OK, SERIOUSLY, LAST POST FOR A WHILE. The titles say it all.

Underneath Their Robes: Big Swinging Gavels: The Male Superhotties of the Federal Judiciary!

Underneath Their Robes: Bodacious Babes of the Bench: The Female Superhotties of the Federal Judiciary!
- posted by thegusdad @ 7/22/2004 09:41:00 AM

 
ACTUALLY, LET'S MAKE THIS MY LAST POST. Barbara Ehrenreich writing about abortion. Reading her fearless writing makes me think most of our political discourse is just chickenshit.
- posted by thegusdad @ 7/21/2004 10:08:00 PM

 
A. O. SCOTT ON CATWOMAN:

"But the picture, full of moody, oversaturated colors, twisty camera moves and stroboscopic editing, does have a certain decadent visual flair and a louche, sneering sense of humor. Watching it is like paging through a fat European fashion magazine at high speed in the lobby of a sleek hotel. Through the haze of moody color, you can occasionally glimpse the flicker of an idea about female sexuality or the manufacture of beauty, but these themes are ornamental flourishes in the pretty, kinetic emptiness."

This is nice prose, and a well-developed simile, but I thought "What Would Elvis [Mitchell] Have Written?"

This is probably my last post in some time. Tomorrow is a short day at work, as I take off for Saturday's festivities: marrying uber-sweetie Trina. Then two weeks off--my first stretch that long in eight years--as we honeymoon in the Gulf Islands. I have been telling people our destination for months now, and still am no wiser about where the "Gulf Islands" really are. I think that if you keep paddling north from the San Juans, eventually you cross the invisible Canadian border and are then in the Gulf Islands. But as I frequently complain, they don't teach geography in the schools anymore. I'll report back when it's over, and I promise my time away won't be as long as Jack B's.

P.S. The Bourne Supremacy is getting much better advance reviews than Catwoman.
- posted by thegusdad @ 7/21/2004 10:02:00 PM

 
MMMMM...MODERN TRIBALISM. I too am in the QWERTY tribe--and you can have my keyboard when you pry it from my cold dead fingers.

Although William Gibson's novels feature little gloves, nay, fingertip sheathes, that, wired to little miniputers, read your fingertip inputs. Yup, the guy who gave the world the word ""microsoft" believes the future will feature typing.
- posted by thegusdad @ 7/19/2004 01:59:00 PM

 
THE FIRST AMENDMENT IS A GOOD THING. And being an Article III (federal, life tenure) judge is a good thing too.

Washington state tried to ban videogames that depicted acts of violence against police. See, e.g., Grand Theft Auto: Vice City, where a player can while away an afternoon beating, shooting, blowing up and setting afire the men in blue who otherwise would be protecting said metropolis from evildoers. The state legislature figured that the tender minds of Washington's youths (again e.g., post-Columbine male teenagers) were being warped by such media.

Judge Lasnik, a federal judge in Seattle, just declared that statute unconstitutional. This kind of judicial language is usually referred to as a "sharp rebuke" of the losing side, here the state:

Defendants acknowledge that the Act does not regulate works that depict sexual conduct. Undaunted by the dear pronouncements of the Supreme Court regarding the limited
scope of materials that are subject to regulation as obscene, defendants argue that the Court should expand the definition of obscenity to include graphic portrayals of violence. No court has aocepted such an argument, probably because existing case law does not support it.
***
Even if one accepts the basic premise that interactive games involving repetitive actions "teach" the player certain skills, the evidence as it currently exists suggests only that players are taught improved reaction time, eye/hand coordination, and how to score points in the game. Dr. Provenzo's concern that a person playing Grand Theft Auto: Vice City will learn how to shoot a police officer is little mere than conjecture: a proven ability to manipulate a controller and push buttons will not teach a person to load, aim, or fire a gun.

It's enough to make a good bleeding-heart liberal into a libertarian.

- posted by thegusdad @ 7/16/2004 04:58:00 PM (0) comments

 
SO I DISCOVERED THAT GOOGLE THINKS I'M A RODEO RIDER. That was funny. But while this blog remains the first result of a Google search for "matt whitman", this disturbing and unfunny page is the top result for "matthew whitman."

