nagel has a provocative op-ed in today's Wall Street Journal titled "Law Schools Are Bad for Democracy." Nagel ponders the persistence of "myths" about the 2000 election, such as the claim that President Bush is an "illegitimate" President, and the "lawyering up" of the electoral process. The essay is only available on-line to subscribers, but here's a taste:
To understand the reckless willingness to put a crucial element of our constitutional system at risk, it is necessary to understand some of what goes on in our law schools -- and thus in the minds of members of America's most powerful profession.

Consider one aspect of the Florida myth that has some basis in reality. It may well be that more people in Florida intended to vote Gore than Bush and that the Bush victory was based on mistakes in marking ballots. To the extent that this is the basis for Democratic outrage, the facts do not matter because the outrage is not based on how the marked ballots were counted but on the failure of the marked ballots to reflect true intentions. But to what kind of mind is it a profound injustice that some voters either did not have the intention that is now attributed to them by the Democrats or, if they did, failed to implement their intention?

The answer is that it is an injustice to those for whom abstractions matter more than actual behavior. And nowhere is that preference more ascendant than in the legal academy. I am not referring to small professional quirks, but to recurrent, fundamental instincts that shape the nature of acceptable argument and of American law.
The essay closes:
Legal education shapes lawyers' thinking, and lawyers help to shape American culture -- particularly the political culture. Unfortunately, this education breeds and dignifies some dangerous inclinations. It encourages people to favor constructed idealizations over real life. And it confuses the skills of argumentation with morality. The legions of lawyers encamped across the country to litigate their way to political victory are the embodiment of a more insidious process -- the penetration of our society by a relentlessly adversarial mindset, one that is entirely ready to make our democracy unworkable.
I think it's safe to say Professor Nagel already has tenure.
A Case for Kerr?

In today's Wall Street Journal ACLU President Nadine Strossen defends her organization's position on the USA PATRIOT Act, portions of which she believes are unconstitutional. She writes: "One of the act's broad surveillance provisions was struck down by a federal judge in New York just a few weeks ago in a case that the ACLU brought." Hmmmmm. Haven't we seen this claim before?

Kerry says he must have been drinking the night before he took intelligence test.--

NEWSMAX reports:

Brokaw: Kerry Blamed Low IQ Score on Drinking

John Kerry told NBC newsman Tom Brokaw last week that the reason President Bush outscored him on military intelligence tests was that he had likely been drinking the night before his exam.

Brokaw revealed Kerry's off camera excuse in an Election morning interview with radio host Don Imus.

"I asked the question of John Kerry because the New York Times had reported that a man by the name of David [actually, Steve] Sailer had analyzed their military aptitude tests and then had, had IQ experts do an analysis as well - or the Times did," the NBC anchorman explained. "And they concluded that George W. Bush might be a point or two higher than John Kerry in IQ." Brokaw continued:

"And John Kerry was caught a little off guard, he said. 'Well, more power to him. I thought that, that was not public.' And when the interview was over he said, 'I must have been drinking the night before I took that military aptitude test.'"

I confess that it would surprise me if (by conventional intelligence tests) as young men Bush was smarter than Kerry--although Kerry may not be as smart as people think he is, and Bush is certainly smarter than people think he is.

Who Would Have Predicted, on September 12, 2001, that between then and the November 2, 2004 Presidential election there would be zero additional terrorist attacks in the United States? You never know what's around the corner, of course, but the big surprise of the last three years has been the dog that didn't bark. What does it mean? Does Al Qaeda pose less of an immediate threat to the United States than has been commonly believed?

  UPDATE: David Ignatius asks similar questions on the op-ed page of the Washington Post.
Difficulties in Stopping Suicide Murders:

Consider this article next time you hear someone whining about Israeli checkpoints on the West Bank.

More misleading crime statistics:

The Telegraph (U.K.) writes:

[In 1987, Oklahoma enacted a] Make My Day Law, named for the celebrated scene in the Clint Eastwood Dirty Harry film.

The law was pushed through by Sen Charles Ford, a Republican, the opposition party in the state. "The purpose of the law is to protect the victim of crime who defends his home and his family against unlawful intrusion from any criminal prosecution or civil action," Sen Ford said last week.

"We considered it outrageous that someone who protects his home and family should suffer. Our law says you can use any force, including deadly force, to defend your home."

So far, I'm fine with that. But the article continues:

[The law] has been an unqualified success. Since the Make My Day Law came into force, burglary has declined by almost half in Oklahoma. In 1987, there were 58,333 cases; in 2000, just 31,661.

While crime rates throughout America fell in the 1990s, Make My Day supporters point to a second statistic in Oklahoma they say proves the impact of the new law: while burglary rates plunged, other forms of theft stayed constant. In 1988, there were 96,418 cases, in 2000, 96,111.

Yet the first statistic tells us nearly nothing about Make My Day laws: The Oklahoma burglary rate in 2000 was 51.5% the rate in 1987, while the nationwide burglary rate in 2000 was 54.5% the rate in 1987. "While crime rates throughout America fell" is an understatement -- they fell by nearly the same amount in other states as in Oklahoma. (Note that, like the newspaper story, I'm using Uniform Crime Reports numbers, not the National Crime Victimization Study numbers.)

What about the second statistic (which focuses on other theft excluding car theft and robbery)? First, the 1988-2000 comparison is odd given that the preceding comparison was 1987-2000: If you compare 1987 and 2000, you find that reported thefts dropped from 105,639 to 96,116; and if you compare rates per person rather than raw numbers, you find that the theft rate dropped from 3220 to 2785, which is to say fell to 86.5% of its 1987 level. The nationwide theft rate fell to 80% of its 1987 level. This tells us that, first, Oklahoma was again not far out of step with the U.S.; and, second, that there are all sorts of reasons why the burglary rate might fall much faster than the theft rate (such as higher penalty increases for burglary than for theft, changes in policing priorities, and many more).

So there's really no reason at all to think that the statistics tell us anything about the merits of the Make My Day law. I support the law because I think it's fair, and because I think it probably does have some marginal deterrent effect. But the statistical argument given in favor of the law seems extremely weak.

