Begging The Question

Friday, May 21, 2004

Five Hours Of My Life I'll Never Get Back
I was about to post a very long post about what I've been up to at home, to fulfill the promise I made yesterday. Well, as near as the CSI folks have been able to reconstruct it, here's what happened.

Instead of hitting shift+a to type some word, I hit ctrl+a, which is "select all." Then, in an instant, when I hit the next letter in whatever word started with "A," my whole post was gone, typed over.

I'll start from scratch later, but it won't be the same. The original post was destined to be in the next volume of my greatest hits. I'm not kidding when I say that for a long moment I was afraid I was going to be physically ill.





Rod Dreher on the Corner and the DMN (registration req'd) are spot on (to borrow a phrase from Feddie & Co.) today as they play Dr. Evil to Dennis Hastert's Scott Evil. Writes Dreher:
"Stifle It, Denny"
That's the headline on the lead editorial in today's Dallas Morning News, which whacks House Speaker Denny Hastert for his disgraceful suggestion that John McCain needs to go visit wounded soldiers to learn something about sacrifice. I know McCain is not the GOP leadership's favorite, but how dare Speaker Hastert, who escaped Vietnam service on a medical deferment, say such a thing about a senator who was beaten so badly by the communists that he can't raise his hands above his head, and who refused to end his torment by leaving prison early, ahead of his comrades, when the North Vietnamese offered to let him go? It boggles the mind that Hastert would stoop so low -- and over a budget issue, on which McCain happens to be right. It makes me ill that the GOP runs the executive and the legislative branches, and this conservative government is spending worse than Democrats.

McCain is right to say that's wrong. I wish more Republicans would. I'm sick of being told we can have tax cuts without cuts in nonmilitary spending, which as we know has skyrocketed under this administration. I don't believe we can, and I believe President Bush and the Congress are saddling my generation with an incredible burden. I used to trust the Republicans to be the party of fiscal responsibility. Now I don't think any such thing exists.
I could not agree more with Dreher and McCain.

PS - I still dislike Kathryn Lopez.





Fitz-Hume bio posts : Atkins Diet :: ___________ : carbs
If you answered "quality blog content" you are correct. Continue reading at your own peril.

What I am doing at work: My judge is going to retire on the first of June and I am putting the finishing touches on his last decision. The decision in this truck driver whistleblower case is 80 pages long and I am sick of it. I can only devote so much time to a case before I reach the point where I don't care who wins and who loses, I just want the parties' briefs off my desk. The amount of time and effort I have spent on the case is excessive, especially since I disagree strongly with my judge on how the case should turn out (imagine what this does to my motivation). But, he wears the robe so we are going with his view of the proper outcome.

What I am doing at home: Working on my car (again), barbequing, and playing with my dog. I did pull my shotguns (Remington 1100 12-gauge and Winchester 1300 12-gauge) out of the closet this weekend and clean them, but otherwise I've just been going through the motions. If the past week of my life was converted into a TV episode, it would not be trumpeted as a "very special episode."

Actually, I am also scanning photos from my brother's tour in Afghanistan and I will try to get those up soon.

What I am reading: Job postings. I am getting down to the two-minute warning and nothing positive has happened so far. Keep your fingers crossed for me.

What I am listening to: "Permission to Land" by The Darkness. My co-worker has it in her car, so I have listened to it during the commute to work. Pretty funny lyrics ("Get you hands off my woman, mother f*****r" for example) and music evocative of 80s hair bands. Just the thing to get me pumped up for a day of legal research.

What I am watching: Lock, Stock, and Two Smoking Barrels and The Bourne Identity (a decent movie, but not as good as the book). Incidentally, if you are Ludlum fan or if you enjoyed The Bourne Identity, be aware that a movie adaptation of The Bourne Supremacy is due out this summer. Again starring Matt Damon as Jason Bourne.

What I am thinking about: I have been working on a list of my favorite movies, which I will likely post on the blog in the next few days. I am also working on another backyard cooking post. The new topic will be Santa Maria tri-tip (California-style barbeque).

Peeve of the week: The lamentations of Milbarge, err, I mean uh... I was going to write that I do not have any peeves this week, but that's not true. I just don't feel the need to get started on all the things that rile me. Well, just one. The Simpsons is going downhill fast, and I don't like it. Okay, one more. I don't like the new Blogger format and I hate the Blogger comments function. We use HaloScan for comments (which has its own separate set of problems), but some other blogs have added Blogger comments recently and I find the system to be user unfriendly. As Milbarge wrote yesterday in the context of strip clubs and ATMs, why put barriers between the customer and the product?

