June 28, 2016

Some things just shouldn't be decided by the people?

Via Instapundit, who says: "They love democracy until it turns out the wrong way" and "If you really believed that, though, you’d favor repealing the 17th Amendment."

But we don't have the referendum on the national level. Can you imagine how awful it would be? I object to the referendum on the state level too. I agree with the WaPo headline in the modified form.

The original form is hilariously embarrassingly revealing and elitist... and yet it's also sound. We have individual rights and we don't submit everything to majoritarian choice.

At the Pink Edge Café...


... discover your own topics.

I chose this image to respond to pm317, who said, in last night's Dark Pink Hotel: "Althouse, stop playing with us. That unfocused fuzzy middle is making me sick in the eyes." I told him to look at this new image and added:
But generally, the focus is telling you where to look. Why try to look at what the camera isn't "looking" at? That's supposed to be accepted as the periphery. Don't fight it. It's not real life so you can't focus on it.

Helping Hope Hicks.

"Trump Hires Senior Adviser for Communications/Jason Miller served as the senior communications adviser for Texas Senator Ted Cruz’s presidential campaign."
... For months, Trump campaign aides have said that they wanted to beef up the communications team to assist press secretary Hope Hicks, who has handled the bulk of the work on her own. But some campaign insiders resisted such a move, preferring to stick with the unconventional political strategy -- of utilizing a small, tight-knit campaign team -- that propelled Trump to win the nomination....
Getting to normal. That's the goal now. If people — the people who didn't fall for the phase 1 wooing — come to believe that Trump is normal, he's in. Right?

ADDED: Writing this post made me want to go see if Scott Adams has finally gotten around to saying something new, and I see he has and also that it seems apt enough to tag onto this post:
[T]he folks on [Clinton's] side have been viciously effective at branding Trump a crazy racist.

Nothing else in this election matters....

The facts don’t matter. Facts never matter. What matters is that the “crazy racist” label picked up enough confirmation bias to stick like tar. The Clinton team won the month of June. And unless something changes, Clinton will saunter to an easy victory in November....
AND: Adams tries to figure out what Trump could say to undo the "crazy racist" branding. He pictures Trump saying he loves everyone and believes in the "melting pot."

I think what Trump is going to try to do — which he started yesterday — is argue that the true meaning of "racist" is what Democrats do, which is to openly talk about everyone — and to frame political appeals — in racial terms. What Trump said yesterday — about Elizabeth Warren — was "She made up her heritage which I think is racist. I think she's a racist actually, because what she did was very racist." The idea is: It's racist to exploit race, and they do that all the time. Democrats can be relied on to cite race continually, and Trump will have a lot of "there you go again" opportunities: They're trying to divide us by race to get political power for themselves. I will never do that.

ALSO: Trump might be able to get people to identify with him. He could say: I've been called a racist so unfairly, and it's what they do to you too if you don't stay in line. They've got people so afraid of being called a racist — completely unfairly — that half of the members of my own party are afraid to support me, they're so afraid they might get called a racist. This fear — this race-based fear, because of their racist name-calling — is terrible for America. 

"When people ponder the nature of a world without work, they often transpose present-day assumptions about labor and leisure onto a future where they might no longer apply..."

"... if automation does end up rendering a good portion of human labor unnecessary, such a society might exist on completely different terms than societies do today," writes Ilana E. Strauss in "Would a Work-Free World Be So Bad?/Fears of civilization-wide idleness are based too much on the downsides of being unemployed in a society premised on the concept of employment" in The Atlantic.
So what might a work-free U.S. look like?... School, for one thing, would be very different. “I think our system of schooling would completely fall by the wayside,” [says Peter Gray, a professor of psychology at Boston College who studies the concept of play]. “The primary purpose of the educational system is to teach people to work. I don’t think anybody would want to put our kids through what we put our kids through now.” Instead, Gray suggests that teachers could build lessons around what students are most curious about. Or, perhaps, formal schooling would disappear altogether.

[Randolph Trumbach, a professor of history at Baruch College] wonders if schooling would become more about teaching children to be leaders, rather than workers, through subjects like philosophy and rhetoric. He also thinks that people might participate in political and public life more, like aristocrats of yore.....

Social life might look a lot different too. Since the Industrial Revolution, mothers, fathers, and children have spent most of their waking hours apart. In a work-free world, people of different ages might come together again.... In general, without work, Gray thinks people would be more likely to pursue their passions, get involved in the arts, and visit friends....

"As if Brexit wasn’t enough, Iceland beat England 2-1 in Round 16 of the Euro 2016..."

