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Saturday, January 25, 2003

Oh, and Another Thing

Will Vehrs
I ended my last post with a Super Bowl prediction, but on the eve of the biggest sporting event of year, I think this Sports Illustrated column by Rick Reilly is worth a look.

Reilly notes the spectacular, but almost unnoticed feats of female coach Pat Summit and such athletes as the Connecticut basketball team, Serena Williams, and Annika Sorenstam. I don't necessarily agree with Reilly that because of these great female athletes we should not tinker with Title IX, but their lack of recognition is a tragedy.

Because of my long association with track and field, I was particularly interested in Reilly's notice of Paula Radcliffe:

All she did in October was run a marathon in 2 hours, 17 minutes, not only shattering the women's world record but also narrowing to 12 minutes the gap between the men's and women's best times. That means, in the past 40 years, women have improved their record by more than an hour and men by nine minutes. (And to think they used to warn women not to run because their uteruses might fall out.)

Another way of looking at Ms. Radcliffe's achievement is to rate her per mile pace for 26 miles against the mile record for women, and then do the same for men. I think you will find that the Radcliffe pace is closer to the women's world record than the male world record marathon pace is to the men's mile world record.

I can't prove it, but I predicted long ago that women would someday be able to compete with men in the marathon. That moment is almost here.

Saturday Afternoon QP

Will Vehrs
Tony, you've been posting lots of good stuff, but nothing that raises my hackles ... am I moving left or are you moving right?

I'm moving a little slow today after a big night on the town with a seven and an eight year old girl. We went to the "Ghost Watch" at Centre Hill Mansion in downtown Petersburg, VA. Legend has it that soldiers can be heard clomping up and down stairs every January 24th. There is also a mysterious "woman in white." We didn't see any ghosts, but the tour was wonderful with the girls describing many moments in the darkened house as "freaky." Of course the best part was getting high class coloring books as souvenirs in the gift shop, "Women of the Civil War" and "Victorian Houses."

Anyone can be misled by an erroneous report in a respected publication. However, those who gleefully seize on an erroneous report to support their own agenda probably owe more in the way of a clarification when the report is debunked. I thought Instapundit gave Josh Marshall a pass yesterday on the Time magazine story about Bush Administration wreaths for Jefferson Davis. Marshall noted Time's retraction, but he sure didn't note his misplaced fervor in buying into the story and using it to perpetuate the "Republicans as Confederates" story line. Our own Refuge poster, Guy Cabot, so meticulous about correcting others, has not yet noted that the story he used to denigrate "Emperor Snippy" was bogus.

I want to see President Bush's poll numbers after his State of the Union speech. His approval rating has been dropping, but that's under a drumbeat of essentially unanswered Democratic criticism. The SOU is Bush's chance to present and defend his vision. He has done well in set speeches to Congress and a good performance will probably at least temporarily stop his slide in the polls.

My pick in the Super Bowl is Tampa Bay. I think it'll be close, but the Buc's defense will shut down the Raider offense just enough to squeak by.

Friday, January 24, 2003
Final Update: The News & Observer sheds some light on Decker's motivation. I disagree with TAPPED's statement that "it's still great" — Decker's vote on legislation is what matters...

Update II: Oh, I wish I could take back most of what I wrote below! I've done a little googling, and Rep. Decker has taken defintely "conservative" positions in the past, and has said some very ignorant [in my opinion] things about sex & sexuality. But, he did walk across the aisle for some reason. There's something going on here...

Crossing the Aisle in North Carolina

Tony Adragna
TAPPED links to a press release 'bout a NC Republican switching over to the Democratic Party, thereby returning control of NC's House back to the Democrats.

OK, I'm following along so far, but when TAPPED says "The North Carolina Republican state rep who just switched parties to the Democrats, handing control of the general assembly with it, has a conservative voting record.[emphasis added], I just hafta take the bait.

It seems to me that TAPPED simply bought into North Carolina Republican Party Chairman Bill Cobey's assertion that “Given Mike Decker’s conservative voting record in the General Assembly, I find this to be irrational and bizarre behavior,” but didn't test that assertion. I think Rep. Decker — the individual in question — might have been leaning toward the Democrats anyway, or so his House Member Vote Statistics from the last session might suggest — he voted with the "majority" on 75.2% of the votes he cast, and he voted in almost every vote (97.3%) he was eligible for.

