Begging the Question

If McCain is Maverick...

2008-09-02T23:16:00.001-04:00

Does that mean Palin is Goose?

Arguing with TAPPED

2008-08-30T22:54:00.005-04:00

Reviving a long defunct post topic. The response over at TAPPED to the Palin pick has generated it's fair share of laughable lines. A small sampling.

"But it lends more credence to the argument that the McCain campaign is a war room masquerading as a campaign. They're not thinking about governing--they're thinking about winning." link

Me: Are you joking? Are you seriously trying to say that Obama wouldn't have picked Jenna Jameson as his VP if it would've given him the best chance of winning? This is politics. Winning has to happen before you can govern. To imply that the Democrats would never stoop to selecting a VP solely because it would help them win is insulting to anyone with a brain.

"She's Reagan with a vagina!" link

Me: Wow, that's mature.

"Barack Obama picked a running mate who can help him govern. The president's job is far too big for any one person to do on his own, so Obama took the first step toward building a first-rate team. John McCain engaged in a cynical stunt aimed at winning the news cycle. It's an incredibly arrogant decision that calls into question whether he really understands the nature of the job he's running for." link

Me: Many things on this one.
1: Obama picked a running mate to help him govern because he needs a running mate to help him govern. McCain doesn't need that help. This is as much a comment on Obama (the presidential nominee) as it is on Palin (the VICE presidential nominee).

2: Democrats have spent the last 8 years decrying the amount of power that Cheney was given in the Bush White House. Now all of a sudden that's the accepted mold. Bullshit.

3: McCain doesn't understand the job he's running for but Obama does? Does anyone believe that? Anyone? Anyone? Bueller? Bueller?

4: Obama preaches about change, and picks a life long Washington insider who has done nothing to change how the city works. McCain talks about change, and picks someone from outside Washington who has tackled corruption in her home state. And McCain is the cynical one?

"If McCain were in his 50s, or even his 60s, or weren’t a cancer survivor, Palin would be a more understandable pick. But given his age and his medical history, picking the single least qualified candidate in the modern history of the presidency and vice-presidency is simply a dangerous decision for the nation..."link

Me: Yeah, because governors and mayors have never, every ascended to the Presidency and done alright. Being a History major, comments from professional journalists that have a blatant disregard for anything past the last 50 years is a little insulting.

"I can't help but be, oh, a little bit skeptical of Republican's sudden interest in the glass ceiling." link

Me: Because Liddy Dole running for President 8 years ago doesn't count as Republicans trying to break the glass ceiling.

"MCCAIN'S SEXIST VP PICK." link

Me: If he picks a highly intelligent and talented women, he's sexist. If he doesn't pick one, he's insensitive to the majority of the voting population. What a wonderful scenario where he can be slammed either way.

"McCain’s selection of Alaska Governor Sarah Palin as his running mate is a triumph of Republican identity politics."link

Me: Translation - "It's no fair when they do it too."

Wasn't the entire Democratic primary one big identity politics-off? What exactly happened to all those highly qualified, experienced Democratic white males in the running? Oh yeah, they finished a distant fifth to the inexperienced woman and African American and dropped out of the race.

Palin-monium (trademark)

2008-08-30T14:00:00.003-04:00

So McCain went with the VP choice I'd been hoping for. Just becaue she was my first pick, I was convinced he was gonna go with someone safe and boring. Milbarge and I have already traded emails on our thoughts on the pick. Maybe the relevant back and forth can be summarized into another post.

For now however, I just wanted to mention that when the pick was announced, it generated an incredible amount of enthusiam at the office where I work. I of course have been reading the emails that get posted in the Corner. But people I've worked with for years that I didn't even know followed politics were talking about what a great pick it was. To a man/woman they were all talking about how much they like Governor (not Mayor, as the Obama campaign would have you believe) Palin. Her politics, her toughness, her story, her family. All of it. This pick has created interest, and actual excitement about the Republican ticket for the first time this election. Excitement that is visible in actual people and not just on the interwebs. The fact that the excitement has to come from the VP and not from any of the large original slate of candidates speaks to what Glenn Reynolds calls the GOP's need to work on their farm system. But the excitement is there none the less.

If she holds up in the debates with Biden, and I think she will, (McCain better have run her through some drills before making the call) then this one pick will have done more to change the election than anything that gone before in this 2 year process. This pick was genius, and not just because it's the one I would have made.

I have signed up on the McCain - Palin website. Only the second time I have done this for a campaign. And if life allows I may be doing some volunteering. This is gonna be fun.

UPDATE: Unsurprisingly, Mark Steyn sums up Palin better than I ever could.

Why Biden is a good choice as Obama's running mate

2008-08-23T04:44:00.003-04:00

He may not be the perfect choice, but pretty good overall, I think. A few thoughts. First, one reason I saw against picking Biden is that it could be spun as an admission that Obama needed shoring up on foreign policy. This selection could be cast as Cheney-esque, in the sense of "Don't panic! A grown-up will be present to chaperone!" Picking Biden shows some humility on Obama's part, some recognition that he isn't the leading expert on everything, or appealing to all voters. The only people who could have done more to send that message were Hillary Clinton and Al Gore, and Obama's not that humble.

Second, how long until the media (and Obamaphiles) start comparing this ticket to another pairing of sitting senators, one fresher and one a fixer? Biden won't deliver Texas, but I don't think the Democrats will shy away from people bringing up JFK and LBJ.

Third, picking Biden makes McCain more likely to go "outside the box." Had Obama chosen a relatively ordinary, less-well known person like Bayh or Kaine, McCain could have taken the safe route with Tim Pawlenty. Now he has to choose someone to match the stature of Joe Biden. Mitt Romney is the most obvious choice, but he brings some risks. However, I think the Biden choice makes McCain at least marginally more likely to pick a stunner like Joe Lieberman or Tom Ridge. My wildest dreams (and Feddie's worst nightmares) include a McCain-Lieberman ticket, so I won't say any more on that, lest I jinx it.

Finally, the McCain camp is already hitting back with lots of quotes from Biden regarding Obama's inexperience and unpreparedness to be president. (It's still not as jarring a flip in support of a former rival as Johnson's of Kennedy or Bush's for Reagan or McCain's for Bush, I'd suggest.) When he is inevitably asked about this, wouldn't the best answer -- the most Biden-esque answer -- be something like, "If he can out-debate me, he's qualified to be president!"