Um, just to be clear, that's not me. I am neither a rapist of virgins, nor a drug addict, nor dead. And that's not a picture of me. Golly.
- posted by thegusdad @ 7/16/2004 10:52:00 AM

 
GMAIL RULES. You want it. You want to be part of it. And I have three invites left. First three people to email me at matthew dot whitman at gmail dot com get invites. I need a return email address and first and last names (the invite form requires them).
- posted by thegusdad @ 7/15/2004 09:42:00 AM

 
JOSH MARSHALL LAYS A SMACKDOWN ON REPORTERS WHO BUY ADMINISTRATION SPIN ON PLAMEGATE. Specifically, this article by Susan Smith in the Post, which featured this paragraph:

The report may bolster the rationale that administration officials provided the information not to intentionally expose an undercover CIA employee, but to call into question Wilson's bona fides as an investigator into trafficking of weapons of mass destruction. To charge anyone with a crime, prosecutors need evidence that exposure of a covert officer was intentional.

Um, wrong. As Marshall puts it, "a conversation with a lawyer may have been more helpful than one with a [Republican] staffer."

[waves hand in the air frantically]

Me! Me! I'm a lawyer! Call on me!

"Intent," when we're talking about criminal acts such as outing covert CIA personnel, does not refer to the intent to achieve a specific end. It matters not at all that White House flacks outed Plame with the intent to discredit Joseph Wilson rather than to burn Plame. It is the act -- the burning of a CIA spook -- that is criminal, and it doesn't matter if you see the motivation -- the attack on Wilson -- as being pure of heart. Schmidt's quote above implies the nonsensical corollary, "if it's routine political dirty tricks, it's not criminal." Imagine the Watergate burglars saying "hey, officer, it's ok, we're just here as political operatives!"
- posted by thegusdad @ 7/13/2004 04:55:00 PM

 
APPRENDI! AND BLAKELY! NOW POSNER, OH MY! Law geeks only past this point. Maybe the most far-reaching decision of this just-past Supreme Court term was its holding in Blakely v. Washington that every element affecting a criminal sentence must be found by a jury or admitted by the defendant. In other words, if, like Mr. Blakely, you pled guilty to a given charge (and thereby admitted its underlying facts) a judge cannot find "aggravating factors" (e.g., propensity to violence, halitosis, voting Libertarian) and increase your sentence based on those factors. Those factors must be established beyond a reasonable doubt, either through trial or admission.

Enter Freddie Booker, a crack dealer, and his new best friend Richard Posner, the former Chief Judge of the 7th Circuit Court of Appeals and probably still the most influential non-Supreme Court jurist in all the land (though Alex Kozinski would have something to say about that). Last Friday, in United States v. Booker, Judge Posner wrote the opinion for a 2-1 panel (Frank Easterbrook, brother of the tastefully named Gregg Easterbrook, dissenting) declaring the federal sentencing guidelines "doomed" in light of Blakely. The sentencing guidelines, of course, are the despised-by-judges but beloved-by-prosecutors matrices that dictate sentence length depending on the offense, the defendant's criminal history, and specific regulatory factors as found at sentencing.*

For us law geeks, this stuff is manna. Let's review why:

1. Important policy issue: the sentencing guidelines have been a thorn in the side of the federal judiciary since their enactment (and the parallel state guidelines that states have adopted have similarly made state court judges wrathful in their impotence). And because the guidelines manifest and are a product of the Reaganite get-tough-on-crime attitude, especially for drug offenses, they are one cause of the imprisonment paradox in this country: not only do we have a far higher percentage of our population incarcerated than any other Western nation, but that incarcerated fraction is disproprtionately black and Hispanic. This is ironic, because one of the stated purposes of the guidelines was to level the sentencing playing field, making term of incarceration a metric dictated by the defendant's conduct, rather than his race or other cultural factors. The decision over the sentencing guidelines is therefore a proxy fight over our whole sociolegal approach to punishment on the one hand and the drug war on the other. So it's noteworthy that Posner has written at length, from his niche at the top of the "law and economics" food chain, on the failure of incarceration as a primary component of our penal system. See also Posner's dissent in United States v. Poff, 926 F.2d 588, 593 (7th Cir.) (en banc), cert. denied, 111 S. Ct. 96 (1991).

