West Wing Story

Rival Gangs, A Puerto Rican Heroine – Sounds Like a Broadway Musical to Me

Conservatives are already grinding their axes to attack Judge Sonia Sotomayor, President Obama’s nominee to replace Justice Souter on the Supreme Court, as a liberal activist who will overturn the Constitution with her own brand of compassion for the disadvantaged. Sotomayor “thinks her own personal political agenda is more important than the law as written,” jeered the right-wing Judicial Confirmation Network. “This isn't a jurisprudence that the Founders would recognize,” hissed the Wall Street Journal this morning.

However, conservatives are already defeated on this one and they know it. Sotomayor is academically brilliant and has the relevant experience the right claimed was both so important and so lacking in the man who nominated her. While she is clearly liberal, she is far from radical. It is highly unlikely she will generate the same solid opposition on principle the President’s budget inspired. What is more, Republican Senators run the risk of alienating both women and Hispanics, two groups their Party desperately needs to win in future elections, if they attack her too viciously and vicariously.

Republicans will raise questions about her jurisprudence and it will probably even get ugly at times but this is more an attempt to ensure Obama gets no credit for any sense of moderation in his selection. Baring some unforeseen scandal, Sotomayor confirmation is already all but confirmed.

This is the stuff of American dynamism – an African-American President appointing the first Hispanic Supreme Court Justice, the daughter of impoverished immigrants, over the Beltways stuffy status quo. This is also the stuff of Broadway musicals – two rival gangs locked in a deadly polarized fight as two star-crossed lawyers discover each other from across a crowded Congressional hearing.

I call it West Wing Story.

(SCENE: The Oval Office. President Obama sits at his desk. Vice-President Joe Biden and the Cabinet surround him. Biden is agitated as Obama dreamily looks out the window.)

OBAMA: I know she’s out there somewhere, Joe. I feel like something’s coming and it’s gonna be great.

BIDEN: Stop gettin’ all romantical, Barack. You’re one of us. Part of our gang.

(Sings) When you’re a Lib,
You’re a Lib all pre-paid
From your first welfare check
To your last Medicaid.

You’re never alone,
The government’s your grubstake!
Your healthcare is set –
Unless you need a medic,
’Cause that’s a headache!

You’re set for life
With a capital ‘L’,
Which you’ll never wash off
Till they drag you to hell.
When you’re a Lib,
You stay a Lib!


(SCENE: Obama meets Judge Sotomayor at a DC rumble/cocktail party. They steal away and talk for several hours about torts on a fire escape. Obama climbs down and walks aimlessly through the back alleyways of Georgetown.)

OBAMA: Sonia Sotomayor . . . Sonia!

(Sings) Sonia!
I’ve just picked a judge named Sonia.
Activist as can be,
Says courts make policy
For me.

Sonia!
She rules once and there’s baseball playing,
She rules twice and there no public praying.

Sonia,
I’ve got to find more like Sonia!

She’ll treat the Constitution like a turd,
So-ni-a!


(SCENE: Obama introduces Sotomayor as his nominee at a White House Rose Garden press conference. Beneath his glowing remarks are angry scowls and mumbled words about “lousy Puerto Ricans.” Sotomayor makes her remarks.)

REPORTER: Judge Sotomayor, how do you feel today?

SOTOMAYOR: How do I feel? Why that’s easy . . .

(Sings) I feel petit,
Empathetic,
I feel petit and ready to rule!
And I pity
Those misguided constructionist fools

(OBAMA & BIDEN: La-la-la-la-la . . . la-la . . . la . . . la-la)

See the Puerto Rican appellate judge –
What could my jurisprudence be?
I’ll write hand gun laws,
Make big business bawl,
Government can sprawl,
Abortions for free!

I’m empowered,
I’m endowed,
Overturn every law on the books,
I got picked
By a liberal silver-tongued crook!


(SCENE: The Libs archrivals, the Cons, are meeting to decide how to deal with Sotomayor. More harsh and dangerous words are spoken. Suddenly, their leader, Riff-Rush, jumps up and quiets them down.)

RIFF-RUSH: My friends, you’re going about this all wrong.

(Sings) Stall, fight, GOP,
Go right, boys!
It lost us the last election,
So do it more, boys!
Just say ‘no’,
We gotta go
Through hard times between.
If we keep it up like this,
Out of power ’til 2016.

Go boys, go,
But don’t be Soreto’s ploy toys.
Just stall and fight, boys,
Go right!


(SCENE: Sotomayor’s confirmation hearing. The Republican Senators are out for blood. Everyone fears the worst.)

LEAHY: Would the nominee care to make an opening statement?

SOTOMAYOR: Yes, yes I would.

