Begging The Question

Friday, November 12, 2004

Milbarge At Large: I Haven't Done One Of These In A While Edition
What I am doing at work: It's been both busy and unproductive. We had an oral argument session not too long ago, and the cases were interesting. None of them look like they'll be mine unless the Judge's votes change, so my contribution will be editing and suggesting for my colleagues. Which is fine with me. But it leaves me doing nothing much fun. I've had a couple of habeas cases and a couple of social security cases, a Title VII case, and an immigration case. All of them were the kind of thing I was doing in the staff attorney's office, and indeed, all of these came that route. So I've got a permanent case of the Mondays until this little dry spell is over. Only one of them has even been midly interesting. It's a habeas case where the guy is making a hail-mary argument. It's such a long shot he might as well be arguing he's actually innocent. His chances of success are very slim, but there's a procedurally complex path getting to "no." It's the kind of case that as a staff attorney I would have punted to oral argument, but I can't really do that now. I have to come up with an answer. The only other interesting things lately have been some cases I didn't get to do any work on, because the Judge decided not to write anything. I had to do a bunch of research to make sure we had the right answer, but my Judge is definitely not one to write concurrences or dissents on a whim.

But oral argument was a blast. It was interesting to see a different set of judges than those in my old circuit. We stayed in a fancy hotel on the government dime (but they gave us a heavily discounted rate at least) and I got to meet some clerks from other chambers. I'm probably not going to travel again until the spring, so I had to soak it all up. The Judge's chambers in the courthouse weren't nearly as nice as the ones here, though, so there are benefits to staying at home. Now, if only I can get some juicy cases....

What I am doing at home: I got the place moderately clean for my Mom's visit. I unpacked a lot of stuff, and the few remaining boxes are shoved neatly in a corner in the spare room. So now I have a lot of empty space and nothing to put in it. So I'm mainly trying to keep up appearances. I'm trying to get the hang of recycling -- I haven't lived somewhere I've needed to sort my trash since before law school. For the last five years, I've lived in situations that required me to take out my own trash but didn't provide me with anything for recyclable materials. I know that in theory I could have driven even further to find a place to dump my papers and plastics, but I was lucky just to get rid of the household garbage. Well, now the city happily comes and picks it all up for me in exchange for a small (large) fee (Simpsons reference), but I have to sort things. And now I have to find someplace to take my corrugated cardboard. Ugh, it's so complicated. It would be so much easier if I could just toss it in the backyard and live in squalor. Actually, maybe I could... I was talking with my co-clerks at lunch the other day, and I was lamenting sprawl. One of the others said that he wanted a yard for a dog and kids. I expressed my belief that yards seem only to exist for the purpose of being taken care of, much like kids. My colleagues looked askance at me and noted, "You have a yard." I replied, "Ah, but I don't take care of it!" No, I don't live behind weeds high enough to hide a car in; part of my lease is yard service, so the sprinklers run periodically and the grass gets magically cut from time to time. So maybe I could start dumping trash in the yard and it would disappear, too. Note that I don't think I would take the same course of (in)action if I ever had kids. However, my fear that I would is what keeps me from finding out. For me, raising kids is too important to leave to trial-and-error. As a generally risk-averse person, and one who doesn't like kids, I see the risk of error as too high to justify the trial. Of course, it's all moot if I can't even get a date. Believe it or not, I've actually made a little progress on that front in recent days. It's too little to bother explicating now, but still, it's a sign of progress. I met a very nice, attractive young attorney from a nearby town, and we had an enjoyable chat and exchanged phone numbers. And in a week or so, I'm going to be spending some time with my friend here who is moving into her new house. Some friends of hers are coming to visit and see the new place, and they were specifically described to me as her "most eligible" friends, so I smell fix-up. As my motto appears to be "Leave no introspection uninspected," I'm sure I'll be boring you fairly soon with my whiny laments at how I messed things up.