"... in what many international soccer analysts are calling the greatest upset in the history of the tournament."


"House Benghazi Panel Finds No New Evidence of Wrongdoing by Hillary Clinton."

That's the headline in The NYT. Key word: new.
The 800-page report, however, included some new details about the night of the attacks, and the context in which it occurred, and it delivered a broad rebuke of government agencies like the Defense Department, the Central Intelligence Agency and the State Department — and the officials who led them — for failing to grasp the acute security risks in the Libyan city, and especially for maintaining outposts in Benghazi that they could not protect.

The committee, led by Representative Trey Gowdy, Republican of South Carolina, also harshly criticized an internal State Department investigation that it said had allowed officials like Mrs. Clinton, then the secretary of state, to effectively choose who would investigate their actions. In addition, it reiterated Republicans’ complaints that the Obama administration had sought to thwart the investigation by withholding witnesses and evidence.

Linda Greenhouse notes the "dry, almost clinical tone" and lack of "poetry" in the Supreme Court's pro-abortion-rights opinion.

The case was about clinics — Texas imposed a requirement that led to the closure of many abortion-providing clinics — so what was notable about a clinical tone?

As Greenhouse puts it:
The dry, almost clinical tone could scarcely be more different from the meditative mood the Supreme Court struck the last time it stood up for abortion rights, in Planned Parenthood v. Casey, 24 years ago this week. “Liberty finds no refuge in a jurisprudence of doubt” was Justice Anthony M. Kennedy’s mysterious opening line in that opinion.
Greenhouse does not quote the most poetic/mysterious/meditative lines in Casey (which even contain a variant of her word "mysterious"):
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
And Greenhouse misstates the authorship of Casey. She wasn't quoting an opinion for a majority of the Court that was written by Justice Kennedy, but an opinion announcing the judgment of the Court that was joined by only 3 Justices and that was written not by Kennedy alone, but by Kennedy along with Sandra Day O'Connor and David Souter. However that "poetry" was created, only 1/3 of the "poets" remain on the Court.

Kennedy has had many years to think about whether that "exalted" tone is a good idea. (I put "exalted" in quotes, because that's what Justice Scalia called it, in his dissenting opinion in Casey.) And the 4 Justices who joined Kennedy yesterday were not around for the poetic exaltation of privacy rights that seemed appropriate to O'Connor, Souter, and him back in 1992. Ginsburg, Breyer, Sotomayor, and Kagan are all post-Casey additions.

Kennedy, as the senior Justice in the majority, had the power to take the writing assignment for himself. He opted to hand it to Stephen Breyer, probably the least likely in the set of 5 to infuse it with inspiration. If the opinion reads as clinical, it's a choice, by Kennedy and Breyer, to make it so.

The others — the women, interestingly enough — could have written poetically in concurring opinions. Only Justice Ruth Bader Ginsburg chose to write a concurrence, but it was very short and not particularly exalted, though does contain some French. ("When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.")

And I have a problem with Greenhouse's phrase "stood up for abortion rights." I support abortion rights — and other rights too — and I don't think talking about judges standing up for abortion rights helps to preserve rights. It makes "abortion rights" sound like another political cause, and the Justices in the majority sound like the ones who simply embraced that cause, those particular rights, because they happen to like them and think they're good rights to have, quite apart from whether they are properly to be found in the legal document that's cited in the opinion.

Ironically, a clinical tone works better. It's boring and uninspiring, but it makes us the People feel that the Justices know their place, interpreting a text according to an orthodox judicial methodology. The Justices need to help us believe that they are not political, and — even more ironic — it's especially important to stoke our beliefs if they are making their choices out of their own policy preferences.

And, of course, the Justices know that our belief in the rights they talk about are fading even more quickly than usual as we look to a presidential election where it seems we are able to choose which faction of the Supreme Court will get new votes. They know they need to allay our suspicions and that any poetry in the pro-abortion-rights opinion would become a weapon for those who want to defeat the presidential candidate — Hillary Clinton — who would give them another ally in their political cause... if that's what it is.

June 27, 2016

At the Dark Pink Hotel...


... you can stay up all night talking.

Why hasn't Trump said anything about the Supreme Court's new abortion case?

Hillary tweeted right away: "SCOTUS's decision is a victory for women in Texas and across America. Safe abortion should be a right—not just on paper, but in reality. -H" and "This fight isn't over: The next president has to protect women's health. Women won't be 'punished' for exercising their basic rights. -H" And Trump hasn't tweeted anything. Josh Voorhees (at Slate) says "The obvious answer is that Trump is either unwilling or unable to quickly sum up his thoughts on a topic that he has expressed so many conflicting views on in the past and that has caused him so many problems in the present...."

