Memo to the blogosphere re Google China

January 27, 2006

Get over it, already. Take a deep breath, and repeat after me:

“China censors the internet. China censors the internet. It is actually CHINA that is censoring the internet.”

If you are in China and surfing the web for pictures of the massacre at Tiananmen Square, you either need a fabulous proxy server and a few other tricks up your sleeve, or you are out of luck. This is not Google’s doing, no matter how much we’d like to blame them.

You see, China is run by an authoritarian regime that tries – sometimes successfully, sometimes not – to control the flow of information in and out of the country. For the sake of preserving the position of the Communist Party and preventing a revolution, they often exercise tight restrictions on potentially destabilizing issues. Stop me if you’ve heard this before.

Most of the time, people in China are not searching the internet for pictures of Tiananmen Square. For one thing, they don’t want anyone to find out that they are looking for said pictures. For another, there are other ways to communicate about democracy, protest, and tanks – code words, text messages, word of mouth, through the massive Chinese diaspora abroad, and so forth.

When googling for information on whether or not hunky Taiwanese Mandopop megastar Ashin has a girlfriend,** however, you can wait a very, very long time before the search has been cleared of any unsavory results. A very long time. For these people, there is now a new service: a locally based Google search engine that has already been sanitized.

The difference is between having the censoring done all at once from the start, so all you have to do is search and find your results, and having it done on an ad hoc basis, so that each time you open Google, you have to wait through the censors. It’s not a choice between a censored search and an open one.

The beauty of the pre-censored search, beyond the shorter wait times, is that it is labeled as being censored. A little line appears at the bottom that says: 据当地法律法规和政策,部分搜索结果未予显示. That is, “According to local laws and policies, some of the search results are not displayed.” This is a good thing. This means that when you search for Tiananmen and find only tourist information, you also discover that there are things about Tiananmen that you aren’t allowed to see. Chances are, at some time in the last 16 or so years you heard about a little disturbance taking place there, but you can see that whatever it was, it was sensitive. If you so desire, you can go elsewhere to fill in the blanks.

I’m missing the part here where Google is evil for complying with this. I get the “government censorship is evil” bit, just not the part that puts it all on Google’s head. Google made a decision about how they were going to be censored. Not whether they would be, but how.

** Sadly, he does.

An Ode to All Things Berenstain, Upon the Death of Stan

December 1, 2005

I’ve traveled many places in recent years, but I admit that the one place I’ve always wished I could go is down a sunny dirt road, deep in Bear Country, to the home of the Berenstain Bears.

Though Brother and Sister Bear have stayed roughly the same age in the First Time Books series that began in the mid 1970s and continues until today, the issues they’ve faced in each installment have changed with the times. As a child, I could sympathize with the conflict that led the Bear cubs to draw a harsh red line down the floor of their playhouse – my sister and I had a similar line in the back seat of our parents’ car (of course, while Brother and Sister sorted out their differences and erased said line by the end of the picture book, my own sister and I continue to sport a sibling rivalry that puts many international conflicts to shame).

Together with the Bear Family, I started school, visited doctors, watched my own mama go back to work, stayed with new babysitters, picked up toy-strewn playrooms, and even went out for a team (the Bear siblings had much more success with this than I did; while they learned teamwork and honed skills, I was benched while the boys on my soccer team led us to an undefeated season. Of course, I saved us from one goal and thereby earned my trophy, but I remember with some embarrassment that my extraordinary save was entirely accidental – as in, the ball hit me in the ass while I desperately searched in the wrong direction for signs of play).

I read about the Bear family’s need for a healthy diet after eating too much junk food, and saw them appreciate other forms of entertainment after watching too much T.V. Though I learned about the importance of moderation in many aspects of life from the Berenstains, I never actually applied that lesson to my Berenstain book collection: it numbers in the hundreds.

The reason for this is that unlike most children, I never grew out of a desire to read of the Bear family’s adventures. As a high school Spanish student, I learned inclusiveness and the present progressive verb tense in “Los Osos Berenstain No Se Permiten Ninas.” (As a China specialist in grad school, I harbor a fantasy of translating the books to share with the Chinese speaking world.) I howled when the Beary Bubby toy craze hit Bear Country, and Papa got swept up along with Brother and Sister in collecting the little creatures in a frenzy that paralleled the US obsession with Beanie Babies. In general, I loved the Bear versions of popular ideas: Sister Bear’s Bearbie Dolls, the dramatic presentation of Grizzlystiltskin, a visit to Santa Bear.

Over the years, the topics became more sophisticated: the Bear family explores God in “The Berenstain Bears and the Big Question,” reproduction in “The Birds, the Bees and the Berenstain Bears,” and racial prejudice in “The Berenstain Bears and the New Neighbors,” in which Bear Country becomes home to the Panda Family, and Papa Bear comes to terms with their differences – which include a preference for bamboo over honey and a lack of knowledge of football.

Ask me anything about the Berenstain Bears: I am a superfan. I joined the Berenstain Bears Treehouse Fan Club. . . when I was 18. When the series expanded from First Time Books and First Time Readers to include Berenstain Bear Scouts mysteries and Big Chapter Book stories, I was the first on the band-wagon. Never mind the fact that I was a college student and had long mastered the art of reading a picture-less novel – I was smitten by all things Berenstain. I can still sing the theme song from the old Saturday morning cartoon, set to the tune of Stars and Stripes Forever. It wasn’t until I joined the junior high band that I learned the song had alternate, non-bear-related lyrics.

