It's official. Alito is the nominee.

Might the trial lawyers consider him their enemy in light of his previous rulings?

I haven't researched this, but in light of my last post, I hope so.

MORE: Alito might be a victory for free speech, which would doom McCain-Feingold:

Alito is noted for his fidelity to the First Amendment protections for freedom of speech—which may make the recent 5-4 evisceration of those protections by the Court in McConnell v. FEC at issue

UPDATE: Michelle Malkin has a huge roundup.

And Glenn had one before the nomination was official.

Every once in a while, I'll see something which triggers what Leon Kass would probably call my "repugnance" factor. The occasion for my outburst of repugnance is a jury verdict clearing the way for "$1.8 billion for physical and emotional pain and suffering and loss of business and wages" for victims of the 1993 World Trade Center bombing. The legal "reasoning" is that the New York Port Authority is more legally at fault than the terrorists who committed the act:

In what some legal experts characterized as a startling footnote to history, the jury found that the Port Authority was 68 percent at fault for allowing the bombing to occur, while the terrorists who carried out the bombing were 32 percent responsible.

"It's really hard to get your mind around," said Mark Geistfeld, a law professor at New York University. "It's more of a sociological question than it is a legal question. It's their way of expressing their outrage about the way in which the Port Authority conducted itself."

The same verdict, Mr. Geistfeld said, might not have been possible 12 years ago, in the immediate aftermath of the 1993 attack, when Americans were less attuned to the reality of terrorism, and the twin towers were still standing.

In practice, any apportionment of fault of 51 percent or more has the same outcome - making the defendant liable for 100 percent of damages that may be awarded in connection with the 1993 bombing.

Part of my outrage is that I used to work as a personal injury lawyer, and I understand the legal theory and the legal thinking behind such an atrocious result.

The law operates in a moral vacuum -- totally devoid of common sense. That's because the lawyers are little more than emotional mouthpieces for their clients, and they have a mindless creature called "the law" behind them. This thing that we call "the law" is constantly "evolving" -- especially the tort law variety -- and the result is that theories of liability are continually expanding, and the size of awards is constantly escalating. This has produced a class of parasitic multimillionaires who can then either use their millions to run for office, fund politicians who will do their bidding, set up and fund so-called "think tanks," and even create new media outlets to malign anyone threatening the basis of their wealth.

I consider them parasitic scum, I think their wealth is ill-gotten gain, and hence my moral repugnance. Whether their legal theories are correct, of course, depends on how many courts of appeals will do their bidding, and how many politicians are too cowed to do anything about them.

My distaste for these people is grounded in guilt heightened by deep feelings of personal hypocrisy, for I once belonged to their class. I used to argue for ever-larger verdicts, and ever-expanded theories of tort liability, even though I knew in my heart that this was wrong. And my heart echoed what was in my head, for as a libertarian I never agreed with the theories I promoted. I rationalized it as a "career," and as a way to "make a living." Had it not been for AIDS coming along and destroying my social network, I might still be doing something I consider morally abhorrent.

There's no rational connection between losing friends to AIDS and rejecting the legal system, but what AIDS did was trigger something best characterized as an "epiphanic depression" -- in which I found that I could not participate in things which seemed to have no ultimate purpose than to make the world a worse place. Certainly not while the people around me were dying. I suppose I could have had the opposite reaction, and looked for defendants to sue on expanded theories of AIDS liability, but I had just had it with blaming people, perhaps because I felt so overdosed on personal guilt.

Anyway, the guilt made me reject my class -- the personal injury lawyer class.

That, however, did nothing to stop the relentless legal theorizing which leads to results like saying New York is twice as guilty as the terrorists. There is no way I or anyone else can stop these people, because they are simply drawn to the money the way cockroaches are drawn to kitchen garbage, and the legal theories are a product of highly motivated, highly intelligent minds. They know how to appeal to human emotions of the juries, and enough of them are judges and politicians that no result is too absurd. Above all, they are champions of the sacrosanct "victim." The "little guy," whose life has been ruined and who needs money. And the large, nameless, faceless entities have it. And the romanticized, heroic jury is there to "do justice" -- usually to take from the nameless "deep pocket" (who has plenty of money anyway) and give to the victim. It's applied populism at work, and the fuel is human emotion.

As to the legal theories, they are there, and unfortunately (much to my horror), they are quite logical. Back to the Port Authority verdict:

Stephen Gillers, another NYU law professor, compared the verdict to a landlord-tenant case in which a tenant was mugged in a dark elevator. "From a moral perspective, you're going to blame the mugger," he said. "From a legal perspective, the law says, Is there anything the landlord could have done to prevent this?"

It may sound cruel, but I prefer blaming the mugger -- theory be damned.

Thoughts like these, of course, threaten the livelihood of people who see themselves as doing good, of working hard to make the world a better place. But should their view of themselves be controlling over the moral issue of whether they're in fact making the world a worse place? A few years ago, I took my mandatory "Continuing Legal Education" course, and happened to spend some time hanging out with some typical specimens of the creature I once was. They were nice, intelligent, motivated young men, who wanted two things:

In an unforgettable moment (because it reminded me of a classic movie line), PI lawyer A said to PI lawyer B,

"The big money is in toxics!"

And I am sure it is.

"Toxics" includes such things as discovering that a building has a layer of lead paint buried somewhere, that some child might have eaten some of it, and that some owner somewhere in the title chain has a large enough insurance policy to motivate one of these well-meaning neo-Robin Hoods to charge after the evil company in the name of another victim.

Anyway, the guys who were talking toxics were nice, and I hung out with them. What would have been the point of spoiling their day by telling them they're making the world a worse place? I wouldn't have felt any better, they wouldn't have felt any better, it wouldn't have caused them to abandon their profession, and besides, from where the hell would I derive any moral authority at all? I don't claim to have any, nor should I.

And really, just because I don't like the system they're caught up in does not mean I wish them ill or dislike them individually. (As Eisenhower once said about Southern segregationists, "These are not bad people.")

Herein lies the rub: it may be a terrible thing to say, but I think that people who believe they're doing good when they're not are far more sinister than ordinary rogues and villains.

So why did I just say they are nice guys?

Hmmmm..... Surely no one today would say that about Southern segregationists. (And quite possibly few would say it about trial lawyers.)