Another obvious answer is: Gender politics isn't his thing. He only talks about abortion when pushed or when attacked.

"Hillary has brains, she has guts, she has thick skin and steady hands, but most of all she has a good heart..."

Said Elizabeth Warren, adopting the literary trope of listing bodily organs as she tried out in the role of VP candidate alongside Hillary Clinton at Cincinnati Museum Center at Union Terminal today. How many people would you think an event like that would draw in a city that size? It was only 2,600. Isn't that weird?

Trump took a shot at Warren today:
"She said she's 5 percent Native American. She was unable to prove it. She used the fact that she was Native American to advance her career.... Elizabeth Warren is a total fraud. I know it. Other people who work with her know it. Elizabeth Warren is a total fraud. She made up her heritage which I think is racist... I think she's a racist actually, because what she did was very racist."
Racist racist racist... say it 3 times and it might make it true. Trump will never get his opponents to stop calling him racist, so you can understand why he's going the no, you're racist route. It's kind of interesting the way he's doing it here, because it's a very different kind of racism charge. He's accused of racial hostility, but he's accusing Warren of being a racial huckster.

Meanwhile, ex-Senator Scott Brown — who may himself be auditioning for the VP role on the Trump side — said "She’s not Native American, she’s not 1/32nd, she has no Native American background, except for what her family told her" and why doesn't she "take a DNA test" and release the results?

Why did Trump say — with no evidence — that "Hillary Clinton soundly slept in her bed" during the Benghazi attack?

A few days ago, NBC's Lester Holt confronted Donald Trump about his statement, in a speech, that during the Benghazi attack, Ambassador Chris Stevens "was left helpless to die as Hillary Clinton soundly slept in her bed."

Trump's response was: "Were you there? Were you there? Were you with her?" That is, he goes on the offensive. Instead of taking any responsibility for substantiating his charge, he acts like he can get away with saying anything that other people don't step up and disprove.

And Holt lets him get away with that ridiculous debate move. Accepting the defensive position, Holt says: "She has testified before the committee that she wasn't asleep, it happened during the daytime. There's no evidence."

Trump's response is scattershot, mixing the idea that she could have been literally asleep with the argument that "sleep" was really more of a metaphor:  "It happened all during the day and the story was going on for a long period of time...  and she was asleep at the wheel, whether she was sleeping or not, who knows if she was sleeping..."

My first reaction was: ridiculous! But then I heard something yesterday on "Fox News Sunday" and flipped into thinking that the very ridiculousness of it is a devious trick. Chris Wallace confronted Newt Gingrich about the "soundly slept in her bed" quote:
WALLACE: Now, Mr. Speaker, you can certainly argue about how Hillary Clinton handled Benghazi. But the fact is, the attack happened at 3:00 or 4:00 here in the afternoon in Washington. And she was working late into the night. As I say, there's plenty to attack her on. But why not stick to the facts?

GINGRICH: Well, first of all, I've had different people say different things about what she did that night and what her instructions were. Second --

WALLACE: She wasn't asleep is the point.

GINGRICH: OK. She certainly --

WALLACE: Maybe she should have been, but she wasn't.
The transcript notes "laughter" over Wallace's little joke. And Gingrich jumps past any controversy over whether Hillary was sleeping and sleeping soundly and in her bed. And here's where I want you to see what I saw, that "soundly slept in her bed" is a trap.
GINGRICH: OK. I think that on a lot of things people can argue about that Trump says and that Hillary says, but the objective fact is there were over 600 requests for security from Libya. Now, that number came from the chairman of the intelligence committee, not from Donald Trump. They were ignored. The fact is that in the end, there was no effective effort to respond. The fact is, she clearly lied about why it occurred. And again, you had families of the people who were killed who say she lied to them. So, I think this is a debate — they can get into details of picking a fight with Donald Trump. This is a debate I think they're not going to win, because on the larger framing of the debate, the country is overwhelming going to be with Trump....
That is, Hillary Clinton doesn't want to go into the subject of Benghazi. She'd like to close the door on it or view it from a distance as part of her vast collection of experience. But Trump is laying out a particular detail — that she soundly slept in her bed — a provocative lie that Hillary and her proxies will be tempted to try to correct. If they go there, then the specifics of Benghazi are getting talked about again, and it's not good for Hillary.