Like all things popular and much-beloved, the Berenstain Bear books have come under much criticism over the years. I was first introduced to the supposed difference between mass-produced Bear adventures and “quality” children’s literature when I worked in an elementary school as an Americorps*VISTA after college. I was creating a curriculum for a family reading program, and learned the hard way that my favorite books to read with my family as a child didn’t make the cut. Papa Bear was a bumbler – a travesty for turning the ideal of the father into a big kid that had to be controlled and raised by Mama Bear. The cartoonish pictures weren’t quality art – no Caldecott medals here – and the themes failed to embrace a diversity of cultures to which children of color could relate.

The problem, however, is that when I sat down with my after-school reading program kids in the school library and told them to pick out books they wanted to enjoy together, they would inevitably declare the latest and greatest Newberry award winner “a bit boring” and reach for something Berenstain. Don’t get me wrong – among the medal winners and among the books considered high quality children’s literature, there are many that I love and adore. For every new book that is a little too socially conscious for a five year old, there is one that is timeless and lovely. But appreciation for these supposed “masterpieces” should not come at the expense of recognizing what children love to read; making children love to read is, after all, the point of creating children’s literature.

Just a few years ago, I spent a long afternoon in line on the Mall in Washington, D.C. queuing for autographs from Stan and Jan; when the line was cut off a few people ahead of me and the Berenstain family escorted away, I was easily as disappointed as any of the five-year-olds in line behind me. Maturity has only taught me not to cry. In public, anyway.

This week marks the end of an era of my life as a Berenstain devotee: Stan Berenstain, co-creator of the series I love, has died. Because the Berenstain Bears are now a family business, the books will live on, with future volumes written collectively by The Berenstains, rather than simply Stan and Jan. My own collection, which spans a longer frame of time on this earth than I do, will include these new volumes, but I know I’ll remember 2005 as the year of transition.

More pointless and unproductive whining about Miers

October 26, 2005

I can’t believe how silly some of this stuff has gotten. Here, cross-posted for reference purposes, is my comment interchange from Two Minute Offense, where I agree with the core post, and take issue with some of the commenters, particularly one “courageous” person identified as “anonymous” and one Jeremy. Read their statements, but pay heed to Stan’s.
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Oh, Jeremy- “I’ve yet to see any “personal attacks” against Miers”- go to Jonathan Adler’s posts at NRO where they make an extended point about how a typo in her questionnaire response (“contact” instead of “contract”- it is obvious that they had to rely on spell-check given the time) means she is too sloppy to be a SCOTUS justice when she is actually supposed to be meticulous, to see how petty the personal attacks have been.

And none of the opponents here have cited one specific documentably supported objection to the nomination. “Not conservative enough”? We simply don’t know. We can have ideas, but we don’t have actual evidence- the stuff about sending money to Gore, the feminist lecture series, and the Texas Bar affirmative action outreach (“quota”? Perhaps- ask the quesiton and don’t let her dodge it) are either already dealt with and well-explained, or we don’t really know yet and the answers will come from the hearings- if the SJC does its job.

Stan correctly points out that the Entitled Right Punditry immediately threw a giant temper tantrum when the nomination was announced and has been pounding on the floor and kicking its feet wildly ever since. And much of the commentary I’ve seen has been other unrelated recycled gripes, most of which are either incorrect, unimportant, fueled by ignorance, or are essentially unrelated policy differences (Katrina spending, steel tariffs, highway spending, drug benefits, immigration, etc.), giving the distinct impression that it was just time for us Real Conservatives to have a good cry over the fact that the American public and Senate are not enough in agreement with us so we get to have our own way about everything. I heard almost exactly the same caterwauling in 1986 and 1987 about another Republican president who now looks to have been a pretty good president.

The thing to do now is what we should have done several weeks ago. Dig for all the information we can find, publicize it without the side comments, let our representatives and lobby organizations know our well-supported views and concerns based on facts (e.g., send Sekulow a letter, enclose a $20 contribution), ask our senators to be sure that certain questions are answered appropriately (I could provide a list), and wait to see what the hearings turn up.If Miers looks bad, she will withdraw. If she looks good, she will be confirmed. If she looks liberal, the center-right senators will vote “no”.But the state of the “debate” to date has been appalling. The best comments on substance have been made by John Hinderaker and Paul Mirengoff at Powerline- go read their stuff.

Debates from ConfirmThem-dot-com

October 25, 2005

I posted a harmless little bit of commentary on a thread about JR Brown, and got shot at by “Andrew”. Here it is, for the record, from http://www.confirmthem.com/?p=1691.
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16 Kurmudge Posted on October 24th, 2005 at 7:01 pm. About ‘JRB on SDP’.
No matter how much we want the Constitution to be specific enough to protect us from black-robed dictators diving headlong off the cliff before they can even get to the slippery slope, we can’t. Unless we turn the US Constitution into something as detailed as the EC nightmare, there will always be a need for an interpretive court to tell the government to knock it off, which it does well sometimes and less well at others (Kelo).

But how do we really preserve the basic fundamental rights of not being regulated by the government for everything if there is not some kind of recognition that we have inalienable rights not spelled out (because they were so obvious to the founders) in the Constitution, and had been called out just 12 years previously in the Declaration as being liberties endowed by the Creator? When voracious governments of all levels go nuts, someone has to call a halt. Yes, today the SCOTUS is as much at fault as is the legislature, but pretending that there are no natural law liberties is not exactly a way to preserve them.