Maybe another illustration will make this clearer. While no one will defend a criminal who might steal $100.00 from you either by force or by fraud, suppose we give a man a badge, a gun, radar equipment, and an unmarked car. And suppose we tell him we'll pay him a salary if he pulls over and extorts $100.00 from anyone he can catch driving faster than 55 miles per hour on highways on which the average speed is 75 mph. From a purely moral perspective, most of his victims are people committing no crime more serious than driving to or from work. In another age, at another time, the extortionist would be seen as a criminal. A highwayman, even. But despite the fact that he spends his time making a living this way, we tell him that he's "helping society." Over time, he will come to believe it himself -- even going so far as to tell people that they were "endangering others" by exceeding an absurdly low speed limit put in place for the sole purpose of gathering revenue. Most of these cops are in fact nice guys, and good people -- as are the lawyers I recklessly and insensitively called "parasitic scum."

(Besides, some of my best friends . . .)

The harsh realities of such contradictions only make it worse.

MORE: I don't mean to sound all gloomy and doomy. It just might be possible that we'll get a Supreme Court justice who believes in saying "No!" to the endless expansion of theories of liability.

As it's just about that time of the year, this afternoon I spent a couple of hours in Philadelphia's historic Laurel Hill Cemetery.

A downhill view of the Schuylkill River:

Group of graves:

A very creative tomb:

And a small gravestone I couldn't identify:

In the spirit of Sunday, I thought I'd respond to a thoughtful comment -- to this post -- left by Enrique Cardova. Here's the comment:

"This is another example of what I said earlier -- that "attempts to discourage something can nonetheless glamorize it just as much attempts to encourage it."

True but the opposite effect often works and works better in the long run. Parents who discourage their children from emulating the promiscous sex, language, clothing and violent behavior advocated in "gangsta" rap or "suicide" rock, no doubt create a "forbidden fruit" effect, but nontheless, such discouragment is quite effective in general (there is no 100% perfection anywhere) in protecting their children from such negatives. In fact, the parent who fails to actively discourage these negatives will soon be a very sad and cash poor parent.

The major buyers of "gangsta" for example are white youth, but at the end of the day, after the irritating music is turned down, most white parents will have effectively applied the brakes to those youths who unwisely and naively "go native". Fears of "glamorization" should not prevent strong action being taken to discourage negative behavior. In fact that is one of the problems of American culture today- a cowardice that too often wants the easy way out, fears being accused of being "judgemental," and fails to stand up and speak up, unfashionable as it may be.

As for homosexuality, its proponents and apologists conveniently duck the clear word and moral principle of the scriptures to justify themselves. The comment about Leviticus and shellfish by Triticale, is typical evasion. The Mosaic laws primarily have a moral bearing, although there is a practical public health aspect as well. The prohibition against shellfish, as against other things, illustrates the moral principle of confining things to their proper sphere- the principle of separation. The same moral principle applies in a deeper way to homosexuality. Marriage for example, is to be confined to man and woman, for that is its proper sphere. There is no "free for all" approved between those of the same sex or between adults and children, craved as these may be by certain people.

The ban on shellfish, as with pork and other foods once deemed unclean was lifted by Christianity (see Acts 10 and 11). Food as such, provided by God was no longer to be despised. However the MORAL PRINCIPLE of separation- the clean from the unclean still remains, convenient as it is to forget it. And in the case of homosexuality, that ban was never lifted by Christianity. In fact homosexuality is again condemned in the New Testament. That condemnation was never lifted. See the verses below showing how again it is condemned. No matter what dodge or "spin" homosexuals or their apologists try, they cannot get around this.

Both as a specific prohibition, or a moral principle, homosexual behavior is condemned as unclean and inappropriate in both the Old and New Testaments. Naturally this is not the message many want to hear, but it is the correct one in the Judeo-Christian tradition, unpalatable as this may be to those bent on what that tradition calls "strange flesh".

Applicable NT verses- too often conveniently forgotten:

see Romans 1: 26: "..gave them up to vile lusts; for both their females changed the natural use into that contrary to nature; and in like manner the males also, leaving the natural use of the female, were inflamed in their lust towards one another; males with males working shame, and receiving in themselves the recompense of their error which was fit.."

or see

1 Timothy 10: "to the impious and sinful, to the unholy and profane, to smiters of fathers and smiters of mothers; to murderers.. sodomites, kidnappers, liars, perjurers; and if any other thing is opposed to sound teaching,"

As the same NT says: "By their fruits, ye shall know them."

The Council of Jerusalem formally released Christians from being bound by the strictures of the Mosaic Law. However, in a compromise, four specific things were prohibited as off limits to Christians:

Bear in mind that this wasn't Jesus speaking, but an early conference of Christian leaders. I don't know how many Christian leaders consider themselves bound by the Council of Jerusalem, but the selective citation of Leviticus -- and the bizarre idea of establishing a "Christian Mosaic State" -- makes me wonder. Assuming Christians are not to fornicate, why does the homosexual variety receive such disproportionate attention?

While the commenter seems to have quoted correctly from words attributed to Paul, whether Paul wanted his opinions translated into laws promulgated by governments is far from clear. Indeed, whether Christians are bound by Paul's thoughts is far from clear, as Paul was only a man, and not even an actual disciple. (Accepting the claim that he met Jesus requires an act of Paulinist faith.)

I have no problem with moral rules, dietary rules, or dress codes, and if I had kids I wouldn't want them carrying on like gangsta rappers either.* My complaint is when the state treats people like children, that's what they'll get. That's the major difference between our free society and those in which the state claims to rule in the name of God. When the mullahs are away, the (adult) children will play. (And the flout the government dress code.)

People who are in need of a moral shepherd with ultimate authority over their lives have every right to seek out, find, and follow one. What violates my sense of freedom is when they decide I must follow theirs.

* Quite parenthetically, things like strict dress codes tend to preempt a child's degeneracy into gangsta rap chic, because (as I've argued before) they provide a "buffer." A child whose idea of rebellion involves not straightening his necktie and neglecting to shine his shoes is a long way from gold medallions and wearing underwear outside his pants.

But if I might think a dress code for kids is a good idea, others might disagree. I have no right to tell other people what to do with their kids, much less tell adults what to wear.

MORE: I almost forgot the the comment's conclusion (or final sentence):

As the same NT says: "By their fruits, ye shall know them."