2. Important jurisprudential ideology issue: The first paragraph of Easterbrook's dissent ends, "This is the wrong forum for such a conclusion [that judicial application of the sentencing guidelines violates the post-Blakely Sixth Amendment]; and whatever power we may possess should not be exercised to set at naught a central component of federal criminal practice." (italics added) This is judicial pragmatism at its highest. Easterbrook cares about the practical consequences of the decision. Posner doesn't. All he cares about is clarity, clarity, clarity. So he answers all the questions: (a) Does an "upward enhancement" under the guidelines violate the Sixth Amendment after Blakely? Yes. (b) Is it OK to use the guidelines after Blakely when all the factors going into the matrix have been either found by a jury or admitted? Yes, unless the guidelines are utter toast. See next question. (c) Are the guidelines utter toast? You didn't ask before so we didn't decide it; ask again later. (d) How are factors that may affect a sentence but are not part of the offense charged to be decided? By a sentencing jury, of course. (e) And again, what if the guidelines are toast? The sentencing judge should make alternative sentences, on based on the guidelines using factors as found by a sentencing jury, the other based on the statutory maximum sentence and common law.

Both the US Attorney's Office and Booker's attorney must have thought they lucked out when they drew this panel: they had a clean presentation of a significant issue, presented in an influential circuit before a panel that was guaranteed to make waves whatever the outcome. In other words, here's a writ of certiorari on a silver platter! Posner: "[W]e cannot avoid the duty to decide an issue squarely presented to us. If our decision is wrong, may the Supreme Court speedily reverse it." Easterbrook: "Today's decision will discombobulate the whole criminal-law docket. I trust that our superiors will have something to say about this. Soon."

3. Meaty appellate procedure issue: the case turns on whether a 1998 (so pre-Apprendi) Supreme Court case, Edwards v. United States, already decided the issue of whether the sentencing guidelines violated the Sixth Amendment. The Supreme Court in Edwards affirmed a 7th Circuit opinion written by....Easterbrook. In that 1997 opinion, Easterbrook did not mention any constitutional claim made by any defendant. Nor did the Supremes mention the words "Sixth Amendment" in their 1998 opinion affirming Easterbrook's opinion. Nevertheless, in Booker, the new case, Easterbrook argues that Posner oversteps because Edwards is yet-to-be-overruled Supreme Court precedent rejecting a Sixth Amendment challenge to the guidelines.
As Posner wrote elsewhere: "[Judges] are timid about speaking in their own voices lest they make legal justice seem too personal and discontinuous. They are constantly digging for quotations and citations to support positions they've adopted on grounds other than the compulsion of precedent."

* For more on the guidelines and judicial frustration therewith, check this essay, specifically the section from footnote 206 onward.

UPDATE: Dahlia Lithwick talks about the decision generally on NPR's Day to Day.

UPDATE 2: Dahlia Lithwick argues here that notwithstanding the turmoil, all is well, and the judges will get this hashed out. Utah federal District Court Judge Paul Cassell agrees. This shows how important this issue is: there's even a whole blog about it!
- posted by thegusdad @ 7/13/2004 02:55:00 PM

 
LOOK, I'M A RODEO RIDER!
- posted by thegusdad @ 7/07/2004 05:09:00 PM

 
FOR THOSE OF YOU WHO THOUGHT SADDAM'S TRIAL WAS A CHARADE, YOU WERE WRONG. But it does involve hand gestures.

Not as funny or as topical as Allahpundit's Dean-O montages, but those just distracted us from AP's basic scary freeperness.
- posted by thegusdad @ 7/07/2004 03:29:00 PM

 
IN ONE OF HIS LAST PRE-SABBATICAL POSTS, JACK SUGGESTED the Multnomah County Commissioners' decision to give marriage licenses to gay folks looking to wed might, by driving high conservative voter turnout (in favor of the "Defense of Marriage" state constitutional amendment), also swing Oregon, and possibly the nation, to the Rs in November. That "butterfly effect" is an ugly possiblity, but seems farfetched. I tend to agree with b!X, who argues convincingly (that is, using a flowchart) that Basic Rights Oregon was going to force a showdown on this issue no matter what, which in turn would put us precisely where we are now--looking down the barrel of a ballot measure that will carry every OCA vote plus those of some Beaverton soccer moms too.

