Stone Court

Being as contrarian at 8 years old as I am today, I really enjoyed the psych screening test they gave us in second grade -- you had to do things like draw a picture of your family and tell them how many hours of television per week you watched. The latter was multiple choice, and the highest choice, I recall, was 15-20 hours per week -- a plainly inadequate list of choices. I drew and checked my own box and wrote next to it a much larger number, 40 or 50 hours per week.

As a child, I watched television essentially all time -- even while I was doing my homework. My answer on the test was, I think, some kind of perverse dare -- I was saying, "Come on, just try to tell me there's something wrong with me! What's wrong is that you grown ups think it matters how much TV we kids watch."

As I got older, I'm afraid that I bought into the prevailing notion that television is bad for children, and that I was somehow an exception that didn't prove anything. Like merseydotes, I might have written that "I know I'm not supposed to let my toddler watch any TV".

Except that I was right when I was 8, not when I was 28 (when I first had a toddler).

Among the many wonderful insights in Freakonomics (at 172):

[D]ata show no correlation, meanwhile, between a child's test scores and the amount of television he watches. Despite the conventional wisdom, watching television apparently does not turn a child's brain to mush. (In Finland, whose education system has been ranked the world's best, most children do not begin school until age seven but have often learned to read on their own by watching American television with Finish subtitles.)

I actually think there's quite a lot to say about the politics of why television has gotten such a bad rap, but for now let's just all let our kids watch a bit of TV without feeling guilty.

You have to give Captain's Quarters credit for trying. The conservative blog reports today:

The hounding of Tom DeLay continues to backfire on House Democrats, as the AP has discovered in a review of travel disclosures. Far from being a singular problem in the GOP Whip's office, it turns out that a number of Pelosi's comrades have also been remiss in disclosing their travel expenses and the people who paid them....

Perhaps the Democrats might want to rethink this witch hunt. It appears that enough sorcerors abound on both sides of the aisle, and the Democrats can't afford to lose their own leadership in an attempt to torpedo DeLay.

Wow. That sounds bad. Guess the Dems must have a problem.

Or not. If you go to the AP source, you may be surprised to learn that it was actually 23 Republicans (including DeLay) and only 19 Democrats who turned out to be late filers. Moreover, while late filing is clearly not a good thing, it is fairly minor in the scheme of things (unless it is chronic or other exacerbating factors exist). For example, the article quotes Joel Hefley, the Republican former head of the ethics committee, as saying, "There is no particular sanction (for tardiness) if you come back and file. They get lax. They don't think about it." Also, many of the late filings (including all of Pelosi's and DeLay's) involved staff travel, not travel by the member. While the member is certainly responsible for his or her staff, it is not really reasonable to expect the member to keep track of staff travel and reporting. (On the other hand, members should be on top of their own reporting, and members (including Dems, such as Maxine Waters) that repeatedly dropped the ball on that do deserve some criticism.)

None of this, of course, is remotely similar to what Tom DeLay is accused of. DeLay's problem was not late reporting, but rather falsely misreporting payments (both in size and source) to conceal that he was receiving payments from lobbyists, which is prohibited under House rules. (Moreover, though expensive trips are not per se prohibited, it is worth noting that even the part of DeLay's Scotland trip that he chose to report exceeds that of any trip made by any of the 43 late reporters.)

Nice spin, but Mr. DeLay continues to stand alone.

Kos thinks the filibuster deal made the best of a bad situation by preserving the filibuster for the Supreme Court nominee(s) we're likely to see this year. Liberal Oasis thinks it's a terrible deal because, while the filibuster is preserved in name, the Dems. have effectively agreed not to use it and the GOP has retained the right to go nuclear anyway -- thus leaving us with the same bad judges but without the moral high ground. (And that was even before Frist said that "[t]he constitutional [sic] option remains on the table ... I will not hesitate to use it if it's necessary".) Drum and Atrios have conflicting thoughts.

