Goodbye Miers Hello Scalito

President Bush's pick of Samuel Alito to replace Sandra Day O'Connor represents an important shift to the right. O'Connor was conservative on many issues, but less conservative on others. I haven't done my homework (yet) but Alito seems to be a more consistent conservative. Perhaps McConnell would have been better, just because he has so much support from academic liberals (which would make filibustering him a real political disaster), but Alito has gotten serious praise from conservatives and disdain from liberals. For the time being that's a good enough indicator for me.

Should We Encourage Women to Work?

The Becker-Posner blog has an interesting discussion (here and here) about childcare subsidies and government sponsored work leave. Both Becker and Posner agree that the government should not be involved in the child care market, but, at most, should provide vouchers for low-income families to use in the private child care market.

They also concur on the point that the government should not sponsor year long work leaves for parents because the underlying reason for the government to encourage such leaves (it will promote childbearing) does not lead to the conclusion that the government should help parents stay home with their children; rather the government should provide allowances for each child after a certain point (which is usually the second child on). Israel used to have such a law, but cut back on the allowance because they felt the government should not be promoting large families where the parents are incapable of supporting their children.

The most interesting statement in the discussion is Posner's remark that,

"[f]rom an economic standpoint, women should not be encouraged to enter the labor market unless the social value of their output in that market is greater than the social value of their household production, importantly including their contribution as mothers to their children's human capital (broadly defined)."

Posner is unsure whether that is the case (the feminist would criticize him for not asking the same question about men, but Posner the pragmatist realizes that the question is not applicable to men because they work at a much higher rate and are not likely to assume the dominant domestic role anytime soon) . Hence he would not support measures that encourage women to enter the workforce.

I'm not well-versed in the sociological literature but intuitively it would seem that women (or men) staying home with their children would be beneficial for the child. Oddly, this statement is disputed. A recent book by Mary Eberstadt, however, argued that many of the medical, social and psychological problems facing our children are results of "absent" parents, which includes deadbeat dads and moms who work and force their kids into day care.

I'm not sure I'd go as far as Eberstadt, but it's hard to deny that having a parent raise the chid is beneficial. But is it substantially beneficial to the extent that we should discourage mothers from entering the market or fail to provide incentives for them to enter it? A difficult question no doubt. I'd argue that we shouldn't discourage it, but we shouldn't encourage it either.

I'm not sure there's an answer for women in general. In individual cases it's certainly better for the mother to stay home because she will better serve society by raising her children full-time. In other cases society is better off with the mother in the workforce. The question has to take into account many factors, including the aptitude (both business and maternal) of the woman, the willingness of her husband to share the domestic duties, the availability of other family members to raise the child (grandmothers), etc.

Since the question is pretty much unresolved it would be better for the government to stay out of the debate and let the market work itself out. Without government encouragement some women will choose to enter the workforce, some will stay home, and some will do both (balance their schedule so they can spend as much time with their children as possible). That's probably a good thing.

Corruption in Our Government

I haven't been following the Valerie Plame case all that closely, so maybe my opinion is ill-informed. But with the news of Vice President Cheney's Chief of Staff Lewis "Scooter" Libby's indictment, the whole issue really has come front and center. Karl Rove avoided an indictment, which is great for Bush, I guess.

I've always believed that conservatives value the rule of law. We eschew excuses for law breakers, which is why most conservatives are law and order types.

If that's how we expect the average citizen to act, shouldn't we at least hold our leaders up to the same standard? We now have the Vice President's top aide, as well as the speaker of the house under indictment. And Karl Rove, the President's top advisor, is still in serious legal trouble.

Should we be happy Rove might get off? Isn't it ridiculous that there is even a question of law breaking at the highest levels of our government? Shouldn’t we expect our leaders to at least avoid legal problems?

Conservatives despised Clinton for (among other things) his constant abuse of the law. And granted he broke the law, which is worse than just his aide committing criminal misconduct. But Bush is supposed to be better than Clinton. We should hold Bush to a much higher standard.

Bush needs to make a point. I like Karl Rove as much as any Republican, because he's an excellent political strategist (excluding the Miers fiasco). But the President cannot be advised by someone who barely escaped indictment by the skin of his teeth. The institution of the presidency demands more. We must demand more. Rove must be dismissed.

