Miers

Interesting; I know several people thought that Bush would pick someone very close to him–which makes sense given the pervasiveness of cronyism within the administration–and I suppose Bush thought Miers was more confirmable than Gonzales and wanted a woman to replace O’Connor, so why not the woman who took over his job? Tom Goldstein thinks she may have serious problems, since Senate conservatives have strong incentives not to support her, and her qualifications are weak. (Iocaste suggests that the “Confirm Them” blog may need a new name, and also notes that she’s never even argued before the Supreme Court.) The first thing I thought when I heard about Myers was the way Truman packed the court with his poker buddies after FDR put people like Black and Douglas and Frankfurter on it, and Lyle Denniston agrees:

Two of the most undistinguished members of the modern Supreme Court — Justices Harold Burton and Sherman Minton — got on the Court almost entirely because they were cronies of President Harry Truman; there were few other qualities of note. When the Senate Judiciary Committee takes up the nomination of Harriet Miers to be an Associate Justice, she will have the burden of proving that she is qualified to joint the Court and was not chosen on the basis of cronyism. That could pose a serious challenge.

One of the more interesting questions, at this early stage of the nomination process, is whether the American Bar Association will find Miers to be qualified for the Court. Although the ABA’s views are not highly regarded by the Bush Administration, a failure by the ABA to endorse her could be crucial, if the nomination gets into trouble on any other ground.

Miers suffers, perhaps greatly, by comparison to the President Bush’s other nominee, Chief Justice John G. Roberts, Jr., and few observers would expect her to perform at anywhere near to his level before the Judiciary Committee. Only senators wholly committed to Bush’s choice, perhaps solely because he made it, are likely to have an easy time with the nomination if her performance is visibly lacking.

Orin Kerr, while kinder, calls her the “anti-Roberts.” As for what I think, it’s hard to know, since there’s little evidence of her judicial philosophy, even less than with Roberts. Obviously, that’s better than someone like Edith Jones or Priscilla Owen, who we know is a neoconfederate reactionary. What Democrats should do will depend on what we find out. NARAL is playing wait and see, which makes sense.

…ReddHedd has a good rant.

Compared to What?

Kevin Drum asks a question asked by many because Hollywood is having an off year financially–why are movies so bad? My answer is that I reject the premise. Not the premise that most Hollywood product sucks, but the premise that it was better five or ten or 20 years ago. You often hear about the decline of Hollywood, but there are obvious false comparisons created by the fact that history generally only remembers the best films of a given year. Now, it is true that my favorite movies of the year so far–Downfall, 5×2, Broken Flowers–don’t really measure up to my favorite movies of last year, but 1)it’s early, and 2)these movies are arty-farty stuff most Americans don’t have the chance to see in theaters even if they were so inclined. Kevin’s real argument seems to be about mainstream Hollywood movies–and is it really true that the movies he complains about are worse than most of last year’s top grossers? Many people will be appalled, but I see The Constant Gardener and The Incredibles as basically similar–very skillful movies that start strongly and then wind down into dreary didacticism and dreary James Bond moves, respectively. And I’d certainly rather watch The Wedding Crashers or The 40 Year-Old Virgin than Meet the Fockers or National Treasure or the Roland Emmerich thing. If you say that this year’s Top 10 is worse than last year’s I guess I can’t argue with you since I haven’t seen most of them, but it sure seems marginal to my eye. And then what about 2001, when box office receipts jumped? OK, you have a justly beloved mainstream classic (admittedly I’m not a huge fan, but I don’t deny its quality) in the #2 spot. And I like Ocean’s 11 a lot, and people seem to love Shrek. But great books or not, the #1 movie was directed by one of the biggest hacks in the biz, and look at the rest of the top 10–Rush Hour 2, The Mummy Returns, Pearl Harbor, Jurassic Park III, Planet of the Apes–ugh.