I agree. This was taken yesterday in New Jersey in the spirit of the season:

(But what do I know about the fruits of others?)

Exciting visit from out of town guest.

Big trip today. Further blogging will probably be late.

Local officials in Lansdowne, PA were kind enough to censor anti-gay activist Michael Marcavage for preaching at them during an open comment portion of their council meeting. This provided him a major opportunity:

The founder of an evangelical Christian group has filed a lawsuit in U.S. District Court against Lansdowne Borough over an incident in which he tried to read from the Bible at a council meeting in July 2004.

Michael Marcavage, founder of Repent America, says in the suit, filed last week in Philadelphia, that his right to free speech was violated when the council president adjourned a meeting while he was reading a passage from the Bible.

When he refused to stop reading, he was evicted and charged with disrupting a public meeting. The charges were later dismissed.

In the suit, he seeks unspecified damages. Marcavage, of Lansdowne, also is seeking a preliminary injunction arguing that he has the right to speak at council meetings without having his speech censored and without being subjected to the threat of arrest, his attorney, Ted Hoppe, said.

Sigh.

This is another example of what I said earlier -- that "attempts to discourage something can nonetheless glamorize it just as much attempts to encourage it."

Marcavage is a pro, and the city council people are amateurs.

As a libertarian, I have an uneasy feeling about this proposed legislation -- which would require private businesses to do what the police aren't allowed to do:

City councilman Darrell Clarke says it’s happening all too frequently. Panhandlers at gas stations, he says, intimidate drivers into letting them pump the gas for a handout:

"As soon as you get out of your car, go pay for your gas, you’re accosted by individuals insisting that they pump your gas, sometimes actually opening up your gas tank and putting the pump in while you’re paying for your gas. I think that is ridiculous."

So Clarke has introduced a bill aimed at stopping this. It would place the responsibility on gas station owners to keep panhandlers away from the pumps or the owners themselves would faces fines up to $100 per incident.

But the street derelicts are a favorite cause (fodder, really) of professional activists who yell and scream about the "rights" of the "homeless" to do precisely such things as hassle people for money. This is deemed their First Amendment right. (And I could easily envision an activist construing a pushy attempt to grab a gas pump as "an attempt to find work.")

Philadelphia has a 10 year plan to end homelessness, and even boasts a "homelessness Czar." According to Philadelphia's Project H.O.M.E. (which I just called on the phone) panhandling is not illegal in Philadelphia, and that organization generally opposes proposed legislation that would "target homeless people."

But I am not at all sure this is a homelessness issue. Hassling people at gas pumps strikes me as an opportunistic way of shaking people down, but I see no reason why it would necessarily be linked to homelessness. Many people assume that people who ask for money are marginal types, and they equate this with homelessness, but I recall a study years ago in Berkeley found that a surprisingly large number of panhandlers actually lived at fixed, identifiable addresses, that many paid rent, and some made plenty of money panhandling.

While I do think gas station owners should police their stations, I'm wondering whether the market approach might not be the best solution. If customers learn that a given station is plagued by itinerant "gas pumpers," they'd be well advised to find another station. What strikes me as a bit unfair is the idea of fining person A for the conduct of person B -- without, apparently even the conduct of person B being illegal.

I mean, if it is to be a crime to allow panhandling at your business, shouldn't the panhandling also be illegal?

Lewis Libby has just been indicted for "making false statements to grand jury."

(Via CNN and Fox News.)

MORE: Glenn's ahead of the game. So are Tom Maguire (who asks "How Covert Was Valerie Plame?") and Roger L. Simon.

Like me, Roger is "still trying to puzzle out the arcane and not so arcane motivations behind the endless Valerie Plame melodrama."

It's almost a labyrinth.

So, so, CIA-like....

UPDATE: The full Indictment (in PDF) can be read here.

(And the PDF of the press release is here.)

UPDATE (3:10 p.m.): Watching Fitzgerald attempt to explain to disapppointed reporters why only perjury and obstruction were charged in the indictment (and not outing the more delicious charge of identity of a covert agent), I was struck by an old, Watergate-vintage expression:

THE COVERUP IS WORSE THAN THE CRIME!

But Tom Maguire said it first, not me!

On the G. Gordon Liddy Show, I just heard WND founder Joseph Farah predict that 4th Circuit Justice Maureen Mahoney will be President Bush's next nominee. From his WND article:

Mahoney is perhaps most famous for representing the University of Michigan before the Supreme Court defending its indefensible affirmative-action program. She wasn't just a hired gun. She really believed in the case. She really believed that government agencies should discriminate against people based on race. She really believed that was constitutional and moral.

She told the university news service: "I'm a Republican, and there's a common misconception that all Republicans oppose affirmative action. I care deeply about the issue."

Mahoney is no stranger to nominations for federal judicial posts. The first President Bush named her to fill a vacancy on the U.S. District Court for the Eastern District of Virginia, but the Senate did not act on her nomination before the end of Bush's term.

She seems to be the favorite of liberal analysts hoping for another stealth Supreme Court nominee – someone along the lines of David Souter or Anthony Kennedy or Sandra Day O'Connor. She was No. 1 on Slate.com's "shortlist" of possible Republican nominees who believe in "moderation."

Oh, and by the way, her long list of clients includes the government of Saudi Arabia.

I'd say she's nearly a shoo-in.

Remember the name: Maureen Mahoney. Remember where you heard it first.

But there's something else worth remembering.

(Or re-remembering.)

While it wasn't quite as fervent a prediction as Farah's, Captain Ed also speculated that Maureen Mahoney would be an ideal "stealth" nominee -- and that was on October 2, before Bush announced Miers. Noting that Mahoney's "conservative outlook seems beyond question," he credits MSNBC for having first added the name to the hopper, and said she'd be an ideal Roberts-style nominee:

If anyone wants to look for a surprise candidate, one that could duplicate many of the same problems for the Democrats that the Roberts nomination created, Maureen Mahoney might just be that nominee.

....

....I still prefer Janice Rogers Brown for the nomination. I just wanted to highlight what I think might provide an interesting choice for Bush if he wants to follow the John Roberts model for the next nominee. Mahoney hasn't received a lot of press attention to this point.

Me, I'm not much of a clairvoyant (and while I'm hoping for Reynolds/Volokh/Barnett/Kozinski I'd settle for Janice Rogers Brown).