They're all right:

This deal does buy us something for the Supreme Court. The filibuster is available for the coming Supreme Court nominee. Yes, we have agreed to filibuster only in extraordinary circumstances, but frankly, to make a filibuster stick for a Supreme Court nominee we would have had to be able to make the case that the nominee was extraordinarily inappropriate anyway. Without that, it is questionable we could have avoided cloture anyway and the political price would have been significant. I also don't buy the argument that by letting Owen and Brown through we have given up the right to argue that the circumstances are "extraordinary" simply because a nominee's views are similarly extreme. The agreement is clearly divided into two distinct parts -- an ad hoc agreement on the present nominees, and the "extraordinary circumstances" agreement for the future -- and therefore takes no position as to whether the current filibusters would meet that standard. Moroever, a Supreme Court nominee would necessarily be held to a higher standard than a Court of Appeals nominee.

That said, Bush is obviously on a collision course with appointing an extremist that will be a poster child for extraordinary circumstances. His problem is that to keep his base happy he needs to do more than appoint a right-wing ideologue. He needs to appoint a right-wing ideologue with a track record because the Christian right is scared to death of another Souter, or Kennedy, or O'Connor. I'm betting that track record will be the basis of a filibuster, but either way we have to make the case to the American people that the nominee is unqualified. If we can do that, Frist's threat will be empty, and if we can't, the filibuster wouldn't help anyway.

On the lower courts, on the other hand, this gives Bush pretty much free reign. Unlike the Supreme Court, where the GOP will have a hard time arguing that one filibuster is a breach of the agreement -- given the agreement's deference to each Senator's "discretion and judgment" -- a pattern of filibusters may well give the GOP good cover to break the deal. Since we've only filibustered 7 out of Bush's 200+ nominees in the last 4+ years, and they consider that excessive, I think it's safe to say that they're not planning to tolerate more than 1 or maybe 2 over the next 18 months without going nuclear again.

On the whole, the importance of lower courts gets slighted in discussions of judicial nominees. Still, I'm inclined to think we get the better of this tradeoff. For the lower courts, the GOP gets three terrible judges now plus probably 2-5 more that would have been filibustered over the next 18 months had we won the procedural vote. That's bad, but unless we start winning elections it really doesn't matter. The Supreme Court, on the other hand, is at a pivotal moment that may set its course for most of our lifetimes. Clarence Thomas has been on the Court for 13 years, and still has 28 years to go until he's Stevens's age. The filibuster is a tool worth having for that fight.

Anne responds in comments to my earlier post on female orgasms:

A long time ago when I was an undergrad, Dr. Lloyd presented her work in a seminar I was taking. I found it quite compelling but a loud man in the class pronounced it "absolutely absurd!"

The issue is: most women don't have orgasms during actual intercourse. It usually requires a different type of stimulation for a women to climax, a type of stimulation that doesn't directly lead to babies. Thus the question of why women have orgasms.

I can attest that women do not necessarily seek sex for orgasms; sometimes they just want babies. I happily have had three (babies, that is).

I should say that I did not mean to claim that women necessarily seek sex for orgasms. In fact, part of the motivation for the post was to question the Times' (and others') unchallenged assumption that orgasms are necessarily the reason why men seek sex. I think women (and men) have sex for a variety of reasons, of which having orgasms is one.

I'm not sure if this was Anne's point, but I also did not mean to say that Lloyd’s book was absurd. While I am skeptical of Lloyd's ultimate conclusion (that female orgasms serve no evolutionary purpose), I agree with her that science in this area is likely to be distorted by researchers’ assumptions and that much of the research out there was in need of a good debunking.

My point was a simpler one and need not apply to every woman -- that on a population basis the existence of female orgasms was likely to increase sex-seeking behavior, and that this was an evolutionary reason for them (whether or not there are others). I could imagine that happening in a variety of ways, from having intercourse for the specific purpose of having an orgasm, to having intercourse because one once had an orgasm during intercourse and as a result has generally more positive feelings about intercourse, to having intercourse because one has positive feelings about a partner with whom one has experienced orgasms, even if the orgasms were not during intercourse, to having intercourse because one had experienced orgasms during masturbation and was curious about having a similar experience during intercourse, and so on. (Having gone back to Lauren’s original post, I see that my point is similar to that of UC Davis Prof. Sarah Blaffer Hrdy, who argues that her theory that “the female orgasm evolved to encourage females to mate with numerous men ... would still hold if females supplemented coitus with self-stimulation and other sex play”).

Related Post: Why Is This Complicated?

Lauren brought to my attention this book arguing that "evolutionists are stumped" as to the evolutionary explanation for the female orgasm.

