Wow -- big news, which I first saw at NRO's Bench Memos, where they have a link to the withdrawal letter. That "Whoop!" you hear coming from the direction of Macon, GA, is Feddie. First documented suggestion that some will spin this as a plot by Karl Rove to take heat off pending CIA leak indictments goes to Jonah Goldberg. Early prediction at the replacement nominee (remember, I was right in my early prediction that John Roberts would be re-nominated for Chief Justice): Maureen Mahoney or Judge Consuelo Callahan. Enjoy your victory while it lasts, Feddie, et al.

Okay, this probably shouldn't be a laughing matter, but it kind of is. It's a site with a ton of photo-shopped images of the infamous Heineken looter from New Orleans. Some of them are crudely done, some are in poor taste, but quite a few are worth a chuckle. My favorites:

It's funny how things happen to give you these nice little news juxtapositions. A day after civil rights pioneer Rosa Parks dies, Air Force Academy football coach Fisher DeBerry suggests that maybe all that walking during the bus boycott made blacks faster than whites. Okay, not really. What he actually said was that one reason his team this year was struggling was because "[Y]ou don't see many minority athletes in our program." DeBerry went on to say, "It just seems to be that way, that Afro-American kids can run very, very well. That doesn't mean that Caucasian kids and other descents can't run, but it's very obvious to me they run extremely well." Pat Forde pretty much sums up my take in this column. I'll note that DeBerry has offered a lame "apology" which I've paraphrased in the subject line of this post.

With these words, DeBerry risks joining such illustrious company as Jimmy "The Greek" Snyder, who was fired as a football commentator on CBS after saying that blacks were good athletes because of the way slaves were bred and that once they "take over" coaching there won't be anything left for whites, and Al Campanis, who was fired as Dodgers GM for saying that blacks might not have the "necessities" to be baseball managers or GM's, during an interview in which he also stated that blacks couldn't swim well because they lack bouyancy. (Tell that to Tim Duncan, who was a world-class youth swimmer in the Virgin Islands.)

If DeBerry is lucky, he'll "only" be compared to Howard Cosell, the former "Monday Night Football" announcer who got in hot water for narrating a highlight of a black player with, "And that little monkey gets loose, doesn't he?" Cosell's reputation (and job) were saved only because he had called fast white players "monkeys" too, and because his many associations with black athletes like Muhammad Ali evinced no racism on Cosell's part.

I'm not saying DeBerry is racist. And I'm not saying he's empirically wrong: At the highest levels of sports like football and track, blacks do outnumber whites, so there are a lot of very fast black athletes. But there are two issues here, both of which are bad for DeBerry.

First, DeBerry is conflating the larger issue of race and sports (more on that below) with the specific deficiencies of his football program. The fact that black recruits might not want to play football at the Air Force Academy doesn't have much to do with the fact that they're fast. DeBerry surely wants the fastest players he can get, of any race. But he needs to make sure his program is hospitable to minority students. Saying stuff like this makes that harder. And the best evidence that the AFA isn't too appealing to black athletes is the fact that there aren't more of them there.

My Dad was a football coach in the 1960s at a high school whose integration sparked race riots. I asked him once if he ever had any racial issues on his teams, and he said, "I never had any problems with blacks or whites because I was equally a hard-ass to all of them." That's the attitude DeBerry needs to have (or reiterate if he already has it): He should go after the best players he can get, without regard to race, and make sure the black recruits know they'll be welcome. But he needs to keep his focus on his program first, before making sweeping sociological generalizations.

The second problem is that there's a right way and a wrong way to talk about race in America, and maybe especially sports. The right way is to do some research and some thinking, and then write a book or something. (Thanks to PG for the tip.) The wrong way is to spout off poorly-considered generalizations on tape. Even if there's some truth to his statement, by taking the latter approach, DeBerry showed himself to have such poor judgment that maybe he isn't the man you want representing the Air Force in such a public position.

