Begging The Question

Friday, December 24, 2004

"King of the Hill" Quote of the Day
From the episode where Bill dates the librarian (not the perky one, but the one who won't make change) and trains for a hot dog easting contest. Of course, things don't work out for Bill and the librarian.

Hank: "So, things still on with Cyndi?"

Bill: "No."

Dale: "Well, at least you got a little chic-a-womp-womp."

Bill: "Actually, we were saving it for tonight. My idea."

Hank: "Attaboy, Bill."

Thursday, December 23, 2004

"King of the Hill" Quote of the Day
From the Jimmy Carter Christmas episode:

Bobby: "Too bad we can't get Dad a new dad for Christmas."

Peggy: "Or can we? Bobby, I have turned your terrible idea into a brilliant one. The best present we could get your father would be a healthy relationship with his father. One where they can express their true feelings. And, conveniently, I can get the same thing for Cotton. Didi gets her bath gel like always, and I'm done."

And that is how Peggy saved Christmas.

Another BTQ exclusive! The answer to the burning question of the day week month.
Date: 23 December 2004

To: The readership of BTQ

From: Fitz-Hume


The small corner of the blogosphere that I frequent is all abuzz with the controversy over whether The Hot Librarian, a/k/a thehotlibrarian, a/k/a thl, a/k/a "the wonder from down under" is: (1) actually hot and (2) actually a woman. Even el Federino eventually joined the party. (For the record, I'm not saying he's slow on the uptake or anything, but I'm not really sure whether he's figured out that the Civil War is over. Thus, his coming late to this controversy really is not too surprising.)

The debate has not ended, despite thl's declarations that she is who she says she is. Frankly, I suspect that the continued controversy is all just cheap psychological manipulations masterminded by a bunch of horny geeky bloggers (and Karl Rove) in the hopes that thl will be fooled into posting photographic "proof" on her blog. These transparent attempts to find pictures of hot women on the internets are kinda sad. I mean, it's not like you can't find other sources of such distractions.

Well, gentlemen, you have questions. I have answers. I'm all about action, and taking the initiative and the invasion of privacy. After a lot of stalking research and investigation, I have uncovered incontrovertible proof that thl is, in fact, a hot young woman. Here, for the first time anywhere, is the photographic proof that thl is who she says she is. I will not reveal my sources, but I personally vouch for the authenticity of these photos. She's real, she's a woman, and she's hot, dammit! End. Of. Discussion. (enjoy the alt-text) 

Personally, I prefer her natural color

Damn the gluten, full speed ahead!

Don't piss her off - those aren't Hello Kitty guns!

THL out for a night on the town. She almost caught me snapping this photo so I had to hide in a dumpster.  The things I do for you people.

Wednesday, December 22, 2004

"King of the Hill" Quote of the Day
Bobby: "I just wanted to say you don't have to worry about me, 'cause I'm never gonna have sex."
Hank: "Whoa, Bobby, now don't say that!"
Bobby: "I thought that's what you wanted."
Hank: "Well, yes, if you were my daughter, but you're my son."
Bobby: "Why is it not okay for girls, but it's okay for boys?"
Hank: "It's called the double standard, Bobby. Don't knock it, we got the long end of the stick on that one."

Random Thoughts
1. The other day Fitz pointed to a story about a country singer, Chely Wright, who had a song out supporting the troops (try to imagine such a thing, a pro-troops country song!). Wright doesn't have a record label. Members of her fan club decided to boost radio play for the song by calling radio stations and requesting it, but with the twist that they told the stations they (or their loved ones) were in the military and wanted to hear the song for that reason. The radio stations thought the fan support was legit, and the song went up the charts, no doubt sending some money Wright's way.

I'm not convinced this is so terrible. I'm not ready to condone it, but I'm having a hard time seeing who was harmed by this. One member of the fan club eventually confessed the deception, and told the newspaper that "[t]he whole military thing, it was just wrong. She's not stepping on other artists, she's stepping on troops." Is she? How is it "stepping on troops" to request more airplay for a pro-troops song? Also, there probably are plenty of fans of the song who do have military connections who just didn't think to call the radio station -- perhaps the fan club was a proxy for them.