Could Shaquille O'Neal be the next Dick Heller?

2008-08-23T02:48:00.002-04:00

I think Prof. Berman has found a new champion in his quest to see the courts recognize robust Second Amendment rights in the context of federal criminal firearms laws.

A judge in Atlanta has imposed a temporary restraining order on basketball megastar Shaquille O'Neal. A 23-year-old woman alleged that she and (the married) O'Neal had an intimate relationship, but when she ended it, Shaq stalked her by sending threatening emails and making harassing phone calls. The woman says O'Neal sent an email stating "I dnt no who the [expletive] u think u dealin wit u will neva be heard from one phone call is I gotta make now try me. Sho me." More coverage from Deadspin here and AOL's Fanhouse here.

It should be noted at the outset that these are only allegations. The restraining order was granted ex parte and O'Neal has not even been served with it yet, let alone had a chance to appear and contest it. (A hearing is scheduled for September 4.) But after the hearing, the judge could make the restraining order permanent. I confess my ignorance on the law regarding restraining orders, but I would presume a permanent order requires some kind of showing that the allegations are credible and that O'Neal poses a danger to the woman.

But if Shaquille O'Neal finds himself subject to a restraining order, he has some problems (aside from whatever punishment the NBA might impose). O'Neal is famous for having something of a cop fetish, on par with that of Elvis Presley's. O'Neal has been made an honorary officer of several law enforcement agencies (including the U.S. Marshals), has made arrests as a Miami "reserve officer," and participated in the service of a search warrant (albeit on the wrong house) on a suspect in a pornography case. Shaq has made it clear on many occasions that he wants to be a full-time police officer when he retires from basketball.

And therein lies the rub. It almost goes without saying that no wise law enforcement agency would hire a high-profile deputy subject to a restraining order for stalking and threatening a former companion. Indeed, many of Shaq's police pals disassociated themselves from O'Neal after he was caught on video saying some bad words about former teammate Kobe Bryant. If something that innocuous makes police offices leery, imagine how they would react to a restraining order.

But the even more serious consequence for O'Neal would be the impact of federal criminal firearms laws. Tucked away in the federal code is Section 922(g)(8) of Title 18. That provision makes it illegal for anyone under a restraining order to possess a firearm. The order has to be entered after notice and a hearing, so Shaq's wouldn't qualify yet, but if the judge makes it permanent after the upcoming hearing, I think it would fall within section 922(g)(8).

Obviously, O'Neal couldn't be a police officer if he were legally prohibited from possessing firearms. More importantly, it would be a federal crime for him to possess firearms, at any time, ever, for life. (I don't know for sure if Shaq even has a gun now, but I can't say it would shock me if a "reserve officer" who participated in SWAT raids happened to own a gun.)

Now, we may decide that the provision makes sense, and courts might uphold it against a Second Amendment challenge. Notably, however, the Supreme Court's dicta in Heller suggesting the continuing validity of firearm-possession bans on felons and the mentally ill does not include persons subject to restraining orders.

Prof. Berman has questioned several times whether (non-violent) felons like Martha Stewart and Scooter Libby should be permanently stripped of their rights to self-defense in their homes. Shaquille O'Neal could make a similar argument, and he wouldn't even have to be convicted of anything. Yes, he could hire an entourage of bodyguards, but they would be unlikely to sleep in his bedroom, where he might desire a measure of lethal protection. (Ask Sean Taylor.)

I realize there are strong arguments that stalkers and those who threaten violence are exactly the type of people out of whose hands we would want to keep firearms. But if O'Neal were subject to serious penalties for violating the restraining order or contacting the woman, is it also necessary to prohibit him, on pain of federal prison, from possessing a gun even when he's far away from her, and even if he needs it for self-defense in his home?

Even if the answer is "yes," I think it's a worthy debate to have, and O'Neal might be the perfect protagonist. He certainly has a higher favorable rating than your average person under a restraining order. (And, I wouldn't be shocked if his apologists start spreading the notion, regardless of the facts, that this case is about a psycho ex-girlfriend overreacting and denying Shaq his dream of taking down perps.)

Anyway, I will be interested to see how all this plays out. If Shaq still wants to be a police officer, I expect him to fight this pretty hard.

Home Sweet Home Home Home Home Home

2008-08-21T19:51:00.003-04:00

Greater Blogistan is buzzing today over John McCain's Kinsley gaffe in an interview with Politico. When asked how many houses he (and his heiress wife) own, McCain replied, "I think -- I'll have my staff get to you." It appears he has seven homes.

All the political blogs, and a nice chunk of the mainstream press, is covering this, but I've especially enjoyed the alternative takes from NRO's The Corner (see here and here for example) and The New Republic's Plank and Stump blogs.

The conservatives are defending McCain mainly by pointing out that Barack Obama is wealthy and that there was some shadowy business involved in the purchase of Obama's home. It's hypocritical, they say, for Democrats to chide McCain for being elitist when their ranks include the likes of Ted Kennedy. Moreover, they assert, the Democrats will get no traction out of such populist class warfare. But this is a spectacular case of missing the point. NRO's Jonah Goldberg, particularly, has been way wrong about this (see here and here and here for starters).

Goldberg's defense is here, and it makes me worry that a lot of liberals (at least the ones who read The Corner) are missing the point, too. Jonah says that the liberals' have written him, and their argument actually is that McCain's multiple homes make him "out of touch" with the working man. Goldberg concedes that they may gain some ground with this one, akin to the first President Bush's famous experience with the grocery store checkout scanner. Goldberg's basic defense is that the ones who are really out of touch are the cultural elite, predominantly liberal, as opposed to the economically elite, including the McCains.

(Oh, and the McCain's campaign's response is pricelessly lame. After noting that Obama lives in "a frickin' mansion," as if the McCains' home swere hovels, his spokesman said, "This is a guy who lived in one house for five-and-a-half years -- in prison." Yes, and then he lived in one house for seven or eight years before dumping his wife to marry the heiress and buy more houses.)

But all this caused enough forehead-slapping, "arrggh"-venting frustration that I felt compelled to have to spell out what the point really is. It's not that McCain has a lot of houses. The point is that McCain doesn't even know how many houses he owns! That's bad for McCain even if the answer is a Unabomber shack and an outhouse. How are the Cornerites and their ilk missing this? The Obama campaign press release notes more than a dozen times that the campaign surrogates will discuss at various events "McCain losing track of how many homes he owns."