I find the assumptions in the media and scientific treatment of this issue very strange (to be clear, I don't mean Lauren here). The Times, and this is typical, takes it for granted that the purpose of the male orgasm is obvious:

Evolutionary scientists have never had difficulty explaining the male orgasm, closely tied as it is to reproduction.

At the same time, scientists are going through all sorts of gymnastics to explain the female orgasm:

Among the theories that Dr. Lloyd addresses in her book is one proposed in 1993, by Dr. R. Robin Baker and Dr. Mark A. Bellis, at Manchester University in England. In two papers published in the journal Animal Behaviour, they argued that female orgasm was a way of manipulating the retention of sperm by creating suction in the uterus. When a woman has an orgasm from one minute before the man ejaculates to 45 minutes after, she retains more sperm, they said.

All of these analyses simply take it as a given that male ejaculation (which is necessary for reproduction) and male pleasure (which is not) are just logically inseparable, rather than themselves the product of evolution. Presumably, evolution could have evolved pleasureless ejaculation if it somehow aided reproduction, and presumably pleasure evolved because it made men seek sex. Indeed, none of the reporting seems to view the idea that male orgasms encourage men to have sex, and that encouraging sex promotes reproduction, to be in any way problematic.

So, why is the same explanation not applicable to women? Why the gymnastics? Isn't it a sufficient explanation of female orgasms that they encourage women to seek sex?

To be clear, a lot of things about human evolution are complicated and subtle, and I have no problem with studying things like the suction theory to better understand how humans work, but this uncritical dichotomization of male and female orgasms frankly escapes me.

AP:

The Indiana Parole Board voted unanimously Friday against a death-row inmate's request that his execution be delayed so he can donate part of his liver to an ailing sister.

The board recommended that Gov. Mitch Daniels deny Gregory Scott Johnson's request for clemency or a 90-day reprieve from his execution, scheduled for early Wednesday....

Julie Woodard, Hutslar's great niece, said she did not wish any harm to Johnson's sister. But if Johnson were allowed to donate the liver, she said, "He is going to be remembered more as a hero for saving his sister than for this brutal murder."

Sounds like Ms. Woodard is getting two eyes for her great aunt's eye....

Over at Baseball Prospectus, Clay Davenport calculates that the Orioles have a 60% chance of winning the A.L. East, while the Yankees have a 10% chance.

What?!?! The Yankees are 10-1 longshots because they're 5 games out in May? You've got be kidding me, right? Well, Davenport reports ($) today that his model actually corresponds quite closely with historical outcomes. (Davenport ran his model for all past seasons as of this time in May, compared his predicted first place finishers with actual first place finishers, and found a close correlation.)

If you think about it, it's not that surprising after all. The fact that a team is 5 games back in May is evidence that the team is worse than the teams ahead of it, and even for evenly matched teams 5 games is a fair bit to make up over 3/4 of a season.

But if you go out to the game tonight, you'll have a hard time convincing a single fan that the Yankees are 10-1 longshots.

I fear that tells us something about why the reality-based community isn't running anything these days.

When Mary and I were discussing the nuclear option yesterday, I said that Frist may not have the votes now, but he will have them by next week, by bribery if necessary. Somewhat dejectedly, I also predicted that Santorum was the only Senator who would lose his seat over this.

On the bright side, Santorum seems to be trying to make my prediction come true:

What the Democrats are doing is "the equivalent of Adolf Hitler in 1942 saying, 'I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine.' This is no more the rule of the senate than it was the rule of the senate before not to filibuster."

Volokh's original post concerning marital names changes has led to a lot of discussion, including Amanda's:

My reasons for opposing name changing aren't even that deep--it's a simple matter of "what's good for the goose is good for the gander". The day that men and women who are getting married decide which of their last names to take with a coin toss is the day that I think that I think that it's not a sexist decision. But as it stands now, women change their names to their husbands' and the vast majority of men have never even considered the possibility of taking that burden on themselves. (Emphasis added.)

Amanda's comment reminded me of our personal experience with the gender police -- in this case the "liberal" New York Times. When we got married back in the early '90s, we submitted a draft wedding announcement to the Times. The Times actually fact checks these announcements and made a number of calls to confirm the accuracy of various facts, such as our parents' employment.

