Begging The Question

Friday, July 15, 2005

Friday Spies© : Living and Dying in 3/4 Time Edition
1. What time do you go to bed? What time do you wake up?

I usually get to bed late. I am both a night owl, in that my body clock just runs later than most, and an insomniac, in that it often takes me a long time to fall asleep. Plus, I pretty much have an intravenous sweet tea drip, so that might have something to do with it. Anyway, during the week it's rare for me to get to bed before 1:00 a.m., and closer to 2:00 is common. Closer to 3:00 is not unheard of, especially lately for various reasons. I usually set the first alarm for 6:45 or 7:00, and finally get out of bed when the last one goes off between 7:15 and 7:30 -- those discrepancies are based on variances in how tired I am and how hard I think it will be to wake up. On the weekends, I sometimes fall asleep as early as my "normal" time, but quite often stay up until 4:00 or 5:00. I was still up as the sun was rising both mornings this weekend, though. I sleep a lot later than during the week, but probably don't get more than eight hours of sleep at a stretch. Consequently, weekend afternoon naps are not unheard of.

2. What do you want done to/with your body after you die?

I don't really care, as long as someone a reputable transplant surgeon harvests every scrap of usable tissue from my corpse. Apropos this question, I will recommend Mary Roach's delightful Stiff (reviewed by me here)and Thomas Lynch's excellent The Undertaking.

3. Describe your dream house.


As "awesome" as the Tiny House would be, I think I'm going to need something roomier. I don't worry much over particular architectural styles, but I want brick and not ugly aluminum or vinyl siding. (Am I the only person in American whom the mention of aluminum siding reminds of the Mike Myers "SNL" character "Middle-Aged Man"?) I want a big kitchen, not because I'm going to do a lot of cooking, but because I want one big enough to congregate in, and where I can wander around and sample food without being underfoot of whoever is doing the cooking. I think I want separate bathrooms for me and my (hypothetical) housemate. I don't care if there's a yard or not, but I don't want to have to take care of it. I want it to be two stories, but would like to have a bedroom and bathroom downstairs too. I want a porch I can sit on when the weather's agreeable. Ideally, I would like a porch that wraps around the house. Otherwise, I'm pretty easy to please, and unless I win some reality-tv contest, or the movie I'm writing with Fitz does boffo numbers, I don't ever see myself getting the house of my dreams, anyway.

4. Are you an excellent driver? Do you speed, or drive the speed
limit? Ever been ticketed?


I do think I'm an excellent driver. To imitate Scott a bit (after all, who doesn't?), I "get" driving, by which I mean I understand traffic and can anticipate what's going to happen and drive accordingly. I always thought that was just something that all drivers had, but the more I drive, and the more traffic there is, the less I think that's the case. So I think I'm careful and smart about what I'm doing, even when I'm driving a bit over the posted limit. Sometimes, of course, speeding (by a little bit) is safer than not. But the same mph over the limit isn't always equally okay. Driving 75 in a 65 is better than doing 35 in a 25, I think, given that most 25 mph areas are residential or business districts with lots of pedestrians and cars that stop or turn abruptly. And, cops are probably going to be a little more forgiving out on the highway. I've gotten three tickets. I grew up in a speedtrap of a town, and I got two speeding tickets when I was 19, the summer after my first year of college. I was doing 39 in a 25 for one (the cops hid in a parking lot at the bottom of a steep hill, so unless you just stood on the brakes, it was hard to stay under 25) and about 50 in a 35 for the other (I didn't slow down quickly enough after the limit dropped from 45). And I went to law school in a speedtrap town too, where the cops had little territory to patrol and plenty of students to bust. I got a ticket for failing to come to a complete stop at a stop sign on a side street near campus. I've also gotten a couple of expired meter parking tickets, a ticket for forgetting to put my registration sticker on my car in a timely fashion, and one in law school when my car's bumper edged into a yellow zone (I got there as the two truck driver arrived; they were serious about those yellow zones, but I talked the driver out of taking it away). Anyway, I was guilty for all of these offenses, and paid my tickets dutifully. But overall, my record is pretty clean. During high school, I dinged a fender in a convenience store parking lot, and backed into a mailbox pulling out of a driveway, but other than those incidents, no accidents on my record, knock wood.