I don’t mean to deny that movies can generally get worse; certainly, the best movies of the 70s are a lot better than those of the 80s, and probably the influence of Star Wars has something to do with that. On the other hand, the best movies of the 90s are also a lot better, and I don’t see that Hollywood is making movies for dimwitted teenage boys any more than they were 5 or 10 years ago. I don’t think that the dip in box office receipts really means anything, whether they’re supposed to signify declining aesthetic standards or (as many conservatives seem to be arguing) political alienation or whatever. Sure, most Hollywood releases are crap, but that’s because they always are.

Veronica Mars

Given the recommendation of several internet luminaries, and since I’m now down to exactly zero shows I feel compelled to watch, I thought I would start watching it regularly this year, but missed the premiere. It happened to be replayed tonight, so I watched. It is, indeed, very good. One thing about HBO is that it causes me to watch even fewer series than I ordinarily would, because I start comparing broadcast series to The Sopranos or The Wire. And, of course, Veronica Mars can’t measure up to that standard, especially in the acting, but by network TV standards it’s excellent. I find it a lot more impressive than not only 24, say (The Poor Man pretty much sums up my thoughts about that show), but also the couple episodes of Lost that I’ve seen (which, admittedly, may be unfair for a serial.)

UPN’s idea of repeating shows in weekend off-hours seems great to me. Showing a new episode again has to get better ratings than Suddenly Susan or whatever the hell else UPN would show Sunday at 7.

The Crimes of Michael Crichton

I was aware that Michael Crichton was guilty of many aesthetic and political atrocities, most notably 6th-rate novels and screenplays larded with laughably bad science, vicious misogyny, and less-than-prophetic xeonophobia. (His clueless, reactionary politics, of course, wouldn’t be an issue if his work was anything but a vehicle to express them.) But–and here I display perhaps more alienation from pop culture than is advisable–I was not aware of this:

For all his previous works as a writer (13 novels, 4 nonfiction books, numerous screenplays) and his prominent career in Hollywood as a writer, producer or director of 13 films and as the creator of the popular television series “ER,” little has yanked Mr. Crichton so deeply into political controversy as “State of Fear,” an environmental thriller that casts doubt on the widely held notion that human activities contribute to global warming.

ER? Wow, acting as a shill for junk science pales in comparison to that…

Tim McCarver Whore Watch

An eternal classic in the bottom of the second: “Derek Jeter couldn’t get the groundball hit right at him because he had the sun at his back.”

And the Sox, after working Johnson hard, have stopped competing in the 5th inning. Great.

…”East Division Champion Yankees.” No matter how many times I hear it, it makes me want to puke.

While I’m complaining bitterly about stuff 98% of our readers could care less about, what’s the deal with Fox today? For the first 3 innings, they go splitscreen to the Indians game even when absolutely nothing is happening, and then when that game is in the bottom of the 8th and the Yanks/Red Sox game is effectively over, nothing. I still have no idea how the Indians failed to score. When does their contract expire again?

The Ineffable Principles of Judy Miller

Ailes explains the events that led to First Amendment Martyr (if you think the purpose of “freedom of the press” is to help the federal government commit felonies to protect the ability of government officials to lie about wars, that is):

So it comes down to this. It was all a big misunderstanding. Judy thought that that nice Scooter didn’t want to take her to the dance, so she told her friend Floyd she wouldn’t go with him anyway, even if he asked. And Scooter thought Judy was swell, so he just couldn’t understand why Judy wouldn’t want go with him. And each was too proud to approach the other, so they exchanged long, soulful glances in the hall for over a year, until Judy’s other friend Billy approached Scooter’s pal, Joey, and asked why Scooter was such a jerk. “Scooter’s not the jerk — Judy’s the jerk, you big dope….”

And then they all went to the ice cream shoppe.

Except Floyd.

And felonies were committed and peoples’ lives were ruined and many, many thousands of people died in the war that Judy and Scooter supported.