Again, I don't think it's the coolest thing in the world to do, but I'm not prepared to call it evil. Even if Wright was happy to get the money, there's no indication she knew about this, and the fan club folks were volunteers. No harm, no foul?

2. A conspiracy theorist would suggest that Big Media has a staff of googling monkeys keeping an eye on the crime blotter, looking for killings of pregnant women. No sooner is the Scott Peterson trial over than we can look forward to non-stop coverage of the Missouri fetus-snatcher case. I'm not trying to downplay the horrific nature of this crime, but I don't want to get saturated with it.

One question I did have is why this is going to be a federal prosecution, apparently. The suspect's first appearance was in federal court, so I assume the trial will be there too, although I imagine they could find some state charges later if they need to. (Note: I'm aware that they have federal jurisdiction because of the interstate kidnapping. My question is about why federal over state.) My best guess was they wanted to seek the death penalty, but if that's so, I think Missouri state courts are a safer bet. They may just be going federal to assure there are no quibbles over venue.

3. I discussed a bit on the College Basketball Blog my problems with the Rick Majerus-to-USC deal. I thought that ESPN sat on the story because one of its own analysts was involved. I see now that the Associated Press was having concerns about making news and reporting it, and asked that the BCS stop using the AP poll in determining its rankings. This makes sense to me (of course, you all know I don't mind the split champs and controversy), and it looks like it will lead to a committee picking the BCS entrants, much like the basketball tournament is run. One reason I like this plan is that the polls are weighted too heavily to pre-season rankings, which are wholly speculative. A committee that doesn't rely too much on the polls won't (necessarily) care that USC and Oklahoma were ranked 1 and 2 in the pre-season, while Auburn was 15 or so.

4. I'm running out of steam, so I'm not going to go searching for all the permalinks to every post, but yesterday in The Corner there was much discussion on the generally agreed notion that people who stay up late are lazy. Now, I'm both, but I hate this idea that early-risers are somehow morally superior to us night-owls. First, some people's body clocks just aren't in tune with the sun. I simply don't get tired when most people do. Second, it's one thing if I'm sleeping in the hay loft while others are tilling the soil. But if my job doesn't depend on daylight, the fact that I like to perform it during different hours shouldn't be seen as a moral failing. Yes, yes, if I hold you up, that's arguably bad. But if I'm not, why do you care if I don't come in until noon? That's the real hang-up that a lot of morning folks have: they think we're having it both ways. Well, it's not true. To begin with, I probably sleep less than most early-risers (there seems to be a great correlation between people who get up with the sun and people who can't shut up about how they luxuriate in their eight hours of sleep every night). When I was a staff attorney, I sometimes rolled in around 10:00. But I still worked a full day! I know some of my co-workers noticed my hours, because they tattled to the boss about me. My suspicion is that they thought I was leaving when they did. Au contraire! I was in the office until 6:30 or 7:00 on those days, while those worm-eating early-birds had been home for hours. But they didn't see me at my desk at 7:30 (a.m. or p.m.), so of course I was a shirker, right? (These were also invariably the people who spent the first hour at work getting coffee and chit-chatting with the other sun-worshippers, whereas I didn't have anybody to keep me company in the dark of night.)

I've never really been able to fathom why morning people commute on such a high horse. What's so great about early in the morning anyway? The tv sucks at that hour, there's dew on the ground, and nothing has happened yet. By 10:00, tv shows are getting a little better, you can go outside and know what the weather is going to be like that day (unlike those people who have to wear coats in the summer because it's still cool at 5:45 a.m.), and I can fire up my computer and talk to my co-workers and see what's been happening today. And then, late at night, everything is bliss. No dumb kids to bother you or family-friendly-ize your tv shows, things are quiet so I can actually think a little, I can take stock of the whole day (I never have to wake up wondering what the late scores were), and plant seeds for the next one (like sending those emails or posting something that will be the first thing you see the next day).