Reynolds' latest Guardian column.--

Glenn Reynolds' column for the Guardian newspaper makes this observation:

America, and the west in general, has somehow bred a class of elites who think that their own countries, and societies, are presumptively wrong. Hit from outside, their first instincts are to look inward - to conspiracies, or to some sort of flaw that might justify the attacks. Say what you will of the old-time elites, but at least they did not suffer from this vice.

It has been hard for Bush to run a war in the face of this sort of attitude. I think that it will be impossible for Kerry to do so, since it is endemic among many of his strongest supporters.

In one of his essays, George Orwell wrote about those "sophisticated" people in England whose position was that their own country was always wrong, whom he argued were just as rigid and unthinking as those who thought that their own country was always right.

Monday, November 1, 2004

Blogs Have Entered the Mainstream.

Proof available here.

Consider this Political Quiz.--

Can you tell who said each statement--Bin Laden, John Kerry, or Michael Moore? I got 65% right. Tip to Betsy, who got 60% right. Pejamesque got 70%.
More Possible Fraud--This time by the Daschle campaign.--

Powerline is reporting that the Tom Daschle campaign is flat-out lying to voters saying that "John Thune is attacking" Daschle's wife:

The Daschle campaign, desperate at finding itself behind in the polls, has resorted to an especially low form of "push polling." Our correspondent reports:

am here in Brookings, South Dakota [and] just thought I'd pass on the following information if you haven't seen or heard it. The Daschle campaign is having people claiming to be pastors and ministers calling local South Dakotans asking them whether the fact the "John Thune is attacking Linda Daschle" bothers them or makes them uncomfortable. When one constituent peppered the "pastor" with questions about his hometown, where he lived - it was apparent this "pastor" was not from South Dakota at all.

I called the Daschle campaign in Brookings posing as a sympathetic constituent, and they CONFIRMED to me that these calls are being made.

Needless to say, Thune isn't attacking Linda Daschle. But for Tom Daschle, this is what his long career in the Senate has come down to--hoping to eke out a victory through whining, false claims, and fraud.

I'm not making a lot of predictions this year, but I'm going out on a limb on this one--Thune will win.

If true, this is devastating. The campaign admitted to Powerline's respondent that it was doing this dirty trick. Again, if true, a free press is needed to expose this fraud to the voters.

UPDATE: A reader (Daniel Wolf) sent this email, which (if true) directly supports the Daschle campaigns statements about the Thune campaign (though not the claim that the Daschle caller was a fellow South Dakotan):

My great aunt in Yankton, S.D. has received two phone calls claiming that Linda Daschle was an abortionist. The Daschle campaign is completely correct on this.

Related Posts (on one page):

  1. More Possible Fraud--This time by the Daschle campaign.--
  2. Election Fraud and Phony Phone Calls.--
Election Fraud and Phony Phone Calls.--

1. The Milwaukee Journal Sentinel reports (quick registration required):
Between 15,000 and 20,000 Milwaukee residents who registered to vote in recent months have not had their forms processed and may find themselves unregistered at the polls Tuesday, Mayor Tom Barrett said today....

Poll workers will already be reviewing about 5,500 addresses where buildings may not exist as a result of an agreement reached Sunday in response to a Republican complaint.
What a mess!

If there are anything near 5,500 phony registrations for buildings that don't exist, imagine how many more phony registrations there are for buildings that do exist. My guess is that Bush will need to win by at least 20,000 in Wisconsin to overcome this sort of fraud. I don't think he can do it.

2. On the other side, AP has the text of a phone call that says that Kerry would make gay marriage legal:
When you vote this Tuesday remember to legalize gay marriage by supporting John Kerry. We need John Kerry in order to make gay marriage legal for our city. Gay marriage is a right we all want. It's a basic Democrat principle. It's time to move forward and be progressive. Without John Kerry, George Bush will stop gay marriage. That's why we need Kerry. So Tuesday, stand up for gay marriage by supporting John Kerry.
This sort of thing is reprehensible. While Kerry might want to make gay marriage legal if he thought he could (I would favor such a move myself), Kerry is crystal clear that he opposes it.

I hope that everyone who finds this phone ad deeply wrong also condemned the draft email hoax as well. While in his heart of hearts Kerry might really want to recognize gay marriage (but politically can't), Bush would never want to reintroduce the draft, and Kerry and any other Democrat with a brain knows it. A draft would lead to a great loss in quality in the military and a great rise in opposition to the War on Terror. People remember that opposition to the Viet Nam War greatly lessened when the draft ended, and the quality of the military soared.

We really need the MSM to keep the campaigns (or lower partisan operatives) honest when they put out false and sleazy attacks like the gay marriage phone call and the draft email hoax. Instead, the press did its best to spread the draft email hoax, rather than pound those responsible.

We should remember the terrible phone call campaigns in 2000--the South Carolina one that attacked McCain in the primary (in favor of Bush) and the last-minute pro-Gore ones in November 2000 claiming that Bush would abolish the NLRB (I actually got one of those calls), cut social security, and his election would increase lynchings of African-Americans. We need the MSM to follow up on these and expose who is behind them.

Unfortunately, these last minute phone messages sometimes work. We probably would have had Jeb Bush running in 2000 rather than GW if Jeb had won his first campaign for governor. He was leading until a last-minute phone blitz claimed that he would eliminate social security (even though it is a federal, not a Florida program). In 2000, GW Bush's last minute collapse was caused by the DUI October surprise, but I believe that Florida would not have been so close without the last-minute automated pro-Gore phone calls there claiming Bush would cut social security.

3. Drudge, the AP and others are reporting that a phony pro-Kerry phone call is running that claims that General Norman Schwarzkopf is endorsing Kerry. Schwarzkopf released this statement:
"The Democratic National Committee is making fraudulent phone calls claiming that I have endorsed Senator Kerry. Nothing could be further from the truth, and I demand that they stop immediately.