Sheryl Swoops is Gay

Who is Sheryl Swoops? She plays in the WNBA. Yesterday she admitted she is gay, although she wasn't "born that way."

Whatever. Frankly I don't care because I don't care much for the WNBA. I guess it's important she came out and all. Some might believe this proves society has changed to the point where it will accept gay athletes. I don't agree because nothing that happens in the WNBA proves anything. Does anyone sensible really think that Swoopes' positive experience (the WNBA is like a sisterhood) indicates a remotely similar response in the NBA? Or the NFL? Anyone who thinks that just hasn't followed sports much over his/her life.

So why am I writing about this if I don't care? Because at least half the hits I got today came from people searching for information about Sheryl Swoops being gay. Not sure why my blog came up. But I just wanted to give them something to read.

Does Textualism Exist?

A while back I read Stanley Fish's article bluntly titled "There is No Textualist Position." For those of you who aren't familiar with Textualism, stated simply, it's a method of statutory (and constitutional) interpretation that looks to the "plain meaning" of the words.

Fish's thesis is that Textualism is a farce because words cannot have meaning by themselves since words cannot exist apart from intent. They have meaning because of the intent behind the speaker's words, not because they are impregnated with some objective significance. Dictionary definitions and modern day usages are nothing more than someone's intention placed into words; to ascertain the meaning, the person is just searching for the intent of the user.

Fish argues that a textualist is really an intentionalist, but doesn't know it. Since there is no "plain meaning" he's searching for intention. And he is therefore no different from any other intentionalist.

Justice Scalia obviously disagrees (given that he's a textualist and all). Scalia reviews a book on law and philosophy by Steven D. Smith. Smith contends, like Fish, that Textualism is a mirage. And like Fish, he uses an example that purports to show that plain meaning is impossible without context. Fish's example (it's shorter) is if he was driving with his father and came to a red light and his father told him to "drive through the light" he would be unclear whether he should run the red or drive straight when the light changes instead of turning. Since the words cannot properly inform us of intent, they have no plain meaning.

Scalia properly distinguishes between communication, which is "the question whether words convey a concept from one intelligent mind to another" and meaning, which is "whether words produce a concept in the person who reads or hears them." Communication is unclear because it is about conveying subjective intentions; meaning is more objective and focuses more on the listener rather than the speaker. Fish would claim that meaning is also about intent since the words the listener hears are interpreted based on the common usage and therefore based on someone's (probably many people's) intent when using them.

Assuming I understand Fish and Smith, I believe they are essentially correct, but making an irrelevant point. Textualism is a method of statutory interpretation. Even if words are nothing more than manifestations of some speaker's intent, they have taken on objective meaning through common usage. So when legislators use the words in a specific context (context is important to the Textualist), those words have an objective meaning, even if the Congressmen intended something else. And the plain meaning of the words as commonly used is all the textualist is after. So Fish's point is moot because the intention imputed into words through common usage took on objective meaning.

Calling For Israel's Destruction

Iranian President Ahmadinejad's statement calling for Israel to be wiped off the map has been condemned by countries all over the Western world. I realize these statements are merely lip service, but does anyone believe Iran would be facing such a hostile reaction if Israel had not disengaged? World opinion (at least in the parts that matter) is clearly shifting in Israel's direction. So much so that Saeb Erekat felt the need to defend Israel's right to exist. A benefit of disengagement? Absolutely.

Miers Steps Down

In a move welcomed by many conservatives, Harriet Miers withdrew her nomination this morning. While I was never as opposed to her as some conservatives (here, here, and here), I'm glad that she stepped down for a few reasons:

1) Choosing her was just a bad political move. Over the years Bush has shown solid political acumen. Choosing Miers just didn't make sense from a political perspective. He alienated his base in a time when his approval ratings were the lowest of his presidency.

2) She just was not good enough. Although I'm sure she was a good attorney, the Supreme Court is supposed to be the best of the best. There were many far more qualified conservative men and women to choose from. Now, hopefully, we'll get one.

3) Time for a battle over ideology. The Republicans have been accusing liberal judges of judicial activism. The Democrats have labeled many reasonable conservatives as "extremist" and "out of the mainstream." Well, if Bush picks someone good, we'll get to hear them explain why.