What I am reading: I've been peripatetic in my book-reading lately. I've probably started half a dozen since I finished my last one. Nothing has seemed to stick. Mostly I've been reading blogs and magazines. I'm a little behind in my magazining, so right now I'm reading a lot of Kerry endorsements. I note, along with other bloggers, the suicide of historian Iris Chang, author of The Rape of Nanking. That was one of those books that was always on my "maybe" list when I browsed the history section of the bookstore, so now I think I'll try to find a used copy somewhere and check it out. The reviews were very good, and it's sad to lose such a talented author. By the way, if you're of a like mind, consider using the Barnes & Noble button in the right-hand column of this page. We get a little money if you buy something after clicking from here. And that goes for anything, not just the books I've pictured there. So if you shop at B&N online, why not start here? Wow, that was a pretty crass juxtaposition. Sorry about that.

The other things I've been reading are two articles in the latest Yale Law Journal. One I've just glanced at so far: "Integrating Remorse and Apology Into Criminal Procedure," by Stephanos Bibas and Richard A. Bierschbach (114 Yale L. J. 85). I find this to be an interesting topic, and I've previously mentioned restorative justice issues. And, I think Bibas is a top-notch scholar with lots of insightful things to say. So, I'm looking forward to digging into that one as soon as I finish the one right before it: "The Future of Disability Law," by Samuel R. Bagenstos (114 Yale L. J. 1). To dumb it down a whole lot, this article looks at disability law (especially the ADA) from the standpoint of social welfare legislation as well as anti-discrimination laws, and discusses which model better serves the nation's disabled. It's much more complex than that, and terribly fascinating. I've really only thought before of disability law as an outgrowth of the anti-discrimination laws like Title VII, but Bagenstos shows the problems with that thinking. Here's a hint from a former law review editor: placement as the "lead" article in a volume is a signal that the review thinks very highly of the article; it's one of the few perks a journal can offer to authors in order to land the most coveted pieces. Now, Yale usually isn't competing with many journals for articles, but there's a reason this article is first. It's very, very good, and will change the way a lot of people talk about disability law. It's a cliche to talk about things as "paradigm-shifting," but this piece has that potential. And I'm sorry for my friends at Washington University Law School, but it's also the kind of article that gets professors job offers from "better" schools.

What I am listening to: Some Old Crow Medicine Show, which I reviewed here in a post that still gets us a lot of Google hits. Also, thanks to Fitz, Weezer's Green Album. Fitz told me last week he had been listening to it a lot. I told him that I didn't think I had it, but upon doing a little searching, I found a copy of it. Ever since, I've been listening to it in the car, and given how short it is, I can usually get almost all the way through it during a round trip to work. I really like it. Not quite as much as the Blue Album, which is probably among my top ten favorites, but still awfully catchy.

What I am watching: I've been doing more taping than watching lately. I probably have twenty hours of movies stored on my DVR that I need to watch. The latest were Swimming Pool and Swimming and The Shape of Things and The War Room (ah, those were the days!). I may never watch any of them. I love my DVR, but I end up using it to make sure I never miss "Scrubs" instead of watching all those movies. Plus, it always seems like there's a football game or an episode of "Law & Order: Pervert's Delight" on to distract me.

What I am thinking about: My Dad, who is recovering well following surgery; my potential date(s); who the next Chief Justice is going to be; what my next job is going to be (speaking of, if anyone knows of openings in state solicitors' offices, send me an email); what kind if furniture to put in the empty space in my house; how I'm going to afford that; what to do for Thanksgiving; whom to buy Christmas presents for, and what; why Christmas seems to be coming earlier than usual; where the best place to go for barbecue in this town is.

What I am not thinking about: Scott Peterson's guilt or innocence; Halo 2.

Peeve of the Week: See here.

Shout-Outs of the Week: See here. Oh, and most certainly see here.

Thursday, November 11, 2004

A Handful of Blogs You Should Be Reading
Let me take a few moments to plug a few sites I've been reading and enjoying, but haven't gotten around to mentioning or blogrolling yet.

Appellate Law & Practice is a fairly new blog dedicated to discussing appellate cases and news about the appellate courts. If that sounds like "Son of How Appealing," the coverage at AL&P seems to be going more for depth, especially with regard to the case discussions. It's like the U.S. Law Week crossed with Legal Times, except you don't have to wait a week for it. Oh, and the gang there should send me an email if they'd like me to cover a circuit or two for them; it would give me a reason to post stuff even when I don't want to.