"Senator Kerry opposed the Reagan defense build-up that won the Cold War. Senator Kerry opposed the removal of Saddam Hussein from Kuwait. Senator Kerry proposed billions in intelligence cuts after the first attack on the World Trade Center. Senator Kerry voted against funds to equip our troops in Iraq and Afghanistan with supplies like body armor and ammunition.

"I am supporting President Bush for reelection, because he is the candidate who has demonstrated the conviction needed to defeat terrorism. In contrast to the President's steadfast determination to defeat our enemies, Senator Kerry has a record of weakness that gives me no confidence in his ability to fight and win the War on Terror. His attempt to make up for these deficiencies by falsifying my endorsement only confirms my impression that he is not the man we need to lead our nation."
Somehow I doubt that the DNC is behind this one, no matter what the hoax phone call says.

According to the AP, which heard a tape, the person speaking on the phone actually claims to be Schwarzkopf. This is an identity theft or other felony in some states, which can (but usually doesn't) lead to serious jail time. I'd love to see a prosecution.

4. The AP gives some other examples of this disgusting practice of phony phone calls:
In Lancaster County, Pa., Republican officials said bogus phone calls have gone to at least a dozen elderly voters, alleging they are ineligible to vote. The calls appeared to target Republicans, said Rep. Joe Pitts, R-Pa., who called them "an outrageous effort on the part of someone to try to repress the vote."

Registered Republican voters outnumber Democrats in Lancaster County more than a 3-to-1 margin.

GOP officials, meanwhile, have been getting reports of phone calls being made by a person who says he's representing the Bush campaign, and then unlooses a string of swear words. Another phone call is said to tell voters they've been drafted for military service because Bush needs them for the war in Iraq.
I don't say this very often, but Hooray for the AP.

UPDATE: A few readers have emailed to say that the Schwarzkopf phone call was a shortened version of a call from General McPeak that came out "I'm ... Norman SChwarzkopf." One reader attributed this to an answering machine skipping, another reader to a Republican splice job. I think it's a splice job, but whether it was done by Republicans or Democrats I would have no way of knowing. Again, mainstream press checking to see who got such calls is the best way to sort things out.

2D UPDATE: On Kerry's impassioned, but somewhat ambiguous 1996 statement favoring gay marriage, see Nick Mikulicich.

Related Posts (on one page):

  1. More Possible Fraud--This time by the Daschle campaign.--
  2. Election Fraud and Phony Phone Calls.--
The Enemy Within:

A poster distributed at Northeastern Illinois University, as part of a tribute to Sheikh Yassin,, via Little Green Footballs.

Yassin, lest we forget, was, as "spiritual leader" of the Hamas terrorist group, directly responsible for the deaths of hundreds of innocent Israeli civilians. Other than Arafat, Yassin is likely also the individual most responsible for the lack of a peaceful resolution to the Israeli-Palestinian conflict. Indeed, by many accounts part of the reason Arafat was unwilling to reach an agreement with Israel in 2000 was fear of what Hamas thugs would do to him. And Hamas, not least, is on the U.S. list of terrorist organizations. The phrase "fifth column" [Update: referring specifically to those who support terrorist jihadists like Yassin] comes to mind.

Last Minute Election Slime:

This is ugly.

Al Jezeera releases a full transcript of the Bin Laden tape.-- The full transcript is now online of the Bin Laden tape. Excerpts:
People of America this talk of mine is for you and concerns the ideal way to prevent another Manhattan, and deals with the war and its causes and results.

Before I begin, I say to you that security is an indispensable pillar of human life and that free men do not forfeit their security, contrary to Bush's claim that we hate freedom. If so, then let him explain to us why we don't strike for example - Sweden? ...

No, we fight because we are free men who don't sleep under oppression. We want to restore freedom to our nation, just as you lay waste to our nation. So shall we lay waste to yours.

No-one except a dumb thief plays with the security of others and then makes himself believe he will be secure. Whereas thinking people, when disaster strikes, make it their priority to look for its causes, in order to prevent it happening again.

But I am amazed at you. Even though we are in the fourth year after the events of September 11th, Bush is still engaged in distortion, deception and hiding from you the real causes. And thus, the reasons are still there for a repeat of what occurred....

This means the oppressing and embargoing to death of millions as Bush Sr. did in Iraq in the greatest mass slaughter of children mankind has ever known, and it means the throwing of millions of pounds of bombs and explosives at millions of children - also in Iraq - as Bush Jr. Did, in order to remove an old agent and replace him with a new puppet to assist in the pilfering of Iraq's oil and other outrages.

So with these images and their like as their background, the events of September 11th came as a reply to those great wrongs, should a man be blamed for defending his sanctuary?

Is defending oneself and punishing the aggressor in kind, objectionable terrorism? If it is such, then it is unavoidable for us.

This is the message which I sought to communicate to you in word and deed, repeatedly, for years before September 11th.

And you can read this, if you wish, in my interview with Scott in Time Magazine in 1996, or with Peter Arnett on CNN in 1997, or my meeting with John Weiner in 1998.

You can observe it practically, if you wish, in Kenya and Tanzania and in Aden. And you can read it in my interview with Abdul Bari Atwan, as well as my interviews with Robert Fisk.

The latter is one of your compatriots and co-religionists and I consider him to be neutral.

At a time when some of our compatriots were dazzled by America and hoping that these visits would have an effect on our countries, all of a sudden he [Bush, Sr.] was affected by those monarchies and military regimes, and became envious of their remaining decades in their positions, to embezzle the public wealth of the nation without supervision or accounting.

So he took dictatorship and suppression of freedoms to his son and they named it the Patriot Act, under the pretense of fighting terrorism. In addition, Bush sanctioned the installing of sons as state governors, and didn't forget to import expertise in election fraud from the region's presidents to Florida to be made use of in moments of difficulty.

All that we have mentioned has made it easy for us to provoke and bait this administration. All that we have to do is to send two Mujahideen to the furthest point East to raise a piece of cloth on which is written al-Qaida, in order to make the generals race there to cause America to suffer human, economic, and political losses without their achieving for it anything of note other than some benefits for their private companies. ...