Links: Okay, since I guess Milbarge can just unilaterally change the format of the bio posts I will substitute "Links" for "Tidbits" (also note that Milbarge unilaterally changed "What I am not thinking about" to "Peeve of the week" but whatever). First, I will mention a couple of blogs that you should be reading every day: Intel Dump (which will soon move to a new site) and Iraq Now. Second, I'll direct you to a Apple's Quicktime page, which is a nice online source for movie trailers. And I'm spent.



UPDATE: And for the love of Pete, no, I am not really bitter. Nor am I upset that Milbarge changed the bio post format. I just refuse to add in the [sarcasm] [/sarcasm] or the [content format="overstatement"] [/content format] tags to every line. Just assume that I am as happy-go-lucky as Milbarge is depressed. When my posts indicate otherwise you will know that it is all in jest.




Thursday, May 20, 2004

The Continuing Chronicles of Milbarge at Large
What I am doing at work: Too darn much. I've been busy: working overtime, skipping lunch, the whole deal. (Although I don't have it as bad as Sherry does.) Part of this (read: all of this) is my fault for not working hard enough at the beginning of the month, but I'm not the kind of person who works that efficiently without a fire under me. And then I realized that, like hobbitses, calendars are tricksy! Even though I thought May was one of those months with 31 days, I was halfway through it before I realized that the last business day of the month is the 28th, making May as short as February. So, to sum up, I'm trying to finish up all my May stuff but I have less time than I thought I did. Also, a couple of these cases have turned out to be a little more difficult than I thought they would.

One of those cases is a pretty complex direct appeal from a criminal conviction. I don't want to spill too many details here, because it wouldn't take much to identify the case. I'll just say it's a fraud case, which in itself makes it vastly different from the standard drug-dealer-with-gun cases I see. And because of the really amazing facts, it would be so much fun to write -- it would easily be the most interesting set of facts I've ever worked on. And while a standard briefs plus appendix reading load on a routine direct appeal might be a couple hundred pages, this one is well over a thousand -- long jury trial and lots of issues on appeal. But every minute I work on it feels wasted, because I'm convinced that at least one of the judges will find it worthy of oral argument and take it out of my hands. Now, true, if I wrote a great memo and draft opinion on it, the panel might eventually use some of that after argument, but given the nature of what we write and what comes out of chambers, it's doubtful.

Part of our job as staff attorneys is looking for those needles amid the haystacks of frivolous cases. Even if my pride and intellectual curiosity make me want to tackle the case, I have to realize that it's a waste of our resources to essentially do this case twice when I could be churning out half a dozen easy habeas appeals or something. Moreover, if you were sitting in prison, would you want a hearing delayed on your appeal because of my vanity and boredom? I know that I am fully capable of addressing the issues and writing something good on it, by which I mean my best attempt at reaching the right result. And I'm not saying the judges don't trust our judgment and analysis most of the time. It's just that -- for the same reason I'm drawn to the case -- the judges are going to want to handle it themselves.

And I feel pretty confident about my assessment of that by now. Early on, I was pretty nervous about recommending calendaring a case for argument. (The judges have to okay calendaring a pro se case, because it means appointing a lawyer. Counseled cases we can calendar on our own -- with supervisory approval, of course -- but the judges can send it back to us, with or without a recommended disposition.) Part of it was that at the beginning of my tenure here, I was getting easy cases. But, from reading every opinion the court issues (and I keep tabs on some other courts as well), seeing cases from other attorneys that are getting calendared, and simply having more cases of my own to assess, I feel like I know when a case is "arguable" and when it isn't.

So far, I've been overruled twice, sort of. In one case I recommended affirming. I thought it was a close call, but even if it was close to the line, I thought it was safely on the good side. A judge on the panel put the case on the calendar and the court eventually affirmed, although on different reasoning than I used. In the other, a habeas case, I thought the answer was easy, but a judge disagreed and calendared it. I think part of that was my inability to articulate just why I thought it was so easy, and that was my bad because I should have known the judge in question takes a very close look at that particular type of case. I haven't seen an opinion in that one yet, but I have very little doubt that it will turn out the way I originally recommended, at least as to the bottom line. Oh wait -- I forgot one other case. That one was another where I thought it was close, but I felt I was right. That one hasn't issued yet either, but I think it was more of a pure judgment call (like whether a word is "ambiguous") that the judges might prefer to make instead of one of us lowly staff attorneys.

