So, I'm back from "hiking the Appalachian Trail," or wherever I've been, and I'm going to start catching up on some questions and suggestions from my recent All-Request post. First, in response to commenter Cheech's request, the current top 20 songs on my iPod. A few of these surprised me, but the gap between "most listened" and "never listened" is pretty small. But anyway, here they are.

1. "Sugar Magnolia," by Bob Weir
2. "King Dork," by Frank Portman
3. "Playing in the Band," by Bob Weir
4. "London Calling," by The Clash
5. "Paradise," by John Prine
6. "The Rascal King," by The Mighty Mighty Bosstones
7. "Dirty Life and Times," by Warren Zevon
8. "Everybody Dance (Clap Your Hands)," by Chic
9. "Young Americans," by David Bowie
10. "Romeo & Juliet," by Dire Straits
11. "Alison," by Elvis Costello
12. "Promises," by Eric Clapton
13. "Never Going Back Again," by Fleetwood Mac
14. "Boulevard," by Jackson Browne
15. "Lawyers in Love," by Jackson Browne
16. "Capital Radio One," by The Clash
17. "Tumbling Dice," by Linda Ronstadt
18. "I Want To Help You Ann," by The Lyres
19. "Kissaway," by Mates of State
20. "King of All the World," by Old 97s

So the gays (and the gay-friendly) are upset with the Obama administration for failing to deliver on campaign promises to be a "fierce advocate" for gay rights. And, I'd say, with good reason -- Obama has not just failed to deliver, but in some cases been outright hostile.

With exquisite timing, this fuss comes shortly before a DNC fundraiser for the LBGT community. Plenty of gay activists are upset that the administration is giving them the high-hat with one hand and passing the hat with the other. But the best part about all this is that the featured guest at the fundraiser is Vice-President Joe Biden.

That's right -- Joe Biden is going to be speaking to an important, sensitive, upset group paying close attention for more slights. Frankly, I think they have yet to invent the computer capable of calculating the odds that Biden won't say something stupid. So instead of debating whether Biden will say something that'll require an apology or "clarification" a day or so later, I think we should discuss what kind of gaffe Biden will make. My suggestions:

-- Maybe not the way you want to put it. Praising the distinguished Congressman appearing with him, Biden says the line "I love Barney Frank!" and instantly launches a million YouTube clips.

-- The creepy story. Biden tells a rambling story about a gay kid he used to know in Scranton, and kind of intimates he used to beat the kid up.

-- The inappropriate revelation of insider info/inappropriate promises. Biden reveals that Pam Karlan was his choice for SCOTUS, but promises that Judge Sotomayor "has your back."

-- The bad joke. "Hey, if all the gays get married, nobody will be left to cater the receptions!"

-- The really bad joke. "Hey, when Bristol Palin realized that Levi Johnston was her only option, she said, 'Tell me more about this gay marriage thing!'"

Anybody else want to venture a guess at what Biden's gaffe will be?

I'm still around. No, I didn't quit blogging, I didn't get outed, and I'm not escorting the Uighers to Palau. I've just been too busy to write down a few thoughts that are knockin' around my noggin. I'll be back soon, but for now, consider this an open thread/all-request post. What's on your mind?

For some reason, I've always been annoyed by people who say "decimate" when they actually mean something closer to "annihilate." Sure, I've misappropriated words a few times, but this particular bit just annoys me. So it was funny when I saw a cartoon in The New Yorker which featured two viking-looking guys chatting to each other. One said something like, "Did you know that decimate means 1 in 10?"

I guess it's one thing to not know what "mayhem" means (since it appears no one ever teaches that in law school), but generally, aren't people saying "mayhem" without actually meaning ripping limbs apart? Sure, "decimate" and "annihilate" both give the impression that something really bad happened, but to me, I'm going to be a lot more impressed with annihilation than mere decimation.

Friend: Still, "decimate" is pretty bad. It's not like anyone really means "one out of every ten."

McPan: But people say "decimate" in place of "annihilate!" One is clearly worse than the other!

Friend: It's not like if someone says "decimate" it lessens how bad something is.

McPan: I guess, but "decimate" should mean something less than 50% for sure. I mean, it should be a lot closer to the original 1/10.

Friend: No, I think people can use "decimate" and mean more than 50%.

McPan: That's just dumb. I mean, "decimate" is one of those SAT vocabulary words that you're supposed to figure out by looking at the root, or trying to guess what it means from the words around it. "Nihil" is practically the opposite of "deca."

Friend: Fair enough, but I think "decimate" is used commonly enough now that the original meaning doesn't matter as much.

McPan: What?! You can't say, It's a decathalon but there's only eight events.

Friend: Haven't we had this conversation before?

McPan: I know. We're such dorks.

Interestingly, whoever this "Usage Panel" is, they agree that the modern usage extends to killing a large proportion of a group but not to "large-scale destruction other than killing."