The problem is not Griswold as described and justified by Harlan (NOT Douglas’ execrable opinion), but that the Court then threw off all barriers and started to act like a permanent Congress in Eisenstadt, Roe, etc. Each time they didn’t like a case, they made something up to justify it. That is STILL not a reason that we don’t have some kinds of “fundamental rights” that flow from our basic right to life liberty, and property. I think that that is where JRB was going, and decided not to get into the debate and the need to explain in one-syllable words the delicate difference between Griswold (some logic) and Roe (utter nonsense, with no pretense at Constitutional justification).

This is still, and will always be, a sort of dialectical balance to yank things back when they go too far off, as Rehnquist, et al did to the Commerce Clause in Lopez and Morrison.
And we STILL don’t know how Miers feels about this, despite all the heated rhetoric in the blogosphere. Time to stop bloviating and wait, make sure that somene on the SJC asks the right questions. If she answers sensibly, that’s all we can ask for unless we are sure she’s lying., Last time I looked, the President gets to make these nominations, and us fussing that he didn’t consult us enough is equally wrong as Chuckie-doll Schumer suggesting that he provide the list off of which the choice is made.
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17 Andrew Posted on October 24th, 2005 at 7:10 pm. About ‘JRB on SDP’.
Kurmudge, who tells the British government to knock it off? The British parliament got along perfectly well prior to the Factortame case.

Basically, there are two kinds of judicial review: either the courts strike down only legislation that plainly conflicts with the terms of a constitution, or the courts have carte blanche to enforce what they deem to be the “spirit” of the constitution. Those of you who advocate the latter have two high hurdles: (1) the framers never intentioned such a thing, and (2) other countries have gotten along perfectly well without ANY judicial review, much less the carte blanche type that you advocate.
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18 Kurmudge Posted on October 25th, 2005 at 12:22 pm. About ‘JRB on SDP’.

As you very well know, Andrew, the British government operates essentially totally on “political questions” that are, by definition, non-justiciable. And you know that we have a different system. And the issue here is separation of powers, particularly the tendency of the SCOTUS in arrogating for itself a lot more power than most of us who read this blog would believe is proper. I do agree with Black’s comment in his dissent on Griswold, even if I am sympathetic to Harlan’s actual opinion on that case.

But you still don’t address the fundamental question, it seems to me. We cannot spell everything out as the EC bureaucrats in Belgium are determined to do, and it is obvious that Thomas is the only justice who will rail against the unfortunate modern tendency to threat the 10th as a “truism” in his dissent on the term limits case. So we are left with the reality that something still has to be interpreted, and this ends up being in actual practice a push-pull battle to keep the Douglas-Brennan-Stevens-Souter-Ginsburg cabal from making it up as they go along when that irresistible mood strikes to be a Change Agent For Good, and preventing the Kennedy types from getting too enamored of their press clippings and listening to goofy clerks who like to read Swedish laws about “tolerance”.

I categorically reject your notion that the process of judicial review is a digital switch. Over history we went from Gibbons to Slaughterhouse to Darby to Lochner to (yecchh) Wickard to Lopez, etc.- not exactly a straight line of interpretive approach. And I fail to see where, by recognizing the same principles of review as CJ Roberts appears to accept, I am suggesting anything like “carte blanche” to legislate judicially.

Your comment suggests to me that you think that every law allowed to stand under the Commerce Clause that regulates something not directly crossing state lines (in other words, Marshall in Gibbons was dead wrong) is an example of unconstitutional behavior. Maybe, under the most restrictive interpretation of originalism, but that view is a non-starter in the real world, so much so that you won’t find any mainstream conservative seriously saying that the minimum wage laws, for example, can be struck down. The realistic approach was Rehnquist’s in Morrison, it seems to me. If we can maintain and extend that, we will do well. If we can kill Roe (and, please, the principle of “health” exceptions established by Doe and affirmed in Casey) dead once and for all so that the issues could be legislated appropriately, we ought to be delirious.

In practice appellate jurisprudence is a continuum, and we need to keep doing useful things to increase the spring pressure toward the right side. I’m not sure that trashing Miers to promote JRB (a personal favorite, I add) is helpful on that front.

Piling on Miers is getting ridiculous

October 24, 2005

This post at “Baseball Crank” prompted me to post a mild rebuke in the comments, cross-posted here for the record. The subject is Hugh Hewitt’s imputations of elitism to some of Miers’ critics (because she went to SMU rather than Harvard), followed up by him then actually invoking a little bit of an elitist tone in a follow-up response to a different criticism.
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Hugh is on record as actually promoting an elitist mindset in his book “In, But Not Of”, where he advises young Christians to go to fancy schools, etc., to get with the crowd that has the influence on the world. Sort of like he did.

But though I think he has gotten a bit hyperbolic at times in his earnest defense of the Miers nomination, he has been a lot less so than Will, NRO, Prof. Bainbridge, or the other virulent commentators who are so unhinged by this that they have taken to criticizing the proofreading of her questionnaire responses for one letter typos as evidence of her unfitness for the job (http://bench.nationalreview.com/archives/080370.asp).

This would have been far better in every respect if those opposed had made their substantive objections known and then shut up, at least with the hortatorical invective, until there was something real to talk about. The first legitimate policy-oriented issue I’ve seen brought up is the Texas Bar Assn minority set-aside, which is a substantive policy matter that people can discuss, pro and con, in an adult manner.

But it was, and still is, demeaning to a distinguished attorney to say that unless she is an incompetent idiot she is supposed to remember the names of ConLaw cases (e.g., the 1920’s Nebraska case on German language instruction, etc.) that only law professors remember after ConLaw 1- you remember the concept, the ruling, but seldom the rationale or the case name. And there is absolutely no reason to remember it all, even for one going to the Court.