UPDATE: I posted too fast; Jack was merely echoing a prediction made by Worldwide Pablo.
- posted by thegusdad @ 7/07/2004 03:10:00 PM

 
TOM FRIEDMAN IS ON SUMMER SABBATICAL AT THE TIMES, AND BARBARA EHRENREICH IS SPELLING HIM. Ehrenreich is a fine writer, but who knew she could be this good? I can't even excerpt it without doing a fundamental injustice. Tim Noah is trying to generate support for a "Draft Ehrenreich" movement, to keep her on board and jettison Herbert, Dowd or Kristof. More power to him! And her!
- posted by thegusdad @ 7/07/2004 11:07:00 AM

 
I DON'T HAVE MUCH USE FOR CHRISTOPHER HITCHENS. Usually. But in this piece in Slate he illustrates well the difference between the Anglophile "fuck off" and the plebeian mid-American "fuck you." It's the difference between the transitive and the intransitive, y'see.
- posted by thegusdad @ 7/06/2004 11:31:00 PM

 
SO KERRY PICKS EDWARDS, thrilling the plaintiffs' bar and relieving those of us who feared the Liebermanesque debacle of a Gephardt pick.

People talk a lot about intelligence as differentiating Kerry from Bush (or for that matter, Bush from most anybody). But education is something different, and something that Kerry definitely has, and Bush doesn't, notwithstanding Andover and Yale. Check the rigor and rhythm of this Kerryism, from his announcement speech today:

"'I have worked with John Edwards side by side and sometimes head to head. I've seen John Edwards think, argue, advocate, legislate and lead for six years now. I know his skill, I know his passion, I know his strength, I know his conscience. I know his faith."

mmmm....delicious rhetorical structure.
- posted by thegusdad @ 7/06/2004 08:18:00 AM

 
MARRIED GAY FOLKS AREN'T PAYING THEIR FAIR SHARE! I'm on a lawyers' listserv that recently went off-topic with a foray into the hot issue of gay marriage. One (straight) poster was supportive of same-sex marriage, saying "let them share in the misery." He was flogged for his pessimistic impertinence, of course. But the Congressional Budget Office has done an analysis about the fiscal consequences of recognizing gay marriage. Remember that notwithstanding legal (under state law) marriages in Pennsylvania and Oregon, the 1996 Defense of Marriage Act precludes the federal government, including the IRS, from recognizing any marriages except those between one man and one woman. The result, according to the CBO, is that the feds are short-changed, because gay couples will continue to file single tax returns rather than the married/joint reutrns which would have some of them paying the infamous "marriage penalty." The CBO explains the concept:

For almost all married couples, filing jointly rather than separately results in lower tax liability. Depending on the division of income between spouses, marriage can lead to either higher income tax liability (a "marriage penalty") or lower liability (a "marriage bonus"). The greater the similarity in the two spouses' earnings, the more likely the couple is to incur a marriage penalty. Conversely, the greater the disparity in earnings, the more likely the couple is to receive a marriage bonus. When one spouse earns all of a couple's income, the couple always gets a bonus.

Together, EGTRRA [the 2001 tax legislation] and JGTRRA [the 2003 tax legislation] will reduce the number of couples incurring marriage penalties and increase the number receiving bonuses between now and 2010. JGTRRA provided relief from marriage penalties for 2003 and 2004 in the form of a higher standard deduction and broader 15 percent tax bracket for married couples. For 2005 through 2010, that relief is first reduced and then reinstated under the provisions of EGTRRA. Because of those changes and rising real (inflation-adjusted) incomes, marriage penalties would dominate during that period, and same-sex marriages would increase revenues by between $200 million and $400 million each year. After 2010, the expiration of all of EGTRRA's provisions would raise marriage penalties further, and revenues would be $500 million to $700 million higher each year than they would be if same-sex marriages were not recognized. (Permanently extending the marriage-penalty provisions in EGTRRA would reduce those revenue gains to less than $400 million per year after 2010.)

- posted by thegusdad @ 7/01/2004 03:07:00 PM

 
MMMM...COOL NEW TECHNOLOGY. The thin-air touchscreens Tom Cruise used in Minority Report looked neat, but this just seems so....practical. We'll always have desks and walls, after all--now they can be functional parts of our workspace, rather than mere platforms.
- posted by thegusdad @ 7/01/2004 10:39:00 AM