BeldarBlog

Harvey will and should affect future individual and political decision-making on the Gulf Coast, but is no excuse for governmental mandates to preempt those processes

In response to my post from Friday afternoon regarding the long history of continuously on-going debates, going back to Houston's founding in 1836, about flood risks and flood control, commenter mg wrote:

So many places in America are built in flood zones. These places will continue to flood until they move.

Continuous rebuilding is insanity.

That's a succinct version of an absolutely valid and near-universal concern I'm seeing in both national and local media as a result of Hurricane Harvey. I certainly don't disagree with the assertion that continuous rebuilding can be, and often is, insanity. I do think it's important, though, to put that concern into its appropriate historical, economic, and governmental contexts.

Of course there is second-guessing, after a catastrophe like this one, of the recent and continuing choices made by people who choose to live in or around Houston, or in or around any similar coastal flood plain. And as this comment implies, some of them have certainly made, and are continuing to make, decisions that are comparatively riskier than other people could endure.

As long as the choices are fully informed ones, however, I'm generally okay with that. Flooding is only one type of catastrophe. Other Americans choose to live in places where there are frequent blizzards, or where there is a comparatively high risk of forest fires, or earthquakes, or mudslides — and yes, even volcanos. Mother Nature and her planet have a wide range of methods they can use to remind us, periodically but emphatically, of our limits and our mortality as a species.

In general, I much prefer that those choices be left to the lowest levels possible:

• individual homeowners & businesspeople in the first instance, making free-market transactions whose terms reflect their respective evaluations of risks and benefits;
• local and county governments and flood control & water districts interacting with those decision-makers to address problems of scale;
• state government only becoming involved when problems of scale exceed those the smaller governmental units can handle; and
• the federal government only on a few well-defined subjects with interstate or international ramifications (Army Corps of Engineers & FEMA being the obvious ones).

That pyramid of authority crowd-sources the decision-making; better ensures the transparency of those decision-making processes; allocates responsibility preferentially at the levels at which inadequate public servants are easiest to spot and replace; and preserves as much economic and personal liberty as possible consistent with collective public safety. And indeed, that's pretty much the model on which Houston and the rest of the Texas Gulf Coast generally operate. Harvey isn't going to change that much, although it might occasion some re-definitions of responsibility along the margins — and that's appropriate as we learn from every new challenge like this.

A friend of mine who lives in Fort Bend County was telling me about an internet debate going on among residents there on the county emergency management's website. Some homeowners were claiming to have been surprised, or even affirmatively misled, about the long-term flood risks of their subdivisions. One of the county officials pointed out that to gain physical entry to these subdivisions, anyone and everyone quite literally has to drive up, over, and down these same levies that are containing the Barker and Addicks Reservoirs. Those are the man-made structures intended, and now still serving, to contain, temporarily, the run-off from directly upstream of Houston. And thus they're the ones from which these "controlled releases" are being deliberately made — despite the grim and utter certainty that they will indeed flood a limited number of neighborhoods — to avoid Katrina-scale failures that would produce thousands of deaths. You can't fail to know that your subdivision faces potential flood risks associated with those reservoirs unless you drive home with your eyes shut.

But some people have nevertheless had their minds closed to that possibility, regardless of what their eyes were seeing, and they will now have had their literal and figurative viewpoints adjusted by this flooding. Some of them will indeed proclaim, "No more! ­­¡Nada mas!" Accordingly, they'll sell — into a real estate market that is now hyper-aware of these risks, so depending on their urgency, they may incur relatively greater financial losses — and they'll relocate. But in every market there are — grim pun warning! — bottom-fishers who will hope to profit from others' panicky decisions. There will be buyers who are as tickled to buy, at some price, as these sellers are to sell. Both will end up comparatively "richer," given his or her individual evaluation of both tangible and intangible components of being "rich," after the transaction, including the fellow who's been made poorer by Harvey's floods. Time will tell whether in any individual transaction, the buyer or the seller made the best deal, but that's true in all such transactions, hurricanes or no.

I'm likewise okay with that. My ex, whose house in Meyerland once again did not flood, despite being severely menaced by rising waters of not only Harvey but other recent flash flooding in the neighborhood (including the "Tax Day" flood), commented to me that now, if she wanted to sell her house, she can truthfully represent that it "survived Harvey untouched and unflooded," when others four blocks over didn't. Her house's value relative to others in her subdivision has just gone up, actually — although the whole subdivision's average and cumulative values have surely gone down, at least for the present. Yet the things that have caused property values to rise continuously in that subdivision — convenience to downtown and the medical center, some of the best public schools in HISD (including Bellaire High School, from which all four of our children graduated), and a congenial community of relatively well-educated and diverse residents willing and eager to support the neighborhood's merchants and services and restaurants — are still present. They'll continue to play a part in people's future economic and personal decisions. Flood risk versus being zoned to really good schools: There are subjective elements to that comparison, and objective elements that affect some people but not others, and therefore there is no one "right" answer, no one size or one discount rate or one set of calculations that would work equally well (or at all) for all potential actors.

Independent decisions whether to move into or out of Meyerland, or Cinco Ranch, or Rockport, or any other afflicted neighborhoods and towns throughout the Texas Gulf Coast, should now and hereafter factor in all of the data and experience generated by Harvey. Harvey will have affected the price-point at which those decisions should flip if people are making rational economic decisions. But those individual decisions will still vary widely depending on individual risk tolerance, and on individual assessments of the compensating benefits which might justify a knowing assumption of those risks.

And likewise, as part of that process, those decision-makers should factor in the possibilities and probabilities of further short-, middle-, and long-term flood control prospects to guard against future storms and floods. Some of the houses in Fort Bend County that have been flooded by the controlled releases actually demonstrated before those releases that nothing short of a storm like Harvey will flood them, which in turn suggests that they're at relatively low future risk during "ordinary hurricanes," if there is such a category. But the chance of eliminating the risks associated with living next to those reservoirs is zero in the short and middle term. In Meyerland, by contrast, there are surely already engineers and planners crafting and computer-modeling short- and middle-term civic improvements, ranging from minimalist but important ones (keeping storm drains righteously cleared) to big ones (constructing new drainage waterways or deepening existing ones). Houston and Harris County politics are about to get a lot more intense, and lots of people who've been ignoring them are going to now be watching them and, yes, more actively participating in them, and not just on election day.

I'm all in favor of continuing the continuing study of and debate about Houston's flooding problems; that's normal, natural, and essential, and it's a continuation of what we've been doing before, but now with additional data that must be accommodated and given due weight.

I'm not in favor of some sort of sweeping, top-down, and especially federally-imposed mandates that would preempt those normal economic and political processes. But I worry — because we live in an era in which many politicians and special interest groups insist that no big crisis should be allowed to go to waste (i.e., no opportunity to demagogue using people's misery should be missed) — that such mandates are exactly what some folks would like to see imposed. Some of those folks will be motivated by a belief that their decisions would be best for everyone, and others will be motivated more cynically, by the recognition of emotional vulnerabilities that can be tapped to raise money for favored causes and to elect favored candidates that have little or nothing to do with flood control or mitigation.

I'd likewise argue for the rights of those Americans who choose to live near volcanoes to make those choices for themselves, even though that's not a choice that I find either appealing or even tolerable for myself. But the ability to make free choices is essential if we expect people to take personal responsibility, and to make better decisions because they've undertaken that responsibility.

We're a better society, a freer society, if we do expect people to drive home with their eyes open.

Flood risks and flood control aren't new topics of debate in Houston

Today's Wall Street Journal contains this article about a neighborhood very close to me, Meyerland, where my ex and two of my adult kids live: "Flooded Again, a Houston Neighborhood Faces a Wrenching Choice." The subhead reads: "After three floods in three years, Meyerland, a thriving community of 2,300 homes, weighs deep ties against risks of rebuilding." Many of the images of spectacular flooding last Saturday night and Sunday, before and just after Harvey first made landfall, were shot in Meyerland. A friend of mine on Facebook noted that the TV newscasters were jokingly referring to the freeway exit from Loop 610W onto Beechnut (which runs through Meyerland) as "The Beechnut Boat Ramp," because that was indeed where many rescue boats were being launched and recovered.

To its credit, this article avoids the flaw of most I'm reading in the national media now, and of even more woefully uninformed commenters from the public on social media and blogs — the assumption (or presumption, really) that everyone in Houston has somehow been caught off guard by the very notion of flooding during hurricanes and heavy storms.

It's annoying to me and many of my fellow Houstonians when outsiders don't credit us with having recognized our recurring flooding and drainage problems, as if Houston has just been blithely ignorant of them. In fact, people have been debating, and then acting upon, flood control/flooding issues in the public sphere pretty much continuously since the Allen Brothers founded the city on the banks of Buffalo Bayou in 1836. It's always been subject to flooding, with varying consequences.

And we certainly were aware of that little incident in nearby Galveston in 1900 — the one which still stands as the greatest natural disaster in American history, with 6k+ killed. That turned Galveston from a mighty port and leading Texas city into the much more modest tourist-focused place it is today, and it turned Houston's slightly inland location into an important comparative feature that worked to our frank advantage at Galveston's expense. We billed ourselves as "The City Where Seven Railroads Meet the Sea" — a major port that's nevertheless only connected to that sea by the Ship Channel, built out along Buffalo Bayou downstream from downtown. (That's why there's a railroad locomotive on the Official Seal of the City of Houston, by the way, and not a steamship.)

Flood risk, flood control, and the complications of both from further building and development, are all legitimate issues of public debate on which reasonable people can have, do have, and have always had legitimate grounds for disagreement. Obviously we have a bunch of new data to incorporate in those ongoing discussions and debates, political and otherwise; obviously this event is going to affect things like real estate prices and construction costs going forward.

But as Mayor Turner is correctly quoted as saying in this article:

"You cannot significantly mitigate flooding and drainage on the cheap," the mayor said. "And a lot of people don’t want to pay, but you’re going to pay sooner or later."

Who pays, how much, and for what: All of these are important questions — but they're not new questions, and while you may not like the results of the past debates, you can't deny that they've taken place.

These aren't simple questions either, nor are the answers unambiguous or clear. And the "right" answer for some places and some people isn't necessarily the "right" answer for other places and people situated cheek-by-jowl — although our situations are also certainly interdependent to a considerable degree.

Right now, the neighborhoods being flooded in west Harris County and Fort Bend County include new, affluent, and well-planned subdivisions that were built with full knowledge of the flooding and drainage problems of the area, and likewise in full knowledge of the continuing likelihood of further development that would affect all their assumptions. During the storm itself, despite record rainfalls, those neighborhoods fared quite well. The choices made by their developers were sound. What's now happening to them isn't the result of bad planning by the people who designed and built them so much as a black swan event — a flood so severe and widespread that as it drained toward the coast, the Barker and Addicks Reservoirs would be threatened with massive (Katrina-scale) failure, but for the "controlled releases" which have now been reluctantly decreed even though they are flooding those neighborhoods.

If Harvey had happened in a lot of other places that are less flood-prone (and flood-experienced) than we are, but that pride themselves on their civic order and zoning and whatnot, those places would assuredly have flooded too, and probably worse than we have, because (as this article reflects) we've been actively working to become less vulnerable because we are indeed so focused on these risks. My ex's house in Meyerland survived Harvey without flooding, just barely; but without the serious drainage improvements that had just been completed there within the last two years (some of them within the last six months), this storm would definitely have flooded her house. 

Harvey has created untold heroes from ordinary people responding magnificently

Americans and people the world over are watching heart-grabbing, jaw-dropping, eye-watering videos and stories from Harvey via a combination of the national TV news networks and the major news websites, plus their own social media platforms, with their customized profiles based on their particular histories, preferences, settings, etc., influenced directly and indirectly by their respective locations and sets of friends.

Houstonians like me who've not been much directly affected by Harvey are watching those same national media, of course. Many of us are supplementing the national networks, or deserting them, for local TV news stations, whose coverage and performance is in every respect superior to their national counterparts. Local reporting is more in depth, of course, and more knowledgeable, of course, and better connected to history, of course. But it's also showing significantly better perspective and judgment, with less hysteria, less ratings-pandering, less sensationalism, and vastly more critically useful factual information.

Moreover, and less obviously: My Facebook feed, customized to my set of friends and contacts, is giving me a constant, steady set of more granular news in parallel to what I'm seeing on TV (local or national) or other general internet sources.

So to my friends in, say, California: I'm seeing the heroic stories you're seeing. But I'm also seeing dozens of individual people I know — neighbors, relatives, law colleagues and judges, old friends from college, people I've "met" only online — engaged in quiet, effective, and almost completely unreported heroism. There's no reason why FB would be or could be curating this sort of thing effectively for the vast set of people who aren't living in Houston or on the Gulf Coast or otherwise involved in the rescue & recovery efforts.

But these smaller, less flashy rescues, these bunking arrangements, these boat loans and sandwich deliveries and "I heard from your cousin, she's alive!" messages that I'm seeing pass among my fellow Houstonians through the particular lens of my set of FB friends — these things, individually and especially cumulatively, are awe-inspiring. These decent acts, these attempts to be useful and helpful, are more striking to me precisely because unlike the heroes I'm seeing on TV, these particular acts of heroism are being performed by people I already know. And I think it's a very reasonable inference that millions of other Houstonians in my approximate position are likewise seeing a different set of people who they know, who are being similarly heroic during Harvey — but of whom you and I are utterly unaware, and always will be.

My eyes are red. I've been choked up in admiration so many times in the last 72 hours — most often about small bits of sanity and kindness and extraordinary calm and love that no one, or no more than a handful of other people, will ever see, or know about, or remember. 

I can't cut and paste those stories or copy those photos here, of course. I'm sure it would be against FB's fine print, and a complete breach of trust with anyone who's shared those communications with me on the assumption that they'd not be redistributed beyond his or her FB friends. So you're just going to have to take my word for it, I guess, or the word of others here in Houston while this is going on:

There are thousands, indeed tens of thousands, of bona fide and unsung heroes for each one we're seeing on TV. The ones on TV are genuinely representative, and I'm glad their deeds are being sung. They are inspirational without contrivance.

But to borrow a phrase from Twain: you can't swing a dead cat without hitting one of the unsung heroes in Houston right now — whether it's someone in any of the relief areas, someone coordinating resources and people on the internet, or someone showing up to work today to restock a grocery store shelf or clean up some debris piles. 

Inevitably in time, more controversy will ensue, and some of it will be incited. Too many take seriously that stuff about not letting a good crisis go to waste, and this is a doozy. That may, and probably will, inevitably tarnish, at least in the perception of some people, the pride and goodwill that's so abundant in Houston today, as we fight back against this chaos.

But controversy won't eliminate those memories, nor unwrite this history of ordinary people responding magnificently, heroically in ways big and small, under extraordinary circumstances.

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UPDATE (Weds. Aug. 30 @ 11:40 pm): I don't actually have permission to re-post this photo, but since it's of my niece Liana Dyer James' husband David, I'm going to post it here anyway, since he was one of the many, many people I had in mind when I wrote the original post.

David (white shirt & reversed ball cap) looks like a Navy SEAL, but he's actually a broker and financial advisor in his day job, a devoted husband & family man, and a leader in his hometown community and his church. He and a friend hitched up their boat and drove down from Palestine to help in the rescue efforts. No one told them to, or asked them to. They aren't being paid or reimbursed. They don't have FEMA name tags or a Coast Guard helicopter. But they just couldn't not do it — like so many of the others who're volunteering in these relief efforts.

In this photo, they're using their boat to transport a flooded-out family to safety, but part of that process requires negotiating some shallow standing water by foot — a scene repeated hundreds of times in dozens of places all over the Houston area today. And they're not just grimly toiling, but rather, they're deliberately doing their very best to lighten the mood, to find some humor, and to celebrate these kiddos' "first-ever boat rides! Whee!" so that perhaps these kids can someday remember the Hurricane Harvey rescue they needed as something that was noble and redeeming, instead of something unrelievedly sad and tragic. 

I could strip my FB feed for probably twenty other photos like this of Texans I personally know and love, ordinary people, who're doing exactly this kind of thing, but whom you won't see on TV. But this one magnificent photo will suffice to make my point, I think.

Tap, tap, tap — is this thing still on? Hurricane Harvey has Beldar blogging at least briefly

I don't know whether I'll ever return to regular blogging. Since its inception in 2003, and despite several long periods of inactivity, I've kept this blog online to preserve its content, for it is indeed a personal online journal for the times that I have been regularly blogging. And I continue to refer back to it myself, to remind myself of details regarding the various events and topics I've written about here. Sometimes I leave links to those past posts in comments I leave on other media, along the lines of, "As I argued in 2009, yada yada ...."

Hurricane Harvey has been an impetus for me to leave lots of comments elsewhere — some on one of my old favorites and continuing daily reads, Patterico's Pontifications, and many others on Facebook. (I have a personal policy against arguing about politics on Facebook, however: My FB friends include a lot of people who don't share my politics, and I'd rather not argue "in public" with them in front of other FB friends, just as a matter of personal preference and boundaries.) This seems like a good place, and for some purposes a better place, to collect my current and recent written thoughts about this epochal event I'm still living through.

So I'm going to republish here, in the next few minutes, a series of nine lightly edited comments or posts I've left elsewhere — for now, limited to my personal observations and experiences with Hurricane Harvey. (I've backdated the publication dates here to match the dates and times on which I posted on the original media.) Click here if you want to start with the earliest of the posts in their original chronological order.

Any such series must start with my grateful acknowledgement and disclosure, the very happiest of spoiler alerts:

So far, I'm safe and dry, having suffered no worse than worry and mild cabin fever during Hurricane Harvey; likewise my ex and our adult kids. We are incredibly fortunate. But like almost every Houstonian, we also have dear friends who've been flooded out of their homes, and who're looking at extremely grim prospects for the short and middle term as they try to replace their losses, to the extent that's even possible, and to re-build their lives.

For anyone who finds his or her way here — or in the case of a few extremely kind folks who've been at least occasional readers when I blogged regularly, his or her way back here — I hope you'll find this at least mildly interesting and less than a complete waste of your time and bandwidth.

I'm going to re-open comments at least briefly on these posts, but my tolerance for suffering fools and abusers is likely to be pretty limited, so please behave appropriately if you choose to comment. And notwithstanding the last post that preceded this new series — a satirical post written in October 2015, when I thought Donald Trump had little to no chance of winning the GOP nomination, much less the White House — I'm not yet inviting discussion on that post, Trump, the 2016 elections, or other matters political. Perhaps that will change with future posts, if any; we'll see.

Context to appreciate the miraculously low death toll (so far) from Hurricane Harvey

[From a post I left on Facebook at 3:01 p.m. on Tuesday, August 29, 2017:]

The Galveston Hurricane of 1900 is, by far, the worst natural disaster in American history as measured by numbers killed. Even at the low end of the estimations, at least 6000 died, and it might have been twice that. The 1906 San Francisco fire & earthquake and 9/11 are the next-runners-up, at around 3000 deaths. But so far, the death toll from Harvey seems to be in single or very low double digits.

The property damage being created by Harvey is simply mind-boggling, and with it the emotional toll — which ranges from the mild exhaustion felt by those of us (like me) who've been comparatively unaffected otherwise, to those of us (like some people I know) who've lost everything they own, including all their most precious keepsakes, and who are now having to contemplate rebuilding their entire lives.

And each of the deaths we have had — most recently, to the collective shock and horror of our city, 60-year-old Sgt. Steve Perez of the HPD, drowned while trying to report back to work — are tragic, not to be minimized or forgotten in looking at the big-picture statistics. For the Perez family, the low overall casualty figures are very poor consolation, except insofar as they reflect the combined bravery of Sgt. Perez and everyone else like him who are involved in the rescue & recovery efforts during this crisis.

But compared to most other recent large-scale natural disasters — Hurricane Katrina in 2005 jumps out immediately in our memories, with 1833 fatalities attributed to it — it is nevertheless ASTONISHING that the Harvey casualty tolls are so small, especially given the vastly greater population involved and at risk.

We aren't past this by any means. The death toll will rise, for much risk remains and some rivers and bayous are still rising, and there may already have been some deaths that haven't yet been discovered. But there is already SO MUCH that we have to be grateful for and appreciative of! Take heart from that, and let it buoy your spirits (pun definitely intended) as you continue to view the heartbreaking images from this event.