This post from Eve Fairbanks at TNR's Stump notes that this adds fuel to the McCain-is-old-and-confused meme. That's true, and that's probably where the late night jokes are going to go, with the wealth aspect tossed in. ("McCain also said he couldn't remember whether his toilets are gold or platinum! And then he said he always forgets which yacht is his at the marina!") The point here -- and the part of all this that will resonate -- is that it's one thing to be rich; it's another thing to be so rich (and addled) that you forget how many houses you own.

I just have a feeling this will stick to McCain. The only thing that would make it worse is if there had been video showing his confusion. After the zeitgeist gels around the rich+confused notion, how will McCain respond? There are lots of defenses (as if there is anything necessarily blameworthy) to being wealthy and owning lots of property. That's what McCain and his supporters are trotting out now. But what defense is there to not even knowing how many homes you own? After admitting to Politico that he didn't know the number, McCain said, "It's condominiums where -- I'll have them [his staff] get to you." Without tracking down his real estate holdings, I wonder if McCain is suggesting that a condo is leased or held by a trust or in some way not owned outright in fee simple by the McCains. Would Mr. Straight Talk McCain really argue that it all depends on what the meaning of the word "own" is?

Prediction: This may not cost McCain the election, and next year we may be joking that he forgets how many White Houses there are. But this will have legs. It's just too easy a target, too rich for lampooning, and too difficult to defend. And also, even if this story dies down a little this weekend, after Obama picks his running mate, it will re-gain some traction next week, when I'm sure it will be mentioned a hundred times during the Democratic convention, and more importantly, when Jay Leno returns to the air after the Olympics end. Leno's probably already written twenty solid minutes on this. And he can have my yacht joke for free.

UPDATE: A few new links. I think Prof. Althouse misses the point. Marc Ambinder gets it. Matthew Yglesias does the legwork to actually count the McCains' houses (it's complicated because some appear to be rental property).

And, here is the audio of the statement during the Politico interview. McCain can't pinpoint it, but he doesn't sound befuddled or anything. Video probably would have helped him, actually. Still, I stand by my analysis. I don't think his defense will be very compelling if it amounts to "I'm not as confused as my words make me sound!"

McCain v. Kaine?

2008-08-18T22:35:00.002-04:00

Well, the veepstakes are heating up, and everyone with an electoral college map and a congressional directory is making predictions. (Mine, from November, are comically wrong, but I'll save the laughs for those willing to put in the effort to find that post.) The buzz this week on the Democratic vice-presidential nominee seems to be focused on Delaware Sen. Joe Biden, just as it was centered on Indiana Sen. Evan Bayh last week, and Virginia Gov. Tim Kaine the week before that.

As a native of Virginia, I took a little interest in the Kaine boomlet. I think there are decent arguments on his behalf, and decent arguments against him. And, ultimately, I don't think he'll be the choice. But I did want to comment on one argument against Kaine that I think shouldn't be a major consideration: the fact that picking him will turn the Virginia governorship over to a Republican.

Virginia does not elect a ticket; its Governor, Lt. Governor, and Attorney General all run separately. In 2005, when Kaine was elected, the GOP took the other two spots. Bill Bolling was elected Lt. Gov., and Bob McDonnell won the A.G. spot. So, if Kaine did leave office, Bolling would indeed take over. But there are a couple of noteworthy quirks to all this.

First, Virginia's governors cannot run for re-election. They are limited to one (consecutive) term. So Kaine's tenure would be up in 2009 anyway. The other offices are not term-limited. The consensus seems to be that the GOP will coalesce around McDonnell as the 2009 gubernatorial nominee, with Bolling running for another term as Lt. Gov. (and probably setting himself up for nomination in 2013).

The other big quirk is that Virginia attorneys general have, for decades, followed a tradition of resigning when they run for another office, to minimize claims of partisanship in the AG's office. I don't think that's usually necessary (or, if it is necessary, probably not sufficient), but that's neither here nor there. It is what it is.

But what this could mean is that, if Kaine leaves office, Virginians could see the strange circumstance of the incumbent Governor (Bolling) running for the lesser office of Lt. Governor, and the Lt. Gov. and AG spots vacant, one because of elevation and the other because of resignation. (Technically, some placeholder would be named AG, but that person is usually an unknown without a statewide constituency. I think the Lt. Gov. position stays open, or is effectively filled by a Senate President Pro Tem or something, but I'm not sure. The point is, the officeholders won't look anything like the ones voters elected in 2005.)

It might be amusing to see Barack Obama pick Kaine, just to see how all this would effect Virginia politics. Plus, Kaine may decide the ship is sinking and it's time to bail out. But given Kaine's closeness to Obama, and the fact that he won't have another job come November 2009, I fully expect to see Kaine take some kind of position in an Obama administration, should Obama win this fall.

The natural fit for Kaine, a former urban mayor and housing lawyer, would be H.U.D. Secretary. Assuming Kaine has higher political aspirations, though, he might want some foreign policy experience. (This is the biggest knock against Kaine as a vice-presidential hopeful.) So, I'll throw out another suggestion: Ambassador to Mexico. Kaine is fluent in Spanish and once served as a Catholic missionary in Central America. Kaine could take a role in formulating and implementing Obama's immigration policies. Maybe a few years in Mexico City, then a move to a U.N. post or something. Something like a Bill Richardson path. Or, stick with the domestic experience at H.U.D. and be a Jack Kemp to a future presidential candidate with more foreign policy expertise.

Anyway, the point of all this is that I don't think Virginia's gubernatorial succession provisions should prevent Obama from choosing Kaine, although, as I said, I think there are other arguments against Kaine (or, to put it another way, stronger arguments in favor of other candidates). In any event, I still have a feeling that if Obama wins, he'll end up picking Kaine for another post at some point, so they'll probably have to go through those succession procedures before the scheduled transition anyway.

Vote McCain. Do it for the comedy.

2008-08-16T18:58:00.002-04:00

Two reasons to vote for McCain. Both have comedic implications.

1. Many people out there are more than willing to label any criticism of Obama as racist. This has implications not only for the current campaign, but also for talk shows and comedians across the country. Can you imagine 4 (or 8) years of not being able to criticize, mock, or satire the President for fear of being branded a racist and losing your job? A few weeks back I was watching the Daily Show, and Stewart had a joke on Obama. A good joke. After he delivered it the crowd was silent. He looked at the audience and said "You're allowed to laugh at him." The sad thing is that is seems too many people either won't or are afraid to. I personally don't want a President that can't be mocked every night on TV.