Now, who was the "majority" in the last session of North Carolina's legislature? Oh, silly me, it was the Democratic Party...

Maybe there's something in Decker's record prior to the 2001-2002 session that might prove him to have a "conservative voting record". But, in light of how Decker voted last session, his party switch seem not "irrational". What Chairman Cobey might better inquire into is what straw broke the camel's back — what pushed Decker across the aisle...

Update: Of course, the link above to "House Memeber Voting Statistcs" counts "majority" not as the "majority party", but as "The number of times this session the member voted the same way as the outcome of the vote. If a specific vote passed and the member voted AYE, then that vote counted as WITH THE MAJORITY." So, my observation isn't as pointed as I thought. But, still, if he's agreeing with the majority of all members most of the time, as is true of most of the other members, then what's the point of labeling Decker's "voting record" as "conservative" when it's just as likely to be in agreement with his "liberal" colleagues.

So, my question still stands: What pushed Decker across the aisle?

The "Axis of Weasels"

Tony Adragna
Problem with the French is that they need a reminder 'bout how everytime the Germans exert influence on the Continent things invariably end up worse.

Stephen Green notes that "France is – or rather, was – a truly great nation", and he goes on to proffer some examples of French greatness, including, among other things, French contributions to good eating. 'Course, left to themselves the French wouldn't have been able to make this contribution: It was a Medici woman who taught the French how to eat — before that they cooked and ate in the style of the Germans — and I'm not sure I'd want Italy running the Continent either...

Why I Don't Care Who Wins the Super Bowl

Tony Adragna
I remember when the Raiders were the winningest team in football — by the end of the '80 season their 16 consecutive winning seasons was an NFL record. 'Twas a short BART train ride for me to the stadium and I would go to as many home games as I could. Even at the price of tickets then I could barely afford to attend as many games as I wanted.

But, my zealousness for Raiders football outweighed even my radical politics, so I would save my lunch money & allowance — which would've been better spent on lunch & guitar lessons — for that ticket to my spot in the bleachers.

Alas, it wasn't to last. For a better deal from another city — read, a chance to make more money — Al Davis turned his back on football's most loyal following. The City of Oakland wasn't having any of that, and tried to "condemn" Al Davis' "property" and take it under "eminent domain." Al Davis challenged that action, and won. The city then appealled, and City of Oakland v. Raiders32 Cal.3d 60 (Ca. 1982) ended up in California's Supreme Court, then back down to the lower court, and Al Davis got what he wanted.

Well, he got to move to LA, anyway. But, that deal didn't end up making him as much money as was wanted. So, Davis goes back to Oakland, works a deal for improvements and a lease on the old stadium — renamed Network Associates Coliseum in keeping with the current fad — and Oakland has football again. Happy ending...

Not so fast! Now "Davis alleges that Oakland induced him to sign a 16-year lease by falsely claiming Raiders games were already sold out." What's he want in damages? Oh, just $1.1 billion...

Oakland shoulda never let Al Davis back into the city limits! If he leaves again, good riddance. When I go home I can root for the 'Niners. While I'm out here in the Maryland 'burbs I'll root for the Ravens, unless the Redskins are playing the Cowboys...

Thursday, January 23, 2003

Back to Bakke

Tony Adragna
I've been waiting for the other shoe to drop — for some legal scholar to tell me that I oughtn't rely on Justice Powell's opinion in Bakke, and that I oughtn't have called it "race-neutral".

On the former point, the 5th Circuit in Hopwood — the case after which Texas adopted its "10 Percent Plan" — and the 10th in Adarand have both cited the Supreme Court as authority in holding that remediating past discrimination is the only compelling interest on which racial preferences will pass strict scrutiny. In other words, they're saying that Justice Powell's opinion isn't the law on diversity being an interest substantial enough to merit consideration of race. Those courts find that since nobody joined Powell's opinion, it doesn't control.