Our version of the draft stated that both Mary and I were keeping our own names, a factually accurate statement and one that Mary and I both felt was the correct way to address the issue since we did not accept the assumption that this is a decision relevant only to women. Despite its accuracy, the Times refused to print it in that form and insisted on writing only that Mary was keeping her name, allowing its readers to be undisturbed in their assumption that of course I was keeping my name. The Times has improved some since then, notably by including announcements for same sex couples, but on this issue it appears the style book is still the same.

Related Post: A Rose By Any Other Name, Marital Edition

A new study reports that 98,000 Americans die per year due to medical malpractice.

Even if you believe insurance industry figures that malpractice litigation increases health care costs by $60 billion per year, that is just over $600,000 per person killed by malpractice -- and of course the figure is really much lower because we know that malpractice also seriously injures people who nonetheless survive.

Even $600,000 is typically far less than our society typically allocates to safety. In fact, analysis of overall spending on safety suggests that we typically spend on the order of $5 million or more per life saved. In other words, the existing tort system is substantially under-deterring malpractice.

Juan Non-Volokh sees an inconsistency that does not exist between the New York Times' approval in 1995 of Tom Harkin's proposal to restrict filibusters and its disapproval now of Bill Frist's threat to end the filibuster for judicial nominees.

There is no inconsistency because the problem with the Republican effort to end the filibuster is not substantive, but procedural. In particular, the filibuster procedure has been amended several times (1917 (cloture instituted), 1949 (cloture made applicable to nominations), and 1975 (votes necessary for cloture reduced)). Each of those changes was effected in accordance with Senate rules -- as Harkin proposed to do in 1995.

Frist's plan, however, is simply to ignore the Senate rules -- which in essence require a two-thirds vote to change filibuster rules -- and then count on the fact that the courts will consider that decision non-justiciable. While one could make plausible arguments both for and against the constitutionality of Frist's plan, it is surely dishonorable conduct that ill becomes the party that fancies itself the defender of the "rule of law". Even if one were to conclude Frist's plan is entirely legal, that hardly places his machinations beyond condemnation. Indeed, it is precisely this procedural perfidy that the Times objects to:

Senator Frist, with the help of Vice President Dick Cheney, would sidestep a Senate precedent requiring two-thirds' approval for a rules change and instead have a simple majority strike down the filibuster on judicial nominees. He promises that there would be no effect on other legislation, but the damage would be incalculable. Democrats are already vowing procedural paybacks and gridlock.

A few moderate senators from both parties - realizing that the Senate's prestige is at stake, as much as its history - are seeking a compromise. We hope President Bush will step in to help find a solution. Otherwise, warns his fellow Republican Arlen Specter, chairman of the Senate Judiciary Committee, the result will be the harmful crimping of minority rights in a proud deliberative body and "a dark, protracted era of divisive partisanship."

UPDATE: Non-Volokh responds that the Times has "indeed changed her editorial position on the merit of filibusters" from "negative feats of endurance" and "the tool of the sore loser" to "part of the Senate's time-honored deliberative role and of its protection of minority rights" and "a necessary weapon". There is some merit to this observation, but I think the procedural context is far more important than Non-Volokh acknowledges. The context of the Harkin proposal in 1995 was that it was an offer by a Democrat that was not in the Democrats' short term interests but was in the best interests of the Senate -- and that was a big part of why the Times found it praiseworthy:

Mr. Harkin says reasonably that there must come a point in the process where the majority rules. This may not sit well with some of his Democratic colleagues. They are now perfectly positioned to exact revenge by frustrating the Republican agenda as efficiently as Republicans frustrated Democrats in 1994.

Admirably, Mr. Harkin says he does not want to do that....

The Harkin plan, along with some of Mr. Mitchell's proposals, would go a long way toward making the Senate a more productive place to conduct the nation's business. Republicans surely dread the kind of obstructionism they themselves practiced during the last Congress. Now is the perfect moment for them to unite with like-minded Democrats to get rid of an archaic rule that frustrates democracy and serves no useful purpose.

Surely, Mr. Harkin's spirit of bipartisanship and accommodation praised by the Times is the very opposite of the spirit of Mr. Frist's plan that it condemns today.