As for my recommendations to put cases on the argument calendar, my judgment has been vindicated. Every one so far has resulted in a published decision, which tells me that the panel recognized it was a worthy case too; a couple have had dissents, which tells me that the question was certainly not a slam-dunk; and one even opened a circuit split, which was really cool to see because my memo was basically all about how wrong the other approach was and why this court shouldn't just follow it in a summary disposition.

Anyway, since I wrote all that stuff, I met with my supervisor and decided to put the big fraud case on the calendar. I'm sort of pained by it -- I'll probably always look at it as the opinion I let get away.

What I am doing at home: It deserves its own post, which I'll put up tonight. Link later.

What I am reading: I finished Tom Perotta's Little Children, which I really liked. I won't do a whole review on it, because I think I would end up giving away too much. I thought it started a little slowly, but once it got to the action, it was well-paced. And the ending was perfect. It's exactly the type of love story I've been looking for. So now I've started Martin Clark's Plain Heathen Mischief. It's good so far. And I'm also thumbing through a history of the state I'm moving to this summer.

What I am watching: Very little tv time for Milbarge lately. I did watch the Saturday Night Live finale last week. I realize Jimmy Fallon is a goofball, but I like him on that show. I'm not sure how well he will do in something else. And I'm not sure what they're going to do with "Weekend Update" next season. I, of course, wouldn't mind all-Tina Fey, all the time.

I also finally, about three days late, saw the latest Sopranos episode. Some people (and some other people) didn't like it much, but I enjoyed it for what it was. Every long-running series has the crazy dream episode, and in this one, we got to see some old faces -- and Annette Bening!

What I am listening to: This is what I like about downloading music -- I can get that one old obscure song I never hear anymore and don't want to buy a whole album just to obtain. So, trivia fans, big special shout-out props to the first person who can tell me, without looking it up, which song I'm listening to by: The Primitives, Go Sailor!, the Climax Blues Band, Cliff Nobles & Co., the Sanford Townsend Band, the Hooters, and the Vaselines (two from them). Good luck!

What I'm thinking about: I've had a good idea for a novel kicking around my head for years. Naturally, it's something of a legal thriller, but since it first came to me in law school, it's set there. I've already got the broad plot outlines established, but what I've been lacking all this time is the right kind of murder. Well, okay, I'll just set it up for you, but if anybody steals this, you'd better dig yourself a Saddam-style spider hole because I will mess you up.

The basic deal is that a legendary law professor -- picture somebody like a Dershowitz -- is teaching criminal law. He's the kind of professor that half the students love and half hate, but they all know he's forgotten more law than they'll ever learn. So anyway, every year, this professor tells his crim law students how dumb criminals are and how smart lawyers are. (The guy has some ego issues.) He challenges his students that if one of them can come up with a murder he can't solve, he'll give that student an automatic "A." (You know this isn't Harvard, because apparently A's aren't that hard to get there!) The few students who take the prof up on the bet end up ridiculed when he punches all kinds of holes in their schemes.

Well, this year, same as all the others, he issues his wager. And the next day he turns up dead. And the police are stumped. So, a small group of students -- the gang who idolized the prof -- decide to prove him right and figure out who the killer is. Of course, there will be blind alleys, false suspects, red herrings, romantic couplings, betrayals, more murders, and a big twist conclusion.

The problem standing between me and the National Book Award is that I can't figure out a good murder -- the kind that can baffle the cops but is still capable of being solved. What I need to do is sit down and watch about a hundred hours' worth of these crime drama tv shows, and just steal something from real life. Actually, just this minute I thought of a pretty good, but kind of goofy, idea for how they can finger the killer. But you'll have to wait for the book. If anyone knows anyone who publishes cheap legal thrillers, this idea is gold, Jerry! Gold! Call my agent. I'm serious; I think I can write this thing, and it'll be "at least as good as an episode of Matlock," according to Fitz. I think that was even meant as a compliment.

Peeve of the week: I'm sort of in the market for a car, and it's gotten me thinking about people's attitudes when buying a car. And my peeve this week is those folks who will only buy a car with manual transmission because they think it's the only kind of "real" driving. I can understand considering a stick because it's more fuel-efficient or on the theory that it holds up better (which I don't know to be true), or some other performance benefit, or even because it goes faster, although I'm not sure that's the best reason to buy a car. And of course sticks are usually cheaper than their automatic cousins. But I don't understand these folks (all the ones I know like this are guys) who think that if they get behind the wheel of an automatic, they might as well be holding reins and piloting a horse and buggy. Or, more likely, feel like they might as well be in the buggy and not driving at all. I've driven a stick a bit, here and there, and it wouldn't be a deal-breaker for me to get one now. But I fail to see how I am somehow less of a driver (read: less of a man) if I don't get some charge out of shifting my own gears. I think too many people project too much of their own personalities onto the machine anyway. But the "Stick or die!" crowd just seems particularly masturbatory to me.