But, two other Circuits — the 9th in UNIVERSITY OF WASHINGTON, Law, and the 6th in the current cases from Michigan — conclude that Powell's opinion is precedent. Citing the Supreme Court, the 9th Circuit writes
But what is one to make of that fragmented decision of the Supreme Court; what guidance or principles did it convey to an anxious nation, and to even more anxious educators? Perhaps it is a sign of our fractious times that the Supreme Court has had to provide us with a template for reading its fractured opinions. It has declared that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.' " Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 993, 51 L. Ed. 2d 260 (1977) (citation omitted); see also Harris v. Wright, 93 F.3d 581, 584 (9th Cir. 1996); United States v. Puerta, 982 F.2d 1297, 1304 (9th Cir. 1992).
Five justices opined that race might be a permissible consideration, Powell holding that in a limited fashion [no quotas, preferences, or dual tracks], and Justice Brennan, joined by Justices White, Marshall and Blackmun, holding in a more expansive fashion [in favour of quotas, etc.], and the Court's holding in Bakke was
"The judgment below is affirmed insofar as it orders respondent's admission to Davis and invalidates petitioner's special admissions program, [p*267] but is reversed insofar as it prohibits petitioner from taking race into account as a factor in its future admissions decisions"
To the extent that Powell's opinion provides the "narrowest footing" for "taking race into account", it controls. The 9th Circuit didn't want to leave it there, though, so it wrote
We are well aware of the fact that much has happened since Bakke was handed down. Since that time, the Court has not looked upon race-based factors with much favor. See, e.g., Adarand, 515 U.S. at 227, 115 S. Ct. at 2112-13; City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S. Ct. 706, 721, 102 L. Ed. 2d 854 (1989). Still, it has not returned to the area of university admissions, and has not indicated that Justice Powell's approach has lost its vitality in that unique niche of our society. As we see it, regardless of what we think the Supreme Court might do, we must let it decide. It has admonished that "other courts [should not] conclude [that] our more recent cases have, by implication, overruled an earlier precedent." Agostini v. Felton, 521 U.S. 203, 237, 117 S. Ct. 1997, 2017, 138 L. Ed. 2d 391 (1997). On the contrary, it has said, "[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of over ruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 , 109 S. Ct. 1917, 1921-22, 104 L. Ed. 2d 526 (1989).
In other words, Bakke hasn't been overruled, Metro Broadcasting was only overruled to the extent that it applied a standard less than strict scrutiny, the Court didn't decide whether Adarand would meet the standard of review — they remanded to the court below on whether the interest was "compelling" and for application of "strict scrutiny" — so, as far as the 9th Circuit is concerned, Powell's opinion in Bakke was, and is still, law. The 10th Circuit used the same rationale to rely on Bakke in its case.

To wit: It ain't settled law 'til the Supremes settle the law...

On the latter of the points I originally wanted to address, I must plead temporary insanity. It obviously can't be "race-neutral" in the sense of "color blind" if I'm then arguing that race might be a factor. So, I must've not meant what I said, right? Well, actually, I didn't say what I meant. What I meant was "neutral" in the sense of not taking sides — so long as the consideration doesn't lead to a race-based preference that facialy discriminates, then it ought pass constitutional scrutiny.

I know that the Supreme Court means something different when it uses that "race-neutral" verbiage, but I think it's reaching for something there that even the "10 Percent Plan" doesn't totally get at, and the Court's own recognition that there may be "compelling" interests in pursuing race-conscious means is in tension with its preference...

Soaring on Speed

Tony Adragna
Former Air Force Captain Keith Rosenkranz — who flew missions during the Gulf War — takes exception with blaming "go pills" for the error that cost the lives of four Canadian soldiers
In the fog of war mistakes can occur resulting in the loss of life from one's own side. But can we really blame medication for a poor decision? In my experience and that of many of my fellow pilots, go pills enabled us to be more alert and to better understand directions from controllers.

My heart goes out to the families of the Canadian soldiers who were killed and injured. But unless it can be proved that the pilots willfully violated orders or broke the rules of engagement, I think it's wrong to put them on trial for mistakes made during combat operations. If these rules were in fact broken, then let justice be served. But in any case, it should be the pilots themselves under investigation, not the medication that has helped many of us do a very difficult job better than than any other military in the world.
Of course Dexedrine (Generic name: dextroamphetamine) has a positive effect on alertness and the ability to understand & follow directions. But, Captain Rosenkranz misses the central question in the line of inquiry related to the drugs: Did these drugs have an adverse impact on the pilots' decision making?