5. What is your favorite animal, mineral, and vegetable?

Animal: The liger, bred for its skills in magic. Mineral: Silicon, not for breast implants, but for computer chips. Vegetable: Cantaloupe. UPDATE: As E. McPan pointed out, cataloupes aren't vegetables. Oops. I guess that's what I get for sleeping so little. In my defense, here's what happened. I wanted to see a list of some vegetables, a menu if you will, so I wouldn't forget something really obvious. So I googled "vegetables" and ran across a USDA report on vegetable harvest. However, I missed that it also included strawberries and melons along with vegetables, and my enfeebled brain just saw them as one big category. Note to self: Next time, scroll down farther on the google results page when you're looking for a document called "a list of vegetables." So. I'm changing my answer to the potato, although, fyi, I don't particularly enjoy them in tot form.



Thursday, July 14, 2005

Teaser Trailer
Here are the highlights from my long weekend. I'll post a full report as soon as I can clear the work from my desk.

Day 1 - Sonoma, including a pleasantly surprising wine tasting at Mario Andretti's
winery; dinner at Mr. Taco in Dixon, California

Domaine Carneros Mr. Taco

Day 2 - Fly fishing in the Sierra Nevadas within sight of the Marine Corps' Mountain Warfare Training Center; mucho mas tequila; general foolishness in South Lake Tahoe; getting my ass kicked by Sammy Hagar (only figuratively)

Pickel Meadows He can't drive 55

Day 3 - Kayaking the south shore of Lake Tahoe; the worst waitress in the history of the world; getting pelted with ice by a valet; Mike falling in love with a bartender

Day 4 - San Francisco - Marin, Twin Peaks, etc.

the north side of the Golden Gate Bridge

Stay tuned.



Wednesday, July 13, 2005

Choosing Players for the Other Team
I was chatting with PG the other day, and we got to talking about the Supreme Court vacancy and the question of Presidential consultation. PG floated the suggestion that the President could ask the more liberal Justices on the Court for the name of the conservative they would most like to see join the Court. I said I was tentatively against that idea, but would have to think about it before responding. I have, and I'm no longer tentative: I think it's not a good idea. The following explanation assumes, of course, the highly unlikely prospect of this President worrying about what those liberal Justices think. I know that won't happen; it's simply a thought experiment.

To begin with, there is the possibility for gamesmanship. Liberal Justices might suggest a conservative nominee whom they feel they could "win over" or, failing that, out-argue. A mediocre Justice might make them seem more brilliant in comparison. They might suggest a "stealth" Justice, someone whom they know would prove disappointing for conservatives in the long run. The legal community at those rarefied heights is fairly small, and that kind of information (and gossip) is available. Clerks and lawyers and other judges sometimes talk (not including yours truly, of course). The point is that the Justices might know things about potential nominees that the President or the public don't. Game-playing Justices might also suggest a nominee who would not be politically beneficial to the White House. For example, they could suggest a white male to replace Justice O'Connor, when lots of indications exist that President Bush is strongly considering nominating a woman or a Hispanic for the position. Also, if the liberals' suggestion were made public, it would serve as something of a "seal of approval." In other words, the public could perceive the suggestion as the consensus choice for "most qualified" or "best available" nominee. If four Supreme Court Justices suggest Judge X, it might be awkward for the President to have to explain why a different nominee is so much better. In sum, the liberal Justices, if consulted, would have every reason to suggest a nominee with their own self-interests in mind, and there is little reason to believe those interests would align with the President's. The Justices might decide it's worth having Alberto Gonzales on the Court if the result of the nomination is that it rends the Republican Party in twain. (I don't want to imply that there is anything wrong with a consultee considering his or her own interests. Consultation is simply a mechanism for asking someone what his or her interests are. For example, conservative activists expect to be consulted on this nominee, and in suggesting names, they are placing their interests in finding their kind of Justice above the President's other interests.) I'm sure those with more devious minds than mine can think of still more ways that game-playing Justices could turn the consultation and suggestion to their own ends.