Tidbit: I have decided to retire the "tidbit" section. It's just too much trouble to figure out what to say there. My life is full of tiny trivial details; the blog isn't the place to list them. But for my last one -- and so you'll see how lame these are for me -- I thought I'd tell you about my acting career. I was in a few school plays as a kid, including a big role as James in James and the Giant Peach. And in college I was in a friend's student film. It was your typical student film avant garde weirdness. I played a sleazy landlord who kept renting an apartment even though I knew that the traffic light right outside the window made all the tenants homicidal and suicidal. For my "costume," I removed my glasses, combed my hair funny, thickened my accent, and wore my "Get Porked At Billy's" t-shirt from Billy's Bar-B-Q in Lexington, Kentucky, which by then was skin-tight. I don't know if she ever completed the film, but I never did see myself on the big screen. I haven't done any acting since. To paraphrase Norma Desmond, I didn't get bigger; it was the t-shirts that got smaller.

But anyway, to replace the "tidbit" section, I have decided to do less navel-gazing and shine my meager light on some interesting stuff I've seen recently. So, I present...

Links of the Week: First, an excellent post on Phil Carter's excellent Intel Dump blog. Carter notes that the Pentagon is pulling troops from South Korea to go to Iraq. I'm so far from an expert on military policy that I can't even think of a good metaphor. ("Not fit to shine his shoes" doesn't seem to work here because in the military, properly shined shoes is a big deal, and not best left to a lawyer who wears my Adidas to work.) Anyway, despite that, even I know that having a goodly number of troops in Korea has been an essential aspect of our deployment policy for fifty years! Go read Carter's post for more, but I think this is an important issue that is not a good sign.

Also, Stuart Buck has an op-ed in the Dallas Morning News arguing that there is a double standard for pictures of abortion and pictures of prison torture. Opponents of abortion wish to display pictures of aborted fetuses to demonstrate the realities of the practice and to shock others into action. Opponents of torture wish to broadcast pictures of tortured prisoners to demonstrate the realities of the situation in Iraq and to shock others into action. However, people who display abortion pictures are scorned while people who show torture pictures are hailed. I'm not sure I agree with Buck if this means placing mothers seeking abortions on the same moral footing as abusive prison guards, but his article is interesting.

Finally, via the Indiana Law Blog, a New York Times article about New York City's efforts to modernize its building and fire codes. In essence, the city is dropping a lot of its peculiar codes that grew up in response to particular NYC conditions over the years, and adopting model codes, which should make some buildings cheaper. Some of these changes seem mundane, like letting developers build houses with plastic pipes instead of having to use expensive copper and brass. But others deal with things like fireproofing in skyscrapers, with the Fire Department and Sept. 11 victims weighing in. I know "long article on municipal code revision" sounds like punishment, but it's actually quite interesting.





I Got a DD in Economics
Via Mr. Poon, I see this story about a guy who is upset at finding almost $30,000 in charges to his American Express card after a night at a strip club called Scores. He disputes some of the charges, including a $4000 "tip." Anyway, Poon's point was that the guy is a loser, and I had the following to say in the comments there. Once I was done with my rant, I realized I should just post it over here since I've been quiet for a while. So...

To make a different point, "Diamond Dollars" (according to the story, they're like Disney Dollars for strippers) are a profoundly bad idea. Not only is a guy going to forget about them and have the wife find one in the wallet (or he'll try to use it at the toll booth or something), but my guess is it's also bad for the strippers. They have to cash in their DDs (stop it! --ed.), and I would be floored if the management didn't take a cut. That's a time-honored tradition: "I owe my soul to the company store." -- "Sixteen Tons," Tennessee Ernie Ford. Plus, the strippers probably don't get to hide some of that cash income, another time-honored tradition. Finally, unless they're offered at a pretty steep premium, why would you even buy these things unless they made you? And if I'm club management, why toss up an additional barrier to someone spending money? You want these dudes to go straight from the ATM (with $5 surcharges!) to the g-strings, without having to stop off at the DD cashier station, which gives you that split second you need to realize that maybe you don't need to drop another $200 tonight.