She and her supporters may think that it's worth it, because it's such a great opportunity to show people Trump's reckless disregard for the truth, but I think he thinks he's placing the winning bet, because: 1. Attention to Benghazi hurts her, 2. He seems to be okay with brazenly standing his ground, and 3. There's the path of retreat to metaphor: She was "asleep at the wheel," unaware and inept, even if awake.

As Chris Wallace's joke had it: What she did was worse than if she'd been sleeping. She should have been sleeping. Benghazi might have worked out better if she'd been out of the picture. That's where that conversation ends up going. So I'm speculating that he threw out a blatant fiction as an irresistible conversation starter.

Why don't basketball players do free throws underhand?

It's not that they don't know it works better.
Chamberlain wrote — "I felt silly, like a sissy, shooting underhanded. I know I was wrong. I know some of the best foul shooters in history shot that way. Even now, the best one in the NBA, Rick Barry, shoots underhanded. I just couldn't do it."...

He's a high-threshold guy. He needs everyone to be doing something new before he's willing to join in. But Rick Barry? He's different.... What's interesting is that Barry actually has the same initial reaction as Wilt Chamberlain — I'm going to look like a sissy. But he thinks about it, and he decides it doesn't bother him....

That's exactly what it means to have a low threshold. If you have a threshold of 0, you're someone who doesn't need the support or the approval or the company of others to do what you think is right. Now, here's the catch — the person who thinks this way is not always easy to be around.... Half the players disliked Rick. The other half hated him....
Also at that link — Why don't football teams use all 4 downs to get 10 yards instead of punting? Research shows they'd tend to win 1 more game a year, and they know that. They're not stupid.

"But it felt like there was an invisible force blocking me from achieving my dreams. Sure, I'd think, is it because I'm fat?"

"But then I'd think, don't be paranoid. I refused to believe that people were that shallow. It had to be more complicated. I tried to put my finger on it, but I just couldn't figure it out. Once I lost weight [110 pounds], I realized, it was all because I was fat. It felt like that famous Eddie Murphy sketch on Saturday Night Live, where he goes undercover in whiteface and gets treated way better. He rides the city bus. And when the last black rider gets off, music starts. A cocktail waitress in a sequined dress hands out martinis. That's what I felt like — like this whole other world for thin people had existed alongside mine, a world they've been keeping a secret from me. When I was fat and I walked down the street, people would stare. I'd hear comments that I would ignore. Occasionally someone would shout something out at me. In this new world, when I walked down the street, attractive men and women would do something to me they'd never done before. They would look me up and down, and then they would nod their heads. Thin people nod at each other?"

From the "Tell Me I'm Fat" episode of "This American Life."

"Five myths about sharia."

From my UW Law colleague Asifa Quraishi-Landes in The Washington Post.

The myths are:
1. Sharia is “Islamic law"... 2. In Muslim countries, sharia is the law of the land.... 3. Sharia is anti-woman.... 4. Islam demands brutal punishments.... 5. Sharia is about conquest....
Debunkings at the link (which seems open to nonsubscribers, so don't skimp on doing the reading before opining — the idea is not to be ignorant). Key thought:
The human interpretation of sharia is called “fiqh,” or Islamic rules of right action, created by individual scholars based on the Koran and hadith (stories of the prophet Muhammad’s life). Fiqh literally means “understanding” — and its many different schools of thought illustrate that scholars knew they didn’t speak for God.
ADDED: Actually, the pay wall is a barrier. You could try getting in through private browsing. Anyway, I was looking at the comments over there. The top-rated one was:
That might be the most hilarious and absurd Islamic apologist statement I've ever heard... claiming that Sharia law and, thus Islam, is actually "feminist" because it allows women to orgasm during sex. I can't stop laughing. 
From Quraishi-Landes's text: "Fiqh scholars...  have concluded that women have the right to orgasm...."

50 years ago today — The Mothers of Invention released "Freak Out!"

"Often cited as one of rock music's first concept albums, the album is a satirical expression of frontman Frank Zappa's perception of American pop culture. It was also one of the earliest double albums in rock music (although Bob Dylan's Blonde on Blonde preceded it by a week)...."

It's not too late to ask...

Who Are The Brain Police?

And the other important questions, still so relevant today: What will you do when the label comes off and the plastic's all melted and the chrome is too soft? and What will you do if the people you knew were the plastic that melted and the chromium too?

I've been asking that question for 50 years.

The ex-governor of Virginia, Bob McDonnell, gets his conviction overturned by the Supreme Court — unanimously.