Jane is also all over this.

I admit–I don’t get it. I support a federal shield law giving a qualified privilege allowing reporters to protect sources. But I can’t see any privilege applying to Miller unless it’s entirely non-rebuttable, and nor can I tell you the “principle” that allows her to testify now but not then.

2 Days Left: A Wanker’s Diary

• One of the rules of broadcasting seems to be that there can never be a situation in which an intentional walk is a bad play. But Torre’s intentional walk of Ortiz yesterday could have easily cost the Yankees the game. There seems to be a perception that Ramirez is having a bad year, that Ortiz is carrying the Red Sox on his back. I mean, Ramirez is hitting 288/383/577; forget it’s Manny Ramirez and think about that. Plus Manny is hitting .353 with runners in scoring position and has 16 Baserunner Kills. I guess Ortiz is the BoSox MVP–he’s a great hitter who’s had an incredible number of big hits–but it’s marginal at best. (And let’s be frank–Slappy Rodriguez is the MVP, unfortunately.)
• Another thing I don’t get about Torre–although I’m not complaining–is why he keeps playing Sierra. He’s not a better hitter than Crosby or Martinez, and if you play one of those guys you get Giambi or Sheffield out of the field. (And, of course, Giambi made an error that cost them two runs–that’s a big defensive sacrifice for no offensive gain.) My hope is that if he gets down on Sierra he’ll get Tony Womack back in there…
• Let’s be candid: the Indians are currently in the midst of a choke job of the first order. You really need to beat Seth McClung and the White Sox D team. Maybe the Ozzard of Whizz can emulate the general manager of WPIG and just pull his fielders out of the game today. (And if Broussard is hitting, that may not be enough–he’s no Moose Carlson.)
• The current leader in Win Shares among AL players isn’t surprising in retrospect, but I wouldn’t have guessed it quickly. (For newbies, 30 win shares is a great season for a hitter.) The Top 10: 1. Sheffield 398 2. Palmiero 395 3. Big Hurt 362 4. Slappy-Rod 314 5. Sosa 313 6. Ramirez 306 7. Bernie Williams 304 8. Big Unit 300 9. Olerud 300 10. Finley 286. Some interesting stuff on that list. The fact that Rodriguez is ahead of Sosa already is pretty remarkable–he’s a historic player. I want Edgar Martinez in the HOF, but I admit we can’t even talk about it until Thomas, a comparable but clearly better player, goes. Williams is that odd case, an underrated Yankee. And even more underrated is sweet-swingin’ Johnny O, who’s better than several HOF first baseman. Nice to see him having a good year as a spear-carrier this year.
• I would rather have saved Wakefield for Sunday, but today’s matchup is fun. There’s nothing better than a great pennant race. If the Indians do their job, tomorrow will be great. And I also love one-day play-in games, although right now I just want the Yankees out…

"How I learned to Stop Worrying and Love Genocide"

The web security team at The New York Times need to do a better job of protecting what’s left of that institution’s shattered reputation. Their plan, to put their most embarrassing writers in a place no one would look, won’t work if these leaks persist. The Editors were the victims of such a leak, that demonstrates Thomas Freidman redefining strategery for the 21st century. The masochists among us can find Freidman’s latest discharge here.

Here is my hope: the more bloggers link to these links, the harder the Times will try to shut them down. C’mon, boys, help Tommy out. He needs his obscurity intellectual property rights defended with the greater vigor.

Friday Cat Blogging. . . Midnite

"We Must Never Forget That It Is A Constitution We Are Expounding"

Ann Althouse is, however, certainly right about this:

Scalia said that the politicization of the Supreme Court could be attributed to the emergence of a “judicial philosophy which says the Constitution is indeterminate.””It will become unpoliticized, as it relatively used to be, as soon as we go back to saying the Constitution means what it says, and it means what it meant when it was adopted,” he said.