All in all, I think the strip scrip is a bad idea. And this jerk's tiff with Scores and Amex proves the Second Law of Strip Clubs: Always use cash for everything. (Of course, we all know the First Law of Strip Clubs.)





Suddenly, a new contender emerges
Many bloggers have written about Senator Ted "shaken, not stirred" Kennedy's vile statements about the president and the war in Iraq. I have nothing to add to that debate. However, I wanted to draw our readers' attention to the rantings of another lunatic senator. No, not John Kerry. Instead, I give you the cuckoo stylings of the one, the only, the self-proclaimed "Father of NOAA" - Senator Fritz Hollings.

On May 6, 2004 in the op-ed pages of the Charleston Post and Courier, South Carolina Senator Fritz Hollings offered the following analysis of the "real" reason we went to war in Iraq:
Of course there were no weapons of mass destruction. Israel's intelligence, Mossad, knows what's going on in Iraq. They are the best. They have to know.

Israel's survival depends on knowing. Israel long since would have taken us to the weapons of mass destruction if there were any or if they had been removed. With Iraq no threat, why invade a sovereign country? The answer: President Bush's policy to secure Israel.

Led by Wolfowitz, Richard Perle and Charles Krauthammer, for years there has been a domino school of thought that the way to guarantee Israel's security is to spread democracy in the area [But what about Rice, Rumsfeld, and Cheney? -- Ed.] . Wolfowitz wrote: "The United States may not be able to lead countries through the door of democracy, but where that door is locked shut by a totalitarian deadbolt, American power may be the only way to open it up." And on another occasion: Iraq as "the first Arab democracy ... would cast a very large shadow, starting with Syria and Iran but across the whole Arab world." Three weeks before the invasion, President Bush stated: "A new regime in Iraq would serve as a dramatic and inspiring example for freedom for other nations in the region."

Every president since 1947 has made a futile attempt to help Israel negotiate peace. But no leadership has surfaced amongst the Palestinians that can make a binding agreement. President Bush realized his chances at negotiation were no better. He came to office imbued with one thought -- re-election. Bush felt tax cuts would hold his crowd together and spreading democracy in the Mideast to secure Israel would take the Jewish vote from the Democrats. You don't come to town and announce your Israel policy is to invade Iraq. But George W. Bush, as stated by former Treasury Secretary Paul O'Neill and others, started laying the groundwork to invade Iraq days after inauguration. And, without any Iraq connection to 9/11, within weeks he had the Pentagon outlining a plan to invade Iraq. He was determined.
(emphasis mine)

I don't really have the talent or desire to refute Hollings' Jewish conspiracy theory. Nor do I want to give the impression, by attempting to counter his argument, that this theory has any credence. But it does seem to me that either Iran or Syria would have been a better choice of targets if President Bush was really interested in securing Israel's survival. The Palestinian terror groups are funded primarily by Iran and they obtain refuge in Syria, but what do I know? I thought that OIL was the real reason for the war.

I also doubt that the Jewish voting block is the one Karl Rove most desires to romance. Why not pursue a larger group with more power at the polls? We know ALL Jews vote the same way. So do women, Hispanics, NASCAR fans, and African-Americans. Oh, but if Bush is as dumb as everyone seems to think, then he may not understand that Jews only make up a tiny fraction of the voting public. They seem so ubiquitous in Washington (Wolfowitz, Perle, etc.) and on television (what with Seinfeld reruns and all) that maybe Bush thinks that America is just chock full of Jews.

It is one thing for delusional leftie academics to espouse fantastical theories about President Bush, Jews, and the dreaded "neo-cons" (the new code word for "Jews"). The academics hate God and hate Bush. They love Castro and that peacemaker Yasser Arafat. I expect them to embrace the fringe. I am not particularly surprised when the media picks up on these theories and acts as if they contain any shred of credibility. The media loves sensational stories, they love conspiracies, and the neo-con conspiracy theories more than fit the bill. I am even less surprised when Pat Buchanan issues an anti-Israel screed and announces that Bush is a pawn of the Likud party. Frankly, none of these things surprise me because I don't find most of these academics and "journalists" or Pat Buchanan to be rational. Irrational people will say irrational things. Not an earth-shattering revelation. Despicable? Yes. Surprising? No.

However, I operate from the assumption that senators (and their staff members) are rational people. I am beginning to think that maybe that is an error in judgment on my part. When a senior U.S. senator issues a statement in which he explicitly accuses the Administration of manipulating the American people and launching a war solely to appease Israel, my system locks up. I have to hit ctrl+alt+delete and reboot my brain. Is it really possible that a sitting senator could believe such extreme theories and proclaim those theories as truth? I guess it is. Color me perplexed.