Highly localized yet widely distributed pockets of disaster in Houston

[From a post I left on Facebook at 2:04 a.m. on Tuesday, August 29, 2017:]

Network and local TV tonight are showing lots of video from the George R. Brown Convention Center on the east side of downtown, where something close to 10,000 Houstonians are temporarily sheltering, roughly five times as many as there were last night. Kudos to the City personnel who're handling that.

But consider: The George R. Brown Convention Center is an easy five-minute drive or 15-minute walk, less than a mile, from Buffalo Bayou, which has left its banks to utterly flood parts of downtown Houston, including the area on the northeast side of downtown that contains most Harris County buildings (including the Civil Courts Building).

That vividly illustrates just how incredibly LOCALIZED yet DISTRIBUTED this disaster is. Some of the greatest disaster scenes are only a few hundred yards away from some of the beacons of shelter and safety. That's just the nature of this flood. The good news is that evacuees don't have to flee half-way across Texas to be safe, or even half-way across Houston (for there are other shelters more convenient than the Brown for many other evacuees).

More non-catastrophic pix from Houston during Hurricane Harvey

[From a post I left on Facebook at 8:08 p.m. on Monday, August 28, 2017:]

Cyber & I took a quick walk just now to snap some photos of non-catastrophe — and one (but only one) of us took the opportunity to go swimming, on purpose!

There are indeed tens of thousands of Harvey victims in and around Houston who are flooded, or have been flooded, or who may still be flooded — and that might still include me later tonight or tomorrow. Everyone's appropriately fixated on these victims' tragedy, and we're all eager for this to be over so we can begin putting things right again. But:

There are also hundreds of thousands of folks who are doing okay — better than we were during, say, Hurricane Ike — even while this surreal and record-setting catastrophe is playing out, at least for this moment. Lots of us haven't been flooded, and we still have power. We're still hunkered down, we're trying to help our less fortunate neighbors, but we're not all 30 seconds away from needing a helicopter rescue, which you might mistakenly conclude from watching the national news.

Our short walk reassured me about my immediate neighbors' well-being, but it also demonstrated the continuing wisdom of staying put, out of your vehicles and off the roads! While my own street in Sharpstown is in good shape, I wouldn't be able to drive three blocks without hitting dangerously flooded intersections, any one of which might get worse even after I'd already decided to turn back.

SO HUNKER LIKE YOU MEAN IT, friends and neighbors! Help your neighbors according to your capacities and their needs, but for most of us, the best thing we can do is stay home, out of the way of the well-equipped helpers (with boats and monster trucks and the like), where we won't end up adding to the total of people needing rescues.

UPDATE at 3:30pm on Tuesday: Cyber & I took another walk about two hours ago, and the intersections that were lightly flooded in these photos are all clear now, blacktop exposed (albeit still wet from continuing sprinkling).

I then drove a few blocks, to the intersection of SW Freeway & Fondren, where I indulged in the guilty pleasure of a fast food run at Burger King. I'd chatted a while with the manager last Friday, as she was still juggling staff and making preparations to close early so her folks could get home safely. Today she gave me a huge grin and thanked me for coming to see them now that they'd re-opened; she plans to send her employees home before dark, but right now they're making burgers as fast as they can. (I don't normally tip at fast food restaurants, but today I asked her to share my $20 tip on a $10 order among her staff.)

The Shell station next door was doing normal business, right down to the half-dozen folks sitting on stools playing those supposedly-not-gambling slot machines. The ice cooler was nearly full of 8# bags of ice.

The whole scenario was shocking in its normality, although it's a normality colored by the knowledge that we wouldn't have had to go very far to find a shockingly different scene of flooding and devastation.

Beldar spots what he hopes is the end of the beginning of the Hurricane Harvey disaster

[Reprinted, as edited & expanded, from a comment I left on Patterico's Pontifications at 11:57 a.m. on Monday, August 28, 2017:]

It’s official: Day 4 of Harvey, and with very rare exceptions, the people of Houston and the Texas Gulf Coast are responding magnificently to this catastrophic event. The death and injury rates are amazingly small overall. So far today, during relatively lighter rains, thousands of stranded people and people who’ve been flooded are being relocated. The civic mechanisms and preparedness are working reasonably well even though these are uniquely difficult challenges, but as always, the citizenry — helping themselves, helping each other — are picking up all of the considerable slack.

In terms of storm damage, this is going to end up being a much less severe hurricane than several I’ve seen in Houston since moving here in 1980 — much less than Alicia or Ike, for instance. Instead, most of the consequences in Houston and its immediate environs are from flash flooding. Saturday and Sunday the flash floods were from heavy rains that didn’t have time to run off. Hereafter it’s going to be flash floods mostly from upstream drainage, and our rivers and bayous, which were already out of their banks, are going to continue to rise and remain dangerous for several more days at a minimum. It thus more resembles past storms like Claudette (which I experienced from Galveston Island in 1979) and Allison (which set the previous rainfall records, but will be eclipsed by Harvey).

The very substantial silver lining, though, as compared to Ike or Alicia, is that we still have many facilities and many neighborhoods that still have power and that are (at the moment) safe to use. People who have to evacuate — including from some very affluent and newly constructed suburban areas that are now about to be deliberately flooded as the Corps of Engineers makes controlled releases from the Barker and Addicks Reservoirs (along the tops of which I’ve cycled dozens of times, it’s a mix of parkland and upscale new subdivisions) — don’t necessarily have to navigate hundreds of miles of dangerous and obstructed roads to somewhere like Austin or Dallas. Instead, most of them can find temporary housing here in the parts of Houston that aren’t affected, among friends or if not, in the short term, in government and charitable organization shelters.

Last night we started getting some much more favorable forecasts in terms of the intensity of the rainfall expected today and for the rest of the week. I’m seeing confirmation of those predictions in the skies today. There are good prospects that the intensity, if not necessarily the duration, of the rainfall may lessen.

I’m still dry and haven’t lost power, water, or internet for more than a few seconds so far. My ex and two of my adult children are sheltering at her house in Meyerland. Earlier tonight, I was watching national newscasts showing boat rescues from the Knob Hill Apartments, which are perhaps 300 yards from my ex’s house — but which same 300 yards put those apartments too close to Braes Bayou as it escaped its banks. But thankfully, the flooding on her street has now drained off sufficiently to see the blacktop again, after coming all the way up to (but not quite over) her front porch in the wee small hours of Saturday night/Sunday morning. My other two adult kids are also hunkered down safely at their respective apartments, well prepared and provisioned. As for our closest friends, though: while many of them are in the same good circumstances we are, almost everyone in Houston knows someone who’s been flooded out or who’s facing mandatory or highly-advisable evacuations from their particular neighborhoods.

But although many of us have been spared injury and major property damage so far, this event is turning the lives of everyone in the Houston area upside down in important ways. The bayou on which the Allen Brothers founded Houston in 1836 and that runs through downtown — Buffalo Bayou, which continues from downtown to the Ship Channel and Galveston Bay — is preposterously out of its banks. To appear in court today, I would literally have needed scuba gear. But of course there was no court today, and won’t be this week.

I am nevertheless cautiously optimistic that we’ve seen the worst of this one. To borrow from Churchill, this isn’t the end, or the beginning of the end. But I think we’ve now seen the end of the beginning. 

Keeping perspective is as important as keeping aware, folks

[From a post I left on Facebook at 5:29 p.m. on Sunday, August 27, 2017:]

This one will set some records. But as in prior Houston floods — and I've experienced every one of them since August 1980 — what's happening in one neighborhood, or on one block, or to one house, may be entirely different from what's "typical" or "average" or "normal."

There are shocking, stunning videos sweeping the TV networks and the internet right now. They're stunning to us Houstonians too, those who are able to watch them, because we recognize those places!

But I haven't seen a photo of a "normal" Houston street on the TV for at least 24 hours. I'm not fussing at them for that, because normal isn't "news" at any time, and they're still doing a valuable public service in suppressing the number of people getting out and moving around right now. Except for PD & FD & other first responders, medical personnel, etc. — bless every one of them! — those people out on the streets are bad gamblers, self-identifying as Darwin Award candidates.

But there are many, many houses and streets and subdivisions that are, by and large, still unharmed and unflooded. At the moment I'm lucky enough to be sitting in one such house, although I'm as horrified as everyone else by the video I'm watching from not very far away. I may be tempting fate by posting this, but here's the view from my front porch a couple of hours ago. My view hasn't changed since then; it might change dramatically in an hour; and it might look completely different from someone's only a few hundreds of yards away from me in the same subdivision.

I hear talking heads arguing already about, "Should such-and-such have been done?" Friends & neighbors, let's wait until the event is mostly over before we even start that, okay? Those discussions will happen, but they require completed and objective data to be meaningful, and that's not remotely in yet.

But if you're in the middle of this: Keep your wits and your sense of proportion. Keep your situational awareness, as they say in the military. Don't get spooked into something foolish because you're overreacting to what you saw on TV if your own conditions are still different.

And if you're not from here, but just worried about friends and loved ones and fellow human beings in the most diverse city in the U.S. — of whom I'm so incredibly extra proud at the moment — thanks for your good wishes, remember your charitable organizations, and don't presume that everyone's undergoing the worst of what you just saw on the TV news. Yet, anyway.

Proportion and the media during Harvey

[From a comment I left at Patterico's Pontifications on Sunday, August 27, 2017:]

Reporting from Houston’s Sharpstown neighborhood at 1:45pm Central:

Wherever you’re watching from, don’t completely freak out from watching the media. For some people this is genuinely catastrophic, although mostly in terms of property damage rather than injuries and deaths.

For a great many other people, though, this has so far been nothing worse than cabin fever — we’re the lucky ones. So far, “the lucky ones” include me & my dog, my ex and our kids, and our closest friends and colleagues scattered around the city.

The danger now to Houston and its environs is from flash flooding prompted by continuing rains. We’re on the “dirty side” of the eye still, meaning Harvey is still lifting moisture from the Gulf and dumping it on us. There are many reports of tornadoes, but those have been isolated and transient; wind and storm-surge damage aren’t the big problems now. Note well, and be thankful: Power outages are worse, and harder to fix, during heavy wind. As a consequence, there are an awful lot of people in Houston who still have AC and lights and internet — but we’re watching all the media reporting with one eye, and the fluctuating water levels on our streets and yards outside with the other.

The media coverage is of course lopsidedly (but appropriately) slanted to show the disastrous rather than the unchanged. There’s no shortage of breath-taking visuals and testimonials. The local TV coverage would make me crazy if I watched it continuously, so I’ve been alternating with old movies I’ve DVR’d (yes, that was also part of my storm prep). Social media — Facebook in particular — is also serving a genuine public service in this natural disaster, as a means for people to keep track of large crowds of friends and loved ones without swamping the telephone lines.

So yes, Harvey’s a disaster, very much so for some people — but not (yet) much at all for many others. It’s the proportions, and where they’ll settle out, that are still at issue.

Throughout this, I’m immensely proud of my fellow Houstonians and Texans overall. There’s lots of genuine concern leavened with experienced good humor and fellowship, but very little whinging and an astonishingly small amount of genuine panic.

Thanks for the thoughts & positive thinking, though! That certainly can’t hurt, and there are lots of less lucky folks on the Gulf Coast who need all the help of whatever type they can get.

Better than just filling the tub if a hurricane threatens your water supply

[From a post I left on Facebook at 1:54 p.m. on Friday, August 25, 2017:]

If you live somewhere hurricane-prone and don't already have one of these, they're a modest and prudent investment for next time, I highly recommend the WaterBOB. 

It works exactly as you'd think from the photo, and stores 100 gallons without worries about contamination or leakage. It beats the heck out of trying to seal your bathtub drain with Saran Wrap or its regular stopper. At $22.70 from Amazon.com, it's well worthwhile just for your peace of mind. I've given several to relatives and friends, and one is filling one of my bathtubs at this very moment.

-------

UPDATE (Thursday August 31 @ 1:35 a.m.): I reviewed this product in slightly more detail and considerably more drama at Amazon.com: Writing from Houston during Hurricane Harvey: I'd give this product SIX STARS if I could! Brilliant!.

Houston Hurricane Hunkering Team

[From a post I left on Facebook at 11:55 a.m. on Friday, August 25, 2017:]

During my last-minute Hurricane Harvey preparations and errands this morning (for inevitably, as landfall approaches, there's something else you think of that you might like to have), I had brief face-to-face encounters with probably three dozen strangers. These were just fellow Houstonians I saw while out and about, including cashiers, other customers, people returning shopping carts in the parking lot, and so forth. Just "folks," all doing what I was doing, or (in the case of those at work still) helping us do it.

Without a single exception, everyone with whom I made eye contact smiled, and 90% of them spoke (or replied to me) with some word of greeting and encouragement. "Stay safe," I heard perhaps a dozen times. Us old-timers practically radiated calm and fellowship toward each other and anyone else in earshot and smile range.

"Hunkered down?"

"Yup, how 'bout you?"

"Yessir! Stay safe!"

"Y'all stay dry, okay?"

This is all so genuine, so spontaneous — and so typical of Houston. It put me in a very mellow good mood, one that might surprise people who are high and dry but worried about their Texas Gulf Coast friends right now.

Yes, I knew about the hurricanes before I moved here!

[Reprinted from a post I left on Facebook at 11:09 p.m. on Thursday, August 24, 2017, as Hurricane Harvey approached the Texas Gulf Coast:]

I was on Galveston Island for Tropical Storm Claudette in July 1979, which washed out the bridges to the mainland and forced a mid-trial recess in the jury trial I was helping out on as a summer law clerk.

Hurricane Allen greeted me a couple of days after I moved full-time to Houston in 1980; it was a record-setting Cat 5 over the Gulf and parts of Mexico but had diminished, fortunately, by the time it got here.

I had a jury deliberating in Judge Hugo Touche's 129th District Court in the old Civil Courts Building well into the late afternoon hours, as Hurricane Alicia approached on Thursday, August 18, 1983, with its eye already predicted — accurately, it turned out! — to pass directly over downtown Houston at about midnight. We'd done our closing arguments the prior afternoon, and our jury had started deliberating that morning at 9:00 a.m. Now we were the last folks in the courthouse; all the windows were taped, and some were boarded with plywood. But the edges of the blinds on some of the courtroom's windows still flashed red and white in crazy patterns — from the cherry-tops on the law enforcement vehicles parked to block the streets outside: Downtown Houston had been evacuated and its entrances barricaded by uniformed HPD officers.

The jury sent out a note which asked, pithily: "What happens if we don't reach a verdict before the Hurricane?"

Judge Touche wrote a reply which said, "If you cannot reach a verdict today, I will discharge you until next Tuesday." Being quite literal, the jurors interpreted "today" to mean "on this calendar day" — in other words, that he was planning to kept them deliberating until midnight! In fact, he was willing to let them go as soon as they wanted to, since it was already after 5pm. But with this incentive, we had a verdict in about four minutes. The time pressure helped move a holdout from the 9/3 vote in my client's favor that they'd been stuck on since noon, to the 10/2 required for a valid civil verdict.

Alicia was a lady to me, as Frank Sinatra might have said, or sung, if he'd had a jury out in a hurricane.

I tried to visit my office that Sunday, but downtown was still cordoned off, and the streets were covered for blocks with fine, sharp-edged shards of deep green glass — formerly the curtain wall of what was then Allied Bank Plaza (now the Wells Fargo Plaza), whose glass would've been fine except for the gravel roof on the Tenneco Building across the street: Alicia turned those bits of roofing gravel into 100 mph projectiles. It was surreal. All judicial deadlines in state and federal courts around Houston were extended across-the-board, no questions asked, for two weeks IIRC, and more than a few lawyers I knew had had the entire contents of their offices sucked out into the storm.

I've survived all the other storms 'tween then and now, and I've been consistently lucky. I've avoided being conspicuously stupid in any of those past storms and floods. I know the drill for sheltering in place. My tank's full, my provisions are in place, I have fresh batteries and my devices are charged, etc. Houston is home, and hurricanes are part of living here. Beats earthquakes and tornadoes IMHO, but YMMV.

Re David Gregory's deliberate breaking and unwitting mockery of a dimwitted law

My blogospheric friend Patrick Frey — a/k/a Patterico in the blogosphere, but by day a senior felony prosecutor for some of the most violent and gang-ridden parts of Los Angeles — posits an interesting question: "Should David Gregory be prosecuted?" (The background to and context for this inquiry is concisely explained there, so I won't repeat that here.) Frey's commenters, from across the political spectrum (including some articulate leftie opinions too), offer some interesting comparisons, ask some provocative follow-up questions, and make some excellent points.

I reprint here (slightly edited for clarity, but without block quotes) my own pair of comments there:

---------

114. Because of his defiant mockery of the law, he should be prosecuted.

Because the law is ridiculous, his sentence (fine and jail time) should be suspended. But he deserves to have the conviction on his record, forever.

*******

170. In my comment above (#114 — 12/28/2012 @ 1:06 pm), I opined that David Gregory “should be prosecuted[, but that b]ecause the law is ridiculous, his sentence should be suspended.” I frankly was assuming he’d plead guilty in exchange for the suspended sentence, and I’m still confident that would be the likely outcome if he were prosecuted (which he won’t be).

But in my assumptions, I was skipping a possible step: the trial.

And frankly, despite my utter and complete lack of regard or sympathy for Mr. Gregory, I’d be almost equally happy either to see the jury hang or to see him acquitted outright as to see him convicted (and his sentence suspended), because:

On these facts, an acquittal could only happen through an act of collective and willful civil disobedience by the jurors — “jury nullification,” which the judge's instructions would likely forbid the jurors to do, but which the judge could do nothing to correct if it happened. It would be useful for a Washington, D.C., jury to produce such a vivid data point on the practical unenforceability of such laws even when they are violated on national television; and

A hung jury, or better, a series of hung juries, demonstrates the same point, but with the Kafkaesque but karmically appropriate wrinkle that Gregory is re-subjected to trial again and again.

What we are talking about here is not just the way laws are applied, but the way they are seen to be applied. The latter is as essential to an ordered society under the Rule of Law as the former. It corrodes the Rule of Law to punish Gregory for this indisputable and indisputably silly crime. But the Rule of Law is likewise corroded if we selectively pretend that this law doesn’t exist, or if we pretend that David Gregory didn’t break it.

That’s why he should be prosecuted, regardless of the outcome. The worst of all worlds is having a law like this on the books but having it enforced (or threatened to be enforced) arbitrarily.

Free exercise of religion, cultural relativism, principled distinctions, and foreskins

This report troubles me (link in original; hat-tip Althouse):

A German rabbi is facing charges for performing a circumcision, less than two months after a Cologne court outraged Jews and Muslims by outlawing the procedure.

Rabbi David Goldberg has become the first rabbi to face possible legal action for performing the ritual after an unidentified doctor filed a criminal complaint against the spiritual leader, alleging "bodily harm" to the child involved, the Times of Israel reported.

The German equivalent to our Constitution and Bill of Rights — their "Basic Law" — contains sweeping language based upon, and apparently equivalent to, the Free Exercise Clause of our own revered First Amendment. Will it be interpreted to give Rabbi Goldberg a defense? And if not, how much more are we bothered by that specifically because this is happening in Germany?

Because I've been to law school, however, I have voices in my head which insist on complicating this issue even further. "What about so-called 'female circumcision' as practiced in some cultures? If the Free Exercise Clause, or its German counterpart, prevents the state from prosecuting Rabbi Goldberg for performing male circumcision, would it not also protect those engaging in 'female circumcision'?"

"But," my pre-law school ethical self retorts, "what they call 'female circumcision' is really just genital mutilation. It's not comparable."

"Po-TAY-to, po-TAH-to, Beldar," replies my inner law professor. "So say concerned citizens of San Francisco about male circumcision. Can these enlightened people from the City by the Bay be wrong?"

Heavens forfend!

But if I can't eliminate those voices, I can at least hush them for a while: "Enough of the false equivalencies! I am comfortable that I can draw a principled distinction between these two things. I am confident that I am not guilty of hypocrisy in holding one to be a constitutionally protected liberty, and the other a barbaric and cruel practice inflicted to subordinate one gender to the other."

"Sez you," say the voices.

"Yes," I mutter to myself, "sez me, exactly. Yes, there are indeed cultures which promote genital mutilation of children. But mine doesn't, and shouldn't, and in my confident if ultimately somewhat subjective judgment, my culture is, as a consequence of that, better than it otherwise would be. Sez me."