Which means that for now I'll stay on the safe side and predict the nominee will either be Maureen Mahoney, or someone else!

Just as a picture is worth a thousand words, I think two predictions are worth a picture, so here's a picture of Maureen Mahoney:

Whether looks count (and whether they should) really ought to be another topic.....

MORE: Edith Jones and Alice Batchelder are favorites of Volokh Conspiracy's Todd Zywicki, whose reasoning makes sense to me. Concludes Zywicki,

If the President decides to appoint a woman, it seems obvious that Jones is head-and-shoulders above the pack, with Batchelder making an excellent choice as well. As far as I can see, there are no other candidates in the same league as these two.

A piece on the fashionability of "prophetable" attire caught my attention recently.

Cambridge, England

If you wish to be a prophet, first you must dress the part. No more silk ties or tasseled loafers. Instead, throw on a wrinkled T-shirt, frayed jeans, and dirty sneakers. You should appear somewhat unkempt, as if combs and showers were only for the unenlightened. When you encounter critics, as all prophets do, dismiss them as idiots. Make sure to pepper your conversation with grandiose predictions and remind others of your genius often, lest they forget. Oh, and if possible, grow a very long beard.

I'm already inclined to sympathize with the misunderstood prophet:

By these measures, Aubrey de Grey is indeed a prophet. The 42-year-old English biogerontologist has made his name by claiming that some people alive right now could live for 1,000 years or longer. Maybe much longer. Growing old is not, in his view, an inevitable consequence of the human condition; rather, it is the result of accumulated damage at the cellular and molecular levels that medical advances will soon be able to prevent — or even reverse — allowing people to go on living pretty much indefinitely. We'll still have to worry about angry bears and falling pianos, but aging, the biggest killer of all, will cease to be a threat. Death, as we know it, will die.

Ms. de Grey taught her husband genetics over the dinner table. She was amazed at how quickly he could absorb the concepts. "Very shortly we were able to have a conversation rather than a tutorial," she says. While talking about her academic career and her relationship, Ms. de Grey is puffing away steadily on an unfiltered Camel. Mr. de Grey would like her to quit, but she's been a smoker since she was a teenager and believes that nicotine is necessary to kick-start her brain. Unlike her husband, Ms. de Grey has no wish to live forever. She has not agreed to be cryogenically frozen when she dies. (Mr. de Grey has, just in case medicine does not advance speedily enough to save him.)

"I don't think anyone would want to thaw me out," she says and smiles, revealing a mouth mostly devoid of teeth.

I like the idea of the prophet's wife not being a follower of the stuff her husband preaches, either. It's elementary in propheteering that every good prophet must be rejected by those closest to him.

This guy just keeps looking better and better -- no matter what they say about him!

And the ad hominem tone just builds and builds:

He also has a talent for drumming up publicity. His eccentricities (the long beard, the thrift-store clothes, the pub crawling) appeal to journalists looking for a colorful feature subject. There is also his willingness — eagerness, in fact — to explain his plan for fighting aging to any reporter with a notebook and time to kill. More publicity, he hopes, will lead to more donations. The donations can then be used to help finance the kinds of research Mr. de Grey believes are most important.

Not every article, however, has taken a gee-whiz tone. In February, Technology Review, which is owned by the Massachusetts Institute of Technology, published an article about Mr. de Grey along with an editorial written by Jason Pontin, the magazine's editor. The article, by Sherwin Nuland, a clinical professor of surgery at Yale University's School of Medicine and the author of How We Die, concluded that Mr. de Grey was "neither a madman nor a bad man" but that his plan "will almost certainly not succeed." And, even if it did, Mr. de Grey "would surely destroy us in attempting to preserve us" because living for such long periods would undermine what it means to be human.

The editorial took a more ad hominem approach. Mr. Pontin wrote that Mr. de Grey "drinks too much beer" and that even though he's just in his early 40s "the signs of decay are strongly marked on his face." He also called the potential social consequences of extending life indefinitely "terrible" and wrote that Mr. de Grey "thinks he is a technological messiah."

The response to the article and the editorial was extraordinary and extremely negative. Mr. Pontin says he has received thousands of e-mail messages, many of them from "enraged" readers. "It was as if I was personally depriving them of the possibility of immortality," he says. The online version of the article has been clicked on nearly a million times, making it by far the most-read article in the history of the magazine.

The question is whether that stuff will prove to be true. Gregory M. Fahy, a biologist and vice president and chief scientific officer of 21st Century Medicine, a biomedical research company, was very skeptical at first. While they still do not agree on everything, Mr. Fahy has been largely won over. And, like Mr. Finkelstein, he respects Mr. de Grey for his courage in the face of ridicule. "If you think you're right, you have to stand up and say what you believe even if people think you're nuts," says Mr. Fahy. "Now, if they prove you're nuts, you have to shut up. But that hasn't happened yet."

(But this post was only about immortal fashion. Life extension is Justin's department....)

Dick Polman thinks that George W. Bush weakened himself by nominating Harriet Miers, and, now that the nomination has been killed by the right wing, that will weaken Bush further:

it's likely that he will find a new nominee who will please the base - a jurist with a reliably conservative track record who would move the court rightward, as Bush has always promised.

Bush could have tapped such a person a month ago. Instead, he picked Miers and spent most of October contending that membership in a Christian evangelical church, a nonexistent paper trail on constitutional issues, a stint on the Texas Lottery Commission, and loyalty to the Bush family were sufficient experience for the highest court.

And for all that effort, he is now politically weaker.

The religious right, having witnessed the surrender on Miers, now feels more emboldened to make demands; as political analyst Morton Kondracke remarked Wednesday on Fox News: "If [Bush] were to pull her now, this would be an indication that he's caving in to the right-wing groups."

At the same time, Senate Democrats and liberal groups may be motivated to fight a conservative nominee with greater resolve, having seen for themselves that Bush is more vulnerable than ever.

As the conservative National Review wrote online yesterday: "Presidential mistakes have consequences that cannot be simply erased. If President Bush now nominates someone whom most conservatives can support, as he should, then Bush and conservatives may, together, win confirmation. But their chances of jointly succeeding were better [a month ago] than they are now. The Democrats will insist that the far Right has forced a nominee beholden to it on a weak president." (Emphasis added.)