[Aside: I suppose it's possible that the liberal Justices would be interested in naming a truly strong conservative. I shouldn't suggest that gamesmanship is the only possibility. For one thing, they might be friends. Example: the longstanding friendship between Justices Scalia and Ginsburg. They might also feel that a sharp mind on the other side of an issue strengthens their opinions because they are forced to respond. Certainly the uber-nerds in robes might have that reaction, but it would not be the easy answer to give when asked for a suggestion. Speaking of Court friendships, I am reminded of a ridiculous item I saw last week, but I won't try to track it down to save the author the embarrassment of being called out by name. The piece suggested that President Bush nominate Fourth Circuit Judge Michael Luttig. The reason was Justice Souter. Justice Souter recused himself (along with Justices Scalia and Thomas) from considering the appeal of the man who killed Judge Luttig's father. Luttig was in the Justice Department and helped shepherd Sourt's nomination, a tie that apparently warranted recusal. The author suggested that Luttig would be able to "win over" Souter, presumably because of this alleged friendship, if not the sheer force of his intellect. I think it's beyond dumb to suggest that a Justice with nearly fifteen years of experience on the Court would suddenly flip countless votes just because someone he knows joins the Court and votes the other way. If Luttig and Souter really are friends (I have no idea), and Souter would be that easily influenced by Luttig, surely that influence would have had some effect by now. One manifestation of that would be lots of votes by Souter to affirm Luttig's votes, and I've seen no evidence of that happening in numbers that could only be explained by affinity. And while I mentioned the possibility of "winning over" a Justice above, I think the chances are better for a new Justice to be won over by a sitting Justice, especially if the sitting Justice suggested the nomination, and suggested a "win-over-able" nominee.]

Even assuming the consulted liberal Justices would approach the process honestly and suggest the "best" conservative nominee, I still don't think the President should ask. I simply think there's something not quite kosher about the Court, in effect, picking its own members. Most of us are willing to accept the Court's antidemocratic, countermajoritarian nature because its members were chosen and approved by elected political actors. Turning the appointment process into even more of a backroom, old-boy's system would do little to foster the Court's legitimacy. I don't think the President is required to consult with Senators of either party before nominating someone, but I think it's a good idea. And I think it's fine that average citizens (individually or through interest groups), members of the media, and even the President's wife chime in with their suggestions; that's how representative democracy works. And I know that in the past, consultation between Presidents and Justices was more common. See, for example, this neat document Prof. Muller discovered. Even if the consequence is that the Supreme Court turns into "The Real World: One First Street" because the new resident doesn't get along with the current housemates, I think the separation of powers and division of labor works well. Suggesting a nominee for the President would demolish whatever independence from the political winds the Court still has.

Now that we've gotten the preliminary throat-clearing about why it will never happen out of the way, we can start the fun part. Who would the liberal Justices suggest as a nominee? Assume for present purposes that we're talking about Justices Stevens, Souter, Ginsburg, and Breyer. Assume the nominee has to be at least more conservative than they are. Assume minimal gamesmanship on the liberals' part; that is, assume they're trying to genuinely suggest a good potential Justice whom they could work with and would be good for the Court. The suggested nominee has to have at least a snowball's chance in hell of being nominated (i.e., is minimally qualified and wouldn't sound crazy to suggest). In short, who is the liberal Justices' favorite conservative nominee? (And, if you want to have even more nerd-fun, turn the tables and ask who the conservative Justices would suggest to a Democratic President looking for a liberal nominee.)

I think one place to start looking would be the judges from whom the Justices get their clerks. You can see a list of these "feeder judges" here. Without tracking down every judge, a few stand out as circuit court judges nominated by Republicans who have sent multiple clerks to liberal Justices. The excellent Judge Edward Becker of the Third Circuit is probably too old to be nominated now, and First Circuit Judge Michael Boudin and Seventh Circuit Judge Richard Posner are getting up there, too. But they have sent a few clerks to the liberals over the years. So has DC Circuit Judge Douglas Ginsburg, but he had his shot once before. Ninth Circuit Judge Alex Kozinski is an equal-opportunity feeder judge extraordinaire, and would be an interesting (to say the least) Supreme Court Justice. I can think of reasons why the liberals would and would not want to suggest him, and some people might not even consider him a "true" conservative, but he would be a possibility. The Justices might look at frequent and respected litigators before them, like Solicitor General Paul Clement or his predecessor Ted Olson (or another predecessor, Ken Starr, even though he wouldn't be nominated), or someone like Miguel Estrada even. I'm sure there are district judges and state supreme court judges and other practitioners the Justices could consider, too. I haven't given a lot of thought to the liberal whom the conservatives would pick, but I may update this later with suggestions. I would like to hear your guesses in this parlor game. My official pick for the nominee the liberal Justices would suggest is Fourth Circuit Judge J. Harvie Wilkinson, and who knows, they may get him anyway, even without the President asking what they think. I look forward to your thoughts.