A few years ago, I read a novel called Sarah by J.T. LeRoy. In brief, it's the story of a youngish boy whose mother, Sarah, is a "lot lizard" (that is, a truck-stop prostitute -- hello, googlers!). Through the course of the story, the boy adopts Sarah's name, dresses as a girl, becomes a prostitute himself, and has all manner of adventures. (Sorry, it's been too long for me to recall all the details.) It was well-written, provocative, even disturbingly compelling. What made it even more fascinating was that it was presented as a largely autobiographical chronicle of LeRoy's rough upbringing. LeRoy was publishing his stories in his teens. I found it remarkable that someone so young, who had spent his youth hustling, could produce such a work.

I had pretty much forgotten about J.T. LeRoy, but I just found out that he's become something of a celebrity in certain literary circles. In the process, he's become the center of a controversy, because some people think he's a fake, and is actually the creation of an older female writer/performer from San Francisco. The "J.T. LeRoy" who has appeared in public and been interviewed by various reporters is alleged to be an actor. It's an interesting and complicated tale. Other people aren't convinced.

I'm not taking sides in this one; I don't care enough whether J.T. LeRoy is real. It does raise the interesting question of how readers would regard the work if they knew the author wasn't who he or she claimed to be. Would Sarah be as interesting if it were written by someone other than its subject? Why is "J.T. LeRoy" any less interesting as a fictional character? Surely we've all known fictional characters in books or movies who seem more intriguing to us than their creators.

And of course this got me thinking about blogs, and how "real" bloggers are. I blog anonymously -- would anything I say here be less interesting (less than zero? - ed.) if I've lied about who I am? Or, take a better example: the Anonymous Lawyer, which is explicitly fictional but rings so true that he got a book deal out of it. Unlike some of the characters in the LeRoy mystery, I don't know anyone who felt "betrayed" to find out that AL was actually a law student. (If someone did, to use one of AL's favorite phrases, "that's ridiculous.") I think the difference is between anonymity and deception. He's not using the mask anonymity provides to manipulate people, and he's never claimed to be anything other than a fictional creation. What upsets people who think LeRoy isn't real is that some people are buying the books, and exalting LeRoy's writing, based on an alleged lie. If Jeremy Blachman hired some actor to appear as the AL in glossy spreads in the ABA magazine, that would be another matter.

I kicked this post around for a few days, trying to come up with something grander, some big theory about blogs and anonymity and deception. I'm interested in your thoughts, and I may come back to this sometime, but for now I guess I'll end with this. I try to be "real" here, at least within the context of what I present here. I don't think I'm deceiving anyone, because I don't think anyone expects to click on a blog (anonymous or not) and get the complete picture of its author. And I hope none of you get too interested in tracking down the whole story (unless of course you're an attractive young lady). Because what you see here is about as good as it gets, and there's no sense watering that down with a bunch of "facts."

Over the weekend, Howard at How Appealing posted a link to the "Federal Judgeship and Administrative Efficiency Act of 2005." This is a bill sponsored by House Judiciary Committee Chairman James Sensenbrenner. A couple of thoughts about it.

First, the bill would establish Article III courts in the Virgin Islands and provides for two district court judges to sit there. Now, the VI have "district judges" who are Article I appointees, like Guam and the Northern Mariana Islands. Those judges don't have life tenure and can't sit by designation in Article III courts. See Nguyen v. United States, 539 U.S. 69 (2003). So, Sensenbrenner's bill would provide VI judges with those characteristics. Perhaps more importantly, the bill would place VI district judges and their clerks under the purview of the Article III Groupie, who would presumably no longer consider them "icky." All the more reason for law students to consider a clerkship in the Virgin Islands! (I knew a guy who clerked for a district judge there a few years back, and his assessment was "There sure are worse places to spend your first year out of law school.")