So what's the rationale of the early-risers? If you assume that a late-rising person can get as much done in a day as you,** then why is the early shift morally better?

**Note: I know this isn't always a safe assumption. Some people sleep late and don't do anything thereafter. But for this discussion, let's eliminate the argument that one can get more done by starting earlier (even if one finishes earlier too). I also think it's begging the question to assume that hyper-productivity at the average job is necessarily a moral good, too, but for now let's just assume equal productivity.

I've had a lot of fun staying up late, and I don't want to give that up. I like late-night tv, all-night restaurants, all-nighters when studying, late-night plaintive blogging, and man oh man I love the quiet. I like staying up late reading a book, or writing something, or (in theory) being intimate with someone, and not having to deal with the raging cacophony that comes with daylight. Not too long ago, I quoted a line from a New Yorker article about Gillian Welch and David Rawlings: "Welch said the tricky thing about working at night was getting to bed before the birds started singing." I still love that line. Anyway, I like the world at night, and I like being awake then, and I'm productive. So I want some morning person to try to explain to me why that makes me a bad person.

5. This is very bizarre, but very, very funny. Keep the speaker volume low of you're at work; there's some cursing.

6. A quick housekeeping note. I'm leaving tomorrow to go to my mother's for Christmas and won't be back until Tuesday, late. Blogging will be scarce-to-none from me for a few days, but I'll do what I can. Fitzy will be here, though, so don't fret. Also, I have a new email address: milbarge - at - gmail - dot - com. I still check the BTQ addresses we already have: btqblog - at - gmail - dot - com (the best one to use for blog-related stuff) and btqblog - at - hotmail - dot - com. But you can use the "milbarge" email if you need to reach me and don't want to bother Grandmaster Fitz, or want to gossip behind his back.

UPDATE: 7. It looks like tonight we're going to have our 50,000th visitor to this nexk o' the woods. Our best estimate is that fully a third of them even came from people other than me and Fitz. So we're grateful for that -- thanks, everyone. As an incentive to keep things going in the new year, I promise to send ten dollars American and a picture of Fitz, suitable for framing, to our 100,000th visitor. Enter as often as you like; no purchase necessary; guarantee void in Tennessee.

All-Request Weekend: The Next Chief?
I've been busy with work this week, and so I'm just now getting around to the last item from our all-request weekend. A reader emailed me to ask whom I thought the next Chief Justice of the Supreme Court will be. I don't have any inside knowledge, so your guess is as good as mine. The only clue I've heard (I don't remember from where) is that the White House wants to move muy rapido when the next vacancy happens. That probably means that they already know who the nominee(s) will be and have done the vetting. (With the recent Kerik kerfluffle, they're probably re-vetting by now, of course.) The President has said that he won't be afraid to use his political capital for battles such as the one that will likely ensue in the Senate, but that doesn't mean he relishes a protracted fight. I'm sure the White House is trying to find some nominee who represents maximum opportunity for minimal cost. So, sure, they could stake all their political capital to a Ken Starr, but it wouldn't be worth the fight. One thing that wonks like me need to remember is that no matter how fun the fight is, the process isn't the only thing; the means aren't the ends. I don't know if the next nomination tussle will lead to "nuclear" tactics in the Senate, but I see no reason for the White House to hope it comes to that. To be sure, it will be prepared for that eventuality, but I have no doubt that they would much rather prefer to get through the best nominee they can while preserving some political capital for, say, Iraq or Iran.

I thought about issuing a prediction in this post. I'm not a betting man, but I have some educated guesses. But I decided to stew on them for a few days and offer my prognostication as part of my predictions for 2005. I'll have that post next week. It saves me from having to make a guess here, and it gives me one fewer thing to predict about in that post. So, stay tuned for that, Emailing Reader and anyone else who cares.

In the meantime, I'll be doing some more thinking and reading. Conveniently coincident with this post comes Will Baude's New Republic essay urging the President to look outside the current Court for the next Chief. Also, a piece that has generated some buzz, Profs. Choi and Gulati asking who would win "A Tournament of Judges?", and some responses to it: Prof. Vladeck discussing the limits of empirical judgments about judges, and Prof. Goldberg comparing picking Supreme Court Justices to picking the Heisman trophy winner.