2. Can you imagine the comedy of watching Obama's die-hard supporters if he loses? Four years ago liberals were threatening to leave the country if Kerry lost, and most of them didn't even like him. Before the nomination was clinched, many were threatening to march on Denver if he didn't get the nomination. For all those people who faint in his presence and believe he will create world peace his first full day on job, watching how they handle defeat (my guess: not well) would be comedy gold.

"Boys...it would be a shame to have to kill you now."

2008-08-12T00:03:00.002-04:00

It would be a shame to have to kill you now, because then you wouldn't be able to listen to the like totally awesome Stuck in the '80s podcast episode honoring the Red Scare Movies of the 1980s! Naturally, I was blown away (pictured) by the discussion of Spies Like Us, but also had a lot of fun hearing the gang's reminiscing about the volleyball scene in Top Gun. And I know Sebastian will be pleased to hear that they probably talk about Red Dawn more than any other movie. Anyway, it was a very enjoyable show, and as good an intro as any for the uninitiated. Via the link above, you can listen to this episode or subscribe to the podcast via iTunes.

Legal Miscellany

2008-08-11T23:17:00.003-04:00

1. I wrote here recently about the Sirius-XM satellite radio merger. See also here for more background. But way back here, I wrote about another proposed merger, this one between grocery chains Whole Foods and Wild Oats. Basically, I analogized these two specialty stores to the satellite radio companies, and figured that if these two organic stores could merge and not threaten the greater grocery market, the satellite radio outfits could merge and not cause a blip in the larger music entertainment industry. Anyway, in my original post, I noted that a federal judge had refused the Federal Trade Commission's attempt to block the merger. Well, a couple of weeks ago, the D.C. Circuit reversed that judgment, and sent the case back to the district court. The merger isn't totally kaput (in fact, much of it has already happened), but it's an interesting development in light of the recent approval of the radio merger by the DOJ and FCC. Lots of info about the appeals court decision is available via How Appealing here and here.

2. Going even farther back in time, way back here some four-and-a-half years ago, I wrote about lawsuits seeking to apply the Americans with Disabilities Act to stadium-style movie theaters. Very briefly, the issue (which has divided the courts of appeals) is whether the ADA requires theaters to provide only unobstructed sight lines for wheelchair-bound patrons, or if it requires the theaters to provide seats comparable to those higher up in the "stadium." (Go to the linked post for more background; see also this follow-up with more thoughts.)

Again via the indispensable How Appealing, I see that the Ninth Circuit decided a related case, Miller v. California Speedway Corporation. This one involves the ADA's application to racetracks. A NASCAR fan who is confined to a wheelchair wanted to watch the races, but his view was obstructed by the fans who stood up during the exciting parts of the race. He sought an order applying the ADA to the track in such a way as to require a sight-line for him comparable to standing fans. The Ninth Circuit allowed the suit to proceed. (The movie theater cases were cited in the opinion.)

These suits, at bottom, are about accommodations in public places for those in wheelchairs, and could potentially affect lots of venues. But the legal questions turn on the interpretation of the ADA, the Department of Justice's regulations implementing the Act, and its Manual providing guidance for understanding the regulations, along with the deference courts will give to the Executive agency's interpretations. Basically, an Administrative Law orgy. Don't be surprised to see the Supreme Court take this case, if not during the next term then once the district court reaches a final decision.

Standard Bearer

2008-08-06T23:22:00.002-04:00

I was pleased to see that the U.S. Olympic team elected runner Lopez Lomong to carry the flag during this week's opening ceremonies at the Beijing Games. Lomong was born in Sudan, was a victim of that country's civil war, came to America in 2001, and became a U.S. citizen last year. He's deserving of this honor for a lot of reasons, but I really like the vote as a statement about the suffering in Darfur -- and China's complicity with the Sudanese regime. I imagine some Chinese officials will be squirming when the U.S. delegation marches into the stadium. As his website shows, Lomong is outspoken on the issue. I just hope the television commentators will note the symbolism, too.

12 Angry Minutes

2008-08-05T23:38:00.002-04:00

This post at How Appealing led me to a Houston Chronicle story about the execution of Jose Medellin, whose death sentence led to quite a fuss regarding the International Court of Justice. I didn't really have anything to say about the Medellin case, but a story in the Chronicle's sidebar caught my eye.

This story is about a series of trials in an awful sex abuse case. At the end, the article notes that two co-defendants were convicted (and sentenced to life in prison) after the jury deliberated less than five minutes. Five minutes! That's some efficient work.

How short would a jury "deliberation" have to be to be unworthy of the name? Ordinarily, we don't peer into the "black box" of jury deliberations because we want jurors to speak freely and vote their consciences. To refrain from prying, we have to resort to the legal fiction that juries always follow their instructions. We have to assume, for example, that the jury didn't rely on evidence the judge told it to ignore, and that the jury didn't bring in any outside information, like news articles.

But one of the instructions is also that the jury should not deliberate until the end of the trial. In theory, the jurors' minds should not be made up until after they start deliberating, so they can hear from their fellow jurors and come to a collective decision. It probably takes almost five minutes to elect a foreperson and count the votes. The lawyers probably didn't even have time to leave the courtroom before the jury came back. The jury might as well have not left the box.

Maybe the case really was open and shut, but still, five minutes is damn fast. It would seem clear that the jurors made up their minds before they were supposed to (or they deliberated earlier than they should have). At that point, it's not like the judge could send the jurors back to twiddle their thumbs and pretend to deliberate some more. And I'm sure the prosecutor would say that the evidence was obviously so strong that any jury, no matter how long it was out, would have convicted. But at what point could a jury deliberation be so short that there has to be a remedy? And what would that remedy be -- a mistrial? a new trial? Would double jeopardy prevent a re-trial, the irony being that a defendant whose guilt is so clear the jury didn't even have to deliberate ends up not being convicted? No easy answers, except, apparently, for that jury.

Update on the "Cases" Cases

2008-08-04T22:40:00.002-04:00

Longtime readers know about my little obsession with chronicling all the Supreme Court's "Cases" cases -- that is, Supreme Court opinions styled (either popularly or in the U.S. Reports) as "The [X] Cases," such as The Slaughterhouse Cases or The Civil Rights Cases. Here is my last post on the topic, with my current list.

