JustOneMinute

Ezra Klein Wronger Than I Thought About Scalia

Ezra Klein goes after Justice Scalia with a fluffy argument from authority:

Scalia’s gay adoption claim: Even wronger than I thought

On Wednesday, I wrote about Justice Antonin Scalia’s comment that “there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not.”

It turns out Scalia’s comment was wronger than I thought — and wrong in a way that Scalia, in particular, should have known.

It relied, remember, on the idea that sociologists are, in some significant way, split on this question. That’s not what the American Sociological Association thinks. Here’s its official statement on the matter:

And he cites their comments in support of gay marriage, before delivering his knockout punchline:

Pretty definitive. And here’s the punchline: That paragraph isn’t buried in a press release on its blog or in an editorial from its trade magazine. It’s from the amicus curiae brief that the ASA filed in the very case Scalia was commenting on.

Oh, well, it was in an amicus brief! Well, maybe Scalia read this amicus brief:

AMICI CURIAE BRIEF OF SOCIAL SCIENCE PROFESSORS IN SUPPORT OF HOLLINGSWORTH AND BIPARTISAN LEGAL ADVISORY GROUP ADDRESSING THE MERITS AND SUPPORTING REVERSAL.

Hmm. These social scientists are on a different page from their colleagues. Here is a bit of the table of contents:

I. Compelling Evidence Shows that Children Benefit from the Unique Parenting Contributions of Both Men and Women. ............ 5

II. The Claim of “No Difference” In Outcomes of Children Raised By Gay and Lesbian Parents and Intact Biological Parents Is Empirically Undermined by Significant Methodological Limitations. ......... 13

It's almost as if, contra Klein, there is disagreement among social scientists, just as Scalia said.

Or maybe Scalia was thinking of this brief by Leon Kass warning against politicized science; from the table of contents:

ARGUMENT ............................... 5

I. THIS COURT HAS RECOGNIZED THAT UNRELIABLE EXPERT OPINIONS ARE A SERIOUS THREAT TO THE INTEGRITY OF THE LEGAL SYSTEM..... 5

II. SOCIAL AND BEHAVIORAL SCIENCE IS FREQUENTLY SHAPED AND DRIVEN BY POLITICS AND IDEOLOGY .................. 7

III. THE EFFECTS OF SAME-SEX MARRIAGE ON FAMILY LIFE ARE UNKNOWN, AND CURRENTLY UNKNOWABLE. ........................ 17

IV. INCONCLUSIVE STUDIES ARE OFTEN USED TO ARGUE THAT CONTROVERSIAL POLICIES ARE SCIENTIFICALLY SUPPORTED....... 25

V. THE COURT SHOULD RELY FOR ITS DECISION IN THIS CASE ON THE LAW, RATHER THAN ON SPECULATION AND IDEOLOGY MASQUERADING AS SCIENCE .......................... 30

The notion that social science is politicized should not come as a surprise to anyone, even Ezra. And the idea that Scalia should simply defer to the ASA and pretend these rival briefs do not exist is absurd.

Unconvincing But Interesting

On next to no evidence Adam Liptak of the Times concludes it was the conservative Supremes who voted to take up the Prop 8 gay marriage case from California:

Who Opted to Take Gay Marriage Case? Ask Justice Scalia

By ADAM LIPTAK

WASHINGTON – Why did the Supreme Court agree in December to hear a major same-sex marriage case and then seem to think it had made a terrible mistake on Tuesday when it came time for arguments?

The answer lies in the gap between two numbers. It takes four votes to hear a case and five to decide one.

If nothing else, this week’s arguments provided a telling glimpse into the process through which the court selects its docket, one that is usually shrouded in exceptional secrecy. The arguments also cleared up most of the mystery of whose idea it had been to hear the case, a challenge to Proposition 8, California’s ban on same-sex marriage.

As it turns out, it would seem the conservative members of the court, making a calculation that their chances of winning would not improve with time, were behind the decision to take up the volatile subject.

The aha moment came on Tuesday.

After Justice Anthony M. Kennedy suggested that the court should dismiss the case, Justice Antonin Scalia tipped his hand.

“It’s too late for that now, isn’t it?” he said, a note of glee in his voice.

“We have crossed that river,” he said.

That was a signal that it was a conservative grant.

Really? Why was it not a signal that Scalia thought in December and thinks now that the liberal wing of the Court had over-reached?

We are offered this speculative recap of December's process of selecting cases:

They then confronted a second, much more ambitious case, Hollingsworth v. Perry, No. 12-144, concerning whether the Constitution guarantees a right to same-sex marriage. Most observers thought the court would hold the case while it worked through one on the 1996 law, and some thought it might deny review, letting stand an appeals court decision that had struck down Proposition 8.

Instead, the court granted review in the case. That was a surprise and a puzzle. Who had voted to hear it?

One school of thought was that the court’s four liberals were ready to try to capture Justice Kennedy’s decisive vote to establish a right to same-sex marriage around the nation.

That theory was demolished in the courtroom as one liberal justice after another sought to find a way to avoid providing an answer to the central question in the case. The decision to hear the case, it turned out, had come from the other side.

Ah, well then. I understand the need for Times reporters to blame the dastardly conservatives for every little thing, but...

Back in December, Kennedy looked like an automatic fifth vote for gay marriage, as Scalia had predicted in his Lawrence dissent back in 2003 and explained by James Taranto.

However, Trouble in Liberal Paradise! Earlier in March, Kennedy, speaking in California, bemoaned the fact that the Court and not the Congress was deciding so many Federal issues. Cold feet? Maybe! In which case, the four liberals who were counting on Kennedy to be a hero might have been regretting ever taking the case at all.

Well, speculation is fun. Tom Goldtein, who surely knows more about this than me, backs the conservative faction hypothesis:

Students of Windsor and Hollingsworth have always recognized a basic tension between the theories of gay-rights advocates in the cases. The challenge to DOMA is undergirded by a sense that marriage is a matter for state rather than federal regulation. The challenge to Proposition 8 is a direct challenge to just such a decision by a state.

...

A majority of the Court seems poised in Windsor to invalidate DOMA Section 3 on the theory that the federal government has no interest in adopting a definition of marriage applicable to 1100 statutory provisions that as a practical matter alters the very nature of what it is to be “married.” That role, the Court will rule, is historically reserved to the states. So DOMA is a federalism case.

Some thought that Justice Kennedy would want to carry forward the project of Romer and Lawrence and be remembered eternally as the hero of gay rights. But they appear not to have fully grasped the concerns of a mainstream conservative Justice with taking so fundamental a step as finding a constitutional obligation to redefine so basic a social institution based on social science that to some appears quite new.

But if DOMA is going to be decided as a federalism case, Hollingsworth becomes a much harder case for the plaintiffs. That ruling in Windsor implies that California should have a parallel right to decide the definition of marriage for itself – i.e., that Proposition 8 should be upheld.

In fact, there is a realistic chance that the Court’s most conservative Justices understood that dynamic from the beginning and for that reason voted to grant certiorari in Hollinsgworth.

Well. People covering this one are earning their paychecks.

FWIW, Adam Liptak sniffed a conservative plot back when the Supreme Court took both cases last December. Really? Obama had just been re-elected, gay marriage won in several states, so the liberal bloc of the Court decided to play defense and the conservatives figured that now was the time to strike? Hmm...

When You Ain't Got Nothing...

Rush Limbaugh says that the left won the gay marriage debate when they successfully changed the definition of "marriage":

We Lost Once We Modified the Definition of the Word "Marriage"

The language game, the left really excels at changing the language to benefit them politically, and they do it in such a way that a lot of people on our side have no idea what's happened until it's too late and the issue is already lost, which this issue is.  This issue is lost.  I don't care what the Supreme Court does, this is now inevitable -- and it's inevitable because we lost the language on this.