This all reminds me of an exchange I had a few times with a law school classmate, who asserted that the only task for the President was to nominate the "best" Justice and the only task for the Senate was to confirm the nominee. He seemed to assume that somebody could identify the "best," i.e., the one who deserved it, or earned it, I guess. I thought he was bonkers, but now I see he was just ahead of his time; he must have been envisioning a tournament of sorts.

My classmate's other brainstorm on the Appointments Clause was that judges shouldn't seek promotion. Whether by amendment, or statute, or simple promise, judges should be bound or agree not to try to move up the ladder, from district to circuit to Supreme. I think he softened a bit on the district-to-circuit hop (because of numbers, mainly), but felt that the Supremes shouldn't be staffed exclusively from the circuit courts, like the last few have been. I think his reaction was an overreaction, but I can follow his logic. First, the Supreme Court needs new blood from time to time, as Will suggests in making a different argument. Second, the President could draw from lots of other sources, such as state courts (O'Connor and mostly Souter recently, notably Holmes and Cardozo), private practice (Powell and Fortas spring to mind), within the administration (Byron White, Rehnquist, Vinson, Robert Jackson), or the political branches or from state offices (Earl Warren, Hugo Black, Frank Murphy -- Michigan Gov. before he was AG).

My friend's biggest motivator was cutting down on any risk of lower-court judges "writing for promotion." That is, writing opinions and making decisions with an eye toward wooing the President or fooling the Senate or the like. (All this was before "How Appealing," so I suppose now one could add the risk of a judge writing an opinion that will get noticed on blogs.) I think that in practice a judge is likely to think that an opinion will serve both the purpose of advancing his or her prospects for promotion, while simultaneously reaching the result the judge thinks is correct. I think judges with advancement on their minds can serve both masters, their own ambition and fidelity to the law. I think very few judges will consciously choose otherwise, so I think my classmate's total ban proposal was not "narrowly tailored," as the phrase goes. And it's underinclusive as well: we might as well worry that, say, Orrin Hatch or Ted Olsen take a position or perform an official act with an eye toward Supreme Court appointment. My friend would not have prohibited Senators or Solicitors General from seeking nominations.

I think the President should at least consider potential nominees from outside the federal courts (of appeal). That's another problem with trying to quantify the supposed "best" nominee. Even if you could come up with a mode of analysis that would lead to an objective answer for the "best" lower court judge, how can you measure that against an SG or AG or SJC Chair? One of the critics of the "tournament" article suggests that it gives great weight to the quantifiable (such as how often a judge's opinions are cited by other judges) simply because they are quantifiable. The truth of the matter is that picking nominees is a pretty subjective affair -- especially, I would guess, for the current President, who makes a lot of assessments by "looking into the heart" of the person being assessed. Mr. Bush might have an MBA, but does anyone think he will prefer a spreadsheet or PowerPoint over his gut when he makes that call?

I'll try to come up with a name by next week. Thanks to our emailer for spurring me to write about this, because it's a topic of perpetual interest for me.

Tuesday, December 21, 2004

"King of the Hill" Quote of the Day
I couldn't decide between these two from the episode where the Buddhists think Bobby might be a lama, so I'll give you both:

Hank: "The Buddhist monks think Bobby's a holy man. Now that's just sad."
Peggy: "Hank, listen to this: Richard Gere is a Buddhist."
Hank: "And it just keeps getting sadder."

Bill: "So, how long you been celibate?"
Young Buddhist Monk: "Three years."
Bill: "The fourth year's the tough one."

All Request Weekend: And you thought this blog was boring
Energy Spatula requested a weekend post about our law school hijinks - I guess she imagined a prequel of sorts, like a Dumb & Dumberer: When Milbarge Met Fitz-Hume tale. I know we are well into the week, but we're going to do our best to fulfill every request no matter how long it takes. There's just a slight problem. We have scoured the archives, we've searched to the ends of the earth, we even looked on the back of Declaration of Independence, but there is just no record or memory of law school hijinks - at least none that involved Milbarge and me. Not one single solitary story involving antics, tricks, frolics, or hilarity. How sad is that?

