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Archive for June, 2012

Joe Paterno, moral monster

[ 98 ] June 30, 2012 |

It is becoming apparent that Joe Paterno not only knew that Jerry Sandusky was a child rapist, but that he was probably the person most responsible for covering up Sandusky’s previous crimes, and allowing Sandusky to commit many more.

CNN is reporting that a series of internal PSU emails between former PSU president Graham Spanier, former athletic director Tim Curley, and former vice president Gary Schultz reveal the following chronology:

*On February 9, 2001, former PSU quarterback and current graduate assistant coach Mike McQueary meets with Paterno and tells him that on the previous evening he saw Sandusky sexually assaulting a young boy in the showers of the PSU football facility.

*At some point between February 9 and on or about February 19th, Paterno informs Curley of what McQueary has told him.

*On or about February 19th, Curley and Schultz contact McQueary about the incident.

*On February 26th, Schultz writes to Curley to confirm that Curley is aware/approves of a three-part plan to deal with the potential institutional difficulties raised by having Joe Paterno’s former defensive coordinator continue to rape little boys on campus. This plan consists of talking to Sandusky “regarding the future appropriate use of the University facility,” … “contacting the chair of the charitable organization” [this is Sandusky’s Second Mile foundation, which he used to procure victims] and “contacting the Department of Welfare.” [The latter step was the minimum legal obligation placed on Penn State officials by Pennsylvania law].

So, three years after Sandusky’s habit of sexually assaulting young boys was first reported to the authorities, PSU is finally about to do the right thing. Then:

The next evening, February 27, Curley allegedly writes to Spanier. Schultz, who’s out of the office for two weeks, is copied.

Curley refers to a meeting scheduled that day with Spanier and indicates they apparently discussed the Sandusky incident two days earlier.

Curley indicates he no longer wants to contact child welfare authorities just yet. He refers to a conversation the day before with Paterno. It’s not known what Paterno may have said to Curley.

Curley writes: “After giving it more thought and talking it over with Joe yesterday, I am uncomfortable with what we agreed were the next steps.”

The athletic director apparently preferred to keep the situation an internal affair and talk things over with Sandusky instead of notifying the state’s child welfare agency to investigate Sandusky’s suspicious activity.

“I am having trouble with going to everyone, but the person involved,” Curley allegedly continues.

Curley writes he’d be “more comfortable” meeting with Sandusky himself and telling him they know about the 2001 incident and — according to a source with knowledge of the case — refers to another shower incident with a boy in 1998 that was investigated by police, but never resulted in charges against Sandusky.

Curley writes to Penn State’s president Spanier that he wants to meet with Sandusky, tell him there’s “a problem,” and that “we want to assist the individual to get professional help.”

In the same purported e-mail provided to CNN, Curley goes on to suggest that if Sandusky “is cooperative,” Penn State “would work with him” to tell Second Mile. If not, Curley states, the university will inform both Second Mile and outside authorities.

Curley adds that he intends to inform Sandusky that his “guests” won’t be allowed to use Penn State facilities anymore.

“What do you think of this approach?” Curley allegedly wrote to Spanier.

Graham Spanier, president of a major research university, (and family sociologist, demographer, marriage and family therapist, and founding editor of the Journal of Family Issues) replies that he thinks this is a very fine plan indeed. “The only downside for us is if the message isn’t ‘heard’ and acted upon, and we then become vulnerable for not having reported it,” Spanier writes.

The downside for the many children Sandusky went on to rape was apparently not part of President Spanier’s pragmatic calculus.

Joe Paterno — the most powerful person on the PSU campus — decided to use his immense institutional influence to allow a child rapist who was about to be exposed and stopped to instead remain free to rape more children, which Sandusky proceeded to do for many more years.

And while it’s true we don’t know precisely what Paterno said to Curley, if we consider the evidence in the light most favorable to Paterno we would conclude that Curley told Paterno that he was thinking of backing out of the “three-part plan,” and Paterno — who could have had Curley fired on the spot with a single phone call — went along with this. If we consider the evidence in the most realistic light, it’s far more probable that Paterno ordered his putative superior to drop the plan to expose Sandusky. In other words, Paterno not only went along with the coverup, but in all likelihood initiated it.

With luck, Paterno’s entire estate, along with whatever assets Spanier, Curley, and Schultz possess, will be confiscated and distributed to those of Sandusky’s victims who can be identified. That, at least, would be a start on the road to something resembling justice.