80% of the more than 130,000 voters agree with the withdrawal of Miers's nomination.

In the editorial cited by Polman, the NRO, after belittling Bush's apparent weakness ("Gloating would be unseemly" says it all), concludes by going out of its way to hope Bush doesn't to do something which, if done, would be anything but weak:

We do not for a moment believe that the president will pick someone unacceptable to conservatives out of spite.

What's interesting about the NRO editorial is that it simply cannot be squared with what Thomas Sowell said when he contemplated the Miers nomination -- in the face of a weak Senate -- weeks ago:

What is weak is the Republican majority in the Senate.

When it comes to taking on a tough fight with the Senate Democrats over judicial nominations, Senate Majority Leader Bill Frist doesn't really have a majority to lead. Before the President nominated anybody, before he even took the oath of office for his second term, Senator Arlen Specter was already warning him not to nominate anyone who would rile up the Senate. Later, Senator John Warner issued a similar warning. It sounded like a familiar Republican strategy of pre-emptive surrender.

Before we can judge how the President played his hand, we have to consider what kind of hand he had to play. It was a weak hand -- and the weakness was in the Republican Senators.

I don't think it's that easy.

Right now, I think Bush is facing a Scylla-and-Charybdis style threat. One raging whirlpool consists of the angry right wing "base" which tastes blood, and weakness by Bush, and will demand nothing less than total, lockstep, ideological conformity to every last item (perhaps even the fringe items) in their agenda. The other monster is the accusatory left, amplified by the MSM which will cause echoes to resonate in the moderate camp. Trying to steer a course between these monsters is Bush -- not a man known for meekly caving to demands or being unduly influenced by critics.

I disagree those who see Bush as a man fighting to save his "endangered presidency." He hasn't even completed the first year of his entire four year term, and the only thing which can force him out is impeachment (nothing but a fringe idea). (As Glenn opined yesterday, "Since Bush isn't running in 2008 it's not all about him any more.")

Calling him weak does not make him weak, nor does it mean that those making the accusation are strong. But right now, Bush is going to be called weak -- by both sides -- no matter what he does.

It would be counterintuitive and probably dramatic to call it a test of strength, so I won't do that.

But isn't it sometimes a sign of weakness to call someone weak?

Bush can only nominate. Is he the only one whose weakness being tested?

I've heard young would-be scholars dismiss Harold Bloom as an old, conservative dinosaur (they call him Brontosaurus in the title of this interview), but that could hardly be the case. Not the conservative part anyway.

Resolve this:

I have many enemies in the English-speaking world, in and out of universities and the media, because I was politically on the extreme left. Culturally, I totally reject this horrible political correctnes, this hideous notion that people should read and study any work of literature, of the imagination on the basis of the ethnic origin, the agenda, the sexual orientation or skin pigmentation of the writer. That strikes me as real fascism. And I fought against it bitterly from about 1967 till the present – it's a battle I've waged for thirty-seven years and of course I have acquired many enemies in the proces.

With this:

Of course, the United States is in a terrible condition, we have a kind of fascist regime here – I think it's the real truth about it and you can quote me on that. A few years ago, when I was in Barcelona receiving the national prize of Catalonia, I remarked when somebody asked me a question about president George Bush: "He is semiliterate at best, to call him a Fascist would be to flatter him." He has now sufficiently grown in depth that you are no longer flattering him by calling him a Fascist – it is simply a descriptive remark.

And this:

This regime really hates Europe. It doesn't ask for allies. This regime is acting as if the United States is the new Roman Empire. And it's trying to force another Pax Romana upon the world, which is no peace at all, like Nazis, like Fascists, like Stalinists...

Is it political correctness or neo-conservativism that's 'real fascism?'

I invite comments on, and I invite you all to read the piece to hunt out other gems, like how the Asian Americans are the new Jews:

I teach my clases at Yale and what cheers me up are my Asian American students – about half of the students who take my clases are Asian Americans. What in my generation the Jews were – the intelligentsia – these people are becoming. The Jews in this country are now so asimilated that looking at their score cards I could not tell the difference between my Gentile and my Jewish students. The Asian Americans are the new Jews – they are the ones who study hard, they have a real pasion, a real drive to understand. If this country has a future, it will be because of the new immigrants, the Asians, the Africans, the Hispanics. Our regime is fascistic, but our constitution is good.

Or the truth of Kabbalah. Discuss.

Harriet Miers has withdrawn her nomination.

I am not surprised.

In fact, I think it's possible that the suspicions I previously and repeatedly expressed have been confirmed.

(Not that I can prove it. But Bush and his team are far too politically savvy not to have been able to anticipate this.)

AFTERTHOUGHT: I hope my suspicions are wrong. Because I can't shake this feeling that if I am right, people (including me, because I've wasted a lot of time writing about Miers) have been, well, manipulated.

NEW NOMINATIONS, ANYONE? (I've already proposed Reynolds, Volokh, Barnett and Kozinski, but I'm not entirely confident they're on Karl Rove's short list....)

UPDATE: Jonah Goldberg has called the Miers withdrawal "BRILLIANTLY ROVIAN!" (Via Gateway Pundit.)

Bush had no idea that the Senate might seek "internal White House documents," of course....

(Link to Gateway via Glenn, who also links to the full text of Miers' letter.)

MORE: Is it possible that we might get a libertarian on the court? Orin Kerr looked at Janice Rogers Brown last month, and pronounced her a "hard core libertarian."

Might a Brown nomination be something both libertarians and moral conservatives could support?

(Go ahead! Call me a dreamer....)

SOBER AFTERTHOUGHT: If Janice Rogers Brown is the libertarian Kerr suggests she is, I don't think her nomination is likely.

That's because conventional politics means Culture War uber alles!

I hate to say this, but power abhors taking the Constitution literally. There's too much to lose.

This is news at its most tasteless:

A cab driver in Dallas, Texas, was allegedly caught on surveillance video sprinkling dried fecal matter on cookies and pastries at a grocery store, according to a Local 6 News.

Behrouz Nahidmobarekeh, 49, is on trial for allegedly throwing the feces on pastries at a Fiesta grocery store.

Police said that during an investigation, they found a pile of human feces by his bed. Investigators believe Nahidmobarekeh would dry the feces, either by microwave or just letting it sit out, grate it up with a cheese grater and then sprinkle it at the store.