On GOP fundraisers who support gay marriage

Today's Washington Post included an article by Dan Eggen entitled "While GOP opposes gay marriage, key donors fund the other side." Mr. Eggen notes that while the official GOP party platform will include support for a proposed federal constitutional amendment banning gay marriage, a number of prominent Republican fundraisers are nevertheless putting their support, and their considerable fundraising capacities, in service of the contrary position. Indeed, there is even "a new super PAC focused on supporting Republican congressional candidates who favor marriage equality" that's drawing multi-million contributions from some prominent Republican contributors.

Eggen describes this as evidence of a "growing rift" within the GOP on issues of sexual preference, but he also asserts that "support for same-sex unions remains an outlier among Republicans." In my evaluation, both of these statements are technically correct, but they miss and indeed conceal a larger and more important context:

Eggen appears to think this is new news. And he appears to think that there's only a "rift" within one party on such social policy. If so, he's wrong on both accounts.

In fact, each's party's platform will contain again this year — as they have since the mind of living man reacheth not back — policy positions that may indeed reflect the views of a majority of convention delegates, but that are much less fervently or consistently held by the voters who will cast ballots for that party's candidates.

The classic and still-valid example on the Democratic side will be the Democratic Party's official embrace of government-financed abortion on demand. There actually are still substantial numbers (quite literally millions) of pro-life Democrats who oppose abortion as a matter of broad principle; they've been rudely conditioned to keep their views mostly to themselves within the supposed party of tolerance, but they actually do exist, and a few of them still are "on record" with that position. Short of that, there are quite a few Democrats (and quite a few Republicans, including me) who are weakly and reluctantly pro-choice, but who genuinely and sincerely still believe in the Bill Clinton formulation that abortion should be safe, legal, and rare — a last resort whose moral complications must be acknowledged. And there are indeed Republican daughters who end up having abortions. There are Democratic daughters who end up bringing their unborn children safely to term, even though inconvenient or unplanned, even if they support the "right to choose" as a general matter, but out of personal reverence for that which distinguishes a human embryo or fetus from a "lump of tissue."

And likewise, on the questions of gay marriage and sexual orientation more generally, there are both Republicans and Democrats scattered all along the spectrum. There will be married gay Republicans who vote for Romney-Ryan. There will be Democrats who stay home because they're disappointed that Obama has endorsed gay marriage. There are voices even within the gay rights movement who caution against overreaching through court decisions, and who (correctly in my judgment) point to the recent repeal of "Don't Ask/Don't Tell" as the better model for gradual and politically legitimate changes in social policy. 

And actually, Dick Cheney and I are part of a sizeable plurality in the GOP who oppose any government discrimination on the basis of sexual preference, but who are unwilling to engage in the pernicious and unprincipled fiction that the U.S. Constitution somehow already addresses sexual preference. Cheney and I have held that position for many years, whereas Barack Obama only came around to the first part of it a few weeks ago. So the new news is supposed to be that there are Republicans who — gasp! — support same-sex marriage as a policy matter? You'd think the recency of Obama's conversion might have merited more than the brief and passing mention that it got in this article, but I suppose we've always been at war with Eastasia.

Nope, when the WaPo reports on something like this story that deviates from the Democratic Party narrative, it suits the WaPo's purposes to pretend that this is the new news, and that these people are mere "outliers." Otherwise, they can't use fear to move votes. Otherwise they can't pretend that these controversies are going to be resolved, once and for all time, definitively and forever, based on this November's election. Otherwise they can't distract voters from the shambles which this Administration has made of our national economy and the government fisc.

Americans really can't be neatly sorted so neatly into boxes. But that doesn't stop the mainstream media and the political meme-spinners from trying.

And that doesn't mean we have to fall for it.

Beldar scoops NYT on analysis of Edwards trial

History will reflect that today, during the fourth day of jury deliberations in John Edwards' criminal trial on campaign finance fraud charges, the New York Times finally figured out the most likely key to the John Edwards trial — "a rigorous disagreement between the defense and prosecution in the courtroom over whether the law requires that influencing an election be the sole reason for giving money, as the defense team interprets the law, or only one of the reasons, as the prosecution sees the case."

Let the record also reflect, however, that readers of BeldarBlog were so advised on Thursday, May 17, 2012, before the jury began its deliberations.

Like the first analyst quoted by the Times, I agree that these jury instructions are also likely to be the most promising potential basis for an appeal if the jury convicts Edwards. I'm not yet persuaded, however, that the instructions were defective. To the contrary, on this specific issue I'm quite confident that Judge Eagles' instructions are substantially correct: This is an issue of first impression, with no prior appellate opinions to resolve the issue, but nothing in the language of the statute supports the defense contention regarding "sole reason," and there's no reason for a court to read that extra requirement into the elements of the crimes the statute defines.

Edwards' defense team might want to reconsider their reliance on a Clintonesque "It's all just about sex" defense

John Edwards has always tried to emulate, and out-do, that other smooth-talking, good-looking Democratic politician from the South, Bill Clinton. Edwards has certainly fallen short of Clinton's achievements — most conspicuously in failing to win the White House. As for Edwards' foibles and failings, I suppose that the consensus of history will decide, someday, whether sexually exploiting a White House intern, and lying about that to the American people and the First Lady, is worse than having an affair and fathering a child with a campaign groupie, and lying about that to the American people and the would-be First Lady (who's also dying of cancer).

But John Edwards' urgent problem is not the eventual judgment of history, but the impending judgment of the U.S. District Court for the Middle District of North Carolina. And his defense lawyers would do well to keep that always in mind as they ponder the appropriateness and likely effectiveness of a defense strategy consciously constructed to parallel Bill Clinton's defense in L'affaire Lewinsky.

Clinton was tried primarily in the court of public opinion. Oh, yes, he certainly was impeached in the House of Representatives, and he was nominally "tried and acquitted" in the resulting Senate proceeding over whether he ought also be removed from office. But there is not much resemblance between even the formal "rules" that governed the impeachment proceedings against Clinton and those which are governing Edwards' criminal trial. And Edwards' trial in North Carolina has taken place within a structure, a setting, that has little in common with Capitol Hill. The key participants in Edwards' trial are ordinary, "real-life" participants in our criminal justice system, with the most significant of them being chosen as a cross-section of the voting public — not big-shots from our political system.

Then-Chief Justice William Rehnquist did a fine and fair-minded job of presiding over Clinton's Senate "trial," using his exalted position atop the judicial branch to keep order inside the Senate chamber during the formal proceedings. But nothing could give even the Chief Justice remotely the same practical authority or influence over the U.S. Senators who decided Clinton's fate that U.S. District Judge Catherine Eagles will necessarily have over the jurors who decide John Edwards' fate.

When Clinton's supporters argued — within the House and Senate proceedings, but mostly, incessantly, and desperately in every channel of public conversation outside the Capitol Dome — that his prosecution was "all about sex," there was no one to overrule them, to correct them, to re-focus the inquiry.

But whenever John Edwards' team finishes his defense — and it's still essentially certain that defense will not include Edwards waiving his Fifth Amendment rights and taking the stand on his own behalf — Judge Eagles will give the jury a set of written instructions and questions comprising the "charge of the court" and their required verdict form. Although she will doubtless give Edwards' lawyers great latitude to argue, if they wish, that Edwards' prosecution is "all about sex," or "all about politics," or "all about ____ (fill in the blank)," nevertheless, when all the lawyers are done, the jury will be obliged to answer the questions posed by Judge Eagles.

And at that point, Edwards' lawyers simply won't any longer be able to distract attention from those questions and that verdict form any longer. Judge Eagles' questions will be lifted in large part from the text of the relevant statutes. And those questions are therefore guaranteed to be about violations of the federal campaign finance laws — not about sex, not about politics.

Edwards' lawyers can puff and huff about sex and politics all day long, but it's the jury's eventual answers to those specific questions which will decide their client's fate.

Being tried in the court of public opinion, rather than in a U.S. District Court, was an enormous advantage to Bill Clinton because a "misdirection defense" works quite well in a court with no rules, no boundaries, and no effective judge to control the proceedings and define the issues. I doubt that a "misdirection defense" is likely to be as effective in Judge Eagles' courtroom. But I suppose it's the best semblance of a defense they can put together for this toxic scoundrel.

Beldar congratulates the PhilBob & bride

I didn't have the famous Philip Bobbitt as a professor at UT-Law. But when I was the book review editor for the law review, he was one of my favorite faculty resources — good-naturedly sharing on request (and my requests were frequent) his opinions about which just-released books were worth reviewing and who, among the law faculty members of the country's best law schools, might be an appropriate target for us to solicit to write a particular book's review. He never steered me wrong. Indeed, I'm confident that "You should talk to Bobbitt, a lot" has been advice handed down to generations of incoming Texas Law Review book review editors by their immediate predecessors.

A gregarious intermingler with the law student body, it was common to find Professor Bobbitt sharing (and occasionally even buying) pitchers of beer at the Posse-East near the law school. And when I was touring Europe after graduation and clerkship with a fellow UT-Law grad, my late and dear friend Craig Youngblood, we dropped in — unannounced, or maybe announced with a phone call that resulted in an immediate invitation, but in any event on little or no notice — on Prof. Bobbitt at his summer flat in London, where he served us a quite passable afternoon tea. (My recollection is that we talked about the then-just-concluded SALT-II missile treaty, which is to say, by the end of the session Craig and I had learned a great deal about an important topic on which we previously had known essentially nothing.)

Professor Bobbitt is a vivid individual, the sort of person who's clearly remembered decades later by even those who, like me, had only a somewhat passing acquaintance with him. 

I was pleased, then, to read this charming tale of his recent courtship and new marriage. (Hat-tip Prof. Kenneth Anderson at the Volohk Conspiracy.)

Congratulations and best wishes to Philip Bobbitt and his new bride, Maya Ondalikoglu Bobbitt!

The Somalia rescue

I put aside for today the many faults I find with President Obama's handling of military and foreign policy, in order to state clearly and without further dilution the following:

God bless and keep the United States Navy and those Navy SEALs — again! — and everyone else in the military, intelligence, and diplomatic communities who in any way contributed to the successful rescue of American Jessica Buchanan and a Danish man, Poul Hagen Thisted, from kidnappers in Somalia. Due credit goes to President Obama at the top of that chain of command. His decision to authorize this, like the authorization of the bin Laden raid, was correct and fully justified.

That is all. Carry on.

Federal courts refuse to hear challenge to Obama's Libyan intervention, but Congress should push back — with the power of the purse — over Obama's new Ugandan adventure

In a post about the Obama Administration's ridiculously stupid efforts to argue that the "kinetic military action" in Libya didn't trigger the War Powers Resolution and its associated reporting requirements and deadlines, I had this to say on May 21, 2011, immediately after "the day under 50 U.S.C. § 1544(b) by which Obama had to "terminate any [such] use of United States Armed Forces" if the War Powers Resolution were constitutional and enforceable:

I don't want to get into a protracted discussion on this post (or in its comments) about the constitutionality of the War Powers Resolution. However, the expiration of this deadline is essentially certain to cause someone, somewhere, to jump into federal court asking for an injunction.

I am 100% certain that when that happens, there will be very technical, very tedious, and very fundamental preliminary motions. There will be challenges to standing — the right to bring suit by a particular person or entity, and/or the capacity in which that's being done. There will be challenges as to ripeness — whether this is something that has to be decided now at all, much less on an emergency injunction basis. And most of all, there will be challenges to justiciability — whether this is even the kind of dispute that the federal courts are in business to be deciding, and in particular whether this is the sort of "political question" that the federal courts are supposed to refuse to get involved in.

So as you're imagining the whole range of potential scenarios that could unfold from this — to the continuing chagrin of Barack Obama, progressive superhero who's now committed a set of unforced, imbecilic, spectacularly ironic mistakes on Libya — consider this one, because it might well happen:

Congress: Hey SCOTUS, make him stop it! Make him follow the law we passed to tell him how to do his Commander-in-Chief gig! Order those ships to come home and those planes to stop flying right now!

POTUS: No, no, SCOTUS, that's my gig alone, and neither you nor Congress can tell me how to do it.

SCOTUS: We're just not going to talk about this subject. Go away.

[Courthouse door slams closed; POTUS and Congress trudge away, grumbling and snarling at one another. Exeunt all.]

I actually think that's the single most likely scenario, if it were pressed that far by the appropriate principals — who themselves may be precisely the ones who refuse to seek judicial involvement, because Congress has an interest in leaving this entirely unresolved, too.

Today — on the very day the non-war war finally achieved the laudable (and bizarrely denied) goal of regime change via decapitation — in proceedings styled Kucinich v. Obama, it has turned out that my predictions about how the federal courts would refuse to even hear such a challenge were proved absolutely correct. From the Blog of Legal Times (link in original; hat-tip Above the Law and WSJ Law Blog):

A federal judge in Washington has dismissed a suit challenging the Obama administration's legal justification for military action against targets in Libya.

The suit, filed by a bipartisan group of congressmen in June in U.S. District Court for the District of Columbia, sought a ruling that the U.S. military strikes are unconstitutional without a congressional declaration of war....

Responding to the suit, the U.S. Justice Department said the claims raise political questions that federal district judges are not authorized to entertain and that the plaintiffs do not have standing to sue in the first place.

Walton agreed, ruling that the lawmakers do not have standing. He rejected the alleged injury the lawmakers claimed—that they have been deprived the ability to vote on a war declaration.

In a footnote, Walton questioned the plaintiffs’ decision to sue given legal precedent, he said, that didn't bode well for the members of Congress.

“While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law,” Walton said.

Take a step back. Pretend we don't have "Republican" and "Democrat" labels here, or even "conservative" and "liberal" labels, and that we're just looking at this solely as a test of power between the respective branches of the federal government.

Looking at it as part of that big picture, today's ruling granting the Administration's motion to dismiss made no new law at all: It didn't weigh or decide any facts at all; it didn't endorse Obama's argument that the War Powers Resolution wasn't implicated. It just announced that this handful of Congressmen lacked standing "either in their capacity as Members of the House of Representatives or because of their status as taxpayers" to challenge Obama's actions in federal court, even if the court assumed that all the facts they alleged were absolutely true.

This exact result was a predictable outcome, one that I (and many others) had in fact predicted — so predictable that the federal district judge who first heard it became rather grumpy about having to waste his time on it. (Indeed, one of the prior precedents on which Judge Walton relied was a 2002 case in which this same lead plaintiff, Congressman Dennis Kucinich, had tried to sue President George W. Bush over the U.S. withdrawal from the 1972 ABM Treaty without Congressional approval.) But is either today's court result or Kadafi's death likely to result in a new extra-legal precedent, an unenforceable but nevertheless notable practical precedent in the grand interplay of constitutional checks and balances in the 21st Century?

Naw, not so much. The mild and short-lived court scuffle between Obama and a handful of Congressmen here was just an isolated example of something we already knew:

If Congress, acting as Congress (as opposed to acting through its individual members who're trying to be litigants in court), declines to exercise the express powers granted Congress by the Constitution — chief among them, the power of the purse — to protect other express privileges and responsibilities also conferred upon Congress by the Constitution, including the exclusive power to "declare war," then we're not seeing an actual constitutional confrontation.

With the opposition to Obama's Libyan adventure, then, in Obama's silly efforts to claim the War Powers Resolution didn't really apply, in the resulting Congressional grumbling, and in this lawsuit, we've only seen a kabuki show intended to fool the easily fooled. Obama calculated that he could get away with something like the Libyan adventure — and this time, Congress has clearly let him. That is the only important take-away message.

*******

But as I've said here earlier this week, I do not think Congress should continue to let Obama get away with sending American ground forces into conflict in Uganda with neither Congressional approval nor even the merest hint of a shadow of a whisper of a threat (imminent or even just gathering) to significant American strategic interests. Such interests do not exist in Uganda. No, this particular frolicsome detour — which is indeed likely to become extremely "kinetic" at some times and places (since that's part of what Special Ops guys are known for, after all, and they're being sent specifically to catch and kill tyrants) — cannot possibly be justified under any theory other than that America is the world's policeman.

If the GOP and those Dems who opposed the Libyan adventure voted together, they could certainly override even a presidential veto of legislation defunding this sub-Saharan Africa adventure. And the GOP by itself, with its majority in the House, could certainly refuse to include funding for it in their next appropriations bill.

This is a confrontation that needs to be had. Even though the scale and risks and expenses of the sub-Saharan Africa adventure may be smaller than what we're doing in Iraq, Afghanistan, or even Libya, the Uganda operation pits the Executive's and the Legislature's respective responsibilities and powers against one another far more vividly: This isn't a Cold War-era "proxy war" like that conducted over Nicaragua in opposition to the Soviet Union's challenge to the Monroe Doctrine and American interests close to home. No one in Uganda is pursuing WMD capabilities or harboring and supporting terrorists; it has no oil wealth or other strategically important position or resources. It has nothing at all, in fact, except some very bad African men who are regularly and enthusiastically killing and terrorizing other Africans.

If Barack Obama wants to host a telethon to raise private contributions to help the victims, that would be peachy. If he wants to propose sanctions or other legislation, or encourage Congressional resolutions on relevant topics, or even to try to gather support from our allies and other countries whose interests are more directly involved, or who simply share our humanitarian concerns, I'll not say a word of criticism. And I am, in general, a strong supporter of a strong Executive Branch, with a great deal of practical and implied power to respond to emergencies, conduct American foreign policy, and direct the U.S. military as Commander-in-Chief both in and out of war.

But this is too much. This is genuinely unprecedented, and the practical precedent it threatens to set is a bad one. The GOP presidential candidates need to start talking about this, because it's a mark of how fundamentally flippant Barack Obama is when it comes to his execution of his Oath of Office and the Constitution. But Congress needs to push back, current electoral politics notwithstanding, because all of its members, Republican and Democrat, have an institutional duty to respect and preserve Congress' proper role in our system of checks and balances.

Uganda?!?

I am an unapologetic hawk when it comes to protecting American interests abroad. And I define those interests broadly.

After Saddam's fall, Mumar Kadafi gave up his WMD program and permitted western inspectors to confirm that; in effect, he negotiated a parole under which he could reasonably hope to avoid a fate like Saddam's so long as he behaved himself. But early this year, when he turned heavy weapons on random city blocks filled with his own countrymen — not just those who were protesting, but those who were convenient to kill — Kadafi violated his parole.

At that point, we were confronted with (a) a genocidal scofflaw no longer even pretending to adhere to basic tenets of civilization, who (b) had a demonstrated history of chasing weapons of mass destruction, who (c) also had a demonstrated history of sponsoring successful international terrorism against America and its allies, and who (d) still had untold billions of petrodollars to spend on that goal, the accomplishment of which (e) had again become his best hope for remaining in power. No, he posed no imminent threat to the United States, but Kadafi had reemerged as the most imminent threat to acquire (or in the case of chemical and biological weapons, reacquire) and then use WMDs against America (or to feed them to terrorist groups who'd do that). The danger he posed was exactly the kind of "grave and gathering danger," even short of imminent threat to the U.S., which America showed itself determined to confront and neutralize when we deposed Saddam.

I've mocked Obama for his ridiculous mangling of the War Powers Resolution's plain terms in an attempt to insist that it was inapplicable, but I think the WPR is unconstitutional anyway, so I was only mildly critical of Obama's commitment of U.S. armed forces, without Congress' consent, to try to force Kadafi out of power. Of course I agreed that our NATO allies, especially France and Italy, ought to bear a disproportionate share of the costs since it was their short- and middle-term oil and gas supplies that were threatened by Libyan instability, and I supported coordinating our armed forces and theirs under NATO's flag. But it was disingenuous and foolish to pretend we weren't doing the most difficult and dangerous missions, or to deny that our military forces were essential prerequisites for even such limited air action as Britain and France have been able to manage. It was cosmically stupid to pretend that we weren't trying to get rid of Kadafi himself, and that we were just "protecting innocent civilians." And I'm clear-eyed about the dangers of Kadafi being replaced by something as bad or worse, but that was no longer an acceptable justification for permitting him to remain in power.

So although I have not been a fan of Obama's ridiculous lies and misrepresentations about our Libyan mission, and although I think he's bungled almost every aspect of its management, I was nevertheless ultimately supportive of that mission. I think that leaves me in a fairly modest minority of Americans, even of Republicans or conservatives.