Related Posts: Filibuster Follies, Part III; Filibuster Follies, Part II; Filibuster Follies

Eugene Volokh is seeking comments from women who changed their last names when they married as to why they chose to do so.

One theme that came up more than once in his comments, and that I've often heard in "real life", is that parents having the same name is better for the children.

I don't presume to tell people what they should or should not do with personal decisions, but (in case any readers are thinking about this issue) I do think it's worth sharing my own experience that, as far as I can tell, it doesn't make any difference as far as the kids are concerned. Mary and I have one little Vincy and one little Garth, so each is not only "different" from his brother but from one of his parents. They've certainly expressed interest in this constellation of names from time to time, but I've never sensed that either of them ever had the slightest sense of not belonging or that we were not really a family or any of the other things that the Volokh commenters seemed concerned about. Moreover -- and I will say I was actually a little surprised by this -- it has made almost no difference to other people either. We joke about Mary's mom addressing letters to our younger one as Vincy (she eventually fixed that on her own) or the bemused comments of one pediatrician's receptionist, but for the most part it does not even register with anybody.

I suspect that, for most people, the decision will mean a lot more to the couple involved that to their children or anyone else, so I guess my advice to anyone considering whether to change her (or his) name is to consider, and discuss, honestly how each of you really feel about it.

Today, in Granholm v. Heald, the Supreme Court invalidated state laws that discriminate against out-of-state retailers selling wine direct to consumers by mail order. The Court held that the states' interests in preventing underage drinking and collecting taxes were not sufficient to protect their anti-importation laws from attack under the so-called "dormant" Commerce Clause (which, generally, prohibits discrimination against out-of-state businesses). While this would ordinarily be an easy case, it was a close case because the Twenty-First Amendment (ending prohibition) arguably authorized this kind of statute.

What I find especially interesting is the light this decision casts on the doctrine of "originalism", the conservative legal doctrine that purports to ground constitutional interpretation in the original meaning of the Constitution. Usually, when we talk about originalism, we are talking about 1789 and the original Constitutional convention. In this case, though, the Twenty-First Amendment was ratified in 1933, so the original meaning should be easy to discern, no?

Apparently not. The originalists split on this one. Both Rehnquist and Thomas dissented, relying on State Bd. of Equalization v. Young's Market Co., 299 U.S. 59 (1936). In Young's Market, Justice Brandeis rejected a similar argument to the one that prevailed today in strong language that would seem familiar if written by any of our modern originalists:

"The plaintiffs ... request us to construe the Amendment as saying, in effect: The State may prohibit the importation of intoxicating liquors provided it prohibits the manufacture and sale within its borders; but if it permits such manufacture and sale, it must let imported liquors compete with the domestic on equal terms. To say that, would involve not a construction of the Amendment, but a rewriting of it...." (Quoted in dissent of Stevens, J.; emphasis added).

Yet in the face of this clear understanding of the "original" meaning by one of the Court's preeminent jurists only three years after the fact, Scalia joined the majority opinion that dismisses Young's Market on the theory that there was no "consensus" supporting this view and that more recent cases have held to the contrary.

My view is that, on the merits, Scalia got this one right -- the statutes were correctly held unconstitutional. However, when the Court's originalists cannot agree on the meaning of a Constitutional amendment on one narrow topic ratified 72 years ago, it should give everyone pause in trusting originalism as the guiding principle in interpreting the enormously complex enterprise created by the original Constitution over 200 years ago.

Related Post: When I Say an Ice-Cold Bud Light, I Mean an Ice-Cold Bud Light

The AP reports:

As states struggle to cut Medicaid costs, New Hampshire has proposed going further by making the poorest of the poor --— even families with no income at all —-- contribute to their coverage....

Under the New Hampshire proposal, families with no income would have to pay $10 a child per month, up to a maximum of $30. Families who have some income but are still in the lowest category would pay as much as $20 a month, for a maximum of $60.

At least it's not like health care for kids is a necessity or anything, and having no income shouldn't prevent folks from pulling together 40120 more of these a month:

John Dean has an excellent piece today debunking the Republican lie that no President other than Bush has had his judicial nominees filibustered.