A few days ago, Prof. Vladeck at PrawfsBlawg considered the matter, and pointed out a couple I hadn't found yet (although he didn't provide cites). Anyway, thanks to Prof. Vladeck for the tips. I think that between my efforts and his, I'm up to twenty-five "Cases" cases. I'll update the full list soon.

Care to collaborate on an article, Prof. Vladeck?

The Solicitor General Cops Out in Kennedy

2008-07-29T00:03:00.001-04:00

I'm disappointed with the approach taken by the Solicitor General's Office in the ongoing Kennedy v. Louisiana child rape death penalty case rehearing matter. For background, see my posts here and here. The short version is that Louisiana sought rehearing, and there was some curiosity about what action the United States, in the form of the Department of Justice and Solicitor General's Office might take. After all, the late-discovered military law permitting the death penalty for child rape means that the Court's holding directly affected a federal law. Having sat out the cert and merits stage, would the SG be drawn in at this late date?

In my first post, I discussed the rule in 28 U.S.C. sec. 2403, which allows the U.S. to intervene in any case in a federal court where the constitutionality of a federal law has been called into question. That provision seemed to fit perfectly what happened in Kennedy. So naturally, I wondered if the SG would seek to intervene in the case (a) to make rehearing more likely, and (b) to defend the federal statute at issue.

In my second post, I discussed the state of Louisiana's rehearing petition. I noted that it specifically cited section 2403 and served a copy of the petition on the SG (although, of course, the SG was already aware of what was going on). The petition seemed to be all but asking the U.S. to wade in.

On Monday, the other shoe dropped. As reported by Lyle Denniston at SCOTUSBlog, the SG has moved for leave to file an amicus brief in support of the rehearing petition (pdf). (Interestingly, the submission seems to have been filed shortly after Monday morning's orders list, making me wonder if the SG thought rehearing would be denied this morning before it had to submit anything.) And while it's certainly notable that the U.S. has finally weighed in on Louisiana's side, I found the motion much more interesting for what it did not say.

To begin with, although the motion is for leave to file an amicus brief at the rehearing stage, and the brief itself is styled as such, at no point does the SG's proposed brief acknowledge that Supreme Court Rule 44.5 clearly states that "The Clerk will not file any brief for an amicus curiae in support of, or in opposition to, a petition for rehearing." (Thanks to Prof. Berman for originally noting this.) In other words, by rule, the Supreme Court Clerk should stamp the SG's submission "return to sender."

In reality, I find it well nigh inconceivable that the Justices won't at least be aware of the SG's position, and they will probably read the proposed brief anyway, even if it's not officially lodged in the record. But I find it troubling, to say the least, that the brief does not ever point out that its very filing is prohibited by rule. I think that a more intellectually honest brief would have addressed Rule 44.5 in some fashion.

To me, what's confusing about all this is that there is a reasonable argument the SG could have made to get around Rule 44.5: It could have, as I noted, moved to intervene in the case. In my original post, I pointed out some reasons why the Court might deny permission to intervene, but at least the SG would be on marginally surer footing -- it would be submitting its brief not as an amicus, but as a party.

The most logical deduction I can draw from all this -- not mentioning either Rule 44.5 or the only way I can see to avoid it -- is that the motion is political posturing, and the SG doesn't really want to get too involved in the case. (And as a bonus, the SG can act as if the Court is obstinately ignoring the facts when it's simply applying its rules in an evenhanded manner.)

Acting Solicitor General Greg Garre should fish or cut bait -- either acknowledge that Rule 44.5 prevents filing an amicus brief and leave it at a press release, or move to intervene and accept the responsibility of being a party to the case.

Proposed Name: XiriuM

2008-07-28T00:53:00.003-04:00

I have written here a few times about my experience with satellite radio and my support for the proposed merger between XM and Sirius. See here and here and here. So naturally I was pleased to hear that the FCC voted 3-2 to approve the merger. I felt like I ought to say something about it, but I couldn't have put it any better than Publius did at Obsidian Wings. So, you know, what he said: merger good.

Supreme Court Inside Baseball

2008-07-23T00:02:00.002-04:00

Via How Appealing, I saw this interesting Legal Times story about a pretty wonky little essay.

The back story: In their Supreme Court expose The Brethren, Bob Woodward and Scott Armstrong relate a story about Flood v. Kuhn. Flood upheld baseball's "reserve clause" over a challenge on antitrust grounds. Anyway, Justice Blackmun's opinion starts out with a lengthy history of baseball and a long list of the game's great players. It's right up there with "Poor Joshua!" among Justice Blackmun's stranger discourses.

In The Brethren, Woodward and Armstrong write that Blackmun originally circulated a draft, got some comments, and added a few names to the list of baseball greats. According to the writers, Justice Thurgood Marshall noted that there were no black ballplayers on the list, so Blackmun added three. The story has persisted for decades as an example of (at best) Blackmun's thoughtlessness about race.

However, as the Legal Times article reports, there is a new essay by Professor Ross Davies calling the Woodward-Armstrong account into question. Davies has extensively studied Justice Blackmun's papers and finds no indication that there was ever an early, all-white list of players circulated to the other Justices. Therefore, Davies asserts, there was nothing for Justice Marshall to criticize, and the story from The Brethren is false. The essay is a quick read and makes a strong case. I'll leave it for Woodward and Armstrong to defend their work as they see fit.

But reading Davies's analysis, I thought of another piece of evidence he could have marshaled, and I'm surprised he didn't mention it. He writes that Blackmun used a baseball encyclopedia in making his list. He established statistical cut-offs to measure greatness and included the players who made the grade. (When the drafts circulated, Blackmun added a few names in response to suggestions or politicking from the other chambers.)

So why doesn't someone find a baseball encyclopedia, reverse-engineer Blackmun's standards, and see if the black players in the final opinion (Jackie Robinson, Satchel Paige, and Roy Campanella) made the initial cut? I'm not enough of a stat geek to pull this off, but a baseball fan/number cruncher should be able to figure out Blackmun's method pretty easily. (In fact, it may be preserved in his papers.)