4) Bush can finally move the Court to the right. Miers' ideology was an unknown, and it was unlikely she'd be any more conservative than O'Connor. Bush campaigned on appointing judges in the mold of Scalia and Thomas, so now is his chance.

I also hope he forgoes his silly "let's pick a woman or minority" restriction, and chooses the best available candidate, no matter race, religion, gender, or sexual orientation.

Update: Here's the text of her withdrawal.

Simchas Torah is Boring

There, I said it. And I feel much better about it too. Of course, this post would be much harsher if it had been written at, say, 3 PM, after two and half hours of leining... in a shul with thirty people.

I'm not so into dancing in general. While I dance at weddings, I get bored quickly and frustrated when the dancing drags on and on. On Simchas Torah, this is precisely what happens. There is only a limited number of times someone can walk around in circles before he gets bored. And for me that happens very quickly.

I was in Lakewood (soon to be my parents' new home) for yom tov. I have to say emphatically that Flatbush is better (trust me, it pains me to say Flatbush is good for anything). The hakufos in the shul I davened last only and hour and half, but we still managed to finish at 3:30 (or so I assume since I left after kedusha because the guy was going all out with his Rosh Hashana adaptation). And the other shuls in the area ended just as late.

At least on Yom Kippur we're doing something the entire time. Knowing that there's a whole meal waiting at home, especially when the shul has nothing more than cake for kiddush, is really frustrating.

At one point (about 3) a kid told his father he was hungry. The father responded, "What do you want me to do? Throw up so you have something to eat?" Well, that was pretty much what the baal korei did (right before he had to carried home).

But on a good note, I met a guy who was exactly what Vince Vaughn would be if he was Jewish and frum. He was hysterical.

Update: Apparently not everyone agrees with me.

(Hat Tip: Yeshiva Orthodoxy)

Give Credit Where Credit is Due

This is old news, but worth mentioning. A UN investigation concluded that high-ranking members of the Syrian government and military establishment were behind the assassination of Rafik Hariri, the former Prime Minister of Lebanon. To anyone with even the most cursory understanding of the Lebanon-Syrian relationship, this conclusion is not surprising. Syria ruled Lebanon as a satellite state until its withdrawal last year, and nothing serious went on in the country without, at least, Syrian approval.

The surprise is the willingness of the UN to actually criticize a country not named Israel (or the United States). For years, the UN has served as a mouthpiece for dictators and thugs, spending most of its time attacking democracies for actions far more benign than those committed by genocidal states (Sudan comes to mind).

But coupled with the report on the Oil-For-Food debacle, maybe things are looking up. It would be great if the UN actually started to serve its purpose, which was to provide a forum for states to work out difficulties and for cooperation in solving global problems.

Two good omens in only a few months. I wonder if a certain US ambassador is having some influence after all.

What's Pragmatism?

Over the holiday, on advice of a friend, I started reading Richard Posner's Law, Pragmatism, and Democracy. For those of you who don't assiduously read everything put out by Posner, he is the chief justice of the seventh circuit Court of Appeals. He's also a prolific writer, puts out a book or so annually, writes numerous law review and other scholarly articles, and often pens op-eds or articles in more accessible works. And he mainains a blog.

I've only gotten through the first two chapters of his book, where he outlines pragmatism and distinguishes philosophical pragmatism with "everyday" pragmatism. In chapter 2 he lays out legal pragmatism, a theory to which he subscribes, and explains how it accords with everyday pragmatism more than its philosophical brother.

The first chapter is very interesting. I have little exposure to philosophy in general, so I was unaware that pragmatism was a legitimate form (I was under the impression that philosophy is about ascertaining metaphysical truths). So pragmatism intrigued me.

From what I can understand given Posner's understandably limited explanation is that pragmatism is about finding solutions to practical problems and looking for answers to questions that can be answered. In other words, rather than looking to determine if "truth" has a real meaning, we should spend our time trying to determine the answers to more practical issues.

One key point is that meaning should be decided based on what answer leads to the most favorable consequences. That's an interesting point, because something's meaning usually has no bearing on the consequences. As Posner points out, G-d's existence is not related to whether the consequences of his nonexistence are favorable.