Rather than getting into a long post on "the fog of war" and evaluating the exercise of discretion in judgement that a commander on scene must make based on the circumstance, let me just note that I see a circumstance where the pilots may have been very justified in taking the action they did. The result was wrong, but that doesn't necessarily make the action negligent. I don't know all of the facts, though, and this case could certainly involve negligence.

We do know that if the pilots had waited, then they would've had information leading to a different outcome. But, they decided not to wait any longer than they already had. Was there something about the pilots' condition that if different might've caused them to decide differently? Might've they decided to wait? Is the question I ask even relevant, since it's possible that the same decision may have been arrived at absent the stimulants in the bloodstream?

Yes! At least, I think the question relevant. To the extent that any side-effects — the most common being aggitation, but there are also risks of increased heart rate & blood pressure — from the drug might adversly impact performance, then I've got to ask if the risk outweighs the "alertness" benefit. Might a pilot normally disposed to going the extra step of waiting for a clearer picture, instead be more apt to dive into the fog under the additional physical & mental stress that comes with the stimulant?

These are questions that doctors have looked at and feel satisfied of the answers on both physical and psychological grounds. But, I'm not satisfied that the drugs played no role in the incident for which these pilots are facing charges..,

Wednesday, January 22, 2003

A Sex-Neutral Alternative...

Tony Adragna
I can't add anything to Hinkle's opinion on sodomy laws, except to note that while striking the law would improve my standing de jure in Virginia, it gets not at the "animus" which, though not as pervasive as in the past, still persists. I'm confident that there's practically nothing government can do to strike that animus from society.

And, I'm zealous in my opinion that even if there was something practical that government could do along that line, it is Constitutionally barred from doing it. That's because the persisting "animus" here is, for the most part, not a "hostility" (animosity) toward gays, but, rather, a philisophical or theological founded disposition toward considering homosexuality wrong. However, many [I'd say most] people who are so disposed find themselves agreeing with the proposition that not everything they believe to be wrong ought also be illegal.

So long as we've all our right to be wrong protected to the extent that our wrongness harms not another, then I'm satisfied.

I think the best way for me as an individual to have my rights not infringed solely because I'm gay is to not have my gayness made an issue. I should be evaluated in a sex-neutral, or sexual orientation-neutral manner. If it sounds like I'm borrowing from the Court's language in opinions on racial classifications, that's because I purposefully am. I find all classiications "suspect" to the extent that they assume things not necessarily true about an individual based on membership in the class.

I've said more than I inteneded to here...

It's Roe Day, and I wanted to write about that seminal case today. I haven't wasted time on the stuff above, though, because I've hit a couple of things there that inform my opinion here.

Roe rends me in two — my own philisophical & theological disposition against abortion versus an equally strong disinclination toward legislating morality. Some, indeed many, may argue that my stated disinclination is an inanity — all legislation, they argue, is rooted in some moral principle. That's true, of course, but that argument misses something — public morality has oft enough come up short against individual rights. For instance, pornography may offend public morals, but ought it be illegal for myself to view said images? If I'm not harming anybody, then where's the interest in invading my privacy to impose the "public morality"(which, by the way, I'm perfectly willing to accede to while in public).

That example doesn't perfectly address Roe, but it's close enough for my purpose here. Contra an oft relied upon misperception, Roe did not find a "fundamental right to abortion." Rather, Roe cited Griswold's "right to privacy", and found under that right a "qualified right" to terminate a pregnancy. However, the Court held that "[t]hough the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a 'compelling' point at various stages of the woman's approach to term." The Court also tells at which point it considers that "protecting [...] the potentiality of human life" — the fetus — becomes "compelling"
For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
That word "viability" is really what the law turns on. In medicine "viability" means "able to survive outside the womb", which I'll restate as "able to survive independent of the mother." There's no longer a "potentiality of human life" at that point, but an actual individual person whose "right to life" obviously deserves protection. That's the point where I may invade the mother's privacy — her individual fundamental right to privacy doesn't outweigh the individual child's right to life.

That's the best I can do. I don't find in my religious beliefs on respecting even the potential for life a compelling interest in infringing an individual liberty.

There is a sex-neutral alternative to prohibiting abortions: Promote abstinence!