"(We are) unable to identify him; just a young boy, maybe 3 years old, on the surveillance tape you can see him eating one of the cookies and that's the worst part about it,I think."

While the man's motive is apparently unknown, the FBI has determined that this was "not a national security issue."

There's certainly national interest in the story, though. Drudge listed it yesterday but took it down, but that didn't stop the Washington Post, which added a salient fact:

... customers had complained that the fresh-baked items smelled and tasted like manure.

(And probably, as Rob Smith suggested, bad manners.)

Orin Kerr alerted me to some fascinating language in a Texas initiative purporting to stop same sex marriage. Here's the applicable text:

SECTION 1. Article I, Texas Constitution, is amended by adding Section 32 to read as follows:

Sec. 32.

(a) Marriage in this state shall consist only of the union of one man and one woman.

(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

Further, at the risk of pointing out the obvious I would note that same sex unions are by definition not "between one man and one woman," nor are polygamous unions. (Nor would be any "union" between a human and an animal.) So, if (a) is read literally in conjuction with (b), because such "unions" are by definition not identical nor even similar to marriage, they are not prohibited, because they lack the defining feature of "one man and one woman." (See Joshua's comment to the Orin Kerr post.*)

I'm wondering then, what is being prohibited. What might go on between one man and one woman which could be described as "similar" or "identical" to marriage? Surely, marriage itself is not being prohibited. The only thing I can think of which is similar or identical to marriage under the literal words of the amendment would be common law marriage.

Unless that is being prohibited, the amendment has no meaning.

Why go to so much trouble just to stop common law marriages?

* It should be noted that other commenters argue that literal language should not be elevated above intent. But what is the intent here? Surely, if the intent was to prohibit only same sex marriage and not common law marriages, the language could have said so. Might there be a hidden intent? Once again, I think it's fair to ask whether this was a poor job of drafting, or whether something else is going on....

UPDATE: The Texas Legislature was warned about the common law marriage problem:

"It's fiscally irresponsible and constitutionally reckless," said Austin lawyer Robert Andrews, who says it could adversely affect common-law marriages in Texas despite lawmakers' assurances to the contrary.

Under current law, he said, people file a Declaration of Informal Marriage to register their common-law status at a courthouse — and he thinks those declarations may be prohibited.

"They've gotten so overbroad with this, they've covered things they don't know they have," Andrews said. "I'm really concerned they blew it (in approving the resolution) . . . that they've covered three times as many people as they think they have."

If it can be proven, how is stealth to be factored into the interpretation of intent?

I'm sure that by now everyone has heard about Iranian President Mahmoud Ahmaninejad's statement that Israel is a "disgraceful blot" that should be "wiped off the map."

What bothers me the most about the phrase "wiped off the map" is that it can't be seen in a vacuum or dismissed as an aberration or as rhetorical excess. Ahmadinejad's predecessor, Hashemi Rafsanjani (for many years a major Iranian leader) made it perfectly clear that the longterm Iranian goal is to use nuclear weapons against Israel:

If a day comes when the world of Islam is duly equipped with the arms Israel has in possession, the strategy of colonialism would face a stalemate because application of an atomic bomb would not leave any thing in Israel but the same thing would just produce damages in the Muslim world.

Excuse me, but what do they need to do to make themselves more clear?

This is an intolerable and urgent situation, and in my view it calls for a preemptive response.

Can I say the threat is looking more and more imminent?

(Or has the word "imminent" been dumbed down?)

I'm so sorry to learn (via Glenn's links to Laughing Wolf and The Gray Monk) that Momma Bear has passed away. (I'm proud to say her blog was one of my earliest blogroll links.) I feel that I've known her -- but I'm sorry I never met her.

Laughing Wolf observed, "Shades, know that this day a warrior walks among you."

It's comforting, because we'll all be there.

WARNING: Graphic discussion follows.

I've been struggling with a deceptively simple question:

Is drunken sex rape?

I don't mean drunken rape, because I think it is possible to form the requisite malice in that state. What I want to know is whether intoxication does -- or should -- prevent someone from consenting to sex. Because if it does, then any sex with a drunk person might be rape. (Bear in mind that this is compounded by the problem of imputing intent to active versus the passive roles in sex, but I'll save that for later.)

What prompted this is the rape prosecution of two LaSalle University basketball players. I'm having a little bit of trouble getting all the facts of this case, but it does appear that the accuser went to the men's dorm room, drank 8 shots of 99 proof liquor, and had sex.

According to the DA, the woman was in no position to consent:

In his opening statement, Assistant District Attorney Richard DeSipio acknowledged that the woman was "binge drinking" shots of liquor that night, had flirted with the men, and had engaged in a sexually explicit conversation with one of them before the alleged assault took place.

With graphic description, DeSipio said that Gary Neal, 21, began to rape the woman after she vomited in the kitchen sink, and that Michael Cleaves, 23, joined them and tried to simultaneously force the woman to perform oral sex on him before the men switched positions.

"She's so weak from vomiting... she's just hanging there like a limp blow-up doll, at their mercy. And they knew they had her," DeSipio told the jury.

Neal and Cleaves have both pleaded not guilty to rape, sexual assault, conspiracy and related crimes. Attorneys for the pair told jurors that the sex was consensual and that no crime was committed.

"This case is not about rape. This case is about regret," Neal's attorney, Assistant Defender Wendy Goldstein, told the jury. "In the morning, when the alcohol wears off and everybody knows she had sex with both these men, regret sets in... . She has every reason to turn herself into a victim, rather than face what everyone thinks of her."

The woman is expected to take the witness stand today before Common Pleas Court Judge Shelley Robins New. The woman has previously testified that she was too drunk to say no, fight back, or scream for help during the alleged attack.

Obviously, she felt used. And from these facts, it's pretty obvious that she had been used.

But is being used rape? And how can such things ever be determined after the fact?

If drunken sex is rape, there's an awful lot of rape (especially between husbands and wives).

I hate to sound like a sexist ass, but I'm skeptical. I don't think this is the same thing as saying that a woman who "dressed like a slut" was "asking for it." This woman got drunk in a room with two men late at night, and by her own admission did nothing to stop them. Bear in mind that the college students are now looking at twenty years in prison because of this accusation.