Tuesday, July 12, 2005

The New Justice(s) and Circuit Justice Reallotment
One thing to keep in mind once we have a new Justice (or Justices) is the re-allocation of Circuit Justice duties. Pursuant to 28 USC sec. 42, the Supreme Court Justices divide up the federal circuits and sit as "circuit justice" for those circuits. This dates back to the days when Supreme Court Justices would "ride circuit," but since the creation of the circuit courts as we know them, the circuit justice duties are pretty much limited to receiving stay petitions from within that circuit, as well as ceremonial functions like attending the circuit judicial conferences. (Chief Justice Rehnquist is famous, or infamous, for leading the singing of "Dixie" at the Fourth Circuit's conference.) There's a little doubling-up because the nine Justices have to be spread over thirteen circuits, so the Chief has three and two others have two. See here for the current allotment.

Anyway, the circuits are divvied up anew every time there is turnover at the Court. So the last time any circuits changed hands was in 1994 when Justice Breyer came aboard. It will be interesting to see who takes over as circuit justice for the Ninth Circuit for Justice O'Connor, and what ripple-effect realignment that necessitates. Also, if Chief Justice Rehnquist retires, a new Chief might not keep the same three the current one has. My understanding is that, traditionally, Justices are assigned as circuit justice for a circuit to which they have some tie, either because they served on that court or are from that region. For example, Justice Thomas is assigned to the Eighth Circuit even though he was born in Georgia and served on the DC Circuit, but that's presumably because his career started in Missouri, and no one else since Justice Blackmun's retirement has any greater tie to that circuit. Justice Kennedy would seem to be a natural choice for the Ninth Circuit, but he currently has the Eleventh Circuit, and it seems inconceivable he would be assigned to two circuits with such heavy caseloads. Perhaps Justice Thomas would take over as circuit justice for the Eleventh Circuit. Of course, this speculation all depends on the backgrounds of the new Justice(s), too.

The circuit justice responsibilities tend to fly under the radar. On this page you can access the "in-chambers" opinions from the last three Terms, most of which are denials of stay requests directed to circuit justices. As you can see, these duties don't lead to many written opinions. More commonly, stay denials (or the occasional grant of a stay) are simply issued as "miscellaneous orders" with no explanation. But the identity of the circuit justice matters, because that Justice can issue a stay without consulting the rest of the Court. (In most cases, the Justice will forward the request to the whole Court, and the whole Court can lift a stay granted by a single Justice.) Pardon the cynicism, but it is probably no coincidence that the circuits containing the states with the most active death rows are assigned to Justices who are, historically speaking, less favorable to claims by death row inmates.** (And this cannot be chalked up in every case to a Justice's ties to that circuit. I am not aware of any pre-Court tie to the Fifth Circuit by Justice Scalia, including his Louisiana duck-hunting.) To the extent that the Chief Justice engages in "strategic allotment" for this or other reasons, it is worth considering when the new Court convenes.

**A possible exception is Oklahoma, with Justice Breyer as Tenth Circuit Justice.



Monday, July 11, 2005

Miscellany
A few items not worth a full post.

1. If any readers have any pull at Westlaw, I have a suggestion. On the page where a case is displayed, along with the reporter cite and the Westlaw cite, they should display the subsequent history. That way I can know the cite of the cert denial without having to click off that page to go to the "History" page. At the least, they should make the history pop-up, like cases cited within the text. Anyway, pass that along if you've got the connections.

2. In a similar office-improvement vein, somebody should invent a printer with a window so I can clearly see how much paper I have left in the tray. My guess is they could also do this as a display, perhaps based on weight. I'm just trying to make life easier here, people. Call the IA and patent that sucker.