I'll deal with this issue in later posts.

Update: Romach correctly points out in the comments that Posner is no longer the CJ.

Personal Reflections Day

Today, with classes over and a massive paper to research, I'm going to spend my blogging time dealing with nonlegal and nonpolitical thoughts I've had over the last few days. In other words, for one day, my blog will become Why Josh Can't Be Left Alone (just not as well-written of course).

Relationship Pitfalls

This is the post that's going to keep me off the Supreme Court (after Harriet Miers, anything is possible).

For whatever reason, G-d (or nature for the G-dless out there) decided that the optimal situation is for men and women to form a life lasting relationship, wherein they can build a family. But anyone who has ever met a member of the opposite sex knows that men and women are very different and have different expectations in a relationship. These differences create lots of tension and often cause a relationship to break down.

Dating is treacherous terrain. Even the most amicable breakups leave one or both of parties bewildered. The breakup, or the actions leading to the breakup, is usually confusing.

Men and women (or women and men for the feminists) are very different. A serious male/female relationship is tilted toward the woman. Why? Because these relationships are predicated on openness, on a willingness to talk about issues, problems, or whatever else is on the parties' mind, and about forging an emotional bond between the two. Girls have these types of relationships growing up. They talk about their feelings with their friends. They talk about their problems and difficulties. They sit up to 4 in the morning talking about something that's bothering them. Girls are therefore better suited to create an emotional relationship.

Guys do not do that. Guys rarely, if ever, talk to their friends about feelings. Guys are emotionally stunted because they do not acknowledge their emotions, unless that emotion is anger or frustration. So they have no idea how to be open, and they have no idea how to deal with relationship problems.

When two girls have a fight, they either work it out or they stay upset at each other. Guys don't. It usually boils over and everything goes back to normal (obviously this is not always the case). Guys focus less on their emotions, and they surely are not willing to share them with their friends.

So when a relationship has problems (which is inevitable) the girl is all ready to work them out. The guy, on the other hand, is clueless and has no idea what to do. So often times, he does something stupid, which only exacerbates things even more. And the girl has no idea why the guy is acting that way, so when they break up, she's at a complete loss.

But guys are not the only weird ones. Girls, because of their emotional openness, act less rationally. Yes, girls are completely capable of being rational and I've met quite a few in my tenure at law school. But girls allow their emotions to take over and stunt their rational thought. Guys generally don't (again, unless that emotion is anger).

Sometimes a girl will do something and the guy will just be left thinking, "what the hell is she doing?" The guy can't respond because he can't understand. The girl, who is no longer thinking rationally, expects the guy to comprehend. But he can't because there's no rational thought involved. Guys aren't mind readers. So, as a result, a serious miscommunication results, leaving both parties completely bewildered. And coupled with the guy's inability to talk about the problem, the rift only gets wider and the relationship breaks down, leaving two confused parties in its wake.

These problems are not really fixable. But guys and girls can try to deal with them. Guys have to try to become more open. It's not easy, but girls really do expect it and it's actually pretty normal. Girls have to understand that guys aren't mind readers. We can't figure out what you're thinking, especially when you aren't really thinking.

Law School and Yom Tov

This year is a bad year for students. Unless they go to YU or some other bad... I mean Jewish, school, they are going to miss a whole bunch of days because the Yom Tovim (holidays) come out right in the middle of the week. Basically, Orthodox Jews are going to have to miss seven days of class this year.

Law school is particularly hard. I never went to a serious university (like some people), but law school is infinitely harder than anything I experienced in college. We have to do a lot of work preparing for class and then there's class itself, where we learn relevant facts/ideas for the exams. So if someone misses a class, he has to make up the class. But if he misses the class and the day before the class, he probably has to spend an hour or so preparing for class, and then another making up the class itself.

That's a huge disadvantage. It's not like school gives off for the next week. On top of the regular workload, he has to make up preparation and class time for missed classes. Where do people find time to do this? It's not like we have Shabbos to catch up.

The truth is schools try to be accommodating. Fordham tapes its classes. Many teachers will understand and try to help out. But there's only so much the school can do, short of closing down for those days, a la Cardozo (where Orthodox students are also disadvantaged because their counterparts have two days off to study).