(Sings) Puerto Rico, my mama’s old fling,
Now her daughter’s grabbed the brass ring.
Always the Senate knives honing,
Always the Executive groaning,
And the banks all owing,
The middle class screaming,
You need a house cleaning!
I am one bad-assed Latina,
Go suck on this, jalapeña!

I make the rules in America
From my high stool in America.
You have it all in America,
Don’t cross the law in America!

Conservatives in America
Had all the dibs in America.
Tax all the rich in America,
Don’t call me no spic white America!

No more schism in America,
Socialism in America.
Immigrants fine in America,
Illegal slime in America!


LEAHY: You’re confirmed!

(Everyone joins in a frenzied dance number and they all live unhappily ever after.)

FIN

Missing Lancelot Link

Popularizing Science Is a Good Thing. Using Hype to Misrepresent Is the Very Antithesis of Science.

Cast your mind back, if you can, into the not-too-distant past of 1970. If you were a kid or had kids of your own or maybe younger siblings then, you might recall an ABC Saturday morning program entitled Lancelot Link, Secret Chimp. The show featured chimpanzees dressed up in human clothing, with human actors providing voice-overs. The eponymous character was a secret agent/spy who routinely battled an evil organization’s plot to take over the world.

It was a dismally awful show, which wore out its one-joke premise (i.e. chimps are freakin’ hilarious dressed up like people) about five minutes into its first episode. Regardless, the show promoted itself aggressively to its juvenile audience. One could buy Lancelot Link comic books, lunch boxes, Halloween costumes, and other merchandise. ABC/Dunhill records even released an album by “The Evolution Revolution,” an all-simian pop band that performed each week on the show.

The promotions apparently worked because the show continued for a second season, showing nothing but repeats from its first season. It was the quintessential example of a cult hit, whose hype, reputation, and fan devotion far exceeded its actual merits.

Now cast your mind back again to the first time you watched Nova or some other PBS program and learned about Lucy, the 3.2 million year old fragmentary skeleton of a young female Australopithecus afarensis, considered the earliest known example of a direct ancestor to modern humans.

Lucy comes from a line of creatures that split from the line of creatures eventually leading to Lancelot Link about 6.0 million years ago. One might say that Lucy is the great, great, great, great, great, great . . . great grandmother of us all. She is certainly one of the best-known transitional fossils ever discovered.

However, Lucy now has a contender that wishes to displace her. A young lady herself, some are billing the challenger, known as Ida, as the “missing link” from the period about 45 million years ago when anthropoids (i.e. simians) first broke off from early, more primitive types of primates. If, like Lucy, she leads directly to humans, Ida represents a link in the chain twenty times older. She would be Lucy’s great, great, great, great, great, great . . . great grandmother.

In life, Ida was a three-foot long lemur-like creature, categorized as Darwinius masillae, during the Eocene Epoch, known as the golden age of primates. She lived in the Grube Messel, near modern-day Darmstadt Germany. During the Eocene, the area was a lake that formed in a volcano’s crater, surrounded by subtropical forest.

Continued volcanic activity caused clouds of carbon dioxide to drift over the lake, overcoming animals such as Ida that came down to its shores to drink. After slipping into the waters and drowning, petroleum muck on the lake bottom preserved their bodies, similar to insects trapped in amber.

Ida’s remains were unearthed in two distinct pieces by a team of archeologists in 1983 and ended up in separate private collections. Jørn Hurum, a scientist at the University of Oslo’s Natural History Museum, learned about the pieces and realized they represented something important. He arranged for the museum to buy and reconstruct them and then served on a team analyzing the results.

The team published its findings Tuesday in the scientific journal PLoS ONE. That same day, Hurum conducted a high profile unveiling of the fossil at the American Museum of Natural History in New York. The press has reported on some very big things said during Ida’s debut.

They are touting Ida as a “missing link” in the evolutionary path that led primitive primates to branch into modern-day anthropoids. They say she helps explain how generalized mammals eventually wound up producing human beings. They are putting her forth as one of the most significant transitional fossils ever discovered.

British naturalist and television personality Sir David Attenborough, writing in the Guardian, rhapsodized over the find. “This beautiful little creature is going to show us our connection with the rest of the mammals . . . She represents the seed from which the diversity of monkeys, apes and ultimately every person on the planet came.”

Unfortunately, there is little chance that any of it is true.

The find is unquestionably an important fossil because intact fossils are always incredibly rare and Ida contains over ninety-five percent of her skeleton as well as skin and fur impressions and even the stomach contents of her last meal.

It is also true that Ida exhibits some anthropoid characteristics, such as opposable big toes, nail-bearing tips on the fingers and toes, and the absence of a toilet claw and toothcomb. There are even developments in her feet and ankles, particularly the presence of a talus bone, which would help permit primates to someday stand and walk upright on the evolutionary path to humanity.