But Uganda?

Uganda?!?

From out of nowhere — Uganda on a Friday afternoon?

If George W. Bush had purported to commit many dozens of U.S. special forces personnel to Uganda, 99% of all Democrats in America, including 100% of their elected officials, would have been screaming for Dubya's impeachment continuously, very loudly, and in perfect unison. And they would not have had a trivial argument to support impeachment, conviction, and removal from office — in sharp contrast to every other suggestion of impeachable offenses by anyone in that administration throughout its eight years of service.

America has no strategic interests in Uganda. Not even with the broadest possible definition of "strategic interests" do we have them in Uganda. This is a pure humanitarian mission, one in which we've picked winners and losers and are now enforcing that choice at the point of American bayonets. If this mission is critical for the United States, then there is no bully, no despot, whose local crimes against his own people is outside our vital strategic interests. We are indeed to be the world's policeman.

Sen. Inhofe (R-OK) is the chump of the day, having been completely snookered by the Obama Administration into speaking out in favor of this mission. A well-intentioned sucker is ultimately just a sucker, and Inhofe should certainly know better than this.

Obama seems determined to outdo Bill Clinton's foolishness in Somalia — to learn none of the lessons, and to repeat all of Clinton's deadly mistakes.

The United States House of Representatives should vote to de-fund this mission immediately and send that bill to the Senate. The GOP members of the Senate should permit no other business — refuse unanimous consent to everything — until that defunding bill is put to an up-or-down vote. The mushy and muddled support that kept Congress from ever reacting to Obama's mishandling of the Libyan adventure should not, and I think will not, save Obama from a constitutional confrontation this time. We should have it, and Obama should lose it.

The Obama Administration, women, and the nunc pro tunc son-of-a-bitch rule

Regular readers may recall that after law school and a one-year judicial clerkship, I spent six years in the early 1980s working as an associate in the Trial Department of Texas' oldest law firm, BigLaw stalwart Baker Botts. When I started there, in keeping with the practice of that firm at the time, I assisted more senior lawyers on some very big cases, but I was also handed a "docket" of my own — a collection of already-in-progress small and medium-sized cases deemed appropriate for handling by an associate — with the instruction to "do the necessary." When new cases of that sort came in, the department head or his assistant typically distributed those among the department's associates. This, in turn, was accomplished by walking into the chosen associate's office and dropping the file (typically comprising only a new lawsuit just served on a firm client and a transmittal memo) on the associate's desk, always with the instruction to "handle this to conclusion."

The firm wasn't prone to hiring idiots, so we knew that implicit in these dramatically sparse instructions was the expectation that we would seek guidance, instruction, inspiration, review, and criticism in connection with our own efforts to "do the necessary" and "handle to a conclusion." And the available teaching faculty included a very deep and very diverse set of several dozen Trial Department partners and associates whose experience ranged from other just-starting lawyers to senior partners with individual experience measured in decades and jury verdicts numbered in the hundreds.

It was a wonderful system. Through it, in some respects I taught myself my profession; and in other respects, through it I learned my profession studying at the knees or elbows of those with more, and sometimes great, mastery.

*******

The system did have some dark aspects to it, though. And one of them related to the "up or out" nature of BigLaw associate status. Most associates didn't become partners; most left before they were up for partnership consideration, sometimes because they'd decided BigLaw wasn't for them, some because they wanted to go in-house with clients or become entrepreneurs; some wanted to change practices (e.g., by moving to a plaintiffs' personal injury firm); and a relatively small number were gently nudged into looking elsewhere because their performance was thought below the firm's expectations. And every time an associate left, his or her entire docket had to be re-assigned.

I remember discussing that process one day with a more senior associate whose advice I had sought in trying to figure out one of the personal injury defense cases I'd inherited from a just-departed associate whom I'll call "Bob." The case was dangerous; its development by Bob had been just barely adequate; and it urgently needed lots of work, much of which (like finding and working up expert witnesses) could have been done better if it had been started much earlier. "Wow," I commented, "I'm surprised the firm thinks I can handle this."

My older colleague said, "Well, you know, there's a benefit to you in getting to take over a case like this that's already so close to trial. Are you familiar with the 'nunc pro tunc son-of-a-bitch rule'?"

"The what?"

"You know the Latin phrase 'nunc pro tunc'?" he asked.

"Sure," I replied, "it means 'now for then.' Like with a revised judgment submitted for the purpose of completely replacing an earlier judgment that had some important error in it. Something the law deems a complete and retroactive replacement, as if the earlier version had never even existed. Neat phrase, powerful stuff! But what's that got to do with Bob handing over this case to me when he left the firm?"

"It means," he answered, "that Bob is your ready-made 'nunc pro tunc sun-of-a-bitch'!" But I continued to stare blankly at him.

"Look," he explained more patiently, "You took over handling twenty-something of Bob's other files, the whole docket for [Valued Firm Client from the Fortune 500 List], when he left. You've seen his work closely and in volume now. Was Bob a good lawyer?"

"Yes," I said truthfully. "This is the only case he was working on that really seemed to have gotten a bit beyond him."

"That's right," he said, "and while he was here, everyone liked Bob, and they all genuinely wish him well in his new job. He'll be a respected alumnus of this firm for the rest of his career, and we may refer some business his way or support him if he decides to run for some judgeship. Bob's a great guy, and a solid, competent lawyer. I mean that.

"But," he continued, "every case has the potential to go south in a hurry. This looks like one you're going to have to take all the way to a verdict; I don't think it can be settled at anything close to what our client is willing to pay, or that the client should be willing to pay. If you're not losing any cases —"

We both finished the sentence in unison: "— you're not trying enough cases!" This is a truism, a fundamental tenet of the trial lawyer's faith, already drilled into me when I'd been a mere summer clerk, and at more than one very fine law firm.

"And yet," the older associate continued, "you don't have to worry about the microscope only being put on you if you end up taking a thrashing from the jury, or about taking all the blame yourself, because Bob is ...." He waited for me to finish this thought too.

I answered hesitantly: "... the son-of-a-bitch who screwed this case up before I ever touched it?"

He made the "Charades" gesture: index finger to the tip of his nose. "Exactly! Bob's a great guy, but now he's gone. So if need be, he becomes a son-of-a-bitch. Retroactively. Just as if he'd always been a son-of-a-bitch. Nunc pro tunc, now for then. And it's an irrebutable presumption."

"Meaning," I said, "not just a presumption, but really a pre-determined conclusion that can't be challenged."

"Meaning exactly that, yes. And also meaning that Bob's not around anymore to rebut it. He'll probably never even hear about this. He'll never know that, for purposes of this case, 'Bob's a hale fellow well-met' got replaced with 'Bob was a lousy son-of-a-bitch who screwed this pooch beyond rescue.'"

I rubbed my chin and pondered this for a minute. Then I asked a question that seemed obvious, and was: "The nunc pro tunc son-of-a-bitch rule won't impress clients a bit, will it?"

"No," answered my slightly older and much wiser colleague. "This client's legal department in Chicago probably hasn't even noticed that you've taken over this file, despite your letter. We're all just fungible Baker Botts associates to them. You score no points at all by blaming Bob to them, so don't even think about it. You may have a nunc pro tunc son-of-a-bitch in waiting, but you still better win the case if it possibly can be won."

I thought a little more. "And the Trial Department head who assigned this case to me —"

"— knows exactly how big a challenge he just handed you," he confirmed. "The 'nunc pro tunc son-of-a-bitch rule' won't work on him, either, nor on anyone in the partnership who's evaluating your progress. You should always assume that they already know everything, but then point out everything important anyway, as a back-up and because you're supposed to, and then send them a memo as a back-up to that too. But yeah, they know they've just given you a big challenge, and they're waiting to see what you do with it."

"So who will the 'nunc pro tunc son-of-a-bitch rule' really help me with?" I asked.

"Only people who don't know any better," said my friend, "like, maybe, your parents or your girlfriend or your buddies at some other firm, when you're trying to explain to them how the firm's good client got tagged by the jury for umpty-ump million dollars while you were defending them." He stopped and seemed to contemplate the consequences of what he'd just said as if something new had occurred to him. "I guess," he finished, "it only works on people who are clueless and who are willing to be fooled."

"I see," I said.

*******

I thought of the nunc pro tunc son-of-a-bitch rule, and who it may be effective in fooling, when I watched the video of White House Chief of Staff Bill Daley blaming his immediate predecessor — famed ballet dancer, idiot savant investment banker, and Chicago-Way politician Rahm Emanuel, now mayor of Chicago — for reports that women staffers felt they had been "marginalized" by senior male members of the early Obama administration. If you can't figure out why I made that association, then you're precisely the sort of person the 'nunc pro tunc son-of-a-bitch rule' was created in order to influence.

Fi$cal woes in ¢alifornia

It's not often that I link to Vanity Fair, but this article by financial writer Michael Lewis ("Liar's Poker," "Moneyball") is well worth it. Lewis' subject this time is the looming financial crisis at the state and, especially, local government level — one driven largely (but far from entirely) by unfunded pension liabilities. And it is very interesting, utterly terrifying, stuff, but characteristically for Lewis, it's explained in a very human way that's clear and extremely accessible. Lewis has a dry wit and a keen appreciation of the ironic. He explains financial issues through the voices of the colorful individuals he tends to write about. And because he has piqued your interest in those individuals, you tend follow his discussion of the financial issues easily and keenly too, because his subjects' fortunes (literally and figuratively) are being determined by those same financial issues.

Lewis' particular focus is on the poster-child for the problem, California, of which he notes:

California had organized itself, not accidentally, into highly partisan legislative districts. It elected highly partisan people to office and then required these people to reach a two-thirds majority to enact any new tax or meddle with big spending decisions. On the off chance that they found some common ground, it could be pulled out from under them by voters through the initiative process. Throw in term limits — no elected official now serves in California government long enough to fully understand it — and you have a recipe for generating maximum contempt for elected officials. Politicians are elected to get things done and are prevented by the system from doing it, leading the people to grow even more disgusted with them. "The vicious cycle of contempt," as Mark Paul calls it. California state government was designed mainly to maximize the likelihood that voters will continue to despise the people they elect.

But when you look below the surface, he adds, the system is actually very good at giving Californians what they want. “What all the polls show,” says Paul, “is that people want services and not to pay for them. And that’s exactly what they have now got.”

And therein lies a nasty problem. Don't read this article if you're already depressed. Lewis tries to salvage an upbeat ending, but that, too, is another as-yet-unfunded liability.

Despite that, Lewis' article ends up making a powerful conservative statement by necessary implication: What's killing paradise? Government overspending. How to fix that? Lewis doesn't ever say in so many words, but ... well, duh. The cure is obvious, but when and how it will begin being seriously administered, and what chaos will wrack the patient in the meantime (especially in its most afflicted extremities, like California), is still anything but clear.

San Fran Nan has a secret plan to get revenge against the GOP

I give House Minority Leader Nancy Pelosi (D-CA) credit for still being able to deliver almost all of her party's Representatives on demand. But she and they have mostly been on the sidelines during the grand interplay we've been watching for the last six weeks as the debt ceiling approached. The 2010 election dictated those dynamics, which in turn largely dictated the results. The reason the GOP was able to block (or at least defer) tax increases was, very simply, because the House wouldn't agree to them even when confronted with the prospect of some sort of default by the federal government. And there was not a damned thing Nancy Pelosi could do to affect that, or to much affect the resulting legislative compromise.

Now, however, we learn from Talking Points Memo, a liberal website, that She Has A Plan: Pelosi Says There’ll Be No More Hostage Crises (hat-tip Andrew Stiles at The Corner) (ellipsis & bracketed capital letter by TPM):

"Suffice to say that you won't see a repetition of what happened last week, taking us to the last minute when they didn't even have the votes — they didn't even have the votes — and then saying to us 'You will be responsible for a default," Pelosi said in response to a question from TPM.

Pelosi was reluctant to spell out just how she would stave off this situation, however. "I would say that if I were to tell you...it would be defanged," she said, after being pressed for details. "In terms of what we — how we would approach where they go from here. And that may be a House Democratic position.... Our members were very unhappy about that vote the other day. Very unhappy."

Just how Democrats plan to proceed may ultimately depend on their willingness to stomach the unpleasant consequences of letting Republicans shoot the hostages. But in a revealing moment, Pelosi hinted Democrats may have reached their breaking point.

"[W]e wouldn't let our country default," Pelosi said. "But I'll say it this way to you. A default is a much more serious consequence than a shutdown of government for a few days."

At least as she comes off in these quotes, Ms. Pelosi is making Joe Biden, on the subject of their distinguished opposition from the right, sound positively articulate and temperate. To be fair, the metaphor about "shoot[ing] the hostages" isn't part of the quotes from Pelosi, so it may just be a bit of violent, spiteful imagery from TMP blogger Brian Beutler. (I'm sure Ms. Pelosi and indeed, President Obama, are emailing a rebuke to Beutler even as you read this, since it's so clearly a violation of Obama's "new civility.")

But is there any way to read this other than as a threat by Pelosi, on behalf of House Democrats (and perhaps Democrats generally), to contrive a government shutdown as an act of political retaliation?

If there were any specifics, or if Pelosi had that kind of power, or if she were a serious person instead of a half-dimensional party hack, this would be kinda scary.

Such power as Minority Leader Pelosi may have in the coming negotiations — and therefore such leverage and influence — will be a function almost entirely of whether she's given opportunities to exploit potential rifts between the most adamant and idealistic of those on the right (DeMint, Bachmann, etc.) and the GOP leadership of the House and/or Senate. So if this threat should be taken seriously by anyone, it ought to be the Republican members of both the House and the Senate:

Simply by getting on the same page and then staying there, folks, you'll ensure Nancy Pelosi's continuing irrelevance. There can't be very many more important services you can render to the Republic between now and November 2012.

Has Rep. Weiner defamed Twitter & Facebook?

Prof. Althouse has an interesting post about the alleged (*cough-cough*) simultaneous hacking of the Twitter and Facebook accounts of U.S. Rep. Anthony Weiner. I, for one, believe that Rep. Weiner is lying through his teeth about the "hacking." But I either fail to follow Prof. Althouse's thinking, however, or else I respectfully disagree with her about an observation she's made in updates to her post (link & ellipsis hers):

AND: If Weiner is lying about his accounts getting hacked, he could be sued by Twitter (and the other companies) for defamation.

ALSO: NBC News reports "Lewd Photo Sent Over Rep. Weiner's Hacked Twitter Account... his Twitter account was hacked." Not that Weiner makes that claim, but an outright assertion that his account was hacked. Twitter is getting slimed here. Does it deserve it?

My disagreement with her is almost certainly not over the relevant law. The specific definitions vary somewhat from state to state, and the common law of libel and slander have been tweaked some by state legislatures and even federal constitutional interpretations. Nevertheless, as a general rule, in order to be defamatory, a statement must not only be false, but must also be harmful in a particular way to particular interests. For example, section 73.001 of the Texas Civil Practice & Remedies Code defines a libel as —

a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.

Similarly, section 559 of the Restatement (Second) of Torts provides:

A communication is defamatory if it tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

I simply don't see how what Rep. Weiner's reported to have said — even if false — would harm Twitter's or Facebook's reputation.

Twitter and Facebook should bear no responsibility — legal or even causal — if Rep. Weiner simply chose a low-security password that someone guessed. Nor should they be responsible if, for example, Rep. Weiner used the same high-security password for several accounts and his password was stolen through some wrongdoer's hacking of one of those other services (either with or without the contributing negligence of that other service).

Simply put, unless one takes the view that every unauthorized use of an account must always and necessarily be the fault of the service which hosts that account, a statement that someone's account was hacked does not necessarily imply something harmful to the service's reputation. And I respectfully submit that such would be a patently unrealistic view — even though some people might jump to that conclusion if they have not thought through the alternatives.

The law treats this as a threshold issue to be decided by the judge "as a matter of law," even though it's necessarily based on an appreciation of what does or doesn't affect one's reputation in the community. So I'm curious:

Assume that you are the judge faced with Rep. Weiner's pretrial motion to dismiss Facebook and Twitter's (hypothetical) lawsuit on grounds that, as a matter of law, his statements did not expose Facebook or Twitter to the required sort of reputational harm. What's your ruling?

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God save the Queen

This is painfully funny — at "life imitating 'Saturday Night Live'" levels:

I suppose we should be grateful that Obama didn't confront the Brits over their bizarre rudeness in interrupting his speech with that instrumental version of "My Country 'Tis of Thee."

Gutsy toast, though.

WaPo chronicles Obama's serial blundering over Gitmo

"The executive order promising to close Gitmo's detention facilities within a calendar year was never anything more than BHO-monogrammed bovine excrement so naïve and silly that it exploded violently on every contact with reality."

That's my 35-word précis of this 4300-word WaPo article entitled "Guantanamo Bay: Why Obama hasn’t fulfilled his promise to close the facility."

However, whoever crafted this intended spin-imparting summary paragraph near the top may not have actually read the rest of the article, or else comprehended its cumulative import not at all:

For more than two years, the White House’s plans had been undermined by political miscalculations, confusion and timidity in the face of mounting congressional opposition, according to some inside the administration as well as on Capitol Hill. Indeed, the failed effort to close Guantanamo was reflective of the aspects of Obama’s leadership style that continue to distress his liberal base — a willingness to allow room for compromise and a passivity that at times permits opponents to set the agenda.

Instead of this mushy half-hearted defense of their hero, how about some plain English that's much more consistent the rest of the facts reported? Why pretend anything needed "undermining" when it never stood on its own to begin with? Why use the words like "miscalculations, confusion and timidity" as a substitute for "consistent bold stupidity"?

I'd re-write that summary paragraph thusly:

"Despite Obama's unconditional and unequivocal promises as a candidate, it became increasingly obvious, more blindingly obvious with every day of his new presidency, that closing Gitmo anytime soon would be a Very Bad Idea for a Whole Buncha Reasons. It became obvious to most serious grown-ups in America — and even to the large majorities of senators and congressmen from Obama's own party who want to be re-elected, regardless of their seriousness and maturity — that Obama's executive order couldn't actually be implemented without monumental, unacceptable risks and a momentous public backlash that would rival, and perhaps exceed, the Tea Party backlash against Obama's fiscal profligacy. Indeed, even the administration official who was designated to fall on his sword — ex-White House Counsel Gregory B. Craig, about whose resignation Beldar wrote at his usual tedious length here back in 2009 — appears to have painfully hoisted himself off that blade and climbed back down to reality."

Overall, this is probably the most damning reporting on Obama's fundamental incompetence that the WaPo has yet published. Nothing in it makes Obama look even marginally competent or principled. Yet despite their claim to have based this report on "interviews with more than 30 current and former administration officials, as well as members of Congress and their staff, members of the George W. Bush administration, and activists," WaPo staffers Peter Finn and Anne E. Kornblut don't produce anything amounting to a scoop. The only thing about their report which surpised me is that apparently everyone in Washington who doesn't list 1600 Pennsylvania as his or her current primary work address now seems to agree that Obama spectacularly mismanaged this entire issue.

I'll continue to stick with my description of the Obama Administration back in that post from April 2009:

"Amateurs. Incompetents. Ideologues. Full-time politicians turned half-wit government officials. Brilliant leftists who, confronted with the real world, are exposed as clueless idiots and children.

If anything, that assessment may have turned out to have beeen overly generous.

Obama takes ownership of every penny of federal overspending

From Obama's televised speech tonight on the short-term budget agreement (my transcription from DVR, italics mine):

Like any worthwhile compromise, both sides had to make tough decisions and give ground on issues that were important to them. And I certainly did that. Some of the cuts we agreed to will be painful. Programs people rely on will be cut back. Needed infrastructure projects will be delayed. And I would not have made these cuts in better circumstances.

Obama's handlers obviously didn't have time to polish the narcissism from this short speech, but now we know exactly what Barack Obama thinks of Harry Reid and the Senate Democrats: They're an extension of his will, puppets dancing at the end of the strings he alone holds.

I think Obama's assessment is actually pretty accurate — he's the proverbial 800-pound gorilla among a troop of preening baboons, and whenever he stirs himself to smack them around or goads them into a shrieking frenzy of poop-slinging, they do what he bids.