The left won but I am not sure who the "we" is that lost. I am familiar with other conservatives who seemed to have no problem with gay marriage as long as it arrived by way of the legislative process rather than judicial cram-down. Justice Kennedy seems to be looking for a way to sidestep his own logic and let the shift in public opinion in favor of gay rights run its course.

Ann Althouse makes the point that other than the conventional definition of marriage, gay marriage opponents were a bit short of coherent arguments. Religious disapproval doesn't qualify in our secular state; moral disapproval was cast aside with Lawrence v. Texas.

And there is the concern that homophobic hyper-macho young men already disinclined to marry the young women they are impregnating will be even less inclined if marriage is re-branded as a "gay thing". But pandering to homophobes is a pretty weak foundation for social policy, and perhaps the broad change in attitude will sweep that away.

Cow Power

Breakthrough stuff:

Dairy Finds a Way to Let Cows Power Trucks

FAIR OAKS, Ind. — Here at one of the largest dairy farms in the country, electricity generated using an endless supply of manure runs the equipment to milk around 30,000 cows three times a day.

For years, the farm has used livestock waste to create enough natural gas to power 10 barns, a cheese factory, a cafe, a gift shop and a maze of child-friendly exhibits about the world of dairy, including a 4D movie theater.

All that, and Fair Oaks Farms was still using only about half of the five million pounds of cow manure it vacuumed up from its barn floors on a daily basis. It burned off the excess methane, wasted energy sacrificed to the sky.

But not anymore.

The farm is now turning the extra manure into fuel for its delivery trucks, powering 42 tractor-trailers that make daily runs to raw milk processing plants in Indiana, Kentucky and Tennessee. Officials from the federal Department of Energy called the endeavor a “pacesetter” for the dairy industry, and said it was the largest natural gas fleet using agricultural waste to drive this nation’s roads.

I know what you're thinking - with natural gas so frackin' cheap, is it really economical to recycle free manure?  Well, kinda maybe:

Still, not everyone is convinced that the time is ripe for more manure-powered vehicles, particularly when regular natural gas remains abundant and cheap.

“The market is just not firm yet,” said Michael Boccadoro, a bioenergy consultant from California who is finishing a study of the possibility of neighboring dairies in the San Joaquin Valley sharing a single digester. “It’s all a tiny bit premature.”

And this is not precisely a game-changer:

Dennis Smith, director of the Clean Cities program for the federal Department of Energy, said about 8,000 large-scale dairy and swine farms across the country could potentially support similar biogas recovery projects. When coupled with landfills and wastewater treatment plants, he said, there is potential to someday replace as much as 10 billion gallons of gasoline annually with renewable fuel.

The US uses roughly 3 billion barrels of gasoline per year, or 126 billion barrels. So we are talking about an 8 percent saving, which is fine as one more way to nibble around the edges of our hydrocarbon usage.

Well, as the technology develops I think this guy can lead the way in recycling manure.

Back In Newtown...

The NY Times describes the results of the search of Adam Lanza's home:

Sandy Hook Killer’s Home Contained Large Cache of Weapons

By RAY RIVERA

An extensive assortment of ammunition and weapons, including rifles, knives and samurai swords; damaged computer equipment; journals, a newspaper clip of a school shooting at Northern Illinois University and a report card from the time Adam Lanza attended Sandy Hook Elementary School.

If I have the dates right, here is the article mentioned above:

February 18, 2008

First on the Scene, Again, Is the College Newspaper

By BRIAN STELTER

When news breaks on college campuses — as it did when a gunman killed five students at Northern Illinois University last week — reporters from the college paper are often the first journalists on the scene. For reporters at The Northern Star, the student newspaper, the incident became far more personal when they learned that one of their own staff members was among those killed.

The significance eludes me. FWIW, the Northern Illinois shooter had three semiautomatic handguns and a shotgun. Most of the shooting was of the handguns:

...police later collected 48 shell casings and 6 shotgun shells.

And lest you wonder how he managed to kill six people without an assault weapon, he did have an image of an assault gun on his t-shirt.

The Times put together this 2008 list of other recent campus shootings. Whether any of these inspired Adam Lanza remains a mystery.

The Biome Project, Or, Send Better Bugs

An obesity breakthrough, for fat mice anyway:

After weight-loss surgery, new gut bacteria keep obesity away

NEW YORK (Reuters) - The logic behind weight-loss surgery seems simple: rearrange the digestive tract so the stomach can hold less food and the food bypasses part of the small intestine, allowing fewer of a meal's calories to be absorbed. Bye-bye, obesity.

A study of lab mice, published on Wednesday, begs to differ. It concludes that one of the most common and effective forms of bariatric surgery, called Roux-en-Y gastric bypass, melts away pounds not - or not only - by re-routing the digestive tract, as long thought, but by changing the bacteria in the gut.

Or, in non-scientific terms, the surgery somehow replaces fattening microbes with slimming ones.

If that occurs in people, too, then the same bacteria-changing legerdemain achieved by gastric bypass might be accomplished without putting obese patients under the knife in an expensive and risky operation.

If you can read this and not hear "Ka-ching", you have no future in Big Pharma or VC.

Belatedly On Gay Marriage

In a blast from the past, Laurence Tribe made the states rights case against the Defense of Marriage Act prior to its eventual passage in 1996:

Defenders of the proposed law cite judicial decisions allowing one state to decline to enforce certain determinations of another on "public policy" grounds -- marriages entered in one state, for example, to evade the bigamy laws of the state where the partners live. But states need no Congressional license to deny effect to whatever marriages (or other matters) may fall within this category. They can do so on their own.

This sidesteps the issue of Federal benefits, taxation and so on for married versus unmarried people.

When Life Hands You Lululemons...

When the sales clerk introduces himself as "Dover. Ben Dover." you know you're in the midst of a Bad Moment.

One more for the ASCII file.

Gay Marriage Brain Lock

Some combination of deceitful advocacy, blind obtuseness and political correctness has afflicted both sides of the gay marriage debate with brain lock. Jill from Brilliant at Breakfast provides some lunchtime fare with an extended excerpt from the Supreme Court transcript illustrating two easy questions no one seemed able to answer.

First, who could possibly be harmed by gay marriage and what possible state interest could there be in not allowing it? The attorney meant to argue against gay marriage had no clear answer here. I doubt that is becasue he is stupid, and he shopuldn't be advocating in favor of gay marriage, so that leaves me thinking he was burdened by political correctness.

A reason to oppose gay marriage was offered by black ministers in Massachusetts when that state's Supreme Court opened the discussion in 2003. This is from a Feb 10 2004 article now archived, but excerpted here:

Bishop Gilbert A. Thompson Sr., who as pastor of New Covenant Christian Church in Mattapan heads the largest Protestant congregation in Massachusetts, said black ministers have many reasons for speaking out against gay marriage.

"We're weighing in on this because we're concerned with the epidemic rate of fatherlessness in America and in our community, and we don't think gay marriage helps that cause," he said.

I am reading between the lines a bit but I took that to mean that these inner-city ministers are trying very hard to persuade twenty year old gangsta wanna-bes that marriage is a great idea. Although they subsequently got help from Beyonce, who dressed like a hooker and told them to put a ring on it, these ministers seem to be concerned that if marriage is re-branded as a "gay thing" that it won't help them break through with their hyper-macho target audience.