If nothing else, Anne Yoder, Director of the Duke Lemur Center, reports Ida had advanced features – including forward-facing eyes capable of 3-D vision and judging distance as well as an inner ear configuration – that demonstrate primates were around and developing much earlier in biological history than any previous evidence suggested.

Despite praise for the fossil and its relative importance, numerous scientists dealt with the more audacious claims made about Ida with reactions ranging from skepticism to dismay.

“What does it tell us about human evolution that we didn't know? Precious little,” said Stonybrook University paleoanthropologist John Fleagle.

“This fossil has been hailed as the eighth wonder of the world. Frankly I've got ten more in my basement,” agrees Chris Beard, a curator of vertebrate paleontology at the Carnegie Museum of Natural History in Pittsburgh. “It's not a missing link, it's not even a terribly close relative to monkeys, apes and humans, which is the point they're trying to make.”

Although not definitive, most scientists believe that anthropoids evolved from either tarsiers or an extinct group known as omomyids. The researchers studying Ida propose they evolved from a third group, called adapids. They hold that Ida is an adapid with quasi-anthropoid features.

Without ruling out their hypothesis altogether, Chris Gilbert, a paleoanthropologist at Yale University, correctly notes that Ida’s researchers, as challengers to the consensus, bear the burden of proof. Instead, they present their alternate evolutionary line as a given.

Other scientists agree the researchers’ methods and conclusions are accurate to a point but woefully incomplete. For example, Ida’s anthropoid tendencies are less remarkable in light of the fact such features were common among primitive lemurs despite their absence in modern lemurs.

Paleontologist Richard Kay of Duke University criticizes the published paper for failing to cite a large body of ongoing research, dating back to 1984, which contradicts the researchers’ hypothesis. In particular, Kay said Ida’s researchers did not compare their find to other important fossil primates from this time, especially those from a group called eosimiads.

What is the cause of so much distortion and exaggeration regarding one little fossil? For that, we need to turn back to Jørn Hurum, Ida’s great champion. There is a huge disconnect between Hurum the scientific academic and Hurum the science popularizer.

In their scientific paper, of which Hurum is a co-author, Ida’s researchers specifically state in their conclusions, “We do not interpret Darwinius as anthropoid.” They go on to add, “The adapoid primates it represents deserve more careful comparison with higher primates than they have received in the past.” This is as bold as they get.

At the unveiling in New York, a very different Hurum took the microphone. “This is like a holy grail for paleontology,” he boomed as he showed slides of Ida next to those of the Mona Lisa and Rosetta stone to demonstrate her historical consequence. “This is the first link to all humans . . . truly a fossil that links world heritage," Hurum added.

The museum’s exhibit is dramatically entitled The Link. It is also the name of a coffee table science book about Ida, published by Little Brown. A documentary, scheduled for a May 25 premiere on the History Channel, bears this title a third time.

Hurum defends his hyperbole, explaining it as just “part of getting science out to the public to get attention.” Nobody argues with the benefits of popularizing science but hyped claims known to be misrepresentative are the very antithesis of empiricism and scientific inquiry.

Hurum’s academic research is sincere and valid but his possible hopes to fund them by creating a frenzy and then profiting from the sale of merchandise, such as Ida T-shirts, posters, and maybe even Halloween costumes are suspect. The same is true for bowing to a TV executive’s demands for appeal to the lowest common denominator.

There is no fear that his claims will set back paleontology and/or biology. Peer review and the scientific method will do their jobs nicely to correct his embellishments. Regrettably, a public eager to buy into his incendiary publicity may eventually see all science made more suspect as a result. Even more unfortunate, creationists are sure to grab upon eventual retractions over the initial hoopla regarding Ida as “proof” that no evolutionary facts exist to back up evolutionary theory.

Ida is almost certainly not Lucy’s grandmother but she is still a grande dame in her own right and deserves better than what she has gotten from Hurum. By peddling her as a missing link, he may well turn an important archeological find into Lancelot Link.

Everybody Wins, Everybody Loses

The Jevons Paradox and Law of Diminishing Returns Suggest the Most Significant Impact of Obama’s New Fuel Efficiency Standards Are at the Low End

Perhaps more extraordinary than President Obama’s announcement yesterday that the federal government was finally doing something concrete to raise fuel efficiency standards in American-made cars was the virtually unanimous acclaim it wrought. As Obama decreed cars must rise from their current standard of 27.5 miles per gallon to 39 mpg and light trucks from 24 mpg to 30 mpg by 2016 – at the estimated cost of an additional $1,300 in price per vehicle – automakers stood arm in arm with environmentalists and regulators singing his praises.

Obama reassured everyone that reduced fuel consumption would offset any up-front price increases in the long run. His Administration estimates the average driver will save $2,800 over the lifetime of a new more fuel-efficient car. Moreover, increased fuel efficiency should cut greenhouse gas emissions by more than 900 million tons.