Truly, the funniest thing I can recall is that we dressed as Jay & Silent Bob for Halloween one year. Sure, we looked pretty funny, but that doesn't really translate well into a blog post. And really, it's just not that funny. See?

This is what it would look like if Milbarge and Fitz-Hume blogged with Affleck.

That's not to say that we didn't have some good times, just that they weren't especially special. We hung out, we made tortfeasor jokes, we made fun of stupid people, you know, the usual. We attended numerous cocktail parties, we played (or watched) softball, we watched couples break up and make up, we kept some friends out of jail and laughed at others as they headed to the slammer. He did well on exams while I performed at a slightly above average level. In his spare time, Milbarge read the Law Weekly and hit the local greasy spoon restaurants with his running buddies. I went fishing. Those were the salad days.

In a desperate attempt to provide some humorous anecdotes from law school, I'll give you just a couple of vignettes from class. One involves only me, and the other involves Milbarge as a spectator.

In my law school class there happened to be another Emmitt Fitz-Hume. We shared the exact same first name and exact same last name. In three years we only shared one class: Evidence. Well, one day in Evidence, the professor called on "Emmitt Fitz-Hume." Neither of us answered. He looked at the roll sheet, then looked up at the last row of the classroom at me. He asked me, "Wow. We have two Emmitt Fitz-Humes. That's weird. How do your other professors decide which one of you to call on?" I answered, "Well, they always just call on him." The class got a good laugh out of that. What a knee slapper, huh? Whooo boy, I've got to catch my breath before I go on.

The other moment occurred in our close business arrangements course (partnerships or whatever the hell you want to call it). The day's assignment included balance sheets and expensing losses or something like that. There were ledger sheets involved. Anyway, the professor asked me to run through a list of figures and explain which columns they belonged in and why. Without any hesitation I leaned forward as if to speak into a microphone and responded, "I was told there would be no math in this course." in an obvious (I thought) homage to Chevy Chase's portrayal of Gerald Ford in the Ford-Carter debates. Yes, the Chevy Chase influence runs deep. In a class of 60 people only about 3 people (counting Milbarge but excluding the professor) got it. But those three people were absolutely dying with laughter. Everyone else just thought I was an idiot. After reading this, you probably agree with the 57 rather than the 3. Frankly, I can't say I blame you.

To women! The cause of - and solution to - all of life's problems.
I present this week's recipients of BTQ's GBU awards:
The Good, The Bad, and The Ugly.
(hat tips to Robert Prather at Signifying Nothing and Owen at Boots & Sabers for directing my attention to the first two links)

Monday, December 20, 2004

"King of the Hill" Quote of the Day
Peggy: "Bill has had a hard life, and he likes it that way. He likes to be treated badly."
Luanne: "It's called psychology, Aunt Peggy. The disease of psychology. I'm taking it pass/fail."

All-Request Weekend Wrap-up
Thanks to everyone who wrote in with requests or suggestions for posts as part of our All-Request Weekend. It certainly gave us more to talk about than the typical Friday. I have one more email request that I'm going to get to later, also.

We're sorry to Energy Spatula, who asked for a post about the "law school hijinks" of Milbarge and Fitz-Hume. We really tried to come up with something, but the fact is that we didn't have the hi-jinkiest law school experiences. If any of our classmates are reading this and have a story that we've forgotten, or blocked out, let us know. (And note that email might be best if identities need to be protected.) Trust us, folks, if we remember something, we'll post it.

Finally, as we noted, we're happy to receive requests or suggestions any time, so feel free to send them in, even without the glitz and glamour of an all-request weekend to dazzle you.

Sunday, December 19, 2004

"King of the Hill" Quote of the Day
Bobby: "This room holds a lot of memories for me. Like that time I dressed up Ladybird in my underpants and we pretended we were Calvin Klein models."

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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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