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Garçon means boy.

Prof. Berman has been blogging a bit about Judge Sonia Sotomayor's work on sentencing matters. It's no secret that sentencing law is in quite a state of flux, so any new blood could further shake things up. Plus, as Kevin Russell notes at SCOTUSBLog, many of the Booker line of cases have been 5-4 decisions, with Justice Souter in the majority. If (assuming confirmation) Justice Sotomayor takes a different view than her predecessor, then maybe Justice Breyer could lead a counter-revolution and take us out of "Apprendi-land."

Is there evidence to believe that's possible? Prof. Berman noted Judge Sotomayor's separate opinion in the Second Circuit's Cavera decision, in which the judge assessed the post-Gall landscape. My take, after a quick read, is that the Judge seems to countenance a fairly strong appellate review of sentences. I'll look forward to a more detailed analysis from Prof. Berman, but I think there's some reason to think that stricter appellate review will influence district judges to give in to what Justice Souter called the "gravitational pull" of the Guidelines.

A few other items. First, the New York Times posted a story it ran in 1992, when Judge Sotomayor took the district court bench. It included the following exchange:

What does she think of the Federal Sentencing Guidelines, which many judges resent for limiting discretion?

"I am very aware of the controversy surrounding the guidelines" and expect to "experience some dislocation with them."

Also, via Ben Smith at Politico, I notice that Sam Stein of the Huffington Post tracked down Judge Sotomayor's confirmation hearings in 1997 upon her nomination to the court of appeals. Senator Jeff Sessions (now the ranking Republican on the Judiciary Committee) and Senator Strom Thurmond asked some sentencing-related questions.

Senator Thurmond: Now another question. Do you oppose mandatory minimum sentences for drug offenses?

Judge Sotomayor: No, sir.

Senator Thurmond: Another question. Some argue that the Federal sentencing guidelines do not provide enough flexibility for the sentencing judge and some even say they should be abolished. What is your view of the Federal sentencing guidelines, based on your experience with them?

Judge Sotomayor: Thus far, sir, in the vast majority of cases, I have found the guidelines to be very helpful in giving some comfort to me as a judge that I am not arbitrarily imposing sentences based on my personal feelings. I believe that congressional sentiment, as reflected in the guidelines, is important because it permits me not to impose my personal views but to let the democracy impose the society's views.

With respect to your second point, Senator, the guidelines already provide mechanisms for departure in appropriate circumstances. In my experience, when there are principled and reasoned grounds to depart, the guidelines already permit it.

[later...]

Senator Sessions: You mentioned the sentencing guidelines that Senator Thurmond asked you about. I did notice that you had, on occasion, stated that you disagree with the mandatory minimums. Is that correct? I have heard that.

Judge Sotomayor: Sir, I do not remember ever saying that. There may have been situations in which in a particular set of facts I was unhappy with the results, but I do not believe that I have ever stated that I was unhappy with mandatory minimums as a policy question, no, sir.

Senator Sessions: I think you made a good point about the fact that, as a judge, it would be easier to sleep at night when you basically have a guideline to help you decide what the sentence should be rather than having it totally your burden from 0 to 20 years. I think, in some ways, it provides some uniformity and would be easier on a judge.

Judge Sotomayor: Unquestionably, sir.

Senator Sessions: Do you find it that way?

Judge Sotomayor: I have no idea how the judges before me ever set a consistent standard by which to sentence individuals. The guidelines do provide that framework in a very helpful way.

There's more I don't care to type out. In short, Senator Sessions asks the judge about a time she called a sentence an "abomination." Judge Sotomayor said she regretted using that word, but felt that the mandatory minimum in that case was unjust. Still, she imposed it because it was the law. She went on to note that Congress had since enacted the "safety valve" exception to mandatory minimums for certain first-time drug offenders, so others must have shared her view that sometimes the minimums were too harsh, and that the safety valve would have applied in that particular case.

Now, it's been a long time since Judge Sotomayor said any of this, and it was all pre-Booker. But combined with her Cavera opinion, it's a potentially enlightening glimpse into her view of several important sentencing issues. Again, she could well be the "swing Justice" on some of these issues (or, she could widen the margin in cases like Harris concerning the constitutionality of mandatory minimums). In addition to being the only Justice with actual experience sentencing defendants, it's also worth remembering that Judge Sotomayor began her legal career as a prosecutor in the Manhattan D.A.'s office. I'll withhold judgment pending more thorough review of her sentencing opinions on the district and circuit benches (and whatever she might have to say at her confirmation hearing). But as of now, the evidence is starting to build up that a Justice Sotomayor could augur a significant shift in the Supreme Court's sentencing jurisprudence.