So we are continuing this policy in bleeding America to the point of bankruptcy. Allah willing, and nothing is too great for Allah.

That being said, those who say that al-Qaida has won against the administration in the White House or that the administration has lost in this war have not been precise, because when one scrutinizes the results, one cannot say that al-Qaida is the sole factor in achieving those spectacular gains.

Rather, the policy of the White House that demands the opening of war fronts to keep busy their various corporations - whether they be working in the field of arms or oil or reconstruction - has helped al-Qaida to achieve these enormous results. ...

And it was to these sorts of notions and their like that the British diplomat and others were referring in their lectures at the Royal Institute of International Affairs. (When they pointed out that) for example, al-Qaida spent $500 000 on the event, while America, in the incident and its aftermath, lost - according to the lowest estimate - more than 500 billion dollars.

Meaning that every dollar of al-Qaida defeated a million dollars by the permission of Allah, besides the loss of a huge number of jobs.

As for the size of the economic deficit, it has reached record astronomical numbers estimated to total more than a trillion dollars.

And even more dangerous and bitter for America is that the Mujahideen recently forced Bush to resort to emergency funds to continue the fight in Afghanistan and Iraq, which is evidence of the success of the blee-until-bankruptcy plan - with Allah's permission.

It is true that this shows that al-Qaida has gained, but on the other hand, it shows that the Bush administration has also gained, something of which anyone who looks at the size of the contracts acquired by the shady Bush administration-linked mega-corporations, like Haliburton and its kind, will be convinced. And it all shows that the real loser

It is the American people and their economy. ...

And it's no secret to you that the thinkers and perceptive ones from among the Americans warned Bush before the war and told him, "All that you want for securing America and removing the weapons of mass destruction - assuming they exist - is available to you, and the nations of the world are with you in the inspections, and it is in the interest of America that it not be thrust into an unjustified war with an unknown outcome."

But the darkness of the black gold blurred his vision and insight, and he gave priority to private interests over the public interests of America.

So the war went ahead, the death toll rose, the American economy bled, and Bush became embroiled in the swamps of Iraq that threaten his future. He fits the saying, "Like the naughty she-goat who used her hoof to dig up a knife from under the earth"

So I say to you, over 15 000 of our people have been killed and tens of thousands injured, while more than a thousand of you have been killed and more than 10 000 injured. And Bush's hands are stained with the blood of all those killed from both sides, all for the sake of oil and keeping their private companies in business.

Be aware that it is the nation who punishes the weak man when he causes the killing of one of its citizens for money, while letting the powerful one get off, when he causes the killing of more than 1000 of its sons, also for money. ...

Finally, it behooves you to reflect on the last wills and testaments of the thousands who left you on the 11th as they gestured in despair. They are important testaments, which should be studied and researched.

Among the most important of what I read in them was some prose in their gestures before the collapse, where they say, "How mistaken we were to have allowed the White House to implement its aggressive foreign policies against the weak without supervision." It is as if they were telling you, the people of America, "Hold to account those who have caused us to be killed, and happy is he who learns from others' mistakes," And among that which I read in their gestures is a verse of poetry, "Injustice chases its people, and how unhealthy the bed of tyranny."

As has been said, "An ounce of prevention is better than a pound of cure."

And know that, "It is better to return to the truth than persist in error." And that the wise man doesn't squander his security, wealth and children for the sake of the liar in the White House.

In conclusion, I tell you in truth, that your security is not in the hands of Kerry, nor Bush, nor al-Qaida.


Your security is in your own hands. And every [U.S.] state that doesn't play with our security has automatically guaranteed its own security.

And Allah is our Guardian and Helper, while you have no Guardian or Helper. All Peace be Upon he who follows the Guidance.
I added in brackets the MEMRI translation of one phrase, which has been confirmed by several other sources.

The most disgusting part of Bin Laden's speech is the part where he charaterizes what he believes the people who died in 9/11 were thinking as they gestured while dying. And Bin Laden closes by saying that we "have no Guardian or helper," but that "Peace be Upon he who follows the Guidance," presumably of bin Laden claiming to speak for Allah.
1912 Election Law Opinion Unearthed: Today's Legal Times has an article by Tony Mauro on a recently discovered in-chambers election law opinion from 1912, Marks v. Davis. The text of the opinion, co-signed by Justices Pitney and Van Devanter, is available here. The Mauro article suggests that the newly-discovered opinion may be an important precedent; the article is titled "The Case That Could Have Altered Bush v. Gore." I'm skeptical about that claim, but I think it's a pretty cool story either way.

What is an in-chambers opinion, you're wondering? The Supreme Court's website explains that
[a]n in-chambers opinion is written by an individual Justice, usually the Justice for the Circuit from which the case arises, to dispose of an application by a party to the case for interim relief, e.g., for a stay of the judgment of the court below, for vacation of a stay, or for a temporary injunction.
For much of the Supreme Court's history, in-chambers opinions were pretty much ignored. According to Cynthia Rapp, Deputy Clerk at the Supreme Court:
In chambers opinions were not reported in a routine manner until the 1969 Term, when they began appearing in the United States Reports. Prior to this time most could be found in unofficial Supreme Court reporters. Some opinions have no official citation.
Marks v. Davis is one of the opinions without an official citation; it was issued and then forgotten. According to Mauro's article, the opinion was unearthed in the archives of the Kansas State Historical Society by GMU law prof Ross Davies, editor of The Green Bag.