Tuesday, January 21, 2003

Hinkle Strikes Again

Will Vehrs
Tony, our man A. Barton Hinkle of the Richmond Times-Dispatch has struck again. This time, he takes on sodomy statutes. It's a masterful piece, with no invective--just straight logic. He implicitly criticizes another Virginia pundit--you know I live for that sort of thing now that I"m writing "Virginia Pundit Watch."

I'm sitting here sucking on a Squirrel Nut Zipper. I found a cache of them at a candy store in Richmond's Fan District and bought them out. They aren't making this classic candy anymore! I'm only having one per night, trying to make them last.

Monday, January 20, 2003


Tony Adragna
I prefer race-neutral policies, but can you get "diversity" from a purely race-neutral policy? Well, yes you can, and you can be race-neutral in your policies while still giving consideration to race, so long as race is only a factor "to be weighed fairly against other elements" Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) at 317
It has been suggested that an admissions program which considers race only as one factor is simply a subtle and more sophisticated -- but no less effective -- means of according racial preference than the Davis program. A facial intent to discriminate, however, is evident in petitioner's preference program, and not denied in this case. No such facial infirmity exists in an admissions program where race or ethnic background is simply one element -- to be weighed fairly against other elements -- in the selection process. "A boundary line," as Mr. Justice Frankfurter remarked in another connection, "is none the worse for being narrow." McLeod v. Dilworth, 322 U.S. 327, 329 (1944). And a court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system. In short, good faith [p*319] would be presumed in the absence of a showing to the contrary in the manner permitted by our cases
The question is, does Michigan's policy present "[a] facial intent to discriminate", and I think the answer is, Yes. It is a discrimination in preference of minorities, and disadvantages non-minorities. The instant case presents [from my read, anyway] exactly the same as Bakke, and I don't see how the justices can decide differently now than they did then.

A Dieter on Pork Chop Hill, that's how Mitch Daniels is portrayed in today's WaPo
Lately, there have been a few signs of modest restraint. Bush has committed publicly to braking the growth in spending on domestic programs unrelated to homeland security, and congressional appropriators have suggested that they may follow his lead. Still, even Daniels's strongest backers say he is presiding, however reluctantly, over a revival of big government. For all his rhetoric about Washington waste, the Bush administration has yet to propose eliminating a single federal agency. Moore said White House political guru Karl Rove has warned small-government conservatives that Bush never promised a war on pork or bureaucratic bloat in 2000. Daniels privately urged Bush to veto the $190 billion farm bill last year, but the president signed it anyway.

"It's a real interesting question: Will government get bigger on this president's watch?" Daniels said. "If we're not careful, it could."
Congressional appropriators get together from both sides of that aisle like families planning a wedding — nothing's to good, or expensive, for their darlings... and he who presides over the marriage usually give the blessing despite unhappiness over the affair...

I wish I'da known what he know'd A. Barton Hinkle [thanks for the heads-up, Will] has some advice for "undersized, four-eyed grade-schooler[s]." Well, 'twould be his advice contra those who
[...] advise them to "turtle" - i.e., curl up in a little ball and let the bullies punch and kick them until . . . (kick, kick, punch, punch, kick) . . . some teacher or administrator . . . (kick, kick, kick) . . . comes along and . . . (kick, punch) . . . intervenes.
Some other stuff there that Hinkle finds plain 'ol stupid, and I agree...

QP on MLK Day

Will Vehrs
Condoleezza Rice may not be a future national candidate, but she solidified her bid for Commissioner of the NFL (or Las Vegas bookie) by correctly picking Tampa Bay and Oakland to play in the Super Bowl.

There's a good Jonathan Cohn piece on Gary Hart and his appearance on This Week in TNR Online. Cohn joins me in noting the improvement in George Stephanopolous. I really do think he will be threatening Tim Russert's hegemony very soon.

My Virginia Pundit Watch column is up on Bacon's Rebellion. I found two excellent Richmond Times-Dispatch columns on Martin Luther King's legacy and what his holiday means. I've linked to them and highly recommend them for thoughtfulness.

Sunday, January 19, 2003

Sunday with Punditwatch

Will Vehrs
Margaret Carlson reveals how she landed her spot on Capital Gang, and Condi Rice demurs when asked if she's a candidate for VP or President, and two pundits discuss erogenous zones. It's all in the latest Punditwatch.

Critics of last week's Punditwatch might want to read the FoxNews edition tomorrow ... I'm submitting some of your comments.