More noteworthy is the effort in the bill to split the Ninth Circuit. The act would leave California, Hawaii, Guam, and the NMI in the Ninth, and put Arizona, Nevada, Oregon, Montana, Idaho, Washington, and Alaska into a new Twelfth Circuit. With all respect to the interesting cases that come from Hawaii and the territories (see, e.g., Nguyen, supra), the new Ninth would really be the California Circuit. The vast majority of judges and cases would be Californian, and that circuit would still be larger than most of its sister circuits. Also, this move would give California's Senators a de facto veto over most appointments in the circuit.

A split of the Ninth Circuit may be necessary, but California is so big that the proposed Twelfth Circuit would have but a fraction of the current Ninth's caseload. But a cleaner split may not be possible. The next-heaviest dockets are in Nevada and Arizona, but those are the two states that would seem most suitable to joining California after the split. If Congress put either of those states in the new Ninth (leaving aside the slim chance that it would create a non-contiguous circuit of Arizona and the northern states), pretty much all it would do is create a new circuit with a very light caseload, and leave the Ninth with most of its current docket. Not much of an improvement. Another possibility would be to leave Oregon in the Ninth, but maybe Congress doesn't want to lump Judge O'Scannlain in with his California colleagues.

I don't like the idea of having a circuit consist of only one state (whether literally or for all intents and purposes). Doesn't that create a precedent for a New York Circuit, or a Texas Circuit, or a Florida Circuit, if we ever feel a need to split the Second, Fifth, or Eleventh Circuits? (Maybe Georgia, Alabama, Mississippi, and Louisiana could have an Old Fifth Circuit reunion in that case.) Wouldn't Sensenbrenner's proposed split further isolate California's federal judges, without the, ahem, balance from the judges from around the circuit? As the bill is written, I don't see any real benefits from an administrative efficiency standpoint: the new Ninth Circuit wouldn't be small enough as compared to the current one. It seems like the chief aim of the legislation is to relieve most of the states in the Ninth Circuit from having to follow that court's jurisprudence, but wouldn't the Twelfth Circuit just follow the Eleventh's precedent and adopt all the law from the Ninth Circuit, this requiring en banc hearings every time it wanted to slough off some "liberal" precedent?

For these reasons, I endorse the proposals of the White Commission, named after its chairman, the late Justice Byron White. The Commission proposed splitting the Ninth (and probably eventually the Fifth) Circuit into divisions that would act in the same manner as the current circuit. In the case of an inter-division conflict, the full Ninth Circuit could resolve the issue, but in most cases appeals could go directly to the Supreme Court. The full circuit would act as something of a super en banc panel, then. This measure would allow the splitting of a circuit within a state, thus allowing for more even distribution of caseloads. And while that does open the possibility of the divisions applying different laws within one state, presumably the full circuit and the Supreme Court would be especially ready to resolve those splits, just as the Supreme Court will usually grant cert to resolve disputes between a circuit court and a state court within the circuit. (And, surely litigants would advise the divisions of their sister's decision, and the division panels would be hesitant to create such a division split.) The White Commission solution isn't perfect. But, it has the virtues of (a) allowing for even distribution of caseloads after a split; (b) not creating a one-state circuit; (c) allowing the full Ninth Circuit to maintain its administrative setup and save most of the cost of a circuit split; and (d) creating a precedent (and experiment) for future circuit divisions.

I note that I would change my position if I had a clerkship lined up in the proposed Twelfth Circuit's territory, given that it appears that the headquarters of the Circuit would be in Las Vegas. What happens at oral arguments stays at oral arguments....

UPDATE: Aha! It appears I spoke too soon. Howard links to a Senate bill that would split the Ninth Circuit, but which also provides for the new Twelfth Circuit headquarters to be located in Phoenix. Oh well, I'm sure that will be just as fun for those clerks from places like Fairbanks and Missoula. Phoenix: All the heat of Las Vegas, none of the...well, everything else that makes Vegas Vegas.