And to be apoplectic about her statement that Griswold was “correctly decided” is simply unfair, revealing more ignorance on the part of those protesting than Ms. Miers herself. I tend to agree that Griswold WAS correctly decided, while disagreeing with Douglas’ rationale. If you read the decision again, you can very consistently argue- with Harlan- that the state has no right, where we are “endowed by our Creator with certain inalienable rights… among these… life, LIBERTY…” (emphasis added) to intrude on the intimate affairs of married couples. That says absolutely nothing about Roe, which made no pretense whatever of any natural law or Constitutional basis. Harlan goes to the 14th Amendment, implicitly incorporating the originalism of the Declaration in declaring our independence from state interference in our daily lives. Where there is another life involved- as in a fetus- there is a state interest in protecting that helpless life. What’s not to like about liberty and morality, predicated on marriage, as the Griswold decision- not the Douglas opinion rationale- concluded?

The thing to do, still, is to see how she handles the hearings and the questioning. Ask her detailed questions about philosophy. If she refuses to answer, or gives answers you don’t like, vote her down.

But the current right-vs-right food fight has brought out the petty in everyone, and makes me ashamed to be a conservative. Some of these postings in various places sound, in form and even substance, like Daily Kos.

Is Harriet Miers Brennan, or Blackmun?

October 7, 2005

“Servant Disposition”, Skilled Manipulator, or anxious and scared nonentity?

Harriet Miers was not my candidate for the open SCOTUS seat; I threw the same kind of hissy-fit upon hearing about it as did many of my fellow True Believers. However, after reading all the fulminating outrage coming from many of them, it almost seems as though it is time to take a shower and move on. The outrage is a bit over-the-top, and seems to have as much to do with disappointment over missing out on a good cathartic fight as it does with any actual evidence about the nomination.

There is a lot of the current furious commentary, larded as it is with comments about the highway bill, Katrina-recovery spending, the steel tariffs, failure to veto appropriations bills, signing BCRA, and (drum roll) the ineffably evil act of keeping a primary campaign promise to add prescription drug coverage to Medicare (the latter shows up in virtually every post). Based on what we read, the desire for a “good cathartic fight” seems to be as much longing for a fight with Bush as with Harry Reid.

One factor that is never addressed, as the commentators slog down the list of judicial superstars they wanted to put into O’Connor’s chair, is that of roles on an effective team. Smart people, from athletic coaches and managers, to corporate gurus, to Saint Paul in the 12th chapter of first Corinthians (“14For the body is not one member, but many. 15If the foot would say, “Because I’m not the hand, I’m not part of the body,” it is not therefore not part of the body. 16If the ear would say, “Because I’m not the eye, I’m not part of the body,” it’s not therefore not part of the body. 17If the whole body were an eye, where would the hearing be? If the whole were hearing, where would the smelling be? 18But now God has set the members, each one of them, in the body, just as he desired. 19If they were all one member, where would the body be? 20But now they are many members, but one body. 21The eye can’t tell the hand, “I have no need for you,” or again the head to the feet, “I have no need for you.”), have discovered that an organization that pays attention to a range of roles and responsibilities and fills the essential holes usually accomplishes more than one exclusively staffed by superstars. This is emphatically not an argument for Hruskaism, the famed paean to mediocrity descended into by the late Nebraska senator while desperately trying to support the Supreme Court nomination of the unlamented G. Harrold Carswell for associate justice.

The most effective working group- which in this case means a center-right caucus on the US Supreme Court- boasts a variety of skills to fill a variety of essential roles and responsibilities. Thus far this debate over Miers has exclusively focused on two issues: 1) where does she stand on various Constitutional law positions, and 2) how can she be competent to deal with those issues given that she is not known as a Constitutional scholar in the way that law professors and appellate court judges are. The debate might be enhanced if we stop and look at a couple of characteristics of the Court and of those persons who have been most effective, and thus left a lasting legacy (for better or worse) in their service on the Court.

When I was young, I recall a lot of angry talk about the Supreme Court by conservative people, and the object of the enmity was Justice William O. Douglas. This ire at Douglas actually midwifed a lot of half-baked, but sort of serious proposals to “Impeach Douglas!” He was the target of the barbs, and the reputed source of all the Godless and Immoral rulings to protect communists, outlaw Bible-reading in schools, and the like. Interestingly, he retired in 1975, and the Court didn’t make any sudden correction toward more sound jurisprudence. And the liberal legacy of the Court didn’t start in 1939 when he took his seat on the bench. Why?

Because these things require teams, not just visible superstars- and superstars are important, provided that they can operate in a group dynamic without being narcissistically counterproductive. If you are uncertain about this, think of a football team with 11 superstar defensive ends. They will still be outrun by the fast tailbacks. Any real team needs to field all the different positions. To the extent that the luminously intelligent and articulate Justice Scalia is successful in shifting the Court in his direction on some matter, it was likely at least as much because the late CJ Rehnquist had quietly maneuvered such a result by taking care of a lot of little things in the background as it was because Justice Scalia debated the issue in the conference with rapier-like logic.

Marvin Olasky has been widely ridiculed for approvingly posting a statement at the World magazine blog to the effect that Miers’ “servant mentality” would serve the country, and the Right, well at the Supreme Court: “According to a source in her Dallas church quoted by Marvin Olasky, Harriet Miers is someone who taught children in Sunday School, made coffee, brought donuts: ‘Nothing she’s asked to do in church is beneath her.”