As I have pointed out before, the idea that the broad Constitutional generalities that are subject to the greatest controversy can somehow be “determinate”–that conclusions can be produced that no reasonable and knowledgable person could disagree with–is absurd. (As Lindsay notes, Ronald Dworkin–who has a much greater faith in the ability of grand theory to constrain judges than I–makes this elementary point clearly in his evaluation of John Roberts.) Obviously, the idea that concepts such as “unreasonable search and seizure” and “cruel and unusual punishment” and “due process” can lead to mechinical, formalist outcomes in all concrete cases is self-evidently wrong. This is not to say that constitutional law is crudely reducible to politics, or that all constitutional arguments are equally plausible. But on no question of any significant interest does the Constitution reliably yield determinate outcomes.

These objections are well-known, so I won’t go on at great length, but Scalia’s claim that originalism can “depoliticize” constitutional discourse is incorrect for three major reasons. The first is that, as Richard Posner (and countless others) have noted, the choice to use originalism is itself a political choice. The text of the Constitution does not require that it be interpreted by the use of any particular method. It is not, of course, surprising, that “originalism” is preferred by conservatives, as by definition it will tend to produce more reactionary outcomes over the long run. This is fine, and it’s perfectly appropriate for conservative presidents to take these consequences into account, but the use of “originalism” is in no way somehow innocent of politics. Second, even among its adherents “originalism” does not yield determinate outcomes. The historical record is inherently inconclusive even for trained historians, and of course law office history generally falls well below such standards. In addition to that, originalism does not answer important questions such as the level of generality at which constitutional clauses are to be interpreted. Randy Barnett and Robert Bork are both originalists, but obviously disagree on countless issues. Pick any landmark case: Lochner, Brown, Roe–and you’ll find serious originalists on both sides of the question. And finally, in practice Supreme Court justices are never fully constrained by grand theory. To find Scalia choosing his political preferences over the demands of his interpretive methodology you have to go all the way back to Raich. And even Thomas, who is a more principled originalist than Scalia, reaches outcomes in a variety of cases–most notably affirmative action and free speech–in which he doesn’t even try to justify the result in originalist terms, because it’s virtually impossible to make the case in these terms. (All of these points, I should add, can be made about any grand theory, whether used by liberal or conservative judges; the point is not to say that originalism is illegitimate, just to say that it can’t produce determinate outcomes.)

And, of course, it’s absolutely laughable for a man who signed Bush v. Gore to complain about a “politicized” judiciary. It’s not just that the majority opinion completely contradicts Scalia’s previous writings about the equal protection clause, or that even the decision’s defenders don’t claim that it could be justified in “originalist” terms. It’s that the decision was wholly unprincipled even on its own terms–the Court was unwilling to either require a legally appropriate remedy or to articulate a principle that could be applied in future cases. If Scalia’s concerned about the execessive “politicization” of the judiciary, perhaps he should start with his own chambers first.

Save Habeas Corpus

Kevin Drum links to this terrific article about the Streamlined Procedures Act, which would severely restrict habeas corpus rights that go back to that dangerous piece of judicial activism the Magna Carta, and restricts federal oversight although the appointed federal courts have always been more reliable than elected state courts where criminal justice is concerned. And iocaste is right: it’s a scandal that what little coverage there’s been of this extremely important bill has been limited to op-ed pages.

…just from this last term, consider Miller-El v. Dretke. The prosecutor in Miller-El’s capital trial used pre-emptory strikes to remove 10 of the 11 qualified black jurors during voir dire, and during that term in Batson v. KY the Supreme Court ruled that the discriminatory use of pre-emptory challenges was unconstitutional. As Souter noted, “[t]he prosecutors took their cues from a 20-year old manual of tips on jury selection, as shown by their notes of the race of each potential juror. By the time a jury was chosen, the State had peremptorily challenged 12% of qualified nonblack panel members, but eliminated 91% of the black ones.” Despite this, ordered to reconsider the case in light of Batson the Texas courts upheld the egregiously racist actions of the prosecutor. As Souter says, “the state court’’s conclusion that the prosecutor’s’ strikes of Fields and Warren were not racially determined is shown up as wrong to a clear and convincing degree; the state court’’s conclusion was unreasonable as well as erroneous.” Not surprising–remember, on the Texas courts Al “Ten Minute Memo” Gonzales was considered a moderate. Removing effective supervision from courts like this is an awful idea.