NFIB Roundup

[ 22 ] June 29, 2012 |
  • For those who want some mobile Lemieux analysis, I’m on the Prospect podcast with the great Jamelle Bouie, Jaime Fuller, and Patrick Caldwell.
  • While in both the podcast and my initial article I engage in a little mea culpa over my repeated predictions that Roberts would not be the swing vote, I note that it was literally unprecedented. I also note that moderate, reasonable, thinking person’s conservative Sam Alito has never been the swing vote.   Which compels me to revisit that Contrarian Comedy Classic from Ann Althouse, the nomination of Sam Alito is excellent. news. for. liberals!
  • Paul Starr on the real winners.
  • Perhaps my favorite of the angry conservative reactions has to be James Pethokoukis quoting McCulloch v. Maryland, the case the dissenters wanted to de facto overrule.  Although I don’t mean to slight Ben Shapiro.
  • David Brooks uses the decision to say things that aren’t true.
  • Like Paul, I’ve been enjoying Richard Posner’s contributions to the Slate year-in-review.   But, particularly given his previous criticisms of “law office social science,” I can’t resist quoting the nadir of his deeply misguided attack on the PPACA:  “The Washington Post has an excellent [sic] economic journalist named Robert Samuelson, and he had a column a week or two ago in which he persuasively [sic] criticized the law.”   Yes, that one.

And In Other News . . .

[ 25 ] June 29, 2012 |

The Europeans are still playing a tournament concerning the soccer.  I managed to watch all of Portugal v Spain Wednesday night, while packing.  That it went to penalties was inconvenient as my bus to Heathrow was departing Plymouth at midnight.  I watched chunks of Italy v Germany during my six hour layover at EWR, where I was surprised to see Balotelli’s finishing prowess the exact opposite of what it was against England.

Sunday, I’ll be able to give the final my undivided attention.  I still suspect it will be Spain who prevail, but Spain have demonstrated some frailties during this tournament, whereas Italy have merely been inconsistent.  I think that their victory yesterday owes more to Germany’s failures rather than Italy’s successes.  Further, allowing England to stay in the match for 120 minutes on Sunday should be scandalous to any top tier international side.

In the words of my friend Niall Ó Murchú, this piece this piece (link corrected) in the Guardian about the tactical questions facing the Spanish is “nerdy but brilliant”, and an excellent read.  Even a non-soccer fan watching Italy would spot the influence of Andrea Pirlo, and the need to close him down.  Xavi can do that, but as the article suggests, this comes with a risk.  The greater risk, of course, is giving Pirlo freedom of the pitch, as England did; it was only Italy’s (especially Balotelli’s) horrendous finishing that prevented Italy from crushing England 3-0.

On Roberts’ majority opinion becoming the joint dissent

[ 43 ] June 29, 2012 |

I suggested yesterday that the tone and structure of the joint dissent, and especially the strange semantic treatment of Ginsburg’s opinion — referred to several times by the joint dissent as “the dissent,” which is a locution that only makes sense in the context of a majority opinion discussing a single dissent — provided strong evidence that the joint dissent was actually the opinion of the Court until very late in the decision process.

In fact the opinions in the case are full of evidence that this is precisely what happened. Here is a passage from p. 35 of Ginsburg’s opinion, criticizing Roberts’ opinion:

In failing to explain why the individual mandate threatens our constitutional order, THE CHIEF JUSTICE disserves future courts. How is a judge to decide, when ruling onthe constitutionality of a federal statute, whether Congress employed an “independent power,” ante, at 28, or merely a “derivative” one, ante, at 29. Whether the powerused is “substantive,” ante, at 30, or just “incidental,” ante, at 29? The instruction THE CHIEF JUSTICE, in effect, provides lower courts: You will know it when you see it.

This passage is discussed in the joint dissent (p.15):

The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so.

(emphasis added)


The War Continues

[ 12 ] June 29, 2012 |

Virginia Governor Bob McDonnell has reappointed Helen Dragas, architect of the coup that temporarily ousted University of Virginia President Teresa Sullivan, to the Board of Visitors.

As I said before, the corporate community is in this war on public higher education for the long haul. There’s no question that right-wingers like McDonnell fully support this war. Public outrage may have forced the coup leaders to back off briefly, but they are ready for another battle. I imagine the goal here is to make Sullivan’s presidency as uncomfortable as possible to force her to resign using more subtle means. McDonnell also named a couple of people with higher education backgrounds to the Board to blunt criticism that all of its members came from the corporate community, but the reappointment of Dragas is what sends the clearest message.

But let there be no question, this is a war on public higher education and we have to be vigilant on every front to save it.