The question that should be asked, as we all fulminate over Michael McConnell and Michael Luttig, is whether the conservative wing of the Court would benefit from adding someone who is less debater and more water-carrier.

The best water carrier in Court history was probably William Brennan, whose 34 year tenure fell just short of that of his then more notorious colleague. I doubt that there is a Court historian around today who would not agree that the unabashed liberal who had the most impact on the Warren Court and its successors was the previously little-known, certainly not particularly impressive state supreme court justice from New Jersey. As David Yalof, UConn political science professor and expert on Supreme Court nominations put it in the Christian Science Monitor (http://www.csmonitor.com/2005/1007/p01s03-usju.html): “No one could possibly have thought in 1956 that William Brennan was on the top 100 list of people to become a justice of the Supreme Court,” Yalof says. “At the time of his appointment, William Brennan…… was far and away not considered the most reputable justice on his own court. “Was he qualified?”

Tony Mauro, in Legal Times (http://www.law.com/jsp/article.jsp?id=1122023116162) explains why the most effective style is not necessarily brilliant argument: “’They don’t argue cases at conference,’ says one former Court clerk. ‘Kennedy and Scalia would say early on, ‘Wait, we need to discuss this,’ but Rehnquist would tell them, ‘This isn’t a debate society”. Mauro went on to explain why Brennan had been effective with his personal relationship style, while Chief Justice Roberts’ formidable skills of debate may not necessarily be the defining issue compared with his pleasant demeanor. The same factor may apply to Harriet Miers based on the roles she has had to play over the last 20 years in many situations infused with challenging group dynamics.

The best exposition on this phenomenon with regard to the Court and the way Brennan worked to move the agenda without flash or visibility is Bob Woodward’s 1979 book about the Burger Court, The Brethren. More than any other treatment, that narrative shows how Brennan’s causes were moved forward- through Brennan’s tireless, behind-the-scenes maneuvering and personal lobbying. The most interesting case in point was the cultivation and apostasy of Harry Blackmun. Just take the book, and in the index under “Blackmun”, go to “and Brennan”, and you will see how the senior Justice spotted Blackmun from the beginning as a timid person who hated to be the person on whom everything rested. He took his chair at the end of the term, and dreaded having to make the decisions about certiorari on a large pile of cases that had three justices already signed on.

Brennan saw Blackmun as one whose insecurity could be manipulated, and he set his plans to do so. The process by which that occurred, the significant shift by one insecure and frightened justice away from his philosophical roots, and his long time friend (Chief Justice Warren Burger, friend since childhood, wedding participant, and the reason he had been nominated for the Court at all) toward media lionization and the creative exploration and discovery of privacy penumbras, is an fascinating tale that may offer a very different take on the current situation.

The single most over-invoked point of the current discussions of Miers has been the solemn recitation of the mysterious ways of constitutional law. National Review’s Jonah Goldberg made an illustrative comment that appears to reflect that common misconception (http://corner.nationalreview.com/05_10_02_corner-archive.asp#078565): “Here’s the trap. Miers by all accounts is tireless at doing her homework. If she does show up at the hearings and can actually duke it out over the fineries of constitutional jurisprudence, the Democrats will have no place to go (and, I might add, neither will many conservative critics). This might mean Miers is in for the Mother-of-All-Cramming-Sessions.”

This is a common misconception, and very popular in print these days. The truth is, on those constitutional law subjects, Miers will need about one day, if any, of brush-up coaching and reminders from any competent professor; I suspect that Mr. Hewitt would be happy to help. Any first year law student can go in front of Senator Biden and quote exhaustively from “Griswold” and “Doe-Bolton” about privacy, “Lopez” and “Morrison” about the Commerce clause, “New York” and “Prinz” on federalism, and so on.

The key is not the debate- every party who ever took a Con Law course knows the issues in those cases like the ingrown nail on his left big toe. The deciding point is not nuances of Article II, it is persuading an undecided someone else, for reasons that often have little to do with legal matters, to go along with your position on a particular case. That happens more often through personal interplay that has little to do with the Constitutional mysteries.

I seriously doubt that Justice Brennan won very many battles by applying superior, as Charles Krauthammer put it, “constitutional jurisprudence …. exercise of intellect steeped in scholarship.”

In Blackmun’s case, it had more to do with an old friend, Burger, who, as portrayed in the book, was a bit self-absorbed and took Blackmun for granted as an ally, and Brennan, who saw a chance to use his personal skills to pump up self-esteem of the insecure man and win a permanent and ever-more-reliable ally. Brennan didn’t care who got the ink or wrote the opinion- just the so he got the vote for the precedent he cared about. Woodward’s description of the patient seduction of Blackmun, on Roe v Wade, to move from trusting the Mayo doctors’ medical judgement regarding abortion, to writing an opinion that effectively authorized legal infanticide, is classic marionette manipulation. You don’t have to like the result to admire the craftsmanship. Like Reagan, Brennan cared more about results than about credit. Burger was the opposite, an image person who loved the cameras.

So, what does that suggest we should watch for when Justice Miers takes her seat on the Bench? Will she be a Brennan- a stolid behind the scenes rudder helping to steer a large ship in her preferred direction? Or a Blackmun- a nervous and uncertain cipher with regard to the causes near and dear to the hearts of President Bush’s “base”, currently in near revolt? A team player on a good team, as she has been for her life thus far in the law? A team-focused provider of synergy and steady progress rather than a mercurial leadership?