Our religion puts us at a disadvantage in many ways. This is one of them. I guess to be frum we have to make sacrifices.

Riding A City Bus

I hate taking buses. They are almost always crowded and for some reason I always have luggage. It's very difficult to weave in between people with a suitcase, backpack and suitbag or whatever else I have to carry to my Shabbos destination.

But riding the bus is always going to be annoying, unless the MTA decides to add more buses to each route. That, of course, would be expensive and cause the fare to increase. So I'll deal with discomfort if it saves me money (which is why I take public transportation in the first place).

But there are a few simple things bus riders could do to make everyone's ride just a little smoother:

Move to the back of the bus. It seems people are just dense. I can only get on the bus through the front door. So if people stand in the front, it makes it much more difficult for me to get on. Not only do I have to weave through people to get on, I then have to get by them to find a place to stand in the back. If people would just move to the back, more people could get on and more people would have a place to stand.

Get off through the back door. This one is really annoying. Look, I understand it the bus is crowded and it's hard to get to the back. But so many people just stand by the front and then get off the front door, not realizing that the whole bus is slowed down because they are too lazy to walk a few extra feet. People, the front door is only big enough for one person to get on or off at a time. If everyone got off the back, riders could get on as soon as the bus stops, instead of waiting for some people to get off. The whole bus route is slowed down because of these people.

Push the tape on the back door! My personal pet peeve. The tape on the back door opens the door automatically, and frees up people's hands to carry their belongings. So I'm carrying all this stuff, trying to do the right thing by getting off the back of the bus. The bus comes to a stop and the person in front of me pushes the door instead of pushing the tape. So when he pushes the door, he has to hold it open for me, which is nice, but then I have to contort myself, holding it open, so it doesn't slam in the next person's face. That's just stupid. People who don't know about the tape should be banned from bus riding (like the people on the subway who take the whole pole).

Anyone have anything else to add? Or am I the only weirdo who notices these things?

Some Good News Out of Iraq

The turnout today for Iraq's referendum on the new constitution is being estimated at more than 50%. That an extremely high turnout for a country where people literally have to risk their lives to exercise their right to vote. How many of us would risk our lives in a similar situation? Think about that the next time you decide voting is too burdensome.

There was also little violence compared to the election in January. That's another good sign. The process is working, and although it hasn't gone as smoothly as we hoped, we must follow through.

Nazis and Free Speech

The neo-Nazis wanted provoke a riot and they got it. A neo-nazi march in Toledo, Ohio went awry and rioting and looting broke out. The march was to protest "Black crime," and guess what? "Black crime" reared its ugly head.

Obviously I don't believe in something called "Black crime." Yes, the Black community has a higher rate of incarceration than any other ethnic group, but that's not because of some genetic predisposition. I'm only pointing this out because conservatives have been accused of racism, and I guess I had to make clear that I'm not a racist.

I'm deferring on the legal question of allowing the Nazi march to the Supreme Court. That said, the Nazis should be allowed to march. And, of course, they need to be afforded sufficient protection.

But cases like these reside on the outskirts of our freedom of speech. Speech is a fundamental right, without doubt. But sometimes free speech can injure others. The Supreme Court ruled in 1942 that the Constitution does not protect "fighting words" which are words by "their very utterance inflict injury or tend to incite an immediate breach of the peace."

We draw lines about the bounds of free speech all the time. People do not have the right to yell "fire" in a crowded theater; they do not have the right to libel their neighbors; and they do not have the right to propagate obscenity. Speech that injures falls within these exceptions of unprotected speech. If any words inflict injury, it's neo-Nazi speech.

But can we ban speech merely because it's injurious? Where exactly do we draw the line? What about someone preaching about the benefits of Communism? Or someone calling for the conversion of our Republic to a Sharia-run Islamic state?

Clearly speech calling for the end of "Black crime" is worse than the above examples. It's an attack on an racial group, an attack that implies that the group is predisposed to commit violence. Blacks have heard this before, and such an attack certainly heightens tensions. This is not to excuse the riot, and the Black community gets provoked way too easily (check out Crown Heights, 1991).

But, we as a society, must decide when free speech violates someone else's rights. I'm not sure this is such an example, but those cases do exist and we must recognize them.