Does anybody out there know how much Tom Friedman gets paid per column?

[ 67 ] June 29, 2012 |


How about a hint? Does $5K a pop sound about right?

Let’s start with the technological. In 1965, Gordon Moore, the Intel co-founder, posited Moore’s Law, which stipulated that the processing power that could be placed on a single microchip would double every 18 to 24 months. It’s held up quite well since then. Watching European, Arab and U.S. leaders grappling with their respective crises, I’m wondering if there isn’t a political corollary to Moore’s Law: The quality of political leadership declines with every 100 million new users of Facebook and Twitter.

Matt Taibbi is filled with puzzlement:

When I read this I was so taken with how much fun Friedman was having making bold impromptu generalizations about the world by talking about microchips and Facebook and Twitter that I forgot to notice the passage didn’t really make any sense. One of my readers did notice, though, and sent in his own take. “They say a bird in the hand is worth two in the bush,” he wrote. “I wonder if there isn’t a corollary: Samsonite is the most popular and durable brand of business luggage.”

Yeah I know, too easy.

Seriously, this is an important piece of information to make public. It could be the spark that pushes the 99% over the edge. Think of it like wikileaks.

Colorado is the Future

[ 50 ] June 29, 2012 |

There’s no way to know whether the fires ravaging Colorado are caused by global warming per se. Similarly, there’s no way to know whether the all-time high temperatures expected to be set in cities in the Midwest and South over the next few days are caused by global warming. Or the all-time warm winter and spring many states experienced this year.

But scenarios like what we are seeing in Colorado are precisely what scientists expect to happen quite frequently in the near future:

Scorching heat, high winds and bone-dry conditions are fueling catastrophic wildfires in the US west that offer a preview of the kind of disasters that human-caused climate change could bring, a trio of scientists said on Thursday.

“What we’re seeing is a window into what global warming really looks like,” said Princeton University’s Michael Oppenheimer, a lead author for the UN’s climate science panel. “It looks like heat, it looks like fires, it looks like this kind of environmental disaster … This provides vivid images of what we can expect to see more of in the future.”

H/t Inside Climate News

Today in the War on Drugs

[ 56 ] June 29, 2012 |

Schools and camps are banning sunscreen because it is an over the counter drug or something:

But sunscreen rules are common. They typically stem from state and local policies that stop kids from bringing any drug — including non-prescription drugs — to school, says Jeff Ashley, a California dermatologist who leads an advocacy group called Sun Safety for Kids.

Sunscreens are regulated as over-the-counter drugs, so many districts treat them like aspirin, just to be safe, he says.

H/T to Lindsay.

Don’t They Teach the Kids Legal Realism Anymore?

[ 94 ] June 29, 2012 |

It’s time for conservatives (and worried liberals) to play the “how a loss is really a win” game (and I have to say I like the shoe much better on this foot.) The hot contrarian argument is that yesterday was actually a big win for John Roberts and Republican principles because Roberts was able to undermine the commerce clause while preserving the legitimacy of the Court.

This does not, however, actually make any sense:

But, in reality, this is no major conservative win in any sense, as Scocca’s central assumptions fail to withstand scrutiny. First, Roberts’s opinion, even if it constrained future Supreme Courts in perpetuity, is a narrow one that does not substantially alter existing commerce clause and spending powers jurisprudence. And second, what Roberts wrote in NFIB v. Sebelius will do nothing to constrain future courts.

Read the whole etc., but a couple of additional points. There are areas of the law where doctrinal wins are actual wins, because while precedents don’t have much of a constraining effect on future Supreme Courts they do have some constraining effect on lower federal and state courts. But decisions striking down acts of Congress won’t stick unless they’re upheld by the Supreme Court, so that’s not really relevant to this case. And, in addition, this is also where the first point matters. As we saw with respect to the ACA, Lopez and Morrison already provide federal appellate judges willing to strain a bit the ability to argue that new federal statutes Republicans don’t like are unconstitutional. Yet another ambiguous precedent isn’t going to make much of a difference even to lower courts.

I’d also add that claims that Roberts were following the classic Marbury playbook (take an immediate loss for a doctrinal victory) are correct. But this proves something different than people making the argument think it does, because even Marbury wasn’t “Marbury“. Marbury wasn’t cited until the late 19th century, when judicial review was already well-established (primarily by acts of Congress rather than by clever maneuvering by judges,) and had virtually nothing to do with the establishment of judicial review. There is one important difference, though. The small value of a doctrinal victory was worth it for Marshall, because he presumably didn’t give a damn if Marbury got his commission. Republicans, conversely, actually wanted the PPACA struck down.