While I do believe consent should be voluntary, I also think there can be such a thing as implied consent.

(Or, possibly, there are circumstances less than fully consensual but which don't rise to the level of rape. Back in the days before AIDS, men used to lie naked face down on beds in gay bathhouses, next to an open jar of vaseline. Whatever you might think about that, anyone doing such a thing is in no position to cry rape.)

I've posted about this before, and I'm having the same logical problem now as then:

....if these people were all gay men, no one would be complaining of rape. Why is that? Because it's basic common sense among homosexuals that if you go to someone's bedroom late at night and get drunk with him (or meet him in an already drunken state in say, a bar!), there's an understanding that, far from being rape, sex was the whole idea. Each party would, without any hesitation, accept his own responsibility.

As I pointed out previously, if one person is drunk and the other is sober, it is legally possible that the sober person raped the drunk person, if the latter was prevented from resisting because of intoxication, "and this condition was known, or reasonably should have been known by the accused." But this is a criminal case, and they're going to have to show beyond a reasonable doubt that there wasn't consent. Unless the law prevents drunks from consenting, the fact of the girl being in the room late at night, her "sex talk", and her getting drunk there, will all be factors.

Earlier, the defense stated she spoke to one of the defendants about her expertise at oral sex, and now I see that she's admitted "sex talk":

The alleged victim was called to testify Wednesday morning, but she could be heard sobbing outside the courtroom and her testimony was delayed for 40 minutes. The woman admitted that she sat on the lap of one of the defendants in June 2004 and engaged in some sex talk. She went on to tell the story of what she called a drunken rape.

And if a man's wife gets drunk and he has sex with her, is that rape? How about if the wife has sex with a husband too drunk to legally consent?

Or suppose a husband and wife get drunk together and have sex. Returning to my original hypothetical question: if two people, married or unmarried (and bear in mind that women can rape men) get drunk and then engage in sexual intercourse, how is it to be determined which person was raped?

Is the woman always necessarily the victim? As I asked over a year ago:

why in logic is not a man just as much a victim of a vagina as a woman the victim of a penis?

In drunken situations, it would seem that the first to sober up, have regrets, and call the police would get to be the victim.

I'm still struggling for answers.

(I guess people should fill out one of the various sexual consent forms.)

UPDATE (10/27/05): There's more from the trial in today's Inquirer. A few excerpts:

She acknowledged that she had eight consecutive shots of 99 Apples - a 99-proof alcoholic beverage - had sat on Neal's lap, and had told him she had once performed oral sex on a basketball player they both knew.

The woman testified that she was on athletic and academic college scholarships and maintained high grades.

"You're a smart girl. You're in college. You have to have some common sense, yes?" Cleaves' defense attorney, Michael McDermott, asked during rigorous cross-examination.

"Yes," she replied.

"Then tell the ladies and gentlemen of the jury why a 19-year-old girl, who had eight shots, would stay alone with a man she doesn't know" after having a sexually explicit conversation about oral sex? McDermott asked.

The woman said she couldn't answer that question.

She later acknowledged that she did not immediately tell the other camp counselors what had happened. She said she also did not tell former women's basketball coach John Miller in a meeting with him the next morning, although she said she did complain that some belongings were missing from her dorm room.

When she later spoke to detectives, according to her signed statement, she said she didn't discuss oral sex with Neal.

She also told investigators she wasn't interested in Cleaves and Neal, calling them "ugly."

"Sitting on someone's lap does not mean I'm interested - that I want to have sex with them," the woman explained yesterday.

Let's see. A girl comes to the room of two healthy young athletes, downs eight shots, sits on one man's lap, and tells him that she performed oral sex "on a basketball player they both knew."

What does she expect will happen at that point? An intellectual discussion of Thomas Aquinas?

UPDATE: Here's a thought. Considering the apparent position of M.A.D.D. and others that drinkers should be arrested to prevent them from driving, can arresting them as a rape prevention measure be far behind?

As PhotoShoppers go, I'm hardly a professional. ("Self taught hack" pretty well describes my limited skills...)

But this apparent photo doctoring of Condoleeza Rice intrigued me:

And I found myself even more intrigued by Glenn's question:

Adobe's "fill flash" can sometimes do surprising things, but I'm not sure it could do this.

I'm so backward that I don't even have Adobe "fill flash" I thought I'd try it myself with the primitive software I do have.

I had no idea whether this exercise would work, and I decided to spend no more than five minutes, because I just wanted to satisfy my curiosity.

I started with this original JPEG file from Yahoo:

I opened the above (along with USA Today's BMP version with the gleaming white eyes) in Paint Shop Pro version 6, used the dropper to select the white color, and once I had done that I used the primitive "fill" feature (by selecting the icon which looks like a little pitcher of paint), to add white.

I then saved it as a BMP file, and shrunk it to the same dimensions as the USA Today picture.

Here's they are, side by side (mine's on the left):

How'd I do? I think I might need to add a tad more white, and maybe do a little retouching on the eye to the right, but I think mine is a little more on the subtle side.

Probably not good enough for the MSM.

When they say they want to see the whites of their eyes, they mean it!

MORE: Because I know I'll never get a job with USA Today, I also did an Indymedia version:

FINAL THOUGHT: It's incredibly obvious to me that USA Today's picture was doctored. What surprises me is that they don't seem to mind being blatant about it.

UPDATE: Caught, um red white-handed, USA Today now admits the photo was altered, and it has been "replaced by a properly adjusted copy":

Editor's note: The photo of Condoleezza Rice that originally accompanied this story was altered in a manner that did not meet USA TODAY's editorial standards. The photo has been replaced by a properly adjusted copy. Photos published online are routinely cropped for size and adjusted for brightness and sharpness to optimize their appearance. In this case, after sharpening the photo for clarity, the editor brightened a portion of Rice's face, giving her eyes an unnatural appearance. This resulted in a distortion of the original not in keeping with our editorial standards.

(And I'm so into unnatural appearances that I brightened the same portion twice!)

Sean Kinsell offers another example of something in short supply these days -- a thoughtful post about same sex marriage, in the context of Maggie Gallagher's guest blogging at the Volokh Conspiracy.

For those who don't want to read through this very lengthy debate in its entirety, Sean (via Michael Demmons) links to a post by Jason Kuznicki which summarizes what he considers Gallagher's key points.