Her nature and style have been described both ways by people alleged to be “in the know”. And she could turn out to emulate either predecessor, and still make conservatives very happy if she allies with the right mentors on the Court. The inference is actually high that she will gravitate toward those with whom she is comfortable, most conspicuously, the new Chief Justice. If he is the person he is reputed to be, that is good news for the Right. And, after the justice’s philosophy in an area of appellate law is established, the leg work is done by clerks, and if she selects clerks the way she helped to select appeals court judges, the President’s base has no cause for complaint.

On the other hand, David Frum has described Miers as “a taut, nervous, anxious personality”, likely to succumb to the seductive Washington leftward temptation and abandon her roots, whatever they are (http://frum.nationalreview.com/), seeking approval. Knowing nothing whatever firsthand, and having infinite respect for Frum, it still doesn’t appear to be obvious that she is a Blackmun. In fact, it would appear most unlikely that she would tend to work closely with Justice Breyer or Stevens as her “Brennan”, if indeed she subconsciously seeks a mentor on the Court in the manner of Blackmun.

If she is the person President Bush appears to believe she is, she may well herself be the next Brennan, with views that are more popular with conservatives.

We shall all see.

Why Miers? It may be simpler than you think.

October 4, 2005

The dismay on the right over the Miers selection to the SCOTUS, which I philosophically share, may be a bit more histrionic than necessary in light of one logical scenario.

Suppose Bush’s issue in getting a true “movement conservative” justice confirmed is not that a Democrat filibuster would block a vote. Suppose that the Senatitis sufferers (that word is a tribute to the Dr. Johnson of our day, James Lileks) who actually wish to dictate the selection are Specter, Snowe (who voted against Rogers-Brown and made a speech criticizing her opposition to abortion as the primary reason), Collins, Voinovich, Warner, et al? Suppose that when Bush consulted the Senate regarding this nomination he discovered that his own party was likely to betray him, because of the truism- there are liberal Republicans, but when it comes time for a party-line vote, there is no such thing as a conservative Democrat now that Zell has retired.

Therefore, he did the only thing he could do to still meet the objectives- selected a stealth candidate who only he knew, but also knew he could trust on the key issues.

By the way, regarding age and prospective longevity on the Court, remember that Miers’ mother is 93. She could still stay there for 20 years.

Like any other therapeutic drug

August 29, 2005

The estimable Prof. Althouse is hosting a discussion of the medical marijuana issue, the context being this story about suspected rigged research on the subject being done for the Feds. The Usual Suspects are all over the map on why/how, with a lot of discussion of the recent SCOTUS overturning of the California law, Gonzales v. Raich at the request of the US government.

Why is it that when libertarians talk about this issue it so often sounds like they are not really interested in cancer sufferers, they are just eager to get their hands on a good stash for recreational use? The public can be forgiven for concluding that they are, as in the California case (Gonzales-Raich), eagerly jumping on whatever train will get them there.

There is no drug in existence that does not have unintended consequences (just ask any COX-II inhibitor manufacturer, or chemotherapy patient, about side effects). And MJ, like another very effective drug, thalidomide, has a nasty reputation. But, just because a drug is capable of being misused does not mean that its therapeutic effects should be denied to sick people for whom its use is indicated.

However, the problem here is not the FDA, the DEA, or any other bureaucracy- bureaucrats do nothing more than what all bureaucrats do, that is, go with the flow and offer the policy proposals favored by those who provide the money. The issue is with Congress, where there are few serious policy people willing to play this issue when there are more camera-friendly dragons to assault.

The reason that Congress won’t change? There are two. First, there are those who are anti-recreational-drug and pretty much enthralled with the memories of Reefer Madness, just as there are those who want to kill vaccines and thalidomide. Second, the California gang that gave us the very dumb Raich law is the perfect illustration of how to kill any progress, by letting the overage ’60’s hippies get near the issue.

Raich, as written, was not a medical marijuana bill, it was an ill-disguised Trojan Horse for unfettered home cultivation by the most intemperate of recreational users. If you are trying to get some relaxation against a Schedule I drug on scientific grounds, you don’t pass a law changing the drug all the way out to Schedule III instead of II, and then eliminate the requirement that it be prescribed (what sane person would only require a doctor to “recommend” use of MJ). That philosophy of treating marijuana as being less problematic than Allegra and Viagra may reflect what the hemp enthusiasts truly believe, but it is no way to change either minds or laws.

The smart way for California to have handled this, before poisoning the well as they now have, would have been for a UCLA team to set up a carefully controlled double-blinded study using high quality extracted THC in suppository form, with a patient population that was clearly compassionate use- late stage cancer patients, hospice AIDS patients, etc. That gets away from the emotion and treats the alternate route administration drug as a drug.

Then, if the results are as expected- patients get relief from nausea, you publicize the outcomes broadly, expose the inevitable blue-haired Priscilla Goodbody opponents for the anti-science bluenoses they are, and move to the next stage, inhalation.

In the end, if you are right about the drug, you have the true clinical data to support a compassionate use application for Schedule II prescription in two different alternate administration forms. But MJ should be usable like any other drug, and controlled- by DEA prescription reporting, if appropriate, like any other abusable drug to prevent the wrong people from getting it or overdoing it. And I say that as a conservative evangelical who doesn’t even like wine, myself (I wish I did- red wine has very real health benefits).

Of course, if the real agenda is to make it easy for spaced out refugees from Haight-Ashbury 1968 to grow their own stuff, that strategy wouldn’t be terribly helpful in the short run.