And finally, while we’re talking about Roberts, Paul on the evidence that he switched his vote. To me, the strongest evidence is the Cooper v. Aaron-style joint opinion.

…syndicated columnist William F. George also sees this as excellent. news. for. conservatives. I hope conservatives win many more such victories in the coming years.

I have to admit, I find this genuinely baffling. If you’re a neoconfederate, 5 neoconfederate votes + a win in the biggest commerce clause case in nearly 80 years has to be vastly preferable to 4 1/2 votes and a loss in the biggest commerce clause case in nearly 80 years. If Kennedy joined the four other Republicans to overrule Roe v. Wade, would you be happy if he did it in a concurrence saying that gender should be subject to strict scrutiny?

Greatest Troll Ever

[ 106 ] June 28, 2012 |

So other than Farley, I am probably the most anti-troll person here and I probably delete more troll comments than he does. But RICK VENEMA, COLONIAL HEIGHTS, VIRGINIA is so special and so awesome. Really, he transcends other trolls. Then in comments Belle Waring wondered if he was just posing. I don’t know. So I googled “Rick Venema, Colonial Heights, Virginia.” And this is what I found:

To the Editor:

A few years ago, Will Ferrell starred in the Movie “Anchorman.” In the title role of Ron Burgundy, Ferrell played an arrogant, macho, narcissistic news anchor in San Diego during the 1970s, fawned upon by his peers in the media, groupies and an admiring public. Ron’s supremacy is challenged by Veronica Corningstone (Christina Applegate) who discovers Ron’s weakness: he will report anything – anything – that his teleprompter offers him. Veronica exploits that weakness and compels Ron to insult his viewing audience in such a vulgar manner that he is fired and disgraced. But, because he followed the teleprompter’s instruction, he was oblivious while everyone around him in the broadcast studio was stunned and horrified. The movie is hilarious, largely because it is totally absurd.

I was recently reminded of the fictitious Ron Burgundy when the actual president of the United States, Barack Obama, recited his teleprompter before the American Society of Newspaper Editors at a luncheon in Washington, D.C., on Tuesday, April 3, 2012, and accused the Republican-controlled House of Representatives of attempting “to impose a radical vision on our country” through the budget proposal it passed.

Admittedly, the list of gaffes uttered by the most brilliant man in the word during his role as president of the United States is too extensive to compile here, so let’s just look at this single example. Did he actually accuse the Republican House members of trying to “to impose a radical vision on our country”? This from the same man who said, prior to his coronation, that “We are five days away from fundamentally transforming America”? This is an accusation the pot is ill-advised to hurl at the kettle.

I am left with a predicament. I can’t decide if Barack Obama is the embodiment of evil; i.e., the Red Skull, Dr. Evil and Auric Goldfinger rolled into one, or is he simply Ron Burgundy? If he’s Ron, who is programming his teleprompter? And, regardless whether he is Vlad the Impaler reincarnate or simply an arrogant blithering buffoon, why would anyone in their right mind entrust the presidency of the United States of America to him for four more years?

Rick Venema

Colonial Heights

Oh man. This is just brilliant. Real or an act, this is a work of art.

This is Erik Loomis, saying Go Fuck Yourself Colonial Heights.

Deep Thoughts

[ 172 ] June 28, 2012 |

Gosh, I haven’t seen conservatives this mad at the Supreme Court since Brown v. Board of Education.

Clarifying the Stakes

[ 85 ] June 28, 2012 |

I have a piece up about the surprising fact that Roberts, not Kennedy, was the swing vote. (Although I should note that Adam called it.) While today’s decision was a relief, it shouldn’t be forgotten that the are four votes to effectively rule the Great Society unconstitutional:

What this decision makes particularly clear is the stark choice facing Americans in November. In a sense, it is futile to speculate how Roberts’s hair-splitting will play out, because with four members of the Court over the age of 70, this will be determined by a different bench. Thanks to Chief Justice Roberts, the constitutional order represented by the New Deal and Great Society remains intact—but there are now four justices on record as rejecting it. If Mitt Romney is charged with replacing Ruth Bader Ginsburg, the federal powers that have been taken for granted since 1938 will almost certainly perish. The constitutional revolution being proposed by Justices Kennedy, Scalia, Alito, and Thomas did not succeed today—but it is frighteningly close, and should it be realized, the effects on America’s most vulnerable citizens would be catastrophic.

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