“Everyone wins,” the President happily told the crowd. “Consumers pay less for fuel, which means less money going overseas and more money to save or spend here at home. The economy as a whole runs more efficiently by using less oil and producing less pollution. And companies like those here today have new incentives to create the technologies and the jobs that will provide smarter ways to power our vehicles.”

It seems hard to believe that when Obama first proposed similar tough standards almost exactly two years ago during the campaign, the Chicago Tribune worriedly described them as “a frontal assault on the automobile industry.” Yesterday this same paper cheerfully hailed the announcement “a vindication of California’s long battle to toughen standards.” The New York Times is even giddier. “The Earth Wins One” its lead editorial trumpets this morning.

However, the Washington Post may have been most spot on when it encouraged its readers to “Think of all this as a three-ring circus.” The Post did not evoke the phrase with its usual disparaging nature but that would have been appropriate. While Obama’s announcement represents a step in the right direction, more hype than hope was in the air.

There is certainly an efficiency gap for U.S. automakers to fill. The ten most fuel efficient American car for 2008, as selected by Forbes magazine, had an average rating of 28 mpg, as compared to the 35.5 mpg average for the ten most fuel efficient cars in the world, as listed by CNNMoney. The latter list is comprised almost exclusively of Toyota and Honda models.

In addition, the push for lighter and more fuel-efficient cars could bring immediate benefits to several U.S. companies. Phil LeBeau listed some of the winners yesterday on CNBC. Borg Warner and Honeywell are both working on turbochargers to give engines power and performance while consuming less gasoline. Eaton, an auto parts supplier, sells camshafts and valve trains necessary for peak engine performance. Magna International has developed innovative hydroforming processes that produce far lighter components than previously possible. Alcoa is fashioning less heavy but stronger frames from lightweight steel and aluminum.

Other claims yesterday are less extraordinary than they appear at face value.

It should surprise nobody that Detroit’s support for the President’s decree is more pragmatic than altruistic. Although the estimated $47 billion price tag for compliance is high, a single federal standard will be far less costly than the potpourri of federal and individual state rules previously under consideration.

More to the point, automakers began this year touting fuel efficiency improvements over innovations even more radical. At an industry conference in Houston, BP PLC chief executive Tony Hayward, Royal Dutch Shell chief executive Jeroen Van der Veer, and Chesapeake Energy chief executive Aubrey McClendon all pitched improving existing gasoline-based cars before investing in reengineering to accommodate synthetic fuels or other energy sources.

Facing the destiny of exploiting a limited resource, Big Oil – and by extension the big automakers – want no major changes to automobile engines until they have squeezed blood out of the last turnip and oil out of the last piece of shale.

Cost savings from fuel efficiency improvements are inevitable but it is important to understand from where they truly come. As explained by the website Digerati Life back in July 2008, equal increases in miles per gallon at differing fuel efficiencies do not equate with equal gas savings. The fact is that switching from a gas-guzzling SUV getting only 18 mpg to a sedan getting 28 mpg will save most consumers about twice as much as switching from a compact car getting 34 mpg to a fancy new hybrid getting 54 mpg.

The law of diminishing returns applies. The important implication is that the greatest impact will not be moving to ever more fuel-efficient cars but rather from replacing the most inefficient current models. Thus, the 30 mpg standard set by Obama for light trucks will pay far greater dividends than the more ambitious 39 mpg standard set for cars – and then only if Americans are motivated to buy them.

However, freelance journalist Alec Dubro, writing in The Progressive, outlines the greatest challenge to Obama’s higher mileage standards. Nicknamed the Jevons Paradox, after the English economist who first described it in 1865, alternately known as the Khazoom-Brookes postulate, after two economists/ecologists who resurrected it in the 1980s, or simply called the explicative rebound effect, it is an observation that energy efficiency improvements economically justified at the micro level lead to higher levels of energy consumption at the macro level.

In other words, the more fuel efficient the government mandates automobiles be built and the more efficiently Detroit or anyone else builds them, the more fuel we tend to consume as a result.

The veracity of this concept is obvious to any student of contemporary history. Its reasoning is simple enough, however. The more efficient something is, the cheaper it tends to be. The cheaper something is, the more we tend to use it and feel less guilty about doing so. The Jevons Paradox is observation, not a cause-and-effect law. Thus, its outcome is avoidable but we have shown little inclination to break the pattern to date.

Therefore, Obama is correct and everybody wins in some ways because of the new, higher fuel efficiency standards just announced. Yet everybody loses in a sense too and the atmosphere/environment – concern over which has been so hailed as a catalyst for the new rules – may be the biggest loser of all unless all of us embrace the real discipline required and drive the new models less. Having our cake and eating it too will have to wait for the more innovative technology that Big Oil does not want us to have yet.