Terri, Feeding Tubes and Life Support

March 27, 2005

The Terri Schiavo saga is almost done, the Almighty Courts have spoken, and we can begin what one would hope to be a mercifully short post-mortem on the issue itself. I have two thoughts on this, regarding mainstream media treatment of the matter, and then about the nature of end-of-life law itself.

First- media performance. Once again, the Big Media coverage has been lousy, and it is almost impossible to tell if it is the result of pure incompetence and laziness or promotion of its standard position- scientists and rationalists versus the dogmatic and ignorant religious zealots. The truth is almost certainly a combination of the two.

The most obvious example is the constant characterization of Mrs. Schiavo as a vegetable on life support, essentially described that way by ABC News in its push-poll a week ago. This matches the willful ignorance of my favorite lefty friend, who has variously scolded me in the last week for promoting lawlessness, insensitivity to “states rights”, immorality for supporting a president who signed a Bill in Texas that permitted a level of cost analysis to be incorporated into “pull-the-plug” decisions, and of promoting heroic artificial life-extension measures for accepting what he repeatedly referred to as “artificial nutrition and hydration” to keep her alive (his final comment was: ” hey a lump of cancer is alive… lets feed that too”- this sensitive statement gives you an idea of the real attitudes of some of the far left on these matters). Regarding the latter point, he revealed that he is just as confused about this as every lazy network “reporter” out there. If you polled the public on this subject, you would likely find that a large majority is sure that Terri was being fed either intravenously or by a tube stuck down her throat, and with respiratory and circulatory assistance as well. Wrong.

When I was in nursing school (I have a current license which I earned when I was deputy principal investigator on clinical trials while managing operations for a small medical device company; I now work in the support area for an academic medical research facility), I took care of patients like Terri. People who were demented to varying degrees, from loss of short term memory all the way to total unawareness of surroundings, incontinent, and immobile. We would awaken them in the morning, get them cleaned up and dressed, administer morning meds, then get ready for breakfast.

I had one particular patient who took all his nutrition and hydration through a percutaneous endoscopic gastrectomy (PEG) tube, just like Terri. Folks, do you know what that really is? It is a funnel, into which you pour Ensure- just because it is easier to do it that way than to spoon-feed. Period.

It is used in two types of situations: 1) the patient has trouble swallowing, or 2) it is simply a lot easier on the nursing care staff and more efficient to feed the client that way. There is nothing wrong with any of the GI tract- the stomach works just fine, the intestines absorb nutrition totally normally. And, regarding the swallowing difficulties, any person who has ever spent any time around a long term care facility knows that up to half of the residents have trouble swallowing, so all of their liquids are mixed with thickeners to make them more viscous and easier-to-swallow.

So Mrs. Schiavo had a fully functioning cardiac system, and a fully functioning GI tract. Her “life support” consisted of being fed by use of a funnel to dump in the most common over-the-counter “instant breakfast”. Yet the Big Media types seem to have done their best to obfuscate reality, by never explaining the PEG tube, in fact, they seem to have gone out of their way to suggest that a “vegetable” was getting D20-plus-lipids through some kind of intravenous infusion. The reality is that, if Terri had been given to custody of some other party, the twelve-year-old kid next door could have fed her just fine. No significant infection issues, no special medical problems.

There is no question that the mischaracterizations of her physical (not mental) condition fed a public impression that was quite different from reality. Why? Couldn’t those advocating death for Mrs. Schiavo make the case honestly? One wonders. Especially given the behavior of ABC and the Washington Post regarding that mysterious talking points memo never tied to any Republican lawmakers, handed to them by Democrat staffers, yet somehow reported as a Religious Republican Right Manifesto. (update- this memeo actually turned out to have been created by a legislative assistant to Sen. Mel Martinez, so we can leave out the “Democrat conspiracy” and simply note that ABC still did not perform well before that source was reveaed)

That brings us to the second point. One can have a variety of views on what should have been done in this case, what the trial judge did and should have done, whether or not Congress should have acted, and so on. There was a lot of unseemly preening and posturing on both sides, from those who favor the Netherlands “duty to die” euthanasia philosophy to those who seem to believe that they need to take care of God’s business here on earth for Him because He cannot take care of the souls of the fetuses and neglected unles the activists are there to scold us on His behalf.

Who, besides God, knows which side is right? The key is that the record shows that the trial court made a lot of rulings it didn’t have to make, for reasons we don’t understand- perhaps the judge is upset that his judgement is being questioned, etc. In a case like this, we need laws that leave egos at the door and opt for the best expression of morality. We need 50 state laws that say:

1) If a patient is in such a non-communicative state, but the major organ systems function normally, so that there is no artificial respiration or circulatory support, or and the gut will absorb nutrition, and
2) if there is no written legal document of at least the same evidentiary (Statute of Frauds, for contract matters) level as we require to buy a $500 item of hardware,
3) if there is a dispute among the family over the inferred wishes of the patient, and
4) a first order relative is willing to take on the custody, care, and support of that patient, then:
– the system should “err” on the side of life. That does not apply if some family member wants the patient alive but desires that the government pay for it all; if we are pro-life, pay the price, personally. If the patient is left as a ward of the state, the Florida-type law can be used to deal with the situation.

My own experience tells me that this has probably been hopeless all along, but the law failed miserably in its duty to Terri Schiavo to protect her from those who-let’s be blunt- wish her ill. If a doctor messes up a terminal cancer case that costs a patient a possibility of 20% chance of recovery instead of sure death, the patient wins 20% of the award in a malpractice case.