(the full-text of the Hollings' opinion piece can be found here)



Tuesday, May 18, 2004

SCOTUS Inside Baseball
Tom and Marty at the very fine SCOTUSblog have some speculation today here and here about the probable authors of the opinions in some pending Supreme Court cases. I love this kind of inside baseball stuff, and I only wish I had time to expound at length about what all this means.

I have to say I'm concerned that, according to these knowledgeable sources, Justice Thomas appears to have drawn the assignment in two Miranda cases, U.S. v. Patane and Missouri v. Siebert. Patane will be a major case. It concerns whether Miranda violations require the exclusion of physical evidence discovered as a result of the violation. In other words, what effect did Dickerson have on Elstad? Siebert involves, roughly, a police policy where the cops would intentionally violate Miranda, get a confession, and now that they know what to ask about, properly Mirandize the guy and get a confession they could use in court. If Justice Thomas is writing these opinions, I daresay it does not auger well for a broad interpretation of Miranda rights.

A few other cases are going to Justices Kennedy and Breyer, suggest Tom and Marty. One is yet another Miranda case, Yarborough v. Alvarado, about whether courts must take into account the defendant's status as a juvenile in determining if he understood the warnings. (I'll note that age is a consideration in guilty plea hearings.) I don't know much about the specifics of this case, but the defendant has to feel better about his chances than he would if Justice Thomas had this one too.

Another is Republic of Austria v. Altmann, a fascinating Foreign Sovereign Immunities Act case that is far outside my meager bailiwick. It involves Holocaust-era appropriations of some valuable Klimt paintings, whether Austria violated international law in not turning them over pursuant to the original owner's will, and whether FISA allows for jurisdiction over Austria in American courts. The Ninth Circuit opinion (big pdf file) has photographs of the paintings, and the link above will lead to more commentary about this case. I look forward to reading the opinion.

There's also a Pennsylvania death penalty case among this group -- Beard v. Banks. It's all about the retroactivity of an old case about unanimity on the mitigating factors at a capital sentencing. I'm betting against the Court holding that the case (Mills) is retroactive, just because that's where the smart money always is. An interesting note about this is that if the Court does say Mills is retroactive, it would possibly invalidate a whole host of death sentences in Pennsylvania and elsewhere. And remember that one of those sentences belongs to Mumia Abu-Jamal, whose latest appeal the Supreme Court rejected just this week.

Finally, the lastest round in the debate over the constitutionality of the Child Online Protection Act, Ashcroft v. ACLU. I'm not unmindful of the stuff on the internet that parents might not want children to see, but COPA is awfully damn broad. For one thing, it makes no distinction between "children" who are sixteen from those who are six. What's "harmful" to one might not be harmful to the other. Note that the possibility that Justice Breyer is writing this case does not necessarily mean the result, even if he actually does turn out to be the author, will be "liberal" (here meaning a victory for the ACLU). In this profile of the Justice in The New Republic two years ago (registration required, I think), Jeffrey Rosen, citing Eugene Volokh, notes that Justice Breyer's general deference to legislatures extends to the First Amendment context -- he votes against free speech claims more than any other Justice. In the Court's first go-round in this case, Justice Breyer concurred and downplayed some First Amendment concerns. Justice Kennedy's concurrence, on the other hand, declared, "There is a very real likelihood that the [COPA] is overbroad and cannot survive such a (facial) challenge."

Of course, in the fullness of time, all will be revealed. But what's the fun in waiting for that?



Monday, May 17, 2004

For My Next Trick, I'll Make a Baby Disappear!
This post is a little late in coming. It would have been semi-fresh about a week ago, and is now just plain old news. If you're desperate for a tie-in to current events, the tv networks are starting to announce their fall schedules.

Anyway, sometimes when I read The Corner, I am unsuccessful in avoiding whatever Kathryn Lopez has to say. On a couple of those occasions a few weeks back, coincident to the finale of Friends, K-Lo made comments here and here basically chastising the show for its treatment of Ross and Rachel's baby. The kid was more or less an afterthought in the show, and the only mention of it was Rachel's noting that it was with her mother until she got settled in Paris.