Well; I'm not a black minister. Maybe inner city youth aren't so homophobic now (or ever), or maybe we shouldn't let the homophobia of inner city youth drive our social policy. But I don't see proud progressives saying "I understand gay marriage might further reduce marriage in the inner city, but it's a small price to pay". Instead, they are pretending there are no foreseeable consequences whatsoever. If another progressive experiment wreaks even more havoc in the inner city, well, who could have seen it coming, right?

Various judges extended the brain lock to the subject of marriage as an instrument of procreation:

JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?

MR. COOPER: No, Your Honor, it would not be constitutional.

JUSTICE KAGAN: Because that's the same State interest, I would think, you know. If you are over the age of 55, you don't help us serve the Government's interest in regulating procreation through marriage. So why is that different?

MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples — both parties to the couple are infertile, and the traditional -­

(Laughter.)

JUSTICE KAGAN: No, really, because if the couple — I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.

Mr. Cooper eventually makes one of two good points. He reminds the court that the man is likely to be fertile whether the womon is or not, and the woman has an interest in assuring his monogamy.

The obvious point to which he barely alludes is simple leadership by example - it is entirely possible that both of these adults have children/nieces/nephews of marriageable age, and both would want to set a positive example of the importance of marriage.

MR. COOPER: It's designed, Your Honor, to make it less likely that either party to that — to that marriage will engage in irresponsible procreative conduct outside of that marriage. Outside of that marriage. That's the marital — that's the marital norm. Society has an interest in seeing a 55-year-old couple that is — just as it has an interest of seeing any heterosexual couple that intends to engage in a prolonged period of cohabitation to reserve that until they have made a marital commitment, a marital commitment. So that, should that union produce any offspring, it would be more likely that that child or children will be raised by the mother and father who brought them into the world.

I understand the progressives who want to pretend the possible problems don't exist. I am baffled by the hired mouthpiece's reticence on these points.

CREEPING TOWARDS HONESTY:

Brilliant quotes Amanda Marcotte at Slate:

We've given the homophobes plenty of time to think this over. It's time to move on without them.

I'll feel a certain comfort - cold, perhaps - when prominent progressives write that yes, gay marriage may prompt homophobes including inner city black males and working class whites to be even less interested in marriage than they are now, but that is OK. Move on without them.

But to conduct a broad social experiment while insisting that there is no experiment underway at all is... well, pretty typical, but still scary.

SINCE YOU ASK: As part of the war on working class marriage, let's not forget the Unaffordable Care Act subsidies, which apply to the employee but not the spouse or kids.

The Unbearable Lightness of Democratic Principles

The NY Times traces the evolution of Bill Clinton's position on gay marriage, from his signing of the Defense of Marriage Act to his current opposition to that law. Clinton's current story is that his heart was always in the right place but those rube voters and his pesky pollsters forced him to sign the bill. And take out radio ads touting his signing of the bill.

Whatever. This could be an article on any prominent Democrat on any number of important issues, such as Hillary or Kerry on the Iraq war vote, the Patriot Act, or No Child Left Behind. It could be Obama's story on gay marriage. When a party's guiding principle is 'what do I need to pretend to believe in order to get elected?', a constancy of positions is not to be expected.

As to the issues before the Supreme Court, Chief Justice Roberts will be keeping his eye on history; his goal will be to avoid a decision that will look absurd and be overtaken by public opinion within a few years. That said, with the tide running so strongly in favor of gay rights, it would be (IMHO) a shame of the Court tried to lead in a situation where they could easily choose to follow (as they did with Loving v. Virginia.)

In trying to split that difference I predict the Court will find some gay-friendly non-bold middle ground to rule on these cases.

Empower The Rich!

A mega-rich guy is trying to buy a legislative result and the NY Times applauds:

Bloomberg’s TV Blitz on Guns Puts Swing Senators on the Spot

By MICHAEL BARBARO

The commercial is an unambiguous appeal to gun owners: a middle-aged hunter, rifle in hand, vows that he will fight to protect the Second Amendment. But in a sensible, father-of-the-house tone, he also urges voters to support comprehensive background checks, “so criminals and the dangerously mentally ill can’t buy guns.”

The man behind the advertisement is not known for his kinship with the gun crowd: Mayor Michael R. Bloomberg, the nation’s fiercest advocate of restrictions on firearms since the December rampage at Sandy Hook Elementary School in Newtown, Conn.

Determined to persuade Congress to act in response to that shooting, Mr. Bloomberg on Monday will begin bankrolling a $12 million national advertising campaign that focuses on senators who he believes might be persuaded to support a pending package of federal regulations to curb gun violence. The ads, in 13 states, will blanket those senators’ districts during an Easter Congressional recess that is to be followed by debate over the legislation.

One might think this next passage belongs on the editorialpage rather than a straight news story:

In a telling sign of how much the white-hot demands for gun control have been tempered by political reality, Mr. Bloomberg’s commercials make no mention of an assault weapons ban once sought by the White House and its allies, instead focusing on the more achievable goal of universal background checks.

One might say that the white-hot demand for a ban on assault weapons encountered the reality that such a ban made no sense.

Eventually the Times admits that Mr. Bloomberg may be a flawed messenger:

The N.R.A. plans to roll out its own lobbying campaign, using print and broadcast advertising to reach lawmakers during the recess. But its leaders said that their investment was unlikely to rival the intensity of Mr. Bloomberg’s spending, to be carried out through Mayors Against Illegal Guns, a group he co-founded.

“Can we match Mayor Bloomberg dollar for dollar?” asked Chris W. Cox, the group’s chief lobbyist. “No one can. We don’t have to.”

He predicted that voters and senators would resist a message from an out-of-state magnate who is associated with government limits on soda and salt.

“What he is going to find out is that Americans don’t want to be told by some elitist billionaire what they can eat, drink and they damn well don’t want to be told how, when and where they can protect their families,” Mr. Cox said.

Thomas E. Mann, a Congressional scholar at the Brookings Institution, agreed that Mr. Bloomberg “is not popular in many of the states he is going into right now.”

The Times resisted the temptation to denounce Mr. Bloomberg's opponents as anti-Semitic rubes... for now.

 

Play Dumb, Get Your Headline

Liberals know that the NY City cops are deplorable racists, so they thrilled to the recent tape recording played in court recently. However, neither ThinkProgress nor the NY Times editors took the trouble to review the context of those recordings as presented by the NY Times' own reporter:

Recording Points to Race Factor in Stops by New York Police

By JOSEPH GOLDSTEIN

For years, the debate over the New York Police Department’s use of stop-and-frisk tactics has centered on whether officers engage in racial profiling. Now, a recording suggests that, in at least one precinct, a person’s skin color can be a deciding factor in who is stopped.

The recording, played on Thursday in Federal District Court in Manhattan, was of a conversation between a patrol officer and his commanding officer in the 40th Precinct in the South Bronx, a violent command that recorded the highest number of police stops in the Bronx in 2011.

Libs were so thrilled by this confirmation of what they already knew that they felt free to stop reading. Too bad. The Times presents the denoument early in the story:

The commanding officer, Deputy Inspector Christopher McCormack, urged the officer to be more active, emphasizing the need to conduct more street stops. “We go out there and we summons people,” Inspector McCormack said. The way to suppress violent crime, he said, was for officers to stop, question and, if necessary, frisk “the right people at the right time, the right location.”

The officer who surreptitiously recorded the conversation last month, Pedro Serrano, began pressing Inspector McCormack about who he meant by the “right people.” The conversation grew heated.

After an exchange about Mott Haven, a particularly crime-prone neighborhood, the inspector suggested that the police needed to conduct street stops of the people creating “the most problems” there.

“The problem was, what, male blacks,” Inspector McCormack said. “And I told you at roll call, and I have no problem telling you this, male blacks 14 to 20, 21.”