Marks v. Davis arose amidst the Presidential election of 1912, when several electors from Kansas wanted to cast their electoral votes for Theodore Roosevelt instead of William Howard Taft. A lawsuit followed, but the Kansas Supeme Court invoked the political question doctrine and refused to get involved. See Marks v. Davis, 125 P. 344 (Kan. 1912). A concurring opinion by Justice West expressed some uneasiness with this decision:
    I am willing to join with my Brethren in saying that the mere announcement of a candidate for presidential elector that he will not vote for the nominee of the party would not be a sufficient ground to enable the signers of his petition to maintain this suit. But, to my mind, the right of the signers, before the primary ballot is printed, to have their names removed, if procured by false pretenses, is probably a legal right which, under the Anglo-Saxon system of law, should not be a right without a legal remedy. It is also apparent that incidentally involved in this proceeding is the right of thousands of voters in this state to vote for the nominee of their party, and, in my opinion, the result is likely to be, to this extent, their political disfranchisement at the coming election.
Just a few days later, the plaintiffs argued their case to Justices Van Devanter and Pitney. The Justices co-authored a very brief opinion issued the same day as the hearing. The opinion expresses a tentative sense that there were important federal questions involved:
  Some of the opinions of the court contain expressions which tend to sustain the contentions of the plaintiffs. Whether in view of the facts in the cases in which these expressions occur they should be regarded as deliberate and controlling ought not to be determined otherwise than by the court itself. It is conceded that the questions are important and of large public concern, and we have concluded that those who present them are fairly entitled to the judgment of the court which by the constitution is made the final arbiter of all controversies arising under that instrument. In this situation we think the writ of error should be allowed.
The Justices declined to grant any relief, however:
  But as courts are reluctant to interfere with the ordinary course of elections, whether primary or otherwise, as the rights asserted are not clear but doubtful, and as the injury and public inconvenience which would result from a supersedeas or any like order, if eventually the judgment of the state court should be affirmed, or the writ of error dismissed, would equal the injury which otherwise would ensue, we think no supersedeas or kindred order should be granted.
Does the opinion have any legal relevance today? According to the Mauro article, the opinion "stands for the proposition that the Supreme Court should butt out of election disputes until state courts finish their work." Perhaps. On the other hand, it's hard to know what to make of the case without knowing what issues the parties raised, or what standards the Court applied to review of such cases back in 1912. Either way, pretty cool.
California Prop. 72 (mandatory employer-provided health care):

My friend Glen Whitman blogs against it, and links to a post on another blog that supports it.

Another reason to fear election-related litigatioN:

Snopes verifies the claim that "The outcome of Washington Redskins home football games has correctly predicted the winner of every U.S. presidential election since 1936": "If the Redskins win their last home game before the election, the party that occupies the White House continues to hold it; if the Redskins lose that last home game, the challenging party's candidate unseats the incumbent president." The Snopes entry closes with "On 31 October 2004, the Green Bay Packers defeated the Redskins in Washington, 28-14, which -- if the established pattern holds true — predicts that Democratic challenger John Kerry will unseat incumbent President George W. Bush in the upcoming presidential election."

But John Morris (an editor of The Deal, and sometime publisher of the Copyright Infringement Quarterly), points out an important twist:

I'm told that Snopes leaves out some crucial facts; namely that a Redskins touchdown was called back on a penalty in the closing minutes of the game. The Skins then threw a pass which was intercepted and run back for a touchdown for the Packers. It turned out, however, that the penalty was erroneous.

So, if this game is a predictor of anything perhaps it is that there will be litigation over the officiating after the contest.


(Note: I utterly refuse to entertain any arguments about the correctness of the referee's call, a subject on which I am completely, and rationally, ignorant.)

Michael Moore and Osama bin Laden: The Canadian web journal has a new article noting some of the many similarities between the claims in Osama bin Laden's latest movie and the claims in Michael Moore's latest movie.

The reporter asked me for an observation, and I said, "It's a poor reflection on both of them. Michael Moore presents numerous anti-American falsehoods in Fahrenheit, and Osama bin Laden echoes them.

"It should not be surprising that bin Laden finds so much in common with Michael Moore. After all, Moore says that Al Qaeda terrorists in Iraq such as Abu Musab al-Zarqawi, and the Iranian- and Syrian-sponsored terrorists who want to prevent free elections in Iraq, are the equivalent of the pro-freedom 'Minutemen' who won the American Revolution."

Although the Osama video will likely make Michael Moore even more popular among totalitarians around the world, Moore's reputation in central Europe may have suffered a new blow, as a Czech citizen has just produced a translation of the 4-page summary of my report 59 Deceits in Fahrenheit 9/11. Or as they say in the Czech Republic, 59 lí dokumentu Fahrenheit 9/11. Update: It appears that Michael Moore doesn't mind being an indirect speech-writer for Osama bin Laden. Moore's final pre-election web letter says, "did you get the feeling that he had a bootleg of my movie? Are there DVD players in those caves in Afghanistan?"
A reminder to our Montana readers:

I doubt there are many, but surely there must be some -- and if you're one of them, I just wanted to again pitch Brian Morris, a candidate for the Montana Supreme Court. Brian clerked for Chief Justice Rehnquist when I was clerking, and I was very impressed him: He's very smart and thoughtful, and I'm sure would make an excellent judge. For more about him, check his site.

Welcome to Dave Kopel:

I'm very pleased to say that Dave Kopel, of the Independence Institute (not the Independent Institute), has joined us as a coblogger.

Dave is a leading scholar on firearms regulation, both on the constitutional law issues and on the policy questions; he's written dozens of articles and several books on the subject (including The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies?, which was named 1992 Book of the Year by the American Society of Criminology), as well as on many others. He's also a coblogger at National Review Online's The Corner blog.

The New York Post has more on the Bin Laden threat against the red states.--

As I posted below (here and here), the Middle East Media Research Institute (MEMRI) has determined that the initial translation of Bin Laden's tape was in error. According to both MEMRI and an Al-Qaeda website monitored by MEMRI, Bin Laden in effect offered peace to US blue states that voted for Kerry and warned red states with violence. The New York Post covers the same ground and adds a few details:

Osama bin Laden warned in his October Surprise video that he will be closely monitoring the state-by-state election returns in tomorrow's presidential race — and will spare any state that votes against President Bush from being attacked, according to a new analysis of his statement. The respected Middle East Media Research Institute, which monitors and translates Arabic media and Internet sites, said initial translations of a key portion of bin Laden's video rant to the American people Friday night missed an ostentatious bid by the Saudi-born terror master to divide American voters and tilt the election towards Democratic challenger John Kerry.