Kissing the Blarney Stone

Obama Proved Himself One of the “Fighting Irish” in More Ways Than One

Even President Obama’s harshest critics admit he gives a good speech. The Irish believe God or Nature has given such individuals the “gift of gab.” Legend has it that one way to receive the gift is if a person kisses the Blarney Stone, a block of bluestone built into the battlements of Blarney Castle, located in Cork Ireland. The kiss is physically difficult to perform, with some contenders required to hang by their ankles to reach the slab.

“Blarney” has since become slang for clever, flattering, or coaxing speech, meant to persuade.

The President’s critics view him as full of blarney. Indeed, many feel that saying pretty words is all he does well. They fear he lacks the inner strength to make hard choices – a quality that signifies the hallmark of leadership for most. Obama had a chance to show the toughness of his inner core on Sunday when he addressed the graduating class at Notre Dame. He did exactly that but not in a way that his critics, and perhaps his admirers, were expecting.

From the moment Notre Dame extended an invitation to Obama, conservative Catholics and various Pro-Life organizations seized upon the occasion as an opportunity to highlight their stance. Why, they asked, would a university steeped in the traditions of a religion that prohibits abortion to its followers as mortal sin invite as speaker any person, regardless of rank and prestige, who favors abortion remaining legal?

The debate and protests that occurred inside and just outside Notre Dame’s campus, though limited in scope, were sufficiently fervent to grab national attention. Everyone wondered whether Obama would tackle the issue forcefully or attempt to avoid it when he addressed the graduates.

When the first hecklers began booing, Obama admonished the crowd not to drown dissenters out, informing them, “We're not going to shy away from things that are uncomfortable sometimes.” The prepared remarks that followed constituted a speech as strong as it was eloquent. Yet the case made by Obama, while vintage Obama, had little to do with the arguments commonly advanced by either camp in the abortion debate.

“We must find a way to reconcile our ever-shrinking world with its ever-growing diversity – diversity of thought, diversity of culture, and diversity of belief. In short, we must find a way to live together as one human family . . . When we open up our hearts and our minds to those who may not think precisely like we do or believe precisely what we believe – that's when we discover at least the possibility of common ground.”

Obama had not come to Notre Dame to defend abortion, save to acknowledge its legality as a given. In fact, he spent most of his time expressing his understanding and empathy for those sincerely appalled and outraged by the procedure. In the end, he conceded the ongoing controversy could never be resolved to the complete satisfaction of all.

“I do not suggest that the debate surrounding abortion can or should go away. Because no matter how much we may want to fudge it . . . the fact is that at some level, the views of the two camps are irreconcilable. Each side will continue to make its case to the public with passion and conviction. But surely we can do so without reducing those with differing views to caricature.”

Not only was Obama using pretty words to address this most polarizing and discordant of social issues – he was advocating pretty words as the best solution to deal with it. It seemed absurd at face value.

Yet Obama was talking about more than pretty, coaxing words. He was even going beyond a call for basic civility in public discourse. Instead, he was talking about the inner courage required to achieve “Open hearts. Open minds. Fair-minded words.”

Washington Post columnist E.J. Dionne labeled Obama’s speech as “Conciliatory Fighting Words.” He went on to conclude, “By facing their arguments head-on and by demonstrating his attentiveness to Catholic concerns, Obama strengthened moderate and liberal forces inside the church itself. He also struck a forceful blow against those who would keep the nation mired in culture-war politics without end.”

In Dionne’s mind, that meant the President beat the anti-abortion activists determined to turn his visit into some divisive and ugly. This is probably correct but those favoring a woman’s right to choose must understand the sword Obama brandished at Notre Dame cuts both ways.

“In this world of competing claims about what is right and what is true, have confidence in the values with which you've been raised and educated. Be unafraid to speak your mind when those values are at stake. Hold firm to your faith and allow it to guide you on your journey . . . But remember, too, that the ultimate irony of faith is that it necessarily admits doubt . . . And this doubt should not push us away our faith. But it should humble us. It should temper our passions, cause us to be wary of too much self-righteousness. It should compel us to remain open and curious and eager to continue [learning and growing].”

Those are words just as applicable, with a few key changes, to the acolytes of empiricism as they are to those of faith. If there is any sin to which both sides have fallen in this controversy, it is surely the sin of pride. Both fall short of the goals of the respective standards to which they each aspire. Both cling with certainty to their respective positions where no certainty exists. The President outlined the doubt associated with moral certainty but it exists as regards empirical certainty as well.

After all, science is supposed to approach all theories, even established ones, with a sense of skepticism; otherwise progress and even greater understanding eventually become impossible. Positions based upon what the facts suggest or where the facts point or where the facts all trend are arguably better ways to deal with the unknown than comforting supernatural tales but they are not the same as facts. Being convinced of something to one’s own satisfaction is not the same thing as the existence of irrefutable proof.