Had eager libs pressed on, they would  have found some interesting details buried at the end:

At first, Inspector McCormack can be heard lecturing Officer Serrano about how “99 percent of these people in this community are great, hardworking people” who deserve to go about their days in peace. But the citizens, he said, were troubled by crime, and he went on to describe how a woman in her 60s was shot coming out of an elevator at 10 a.m.

The ambiguity in how the phrase “stopping the right people” is used by police commanders, and how it may be interpreted by patrol officers, was evident in the recordings played in court.

Pressed by the officer on what he meant, Inspector McCormack offered examples of people who should not be stopped, like an elderly person violating a parks rule by playing chess. He also cited the stop of a 48-year-old woman who was intercepted on her way to work as she took a shortcut through a park that was closed for the night.

“You think that’s the right people?” Inspector McCormack asked the officer skeptically.

But with Officer Serrano challenging him, the inspector never offered a clear answer.

“So what am I supposed to do?” Officer Serrano asked, after Inspector McCormack used that expression again. “Is it stop every black and Hispanic?”

The exchange continues until the inspector brings the conversation to a close, telling the officer, “You’re very close to having a problem here.”

The inspector continued, “The problem is that you don’t know who to stop and how to stop.”

In a later passage of the recording, which was not played in court, Inspector McCormack seemed to suggest to others there that Officer Serrano was trying to put words in his mouth. “He’s adding on that I wanted him to stop every black and Hispanic.”

So Serrano, who knew he was secretly taping the conversation, tried to coax his supervisor into saying something memorably stupid, and sorta kind succeeded. Well, that's close enough for the Times and Think Progress.

 

The New Nixon

When you are relying on Nixon-era deceptions to justify your drone program, folks may get balky:

Obama’s Nixonian Precedent

By MARY L. DUDZIAK

ON March 17, 1969, President Richard M. Nixon began a secret bombing campaign in Cambodia, sending B-52 bombers over the border from South Vietnam. This episode, largely buried in history, resurfaced recently in an unexpected place: the Obama administration’s “white paper” justifying targeted killings of Americans suspected of involvement in terrorism.

...

On Page 4 of the unclassified 16-page “white paper,” Justice Department lawyers tried to refute the argument that international law does not support extending armed conflict outside a battlefield. They cited as historical authority a speech given May 28, 1970, by John R. Stevenson, then the top lawyer for the State Department, following the United States’ invasion of Cambodia.

Since 1965, “the territory of Cambodia has been used by North Vietnam as a base of military operations,” he told the New York City Bar Association. “It long ago reached a level that would have justified us in taking appropriate measures of self-defense on the territory of Cambodia. However, except for scattered instances of returning fire across the border, we refrained until April from taking such action in Cambodia.”

In fact, Nixon had begun his secret bombing of Cambodia more than a year earlier. (It is not clear whether Mr. Stevenson knew this.) So the Obama administration’s lawyers have cited a statement that was patently false.

Citing false statements to justify a secret program is not really convincing. Sort of a castles, sand problem.

On The Border, Nada

The Department of Homeland Security just can't get behind the idea of developing a metric to evaluate progress (or lack thereof) in securing our borders:

Officials Concede Failures on Gauging Border Security

By JULIA PRESTON

More than two years after Homeland Security officials told Congress that they would produce new, more accurate standards to assess security at the nation’s borders, senior officials from the department acknowledged this week that they had not completed the new measurements and were not likely to in coming months, as the debate proceeds about overhauling the immigration system.

Both Democratic and Republican lawmakers were taken aback at a hearing on Wednesday in the House of Representatives when Mark Borkowski, a senior Homeland Security official, said he had no progress to report on a broad measure of border conditions the department had been working on since 2010. The lawmakers warned that failure by the Obama administration to devise a reliable method of border evaluation could imperil passage of immigration legislation.

Even the "Wave 'em in" Democrats had to pretend to be shocked, shocked:

Representative Sheila Jackson Lee of Texas, a Democrat and strong a supporter of President Obama’s immigration proposals, was more blunt. “I would say to the department, you’ve got to get in the game,” she said.

Obviously, these Dems will eventually accept whatever bone the Administration tosses them. If any:

Obama administration officials said on Thursday that they had resisted producing a single measure to assess the border because the president did not want any hurdles placed on the pathway to eventual citizenship for immigrants in the country illegally.

They also said security conditions could change very rapidly along the border depending on where smugglers tried to bring people and narcotics across, and where border agents were concentrating their technology and other resources.

“While border security is complex and cannot be measured in a single metric,” said Peter Boogaard, a spokesman for the Homeland Security Department, “in every metric available to measure progress, we’re heading in the right direction, including decreased apprehensions and increased seizures.”

It's complicated! And the dog ate their study.

Democrat passivity notwithstanding, Republicans seem to have a bit of an issue with this:

Amid contentious discussions in Congress over immigration, one point of wide agreement is that an evaluation of border security will be a central piece of any comprehensive bill. A bipartisan group in the Senate is working to write legislation that includes a “trigger,” which would make the path to citizenship for more than 11 million illegal immigrants in the country contingent on measurable advances in security at the borders.

Lawmakers have been pressing Homeland Security Secretary Janet Napolitano to devise a measure they can use to judge if the Obama administration’s claims of significant progress in border enforcement are justified. Republican senators in the bipartisan group have said a border standard is pivotal to their efforts.

“We need to have a measurement,” Senator John McCain of Arizona insisted at a hearing in the Senate last week.

“We need to assure the American people that we have effective control of the border and we have made advances to achieve that,” he said. “I need to have something to assure people they are not going to live in fear.”

We eageraly await an opportunity to assess the quality, consistency and odor of the BS to be shoveled upon us if and when Team Obama can be persuaded to address this.

Gun Nuts In New York

The NY Times strains herocially to keep a straight face while explaining that in New York, the gun nuts were on the other side of the aisle:

New York Governor Favors Easing Newly Passed Gun Law

By THOMAS KAPLAN and DANNY HAKIM

ALBANY — In the wake of the elementary school massacre in Newtown, Conn., Gov. Andrew M. Cuomo of New York pushed through the State Legislature gun control measures that included not only a tougher assault weapons ban but also a tighter restriction on the maximum legal capacity of gun magazines.

But after weeks of criticism from gun owners, Mr. Cuomo said on Wednesday that he would seek to ease the restriction, which he said had proved unworkable even before it was scheduled to take effect on April 15.

They had to pass the bill to see what was in it. And what was in it was as ludicrous as the proposed "solution":

The gun-control law, approved in January, banned the sale of magazines that hold more than seven rounds of ammunition. But, Mr. Cuomo said Wednesday, seven-round magazines are not widely manufactured. And, although the new gun law provided an exemption for the use of 10-round magazines at firing ranges and competitions, it did not provide a legal way for gun owners to purchase such magazines.

As a result, he said, he and legislative leaders were negotiating language that would continue to allow the sale of magazines holding up to 10 rounds, but still forbid New Yorkers from loading more than 7 rounds into those magazines.

“There is no such thing as a seven-bullet magazine,” Mr. Cuomo said at a news conference. “That doesn’t exist. So you really have no practical option.”

So if a worried homeowner sleeps with ten bullets in the magazine of her bedside Glock she would be in violation of the revised law. Of course, if an intruder burst in with a ten round magazine, the concerned resident would only know whether the assailant was in compliance with the new gun law if he only managed seven shots without reloading. Do we feel safer yet?

I guess that if New York cops are allowed to continue their stop and fisk tactics that ten bullets in a ten bullet magazine will become an available criminal for aggressive prosecutors looking for excuses to bust guys they want to bust anyway.