MEMRI said radical Islamist commentators monitored over the Internet this past weekend also interpreted the key passage of bin Laden's diatribe to mean that any U.S. state that votes to elect Bush on Tuesday will be considered an "enemy" and any state that votes for Kerry has "chosen to make peace with us."

The statement in question is when bin Laden said on the tape: "Your security is up to you, and any state that does not toy with our security automatically guarantees its own security."

That sentence followed a lengthy passage in the video in which bin Laden launches personal attacks on the president.

Yigal Carmon, president of MEMRI, said bin Laden used the Arabic term "ay-wilaya" to refer to a "state" in that sentence.

That term "specifically refers to an American state, like Tennessee," Carmon said, adding that if bin Laden were referring to a "country" he would have used the Arabic word "dawla."

MEMRI also translated an analysis of bin Laden's statement from the Islamist Web site al-Qal'a, well known for posting al-Qaeda messages, which agreed that bin Laden's use of the word "ay-wilaya" was meant as a "warning to every U.S state separately."

"It means that any U.S. state that will choose to vote for the white thug Bush as president, it means that it chose to fight us and we will consider it an enemy to us, and any state that will vote against Bush, it means that it chose to make peace with us and we will not characterize it as an enemy," the Web site said, according to MEMRI's translation.

White Collar Crime Prof Blog:

Law profs Ellen Podgor and Peter J. Henning have started a new blog, White Collar Crime Prof Blog, the fifth blog to join the Law Professor Blogs Network. Check it out.

The Supreme Court and the Will to Power:

With Chief Justice Rehnquist ill and Republicans facing the possibility of a loss of the presidency, it's time for those of us not at all pleased with the prospect of a President Kerry appointing Rehnquist's replacement to put the blame squarely where it belongs: on Rehnquist. The man has been on the Court for over thirty years, which should be long enough for anyone. He could have resigned in 2003, and virtually guaranteed that he would be replaced with a Bush appointee. Instead, he could not pry himself loose from the power and prestige of his office, and instead chose to hang on into his 80th year. For putting his own love of the Chief Justiceship above the cause of ensuring that a (reasonably) like-minded individual replace him, Rehnquist deserves the contempt of all Federalists in good standing. (I know it's tough to give up power, but can we all take a lesson from George Washington in that regard?)

More generally, it's time to institute term limits for Supreme Court Justices. Give them fifteen years, a generous pension, and a ban on future income beyond that pension. No one should be wielding the type of unreviewable power Supreme Court Justices wield for any longer than that, nor should the American legal system be governed by individuals appointed a couple of generations ago, nor should the ideological makeup of the Supreme Court be dictated by the fortuities of the health and longevity of individual Justices. If Clarence Thomas lives into his ninetees, the dead hand of the first Bush Administration will be exercising influence on the Court in 2040! With no disrespect to Thomas implied, that is not a welcome prospect.

Justice Hillary?:

According to U.S. News,

One scenario making the rounds in Washington is that if Sen. John Kerry is elected, he'll nominate New York's Sen. Hillary Rodham Clinton to the U.S. Supreme Court. There she'd judge as a "law-and-order feminist" to build credentials to eventually run for president after Kerry. Sound crazy? Senate and even White House insiders said some moderate and female Republican senators might go for it and OK the confirmation.

Hat tip: Wonkette.

Federalists "sniped" at Western New England College School of Law:

Last Thursday, I spoke on the Second Amendment, at Western New England College School of Law, in Springfield, Massachusetts, at the invitation of the school's Federalist Society. The night before, the Red Sox won the World Series, and it was fun to be in the hotel bar, with plenty of Red Sox fans, as the 86-year Curse was lifted. It was sort of like being an eyewitness to the final scene of Beauty and the Beast—a very rare event.

My speech the next day also had an unusual experience, although the WNEC Federalists tell me that it happens all the time to them. For the first time ever, I was "sniped." According to the WNEC Federalists, when they schedule an event, the school administration quite often schedules a counter-event, designed to keep the law students from hearing whatever the Federalists have to say.

My speech was final event in the WNEC Federalists' "Second Amendment Week." On Tuesday at noon, they showed a video of the recent debate in London between the NRA's Wayne LaPierre and Rebecca Peters, a leading scholar of the international gun prohibition lobby. At the last minute, the administration scheduled an event at the exact same time, on the highly controversial Solomon Amendment, which forbids schools which receive federal funding from barring military recruiters. Many law schools, including WNEC, would like to prohibit the military from conducting campus interviews to recruit lawyers for the Judge Advocate Generals Corps, because the military discriminates against homosexuals.

The Federalists asked the administration why the event had been scheduled to conflict with the Federalist event. According to the Federalists, the administration replied that the conflict was unavoidable, because of faculty scheduling. The Federalists, and even some members of the faculty, suggest that the administration's rationale was nonsense; faculty schedules are the same every week. If the faculty speakers were available last Tuesday at noon, they would also be available the next Tuesday, at noon, or the Tuesday after that.

My speech was scheduled for Thursday at noon. The Federalists entice students to attend events by offering free pizza and soda, which the student Federalists pay for out of their own pockets.

Just a few days before I arrived, an announcement was made that PMBR, a company which offers classes to prepare students for the bar exam, would be holding an informational meeting about how PMBR could help students pass the bar. As is the norm at PMBR events, free pizza was offered.

When the PMBR representative arrived on campus, a Federalist heard him remarking to his assistant about how unusual the WNEC administration's request had been: the administration had contacted him on very short notice, and insisted that he make his presentation on a particular date and a particular time. The date and time just happened to be the exact time when I was scheduled to speak.

Now WNEC does not graduate any students in December, so none of its students would be preparing for the bar exam until next summer. So why would the WNEC administration be so insistent that PMBR make its presentation on a particular Thursday at noon, as opposed to the next day, or the next week?