But the side effect of this is that Barack Obama can no longer hide behind the fig leaf of separation of powers. Obama can no longer plausibly claim to be representing the interests of the entire American people — just the interests of his party and its motley collection of special interest groups. When, for example, Rep. Debbie Wasserman-Shultz (D-FL) asserts of the GOP House's "Path to Prosperity" that "This plan would literally be a death trap for seniors," that is — not literally (which doesn't mean what she thinks it means) but politically — Barack Obama himself engaging in the most egregious and obvious fear-mongering and demagoguery. And if you're not among those he's already invited to the graft-and-handout trough, then you're on the other side.

Politically, if there was any doubt remaining among the naïve, that doubt has been conclusively erased:

Barack Obama is personally responsible for every penny of federal overspending. Period.

Beldar assesses risk to the GOP from a government shutdown to be lower now than in 1995

I've previously argued here, and in comments I've left on other blogs, that the House GOP ought not force a government shutdown over whether an interim funding bill includes controversial de-funding of particular programs like the Corporation for Public Broadcasting (PBS/NPR) or Planned Parenthood. Rather, my advice has been to defer those measures to the fight over the FY2012 budget. Some have misunderstood me to be suggesting we delay those fights until some time in calendar year 2012, but that's not at all what I've said or meant.

Rather, since the premiere this week of House Budget Committee Chairman Paul Ryan's (R-WI) amazingly ambitious budget for FY2012 (which starts on October 1, 2011), we're already embarked on that fight — and that fight is vastly more consequential in the big picture than anything that is going to be done through interim spending bills. Insisting on cutting those controversial programs now gives the Dems undeserved and repeated opportunities to demagogue, and that may permit them to repeat their political triumph from the government shutdown in 1995 (which effectively guaranteed Bill Clinton's reelection).

Instead, the time to fight those fights — and they'll always be controversial, I don't dispute that — is as part of the fight on the FY2012 budget that, if handled right, will produce hundreds of billions of cuts in current spending, and trillions over the next decade. There are a lot of voters who will swallow hard at GOP cuts to programs those voters personally favor, but who will nevertheless choke them down if and only if they're part of a big dose of essential medicine that will genuinely restore financial sanity to our government. And you can't win over those voters through a hostage-taking strategy that shuts down the government over only a few billion dollars.

*******

What Speaker Boehner and the House GOP are doing now, however, isn't necessarily inconsistent with my proposed strategy. Indeed, he's right not to back off on those hot-button issues until he's used them to extract every penny of spending cuts he can through these stopgap funding bills. The one-week extension passed through the House today is consistent with that strategy. And ultimately, if a few tens or even hundreds of millions in continuing expenditures on noxious programs is the cost of another $8-$10 billion in cuts above the $33B the Dems are already on board with, that's a very good trade in the short term.

However, you can't push to the limits at the negotiating table unless you're genuinely serious about facing the possibility of a shutdown. There's reason to hope that we're better prepared for that now than we were in 1995 (when it seemed we were completely, and recklessly, unprepared). But neither side knows, nor can know, how the public will react, and what political risks for November 2012 that presents. To extend my poker metaphor from last week, we've seen the flop, but we're still waiting for the turn and the river.

I'm no pollster, and in fact I'm intensely skeptical of public opinion polling as a proxy for the only polls that count — electoral polls on election day. But I think there are two fundamental differences between now and 1995 that both reduce the political risk to the GOP now, as compared to then:

First, notwithstanding what the public opinion polls may say about the number of "independents" or "swing voters," America is more polarized now than it was in 1995. That's the result of the Clinton impeachment, the 2000 election contest, the anti-war protests during the eight years of strong leadership on the Global War on Terrorism that George W. Bush gave us, and — more than all of the above put together — the systematic, unrestrained, and rapacious looting of the public fisc in which Barack Obama and the Democrats have been continuously engaged since January 2009. I just don't think there will be as many voters swayed by a shutdown as there were in 1995 — and of those who may be, quite a large percentage of them are Obama voters from 2008 who've since already realized that his halo is made of tin foil.

Second, although one can correctly point to a long list of contributing causes, any third-grader should be able to understand that the most obvious and direct cause — what lawyers would call the "proximate cause" — of a shutdown now would be the Democrats' explicable and inexcusable inability just to do their damn jobs last year.

Not a single voter sent Obama and his partisans to Washington with a mandate not to pass a budget for FY2011. The Dems controlled the White House and both chambers of Congress until January 2011 and yet couldn't pass a budget; indeed, they didn't even make a serious attempt. And that's just dirt-simple, and as obvious — and as obviously embarrassing — as a loud fart in church.

I will grant you that there are millions, and probably tens of millions, of voters who don't meet my hypothetical "any third-grader" standard in their political sophistication.

But they're already part of the Democratic base anyway.

House GOP's budget cuts $6.2 trillion over 10 years

So we now know exactly how good a poker face Rep. Paul Ryan (R-WI) has: The eye-twinkle and the very, very slight hint of a smile when Chris Wallace was quizzing him on Sunday morning about the size of the House GOP's proposed budget cut gave away nothing. But Rep. Ryan must have been mightily amused when Wallace managed to pry out of him that the cuts might be somewhere north of $4 trillion.

In fact, as revealed in Rep. Ryan op-ed in today's Wall Street Journal (no subscription required), the House GOP's budget for FY2012 promises to cut $6.2 trillion over 10 years as compared to the federal budget proposed by President Obama. That such enormous cuts can be contemplated is, of course, a function of the gigantic increases in federal spending already made since January 2009 and expanding over the future in the budget proposed by President Obama.

The details will be the basis for intense — and emotional — debate over the coming months. Absent another 9/11-scale surprise, I expect it will become the single most important issue in deciding the 2012 election.

I've reprinted above the chart from Rep. Ryan's op-ed. It focuses on how this budget will compare to Obama's when measured by federal debt as a percentage of gross domestic product. Don't be disappointed by the fact that there isn't a sharper drop-off to a negative slope in the green-colored portion: Current spending in absolute dollar terms will indeed show a much greater drop.

The op-ed is pretty good, albeit necessarily wonky. Read the whole thing, because I couldn't possibly summarize it here.

I'm reminded of the line variously attributed to Frederick the Great or French revolutionary leader Georges Jacques Danton, but in either event much beloved by U.S. Gen. George S. Patton: "L'audace, encore de l'audace, et toujours de l'audace!" This is indeed audacious. This is a fight worth having, and vitally worth winning.

The budget battle as a no-limits poker tournament

I may draw, with this post, the sort of vehement disagreement and even scorn that Mitch Daniels triggered with his talk of a truce on so-called "social issues."

My temptation is to anticipate that by at least re-capping my conservative credentials and service as a blogger in the cause of sanity since 2003. I'm going to mostly resist that, but I'm going to hold any comments pretty tightly to the actual topic here, which is this:

I'd like to see NPR and PBS stripped of federal funds. Planned Parenthood, too. In fact, I have a shockingly long list of federal programs that I'd like to see de-funded — many of them primarily because they ought to be designed, supervised, and funded, if at all, at a state or local level. And after reading my list you'd be tempted to nominate me as the biggest Grinch of the 21st Century. But:

Right now the Dems are desperate to change the subject before the 2012 elections, away from total spending, and onto specific programs that offer the best emotional hooks for use in their next campaign. The Dems are committed to — and as Sen. Schumer's timely accidental admission against interest shows, expressly hoping for — a federal government shut-down that they can demagogue Republicans with. And they will use these issues to systematically shore back up, and re-invigorate, every single special interest group in the entire Democratic coalition, and they will use the government shut-down to go after independents.

To my constitutional conservative friends and neighbors, I have to point you to the Constitution, to the very structure of our government. From that fundamental structure flow what I believe to be inescapable political facts right now:

1. We can't effectively undo what Obama/Reid/Pelosi hath wrought without effective voting control of both chambers of Congress and the White House, much less begin to effect the sort of repairs that are needed.

2. This therefore is a four-year project, not a two-year project. It started on election day in November 2008, when we lost. It will not — can not — conclude on anything other than its constitutionally determined date: The second Tuesday of November in 2012.

3. Obama can and will veto any package containing those controversial targeted programs. He badly, badly wants to do that, and he will do it, but of course he'd rather do it at the least political price.

4. So even if a GOP-written bill axing of these programs were to get through the Senate and the House, it won't become law. The only way that legislation shutting down these programs will become law is in January 2013, if we win in November 2012. Otherwise not.

5. And therefore absolutely no one's pet Democratic program that they're eager to see axed — not even all of them together — can be permitted put seriously at risk the result of that election by insisting upon them now. Instead, we need to fight over those programs only as part of the overall 2012 budget fight, so that at the same time he vetoes the Congressional enactment which includes (at least some of) those cuts, Obama also has to veto the entire budget.

6. And when he does that, even if the result then is some kind of government shutdown, then it's been for the best — and broadest possible combination — of reasons. That fight, and that veto, makes the budget the #1 issue in November 2012, sweeping the GOP to control of both chambers and the White House.

We are still early in what will become a winner-take-all game of high-stakes poker with only two players. From January 2009 until the Scott Brown special election, we had a very small stack, but we got back in the game, and regained at least a respectable stack of chips in the 2010 election. In a two-player match, though, you can't win until you've got the bigger stack: Until then, if you go all in and win, your opponent will still have chips left. What's important is to wrest away the chip lead over time. And bide your time waiting for a strong hand on which you've gotten good action, when pushing all the chips in and winning means you've won not just that hand, but the tournament.

Barack Obama's and the Dems' explosion of the federal budget is, in poker terms, potentially a monster hand for our team. If that is the main issue in November 2012, we win back the White House, we win 60+ in the Senate, and we deepen our lead in the House. And then starting in January 2013 we sweep the table.

Now, I'm not saying we ought never fight those fights on those wasteful Dem programs that should get the axe. There are indeed constituencies in the GOP or among independents who will swing our way on those same issues, and if we can get them to do that at the same time, that energizes our base. But the time to fight those fights is not now, but as part of serious debate on the overall 2012 budget — we've got the big enchilada on the table.

(I know, it's disgusting to mix food metaphors with poker, and I'm sorry for that.)

Then it's not "those nasty Republicans killed my ____ program that I love, and they didn't even really solve the budget problems, my favorite program got killed as part of the 'token' cuts so I will go to the polls and hate you evil Republicans forever," yada yada.

Budget misery, like other kinds of misery, absolutely loves company. We present all our cuts as part of the 2012 budget in a comprehensive package in which everyone — yes, including those noxious programs, too — has to share in a really big haircut (in some cases to the scalp).

(Now I've got hair on the poker table along with the big enchilada — as thoroughly disgusting a mixing of metaphors as has ever appeared on this blog.)

I'm not saying roll over, I'm saying hold as firm as we can on the House bill now in the Senate. But let's don't push in our whole stack prematurely on a "development hand." We cannot win if we do not stay focused on the big picture, meaning winning in November 2012.  And before we push in all our chips on a bet that would do that for us, we need to have gained the bigger stack.

And by November 2012, we will have taken every cut we can possibly wring out of them now and — and vastly more importantly — we will have the benefit of a further steady drumbeat on the much bigger drum of the 2012 budget.

However:

We're still going to lose that fight on the 2012 budget, folks. We cannot win that fight while Barack Obama is in the White House. This is a four-year project.

Once again — because of Constitutional impediments — we cannot win the whole tournament unless and until we win that election. That election becomes the last hand. That's where we go all in. Everything we do now must be with a view toward positioning for that hand.

We must not be foolish by being short-sighted, not even with the best of intentions. We must maintain discipline — and as with any discipline, this will be unpleasant to tolerate in the short term.

If you don't grok poker, then we can talk about sprints and marathons, or keep going until we find a metaphor that makes it vivid to you.

If you think I'm wrong, don't waste your breath reciting how bad the problems are, or even how dissatisfied you are with the lack of big progress so far. Nothing you say is going to change the structural features of this problem, because they tie directly into constitutional anchor principles. Saying I'm not being a "true conservative" will get you put in commenter time-out. Tell me why instead a symbolic, vetoed interim bill now cutting off funding to any single Dem pet program, or even any combination of them, is worth the risks of dividing our focus and firepower and wasting it prematurely. Convince me it's worth the risk of four more years of Mr. Obama and his Magic Unicorn.

Beldar on Simon on Kelly

Why would my friend Roger L. Simon — who's one of the most savvy "new media" practitioners around — wish such misfortune on Megyn Kelly?

Alternately phrased: Why would he wish such undeserved good fortune upon CBS?

Watching the melt-down — no, not in Japan, in the Oval Office

It is absolutely alarming to watch President Obama flail about in increasingly desperate efforts to hand off or hand over the Libyan intervention.

It is like watching someone else having that dream — the one about going to high school and suddenly realizing that you forgot to put on any clothes that day, and you're in the middle of geometry, stark naked.

Gosh, it took longer than Joe Biden predicted, but we're finally in the moment when foreign enemies, neutrals, and friends are all putting the POTUS to the test. His teleprompter will not get him through this; he can't bow; he can't flash a grin and a wave, or toss a three-pointer. No, sir, it's exam time in the "Eek, I'm naked!" dream, and our POTUS is trying to make us believe the dog ate his homework, or he has a tummy-ache, or that for some other really good but unspecified reason we should actually call on the Sarkozy kid over in the next row.

It's the multi-car freeway pile-up you can't look away from, but they're all little bitty clown cars — Chevy Volts, I think. Obama seems to be trying to climb out of every one of them, but how is that even possible?

Brits agree with Beldar: Don't rule out regime decapitation

According to quotations in the Daily Mail, the British government agrees with me, and therefore disagrees with the Obama Administration, that western governments should refuse "to rule out targeting Gaddafi." No. 10 has rebuked a British general who said precisely the same thing U.S. Adm. Bill Gortney was quoted as saying in Sunday's WaPo, and that SecDef Gates has since repeated.

Regime decapitation could indeed fall within the plain language of UNSC Resolution 1973, which —

Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory ....

(Boldface mine.) We could certainly kill Kadafi without imposing a "foreign occupation force of any form on any part of Libyan territory." And once he's gone, so's the entire "threat of attack." So isn't the most effective, least bloody way of protecting civilians necessarily at least a part of the "all necessary measures" we could take?

(This whole discussion about whether regime decapitation would or wouldn't be within the scope of the current "mission" assumes, of course, that you need or even want the U.N.'s blessing anyway, which are questionable premises at best.)

Again, I'm not saying this should be announced as a policy goal. I'm saying we shouldn't rule it out in public statements. Because only some damn fool at his first damn rodeo would fail to seize the opportunity if it presented itself.

Most interesting questions I've considered today

Paraphrased from an observation by Maetenloch in the "overnight" thread at Ace's:

Am I using text messaging as a way to modulate the intimacy of my relationships? Are the people who are texting me?

Bingaman, defending Obama through partisan blinders, is oblivious to his own prescription on energy

From the "'Green' blog" (I question both premises) in today's NYT (h/t InstaPundit) (bold-face mine):

But even while the president was under attack in the House, allies in the Senate rose to the his defense. Most notably, Senator Jeff Bingaman, Democrat of New Mexico, used a lengthy floor speech to rebut the claims.

Mr. Bingaman, chairman of the Energy and Natural Resources committee, noted that at a hearing earlier in the week, a panel of energy experts collectively dismissed the claims that either climate policy or the pace of offshore oil permitting were driving gas prices higher.

“None of these experts highlighted the administration’s permitting process in the Gulf of Mexico as being a significant factor in world oil markets,” he said.

“Second, any anticipated Environmental Protection Agency regulation of greenhouse gas emissions at refineries was not included in any of the presentations as a driver behind the current increased in prices,” Mr. Bingaman added.

The crucial driver behind the price increase, he said, was the instability of world oil markets in the face of uprisings across the Middle East, particularly in Libya, where a popular revolt has effectively curtailed oil exports.

“When political unrest threatens major choke points in the world oil transit routes, world oil prices react, as they have,” he said. “When a member of the Organization of Petroleum Exporting Countries stops exporting oil, which has virtually occurred in the case of Libya, world oil markets react.”

“When there are fears that a nearby neighbor and close ally of Saudi Arabia, home to the world’s largest spare oil production capacity, might begin a series of political upheavals in the Persian Gulf region, world oil markets react as well,” Mr. Bingaman continued.

He closed by arguing that only reducing the country’s overall dependence on foreign oil would result in long-term relief at the pump.

Unless "experts" are asked to list all the things that don't exist, but that would reduce oil prices if they did, then their failure to discuss or consider the possible effect of a change in U.S. government energy policies (to something permitting safe but aggressive development) in their price inquiries would be quite predictably meaningless. And Sen. Bingaman should know that.

But what's appalling is how desperate Sen. Bingaman is to ignore what he clearly does know — indeed, what he recites himself in the same speech. "Instability in world oil markets" does indeed make a vast contribution to the rise in the market price of oil, and in the consequent price rises in gasoline and other products refined from oil, including plastics. Threats to international transport systems also raise prices. But U.S. government policies that permit the development of domestic oil, onshore and off-, add supplies to the market that are stable and that are less subject to disruption in a crisis.

Barrels of oil of a like quality (e.g., sweet intermediate crude) are indeed fungible once they're in-hand. But the addition of secure oil supplies reduces the overall volatility of the world market. The addition of new oil supplies that can't be denied to us by some despot or cartel during a world political crisis drives down the current world price of oil more than the addition of the same amount and type of oil supplies from, for instance, a new reservoir in Saudi Arabia or Venezuela.

So yes, changing U.S. government policy to permit development of our own onshore and offshore reserves is essential to reducing our dependence on foreign oil. And reducing dependence on foreign oil in turn reduces market instability and our vulnerability in it.

Moreover, today's oil prices are predicated not only on existing supplies and their sources, but on the market participants' aggregate expectations about oil supply in the future. That's why opening the Strategic Oil Reserves would have only a limited effect on current prices (since its contributions to supply would be small at best and definitely limited in duration). But that's why changing U.S. government policies to permit — not even to encourage, but simply to permit — private development of our onshore and offshore resources, particularly in and around Alaska, would have a more profound immediate impact on current prices: It would tell the market something important about long-term supplies that can be predicted with confidence to become available for year after year in the future, supplies that are not subject to political blackmail or interruption at shipping choke-points.

So the fecklessness of the Obama energy policy will continue to hurt the United States for a long, long time. But it's hurting us today, too — at the gas pump, and at the cash register whenever we buy anything that's made from plastic or transported from a far-off place of manufacture. And the intrinsic indefensibility of Obama's policies is vividly illustrated by the fact that someone normally as plausible as Jeff Bingaman can't mount a defense of it on the Senate floor or in the NYT without immediately contradicting himself and undercutting his entire argument.

A "reactive presidency," not a "strategic" one

This report (h/t Weekly Standard) from "Foreign Policy," titled "How Obama turned on a dime toward war," is very scary.

It advances the proposition that this intervention in Libya marks the end of the quiet coalition between SecState Clinton and SecDef Gates — who, together, have been running the guts of what passes for the Obama Administration's foreign policy. With them no longer in sync, Obama is unmoored:

"This is the greatest opportunity to realign our interests and our values," a senior administration official said at the meeting, telling the experts this sentence came from Obama himself. The president was referring to the broader change going on in the Middle East and the need to rebalance U.S. foreign policy toward a greater focus on democracy and human rights.

But Obama's stance in Libya differs significantly from his strategy regarding the other Arab revolutions. In Egypt and Tunisia, Obama chose to rebalance the American stance gradually backing away from support for President Hosni Mubarak and Zine el-Abidine Ben Ali and allowing the popular movements to run their course. In Yemen and Bahrain, where the uprisings have turned violent, Obama has not even uttered a word in support of armed intervention - instead pressing those regimes to embrace reform on their own. But in deciding to attack Libya, Obama has charted an entirely new strategy, relying on U.S. hard power and the use of force to influence the outcome of Arab events.

"In the case of Libya, they just threw out their playbook," said Steve Clemons, the foreign policy chief at the New America Foundation. "The fact that Obama pivoted on a dime shows that the White House is flying without a strategy and that we have a reactive presidency right now and not a strategic one."

So basically Obama is now making this up as he goes. And if there's a higher principle at work beyond "lets not lose votes from our Hard Left Base in November 2012," no one can possibly discern what that might be, because what's being said, and more importantly what's being done, is varying wildly from day to day.