I suppose if Justice Blackmun's standard was amorphous and hard to pin down, it might be difficult to know why any particular player was included or not. (Apparently Mel Ott's exclusion was a genuine error, but others may be harder to figure out.) But if it's reasonable easy to determine what Blackmun's personal hall of fame voting metric was, I think it would be just as easy to see whether the black players were inside or outside the hallowed group. If they're above the line, and virtually everyone else above the line is listed in Flood, that's strong evidence they were included all along. But if they were below Blackmun's line, and virtually no one else below the line is on the list, either he imposed his own affirmative action, or did so only at Justice Marshall's suggestion.

In any event, retracing Justice Blackmun's steps in compiling the original list would seem like an obvious and manageable task, and would get us a little closer to an answer to the controversy Davies writes about.

Update on the Kennedy child rape case: my intervention post vindicated?

2008-07-22T00:24:00.002-04:00

On Monday, the state of Louisiana filed a rehearing petition in the Supreme Court, asking the Court to reconsider its recent decision in Kennedy v. Louisiana, which outlawed the use of the death penalty for child rapists. SCOTUSBlog has coverage and a link to the petition, here's some coverage from How Appealing, here's a little from the Sex Crimes blog, and Prof. Berman here and here.

I discussed the possibilities of a rehearing petition last week in this post. As everyone expected, the petition focussed on the Court's (and the parties') error in failing to note that military law allows for capital punishment for child rapists. Since a major portion of the Court's opinion was based on what it saw as an evolving national consensus away from authorizing the death penalty in these cases, Louisiana's petition said the recently-enacted federal law undermined the Court's reasoning.

It's a fair argument to make, and the petition also makes another very interesting point. The other rationale for the Court's decision was the majority's independent judgment, apart from whatever the national consensus is, that the death penalty is simply a disproportionate punishment for child rape. As the state's petition asks, if the consensus argument is invalidated, is the proportionality holding enough to support the Court's decision? To be sure, it would be if the Court said so, but the petition points out that a straight proportionality holding, without consideration of national consensus, would be a sharp departure from recent Eighth Amendment jurisprudence. And it's probably too big a step to take without briefing and argument.

In the end, I doubt that will be enough to get the petition granted. But I took a special interest in one small part of the petition. In my post last week, I suggested that the Court's decision, apparently striking down a federal law as unconstitutional, gave the United States a right to intervene in the case pursuant to 28 U.S.C. sec. 2403. In the petition, Louisiana specifically cited section 2403 in noting that it served the petition on the Solicitor General, and asked the Court to request the views of the S.G.'s office. The petition didn't explicitly mention intervention, and ultimately, that's the S.G.'s call. And, certainly, I know I'm not the only person to think of this. But I do feel somewhat vindicated in thinking I wasn't completely crazy.

So, anyway, now the ball's in the Court's...uh, court. Stay tuned.

50 Book Challenge: How the States Got Their Shapes

2008-07-20T23:34:00.002-04:00

How the States Got Their Shapes by Mark Stein (Amazon, B&N, Powell's). Okay, I'll admit it: I'm a geography nerd. When I was in junior high, I went to the state geography bee sponsored by National Geographic. I didn't get very far, and I was nowhere near the national finals with Alex Trebek. But I was nerdy enough to get my bona fides. So, as you can imagine, this book appealed to me.

How the States Got Their Shapes is exactly what the title promises. It has chapters for every state and the District of Columbia. Stein describes the compromises and controversies leading to the boundaries we see on the map today. Even a pretty obvious state like Hawaii gets a whole chapter (mostly on why certain islands in the vicinity are or aren't included in the state). The more oddly-shaped states get the full treatment, and soon you'll be able to explain why Connecticut has a panhandle and why Michigan has that non-contiguous Upper Peninsula. I was surprised to learn how many borders prompted skirmishes between settlers, and not just the famous Kansas-Missouri one. And you'll find out how just how often crooked borders are the result of nothing more significant than bad surveying (hint: very).

Stein had me hooked with his introductory chapter entitled "DON'T SKIP THIS." And it's good advice. That chapter discusses the big boundary events in American history -- the Treaty of Paris, the Louisiana Purchase, the Mexican War, the Missouri Compromise, etc. When the U.S. acquired new territory, it had to decide how to carve it into states. Stein makes a good case that, very often, those designs were based on commendable Congressional foresight. There's a reason state pairs like Alabama/Mississippi and Arizona/New Mexico are so similar in size (not to mention North and South Dakota). Despite, or maybe because, the original colonies were so dissimilar in size, thanks to royal grants, religious exclusion, and political power, Congress made a concerted effort to give equal size to new states, to the extent possible. Exceptions like Texas and California are truly exceptions. It's pretty remarkable how successful legislators were in their efforts -- as demonstrated by the number of western states that are precisely seven degrees of longitude wide or three or four degrees of latitude high.

That reliance on longitude and latitude is understandable, given the available technology. But it makes me wonder what the states would look like if they were being drawn up from scratch in the modern age. I suppose they would look like our gerrymandered election districts. Faced with that gruesome image, I'm just fine with those boring square states we have.

This book could have been written very differently, with lots of discussion of various Congressional hearings or the efforts by many states to grab a little more land. Stein provides a bibliography, so I suppose that kind of information is out there if you want to track it down. I do wish there had been some kind of index or timeline so one could read the book chronologically, but Stein also provides many cross-references in the individual chapters, so you can peek ahead to Wisconsin while you're reading about Minnesota. But the essentially random nature of the alphabetical approach suits the reader who wants to jump around.

Stein's book is a fun read for grown-up geography nerds like me, and also accessible enough for the junior high class trying to pick a winner of the school geography bee. Chock full of facts, highly interesting, certainly recommended for anyone who ever looked at a map and wondered, indeed, How the States Got Their Shapes.

(Previous 50 Book Challenge reviews)

Suicide is Painless...and Delicious

2008-07-12T22:23:00.002-04:00

Back when I was in law school, my group of friends would go to lunch together pretty regularly, and we were always on the lookout for a good barbecue joint. One of the guys had a theory that you could tell how good the barbecue was by examining how "human" the pig in the restaurant's logo was acting. I remember one picture of a pig driving a tank, complete with helmet and everything. Now that's pretty human. We concluded, after much study, that the most human thing a pig could be doing in a bbq logo is cooking a pig. That makes sense, right?