Consider the President’s proposed solutions to the abortion fight –

“Let us work together to reduce the number of women seeking abortions, let's reduce unintended pregnancies. Let's make adoption more available. Let's provide care and support for women who do carry their children to term. Let's honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded not only in sound science, but also in clear ethics, as well as respect for the equality of women. Those are things we can do.”

I know these seemingly reasonable proposals include things that many Pro-Life proponents cannot bring themselves to agree with and it likely contains things that some Pro-Choice proponents find equally unpalatable. Just as some religious extremists view anything other than total opposition to abortion as immorality and murder, so some progressives have viewed anything other than unrestricted abortion as anti-feminist/anti-woman as well as anti-science/anti-intellectual.

A recent Gallup poll found that a majority of Americans now view themselves as Pro-Life rather than Pro-Choice, the first time this has occurred since Gallup began asking the question in 1995. It coincides with other polls taken by the Pew Research Center and CNN/Opinion Research Corporation that show the abortion debate becoming closer than ever.

The shift recorded by Gallup has been both very rapid and very recent. “Ironically, Obama's radical abortion policies and nominees may have helped make America more pro-life,” claims the conservative advocacy group Concerned Women for America. The fact that the shift is due mainly to a ten percent change among Republicans and right-leaning Independents does support this conclusion.

Yet Obama’s abortion policies are actually far from radical. What is more, seventy-five percent of those surveyed still favor few to no restrictions on abortion’s legality. Obama recognizes this, saying, “We know that the views of most Americans on the subject are complex and even contradictory.”

Perhaps Obama’s election is the source of the shift but the catalyst is his nuanced position on this issue as well as his tolerance for dissenting opinions. Perhaps many people who find abortion distasteful but favor keeping it legal have found being a progressive is not at odds with respecting a culture of life in Obama’s esteem for diversity. Perhaps they are following their own conscience on the matter rather than responding to the guilt trips laid upon them by extremists in both camps. The fact that the shift also represents a ten percent change across Christian affiliations supports this conclusion.

Those disparaging Obama’s call for common ground as idealistic and naïve and calling for hard decisions and hard positions in its place ought to try what he is suggesting before dismissing it as “empty words” and the “easy way out.” Anyone who has actually traveled to Ireland and tried to kiss the Blarney Stone knows there is real physical risk involved – a severe case of vertigo has dissuaded more than one pilgrim in their efforts.

That is the case here as well. Obama’s sincerity may have defeated anti-abortion activists on Sunday but his willingness to concede the validity of some of their concerns and objections may cause those favoring choice and science to wince tomorrow. Our ability to meet his call to humble ourselves, temper our certainty, and be wary of too much intellectual superiority may determine whether we wind up among the gifted and the blessed or wind up left hanging by our ankles.

Cleaning Out the Fridge

Shutting the Door and Ignoring Prisoner Abuses Doesn’t Make Them Go Away or Protect Anybody

It was a refrigerator just like those in so many other countless office break rooms. However, the one in the AT&T Building in downtown San Jose California had suffered from neglect for a very long time and was consequently full of moldy, rotten food. One white-collar samaritan decided enough was enough. She removed the food to a conference room table and began scrubbing the fridge’s interior with a combination of cleaning chemicals she found under the sink.

Unfortunately, the odiferous blend of disinfectant and decay she sent wafting throughout the floor caused twenty-eight of her co-workers to suffer from nausea and vomiting. In the end, seven employees required hospitalization and a hazmat team disposed of the refrigerator.

The nameless aspiring factotum suffered no ill effects, despite her position at the heart of the stench, because severe allergies prevented her from smelling anything. While she doubtless raised some wrath among her co-workers, any anger toward her was ultimately misplaced.

The individual who finally opened the door and attempted to clean up the mess bears no culpability. This belongs to the dozens who knowingly left food in the fridge and then attempted to ignore the problem. Eventually, somebody was going to have to open the fridge, lest it contents bubble and ferment until they exploded in everyone’s face, causing even greater harm. It may seem harsh to dump all this on the hazmat team but that is the job of such groups.

President Obama stirred up the wrath of the ACLU and other progressives on Wednesday when he reversed course on his decision to release photos showing U.S. troops abusing prisoners. Obama said last month that he would not oppose a ruling by the Second Circuit Court of Appeals to release dozens of photos from military investigations of alleged misconduct by May 28, under the Freedom of Information Act.

Obama apparently changed his mind when General Ray Odierno, General David Petraeus, and General David McKiernan, all current or former senior commanders in Iraq and Afghanistan, begged him to do so. The generals feared release of the provocative photos could stoke anti-American sentiments by Muslims, thereby endangering U.S. soldiers serving in these parts of the world.