WaPo falsely accuses Dubya of "disdain," then proceeds to belittle our allies itself

Today's Washington Post contains a news story (i.e., not an op-ed) headlined "U.S. actions may speak louder than words," but as I write this, the same story is linked from the WaPo's home page under the headline "U.S. plays down its role in assault." In it, WaPo correspondents Mary Beth Sheridan and Scott Wilson solemnly assert:

As much as Obama has sought to strengthen the international organizations that the previous administration disdained, the United States remains essential to the operation in Libya, despite the president’s and [SecState Hilary] Clinton’s efforts to play down the American role.

The prefatory portion at the beginning of that sentence is an outrageous lie. George W. Bush can be fairly accused of a few things, but he never showed anything remotely approaching "disdain" for "international organizations."

In the rest of this piece, however, Sheridan and Wilson proceed to express a whole lot of what may politely be called skepticism, but far more accurately might be called "disdain," for the idea that America's NATO allies France and Britain are remotely capable of going it alone: "U.S. warships fired more than 110 Tomahawk missiles into Libyan territory to disable air-defense systems," we're told. "And the French and British warplanes that began to enforce the emerging no-fly zone operate under U.S. command." The whole point of the article is to argue that whatever the Obama Administration or our allies would like to pretend to the contrary, nothing meaningful can be done without the U.S. to enable it. The article ends with:

Beyond public opinion, the Pentagon is also wary about the resources that a prolonged military operation in Libya will require and whether its current goal of protecting civilians will expand to include Gaddafi’s removal. Obama has said the Libyan leader “must leave.”

But for now, the U.S. military is in charge of the intervention in Libya.

International military forces are operating under the command of Gen. Carter F. Ham, head of the U.S. African Command. The Pentagon says command will be turned over to the coalition in coming days, although which country will lead it remains unclear.

Disdainful? Or just dismissive and patronizing? I'm having trouble figuring out this "smart diplomacy." And is this just the WaPo being overly blunt, or are they actually mirroring sentiments from their pals in the Obama Administration?

That the Post's conclusion is probably right, and that the Obama Administration isn't fooling anyone, is a different issue. I personally think that by being coy, Obama is putting British and French warriors' lives, and certainly the lives of hundreds of thousands of Libyans, unnecessarily at risk. Which are Kadafi's officers likely to hold out longer against: The British and French acting with only uncertain and indirect American support, or an overtly American-led coalition that also includes the British and French as well?

If this is to be done, then 'twould be well that it be done swiftly and unsubtly. But that would require an American president who believes in American exceptionalism and who is capable of actually leading. And that, alas, we no longer have.

BBC: What's the harm, when all of NPR's listeners already believe all Tea Partiers are hard-core racists anyway?

I was much amused this afternoon while listening to a reporter from the BBC News World Service — during its daily news broadcast for National Public Radio via NPR's local affiliate, KUHT-FM — interviewing an NPR exec (whose name I didn't catch) over the ouster of NPR CEO and president Vivian Schiller. Ms. Schiller was asked today to leave by NPR's board in the wake of Tuesday's release of, as NPR so mildly puts it, a sting videotape "of then-NPR fundraiser Ron Schiller (no relation) slamming conservatives and questioning whether NPR needs federal funding."

Before she joined NPR in January 2009, Ms. Schiller was "senior vice president and general manager of" — drum roll, please, to heighten the suspense and enhance your surprise — "NYTimes.com."

What wasn't so funny was the NPR spokesperson's continued insistence in the BBC interview that NPR really isn't liberal, that it's "moderate" and "right down the middle," and that Ron Schiller's bigotry, odious opinions, and radical leftism isn't really representative of NPR as a whole. A joke told as often as that one has been just isn't funny any more.

In fact, the true reason why both Schillers had to be thrown under the bus is obvious, and it's obviously not because either of them was in any way out of step with the rest of NPR's leaders or its rank and file. Rather, it was because (a) he'd accidentally told truths that exposed his and NPR's biases, and (worse) been caught on videotape doing so, and (b) she hadn't been smart enough to prevent that, even in the wake of the disastrous publicity from Juan Williams' firing and James O'Keefe's previous video stings of (other) liberal monoliths like ACORN and Planned Parenthood. In this case, the Schillers are not being punished for the (still-continuing) crime, but for the failure of the (would-be perpetual) cover-up.

But I did laugh aloud at one incredulous question from the BBC interviewer, to the effect of (my close paraphrase, but not a direct quote): "Why should an NPR executive be fired, and another forced to quit prematurely, just because one of them said the Tea Partiers are all hard-core racists? Don't NPR's listeners all already share that opinion?"

Of course, my hearing it explodes the proposition.

And of course, even if all of NPR's listeners were already thoroughly indoctrinated in the Democratic Party's politics and world-view (including its love of class warfare, identity politics, and government spending/regulation) — even if it weren't NPR's goal to continue to indoctrinate, and to make new converts to their political cause — that still wouldn't make it okay for NPR to promote one side's politics with everyone's tax dollars. There's a word for that practice, a word every reporter for the BBC or NPR ought to already have in their active vocabularies: "corruption."

There's never been a time when I was so drunk that I no longer realized I was drunk, but these tools, these preening asshats, are so thoroughly self-besotted and self-deluded that they really can't tell when they're hallucinating anymore. And that, while sad, and even dangerous, can't help but be funny too.

----------------------

UPDATE (Wed Mar 9 @ 6:40pm): I wanted to make sure I wasn't mischaracterizing the BBC interviewer's question, so I tracked down what's at least a temporary link to an .mp3 podcast of today's program. The segment on NPR begins at 23:20, and was hosted by BBC World News anchor James Menendez.

Listening to it again, I was struck by some earlier banter between Mr. Menendez and BBC Washington correspondent Paul Adams, who — when asked why Ms. Schiller had to be fired for Mr. Schiller's having been "unwise enough to give his candid opinion on some of these [incindiary] issues [like the Tea Partiers being racists]" — had this to say (beginning at 25:06; the transcription, and all bracketed portions [including the purely snarky Beldarisms, in green], are my own):

Well, because she [Ms. Schiller] has had a pretty difficult time. NPR, it has to be said [unsourced opinion disguised-as-news alert! because no, it doesn't have to be said, unless you have a point of view you're selling or a constituency to whom you're pandering], has been — and public broadcasting as a whole — a target of conservatives for a long, long time. Last autumn, she fired, somewhat summarily, an analyst and commentator, Juan Williams, over some comments that he made on the right-wing cable news channel, Fox News, in which he said he felt uncomfortable when he saw people dressed in Muslim garb on airplanes. And I think you'll detect here something of a common thread to this story — that it all — a lot of it seems to revolve around attitudes toward Muslims in American society today. [Oh, yeah, right. The "real story" is all about American Juan Williams' Republican racism! Squirrel!] She was much criticized over her handling of that affair, and it was clumsy to say the least. And so it's felt [another calculated passive-voice wimp-out] that this was really the last straw as far as she was concerned.

[BBC anchor Menendez]: So could this affair make it much harder for NPR to justify its funding?

[BBC correspondent Adams:] It could, and it comes at a time when Republicans are trying to do precisely that. In fact, a bill has already passed the House of Representatives which would remove federal funding from public broadcasting, including NPR. The Senate has yet to rule [sic] on that, it's not quite clear which way it's going to go. [We fought a revolution over that whole "ruler" thing, as you might think a British correspondent, stationed in the city named for the winning American general, would remember.]

And unfortunately one of the things that Ron Schiller said in that sting video was that he thought NPR could survive pretty well without federal money — words that may come back to haunt the organization because even though it's a relatively small part of their revenue, it is still something which they regard as extremely important. [Actually, Mr. Schiller said "it is very clear that [NPR] would be better off in the long run without federal funding," which undercuts the rest of Mr. Adams' spin.] And it is thought that [passive voice alert! often a signal that what follows is going to be someone's opinion, with the someone disguised] in the case of some of the rural NPR member stations, federal money can account for anywhere up to 50% of their operating costs, even though nationally, as an average, it's more like 10%. [This is simply repeating something Mr. Schiller also said at the lunch, when describing their "challenge right now" if they immediately lost federal funding and needed to turn, presumably, to other righteous sources ... like the Muslim Brotherhood.]

So there are serious issues involved for NPR, and it could well be that this will add fuel to the argument that it should be — that NPR should lose this money. [At last! Some of that famous British understatement!]

[BBC anchor Menendez]: And so what have the Republicans been saying about this?

[BBC correspondent Adams:] Well, so far, I think they regard this as confirmation of their view, which is that NPR is an inherently liberal organization, and that an organization like that, which displays its liberal bias, has no business receiving public money. [Literally rushes to add:] It has to be said [another unsourced opinion disguised-as-news alert!] — and I think anyone who's listened to NPR, I think, will echo this [again demonstrating a profound ignorance of the fact that even conservatives like me sometimes listen to NPR, because we are in fact interested in what liberals have to say] — you'd be hard pressed to find in America's overheated media environment a rather more straight-laced and moderate voice than National Public Radio.

It's folks like these who can say, and insist, with perfectly straight faces that Barack Obama is really quite moderate. [And to his credit, "rather straight-laced," at least for a former cocaine-snorter turned community organizer who still plays a lot of basketball and golf.]

But here's the exact question that prompted my post, and I've identified the person of whom BBC anchor Menendez asked it as being NPR ombudsman Alicia C. Shepherd (at 28:57; obvious vocal emphasis in original was his, but these italics and bold-facing are mine):

Is it just, though, a perception about where NPR's coming from? I mean: Is it not fair to say that lots of people — lots of listeners — would share some of Ron Schiller's views, particularly about the Tea Party, for example? [Menendez delivered the previous sentence's ending with what can only be described as a verbal smirk. These radio guys are so talented that way! Bloggers can't be so subtle.]

I thought, at first, that it was to Ms. Shepherd's credit that she didn't rush to embrace the implied accusation of racism implicit in the question, and that she didn't seem to be trying to deny the ugliness of what Mr. Schiller had been caught saying on video. And in fairness and for context, here's her answer to BBC anchor Menendez' question:

Well [obvious pause] may be. But that's really not the point.

NPR is a news organization just like the BBC. [That's true! but not in the way she meant it.] I'm sure there are reporters at the BBC who have personal biases or opinions, agendas, whatever. [This would be an example of that famous American understatement.]

But they're professionals, and that's the same thing with the journalists at NPR: You put aside those biases and you go out and you report the news. And you try to be accurate, thorough, fair, independent, transparent — all the values of journalism.

But then it struck me: What better way could Ms. Shepherd and the other executives still at NPR put on an appearance of being duly chastised — as part of their efforts to restore the fig leaf of a pretense that they're unbiased and objective — than by giving an interview to the BBC, in which they could rely on their British cousins like Adams and Menendez to testify on NPR's behalf, and to spin, for NPR's benefit, the very same odious talking points that Mr. Schiller had just been caught making?

And then you simply use your own network to re-broadcast, all across America — and yes, still using, in part, U.S. tax-payer dollars — Menendez' and Adams' dripping insinuations, barely concealed from being an outright accusation, that "All Tea Partiers really are racists"! Brilliant! Pathetic, and evil; but brilliant.

(The Beeb itself, and its World Service in particular, are under considerable funding pressure in the U.K., by the way, and their reliance on government funding is nearly total. An ethical journalist ought to have disclosed his own and his employer's own related interests as part of this report. An ethical journalistic ombudsman would have pointed the conflict out to her interviewer. Heh — maybe at journalism school, otherwise only in our dreams.)

The latest from Tripoli? From Cairo? Tehran? ... Philadelphia?

When a government has ceased to protect the lives, liberty and property of the people, from whom its legitimate powers are derived, and for the advancement of whose happiness it was instituted, and so far from being a guarantee for the enjoyment of those inestimable and inalienable rights, becomes an instrument in the hands of evil rulers for their oppression.

When the Federal Republican Constitution of their country, which they have sworn to support, no longer has a substantial existence, and the whole nature of their government has been forcibly changed, without their consent, from a restricted federative republic, composed of sovereign states, to a consolidated central military despotism, in which every interest is disregarded but that of the army and the priesthood, both the eternal enemies of civil liberty, the everready minions of power, and the usual instruments of tyrants.

When, long after the spirit of the constitution has departed, moderation is at length so far lost by those in power, that even the semblance of freedom is removed, and the forms themselves of the constitution discontinued, and so far from their petitions and remonstrances being regarded, the agents who bear them are thrown into dungeons, and mercenary armies sent forth to force a new government upon them at the point of the bayonet.

When, in consequence of such acts of malfeasance and abdication on the part of the government, anarchy prevails, and civil society is dissolved into its original elements. In such a crisis, the first law of nature, the right of self-preservation, the inherent and inalienable rights of the people to appeal to first principles, and take their political affairs into their own hands in extreme cases, enjoins it as a right towards themselves, and a sacred obligation to their posterity, to abolish such government, and create another in its stead, calculated to rescue them from impending dangers, and to secure their future welfare and happiness.

Whence sprung these words? And when, and what did they portend?

Wait, wait — is this one of those Tea Party manifestos or somethin'?

These lines weren't penned in Tripoli or Cairo or Tehran, nor even in Philadelphia. Rather, they're from Washington — more specifically, Washington-on-the-Brazos — and their portent, and place in time, is found in the document's title:

The Unanimous Declaration of Independence made by the Delegates of the People of Texas in General Convention at the town of Washington on the 2nd day of March 1836.

But doncha know they could still say, in Egypt of Mubarak, or in Tehran of the Mullahs, or in Tripoli of Kadafi, just what these Texians said of the Mexican government in 1836 — that it "hath been, during the whole time of our connection with it, the contemptible sport and victim of successive military revolutions, and hath continually exhibited every characteristic of a weak, corrupt, and tyrannical government."

Shall it be said of the Egyptians and the Libyans and the Iranians that — as the Texians said of the fellow citizens they were leaving behind in Mexico — "We are, therefore, forced to the melancholy conclusion, that the Mexican people have acquiesced in the destruction of their liberty, and the substitution therfor of a military government; that they are unfit to be free, and incapable of self government."

It remains to be seen — sadly, to some extent, still even in Mexico.

Anyway, apparently someone finally told our esteemed Commander in Chief that in the Marines Hymn, there's already this line about the "shores of Tripoli," which goes back to this whole 1805 thing when Jefferson was President and he established the first Navy SEALS or something. So really, keeping all our carrier groups out of the Mediterranean hasn't really been all low-key and non-hegemonic the way you say you intended, and it hasn't been fooling anybody. It's just been America acting really stupid again, since sending ships to protect American interests in Libya is exactly the kind of thing the C-in-C has been calling on the Navy and Marines to do since decades before they took the wood out of that old ship that they used to make your very old desk, Mr. Obama. And yeah, then there was that more recent dustup involving some F-111s and Mr. Reagan, but that was during Barry O's hazy daze so he'd kind of forgotten them too (even though Kadafi has been using it as his #1 applause line in every rally during the twenty-plus years since the Infidels of that self-same U.S. Navy penetrated the Line of Death in the Gulf of Sidra).

Now you, Mr. Obama, have just given Kadafi's radical Muslim successors the applause line they will use: "Where were America's mighty aircraft carriers when Kadafi was calling in airstrikes on his own people?" Way to vote "present," Barry. I sure wish the Spirit of Independence Days' Past, in the form of Sam Houston, could pay a nighttime visit to Mr. Obama's dreams.

And I'm glad the Texians in 1836 didn't have to rely on support from someone like you in their efforts to break free from a corrupt and counter-constitutional military dictatorship. Happy Texas Independence Day! "[C]onscious of the rectitude of our intentions, we fearlessly and confidently commit the issue to the decision of the Supreme arbiter of the destinies of nations."

Liz Cheney parallels (but doesn't quite match) Beldar's prescription for what Obama should say about U.S. aid to Egypt

On this morning's "Fox News Sunday," Liz Cheney made a point very similar to the one I made in my post from last Friday (my transcription from DVR; boldface mine):

[Chris Wallace:] Would you like to see him [i.e., President Obama] openly support the freedom fighters, the protesters, in Iran?

[Liz Cheney:] Absolutely! He should have done it last June. Had he done it, frankly, in June of 2009, we might have a very different Iran today. I think that — you know, you have a situation where the [Obama] Administration is constantly playing catch-up. And one of the things that they clearly are going to be doing now is adding more money to the democracy programs. As they do that, they need to be held to account: Not a single taxpayer penny should go to the Muslim Brotherhood. The Administration so far has refused to declare their opposition to that. The Muslim Brotherhood is not democratic. They clearly support the imposition of Sharia law —

[Wallace:] — You're talking of course in Egypt —

[Cheney:] — and the return of the Caliphate in Egypt. But I think they'll face this issue across the region with Islamic organizations.

Of course no U.S. taxpayer money should ever go directly, or be permitted to be funneled indirectly, to the Muslim Brotherhood. And of course Obama should make that point clearly and publicly and now.

But it's not just the cash now that's important. It's the Egyptian people's understanding of the likelihood of a continuing sustained cash-flow in the future, the cash-flow they've been enjoying since, basically, the Camp David accords in 1978. With or without U.S. assistance, and indeed despite any efforts we might make to undercut their fund-raising elsewhere, the Muslim Brotherhood will find plenty of sources of cash that can be used to sway a "one man, one vote, one time" election.

But that's still chump change compared to the billions of U.S. aid dollars we've been sending to Egypt year in and year out. And the Egyptians who might be tempted by the Muslim Brotherhood's pitch, or intimidated by their threats and violence, need to understand that Uncle Sam's teat is going to be permanently withdrawn if the Muslim Brotherhood even shares power in a new Egyptian government.

(Postscript: While looking for a suitable photo to pirate "fair-use republish" for this post, I was amused to see that among the companies buying advertising bandwidth from Foxnews.com is ... the New York Times. Oh, how the mighty are falling!)

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UPDATE (Sun Feb 20 @ 4:15pm): This post from Andy McCarthy illustrates exactly why I think this message so badly needs to be sent, and without further delay (link his):

In another worrying sign, there are indications coming out of Egypt and Israel that the Egyptian military provided security for Qaradawi’s appearance before the throng. This, you might say, is to be expected in a potentially unstable situation with the government in flux and a throng of hundreds of thousands (at least) gathered in Tahrir Square. But the reports further suggest that the military let the Muslim Brotherhood take the lead in orchestrating Friday’s events and that opposition leaders who are not Islamists were not permitted to speak. I am not in a position to verify or disprove these reports, but if they are true that would be very ominous indeed.

It's the colonels and the generals who've been spending a whole bunch of that American foreign aid, and who need to be stripped of any illusions that it would continue if the Muslim Brotherhood were part of Egypt's new government.

[Beldar] On Wisconsin!

What follows is an edited version of a spirited conversation I had on Facebook yesterday with a smart and principled liberal friend, a fellow lawyer with whom I enjoy arguing politics in absolute good humor. I'll call him "Liberal Friend #2" (to distinguish him from another liberal lawyer friend whom I've referred to as "Friend #1" in our past debates in these pages).

To help make clear who's saying what, I've put the contributions of Friend #2 in blue, I've put the contributions of another liberal friend of his in purple, and I've left my own remarks in basic black):

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[Liberal Friend #2]: Join me in supporting the right for collective bargaining! The U.S. has the largest economy and the strongest middle class in the world BECAUSE of unions, NOT despite them! ...

[Snarky Beldar:] Power to the People! I stand in complete solidarity with ... the voting public of Wisconsin, who voted just a few weeks ago for a state government that would stand up to its public employee unions who've been ripping off The People for decades. Zero contribution to either their pension or their health care plans — THAT's what the union is going to the barricades to prevent. And they're doing so through thuggish tactics (e.g., mobbing the houses and implicitly, sometimes explicitly, threatening the families of GOP legislators). I'll grant you, [Friend #2], that in the private sector, unions have sometimes been a useful counterbalance to management/ownership. That's not this at all though....

The rationale for collective bargaining agreements is that they redress an imbalance of bargaining power that favors private management. There is no similar justification for public sector employees because the government (in a democracy) already, by definition, is carrying out employment policies for the benefit of everyone in the state. Public employee strikes are typically illegal, not because the gov't is anti union but because the strikes are used to coerce & intimidate the public (not just private management that's trying to look after private ownership interests).