As a side note, I think it's worth noting the intellectual gymnastics Senator Hatch goes through to try to square this obvious lie with history. Hatch argues that the filbuster of Abe Fortas in 1968 doesn't count because he would have lost on a straight vote in any case. Dean's piece debunks this argument as a matter of history -- in fact, there were 22 uncommitted Senators, with the result that we don't know for sure how Fortas would have done on a straight vote.

I'd also like to take a second to point out the logical incoherence of Hatch's argument. Essentially, he argues, filibusters are OK if and only if the nominee is opposed by more than half the Senate. In other words, filibusters are perfectly alright, but only in the one situation where they are completely unnecessary.

Please.

Related Posts: Filibuster Follies, Part II; Filibuster Follies

Remember the "underpass Virgin"? AP reports:

A man was arrested for allegedly scrawling "Big Lie" over a stain on an expressway underpass that some believed was an image of the Virgin Mary.... Authorities charged Victor Gonzalez, 37, of Chicago with criminal damage to state supported property, a misdemeanor.

I would think this prosecution violates the First Amendment, which requires that enforcement of laws like this has to be "content neutral" -- meaning that it's OK to prosecute Gonzalez for vandalism, but only if the prosecution is based on the fact that he wrote on public property, not on the words he chose to use. Somehow, I'm skeptical. Would he have been prosecuted if he had written "Praise Mary" or the like? I doubt it. In fact, if you review this Yahoo! slideshow of the underpass Virgin, you will see the tributes brought by believers, all which clearly violate laws against littering (e.g., photos 1 and 4), yet there were no prosecutions. In fact, those same photos show tributes affixed to the wall, while others have written on the wall (e.g., photos 3, 7, 10 (which includes a post-"Virgin" date of 4/10/05)), exactly the same conduct with which Gonzalez is charged.

With all these vandals running around, why is only Gonzalez charged? I think the answer is obvious -- and unconstitutional.

Related Post: The Death of Reason

I'm sure you've all heard by now that a marching band in Michigan has been prohibited from playing the instrumental of "Louie, Louie" because of its allgedly obscene lyrics.

For your amusement, the Smoking Gun has compiled the FBI's file on this matter -- they actually conducted a multi-year investigation back in the '60s -- including the outraged parent's letter that started the investigation and included the priceless quote that is the title of this post.

I rarely disagree with Lauren, but I do disagree with her conclusion, inspired by Burning bird, that blogrolls are counterproductive:

1. Blogrolls are a critical way for readers to find interesting blogs. The first blog I ever discovered was Liberal Oasis, which I stumbled upon through a web search. Had it not been for LO's, er, liberal blogrolling policy, I might not have found many excellent sites. Indeed, LO became "my" blogroll until we started Stone Court (while, if I recall, Mary used Atrios for this purpose.) From time to time, I will wonder, "What does Lauren (or whoever) like to read?", and check out some of her links. Moreover, even after I've found something, a blogroll may be a good portal -- for example, since we haven't updated our blogroll in a bit I will often check out Majikthise through Mouse's blogroll. The fact that Mouse Words still gets 700 hits per day when Amanda is now posting on Pandagon suggests that a lot of people use her blogroll the same way. I know that we get regular visitors from blogrolls.

2. While the Ecosystem methodology is flawed, opting out of it will harm, not benefit the left, including feminists and other marginalized groups. The right already does a much better job of promoting itself with links than the left. Consider the top 10 by links. For each, I have listed in parentheses their ranks by traffic.

1.Instapundit.com (3)
2.Daily Kos (1)
3.Michelle Malkin (10)
4.lgf: reasonably competent computer enthusiasts (7)
5.Power Line (8)
6.Talking Points Memo: by Joshua Micah Marshall (NO DATA)
7.Captain's Quarters (18)
8.Eschaton (5)
9.The Volokh Conspiracy (24)
10.DRUDGE REPORT 2005 (26)

In every single case, the conservative sites do better by front-page links than traffic, and in every single case (where there is data) the liberal sites do better by traffic than links. For the traffic stats, the top 10 is filled in with apolitical blogs and the liberal Wonkette. All of that says to me that we are doing a poor job of promoting each other, and that further opting out of the system is going to do more harm that good.

3. Moreover, as I understand it, blogroll links are relevant not just for NZ Bear and his ilk, but also the mainstream search engines. We get a fair share of our traffic from search engines -- almost entirely, I would assume, from people who have never heard of Stone Court before. I fail to see how making ourselves less relevant to Google will advance Burningbird's goal of promoting "new voices who may write wonderful things".