Fitz already mentioned the Adventures of Chester, a blog from a former Marine that is rapidly becoming the best site for analysis of the Iraqi campaign. I have a feeling I might even know who Chester is, but I won't out him because he's tough enough to kill me in many painful ways. If it's who I think he is, he's a really good guy and I'm glad he made it back from Iraq in one piece. Even if I don't know him, he's really sharp and is running a great blog (and I'm still glad he made it back from Iraq okay).

All Deliberate Speed is a very good blog operated by a recently-former clerk discussing civil rights issues and related concerns. His election prediction turned out to be wrong, but a lot of people made that mistake. There's some really solid analysis on Donald's blog.

A few blogs I discovered first via Ken Lammers's CrimLaw (and this post sort of assumes you're at least minimally competent and already devoted to Ken's blog) and have enjoyed following. Crime & Federalism is pretty much what it says: criminal law issues and federalism issues (and especially where the twain meet). I can't wait for his analysis of whatever happens in Raich. I'm A PD and Blonde Justice do criminal defense work, and constantly remind me why I never could.

Carolina Law is the enterprise from Tommy the 2L at South Carolina. I like reading blogs from law students, because I wish I could go back. I don't think I'd go to USC, though. I'm sure it's a good school, but I never liked Columbia. For some reason, it always seemed to be hotter than it ought to be -- like there's a volcano under it or something. I know it's the South, but there's something unnatural going on. My minister growing up went to seminary there, and he said they used to joke that they built a seminary in Columbia because it's hotter than Hell there. Sorry this turned into a rant about Columbia, but really, kudos to Tommy for hanging in there. You know, instead of starting a law school in Charleston like they'd talked about, they should just move USC down there. Everybody wins.

Finally for now, all my underwear too!, a blog which defies easy description, at least from my inadequate vocabulary. Its author, Heidi, just kicked things off, but it looks promising. I found her thoughts on friendship-ending very interesting. I blogged on a similar situation in my own life a few months ago. I didn't realize it had been that long since I had talked to my friend. Yesterday I sent my friend an email, and I got a response. We're going to try to talk this weekend. I never really stopped missing my friend, but as Heidi says, eventually you get to a point where you accept it, and in a way, that's even sadder. We'll see if this tentative re-establishment sticks.

I'm really bad about checking all the blogs I want to read, so one reason for this post is to remind myself to broaden my blog-reading a little. Maybe in my next post like this, I'll mention a few other blogs that have been kind enough to link to BTQ but I haven't gotten into the habit of reading yet. Thanks for the links, Al Nye the Lawyer Guy, Prejudicial Effect, All Things Jen(nifer), and Where's Travis McGee?. I promise I'll get better about dropping by.

Anyway, those are a few blogs I've been trying to read. I'm sure they'll be just fine regardless of how much traffic I send their way, but for what it's worth, there's my endorsement. Go check 'em out, and tell 'em Milbarge sent ya! They'll say, "Who's that?" but go anyway.

Thank You

Wednesday, November 10, 2004

If You'll Be My Bodyguard, I Can Be Your Long-Lost Pal
So it looks like Al Gonzales is President Bush's choice to follow John Ashcroft as Attorney General. Speculation has already begun that this means Gonzales will not be nominated for the next Supreme Court vacancy.

I say, maybe, maybe not. If the next vacancy comes very soon (for example, before the AG confirmation hearings), I agree it would look odd to pull Gonzales's name from one nomination and place it in another. But if that vacancy occurs even just a few months from now, this could be a very shrewd move on the part of the White House. This gets Gonzales's name out there in a positive way, and he gets some publicity joining up in the wars on crime and terror that Ashcroft said he won. Plus, I've got to think that the Democrats won't waste whatever tiny amount of politcal capital they have left to fight against the appointment of the first Hispanic Attorney General.