3. In the comments to my previous post, PG takes issue with my characterization of the diner in Nighthawks. I said it was a place of depression, but PG notes that the worker doesn't seem depressed (I'll grant that), and discusses the couple. She points out that their hands are almost touching. I'll counter that they aren't looking at each other and don't seem to be too lovey. I think the best I could posit is that they're content to be near each other. The loner, I think, is more depressing than sinister, but I've heard that take on him. In the end, I think the viewer's perspective matters most. Unlike Fitz's bistro, where the viewer is inside the cozy scene, the viewer of Nighthawks is outside. Whatever connection the couple has, the viewer is apart from everyone. So that's why I called the painting moody and depressing.

4. In the comments to the same post, Mr. P takes issue with me calling Boogie Nights a "cult film." I can see his point. Here's my defense. I'm not trying to come up with some absolute definition of cult film-ness. But Boogie Nights has a lot of the markers of other, agreed-upon, cult films. For example, it was critically acclaimed (although I acknowledge that can cut both ways for cult status), but the box office wasn't great ($26.4 million on a purported budget of $15 million). But the reason I give it cult status is that its audience has grown since then, sitting through multiple viewings nearly eight years after its release. Not many other "top" films of 1997 have that. How is it different from, say, Lebowski? There were fairly big-name stars in that, too, and it didn't make a huge ripple when it was released, but it still holds up, and devoted fans watch it over and over. Boogie Nights is quirky enough, and out-of-the-mainstream enough, to qualify for me. I'm not claiming it has any cult-like devotees on the level of Fight Club or something. And I'm not claiming it's so obscure that lots of people haven't heard of it, like Cube, for example. If it's more popular than I thought, great.

5. UPDATE: One more thing. If any regular Friday Spies© participants would like to volunteer to do the five questions for a week this summer sometime, let us know, preferably via email, and we'll put you on the list. If there's a particular week for which you would like to volunteer, let us know that too. I can't guarantee we'll need you, but we'd appreciate having a few go-to-bloggers should the need arise and our brainstorms evaporate. Thanks.



Sunday, July 10, 2005

Friday Spies©
1. Tropical Storm Cindy and Hurricane Dennis are causing trouble in the Southeast this week. Share a natural disaster story.

I think I have been through six or seven hurricanes, although a couple of them may have weakened to tropical storm status by the time they got to me. What's funny about that is that I have not spent a lot of time in your typical hurricane-prone areas, even though the nickname of my high school sports teams was the Hurricanes (a geographical oddity). I have been pretty lucky -- never had a house collapse or had to survive on looted food. One time, my suburban co-workers were without power for about two weeks from a storm, and they all got mad when I complained that the worst thing that happened to me in my downtown Crackton apartment was that my cable went out for about an hour. My favorite natural disaster story involves a hurricane that came ashore in North Carolina when I was at Duke, Erin or Fred or something. The eye pretty much passed over Durham, and the whole city lost power, except for the Gothic Wonderland, which has its own power system. (It's fueled by your hate, so have at it.) Anyway, in the midst of the pouring rain and howling wind, a bunch of kids from my dorm went out back and started sliding down the muddy hill, like something out of Woodstock. Eventually the cops came and ended the fun, pointing out what morons we were for standing around outside in the middle of a hurricane. But it was fun while it lasted.

2. What is your favorite work of art?



I like Nighthawks by Edward Hopper (more here, and mentioned by me before here and here). I like how Fitz's choice is so different from mine. His bistro is pleasant, personable, chatty; my diner is grim, moody, quiet. The bistro is a place of potential and possibility; the diner is a place of depression and lost opportunities and pessimism. Or at least that's what I see.

3. Do you squeeze the toothpaste tube from the middle or the bottom?

From the middle until it starts getting empty. I get screwed up, though, when I buy one of those toothpastes with two inner chambers of different pastes, the kind that mix together on your brush. I always end up getting all of one and none of the other.

4. What is your favorite "cult" film?

I like Rocky Horror and Office Space and Boogie Nights and Happiness and Dazed and Confused and most of the Coen Brothers films.

5. Would you go into space if given the chance? Where would you go?

In the words of Pink Floyd, "just an earth-bound misfit, I." I'll wait until they invent a way to travel in space without nausea. Plus, there are too many places on Earth I still need to explore.



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