Update: I'm not really sure how protesting a neo-Nazi march justifiably leads to burning a bar to the ground. This situation turned out to be the worst case scenario.

Should Noncitizens be Deported for Criminal Behavior?

I'm taking an immigration law class, so I've been thinking about this issue. Does it make sense to deport noncitizens for committing crimes?

Deportation on criminal grounds makes sense for two reasons: First, it serves a deterrent, an added form of potential punishment for the commission of a crime. Second, it removes potential criminals from our midst.

But only certain crimes should be grounds for deportation. Aggravated felonies should apply for both of the above reasons. While prison terms are deterrents, the added deterrent of being removed and sent back to the criminal’s country of origin (a place he would probably not want to be as much as here) would likely deter more criminals from committing these crimes.

Moreover, as the Supreme Court recognized in Ewing v. California, often times violators of felony laws are recidivists who will likely commit the crimes again. So we can remove these public threats without having to bear the cost of housing and feeding them.

Obviously there is a countervailing consideration. Immigrants are usually here for reason. They provide a benefit to society. If we deport them we lose that benefit. But where the crimes committed are heinous enough to make them a public threat, the costs outweigh the benefits and deportation seems justified.

Lesser crimes, including “moral crimes” are less of a basis for deportation. While society clearly has an interest in deterring these crimes (otherwise they would not be on the books), the cost of removing people for minor crimes might be too great. Certainly noncitizens would be less likely to commit these crimes if the punishment was removal. But these crimes are considered minor for a reason; we do not feel they are sufficient breaches in public conduct to warrant extreme punishments.

These crimes, due to the lack of sufficient deterrent, are probably more common than more serious crimes. So deportation would not serve the second ground, that of removing dangerous criminals from out midst because they are probably common anyway and will likely be commited by others.

So it would seem the benefit they provide to this country would likely outweigh the cost of removal. We do not need strong deterrents for these crimes because they aren’t that bad, nor do we need to remove a threat.

It would therefore seem rational to deport only for serious felonies and not minor crimes. Where we draw the line is an interesting question, but it probably should be somewhere along the lines of the misdemnear-felony dichotomy contained in our criminal laws.

Overview of Seven Noahide Laws

I was randomly searching the web to determine the veracity of the live monkey brains story. Apparently in some Asian countries it's a delicacy to eat the brains of a monkey while it's still alive. Basically the monkeys are placed under a table with a hole in middle and their head sticking out of that hole. The top of the skull is then cut off and the monkey's brain is eaten while it's still alive. This is arguably the cruelest practice I've ever heard of (at least to animals and for no real benefit).

But while searching I found this article by Irene Merker Rosenberg, a law professor at the University of Houston Law Center. It details the seven Noahide laws, and especially focuses on the requirement to set up courts. It also, in some cases, compares Jewish law to Noahide law. From what I can tell the article is on target. Nothing too deep, just an overview.

Liberalism Run Amok

A York University professor has taken it upon himself to make York more egalitarian. The school cancels class on Rosh Hashanah, and he believes that's unfair, so he has decided to cancel his class on all religious holidays. He believes that canceling class on Rosh Hashanah, but not on other holidays, is "illegal, discriminatory and arbitrary."

York is in Canada, so I have little to no exposure to their constitutional structure or their legal system. Therefore York's actions might very well illegal. However, I highly doubt some history professor figured out a violation in the country's laws while the legal scholars looking for these types of fights are completely clueless. I mean, if the University of Michigan decided to cancel classes for Ramadan, the ACLU would be down their throats in a second. Does Canada not have an ACLU?

What a weird thing for a Jewish professor to do.

(Hat Tip: Why Josh Can't Be Left Alone)

Civil Liberties Are Not a Religion

That's the last point made by Richard Posner in his debate with colleague Geoff Stone. Last week they were supposed to debate the legitimacy of the Patriot Act and whether it should be reinstated in its current form. Instead the debate diverged into an argument about the veracity of balancing civil liberties against national security. While both parties agreed that balancing is needed, Stone was less willing to balance, chalking up his belief to a fear of law enforcement disingenuousness when faced with the opportunity to expand its ability to defend Americans.