Well, maybe we were on to something. Via Jeff from Side Salad's day job blog, The Stew, the exceedingly creepy website Suicide Food. In their words, it contains "any depiction of animals that act as though they wish to be consumed." It's kind of amazing how common this motif is. Enjoy, but ask yourself if this is what we have to stoop to so that we're able to eat those cute but tasty animals.

My favorite image:
As a bonus, a classic "SNL" commercial for "Cluckin' Chicken" that fits perfectly with this theme.

Could (Will?) the United States Intervene in Kennedy v. Louisiana?

2008-07-10T00:02:00.003-04:00

One of the most talked-about and controversial opinions from the just-ended Supreme Court term was Kennedy v. Louisiana, which held that the Eighth Amendment bars the execution of those convicted of child rape. One of the reasons for the Court's decision was what it concluded was a consensus of national opinion against the appropriateness of such executions. Included in this survey was the statement that federal law did not provide for the death penalty in child rape cases. But it turns out that the Uniform Code of Military Justice does allow for the death penalty for child rapers in the military, and that law was passed by Congress just a few years ago.

The United States was not a party to the case, and did not file an amicus brief, and no one caught this provision of the military code. The Justice Department apologized for missing the point. For more coverage and analysis, see SCOTUSBlog here, some posts at Volokh here, the Co-Op here, and from Prof. Berman here.

Louisiana is planning to petition for rehearing, and the Washington Post supports that effort (even though it agrees with the outcome of the case). Rehearings are very rarely granted by the Supreme Court, and most people agree that the existence of a never-used authorization in the military justice code won't affect the Kennedy majority's decision, even if it rehears the case and revises its opinion.

Prof. Berman notes that Supreme Court rules disallow the filing of amicus briefs at the rehearing stage (and that makes sense). But does that mean that the DOJ can do nothing besides offer its press release?

I think the United States is able to intervene as a party to the case.

Title 28, Section 2403(a), of the U.S. Code provides for intervention:

In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

Let's break this down a little.

First, the Supreme Court is "a court of the United States." See 28 U.S.C. sec. 451.

Second, the provision in the UCMJ was passed via an Act of Congress, the National Defense Authorization Act for Fiscal Year 2006.

Third, although the DOJ did not quite admit the UCMJ provision was now a dead letter in its statement regarding the missing cite in Kennedy, it seems clear that the constitutionality of the federal law has clearly been "drawn into question," at the very least.

So, the Supreme Court should, on its own, notify the Attorney General of the precariousness of the federal law. Of course, if it had known it was calling the law into question, presumably it would have mentioned it in the opinion! Still, I think we can assume the A.G. knows about the issue by now.

Therefore, if it wants to, the DOJ can intervene in the case, and the Supreme Court is required to allow it ("shall permit"). It seems as if, at a minimum, intervention would allow the DOJ to submit a brief on the issue.

But the notable element here is that intervention is not amicus status; when the U.S. intervenes under Section 2403, it has all the rights of a party to the case -- including, I imagine, the right to petition for rehearing.

A few related thoughts. I suppose it's possible that, if the DOJ tried to intervene now, the Court could say it's too late. Although the intervention statute does not contain a time limit, I doubt it would be read to trump jurisdictional rules. The statute says that the right to intervene is otherwise "subject to the applicable provisions of law." The U.S. couldn't intervene after an appeal period has run and file an untimely notice of appeal and re-animate the case, for example. The U.S. can't intervene in a case that's final.

I don't know if the Court would consider the rehearing stage too late, when the DOJ could have intervened at the cert stage. It could be deemed to have waived its right to intervene by not invoking it at the earliest opportunity. Maybe the equitable doctrine of laches would apply, if the Court felt the U.S. "slept on its rights." In any event, I'm not certain the U.S. would be allowed to intervene at this late date, despite the "shall permit" language of the statute. But I think the best reading of the statute would allow for intervention here.

(A wonky bit of an aside here, to note that the cert stage actually was the earliest time the U.S. could have intervened under Section 2403. Prior to that point, the case was not in "a court of the United States" -- it was in state court. I don't know if Louisiana law allows for federal intervention. If it does, the U.S. could have jumped in sooner, but it wouldn't have been pursuant to federal law. I can muse about all kinds of messes that might arise if, say, the U.S. wanted to initiate action in federal court, for example under the Declaratory Judgment Act, or Rooker-Feldman, or collateral estoppel, but I'll leave that for someone's Federal Courts final exam.)

Finally, the possibility of intervention here puts the DOJ and the Solicitor General's Office in tight spots. Certainly the most likely outcome, whether the U.S. intervenes or not, is that the Court will deny rehearing without comment. The next-most-likely outcome is granting rehearing for the purpose of editing the opinion, but without making any substantive change to the outcome. I would wager that the prospect of the Court even granting full briefing on the significance of the UCMJ provision is exceedingly remote, and I'll eat my shoe if the Court flips the outcome of the case.

So, the SG would be in the awkward position of simultaneously muscling into an essentially final case while admitting it screwed up, all in the service of an almost certainly losing cause. Not enviable. And so my prediction is that the United States will not seek to intervene and file for rehearing.

Ultimately, I think that's a defensible position. The interest of the federal government here is probably not as great as the interests of the states. The DOJ has limited resources, especially considering that the SG's Office is currently a little short-handed. The U.S. does not intervene (or even file amicus briefs) in every case it could; there's nothing wrong with picking one's battles. But this is an election year, and there is also a political component to all this, as Prof. Berman highlights. Would not intervening amount to acquiescing to the Court's opinion? Is not intervening tantamount to agreeing the Court was right?

If Solicitor General nominee Greg Garre gets a confirmation hearing, I wonder if any Senators will ask him why the U.S. didn't intervene in Kennedy, especially if he states that he disagreed with the decision.

50 Book Challenge: Catching Up

2008-07-07T00:02:00.000-04:00

I decided my reviews would never catch up with my reading if I forced myself to do full reviews of the last few books I read. So, herewith, a few thoughts on the following books. If you want to know more about any of them ask away in the comments.

11. Money Shot by Christa Faust. This is from the "Hard Case Crime" pulp novel series. I had read one or two others, and this one was the most enjoyable yet. A former porn star turned talent director is coaxed into one last shoot, but of course it turns out to be a double-cross and the start of a deadly cat-and-mouse. Shorter: If Jackie Brown had been about porn. Fun.