According to the U.S. News & World Report rankings, WNEC is a "tier 4" law school, meaning that it is in the bottom quartile. A professor at another (mid-ranking) school once explained to me that political correctness and hostility to intellectual diversity are more intense at the lower-ranking law schools than at the higher-ranking schools. At the high end, the leftist faculty are influential in legal scholarship, and in the broader world. Accordingly, they can afford to be tolerant of a few conservative or libertarian faculty or students. But in the lower-ranking law schools, power over of the school itself is the only power the faculty have, and they are often especially rigid about attempting to suppress diverse points of view.

Notwithstanding the "sniping" attempt, about 55 students showed up for my lecture, including (to their credit) some students who were well-known members of the campus Left.

Like many of the members of the Volokh Conspiracy, I have spoken at Federalist events all over the country, at law schools all over the prestige rankings. But this was the only time I have ever been sniped.

WNEC charges its students $29,000 a year in tuition. Perhaps the administration might offer the students a better value for the very hefty tuition if, instead of sniping Federalist events, the administration celebrated intellectual diversity, and stopped trying to distract its students from hearing non-Left points of view. Why not schedule campus programs so that students can attend both events, rather than having to miss one?

After all, a good lawyer is comfortable with being confronted by the best arguments of her intellectual opponents. A law school which tries to shield students from speakers who dissent from politically correct ideology does a very poor job of training lawyers to engage in intellectual combat, which is an essential skill of a lawyer.

UPDATE: I was wrong in my claim that WNEC does not graduate a December class. And although political correctness may be rampant at many law schools, there are still schools--including those in the fourth tier--which continue to respect intellectual diversity.

Election Thoughts:

This is the most depressing presidential election for a libertarian since 1972. Maybe it's worse than 1972, because that year one could, with good conscience, vote for Libertarian candidate John Hospers. This year, the Libertarian candidate is embarassing. And Ralph Nader has become a parody of the man who once supported some forms of deregulation because it benefitted consumers. I find virtually nothing to admire about John Kerry. W. deserves credit for a certain steadfastness in the War on Terror, but his administration is suffused with the sort of hubris, sense of entitlement to power, and belief in the ameliorative powers of government action (in both the foreign and domestic realms) that one normally associates with the worst types of statists. And let's not forget the Administration's blatant lies about the cost of the Medicare law, and Karl Rove's apparent plan to drive all well-educated, secular folks out of the party in exchange for the votes of the most ignorant elements of the fundamentalist community, a traditional Democratic stronghold. I am concerned about the future of the Supreme Court, but I expect that Bush would most likely appoint a "moderate" and easily confirmable Latino who could help woo voters to the GOP side than appoint a principled believer in the American constitution.

The Republican Congress, meanwhile, has proven worse than a disappointment; it's a disaster of monumental proportions. Congressional Republicans, as a group, have but one goal, and that's to wield power. The current Congress makes the corrupt Democrats of the O'Neil-Wright era look like great statesmen. Unfortunately, I don't see any evidence that the Democrats would be better (whatever happened to the "reform" wing of the Democratic Party? Did it die its final death when Robert Reich was expelled from the Clinton Administration for talking too much about corporate tax breaks and other special interest giveaways? Can you believe that every single House Democrat voted for the obscene farm bill, which redistributes income upwards?), and can easily imagine them being worse, by, for example, turning the entire health care industry into a nationalized playground for Democratic interest groups. Congress has become a wholly owned subsidiary of special interests, and that suits its Members just fine.

So forgive me if I haven't been able to drum up enthusiasm for blogging about this election. As has been the case for years, I'm much more concerned with the general intellectual climate than the results of this election, as this climate dictates the range of politically feasible government action. And with neither party even giving lip service to limited government in any given sphere (with the exception of Democrats and abortion), the climate is bad indeed.

Massad, Continued:

Ariel Beery of Columbia writes to emphasize that in his view the problem is not Massad per se, but the entire wildly ideological and intolerant Columbia Middle Eastern Studies Department. Ariel has also started a blog, focusing on the controversy at Columbia, that corrects several errors that have appeared in media accounts of the controversy.

And Ragout finds that Massad's "scholarship" creates gems like this one: Such practices [as the torture of Abner Louima by NYC police] clearly demonstrate that white American male sexuality exhibits certain sadistic attributes in the presence of non-white men and women over whom white Americans (and Brits) have government-sanctioned racialised power.Perhaps Massad is lucky that he has come under such close public scrutiny--maybe he will succeed in becoming a "free speech martyr" and distract Columbia from basing its tenure decision on his writings.

Was Bin Laden's threat to attack Red States anticipated by Michael Moore?--

A reader writes to point out that the new translation of Bin Laden's threat (interpreted by the Middle East Media Research Institute (MEMRI) as Bin Laden threatening to attack states that vote for Bush and pass over states that vote for Kerry) also brings Bin Laden even further in line with Michael Moore.

As Larry Ribstein recently reminded us (tip to Althouse), on September 12, 2001 Moore was skeptical whether Bin Laden had done the attacks and suggested that it made no sense for Bin Laden to attack in New York and Washington, DC, because these areas did not vote for Bush:

In just 8 months, Bush gets the whole world back to hating us again. He withdraws from the Kyoto agreement, walks us out of the Durban conference on racism, insists on restarting the arms race — you name it, and Baby Bush has blown it all. . . . .

Many families have been devastated tonight. This just is not right. They did not deserve to die. If someone did this to get back at Bush, then they did so by killing thousands of people who DID NOT VOTE for him! Boston, New York, DC, and the planes' destination of California — these were places that voted AGAINST Bush! Why kill them? Why kill anyone? Such insanity...Let's mourn, let's grieve, and when it's appropriate let's examine our contribution to the unsafe world we live in.

If the Middle East Media Research Institute (MEMRI) and the Islamist website translated by MEMRI are right in their translations and interpretations, then sometime over the last three years, Bin Laden has recognized Michael Moore's "insight" that it would make no sense to kill people in states that didn't vote for Bush. Moore, of course, after making his bizarre and creepy comments, quite emphatically calls it "insanity" to kill "anyone" in this way.