There were some interesting sub-debates. One concerned the ACLU. Posner took it to task for refusing to acknowledge security concerns. I've always argued that groups like the ACLU, Amnesty International, Human Rights Watch, etc. ignore security concerns. Well, maybe ignore is a strong word, but the certainly allow civil liberties to dwarf security concerns.

Historically law professors (or professors in general) have been much more willing to defend the rights of the individual over the rights of the collective (which is what the liberty vs. security debate boils down to). Rationally such a position is untenable if the person's goal is to protect human life. But the position might make sense for at least two reasons.

First, professors and political groups are not responsible for protecting millions of citizens. In other words, they have no one to answer to when they overemphasized a supposed threat to liberty and caused a breach in security. So they can risk being wrong without any cost.

Second, people are often more willing to sympathize with an identifiable victim as opposed to a faceless majority. They therefore support the person suffering a cognizable harm, even though rationally they should support the greatest measure to protecting life.

I'm sure there are other reasons, but it's late and time for sleep.

Fire Isiah Now!

This article pretty much sums up my take on the Eddy Curry trade.

Money quote:

"Thus, the Knicks didn't just give up Michael Sweetney and Tim Thomas. They also gave up an insurable contract, multiple draft choices, and the increased risk of a free-agent departure -- all to pay more money for a player the Knicks essentially already had in Sweetney: a high percentage-shooting big man who is in less-than-ideal shape and struggles on defense."

Yep. Anyone surprised that the Knicks would take this risk for so little reward? Isiah runs this squad like a fantasy team: pick up all the big names one can find and hope someone will overachieve. Well, that doesn't work when picking up that player entails taking on a $60 million contract.

Bush Chooses Miers

In about fifteen minutes, Bush is expected to nominate White House Counsel Harriet Miers to fill the O'Connor seat. I don't know much about Miers' judicial ideology (nor does anyone else because she's never been a judge), so I can't really comment on whether Bush made a good choice and followed through on his promise to move the Court to the right.

But from what I can tell, this pick might unify Democrats and Republics in opposition. The Republicans might be upset because her record is nonexistent, and there's little guarantee that she won't be another Souter. The Democrats want assurances that the nominee won't overturn Roe and there's no way to ascertain her view of Roe from a judicial perspective. They will also oppose her because she's perceived as a Bush lackey. So this pick will not make confirmation easier, although I don't see the Democrats mounting a filibuster.

More on this later (although not much more with Rosh Hashanah coming up).

Update: David Bernstein gives what seems to be the only rational reason for choosing Miers (with the exception of cronyism). Like FDR choosing justices to uphold the New Deal, Bush chose justices who will allow him to fight the war on terror, which is his presidential centerpiece. Both Roberts and Miers have extensive experience in the Executive branch and are somewhat more likely than the other justices to defer to the President's war powers.

Todd Zywicki notes that Miers might have to recuse herself in such cases. If that's the case, then the pick was a total waste. But in my mind choosing a justice because he/she will support the President's positions on the war on terror is just wrong. This was a bad pick and there's no other way to slice it.

Sports Break

Yesterday the Yankees clinched the AL East. For weeks people have been debating whether David Ortiz or Alex Rodriguez should be AL MVP. Let's take a look at the numbers:

ARod leads in BA, HRs, OBP, SLG (and by extension OBS), Hits and Runs. Ortiz leads in RBI and Doubles and has less Strikeouts. ARod wins most of the conventional statistics.

Ortiz, however, kills ARod in batting with Runners in Scoring Position. He also has hit numerous dramatic HRs, many that have led to ties or wins. So the clutch factor goes Ortiz's way.

I have a big soft spot for clutch players. It's an important skill, more important than conventional numbers. So if ARod was a DH, I'd go for Ortiz, despite ARod having the statistical edge.

But alas ARod is not a DH. He plays 3rd base, and quite well also. Ortiz does nothing for his team in the field. In fact, if he played the field, he'd probably hurt his team. And since fielding is a part of the game (although not nearly as big as hitting) ARod gets a huge edge here.

One more element people have ignored: ARod has 21 SBs. Ortiz has 1. Big edge there also.

Given how the Yankees have taken the division crown, I can't imagine Ortiz winning the award. He's a great, great player, but ARod has just been better this year. And where would the Yankees be without him?