12. The King of Lies by John Hart. Very good. A struggling Southern lawyer is suspected when his father (a successful Southern lawyer) turns up dead. The mystery plot is well-done, but what really makes the book a stand-out is the character development and exploration of the family secrets that have led the characters to this point. Compares very favorably with the classic of this genre, Scott Turow's Presumed Innocent. I'm looking forward to reading Hart's follow-up Down River.

13. Criminal Paradise by Steven M. Thomas. Pleasant beach reading. Another minor-caper-turns-into-major-one story. The (anti)hero is likable, and the book is useful for a few tips on breaking and entering. Not essential reading, but worth waiting for the paperback and reading on an airplane sometime.

14. Class 11: My Story Inside the CIA's First Post-9/11 Spy Class by T.J. Waters. I wanted to read this one in conjunction with Legacy of Ashes. I was curious about the insider's perspective. We don't get a lot of big picture thinking, aside from how badly the recruits personally want to kill bin Laden. Some interesting tidbits about training on "The Farm," but of course a lot of details are classified. Skippable. Only worth reading if you're interested in joining the CIA and want to convince yourself it's the right decision, or if you're already in the CIA and want to read a love letter.

15. The Fortune Cookie Chronicles: Adventures in the World of Chinese Food by Jennifer 8. Lee. Don't read on an empty stomach. Or read a chapter and get hungry for another in an hour. I could go on all day. Actually, it was enjoyable and edifying book. It's puffed up a little by Lee's search for the "greatest Chinese restaurant in the world," but still worth it. I especially enjoyed the journey to the real General Tso's birthplace. There are meatier chapters on human smuggling and immigration (and migration, like when a Chinese family from New York takes over a restaurant in rural Georgia). The book is tied together by Lee's search for the origin of the fortune cookie. Spoiler: it's not Chinese.

(Previous 50 Book Challenge reviews)

50 Book Challenge: Legacy of Ashes

2008-07-06T22:54:00.000-04:00

Legacy of Ashes: The History of the CIA by Tim Weiner (Amazon, B&N, Powell's). Easily one of the best books I have ever read. This is a magisterial study of the CIA, from its birth in the WWII secret services to its post-September 11 demise as the intelligence agencies were melded together. Along the way, we learn of more failures than successes, but both are woven into America's post-war history deftly.

I'll get a minor flaw out of the way. Weiner provides a ton of detail about every little coup and insurgency the CIA participated in during the '50s and '60s. Most of that reporting was based on newly-declassified documents. I wondered what he was going to do with recent history, since the truth behind those events are still walled off. To some extent, he gets around that with lots of interviews (on the record) with relevant actors. But, aside from a highlight with the Iran-Contra mess, the post-Watergate events seemed a tad hurried over.

But in a book this massive and well-researched, that's really a minor quibble. A part of the reason for it is that the Agency was so lost right after the Cold War, and was clearly unsure of its mission. And there's plenty of meat in the rest of the sixty years covered by Legacy of Ashes (a prophetic phrase from President Eisenhower). The most compelling part of the work is probably the CIA's many attempts to overthrow Fidel Castro, and the possible link between those activities and Cuban retaliation in the form of the assassination of President Kennedy. Spooky stuff.

The Agency's efforts in the Middle East receive much attention from Weiner, deservedly so. It's amazing how much history repeated itself. But that's really the main theme of the book -- the CIA's utter inability to learn, either about its targets or from its mistakes. (And oh my goodness, how many times did the Soviets know exactly what we were doing?!) Ultimately, it's depressing. But it's absolutely essential reading for anyone interested in American history, politics, or intelligence.

(Previous 50 Book Challenge reviews)

I left Rome [Georgia], and landed in Brussels

2008-07-02T22:56:00.003-04:00

There's a little bit of buzz over this story about a purported class action suit filed by a lawyer who was rejected from the DOJ Honors Program, allegedly because of political bias. See thoughts from David Lat at ATL here, and Orin Kerr at Volokh here.

The basics are that the plaintiff, a graduate of the University of Georgia law school, interned at the DOJ and applied for the Honors Program upon graduating. Alas, he wasn't selected. His lawyer says he "had every reason to believe" he would get the job, and was instead "disgracefully deprived of the opportunity to do what he had planned to do." Oh, well, we can't have that. Heaven forbid someone doesn't get the job he expects, especially if it's a prestigious and competitive position.

I have not taken the time to dive into the comments to those posts linked above, but I doubt I'm the first to note one particular absurdity of this suit. The plaintiff states that he was unable to find a job in the U.S. and had to settle in Belgium. He must have really put all his eggs in the DOJ basket! Did he not even apply for other jobs?

I've had a little bit of experience with employment litigation, and I have an idea where this is going. The DOJ (if it has to answer this pleading) is probably going to lay out every reason this guy wasn't hired, and I doubt he'll look better once all that is public record. If this person actually tried to get other jobs out of law school (and UGA is a fine law school, very well-respected especially in the southeast), and couldn't, chances are there is something wrong enough with him or his record that was plenty of reason for DOJ not to hire him. Maybe politics really did play a role. But it's not like every legal employer in America was making its decisions based on political party preference. There's something fishy if he couldn't get any job at all anywhere in the country.

(Title of this post adapted from Bob Dylan's classic "When I Paint My Masterpiece.")

Huzzah!

2008-07-02T22:19:00.000-04:00

Happy Independence Day!

Next, Coco Chanel finds coca in her cocoa butter!

2008-07-01T23:00:00.003-04:00

I got these new granola bars recently because the store was out of the ones I usually get. I actually tend to have several different kinds, but I often get these Quaker Chewy chocolate chunk ones that are low fat and only 90 calories. But they didn't have those, so I got the regular chocolate chunk, which I think are 100 calories and probably not a lot worse for you. But when I bit into one, I tasted coconut! Argh! I am not a fan of coconut.

I know it's a fairly common filler ingredient for chocolate things. Or maybe they think it accentuates the taste or something. If I recall, Chips Ahoy! cookies are another big offender. I guess the connection between the cocoa and the coconut shouldn't surprise me, and I don't think I have a naturally sophisticated palate, but I can always taste coconut in these things really distinctly. Sure enough, there it was on the label. And I had an older low fat one in my drawer at work, and it didn't have coconut. So I'm going to stick with those. Anyway, coconut -- bleh!

Actually, now that I think about it, is there a connection between cocoa and coconuts? Where's a botanist when you need one?! And why do they put coconut in chocolatey foods?