But how this new law could possibly deter an Aurora type spree killer loading up for his big event is beyond me.

Give Me Your Poor, Your Tired... Well,Your Poor

David Leonhardt of the Times engages in some college level affirmative action fantasizing while presenting (but not actually reading) an interesting Hoxby-Avery study about talented poor kids:

Better Colleges Failing to Lure Talented Poor

By DAVID LEONHARDT

Most low-income students who have top test scores and grades do not even apply to the nation’s best colleges, according to a new analysis of every high school student who took the SAT in a recent year.

The pattern contributes to widening economic inequality and low levels of mobility in this country, economists say, because college graduates earn so much more on average than nongraduates do. Low-income students who excel in high school often do not graduate from the less selective colleges they attend.

Only 34 percent of high-achieving high school seniors in the bottom fourth of income distribution attended any one of the country’s 238 most selective colleges, according to the analysis, conducted by Caroline M. Hoxby of Stanford and Christopher Avery of Harvard, two longtime education researchers. Among top students in the highest income quartile, that figure was 78 percent.

The findings underscore that elite public and private colleges, despite a stated desire to recruit an economically diverse group of students, have largely failed to do so.

Mr. Leonhardt eventually succumbs to a popular progressive myth that "economic diversity" can serve as a proxy for racial diversity in the event the Supreme Court invalidates affirmative action:

Elite colleges may soon face more pressure to recruit poor and middle-class students, if the Supreme Court restricts race-based affirmative action. A ruling in the case, involving the University of Texas, is expected sometime before late June.

Colleges currently give little or no advantage in the admissions process to low-income students, compared with more affluent students of the same race, other research has found. A broad ruling against the University of Texas affirmative action program could cause colleges to take into account various socioeconomic measures, including income, neighborhood and family composition. Such a step would require an increase in these colleges’ financial aid spending but would help them enroll significant numbers of minority students.

Huh? Bringing in more poor kids on a color blind basis won't be helpful, as the Times editors noted last fall - although there are proportionately more poor black kids, in absolute terms there are many more poor white kids. Of course, that doesn't mean that schools won't pretend to be pursuing economic diversity as a cover for racial preferences.

But there is a second problem, leading us to wonder whether Mr. Leonhardt even read his own article or the underlying study. From the article:

Among high-achieving, low-income students, 6 percent were black, 8 percent Latino, 15 percent Asian-American and 69 percent white, the study found.

That is the pool from which colleges will fish more "minority", i.e., non-Asian minority, students?

Delving into the study we also learn that high achieving blacks and Hispanics are more likely than high achieving whites to (a) live in urban areas with magnet schools, (b) end up applying to better colleges. From Mr. Leonhardt:

Top low-income students in the nation’s 15 largest metropolitan areas do often apply to selective colleges, according to the study, which was based on test scores, self-reported data, and census and other data for the high school class of 2008. But such students from smaller metropolitan areas — like Bridgeport; Memphis; Sacramento; Toledo, Ohio; and Tulsa, Okla. — and rural areas typically do not.

...

Ms. Hoxby and Mr. Avery, both economists, compared the current approach of colleges to looking under a streetlight for a lost key. The institutions continue to focus their recruiting efforts on a small subset of high schools in cities like Boston, New York and Los Angeles that have strong low-income students.

Top schools are having no trouble finding talented black kids from the NYC magnet schools; it is the bright light shining in rural Kentucy that is getting overlooked, and that light is more likely to be white. I am relying on Steve Sailer and his readers for this:

- For every low-income, high-performing white kid who applies to college like a smart kid, there are 11.7 who apply like poor kids.  

- For every low-income, high-performing black kid who applies to college like a smart kid, there are 3.7 who apply like poor kids. 

- For every low-income, high-performing Hispanic kid who applies to college like a smart kid, there are 3.2 who apply like poor kids.  

- For every low-income, high-performing Asian kid who applies to college like a smart kid, there are 1.5 who apply like poor kids.  

So schools could do a better recruiting job with every racial group, but viewed on a color blind basis the white group is clearly under-recruited now.

STRAY THOUGHT: Per Sailer, the study looks at "poor" based on estimated income, without any reference to a parents educational atainment. Consequently, a divorced mom on child support with a college degree can be just as 'poor' as a working class mother from working class parents. That can lead to this sort of result:

Among high achievers, 51% have a parent with a graduate degree, while it looks like about 82% are children of bachelor degree holders.

I have a suspicion that this study, based on income, will be oversold as focusing on class. I am also struggling with this (Leonhardt):

The researchers defined high-achieving students as those very likely to gain admission to a selective college, which translated into roughly the top 4 percent nationwide. Students needed to have at least an A-minus average and a score in the top 10 percent among students who took the SAT or the ACT.

Of these high achievers, 34 percent came from families in the top fourth of earners, 27 percent from the second fourth, 22 percent from the third fourth and 17 percent from the bottom fourth. (The researchers based the income cutoffs on the population of families with a high school senior living at home, with $41,472 being the dividing line for the bottom quartile and $120,776 for the top.)

No regional cost of living or average salary adjustments? A person earning $40,000 per year with a college degree living in Kentucky is not "poor" they way a person with that income living in Manhattan would be.

 

More Flexibility

The election and the North Korean missile tests give Obama the excuse to do what he wanted to do anyway:

MOSCOW — The United States has effectively canceled the final phase of a Europe-based missile defense system that was fiercely opposed by Russia and cited repeatedly by the Kremlin as a major obstacle to cooperation on nuclear arms reductions and other issues.

Russian officials here have so far declined to comment on the announcement, which was made in Washington on Friday by Defense Secretary Chuck Hagel as part of a plan to deploy additional ballistic missile interceptors to counter North Korea. The cancellation of some European-based defenses will allow resources to be shifted to protect against North Korea.

...

Russian leaders on several occasions used meetings with President Obama to press their complaints about the missile defense program. At one such meeting, in South Korea last March, Mr. Obama was heard on a live microphone telling the outgoing Russian president Dmitri A. Medvedev in a private aside that he would have “more flexibility” to negotiate on missile defense after the November presidential election in November.

Pentagon officials said that Russia’s longstanding objections played no role in the decision to reconfigure the missile interceptor program, which they said was based on the increased threat from North Korea and on technological difficulties and budget considerations related to the Europe-based program.

Left unmentioned: the clarification that Russian objections played no part in the decision was made during the opening monologue on SNL.

Sunday Morning

Clarice starts us up.

Friday Late Day

OK, my time management has not come through today.

Junk Science, Or, A Clash Of Temperments

Matt Yglesais declares the Paleo Diet to be Nonsense Science, so we are confident that there is some nonsense around.

He takes his cue from Laura Miller of Salon, who in turn is citing "Paleofantasy: What Evolution Really Tells Us about Sex, Diet, and How We Live" by Marlene Zuk.

Let me set the stage with Ms. Miller's intro:

Four years ago, biology professor Marlene Zuk was attending a conference on evolution and diseases of modern environments. She sat in on a presentation by Loren Cordain, author of “The Paleo Diet” and a leading guru of the current craze for emulating the lifestyles of our Stone-Age ancestors. Cordain pronounced several foods (bread, rice, potatoes) to be the cause of a fatal condition in people carrying certain genes. Intrigued, Zuk stood up and asked Cordain why this genetic inability to digest so many common foods had persisted. “Surely it would have been selected out of the population,” she suggested.

Cordain, who has a Ph.D in exercise physiology, assured Zuk that human beings had not had time to adapt to foods that only became staples with the advent of agriculture. “It’s only been ten thousand years,” he explained. Zuk’s response: “Plenty of time.” He looked at her blankly, and she repeated: “Plenty of time.” Zuk goes on to write, “we never resolved our disagreement.”