Something about the way this issue is debated disturbs me enough (see this post) that I left the following comment:

There seems to be a real, almost obsessive need to "prove" that opposition to same sex marriage constitutes bigotry. I don't think this is the wisest way to argue anything, and I find myself wondering whether Maggie Gallagher is playing the role of a sort of political tar baby. The harsher the attacks against her, the more insecure her opponents look. (Not that ideologues would care...)

A commenter at Gay Orbit made the following remarks:

Did you miss the post where Volokh said that gays “recruit” straight people to become gay.

Did you miss the post where Volokh said that we’re all disease-ridden vermin?

Some readers challenged my claim that there is "disproportionate and grave health danger from male homosexual activity" to men, compared to the danger from male heterosexual activity. I think this danger is tragic, and I very much hope that medical advances will lead to the danger's decreasing. All decent people should agree that it's tragic. (The bunk that we hear from some quarters about AIDS being God's punishment for homosexuality would suggest, as some wit put it, that lesbians must be God's chosen people, since their rates are apparently very low.) But it seems to me quite clear that this danger is very much there.

OK, though, I confess: I am developing an ulterior motive in writing about this stuff. The more people tell me not to write about things that strike me as important and perfectly legitimate to write about, the more I'm tempted to write about them. If people are trying to cow others into not discussing this information, then it's all the more important that we remain uncowed.

Back to the commenter, who is also upset about Clayton Cramer:

Did you miss former guest-blogger, and noted homophobic bigot Clayton Cramer?

While I necessarily don't share his convictions (the right to wave a marriage certificate has never struck me as going to the essence of American freedom), I rather enjoyed Jason Kuznicki's take on bigotry:

One judges bigotry not by whether a position is popular or unpopular, progressive or conservative, but by whether the person holding that position is willing to engage with their opponents, to consider the issue from all different sides, and to think that maybe, just possibly, those who hold differing views might do so sincerely, and even with good reason.

In the final analysis, a bigot is anyone who holds a position with insufficient thought, never considering in their heart of hearts that perhaps they might be mistaken.

But what if I am wrong?

I'm having a problem with numbers. The war in Iraq is said to be on the verge of being more wrong than it has ever been before, once the number of American dead rises from 1997 to 2000. The latter is said to be a very important number:

As milestone nears, adding up war losses

U.S. toll in Iraq approaches 2,000.

By Drew Brown

Inquirer Washington Bureau

WASHINGTON - The American military yesterday announced the combat deaths of four more U.S. troops in Iraq, bringing to 1,997 the number of American service members who have died in Iraq since the war began 21/2 years ago.

A Marine with the Second Marine Division died Sunday in a firefight in Ramadi, Marine officials in Iraq said. Two other Marines and a sailor were killed Friday in two incidents, the Pentagon reported.

With deaths coming at an average of more than two per day, it is likely that the number of dead will reach 2,000 in the next day or two.

If so, why?

The Inquirer says that the number 2000 will be "a sobering reminder of the human cost of the U.S. presence in that country."

Sobering?

Just as 1997 was just as sobering a reminder, I think 1000 was also a very sobering number. Except I'm not sure what is meant by sobriety.

I just checked with the New York Times, which reports that the number killed has already reached 2000 -- that magic number said to be so "sobering."

But I'm no more sober than I was. At least I don't feel any more sober.

Or is wanting a U.S. victory less than "sober"?

I could be wrong, but I'm getting the distinct impression that "sobriety" is being used as a synonym for wanting the United States to pull out of Iraq.

If higher numbers meant any other kind of sobriety, then we'd fight this war all the harder. (For some perspective, The Jawa Report offers some, er, truly sobering numbers.)

MORE: From Glenn Reynolds:

....driving the war issue is the Baby Boomers' Vietnam era conceit that right-thinking people are always "against the war," regardless of circumstances. Or which war.

UPDATE (10/26/05): Palmetto Pundit sees another reason for the "milestone":

It seems to me the press wanted this "milestone" to occur precisely when it did so that it could be used to overshadow the real milestone that occurred today: The ratification of the Iraqi Constitution.

Since today seems to be the day for me to defend animals against unjust accusations, let me turn my attention to the charge that British squirrels have become drug addicts, and are deliberately ingesting crack cocaine:

Drug addicts are known to be hiding small stashes of crack rocks in people's front lawns late at night.

Squirrels have been spotted in the same front gardens, seemingly hunting out the buried narcotics.

The discovery has led some residents to speculate that the squirrels are already in the grips of addiction. One resident, who asked for his name to be withheld, told the South London Press.

"I was chatting with my neighbour who told me that crack users and dealers sometimes use my front garden to hide bits of their stash.

"An hour earlier I'd seen a squirrel wandering round the garden, digging in the flowerbeds.

"It looked like it knew what it was looking for.

"It was ill-looking and its eyes looked bloodshot but it kept on desperately digging.

"It was almost as if it was trying to find hidden crack rocks."

Crack squirrels are a recognised phenomena in the US.

They are known to live in parks frequented by addicts in New York and Washington DC.

The squirrels have attacked park visitors in their frenzied search for their next fix.

But let's think about whether this story is all it's, um, cracked up to be.

Does anyone remember Rocky the squirrel?

What made him fly? And the name "Rocky" -- isn't that a thinly disguised drug reference for "rock" cocaine?

Moving from media depictions of squirrels to depictions of pigs, I'm wondering whether it's a coincidence that there are now increasing reports of censorship directed against the latter. The campaign started with the ban of pig calendars and statuettes in offices, quickly spread to children's books in classrooms, and even piggy banks.

I don't know whether there's a direct connection between the two, but a country cracking down on pigs should hardly be surprised to see its squirrels pigging out on crack. I see this apparently dysfunctional behavior by squirrels as a classic cry for help, and I hope that the censorship which started in Britain doesn't spread to this country.

Well, I say the best defense is a good offense. Just as all animals are equal, all cartoons and all media depictions of animals should be equal, and treated equally. Michelle Malkin reminds us of another venerated cartoon image, and that is Piglet:

There's a campaign to save Piglet, who, it seems, is being held hostage by people with absolutely no sense of humor. People unable to laugh at themselves, and who don't consider even this cartoon (quite tame by American standards) to be funny:

So once again, I'll let Porky have the last word!