So assume Gonzales sails through the Senate in short order. And then suppose a vacancy on the Court opens up a few months later. Bush can say, "Vacancies on the Supreme Court come like a thief in the night. If I had known back in November that a vacancy was coming, I would have waited to nominate Al for it -- I have the utmost faith in him, blahblahblah." Then, they tout his months-long experience as AG as another credential supporting the nomination. The topper is that they can point to his quick Senate confirmation as proof of his widespread support. And good luck to the Dems trying to explain why they voted for Gonzales as AG but are now trying to filibuster him off the Supreme Court.

Ultimately, I don't think this will happen. I think a vacancy at the Court will come sooner rather than later. And a Rehnquist-for-Gonzales switch is about the best scenario the Dems could hope for now, in my opinion. But I just don't think it's outside the realm of possibility to see this move as a potential launching pad for a Supreme Court nomination in the very near term. Even if it's not the next one, it's still a good tactic if Bush wants to nominate Gonzales for a subsequent opening. In any event, I think Gonzales will be a decent AG, so it's not all bad if he doesn't make it to the Supreme Court.

Happy Birthday USMC!
The United States Marine Corps celebrates its 229th birthday today (founded on 10 November 1775). Take moment to remember that our freedom is secured by their sacrifice. If you meet any Marines today, tell them thank you and happy birthday. If you are lucky enough to be invited to attend a Marine Corps Birthday Ball, I strongly suggest you accept the invitation. For one thing, it's quite the honor to attend a Birthday Ball. For another, Marines don't take no for an answer.

Here is a pdf version of the birthday message delivered to the Marines by General M. W. Hagee, Commandant of the Marine Corps.

Here is a list of Marine Corps birthday events open to the public.

Here is a story about the 24th Marine Expeditionary Unit celebrating its birthday in Iraq. Be sure to check out the photos of the cake.

Tuesday, November 09, 2004

Sleep Soundly Tonight, Kiddies
So Attorney General John Ashcroft resigned today. I'm not going to go into everything I could say about Big Bad John. There'll be time enough for that when the dealin's done.

But I was very interested to know that, thanks to Ashcroft, our troubles are over: "The objective of securing the safety of Americans from crime and terror has been achieved."

That's what Ashcroft wrote in his handwritten resignation letter. It took him five pages to say "See ya," but never mind that. The real news here is that everything is okay now, thanks to John! Hell, why even name a successor, President Bush -- that masked man riding a white stallion while mighty eagles soar saved us all!

OK, all sarcasm aside, I can't even imagine what Ashcroft was thinking when he wrote this -- and good luck blaming a speechwriter when it's handwritten. Does Ashcroft really think that all Americans are secure from crime and terror now? I can't read that statement to say anything else, but that's just patently insipid. Could the (former) Attorney General of the United States really believe that our "objective" has been met? Then again, maybe his objective was just getting crime and terror down to the level of a "nuisance." Or maybe his objective was getting a conviction in the Moussaoui case -- now that really would solve everything! And note how cleanly the DOJ has wrapped that one up.

When people think of John Ashcroft, I want them to think of this statement, which I think is specious and silly. He says he "take[s] great personal satisfaction in the record which has been developed." Even if crime rates are down and we haven't had a domestic terror attack in three years, I will leave it to history to determine John Ashcroft's personal responsibility for that. But Ashcroft's statement that "it's all good in the 'hood" didn't say we're safer than we were. It says the goal of making us secure has been achieved. It's over. Done. Good night. Turn out the lights at the Hoover Building on your way out.

Look, I hope the day comes when we can declare victory in the wars on crime and terror. But I think it's a little premature to go dumping the Gatorade bucket on Coach Ashcroft just yet.

So it begins
The battle for Fallujah has kicked off, and a force comprised of U.S. Marines, U.S. Army units, and Iraqi troops has entered the city and engaged the jihadis in what is probably the most important battle in Iraq since the fall of Baghdad. For news and analysis, check out the following sources:

The Adventures of Chester is the go-to source for analysis.

Belmont Club is another good resource, even though the writing can be a little pretentious.

The Marine Corps Times has posted an article by Jim Garamone Iraqi, U.S. Troops Begin 'Phantom Fury' in Fallujah which is worth a read.