As I discussed here, the Republican claim that no judicial nominee has ever been filibustered is flatly false.

How, then, to explain this insert in the AP's filibuster FAQs?

Q: Is this the first time judicial nominees have been filibustered?

A: It depends on who you ask. Republicans say filibusters have never been successfully used to block judicial nominees from confirmation who had majority support. Democrats point to Supreme Court Justice Abe Fortas, who was blocked from becoming chief justice in what the Senate historian's Web site calls "the first filibuster in Senate history on a Supreme Court nomination." The attempt to force a vote on his nominaton drew fewer than 50 votes. They also say at least two of Clinton's lower court judicial nominees were filibustered for years by Republicans, although they were ultimately confirmed.

No. The answer is no. Some people say the moon is made of green cheese, but the answer is still, "No, it's not." It's pretty sad that the AP is afraid to report historical fact without fear of offending the ruling party.

Eric Boehlert has an excellent, and unflattering, profile today on Priscilla Owen, Bush's nominee for the Fifth Circuit who, Boehlert believes, is likely to be the nominee to "detonate the 'nuclear option'".

The theme of Boehlert's piece is that the opposition to Owen (who was rejected by the Judiciary Committee in the last Congress and now renominated) will focus on Alberto Gonzales' criticisms of Owen while Gonzales served with her on the Texas Supreme Court. He quotes Ralph Neas, head of People for the American Way as saying, "We're going to let Alberto Gonzales be our best witness." Boehlert continues: "it was Gonzales' now infamous putdown accusing Owen of 'an unconscionable act of judicial activism' that has hung like an anchor around the judge's neck". Boehlert reports on, but dismisses as "just not true", conservative arguments that Gonzales was not in fact referring to Owen when he made that statement.

While it would be convenient to believe that Boehlert is right, I am not convinced the evidence (discussed below) is nearly as cut-and-dried as he suggests. This is strategically important because putting too many eggs in this one basket is highly risky -- if our central charge against Owen is based on an ambiguous quotation that the author can plausibly explain away, the opposition to her nomination will be greatly weakened (just as the Bush National Guard story went away after one document relied upon by one news agency proved to be fraudulent).

First, the context and the quote. In In re Doe, 19 S.W.3d 346 (Tex. 2000), the Texas Supreme Court reversed a lower court ruling refusing to grant a minor a judicial bypass to have an abortion under Texas' parental notification statute. There were three dissents (Hecht, Owen, and Abbott). Gonzales, in a separate concurrence, wrote:

The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof. I respectfully submit that these are policy decisions for the Legislature. And I find nothing in this statute to directly show that the Legislature intended such a narrow construction. As the Court demonstrates, the Legislature certainly could have written section 33.033(i) to make it harder to bypass a parent's right to be involved in decisions affecting their daughters. See 19 S.W.3d at 350. But it did not. Likewise, parts of the statute's legislative history directly contradict the suggestion that the Legislature intended bypasses to be very rare. See id. at 352 (detailing legislative history). Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism. As a judge, I hold the rights of parents to protect and guide the education, safety, health, and development of their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so. (Emphasis added.)

It is certainly plausible to conclude that Gonzales was referring to Owen here. As Boehlert points out, he begins with "[t]he dissenting opinions", plural. Moreover, he refers specifically to Justice Hecht in the following paragraph, further suggesting that he meant all of the dissents in this paragraph. Finally, the key sentence refers to "constru[ing] the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute"; the skepticism with which Owen describes Jane Doe's claim makes it plausible, though hardly inevitable, to conclude that Gonzales thought Owen was doing just that.

In this regard, however, Boehlert quotes Owen out of context. He argues that the statement "'Jane Doe did not receive adequate counseling about alternatives to abortion and has not given thoughtful consideration to those alternatives' ... has nothing to do with concerns about an appellate court overstepping its bounds". In fact, the context makes clear that Owen's point in this statement is about the appellate function -- namely about whether an appellate court may reverse when (in Owen's view) there is "some evidence" to support the decision:

The Court has forsaken any semblance of abiding by principles of appellate review. I would affirm the judgment in this case because there is some evidence that (1) Jane Doe did not receive adequate counseling about alternatives to abortion and has not given thoughtful consideration to those alternatives....