Outrage from the left attributes Obama’s turnaround to a variety of motivations. Many accuse him of buckling under pressure from former Vice-President Dick Cheney. Others believe he is taking a cowardly approach by shifting responsibility to the courts. Those with a more nuanced view question whether Obama merely wishes to avoid distribution of the photographs just before the President travels to Egypt for a major address to the Islamic community.

Taking Obama at his word, he is simply listening to his commanders in the fields and attempting to be responsive to them – something he vowed to do during the campaign. It is refreshing to see conservatives who expressed skepticism of his pledges at the time giving him credit for following them now.

Moreover, Obama is not refusing to release the photographs outright. Instead, he is asking permission for the government to appeal their case in court. It is possible he could still refuse to release the photos should the courts rule against him, although this seems unlikely given his approach to the matter so far.

In fact, if Obama has any hidden agenda with this seeming reversal it may be to demonstrate that his release of the photos is not inspired by callousness toward U.S. troops but rather regard for the Rule of Law. The main reason the Justice Department chose not to appeal previously was the emphatic nature of the Second Circuit’s decision against the former Bush Administration.

Secretary of Defense Robert Gates maintains the government has never argued for blocking the photos based on national security and troop safety. However, the court’s September 2008 ruling appears to address and reject this concern.

“It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan.”

In any case, we should hope that Obama ultimately will release the photos. Their suppression, while perhaps well intentioned, is ill advised.

“I want to emphasize that these photos that were requested in this case are not particularly sensational, especially when compared to the painful images that we remember from Abu Ghraib,” Obama said after announcing his decision. Still, he added, “Any abuse of detainees is unacceptable. It is against our values. It endangers our security. It will not be tolerated.”

The above is exactly backwards in justifying censorship of the photos. Refusing to release them, especially based on the argument that Muslim anger could endanger U.S. soldiers, fosters the perception that these images are more shocking and obscene than anything previously released and will only exacerbate Muslim unrest.

While some backlash will undoubtedly follow the photos release, we must remember it should be less intense because the photos will be less shocking. After all, it is no longer secret that such mistreatments occurred. It may well be that a knee-jerk rush to “protect the troops” is the very thing placing them in the greatest danger.

Answering his critics in today’s Washington Post, Charles Krauthammer makes a forceful argument that “ticking time bomb” scenarios genuinely exist in real life. He quotes John McCain as saying that in such scenarios you “do what you have to do” and damn the consequences.

Krauthammer is seeking a moral justification for torture and we will not attempt to argue that issue with him today. However, he is clearly mistaken if he limits all ticking time bombs to explosives planted by terrorists. There are political time bombs and this issue is a big one for the U.S. in regaining credibility with the rest of the world.

Much as we may wish to blame Obama for opening the door and letting out the stink, it is those who first authorized such practices and then dealt with possible repercussions by slamming shut the door and ignoring them that bear culpability. Better to open the door now and deal with any resulting nausea than let the offense continue to fester and rot.

It may seem harsh to dump all this on our soldiers stationed in the Arab/Islamic world but that is the job of this group. U.S. military personnel are in harm’s way in Afghanistan as they attempt putting down a resurgent Taliban as well as tracking down al-Qaida operatives. They also face these dangers because those previously in charge chose to slam the door and ignore problems.

If we condemn current leaders attempting to stand up and take responsibility of negligence because their actions could embarrass, discomfit, or even hurt us, then we are missing the point about what standing up and taking responsibility is really supposed to mean. Obama and the rest of us need to hold our noses and take responsibility for cleaning out our national fridge.

Crossing the Line

How Wanda Sykes Is and Isn’t Like Dick Cheney

The White House Correspondents’ Association dinner has a long-standing tradition of allowing politicians, including the President of the United States, to relax a little and poke fun at the media and themselves. Still, even with this leniency – not to mention diners leaning askew from the copious amount of booze served – it is possible for a joke to escape the bounds of good taste and cross the line into taboo.

In recent years, the professional comedians brought in to emcee the event have been the lightning rod of greatest controversy, with Steven Colbert’s brilliant but uncomfortable tongue-in-cheek performance several years ago as prime example. Last Saturday, the mantle fell to Wanda Sykes, a performer easily as noted for her liberal activism as her comedic talents.

More than a few conservatives have disparaged her for having crossed the line when she turned her acid tongue loose on the subject of the equally acerbic radio commentator Rush Limbaugh.

“So you’re saying, ‘I hope America fails.’ You’re like, ‘I don’t care about people losing their homes, their jobs or our soldiers in Iraq.’ He just wants our country to fail. To me, that’s treason. He’s not saying anything differently than Osama bin Laden is saying.

“You know you might want to look into this, [Mr. President], because I think Rush Limbaugh was the twentieth hijacker but he was just so strung out on Oxycontin he missed his flight.