[Friend #2:] So then you FULLY support private sector unions and would oppose any legislative schemes to dis-empower them as well?

Public employees should have the same rights as private employees, for the VERY reason we see coming to fruition in Wisconsin. When some right wing governor takes office, he should not be able to unilaterally decide "all public employees take a 5/10/20/?? percent pay cut!"

Those employees should ABSOLUTELY be part of the process and have a place at the table where those discussions take place.

There is NO reason to make them sit silently in the corner while their livelihoods are subject to the whims of political expediency. Taking away their collective bargaining rights paints a target on their backs a MILE WIDE for any other politician looking to score points in the future.

[Friend of Friend #2:] ... I don't think you can honestly state that teachers and other public servants have "ripped off" the system, they negotiated for what they could get — that American way thing conservatives always talk up. Or is that only for the rich and powerful?

[Snarky Beldar:] I'm not urging the repeal of the National Labor Relations Act, no. I do oppose efforts by the Dems (so-called "Card Check") to do away with employees' rights to vote for or against unionization via secret ballot — there's history of intimidation by both management and labor when individual employee votes can be tracked. And [Friend #2], this isn't just a "right wing governor." It's a conservative governor backed by a conservative state legislature — DEMOCRACY. Elections have consequences, and if the voters of WI don't like what their most recently elected legislators and governor do with regard to public employee contracts in a near-bankrupt state budget, then by all means they can throw the bums out and put their own bums in, who presumably can restore collective bargaining. I don't see that happening, because the fact is that the public wants accountability. They want results. They want to stop shoveling money into the black maw of public education while test scores continue to drop and even terrible teachers can't be fired. They want public employees to at least make SOME contribution to their own retirement and pension plans, just like the rest of Americans do — not get a gold-plated benefits package that's theirs in perpetuity.

Lest you think I'm anti-teacher or anti-public school: My paternal grandfather and two of my aunts taught in the public schools. My mother was a teacher and eventually became the highest-ranking woman administrator in the Austin ISD's special ed program. My sister taught blind and deaf kids at the Texas State School for the Blind, and then taught elementary school for normal kids for several more years. ... [A]ll four of [my] kids have gone exclusively to public schools[, as did both I and my ex-wife]. And my oldest daughter is an elementary education major at UH right now. I'm pro-teacher and certainly pro-student and pro-public education. None of those stances conflict with being anti-public employee union, though. Unions will start representing the interests of kids as soon as students start paying union dues.

... I concede your point[, Friend of Friend #2,] that the existing contracts were agreed to by the state. I'll concede an implicit point, too, which is that unions not just in the US but throughout the western world have been very clever in focusing on benefits rather than just wages, and in particular that they've been very shrewd negotiators on long-term benefits, taking full advantage of the natural tendency of legislators to fixate on the short term and the simple (often at the expense of the long-term and the profound). The voters of WI have now decided, however, that the legislators and governor they'd previously entrusted to negotiate on the public's behalf with their public employee unions were doing a really bad job — basically, giving away the store — and that that's a big part of why there's such a budgetary crisis facing Wisconsin. So the voters fired those guys. They brought in new guys who promised to make changes. So now, of course, the Party o' Hope-'n-Change is endorsing mob tactics to subvert the legislative process and preserve the status quo (i.e., to continue the state's slide into bankruptcy). The rank and file of PATCO paid the price when their leadership thought they could face down Ronald Reagan. I'd hate to see a similar fate befall Wisconsin's rank-and-file teachers, whose leaders are leading them off the very same cliff.

[S]ome time over a few beers, ask me about the [such-and-such] case. It's my only personal foray into labor law, but it was a really huge one, and it's definitely colored my views on labor relations — and not in a conventionally pro-management fashion, either: After that trial, the guy I ended up going out and getting drunk with was my opposing counsel, the top lawyer for [the] union. (But neither of us wanted to go drinking with the top guy from the Department of Labor — heh.)

[Friend #2:] Are you suggesting that the state employees in WI simply give up ALL rights to collective bargaining without a fight, and just HOPE that someone comes into office willing to give salary increases when times are good? I think the odds of a government official simply volunteering to do so are slim to none, regardless of party affiliation.

And hey, NO ONE likes to drink with federal lawyers, they are all WAY too serious!

[Snarky Beldar:] [Y]ou can't have it both ways. You can't insist that democratic government is good, and then turn around and immediately insist that people need special rights to level the playing field against the big bad democratic government. If government is well run, then it will pay a competitive wage and offer competitive benefits because that is in the public's best interests; and yes, what's "competitive" means it will be set by the market (including market alternatives, e.g., private schools). They have no legitimate NEED for collective bargaining. But to answer your question directly, no, I don't expect them to give up anything voluntarily, I expect them to follow their leaders off the cliff of public opinion because their leaders are greedy and selfish and, frankly, not too bright (see again the PATCO example).

[Friend #2:] I'm not really sure I see the conflict between democracy and collective bargaining.

[Snarky Beldar:] I'll hold my peace (*wild applause*) ... after sharing these words with you: "All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress." The speaker? FRANKLIN D. ROOSEVELT.

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UPDATE (Sat Feb 19 @ 1:30pm): Contrary to the impression one might get from my discussion yesterday, the Wisconsin fight is not about an absolute abolition of collective bargaining for public employee unions generally. While many states already outlaw collective bargaining by public employees either in whole or in part, Gov. Walker is mostly trying to roll back an increase in Wisconsin public employees' collective bargaining rights that was previously granted by a Democratic-controlled state legislature. And the unions have agreed in principle with the notion that their membership ought to share in the costs of pension and health-care plans. According to the Wisconsin State Journal (if you dig down into the nitty gritty details of their report):

Top leaders of two of Wisconsin's largest public employee unions announced they are willing to accept the financial concessions called for in Walker's plan, but will not accept the loss of collective bargaining rights....

Walker's plan calls for nearly all state, local and school employees to pay half the costs of their pensions and at least 12.6 percent of their health care premiums. That would save $30 million by June 30 and $300 million over the next two years, the governor has said.

The measure also would prohibit most unionized public employees, except local police and fire fighters and the State Patrol, from bargaining on issues besides wages. Wage hikes could be negotiated only if they don't exceed the consumer price index.

The reason the unions — and the Democratic Party — are treating this like Armageddon is that it's the health-care and pension benefits where their members have made out like bandits in the past. Legislators have pretended to "hold the line" on wages while giving away the store on benefits that would be paid for by some future state legislature in some future year. That's exactly why so many states are now flat broke, or on the brink of that.

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UPDATE (Sat Feb 19 @ 9:30pm): By the way, in Texas and a dozen other states, public employees have never had the right to collective bargaining, even on wages. Keep that in mind when you hear that Gov. Walker's about to make the sky fall.

I'm curious, though, what the explanation is for exempting police unions. If there is one (other than "They're too powerful already for us to mess with"), I can't immediately think of it.

Still more mush from the wimp — this time re the Muslim Brotherhood

I really, really hope that in his campaign for re-election, President Obama will make heavy use of that elder statesman of the Democratic Party, Jimmy Carter. After all, in what he has to say in general, and in what he has to say in particular about the Middle East, Mr. Carter is exactly as credible as Mrs. O'Leary's cow giving a lecture on fire prevention. Here's just the latest proof, as delivered by the old gasbag from the LBJ Library in Austin (bracketed portion mine, parenthetical by the American-Statesman; h/t InstaPundit):

[LBJ Library Director Mark] Updegrove, who characterized Carter as the president most associated with the Middle East, having helped to broker a peace accord between Egypt and Israel in 1978, asked the former president how the United States should view the Muslim Brotherhood, an influential group in Egypt that has ties to Hezbollah and may influence Egypt in the future.

"I think the Muslim Brotherhood is not anything to be afraid of in the upcoming (Egyptian) political situation and the evolution I see as most likely," Carter said. "They will be subsumed in the overwhelming demonstration of desire for freedom and true democracy."

Yes, absolutely! We should no more fear the Muslim Brotherhood than we should fear, say, that a bunch of "students" might "spontaneously" decide to take over an American embassy and hold everyone there hostage for 444 days. Couldn't possibly happen, huh, Mr. Carter?

I know there are a few Democrats who occasionally see my blog. Are any of you willing to "associate yourself," as they say on Capitol Hill, with Mr. Carter's latest remarks? Any of you willing instead to admit that the old goat has become an international embarrassment — not just a bad one-term president, not just the worst president of the 20th Century, but absolutely the worst ex-president ever?

What Obama ought say to Egypt

Obama should say — right away, and bluntly — “Lest there be a miscalculation from uncertainty about America’s position, Egypt should know that the day the Muslim Brotherhood becomes part of Egypt’s government is the day American foreign aid ends.”

But he won’t.

******

When Obama fails to do this, should then Boehner, as Speaker, say "I predict that the House won't appropriate money for foreign aid to Egypt if the Muslim Brotherhood is part of the government"?

I think so. I think it would be a truthful prediction that would likely prove accurate. And it's within Boehner's institutional province so long as it's carefully phrased. But Boehner should privately twist Obama's arm first, to give him the opportunity to speak for America as its chief of state.

Last word (for now) about reading Ninth Circuit tea leaves associated with the stay ruling in Perry

I emailed Prof. Hasen after my last update to my long post from Monday and Tuesday in which I was trying to read tea leaves from the composition of the Ninth Circuit panel that stayed Judge Vaughn Walker's invalidation of California's Proposition 8. Prof. Hasen had been quoted in the press as saying that a new and different panel would definitely hear the appeal on its merits.

In his prompt and gracious email reply, he has confirmed to me that he was indeed relying in part on his personal experience from past appeals in the Ninth Circuit, and he pointed me to the Ninth Circuit's Standing Orders, which (he said) clearly distinguishes between "motions panels" and "merits panels."

The Standing Orders, which run to some 122 pages, is a set of procedures and rules distinct from and supplementary to the Federal Rules of Appellate Procedure and the Ninth Circuit's own local rules. In them, for example, are several references (e.g., sections 1.12 and 3.7) regarding how the Ninth Circuit handles "comeback cases," but they don't seem to speak specifically to this situation. Much of Chapter 6 of the Standing Orders relates specifically to motions and motions panels, however, and to the coordination of actions by the motions panels once a case has been assigned to a merits panel either for summary disposition or for oral argument.

I have not read the Standing Orders carefully, but I'm more than willing to defer to Prof. Hasen's reading of them and his personal experience. If I do understand them correctly, however, there either has been, or soon will be, a merits panel assigned to this case in connection with the briefing and December oral argument ordered by the motions panel. And from that moment on, that merits panel will have plenary (complete) authority over everything to do with the appeal (subject, of course, to eventual en banc and SCOTUS review). Prior motions panels will be out of the picture entirely (subject only to the possibility that one of those same judges may, by random assignment, end up on the merits panel too). And it's likely that neither the public nor the litigants will be told who's on the merits panel until shortly before the oral argument.

Thus endeth my tea leaf reading for now.

*******

As for the significance of the motions panel having granted the stay:

Prof. Hasen was also kind enough to point me by email to this later post of his on the American Constitution Society's blog. (The ACS has been described as "the left-leaning equivalent of the Federalist Society," for those of my readers not immediately familiar with it.) I agree with almost all of what he's written there, including his ultimate conclusion that "for those who want to predict what will happen in the appellate courts, there's really very little to go on so far." But I would quibble slightly with his downplaying of the role of probability of success on the merits. He writes:

[S]ome have suggested that the decision to grant a stay must have reflected a belief on the part of the motions panel that the appeal had merit, because judges are supposed to take likelihood of success on appeal into account in deciding whether or not to grant a stay. [I'm one among many who've made that suggestion. — Beldar] Though it is possible that likelihood of success on appeal played a part in the motions panel's decision, my guess (and it is only a guess, because the motions panel offered no explanation for its stay order) is that a stronger factor was a desire to preserve the status quo pending appeal. Without a stay, there could have been a number of gay marriages performed while the case was on appeal, and in the event that Judge Walker's decision was reversed on the merits, then there would be further litigation over the status of those marriages and potentially a lot of disappointed people and difficult financial and family law issues to untangle. Preserving the status quo has always been a very strong factor in considering whether or not a stay should be granted.

Prof. Hasen's certainly right that maintenance of the status quo is, in theory, also a value that's supposed to be taken into account in deciding stay applications. Determination of whether and how much that particular factor counts in a given case often leads litigants to argue about what actually is the status quo. Here, it depends how far "ante" you go — do we count the days when the California Supreme Court had judicially imposed same-sex marriage, or do we only count the days after Prop 8, approved by the voters in reaction to that judicial action, re-imposed heterosexual marriage as the exclusive possibility?

Moreover, those seeking ssm by judicial decree — and I don't know if Prof. Hasen is among their number or not — always argue that the right of gays to marry is a "fundamental right," the abridgment of which is a particular tragedy, and the sort of right that federal courts ought to be most aggressive in protecting. Can you imagine that in weighing the factors for and against a stay application, a federal judge would give defining weight to maintaining the status quo over protecting a fundamental constitutional right that's being continuously abridged if, for example, the status quo consisted of California denying an opportunity to marry to everyone of Asian descent or of the Roman Catholic faith?

And I'm still entirely unimpressed with the argument that a Ninth Circuit stay is good news for all ssm-supporters because "an emergency stay request could have brought the issue to [presumed swing-Justice Kennedy] without giving him time for adequate reflection and rumination on the constitutional issues." That amounts to saying "Our position is weak right now but it might get better later, or better if we have lots more time and opportunity to talk Justice Kennedy into it." It amounts to a prediction by ssm-by-decree supporters that they think Kennedy's first instincts will be against them, a concession that they're fighting an uphill battle with the very Justice whose vote they most need.

But it's not as if same-sex marriage is an issue that Anthony Kennedy's never had to think about. Do we think he didn't bother to read Justice Scalia's dissent in Lawrence v. Texas, which explicitly predicted — as a reason against employing the substantive due process argument upon which Justice Kennedy's majority opinion was then relying — that the majority opinion in Lawrence would be used (as District Judge Walker has now done) as a ground to impose same-sex marriage by judicial decree?

As I've said before, concerns about how the presently composed SCOTUS will come down on these issues would have been a very good reason for Perry not to have been filed in the first place, because (from the viewpoint of ssm-supporters in general) it's created the worst possible setting — invalidating seven million fresh California votes on the subject — to impose same-sex marriage by judicial decree. Saying that another way: It's hard to imagine a more dramatic display of the anti-democratic nature of judicial activism.

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UPDATE (Thu Aug 19 @ 12:45 a.m.): By email, Prof. Hasen points out that even to the extent that the motions panel did base their stay ruling on their views as to probability of success, he's still disinclined to read anything into the motions panel decision because the merits will be decided by three altogether different judges. He'd also made that point in his ACL blog post that I linked and quoted above, and I readily concede it. Three new random new judges won't be bound by any precedential effect or law-of-the-case or anything else from the motions panel's ruling this week; when the members of the merits panel first begin forming definitive opinions on the merits, they'll presumably be approaching those issues afresh, working from newer and more thorough briefing. Thus when it comes to predicting what the merits panel might do, this ruling by the August 2010 motions panel has value only as a spot survey of three random Ninth Circuit judges, and then only to the extent that they gave weight to "probability of success" as one of several competing criteria (that include maintenance of the status quo).

Still, the stay opponents couldn't wrangle even a dissent, maybe even a special concurrence, from a panel with two Clinton nominees? On a civil rights case that's under a national microscope? When the district court had already refused a stay? Would many people have predicted that result last week, if all they'd known were the issues, the district court's ruling, and the political party of the presidents who appointed these judges?

I agree these are weak tea leaves, and I am admittedly quibbling by continuing to attribute a particular meaning to them. But to whatever extent this interim ruling does mean anything, I think it doesn't bode well for those who're hoping the Ninth Circuit will affirm court-imposed same-sex marriage. If I were in Olsen's or Boies' shoes — and I also readily concede that no one's actually asked me to fill them, and their team appears to be prepared to struggle on without my assistance — I'd consider the ruling a small piece of bad news that's somewhat troubling even beyond its immediate impact on same-sex partners eager to marry in California.

A question for EDMO supporters

A comment from frequent (and therefore patient) reader Gregory Koster prompts me to ask a question for all of my friends who promoted, or just supported, "Everybody Draw Mohammed Day":

Should we now put up giant sheets of butcher paper on the walls of whatever buildings are adjacent to the site of the proposed new Islamic center and mosque near Ground Zero; set up step-ladders and bins of brightly colored magic markers; and then have "Everyone Draw Mohammed Next Door to the Ground Zero Mosque Day"? Or perhaps we should have it there every day?

I'm sure some of the patrons (or if not, the hecklers) from Greg Gutfield's gay bar next door would participate, and heck, being a fun and funny guy who's rolling in the big media bucks these days, Greg might even donate the wall space, paper, markers, and ladders!

In same-sex marriage appeal, Ninth Circuit surprises Beldar with both composition of panel and results

[UPDATE (Wed Aug 18 @ 9:20 p.m.): Most of my speculation in this post is based on an apparently mistaken premise that I shared with other pundits who were speculating about the Perry case — viz, that the granting of emergency relief, like a stay pending appeal, by a Ninth Circuit motions panel would result in the merits of the appeal then being directed to that same panel. See my new post, which expand on the comments in the last updates below regarding Prof. Rick Hasen's comments in the press. — Beldar]

******

Along with many other legal pundits, I had predicted — not here, but on August 8 and again on August 13 in comments over on Patterico's blog — that the Ninth Circuit would refuse to stay U.S. District Judge Vaughn R. Walker's decision striking down California's "Proposition 8" state constitutional amendment that re-established the exclusivity of opposite-sex marriage there.

Today the Ninth Circuit proved my prediction wrong in a remarkable page-and-a-half order, the operative language of which amounts to less than a dozen sentences — but each of them is significant.

My prediction was not based on my view of what ruling would have been proper under the law — and for the record, let me promptly confirm that I think a stay is entirely appropriate, and that in due course Judge Walker's decision should be reversed and rendered by the appellate courts — but rather upon my admittedly cynical expectations based on my perception of the politics of the particular Ninth Circuit judges who I expected to be on the three-judge panel that would rule on the appellants' stay application: U.S. Circuit Judges Kim McLain Wardlaw, Raymond C. Fisher, and Marsha Siegel Berzon, all Clinton appointees who hail, respectively, from Pasadena, Pasadena, and San Francisco.

Instead, the three-judge panel that actually issued today's ruling comprised U.S. Circuit Judges Edward Leavy, Michael Daly Hawkins, and Sidney Runyon Thomas.

My friend and California/Ninth Circuit practitioner Patterico points out to me by email that these three judges comprise the Ninth Circuit's standing motions panel for August 2010, having been "[pre-]assigned [by the Ninth Circuit Clerk's office, under the administration of the Chief Judge, Alex Kozinski,] to consider ready substantive motions matters" which arise during that month. Every circuit maintains such a panel — emergency motions like this are sometimes purely procedural, sometimes somewhat substantive, but generally amount to "judicial scut-work" most of the time — and the membership of such panels typically rotates automatically, with different members serving every month. (For posterity, since the current page on the Ninth Circuit website listing members of the motions panel for August 2010 will change next month, here's a link to a .pdf capture of that page as of tonight.)

My prior understanding, however, was that the Ninth Circuit — like the Fifth, when I clerked for one of its judges way back in 1980-1981 — would automatically bypass the rotating motions panel when there was a subsequent appeal or emergency motion from a case that had already been heard by a prior Ninth Circuit panel, even if that was just a prior motions panel (as opposed to a panel that had heard a full appeal on the merits from a district court final judgment). Judges Wardlaw, Fisher, and Berzon — who, I assume, were the three members of an earlier motions panel — had heard and denied the earlier stay application last December in connection with Judge Walker's original ruling permitting the trial to be televised. So my assumption (shared by many other legal pundits) was that those same three judges would hear this motion too.

Some other facts that may or may not be, or become, significant:

• Judges Leavy and Hawkins are senior status judges. Senior status judges normally don't participate in the internal debate or voting on whether a panel decision should be reheard by the full circuit sitting en banc, which can sometimes affect the internal court dynamics of an appeal as it works it way through the circuit-court level and before it's considered by the SCOTUS.


• Judge Leavy was appointed by President Reagan, and Judges Hawkins and Thomas were Clinton appointees, but I don't know much more about them than that and the other very basic information in the Federal Judicial Center's biographical database.