I'm sure Lopez watches much less television than I do. But it's clear that she has very little idea how hacky and trite most sitcom writing is. A baby is a plot device, just like a new job or a new boyfriend. Maybe they don't always call it Poochie, but they might as well. Nothing else in sitcoms conforms to real life (whose apartment has three walls, folks?), so why should parenthood? As an example of just how lame most sitcom writing is, when story line for Ellen Degeneres's old show faltered, producers suggested she get a puppy. As an "homage" to this stroke of brilliance, Ellen's coming-out episode was called "Ellen Gets a Puppy."

Just off the top of my head, I did some delving into the mists of tv time, and realized that this has always been the case. One of the first classic sitcoms, I Love Lucy, made a big deal out of Little Ricky's birth, but lots of the episodes after that involved Lucy trying to perform at the club, with no mention of the kid. Not all the episodes of The Andy Griffith Show had Opie in them. (See also my favorite TAGS site.) I didn't even realize Murphy Brown ran for as long as it did, but for as famous as the baby on that show was, it didn't make an appearance in a lot of the later episodes.

Look, babies are hard to write for, and trouble to film. The reason the Olsen twins are as famous as they are is because they're twins. Producers often use multiple kids to play one baby because of regulations on how long they're allowed to work and a baby's natural tendency to exhibit Whitney Houston-esque characteristics. That's why the Olsens played one kid on Full House. (Side note: I wonder how many people "remember" them playing twins on that show because they're now so famous as a pair?) Just take Family Ties as an example of the trouble with babies. That kid, Andy, went from diapers to kindergarten in one off-season.

Some folks recognize that sitcoms don't have to give birth at all, and some of the great ones, from The Honeymooners to The Mary Tyler Moore Show to Seinfeld, were just about adults. Bob Newhart was so opposed to adding a kid to his old show that when writers had his wife get pregnant, he supposedly said, "Who are you going to get to play Bob?"

And here's the thing I really don't get. A show K-Lo praises is Everybody Loves Raymond. But the kids on that show disappear all the time! While they may be more present than Rachel's baby, it's not as if every show involves a consideration of what they're up to at every moment. The only conclusion that I can come to is that Lopez sees the Friends baby differently because it was the product of a casual sexual encounter. (Query if she would rather it had been aborted?)

Anyway, sorry for the now-dated rant, but Lopez's concerns struck me as dumb enough to want to write about, and I had already collected the links. Friends isn't going to change anybody's life anymore than Raymond is. I think K-Lo vastly overstates the meaning or message behind bad sitcom writing.

(Also, we'll take your suggestions for when BTQ will jump the shark.)





A Post About Race
As has been widely noted, today is the fiftieth anniversary of the Supreme Court's decision in Brown v. Board of Education. All of the hoopla has reminded me of some stories my Dad once told me. He went to segregated schools growing up. He would play with local black kids on the weekends and in the summers, but while he went to school nearby, they were bused to the nearest all-black school, some thirty miles away.

After college, Dad went off to teach and coach at a small high school that was one of the first to integrate in our sleepy southern state. This was in the late 1960s, more than a decade after Brown. Dad said that the black students never had any problems with him, because he treated everybody the same way: "I was tough on all of them equally." Plus, the students knew that he gave the black athletes on his teams a fair shake. The same could not be said for another teacher there, whom Dad described as an avowed racist (I'll call him Mr. Jones, because I don't remember his real name). Jones treated the black students poorly, and they of course resented him for it. Eventually, they realized he was scared of them, and they enjoyed giving him a hard time. One student announced: "Mr. Jones, don't worry. When the revolution comes, you'll still have a job. We'll make you the janitor!"

The difficulties between this teacher and the students were symptomatic of larger race problems at their school. Big fights along the color lines -- it's probably apt to call them "race riots" -- were common. One day, some students got into it in a courtyard area outside the lunchroom. Dad and Mr. Jones were observing this, and Jones said, "I'm going to go break that up!" Dad: "Ted, I'm telling you, don't go in there -- they'll kill you." Heedless, Jones waded into the fracas, and just as Dad had predicted, was torn all to pieces. Dad: "Even the girls let him have it -- they were kicking him in the shins. They tore his clothes up; he was a mess."

In 1969, as prom season approached, it became clear to everyone that the prom queen was going to be the most popular girl in school, a cheerleader who was the daughter of the local schools superintendent. The prom king was probably going to be a very popular football player (he went on to play in the NFL) who happened to be black. Aghast at the possibility of his daughter sharing this honor with a black student, he cancelled the school-sanctioned prom. The white students had their own "prom" at the local country club. This fine tradition of separate proms -- not to mention the "seg academies" that sprouted after Brown -- continues. I'm not sure if that school still does it, but I know that about five years ago, another brawl broke out between black and white students at a segregated prom, so they were still doing it as of pretty recently. I think it's fair to say that race relations in that town are still "tense."