Plenty of time? Matt goes on to provide examples of rapid evolution, which certainly makes a convincing case that evolution can occur rapidly. Of course, that is a far cry from answering the question at hand - has evolution kept pace with human's ability to digest certain modern foods?

I don't know the specific syndrome that led to the dispute between Cordain and Zuk, but let's imagine that it is celiac. Per the NY Times science section, the predisposition to celiac is hereditary, and it surely can be fatal if untreated. That leads me to conclude that, Ms. Zuk's assertion of "plenty of time" notwithstanding, humanity has not yet bred away all of its problems with wheat gluten.

Also on offer is the example of man's adaptation to cow's milk; left unmentioned is that roughly 7,000 years after domesticating cows and goats the majority of people worldwide cannot digest this otherwise excellent food source. That is an example of evolution creeping, not sprinting.

As to how neither Mr. Yglesias nor Ms. Miller happened to think of that fairly obvious example of an evolutionary 'fail' linked to our modern diet, well, I have a theory. Folks of a conservative temperment believe that the accumulated customs and institutions of the past reflect the conclusions of people who may have had excellent, if not immediately discernible, reasons for what they did. Progressives would much rather convene a panel of experts and reinvent a solution to whatever problem is at hand.

On the dietary front, this inclination leads to Mr. Yglesais rubbishing two million years of human eating practices because a scientist told him to ignore it. Of course, years back it led George McGovern to weigh in on the side of Ancel Keys and the other experts who had decided that dietary fat was the crisis facing America. Oops.

MORE: From the Times on gluten sensitivty and gluten intolerance:

As with most nutrition controversies, most everyone agrees on the underlying facts. Wheat entered the human diet only about 10,000 years ago, with the advent of agriculture.

“For the previous 250,000 years, man had evolved without having this very strange protein in his gut,” Dr. Guandalini said. “And as a result, this is a really strange, different protein which the human intestine cannot fully digest. Many people did not adapt to these great environmental changes, so some adverse effects related to gluten ingestion developed around that time.”

The primary proteins in wheat gluten are glutenin and gliadin, and gliadin contains repeating patterns of amino acids that the human digestive system cannot break down.

So 10,000 years later, no one can actually digest gluten. Many of us, however, can pass it through with no apparent ill effects.

This health criteria - it doesn't help, but maybe it doesn't hurt - would not pass muster with the left if the topic were any food additive or GMO.

Proceeding According To Plan

Senate Democrats on the Judiciary Committee send Dianne Feinstein's Scary Guns ban to the Senate, where various Red State Dems will be offered an opportunity to commit ritual suicide.

Blue City Down; Blue State Down

The NY Times has a history of the decline of Detroit which describes decades of poor government while failing to note that this is a story of one party rule by the Democrats.

They also play 'Guess The Party' in their coverage of a recent SEC accusation that the State of Illinois committed fraud. This is the closest they come to covering the partisan turf:

For the second time in history, federal regulators have accused an American state of securities fraud, finding that Illinois misled investors about the condition of its public pension system from 2005 to 2009.

In announcing a settlement with the state on Monday, the Securities and Exchange Commission accused Illinois of claiming that it had been properly funding public workers’ retirement plans when it had not. In particular, it cited the period from 2005 to 2009, when Illinois also issued $2.2 billion in bonds.

...

The charges put the state’s pension system, generally thought to be the weakest of any state, back in the national spotlight. In his budget address last week, Gov. Pat Quinn, a Democrat, issued a clear warning that the system had to be fixed.

Huh? Surely they have more?  Well, there is this:

By 2003, the state was so far behind that it issued $10 billion of bonds and put the proceeds into its pension funds to make them look flush. The main underwriter of those bonds, Bear Stearns, was later found to have made an improper payment to win the business, figuring in the corruption trial of a former governor, Rod R. Blagojevich.

Well, folks may recall that Blago was famously involved in trying to sell the appointment to Obama's Senate seat, vacated as of Jasnuary 2009. But lest you wonder, he is a Democrat, and was governor during the time period cited by the SEC.

 

Eliminating The Middle Man, or Krugman Bankrupt, Ethically

Paul Krugman delivers his best Dr. Evil chortle:

OK, I’m an evil person — and my scheming has paid off.

On Friday I started hearing from friends about a fake story making the rounds about my allegedly filing for personal bankruptcy; I even got asked about the story by a reporter from Russian television, who was very embarrassed when I told him it was fake. But I decided not to post anything about it; instead, I wanted to wait and see which right-wing media outlets would fall for the hoax.

And Breitbart.com came through!

Those silly righties! Left unmentioned at Krugman's blog - Breitbart lifted the story from the website of the Boston Globe, a NY Times company. I think it is kind of funny that the Times organization was duped about the bankruptcy of their own columnist, but I guess Krugman does not.

Well, if his message is never trust content from the Times, I'm already sold. As to what the Breitbart people were thinking in relying on the Times, they should have remembered what Reagan nearly said - when it comes to the Times, Mistrust but verify.

The Future Is Later

There will come a day when sugary sodas are utterly stigmatized.

There will come a day when no responsible adult will consume a soda pop, or give one to a child.

But this is not that day. This day, we fight!

FILM AT ELEVEN: Prior to the judges ruling AllahPundit had a post mocking the absurdity of Bloomberg's new sugar inspectors with their bespoke 17 ounce measuring cups. However, he overlooked this classic video of a Sugar Inspector on the beat, with a memorable reaction to overly sweet coffee.

Big Talk From A Guy Named 'Barack'

From Obama's Gridiron Dinner transcript:

We noticed that some folks couldn’t make it this evening.  It’s been noted that Bob Woodward sends his regrets, which Gene Sperling predicted.  (Laughter.)  I have to admit this whole brouhaha had me a little surprised.  Who knew Gene could be so intimidating?  (Laughter.)  Or let me phrase it differently — who knew anybody named Gene could be this intimidating?  (Laughter.)

I'll open with Gene Upshaw, Hall of Fame lineman for the Oakland Raiders. More scary genes here.

NO INTIMIDATING GENES? English Bob begs to differ.

The Times Discovers The Senate!

The NY Times discovers the Senate and the Great Compromise; hilarity ensues.

Smaller States Find Outsize Clout Growing in Senate

The disproportionate power enjoyed in the Senate by small states is playing a growing role in the political dynamic on issues as varied as gun control, immigration and campaign finance.

Gun control? Gun control is DOA in the much more representative House of, well, Representatives. Their mysterious assertion is unaddressed in the article. As a Psychic Reader, my contribution is to guess that their argument would have been the Democratic Party carrries the baggage of having some Red State Senators who can't afford to hop on the next Progressive Train leaving the station. Of course, that doesn't explain Senate Majority Leader Harry Reid, whose home state went for Obama.

Oh, wait - did I mention that the Democrats control the Senate but not the more representative House? Yes, that is like totally obvi, but then again, the Times piece includes puzzles such as this:

There is a widening demographic split, too, with the larger states becoming more urban and liberal, and the smaller ones remaining rural and conservative, which lends a new significance to the disparity in their political power.

...

Beyond influencing government spending, these shifts generally benefit conservative causes and hurt liberal ones.

Hmm. We also get this time warp as an illustration of something or other:

A sweeping climate bill, meant to raise the cost of carbon emissions, passed the House, where seats are allocated by population, but not the Senate.

Are you thinking that must be the Nancy Pelosi led House that was flushed out in the 2010 election? Right you are! But vindication waits until the last paragraph:

In 2009, the House of Representatives narrowly approved a bill to address climate change, but only after months of horse-trading that granted concessions and money to rural states. That was an example, Mr. Broz and Mr. Maliniak said, of compensating rural residents for the burdens of reducing greenhouse-gas emissions.