I was very pleased to see the news that President Obama has called on the military junta currently controlling Burma to release the political prisoner and the elected leader of that nation, Aung San Suu Kyi, from house arrest. Suu Kyi, a Nobel Peace Prize winner, is on trial now, facing even harsher punishment. The military regime should release her immediately and allow free elections, and it's heartening to see President Obama make such a clear statement to that effect. The President also recently extended sanctions against the military junta.

It's also worth noting that former First Lady Laura Bush was a very outspoken critic of the repression in Burma. Here is a video of a statement she made on the situation after a deadly cyclone in that country. I hope she continues to be involved with the issue, and I hope President Obama continues to see this as a very serious matter worthy of his (and our) attention.

I was in an elevator the other day and noticed the instructions for firemen to operate the thing with their special keys. Isn't that something they tell you when they give you the key? Are all elevators unique? Anyway, it got me thinking about unnecessary instructions.

I'm not talking about dumb instructions, like the line on the car window shade thing that says not to leave it up while you're driving. I'm talking about actual, intended-to-be-helpful instructions that are totally unnecessary because any semi-sentient being can figure the thing out without reading a manual.

My first thought for the most unhelpful was those restroom automatic hand dryers. "Push button, hold hands under the air to dry" seems pretty useless to me, because the entire mechanism consists of a giant button and an air vent. It should only take you, at most, one failed attempt before you figure out what the button does.

But then I realized that the absolute most unnecessary set of instructions come on envelopes: "Place stamp here." If you're mailing an envelope, and haven't figured out where to put the stamp (or that it needs one at all), no one's going to be able to read what you wrote anyway.

So that's my nomination for most useless instructions. Anyone got anything better? Or, rather, worse?

I was catching up on my survivalist calendar, and discovered belatedly that Monday was Victoria Day in Canada. That has no significance to me, but it does give me a chance to post this quirky video of The Fall covering the song "Victoria" by The Kinks.

When Terrance Graham was sixteen years old, he was charged with armed burglary and assault and battery arising out of a restaurant robbery where an accomplice hit a victim with a pipe. He was sent to a juvenile detention facility for a year and given a probation term after that. During the probation term he committed another armed robbery. A judge revoked the probation and sentenced Graham to life imprisonment without the possibility of parole.

When Joe Sullivan was thirteen years old, he and some friends burglarized the home of a 72-year-old woman. The woman was also raped, although Sullivan denied committing that crime. He was tried as an adult, convicted, and sentenced to life imprisonment without the possibility of parole.

When Daniel Hood was thirteen years old, he and a seventeen-year-old friend kidnapped Hood's fourteen-year-old cousin. They covered her eyes and mouth with duct tape, wrapped duct tape around her wrists and ankles, and threw her on Hood's bed, using more tape to bind her down. While Hood held her down, his friend raped the girl with a toilet plunger. They eventually let her go. The friend, tried as an adult, is serving a ten-year prison sentence.

Hood spent some time in a juvenile detention facility, but was later admitted to a private Catholic high school. There, he excelled as a student and athlete. By all accounts, he has truly reformed himself. The principal of the school said he would stake his school's reputation on Hood. Even the victim of his earlier crime has written letters on his behalf. A few weeks ago, the University of Tennessee offered Hood a football scholarship.

The Supreme Court recently agreed to hear appeals of Graham and Sullivan's sentences. Prof. Berman has written about the cases extensively. Hood's case received some coverage in the sports media -- for example, here, here, here, and here.

I'm not saying that these cases are indistinguishable. Even the two cases the Supreme Court took seem to have important distinctions. Maybe Graham and Sullivan don't deserve a second (or third) chance. And maybe Hood didn't either. But in considering the cases of Graham and Sullivan, maybe we should keep Hood's case in mind.

The website for the St. Petersburg Times -- make that the two-Pulitzers-winning St. Pete Times -- has an interesting new addition. It's a prominent link to a site called Tampa Bay Mug Shots. It's pretty much what it says -- a site providing mugshots for local arrestees. The main St. Pete Times site shows the three most recent check-ins at the Crossbar Hotel.

I'll admit the site is fascinating to scroll through, especially with the search options. My favorite so far is the meth head being help upright by a jailer wearing plastic gloves. But it's also a little unpleasant. Why does this site exist? It claims to be a "public service," but it's also clearly something of a shaming sanction.

I'm not sure how this site serves the public. The mug shots themselves, and the information about the charges, are already publicly available on the counties' websites. If you want to look up a specific person, that's easy enough. Who needs to see every arrestee? Are they trying to make this a Felony Facebook? Misdemeanor MySpace?

And the problem with calling this a shaming sanction is the simple fact that none of these people are guilty of anything yet. Sure, most of them will end up with a conviction, but not all. In addition, posting some of these mugshots on the main newspaper website implies that the arrests are newsworthy, and most aren't.

All in all, while I agree the site is interesting in the same way The Smoking Gun's mugshot collection is, I'm not convinced it should be promoted as the next example of fine public service journalism from an established paper or its affiliated website.