Moving on, here's Gonzales' explanation of what he meant (quoted in a "Free Republic" forum linked to by Boehlert):

My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht; it was actually focused at me. What I was saying in that opinion was that, given my interpretation of what the legislature intended, by the way the words that they used in terms of having a minor not totally informed or well informed but sufficiently well informed and the structure of the act, it was in my judgment that the legislature did intend the judicial bypasses to be real. And given my conclusion about what the legislature intended, it would have been an act of judicial activism not to have granted the bypass in that particular case. If someone like Judge Owen in that case reached a different conclusion about what the legislature intended, it would have been perfectly reasonable for her to reach a different outcome. But as to the words that have been used as a sword against Judge Owen, let me just say that those words were related to me in terms of my interpretation of what the legislature intended....

My reading of the entire Doedecision is that this explanation is actually quite plausible. To understand why, you need to understand the level of vitriol in all of the opinions in this case is extraordinarily high, with a great deal of it directed against Gonzales personally, as well as the rest of the majority. To give a sense of the tone, here are some excerpts from Justice Hecht's dissent:

The Court's utter disregard for the legislative history cited by fifty-six legislators in support of their view of the Parental Notification Act is an insult to those legislators personally, to the office they hold, and to the separation of powers between the two branches of the government....

The Court adamantly refuses to listen to all reason, and the only plausible explanation is that the JUSTICES who comprise the majority--CHIEF JUSTICE PHILLIPS, JUSTICE ENOCH, JUSTICE BAKER, JUSTICE HANKINSON, JUSTICE O'NEILL, and JUSTICE GONZALES--have resolved to impair the Legislature's purposes in passing the Parental Notification Act, which were to reduce teenage abortions and increase parental involvement in their children's decisions....

To this JUSTICE GONZALES adds his personal testimony:

While the ramifications of [the Parental Notification Act] and the results of the Court's decision here may be personally troubling to me as a parent, it is my obligation as a judge to impartially apply the laws of this state without imposing my moral views on the decisions of the Legislature....

We are not judicial activists, say the JUSTICES in today's majority. Surely they know that remonstrances like these do not allay doubts but only exacerbate them. "The lady doth protest too much, methinks."...

The Court's deviation from its usual procedures demonstrates again its determination to see to it that minors' applications for abortions without parental notification are quickly and summarily granted. (Emphasis added.)

In context, it seems to me, the better reading of Gonzales' concurrence is that it is intended to defend himself from the charge that he was deviating from sound statutory construction to advance the cause of abortion rights, a charge that Gonzales unsurprisingly wished to rebut as he saw his benefactor on the verge of winning the White House. This defensive posture explains his "testimony" that as a parent he favors parental notification. It explains his otherwise irrelevant statement at the outset of the opinion that the Court rejected four other requests for parental notice bypasses that came before it in the same time period. And it explains why he may well, as he claims, have been referring to himself in the statement about judicial activism -- essentially, I would have been with you but I couldn't because that would be judicial activism. Gonzales' explanation is also supported by the fact that he goes on in the next two sentences to explain what he can and cannot do as a judge, and concludes the paragraph, "I am compelled to grant Doe's application." (Emphasis added.)

Is there still an implication that ruling the other way, as Owen would have, is inherently judicial activism? Sure. But, it's not unavoidable. Gonzales is saying in effect that he will not change his interpretation of a statute to suit his politics. He may be implying that Owen is doing just that, but his point would have been equally logical if he simply believed that Owen was honestly interpreting the statute in a different way.

Bottom Line: Gonzales' statement may cast a poor light on Owen, but it is hardly the slam dunk some folks seem to believe, and we should be careful to put this statement in the context of her larger professional (or unprofessional) conduct, rather than relying on it to be an "anchor" all by itself.

Coming Soon: The good news is that there's lots more to criticize Owen for, even just in Doe itself.

Ann Bartow reports that South Carolina is prosecuting a 22-year-old migrant farm worker who used drugs sent to her by her sister in Mexico to induce an abortion. The woman, who has three young children and has not yet been convicted of anything, has already spent four months in jail. She has been released, but faces a two year sentence if convicted of inducing an abortion. Family values, indeed.