But it was not enough. The bill died in the Senate.

More here from the lib-friendly Center for Americn Progress. The Democrats controlled the Senbate but they didn't control the Democrats, some of whom could not be convinced of the wisdom of raising the cost of energy during a hideous recession. Go figure.

We see the potential for some fuzzy math in a comparison of Federal aid to New York and Vermont:

RUTLAND, Vt. — In the four years after the financial crisis struck, a great wave of federal stimulus money washed over Rutland County. It helped pay for bridges, roads, preschool programs, a community health center, buses and fire trucks, water mains and tanks, even a project to make sure fish could still swim down the river while a bridge was being rebuilt.

Just down Route 4, at the New York border, the landscape abruptly turns from spiffy to scruffy. Washington County, N.Y., which is home to about 60,000 people — just as Rutland is — saw only a quarter as much money.

I think some would argue that New York state got a disproportionate benefit from the TARP bailout funds, which are separate from the stimulus program. Well, unless someone can think of a big Vermont bank that got propped up, thereby saving jobs in Burlington or Montpelier or wherever.

Finally, they Keep Fear Alive with this combination of speculative fiction and ignorance about the outsize importance of small states in the Electoral College:

In 2000, had electoral votes been allocated by population, without the two-vote bonuses, Al Gore would have prevailed over George W. Bush. Alexander Keyssar, a historian of democracy at Harvard, said he would not be surprised if another Republican candidate won the presidency while losing the popular vote in coming decades, given the structure of the Electoral College.

First, the claim about 2000 assumes, quite improbaly, that neither party would have adjusted their campaigning strategy to reflect the new rules.

Secondly, I will see their Alexander Keysar and raise them a Nate Silver, who notes that for the next two elections at least, the Democrats seem to have nailed down an Electoral College advantage:

President Obama won the Electoral College fairly decisively last year despite a margin of just 3.8 percentage points in the national popular vote. In fact, Mr. Obama would probably have won the Electoral College even if the popular vote had slightly favored Mitt Romney. The “tipping-point state” in the election — the one that provided Mr. Obama with his decisive 270th electoral vote — was Colorado, which Mr. Obama won by 5.4 percentage points. If all states had shifted toward Mr. Romney by 5.3 percentage points, Mr. Obama would still have won Colorado and therefore the Electoral College — despite losing the national popular vote by 1.5 points.

Interestingly, the Republicans seem to enjoy at the state level the same edge the Democrats now enjoy nationally. Back to Mr. Silver:

Contrast this Democratic advantage in the Electoral College with the Republican advantage in the House of Representatives. Democrats actually won slightly more votes in the House elections last year (about 59.5 million votes to the G.O.P.’s 58 million). Nevertheless, Republicans maintained a 234-201 majority in the House, losing only eight seats.

However, much or most of the Republican advantage in the House results from geography rather than deliberate attempts to gerrymander districts. Liberals tend to cluster in dense urban centers, creating districts in which Democrats might earn as much as 80 or 90 percent of the vote. In contrast, even the most conservative districts in the country tend not to give more than about 70 or 75 percent of their vote to Republicans. This means that Democrats have more wasted votes in the cities than Republicans do in the countryside, depriving Democrats of votes at the margin in swing districts. Eliminating partisan gerrymandering would reduce the G.O.P.’s advantage in the House but not eliminate it.

But nationally, the Republicans are becoming inefficiently Red:

Missouri, once a tossup, is now solidly Republican. And West Virginia, which was once Democratic-leaning enough that Michael Dukakis carried it in 1988, voted for Mr. Romney by 27 points on Tuesday.

The problem for Republicans is that in states like these, and others like Tennessee, Kentucky and Arkansas, they are now winning by such large margins there that their vote is distributed inefficiently in terms of the Electoral College.

By contrast, a large number of electorally critical states – both traditional swing states like Iowa and Pennsylvania and newer ones like Colorado and Nevada – have been Democratic-leaning in the past two elections. If Democrats lose the election in a blowout, they would probably lose these states as well. But in a close election, they are favored in them.

Fascinating. In a future piece I am sure that Times will explain to us why the House is not representative either. But will they link to their preferred Electoral map?

SINCE YOU ASK: When I am King for a Day I will have gerrymandering reform coupled with implementation of the Congressional Distrcit method of determining a state's Electoral College vote (as in Maine and Nebraska, it is winner take all by Congressional district, with the popular vite winner in the state getting the two Senator bonus). The big benefit - what happens in Vegas statys in Vegas; with the national popular vote, vote fraud anywhere can affect the outcome everywhere, so every district dominated by one party has an incentive to cheat. With winner take all by distict, the value to running up the score fraudulently can only be the two bonus popular vote seats for that state.

Well, my unicorn is saddled up and ready to ride...

TOTALLY FREE-ASSOCIATING NOW: As KfoD I will also be imposing a whopping sugar tax, so enjoy those overly sweetened foods now. I will recycle the revenue by way of Medicaid and/or the payroll tax to mitiagte the regressive impact. So keep that on your list of things that won't be happening anytime soon (But ought to! And eventually will, or so I say).

Almost Like Reporting (NY Times, Ongoing)

The NY Times delivers a hard-hitting piece covering the key topic of the sequester - what will Obama do to relax?

Amid Cuts, Does a President Dare Tee Off?

By MICHAEL D. SHEAR

WASHINGTON — Fair or not, the extracurricular lives of American presidents are often measured by how they compare with the everyday pursuits of the people they lead.

And so as the nation’s federal workers and others prepare to tighten their belts amid budget cuts, reduced overtime and furloughs, it is inevitable that someone would ask the question about President Obama and golf.

It came this week from, among others, Newt Gingrich, the former House speaker and Republican presidential candidate, who expressed outrage that the White House had canceled daily tours of 1600 Pennsylvania at the behest of the Secret Service, which said its officers were needed more elsewhere.

“Canceling White House tours is childish and dishonest,” Mr. Gingrich said on Twitter, citing a recent golf vacation the president took to the Floridian Yacht and Golf Club resort with a handful of friends and his Secret Service entourage. “The golf weekend in Florida cost enough to keep the White House open for months.”

Some budget background with a question I can't answer:

And what about the golf that Mr. Obama frequently plays at the nearby Joint Base Andrews?

Mr. Fleischer [Ari Fleischer of Bush fame] pointed out that the Pentagon’s leaders have warned that the budget cuts will have a serious impact on the readiness of the nation’s military. “What does it say about a sequester if a military golf course can stay open during it?” he said.

Hmm, what are the national security implications of having a lot of tense generals around? Troubling...

Mr. Shear concludes with the faux reporting:

Such is the life of a modern president and his family. The first President Bush was mocked as out of touch when he was seen on a speedboat in Kennebunkport, Maine, during an economic downturn. President Bill Clinton hobnobbed with Hollywood glitterati and took heat for it.

And like Mr. Obama, the second President Bush was criticized for his frequent golf outings, which sometimes made him seem disconnected from the grim task of leading a nation in war.

I don't think the second Bush was criticized for long - he played his last Presidential round in August (or October!) of 2003 as an expression of solidarity with the soldiers. Well, if the sequester drags on for six months maybe Obama will give up golf.

Who's Asking?

Nate Silver, statistician to the stars, takes on the Supreme Court, but I wonder if he is an authority in the etiquette of the Supremes:

In oral arguments before the Supreme Court last week, Chief Justice John G. Roberts Jr. introduced a statistical claim that he took to imply that an important provision of the Voting Rights Act has become outmoded.