SCOTUSblog reports:
An official act in the statutes at issue is a decision or action on a question, matter, cause, suit, proceeding or controversy.... That question or matter must involve a formal exercise of governmental power and must also be something specific and focused -- that is, pending or may by law be brought before a public official. To qualify as an official act, the public official must make a decision or take an action on that question or matter, or agree to do so.... Given the court's interpretation of official act, the district court's jury instructions were erroneous, and the jury may have convicted Governor McDonnell for conduct that is not unlawful. Because the errors in the jury instructions are not harmless beyond a reasonable doubt, the Court vacates Governor McDonnell's convictions.
Here's the opinion PDF.

ADDED: The facts, as summarized by the Chief's opinion:
In 2014, the Federal Government indicted former Virginia Governor Robert McDonnell and his wife, Maureen McDonnell, on bribery charges. The charges related to the acceptance by the McDonnells of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office. Williams was the chief executive officer of Star Scientific, a Virginia-based company that had developed a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped that Virginia’s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell’s assistance in obtaining those studies.
The issue was what counted as an "official act" within the statutory law, and the Court said the government's "expansive interpretation" might have violated the Constitution:
In the Government’s view, nearly anything a public official accepts—from a campaign contribution to lunch—counts as a quid; and nearly anything a public official does—from arranging a meeting to inviting a guest to an event— counts as a quo. See Brief for United States 14, 27; Tr. of Oral Arg. 34–35, 44–46.

But conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm. The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.
AND: SCOTUSblog observes that the opinion does not cite the campaign finance cases such as Citizens United, which were extensively discussed in the briefs. I'll just speculate that's because the Court got it together for a unanimous opinion. I like it, the one-opinion unanimity.

Abortion rights prevail in the Supreme Court.

Here's the opinion, Whole Woman's Health v. HellerstedPDF, which I've not yet read.

SCOTUSblog summary: "The vote is 5-3; Thomas dissents. ALito dissents, joined by Chief and Thomas.... To make a long story short, the Court strikes down both provisions of HB 2 -- the admitting privileges requirement and the requirement that all abortion clinics have facilities comparable to an outpatient surgical center. The state had argued that the restrictions were necessary to protect women's health. Abortion rights groups had argued that the real purpose of the law was to shut down clinics, making it very difficult if not impossible for women in Texas to obtain an abortion"

That is, Scalia's vote would not have made a difference. Justice Kennedy voted with Justices Ginsburg, Breyer, Sotomayor, and Kagan. Breyer writes the opinion, which all 5 join, and Ginsburg also has a concurring opinion.

AND: The district court judge said that the state's requirements failed the "undue burden" test (which applies up to the point where the fetus is "viable"). The Court of Appeals reversed and in doing so misstated the "undue burden" test, the Supreme Court says:

"The blog has also taught me that serious journalism still has a very large place amid the babbling noises of the Internet."

"I have but one regret, and it is that I was unable to persuade the traditional journalists who control the credentialing for Congress that I was as independent as they feel they are, and that journalism can take unusual new forms and still be journalism."

Writes Lyle Denniston, ending his stint on SCOTUSblog.

How to be happy in New York City.

Two friends walking with smartphones in Soho by John Althouse Cohen on 500px.com

I love New York because here I am in New York!

Self awareness, supported by the smart phone.

Photo by John Althouse Cohen.  Click on the photo for a larger version and click on the right arrow for additional photographs, showing people on the streets of New York who are not following this advice, not taking the perspective of the camera looking at themselves. They seem all to have a look of grim commitment to withstanding this thing that is New York. I lived in New York for 10 years when I was young, and I really identify with this woman. For a similar feeling embodied in a man, look at him.

"Crowd sees any signs of 'Nazis' and they run&attack."

"A lot of people bleeding/getting maced" says the tweet, with video.

And the NYT tells us the "left-wing, anarchist types" were "protesting" "the nationalist group, the Traditionalist Worker Party."
Videos posted on Twitter showed members of the nationalist group, the Traditionalist Worker Party, which had obtained a permit to demonstrate, brawling on the Capitol grounds with protesters who were dressed in black and concealed by face coverings....

In videos published online, people could be seen punching, kicking and swinging sticks at one another amid screams of “racists” and “Nazis.” At one point, police officers in riot gear intervened as several people kicked a person on the ground. At another, people dressed in black became physically confrontational with a news crew, ordering it to leave.
I'm wondering how this would have been reported if the left/right orientation were flipped. One group, with a permit, was engaging in expression and the other group, in scary matching garb and masks and wielding clubs, suddenly ran at them and unleashed violence on them. And in the news report, it's "people" all more or less doing the same thing.