When I went to high school, we didn't have a lot of issues with race because we didn't have many black students. In my high school of about 1000, we probably had 10 or 15 black students. There just weren't many black families who lived in the area. I recall only one black student in my graduating class, a funny guy named Spud. Spud was in my extended circle of friends, although he wasn't one of my closest pals. But we hung out together a lot. Spud lived with his older brother, who was about 25 then. You can imagine what life was like for a bunch of 17- and 18-year-olds at a house with no real parental supervision, although Spud's brother Dave kept Spud in line. Anyway, parties there were like something out of a music video. We used to joke around with Spud about him being the only black student in our class. We would hang out a lot in our friend Stephen's basement, because he had a ping pong table. His mom would come to the top of the stairs and yell, "Stephen, come up here for a minute..." And Spud would say, "Uh-oh, I'm in for it now. She's up there saying, 'Stephen, get that nigra outta my house!'" Of course, she wasn't saying that at all, but Spud was pretty cool about what must have been a tough situation for him. The last I heard of him, he was hit by a tractor-trailer while driving somewhere, and although he suffered some injuries, they weren't too serious, as I recall. Anyway, he reached a settlement with the truck driver's insurance company that I heard was close to $100,000. So, being the only black student in my high school class didn't keep Spud from achieving the American dream!

And now I'm living in a city with a sizeable black population, and race issues are constantly in the news. The city is pretty segregated, and the majority-black communities suffer terrible crime and are poverty-stricken. It's a sad state of affairs. I'm afraid if I start talking about whether the "promise of Brown" has been unfulfilled that we'll get into a big thing about affirmative action, which I don't want to do, so I won't. I just wanted to share some thoughts about race that today's anniversary prompted.





But wait, I thought there weren't any WMD in Iraq...
An IED containing sarin nerve gas was recently detonated in Iraq. Some American soldiers were treated for injuries. Here is the MSNBC story and here is the Bloomberg report (hat tip to Sgt. Stryker).

Saddam Hussein's regime declared all of its sarin nerve gas rounds destroyed before the 1991 Gulf War, right? Bush lied, people died, right? Then where could this nerve agent have come from?






That depends on what the definition of "is" is.
I learned today, via a letter from the judges on the Fourth Circuit to the prosecutors in the Zacarias Moussaoui case (who, prosecutors still maintain, was intended to be the 20th hijacker on September 11, 2001), that the prosecutors have participated in the interrogation of the witnesses at Gitmo - the same witnesses whom Moussaoui maintains can provide information which would exculpate him as an intended 9/11 hijacker. The letter from the judges to the prosecutors asks, "If circumstances have changed such that submission of written questions is now possible, when did the circumstances change, and why was neither this court nor the district court so informed at this time?" The allegation that the prosecutors were indeed submitting questions and lines of questioning to the interrogators at Gitmo is inconsistent with the prosecutors' representations to the district court and the court of appeals that they had had absolutely no access to the detainees. Well, perhaps those representations were technically correct in a Clinton-esque way, but such technical precision should not save the government when this is the very type of interference in the interrogation process which the government argued Moussaoui should not be permitted to engage in. At what point were the prosecutors going to bring this to the attention of the trial judge and the defense team? Ever?

The government's actions in the Moussaoui trial compel me to raise a question that I struggle with quite often: Is it possible for the government to act properly in (high profile) criminal trials? From the revelations post-execution that the FBI failed to disclose thousands of documents to Timothy McVeigh's defense team, to the jurisdiction-hopping shenanigans in the DC sniper cases, and now the Moussaoui case, I am hard pressed to conclude other than that the DOJ only pays lip service to the idea of a fair trial. I am particularly troubled by this in the Moussaoui case because of the perceived importance of the case in the war on terror. If Moussaoui's trial is the model on which future terrorism-related trials will be conducted, then perhaps the crazy lefties are not entirely off-base to be concerned about the erosion of the Bill of Rights.

And my concern extends beyond the high-profile cases like Moussaoui's. If we can't be stand-up guys when prosecuting one of the most important, visible and scrutinized criminal cases in my lifetime, what trust should we place in the prosecutors when they are handling "routine" cases?

(Story via CNN)



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    The views presented here are personal and in no way reflect the view of my employer. In addition, while legal issues are discussed here from time to time, what you read at BTQ is not legal advice. I am a lawyer, but I am not your lawyer. If you need legal advice, then go see another lawyer.

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