The Pentagon's website Defend America has posted Allawi Visits Forces in Fallujah, Attack Begins, a solid account of the moments before the assault began.

The Weekly Standard has a piece about how the assault will take place, entitled The Fight for Falluja: How American and Iraqi forces will try to take down the terrorist stronghold.

Eric Umansky has collected links to most of the day's online news reports over at Slate. You can find his "Full-on in Fallujah" here. While you're at Slate, you can read Fred Kaplan's article So We Win Fallujah, Then What? in which he argues that a victory in Fallujah is not the end of the game, nor even certain to be a positive step in the battle against the insurgency.

Finally, the NY Times has a great article by Dexter Filkins and James Glanz, With Airpower and Armor, Troops Enter Rebel-Held City that is well worth your time. Photo essays accompany the article.

I have nothing to offer in the way of my own analysis, except to say that you should keep a close eye on the Marines. After all, they celebrate a birthday tomorrow, and you know how rowdy those Devil Dogs can be.

Monday, November 08, 2004

Everything you never wanted to know and more
If the near-constant navel gazing at BTQ doesn't quite satiate your Milbarge and Fitz-Hume fix, then head for The Neutral Zone Trap and the Daycare. E. McPan digs up the dirt and goes all E! True Hollywood Story: BTQ here. Meanwhile, Soupie gets his Q&A on, James Lipton-style here.

Do I Exist? "My Sources Say No."
Stop me if you've heard this one. I really thought I had told it on the blog before, but I can't find it now. Even if I have, it's worth telling for all the new readers we've gotten since then.

Back at my old job, there were two other staff attorneys who started at the same time I did. Both were women, and I'll call them Anne and Helen. Helen was nice enough, and I thought we got along okay, but it turned out that she didn't want any male friends -- she just wasn't into the whole Harry/Sally platonic thing. Anne was great, though, and we became very good friends. I liked her a lot, but she already had a fiance. One night a few months into our tenure there, we all went out for dinner: Me, Helen, Anne, and Anne's fiance. We ended up sitting so that I was beside Anne, who was across from her fiance, who was beside Helen. In the course of the conversation, Helen started complaining about how hard it was to find a guy, and how she hadn't been on a date in a long time, and so on. So Anne and her guy started trying to think of guys they could fix Helen up with. They were mentioning every guy in town either one of them knew. At one point, deep in thought, Anne said, "Hmm...and it's not like there are any single guys in the office...." Meanwhile, I, a single guy who worked in their office, was sitting not two feet from Anne. (And the funny thing was that, at that time, I was literally the only single guy in the office. Well, except for the guy who wasn't allowed to get married.)

I was momentarily stunned and didn't say anything, and the moment passed where I could have said something humorous about it. If I said something later in the dinner, I would have just sound bitter and seemed like I had been brooding over it since then. Which of course I had been. But I let it go. A week or so later, I was talking with Anne, and something about dating came up (I think we were talking about another co-worker's new boyfriend). Very casually I said, "Yeah, and it's not like there are any single guys in the office." Anne gasped when she realized I had heard her comment that night. She said that it hit her a few hours later and she told her fiance that I must think she was a jerk. His advice was to not say anything in the hopes that I had missed it. After all, if I hadn't caught it, Anne would have looked foolish bringing it up. And really, I wasn't mad. Anne knew me well enough to know that I didn't really want to go out with Helen, and vice versa, so I wasn't really in the running during their conversation. But ever since then, I still love to give Anne a hard time about it, and we have a good laugh at her forgetting I exist.

Well, a similar experience happened the other day. Two of my co-clerks have long-distance boyfriends, and they were lamenting this state of affairs and saying that they wished they could hop on a plane every Friday to see them. Jokingly, I sang the line from the old song, "If you can't be with the one you love, love the one you're with." One of them immediately crinkled her nose and said, "Love the Judge? I don't think so!" Yeah, that's not exactly what I meant, but whatever.

[Note: This post's title derived after I posed my question to the Magic 8-Ball. First I got "Concentrate and Ask Again," and then I got "My Sources Say No." Twice.]

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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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