…iocaste also has a useful guide to the current habeas process, which has already made bringing meritorious claims very difficult.

Memes!

I have been lax in my responding-to-memes responsibilities, so given that I’ve been tagged by Lindsay I’d better submit what I’ve read of the 100 banned books list:

The Chocolate War by Robert Cormier; The Adventures of Huckleberry Finn by Mark Twain; Of Mice and Men by John Steinbeck; The Catcher in the Rye by J.D. Salinger; The Color Purple by Alice Walker; Blubber by Judy Blume; The Handmaid’s Tale by Margaret Atwood; To Kill a Mockingbird by Harper Lee; Beloved by Toni Morrison; The Outsiders by S.E. Hinton; The Pigman by Paul Zindel; A Light in the Attic by Shel Silverstein; Brave New World by Aldous Huxley; James and the Giant Peach by Roald Dahl; American Psycho by Bret Easton Ellis; Slaughterhouse-Five by Kurt Vonnegut; Lord of the Flies by William Golding; Native Son by Richard Wright; The Adventures of Tom Sawyer by Mark Twain; Song of Solomon by Toni Morrison.

Not a very impressive list; too much reading about sabermetrics crowding out would would for any normal, well-abjusted person be the period for young adult books is a major problem.

I would like to propose a meme of my own, which is admittedly exceedingly lame (and, in my case, embarassing.) Jesse links to this list of the top-grossing moives of 1985. Now that I’m a cranky snob when it comes to movie I’m lucky to see one or two of a year’s top 20, but at the time I not only had more catholic tastes but my best friend’s father was very well-connected and got a lot of movie passes, had Canada’s equivalent of HBO when it was unusual to have it, etc. So I was suprised how many of these that I’ve seen (I still remember seeing a sneak preview of Fletch as a double feature with Gotcha! (Jesus H. Christ on a popsicle stick.) So, anyway, of the top 50 movies of 1985, I have seen (ones I saw in the theater in bold):

1. Back to the Future
3. Rocky IV
4. The Color Purple
5. Out of Afr…zzzzzz…sorry, I fell asleep before I could finish the title.
6. Cocoon
7. The Jewel of the Nile
8. Witness
9. The Goonies
10. Spies Like Us
11. Police Academy 2: Their First Assignment
12. Fletch
14. European Vacation
16. The Breakfast Club
19. Pee-Wee’s Big Adventure
20. Brewster’s Millions
22. Jagged Edge
25. Commando
26. Teen Wolf
27. 101 Dalmatians (Re-issue) (1985)
28. Silverado
31. Desperately Seeking Susan
32. Prizzi’s Honor
34. Agnes of God
36. Summer Rental
37. The Emerald Forest
38. Weird Science
43. Porky’s Revenge
45. Volunteers
46. Young Sherlock Holmes
47. Year of the Dragon [if you thought Heaven's Gate sucked...]
49. The Sure Thing
50. Invasion U.S.A.

Hmm, that’s one impressive collection of crap. I think it’s safe to say that my taste has improved, although I would have been a more agreeable date back then. (“What? See Serenity when there’s a “Louis Malle’s most depressing existientialist movies” festival in town?”) And at least even as a young teenager I knew enough to avoid Joel Schumacher. (I’m not counting E.T., which I saw on a sneak review before its original release and haven’t seen since.)

I offer either meme to anybody who dares to answer their call!