The Solomonic solution was there all along for those with a moral compass- let Michael have his divorce, let the Schindlers try 6 months of intensive rehabilitation therapy to confirm the mental state insofar as we can. And leave the rest of us out of the private family matter. A minister friend of mine was the police chaplain who counseled Mrs. David Mack after her Minneapolis police officer husband was shot and in an extended coma- then, suddenly woke up and lived five more years, awake and alert. My memory of that case, and the talk then about the futility of the situation haunts me now.

Moral considerations are difficult- but one thing far worse than making the wrong decision is ducking the moral consequences of the debate. If we are going to avoid the head-first dive down the slippery slope, we need some changes in law, now.

The Statute of Frauds and Terri Schiavo

March 19, 2005

The law allegedly has a strong bias in favor of truth, reasonableness, justice, and avoidance of moral hazards. One of the best illustrations of this is a universal US law that is enshrined in both the Common Law and by the Uniform Commercial Code governing all US sales transactions.

As law professors explain, the real meaning of the term is “the statute for the prevention of frauds”. The idea is that there are certain kinds of dealings that inherently offer the temptation to cheat. Hence, to eliminate both the temptation, and the possibility, of either party being less than truthful about oral communications alleged to have occurred between the contracting parties, certain kinds of contracts must be in writing, and signed by the person you are trying to enforce the agreement against. The exceptions are few, and only are allowed if they provide very strong circumstantial support for the claims.

Now, this principle of law applies to agreements of two types: contracts to buy things “of great value”, and situations where the temptation to, er, liberally interpret to your benefit (that is, “lie”) is “easily imagined”. For example, if you want to buy a piece of real property, land, the seller must give you a signed piece of paper clearly describing the specific piece of land, the price she is willing to sell it to you for, and then sign the paper. Or, if there is an agreement that I will cover the bad debts of my worthless brother-in-law, that is, act as guarantor for his purchase of a used Geo Metro on his salary flipping hamburgers down at the local bowling alley, I have to provide the seller of the car a signed piece of paper indicating that when, not if, Lazy Larry defaults on the loan, I will write a check. Then another check, then another…..

The same principle is found outside of contracts, in areas where “strict liability” applies; if a man erotically amuses himself with a girl of fourteen, he is guilty of statutory rape no matter how old he thought she was. It is too easy to play he-said-she-said with the truth, and public policy should discourage opportunities for older men to take advantage of young women.

To illustrate what the law considers to be a contract of significant “value” the Statute of Frauds requirement for transfer of goods kicks in at a sales price of $500. If you are going to write a contract to buy anything worth more than $500, you need to have the deal in writing and signed by the other person. Period.

Now, let’s consider Terri Schiavo, the woman in Florida whose brain injury has led to the battle between her husband and parents over starving her to death by removing her feeding tube so her husband, Michael, can marry his live-in girlfriend and “legitimize” their two children. She is physically healthy, not on any kind of respiratory or circulatory support systems. The question is entirely whether the nursing home should stop giving her meals and water so she can starve to death and free old Michael up so he won’t have to fuss with a divorce. Since her parents are eager to assume responsibility for her care, Michael must have come from a tradition where divorce is, literally, worse than death. Or something like that. Nice to know that he has such a strong commitment to marriage.

The Florida judge on the case has apparently adopted this as his personal “right to die” crusade. He refuses to consider transferring custody of Terri to her parents, who promise to take care of her and provide various kinds of physical and occupational therapy that might improve her condition. Their petition is opposed by Michael, who swears, honest, that Terri had told him when she was about 27 years old, conveniently not long before her highly unusual and unforeseeable injury, that in the event that she was ever in such a “vegetative state”, she wanted him to starve her to death.

Michael Schiavo was inspired to remember this “kill me!” conversation by warm thoughts of Terri immediately after winning a lawsuit that provided $1.7 million, much of designated to provide the care and therapy to help her condition improve. Of course, since she had really wanted to die anyway, he would just use the money in her memory after she was gone, presumably thinking of her with every bite of gourmet food and over every mile traveled in the new car.

So now we see the comparison of what is too morally risky to leave to one person’s unsubstantiated assertion. If you are buying a used Geo for $600, you need a written contract signed by the car dealer. If the object is the life of your wife, you don’t need anything in writing from her- you can just suddenly remember that she had said once, by strange coincidence not long before having a tragic accident, that she wanted you to kill her if she ever had just such an accident. And the judge, having just finished ruling that a writing is needed in a dispute regarding sale of a used drum set, will pat you on the head and say that he will do everything he can to help you starve her to death. Even though her parents have asked you to simply divorce her, give them custody to care for her, and go on with your own life.

Ironically, if Terri and Michael had made a contract to get married, in exchange for Terri giving Michael title to that $1.7 million, the deal would have had to be in writing under the Statute of Frauds. The idea is that it is easily imagined that one might be tempted to stretch the truth a little bit with that kind of incentive, so the moral hazard is avoided altogether by simply requiring written proof.

We don’t know what Terri said to Michael about the possibility of death in this kind of circumstance; I know that my wife and I have been married for 30 years and never talked about that, nor do I know anyone else who set up a plan at an age under thirty when most young people feel immortal. I do know that if Michael had tried to force someone to sell him a Geo for $600 he would have been tossed out of court without written proof, and a $1.7 million incentive to enforce the unwitnessed oral terms would have only reinforced a judge’s hunch that the evidence offered might be a bit tainted.

We are doing a fine job protecting the rights of those owners of $600 Geos- on the off chance that they didn’t really want to sell.

(this post was edited on 3/21/05 to improve the illustrative examples and correct name spelling error)