• Although the Ninth Circuit is headquartered in San Francisco and appeals from the four Californa federal districts make up the majority of Ninth Circuit cases, there are other western states in the circuit, with circuit judges appointed from each; somewhat improbably, however, none of the three judges on this panel lives in California: Judge Leavy lives in Portland, Judge Hawkins in Phoenix, and Judge Thomas in Billings. Before I learned that they're on the August motions panel, I wondered whether perhaps Wardlaw, Fisher, and Berzon had been disqualified or had recused themselves based on their California citizenship. (FWIW, I don't think such recusal/disqualification is required.)

In addition to staying the effect of Judge Walker's decision, the panel sua sponte — that is, on "its own motion," without anyone connected to the case asking it to — set the case for an expedited appeal, on an accelerated briefing schedule shorter than the default deadlines established by the Federal Rules of Appellate Procedure that had already been applied to this appeal. The panel also announced that no exceptions or extensions are likely to be granted. (This same panel would hear such procedural motions.) And the panel also directed that the appellants "include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing," thereby ensuring that the standing issues will be fully briefed by both sides as part of the consideration of the merits of the appeal.

I'm still looking into this, and will quite possibly have updates to this post depending on what I find.

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UPDATE (Tue Aug 17 @ 12:25 a.m.): This is from the Court Structure and Procedures preface to the Ninth Circuit Rules, under section E(4) on "Court Procedures for Processing and Hearing of Cases":

The only exception to the rule of random assignment of cases to panels is that a case heard by the Court on a prior appeal may be set before the same panel upon a later appeal. If the panel that originally heard the matter does not specify its intent to retain jurisdiction over any further appeal, the parties may file a motion to have the case heard by the original panel. Matters on remand from the United States Supreme Court are referred to the panel that previously heard the matter.

This sort of rule is common in both state and federal court systems, and it's intended to promote judicial economy by directing particular cases to judges who may already be "up to speed" on them. It's not unknown for such rules to generate some gamesmanship by the litigants, however, and more rarely, even by judges or clerks' office personnel. Typically if there's any question about how or whether such a rule applies in a given case, the clerk turns for an answer to the chief judge. And the administrative power to make such procedural rulings is, as a practical matter, an important adjunct of a chief judge's power as "first among equals" on any given court.

What's currently before the Ninth Circuit does have a different Ninth Circuit docket number (No. 10-16696) from the proceedings on the trial televising ruling (No. 09-17241), so it's possible that someone in Clerk Molly C. Dwyer's office either never considered directing this stay motion to the earlier panel, or else thought about it and concluded, "Nope, this is not a 'later appeal' from the 'same matter' within the meaning of the rule." Or the Ninth Circuit Clerk's office may have a standing, but (perhaps) unwritten, rule that prior decisions by mere motions panels don't count unless it's for another procedural motion that's from the same stage of an appeal (e.g., also from after a final judgment), such that a prior motions panel ruling from an emergency interlocutory appeal just doesn't qualify for the re-assignment rule.

On the Ninth Circuit's helpful web page accumulating filings from this case, I don't see any separate motion by the respondents (that is, the ssm-proponents who won before Judge Walker) asking for their opponents' stay motion to be assigned back to the same panel that had heard the earlier motions in connection with televising the trial. That might turn out to have been a tactical blunder by Olsen and Boies and their allies, perhaps based on their assumption that the Clerk would make that re-assignment automatically.

As for whether this same motions panel will — by virtue of having ruled on the stay application and, sua sponte, on the briefing schedule — will now be assigned the appeal on the merits, I just don't know the answer to that question. Before today, I would have said "yes" with some confidence. But if the Wardlaw-Fisher-Siegel panel didn't hear the stay application, I'm not sure whether the Leavy-Hawkins-Thomas panel will hear the merits, especially given that two members of the latter are senior status judges.

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UPDATE (Tue Aug 17 @ 12:55 a.m.): There was a tip-off as to who the panel would be: On Friday, August 13, there was a short order from the current motions panel — Leavy-Hawkins-Thomas — granting the appellants' motion for leave to exceed the normal page limitations in connection with their stay application. But it's Docket No. 14 in the Ninth Circuit's docket. Even with instantaneous service by email, Olsen, Boies et al. probably did not have had that order in-hand when they prepared and filed their response (which has Docket No. 9 and was e-filed on that same date). I haven't read them yet, but a word-search of the .pdf files indicates that the word "panel" doesn't appear in either their response or the responses filed by their allies fighting the stay (the City & County of San Francisco and, despicably, the California Attorney General).

Others (besides me and Patterico) who had speculated that the Wardlaw-Fisher-Berzon panel would hear the appeal on the merits include Orin Kerr at the Volokh Conspiracy and bmaz at Empty Wheel/Firedoglake. Prof. Kerr added a parenthetical edit, perhaps presciently: "(edit: just to be clear, I mean the Ninth Circuit merits panel, not the motions panel that will hear the stay denial in the next few days)." But if the above-quoted provision of the Ninth Circuit rules didn't even get this stay motion back to the Wardlaw-Fisher-Berzon panel, then why would it get the decision on the merits back to them? And will it even get the case back to the Leavy-Hawkins-Thomas panel?

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UPDATE (Tue Aug 17 @ 1:35 a.m.): The Advocate (h/t AllahPundit at Hot Air) quotes representatives from the California AG's office (heh) and the legal teams seeking to overturn the ssm-amendment as saying they won't ask the SCOTUS to overturn the stay. Presumably that also means they won't seek panel or en banc reconsideration of the stay at the Ninth Circuit level either. As for how it's being spun:

"We are very cognizant of the fact that many people wanted to get married as soon as possible, and that's why we so strongly opposed the stay," plaintiffs' attorney Ted Boutrous, who argued the case alongside lead attorneys Ted Olson and David Boies, told The Advocate. "But at the same time, had the stay not been entered, it may have been harder to get such an expedited briefing schedule in the case."

Another legal source, who declined to be named, said that had the ninth circuit ruled against a stay, an appeal by Prop. 8 supporters to the Supreme Court could have been harmful to Olson and Boies's highly strategical [sic] case. "When you have an important constitutional issue, as is the case here, you don’t want the first time it comes before the justices to be a high-pressure, high-speed situation," the source said. "You’d rather have it come on a full record and on a schedule where the court has time to consider the issues carefully.

"You don’t want this hitting their schedule when it's summer and they're on vacation," the source added.

The spin strikes me as spectacularly weak sauce: Yeah, if the stay had been denied, they might not have gotten an expedited briefing and argument schedule, but in the meantime, thousands of gays would have been getting married. Whether those marriages will later — after SCOTUS review — still be deemed valid can't possibly depend on whether they were entered into solely on the strength of Judge Walker's unstayed ruling or, instead, on the strength of a potential later affirmance of his ruling by the Ninth Circuit on the merits. Boutrous' suggestion that the stay somehow benefits gays wanting to get married in California is simply ridiculous, a particularly unpersuasive example of "well, we really sort of wanted to lose that motion, regardless of what our court filings said." Moreover, even in a "highly strategical case" (which I suppose is one in which you have to be extra careful not to misunderestimate your opponent), if you think that an appellate judge's first instinct would be to go with your side, then you quite possibly might prefer to present the issues to him for the first time in an emergency setting. And the "summer vacation" argument is childish. Whoever made those arguments, even for purposes of spin in the press, was very wise not to agree to be named.

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UPDATE (Tue Aug 17 @ 2:15 a.m.): Musing on the significance of the order's concluding sentence and case citation regarding standing, Allahpundit writes (links his):

As of an hour ago, the first weddings were set to start at 5 p.m. on Wednesday; now they won’t happen until December at the earliest, with no explanation given of how Walker erred. Presumably they figured there’s enough of a chance that Prop 8 supporters will win on appeal that they didn’t want to let marriages happen now, only to have to void them later. That’s the good news for gay-marriage opponents; the bad news is that two of the three judges here are Clinton appointees and they’re clearly quite interested in Walker’s argument that Prop 8 supporters lack standing to appeal his decision. Merely postponing the inevitable here?

But if we're debating which tea leaves are strongest and most reliable as predictors, I have a contrary take. The standing issue had already been raised and briefed (albeit in a comparative hurry) by both sides in the stay application and responses. Every appellant has the obligation to demonstrate to the appellate court that it has federal subject-matter jurisdiction and that the appeal meets the other "case or controversy" jurisprudential requirements like standing, ripeness, non-mootness, etc., so there is absolutely no chance that the appellants would have ignored those issues in this case. However, precisely because it's so basic, if even one judge on the panel requested a sentence like this one — even if he simply wanted that briefing in order to confirm his or her preliminary view that there is indeed standing — then whoever drafted the order for the panel certainly would have included it. The sentence requesting this briefing is not the sort of thing anyone would object to including in the order, in other words, and I really don't think it necessarily implies anything important as a result.

Far more importantly: Probability of success on the merits is explicitly made part of the standard of review for stay applications like this one. If you lack standing, your probability of success is zero. Probability of success on the merits is not determinative by itself, but it's very important — easily the single most important factor in most situations. Implicit in the unanimous ruling granting the stay, therefore, is that at least two judges are satisfied — at least for the present preliminary purposes, that being deciding an emergency stay motion — that there is adequate standing. They (or others) might come to a contrary decision later, but that's the decision of at least two of these judges, at least for today. If, by contrast, even two members of this motions panel really seriously thought that the opponents had already made a persuasive case that there's no standing, that should have resulted in the stay being denied. (If only one judge thought there's a serious doubt about standing, he/she might well have decided not to write that up now as a dissent to the stay ruling — such dissents are extremely rare at the circuit court level — but instead to kick that overt discussion on down the road to the panel proceedings on the merits, with the possibility that full briefing may persuade at least one of his/her panel-mates to agree there's no standing, or perhaps with the possibility that it will be an altogether new panel, with three entirely different members, who may hear the appeal on the merits.)

Also, Prof. William A. Jacobson at Le-gal In-sur-rec-tion speculates that the November election results and January office-taking of a new California governor and attorney general might affect the standing issue in a way that will help Prop 8 supporters. He might be right, but I haven't done enough to refresh my recollection and update my knowledge on standing to weigh in on that. When a governor or AG may decide to stop trying to defend the validity (under the federal constitution) of a state statute or state constitutional provision is an interesting mix of constitutional law, civics, and even legal ethics. I didn't disapprove, for example, of the Texas solicitor general's and attorney general's decision not to seek certiorari from the Fifth Circuit ruling striking down Texas' "five-dildo" rule, even though the Fifth Circuit had explicitly created a split between the circuits; but that was after full briefing and a decision on the merits by a Fifth Circuit panel, and after a motion for rehearing en banc had been denied. Morever, millions of Texans had not just voted to confirm the five-dildo rule!

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UPDATE (Tue Aug 17 @ 6:15 a.m.): From the NYT's article on the decision (boldface mine):

Richard L. Hasen, a professor of law at the Loyola Law School Los Angeles, said the ruling "takes the heat off the Supreme Court," which was likely to have been asked for an emergency stay by those who support Proposition 8 if the Ninth Circuit had not acted.

But Mr. Hasen added that the stay’s putting a halt to any potential marriages did not mean that the Ninth Circuit would necessarily rule in favor of Proposition 8.

"I don’t think that the granting of the stay means much, if anything, about how the Ninth Circuit will rule on the merits," he said. "It won’t be the same panel deciding the merits as decided the stay motion."

Mr. Hasen added he believed that even supporters of same-sex marriage could see the logic of extending a stay.

I hold Prof. Hasen in high regard, and having clerked for a judge on the Ninth Circuit, he has vastly more experience with that court than I have. (I've only appeared as counsel there once, and that was long ago.) I agree with his first observation, regarding Monday's panel ruling "tak[ing] the heat off the Supreme Court," although the SCOTUS is pretty much used to such heat and it naturally comes with their institutional responsibilities. I wish I knew the exact basis for his assertion that it "won't be the same panel," but I certainly can't dispute that conclusion. And I don't know what to make of his last comment: I think there are excellent reasons for proponents of same-sex marriage to have concluded that as a matter of long-term strategy, it was a mistake to even bring this case, in this fashion, from California at this particular time, in the immediate aftermath of the passage of Prop 8 and with the current composition of the SCOTUS. But (unless the NYT quoted Prof. Hasen out of context), why pretend that this is not a set-back, even a temporary one, for ssm-supporters?

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UPDATE (Tue Aug 17 @ 7:10 a.m.): Prof. Hasen's quoted at more length in the LAT (bracketed portion theirs):

Loyola Law School professor Richard Hasen said Monday's order was strategically advantageous for supporters of same-sex marriage, no matter how disappointed many couples may be. If the panel had refused to place a hold on Walker's ruling, the supporters of Proposition 8 were prepared to seek a stay from the Supreme Court. The court is believed to be divided on the question of gay marriage, with Justice Anthony Kennedy considered a swing vote. A vote on a hold might have pushed the justices into taking an early position on the question.

"I think there are strategic reasons why even the most ardent supporter of gay marriage could opt for a stay," said Hasen, an expert on federal court stays. "The concern is that rushing things to the Supreme Court could lead to an adverse result [for supporters of gay marriage.] If this case takes another year to get to the U.S. Supreme Court, there could be more states that adopt same-sex marriage and more judicial opinions that reach that conclusion."

Hasen said the hold "takes the heat" off Kennedy and takes the case "off the front burner for a while."

That makes more sense to me, although I'm not entirely persuaded. The change that ssm-by-judicial-decree supporters would need in the interim is not just another state or two moving into the (so-far quite short) ssm-permitted column, but instead in the occupancy of one of the SCOTUS seats held by Chief Justice Roberts and Justices Scalia, Thomas, Alito, and (possibly) Kennedy.

The LAT leaves unremarked — but I cannot — the cynicism that underlies all this punditry. I'm guilty of it too, but still: How and when, exactly, would the federal Constitution change between now and, say, the five or six months from now during which the Ninth Circuit's expedited proceedings will play out?

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UPDATE (Wed Aug 18 @ 9:20 p.m.): As I warned in my update at the top of this post, anyone reading it should also see my newer post for more on Prof. Hasen's statements about an entirely new panel hearing the merits, which I increasingly believe is likely to be the correct prediction.

Obama: L'État c'est Moi! And my job is to tell you, my subjects, what your values should be

One would expect even a junior state senator from Illinois to have a better grasp of politics than Barack Obama has shown in his comments about the proposed Islamic center near Ground Zero. One would certainly expect even a junior lecturer, much less a senior one, from Chicago Law School to have an instant grasp of the difference between whether something's legal and something's wise. Basically, I'd expect anyone running for high school senior class president to be able to draw this kind of distinction with great ease and indisputable clarity if he wished to opine on one question but not the other.

"Amateurish" is insufficient. "Embarrassing" would be presumed, except that Obama has still shown himself to be, quite literally, incapable of being ashamed.

Do you remember all the classic cartoons — Tom & Jerry, for example — in which very large, fierce watch-dogs get very excited, and they run from their doghouses across their yards as fast as they can? And they're practically flying, and they're really about to finally catch the cat when — boing! — they hit the end of their leashes and they're are yanked violently, hilariously, to a complete stop? That's what I was reminded of in reading, first, Greg Sargent's WaPo post from Saturday morning about Obama's Friday night speech being "one of the finest moments of Obama's presidency" precisely because Obama didn't just address the legal issue, but instead expressed his full support for building the center near Ground Zero because it would be flat-out un-American not to welcome and respect the group proposing to build this center; and, second, Mr. Sargent's wounded and genuinely pathetic one-line update after Obama's Saturday "clarifications." (H/t Patterico.) Repeat after me, Mr. Sargent, with more feeling this time: "We've always been at war with Eastasia ...." If you can't pivot on a dime, you're useless as a shill, Mr. Sargent!

But as our mirth finally subsides, let us consider the premise of this entire Obama pratfall, as very deliberately emphasized and then re-emphasized by the president's top handlers and spin-meisters, as reported in their camp newsletter newspaper of choice (emphasis mine):

Faced with withering Republican criticism of his defense of the right of Muslims to build a community center and mosque near ground zero, President Obama quickly recalibrated his remarks on Saturday, a sign that he has waded into even more treacherous political waters than the White House had at first realized....

....

... Mr. Obama’s attempt to clarify his remarks, less than 24 hours after his initial comments at a White House iftar, a Ramadan sunset dinner, pushed the president even deeper into the thorny debate about Islam, national identity and what it means to be an American — a move that is riskier for him than for his predecessors....

....

“I think it’s very important, as difficult as some of these issues are, that we stay focused on who we are as a people and what our values are all about,” the president said here on Saturday.

....

White House aides say Mr. Obama was well aware of the risks. “He understands the politics of it,” David Axelrod, his senior adviser, said in an interview....

....

Mr. Obama has typically weighed in on such delicate matters only when circumstances have forced his hand, as he did during his campaign for president, when he gave a lengthy speech on race in America in response to controversy swirling around his relationship with his fiery former pastor, Jeremiah Wright.

Debate about the Islamic center had been brewing for weeks, yet Mr. Obama had studiously sidestepped it.

But the Ramadan dinner seemed to leave the president little choice. Aides said there was never any question about what he would say.

“He felt that he had a responsibility to speak,” Mr. Axelrod said.

So let's put aside, for the nonce, whether this issue is remotely comparable in any way to candidate Obama's warm embrace and then bus-throwing-under of Rev. Wright (a political embarrassment unique to Obama and of own making). Let's not necessarily attribute to Obama or his staff, but instead let us assume for now the responsibility of the NYT's writers and editors, for the positively insane assertion that the Islamic religious calendar ever could or should leave the President of the United States "with little choice" or "force his hand." (After all, Obama can not only draw on all of his power as Commander in Chief and Chief Executive, he can fire up his special personal magic to lower the oceans and heal the planet; and you're telling me he's helpless, hopeless, and without alternatives that would let him even choose his own topics of discussion at a short speech at a dinner held to show respect to a religion he insists he doesn't belong to?)

And contrary to Obama's characterization, this controversy is in no way "difficult": Regardless of his or her political preferences, only a moron could fail to understand that (1) it's probably legal but (2) a spectacularly bad idea, as a matter of taste and policy (not law), for an Islamic center of the sort these particular folks are proposing to be built by these particular folks where they're proposing to build it. The only reason this controversy is still getting so much traction is that the 80% of Americans who instinctively understand and accept this simple distinction are quite properly annoyed that Barack Obama and the remaining 20% of Americans continue to insist on arguing about First Amendment rights.

But read again the part I've highlighted with green print — the part about "stay[ing] focused on who we are as a people and what our values are all about." And then re-read the reasoning for why Obama and his staff thought they were compelled to take a position, any position, in this local land use controversy. This administration has once again told you, America, in just so many words, that it sees the President's job as telling you what your values are and, indeed, what they should be.

In fact, Obama and his administration see his role as national nanny and instructor in matters moral to be so paramount that he was forced, despite knowing the risks, to "wade deep" in controversy, to suffer the slings and arrows of outrageous political fortune, just to set us straight on Friday. (And then to set us, uh, straighter, on Saturday.) Oh, poor, poor under-appreciated, misunderstood Barry! Because that's the spin, folks: Obama, according to Axelrod, hasn't been at all politically inept on this, but rather, he's been brave and selfless.

Now aren't you ashamed of yourself? You definitely should be!

The arrogance, the condescension, and the megalomania of Barack Obama and his minions continues to amaze me. Is there no political strategist with access to the Obama White House who can point out the obvious to them — that Obama's credibility has long since been exhausted, that even his relevance is fading, and that the single very best thing he could do for himself and his party right now would be to stop his own endless hemorrhage of talk, talk, talk?

The text of Beldar's email today to Michael Gerson

You wrote, "No child born in America can be judged unworthy by John Boehner, because each is his equal."

But no child born anywhere in the world has any better or worse basis to be "judged unworthy," either. Shall we just have done with it, then, and extend American citizenship to everyone born anywhere? Because that is where your logic inescapably runs.

A child didn't choose, or deserve, or not deserve, his parents either. His or her "inherent value" doesn't count for the selection of parents, either, but parents generally end up having an even bigger effect on us all than our citizenship. Sometimes life is unfair.

(Slightly edited for clarity.) If Mr. Gerson responds via email, then I'll bestir myself again to post about it.