Section 5 of the Voting Rights Act, which is being challenged by Shelby County, Ala., in the case before the court, requires that certain states, counties and townships with a history of racial discrimination get approval (or “pre-clearance”) from the Department of Justice before making changes to their voting laws. But Chief Justice Roberts said that Mississippi, which is covered by Section 5, has the best ratio of African-American to white turnout, while Massachusetts, which is not covered, has the worst, he said.

Chief Justice Roberts’s statistics appear to come from data compiled in 2004 by the Census Bureau, which polls Americans about their voting behavior as part of its Current Population Survey.

Well, Chief Justice Roberts numbers come from the dissent to the case on appeal (p. 77 and following). On to the punchline:

As much as it pleases me to see statistical data introduced in the Supreme Court, the act of citing statistical factoids is not the same thing as drawing sound inferences from them. If I were the lawyer defending the Voting Rights Act, I would have responded with two queries to Chief Justice Roberts.

Ahh, I don't think many lawyers take it upon themselves to start questioning the Supremes. My understanding of the division of labor is that the Justices ask the questions and the attorneys answer.

And here in America (unlike, for example, France) we have an adversarial judicial system. The attorneys for both sides are expected to be familiar with the arguments and potential rebuttals. Roberts misapplied some statistics? Roberts raised a point made in the dissent and the attorney had no ready response. That is hardly Roberts' fault if the attorney is poorly prepared.

Mr. Silver closes with an interesting point that, unfortunately, totally ignores the context of the Roberts exchange:

Most of you will spot the logical fallacy in the following claim: 

No aircraft departing from a United States airport has been hijacked since the Sept. 11 attacks, when stricter security standards were implemented. Therefore, the stricter security is unnecessary.

As much as I might want to be sympathetic to this claim (I fly a lot and am wary of the “security theater” at American airports), it ought not to be very convincing as a logical proposition.

Similarly, he goes on to explain, the currently favorable turnout figures for Mississippi might simply reflect the efficacy of the Voting Right Act procedures.

Well, sure. But Justice Scalia had hammered that very point immediately before Roberts chimed in with his question about relative turnout (transcript, p. 30 and following):

GENERAL VERRILLI: But I think -- but, Mr. Chief Justice, that is why I made the point a minute ago that the key way in which Section 5 -- it has to be the case, everyone agrees, that the significant progress that we've made is principally because of Section 5 of the Voting Rights Act. And it has always been true that only a tiny fraction of submissions result in objections.

JUSTICE SCALIA: That will always be true forever into the future. You could always say, oh, there has been improvement, but the only reason there has been improvement are these extraordinary procedures that deny the States sovereign powers, which the Constitution preserves to them. So, since the only reason it's improved is because of these procedures, we must continue those procedures in perpetuity.

And after a half a page of brief back and forth, Roberts is the next Justice to speak:

CHIEF JUSTICE ROBERTS: Just to get the - do you know which State has the worst ratio of white voter turnout to African American voter turnout?

GENERAL VERRILLI: I do not.

CHIEF JUSTICE ROBERTS: Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi.

GENERAL VERRILLI: Yes, Mr. Chief Justice. But Congress recognized that expressly in the findings when it reauthorized the act in 2006. It said that the first generation problems had been largely dealt with, but there persisted significant -

CHIEF JUSTICE ROBERTS: Which State has the greatest disparity in registration between white and African American?

GENERAL VERRILLI: I do not know that.

CHIEF JUSTICE ROBERTS: Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration

GENERAL VERRILLI: But when Congress -- the choice Congress faced when it -- Congress wasn't writing on a blank slate in 2006, Mr. Chief Justice. It faced a choice. And the choice was whether the conditions were such that it could confidently conclude that this deterrence and this constraint was no longer needed, and in view of the record of continuing need and in view of that history, which we acknowledge is not sufficient on its own to justify reenactment, but it's certainly relevant to the judgment Congress made because it justifies Congress having made a cautious choice in 2006 to keep the constraint and to keep the deterrence in place.

This 'Congress must have had something in mind when they passed it' argument would probably not convince libs if the topic were the Defense of Marriage Act.

EX POST VINDICATION: Orin Kerr at the Volokh Conspiracy quotes this exchange during the gay marriage arguments:

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? . . .

 

No 'Stand Your Ground' Pre-Trial Hearing For Zimmerman?

In a bit of a headscratcher, Zimmerman attorney Mark O'Mara told the court he won't be asking for the 'Stand Your Ground' hearing tentatively scheduled for April.

The Christian Science Monitor offered some ideas:

Some legal experts following the case, however, were not surprised at the defense's decision to forego a "stand your ground" hearing, given normal legal maneuvering in a high-profile murder case.

One argument goes that Zimmerman's ultimate claim may not be "stand your ground" at all, since he technically was on the ground and unable to retreat any further at the moment he shot Trayvon. In that scenario, he could claim self-defense under pre-"stand your ground" laws.

A more likely scenario, says University of Florida law professor Bob Dekle, is that Mr. O'Mara doesn't want to go through a bench mini-trial and possibly tip off the prosecution about its strategy should the "stand your ground" plea fail.

Hmm. Some discussion of the law is here and here. The burden of proof does shift between the pre-trial hearing and the trial. At the hearing, the pre-ponderance of evidence must support a self-defense claim; at trial ,the prosecution must establish beyond a reasonable doubt that self-defense was not in play. So conceivably, the same set of facts could lose in a hearing but lead to acquital at trial.

And if the defense is worried that the political pressure on the judge will weigh against dismissal, the pre-trial hearing might result only with the defense tipping its hand in order to generate headlines such as "Judge Rejects Zimmerman Self-Defense Claim". That sort of pre-trial publicity might not be helpful (I am not a high-priced jury consultant, but that is my guess).

TROUBLE IN PARADISE: Witness 8, aka "Dee Dee", seems to have a bit of a credibility problem:

Zimmerman's defense appeared to question the credibility of a teenage girl, identified only as Witness 8, who claims she was on the phone with Martin just moments before he was shot. Witness 8 is arguably the key witness in the upcoming trial.

Witness 8 told authorities that Martin told her that he was scared of a strange man following him. She also claimed that that after hearing the shooting over Martin's phone, she was hospitalized for trauma, a claim that prosecutors later admitted was false.

The defense wanted Judge Debra Nelson to question prosecutors about how they learned that this claim was not true, but Nelson refused. Defense attorney Donald West also asked the court for more information about the account she gave attorneys.

Jeralyn Merritt has an exhaustive post on Witness 8. Her post-shooting trauma and hospitalization was not inconsequential - it fact, it was the explanation for her failure to contact police or investigators for weeks after the shooting. Here is Matt Lauer of ABC interviewing Trayvon Martin's mother and family attorney Ben Crump:

LAUER: This is not a recorded phone call, Mrs. Fulton. The young lady--the police in Sanford asked anyone with information to come forward if they had that. This young lady, according to our reporting, had not come forward. And we're now getting her version of this phone call. Can it be trusted?

Ms. FULTON: Yes, it can. She was distraught because of the situation that happened with Trayvon and that--the fact that she was on the phone with him when he--when the incident occurred--right before the incident occurred. So she was very distraught. She had to go to the hospital. She was hospitalized. She also mentioned to us that she had feelings for Trayvon, so it hurt her dearly to know that he has passed away.

I guess some new explanation will be offered.

Immigration Man

Politico says it all: "Jeb Bush unclear on citizenship path".

AllahPundit labors mightily to square the unsquared uncircle. I think Jeb is just trying to knock down the idea that he is the reflective, articulate Bush.

Saturday, All Day

Away we go.