Sunday, October 31, 2004

October Surprise?: With the polls opening tomorrow, time is running out for the oft-predicted October Surprise. Talkleft isn't ready to give up, though:
  We won't be suprised if Osama turns up between now and Monday night. Particularly if he turns up dead. The [recent bin Laden] tape is too strange. In addition to the physical and situational differences we pointed out [earlier], the text of the tape reads like a campaign ad. His reference to Michael Moore's film is strange. . . .
  Maybe he was captured months ago and told he would be killed if he didn't make this tape. Maybe he will be killed after making the tape. Between Pakistan and Karl Rove, there's no telling what Hollywood ending may be in store for us.
  The absence of a last-minute October Surprise won't convince anyone of anything, of course. Bush supporters will see its absence as proof of the Administration's good faith; Bush opponents will suspect that the drumbeat of critical attention to a possible October Suprise persuaded the Administration to shelve it.
The Bin Laden Tape May Have Threatened States Not to Vote for Bush.--

[UPDATE. Yigal Carmon of the Middle East Media Research Institute (MEMRI) has a new translation of the Bin Laden tape, an interpretation that he also confirms by quoting from a similar analysis on an Islamist website that favors Bin Laden. This MEMRI news release was posted on NRO.] According to a shocking story on NRO, an Islamist website is claiming [as is MEMRI] that the Bin Laden tape did carry a threat against any U.S. state that voted for Bush (tip to INDC). NRO [reprinting MEMRI] quotes the site and argues:

The tape of Osama bin Laden that was aired on al-Jazeera on Friday, October 29 included a specific threat to "each U.S. state," designed to influence the outcome of the upcoming election against George W. Bush. The U.S. media in general mistranslated the words "ay wilaya" (which means "each U.S. state") to mean a "country" or "nation" other than the U.S., while in fact the threat was directed specifically at each individual U.S. state. This suggests some knowledge by bin Laden of the U.S. electoral-college system. In a section of his speech in which he harshly criticized George W. Bush, bin Laden stated: "Any U.S. state that does not toy with our security automatically guarantees its own security."

The Islamist website Al-Qal'a explained what this sentence meant: "This message was a warning to every U.S. state separately. When he [Osama Bin Laden] said, 'Every state will be determining its own security, and will be responsible for its choice,' it means that any U.S. state that will choose to vote for the white thug Bush as president has chosen to fight us, and we will consider it our enemy, and any state that will vote against Bush has chosen to make peace with us, and we will not characterize it as an enemy. By this characterization, Sheikh Osama wants to drive a wedge in the American body, to weaken it, and he wants to divide the American people itself between enemies of Islam and the Muslims, and those who fight for us, so that he doesn't treat all American people as if they're the same. This letter will have great implications inside the American society, part of which are connected to the American elections, and part of which are connected to what will come after the elections."

Another interesting aspect of the speech is the fact that while bin Laden makes his specific threat to each U.S. state, the speech also offered an election deal to the American voters in an attempt to influence the election by these means, rather than influencing it through terrorist attacks. This peace offer is a theme that follows up on his April speech directed to Europe, in which he offered a truce. The Islamist website Al-Islah explains: "Some people ask 'what's new in this tape?' [The answer is that] this tape is the second of its kind, after the previous tape of the Sheikh [Osama bin Laden], in which he offered a truce to the Europeans a few months ago, and it is a completion of this move, and it brings together the complementary elements of politics and religion, political savvy and force, the sword and justice. The Sheikh reminds the West in this tape of the great Islamic civilization and pure Islamic religion, and of Islamic justice...."

Not being able to translate the passages myself, I can't evaluate them. But perhaps a Volokh Conspiracy reader can enlighten us about whether the US media's translation is the better one or whether the Islamist website has the better translation.

UPDATE: OK, things are clearer to me now. The new translation is not just from an Islamist website, but more importantly from the Middle East Media Research Institute (MEMRI), which describes itself as "an independent, non-profit organization that translates and analyzes the media of the Middle East." I have read their translations before, but didn't recognize the acronym. The NRO article I quoted is not written by NRO, but rather is a press release/alert sent out by MEMRI and written by its president, Yigal Carmon. So MEMRI is asserting the same translation of the relevant passage as an Islamist website that MEMRI also translates and quotes. Here is Bin Laden as translated by MEMRI:

"Your security is not in the hands of Kerry or Bush or Al-Qa'ida. Your security is in your own hands, and any U.S. state that does not toy with our security automatically guarantees its own security."

This interpretation makes sense of Bin Laden's statement that your security is not in Bush or Kerry's hands, but in your own. In short, here is the interpretation of both MEMRI and the Islamist site: Bin Laden is threatening that if your state votes for Kerry, your security will be respected by Bin Laden, but if your state votes for Bush, your state's security will not. As the Islamist website quoted above suggests, this is similar to the truce offer made to European countries that were willing to drop their opposition to Al Qaeda.

The rest of the Bin Laden tape.--

The New York Post is reporting that the unaired portions of the Bin Laden tape make clearer his opposition to Bush, the success of the Afghan election, and the success of the US military in restricting Bin Laden's actions. Bin Laden also follows the Michael Moore-Teresa Kerry line that it's all about oil:

Osama bin Laden's newest tape may have thrust him to the forefront of the presidential election, but what was not seen was the cave-dwelling terror lord talking about the setbacks al Qaeda has faced in recent months. Officials said that in the 18-minute long tape — of which only six minutes were aired on the al-Jazeera Arab television network in the Middle East on Friday — bin Laden bemoans the recent democratic elections in Afghanistan and the lack of violence involved with it.

On the tape, bin Laden also says his terror organization has been hurt by the U.S. military's unrelenting manhunt for him and his cohorts on the Afghan-Pakistani border.

A portion of the left-out footage includes a tirade aimed at President Bush and his father, former President George H.W. Bush, claiming the war in Iraq is purely over oil.

The tape also sparked some concern that an attack aimed at disrupting Tuesday's election may be planned.

But those who have seen the tape have said there was no specific information regarding an attack.

"We are taking this very seriously," said one counterterrorism official. "This is cause for great concern and we are certainly going on higher alert because of this."