“Rush Limbaugh – ‘I hope the country fails.’ I hope his kidneys fail, how about that? He needs a waterboarding, that’s what he needs.”

Conservative scorn was not limited to Sykes alone but extended to President Obama, whom photographers extensively documented grinning at the contentious lines.

“A display that does not speak well of the President's character,” admonished James Taranto in Monday’s Wall Street Journal.

However, liberal pundits and Democratic politicians were quick to jump to Skyes’s defense, as exhibited below –

[ I ] Wanda Skyes certainly doesn't need me defending her and, given the latest dust-up with Rush Limbaugh, I even suspect she's loving this. When Sykes says she hopes his kidneys fail, she's not saying she actually wants Rush Limbaugh to die. She's saying she doesn't like his viewpoints. And she's telling Democrats afraid of not looking bipartisan or moderate to get some backbone and challenge “the same old criticisms” from this commentator. It has nothing to do with the guy espousing free speech, Sykes is saying, just the hateful, unproductive speech he’s espousing.
~ Rachel Maddow, MSNBC

[ II ] Conservative bloggers and columnists are aghast at Skyes for saying that Rush Limbaugh needs a waterboarding. Well, given what Limbaugh is trying to do, I think he needs a waterboarding too. Of course I want this country to be prosperous and safe – who doesn't? But Limbaugh’s agenda is much more audacious. Pretty much every major news outlet in the country has said as a matter of objective analysis that Limbaugh would prefer the economy to continue doing poorly or even get worse rather than see an ideology advanced with which he disagrees. And yet people are shocked that progressives, Skyes included, find Limbaugh repugnant in his efforts? The war on Skyes from the right is a tired rehash.
~ Frank Rich, New York Times

[ III ] “Make no mistake – Anything other than an immediate and compliant, ‘Why no sir, Mr. Limbaugh, of course you have the right to say anything you please,’ is treated as some sort of act of repression, authoritarianism, or political obstructionism,” Patrick said at a political fundraiser attended by 1,200 people. “This is patriotic jingoism run amok.”

Patrick, facing a tough 2010 re-election bid, told the Democratic audience he would “not be brow beaten on this and I will not kowtow to their narrow-mindedness.”

“My answer to the question is very simple – ‘Can Rush Limbaugh say anything against the President of the United Sates?’ It depends on why he is saying it.”
~ Massachusetts Governor Deval Patrick

[ IV ] For months, Hill has urged the Democratic Party to turn away from acid-tongued extreme liberals, such as Minnesota Senate contender Al Franken, comedian/actress Janeane Garofalo, and now Sykes.

“I think what Ms. Garofalo and Ms. Skyes do as entertainers diminish the Party and intrudes or inserts into our public life a kind of nastiness that we would be better to do without," Hill said.

“Baron Hill is just another Blue Dog Democrat,” Garofalo retorted. “What Baron Hill needs to do is close the loop and become a Republican.” Garofalo said Hill and other conservative Democrats are “just mad at me because I'm the one person in the country that had the guts to explain conservative criticisms against Obama have nothing to do with his policies or ideology. They are purely and solely based on race.”
~ Representative Baron Hill of Indiana / Janeane Garofalo

For Republicans who think the explanations above are just a load of bunk as well as Democrats who look upon them with self-satisfied contentment, they are actually defenses mounted by conservatives to address attacks by Democrats against Rush Limbaugh for saying he hoped President Obama fails – with some of the words switched around by yours truly to make them fit the present controversy.

[ I ] was actually FOX News commentator Neil Cavuto back on January 28. [ II ] was a March 3 editorial by Jonah Goldberg in the Los Angeles Times. [ III ] were quotes from Republican Governor Bobby Jindal of Louisiana during a March 24 GOP fundraiser. [ IV ] represented an exchange between former Secretary of State Colin Powell and Rush Limbaugh himself, as reported by the Associated Press on May 11.

It would seem that where each of us draws the line between telling hard truths and atrocious behavior depends on our own biases. The fact is that everybody, politicians included, cross the line sometimes and the First Amendment generally gives them the right to do so. Perhaps more important than the immoderateness of such gaffes are the intent of those making them and the reactions of those hearing them.

As insensitive as Obama’s broad grin may have been, at least it indicated he understood Sykes intended her remarks as jokes. As for Sykes herself, she was simply making the most of a one-night shot entertaining Washington powerbrokers. She will soon fade, like the controversy she created, back into semi-obscurity.

On the other hand, Limbaugh and former Vice-President Dick Cheney, who seem to have appointed themselves co-chairmen of Real Republicans in Loyal Opposition to Obama, have repeatedly confirmed they are deadly serious in their belief that the President has committed treason as well as their desire for his failure at whatever the costs to this nation. Their listeners regard such antagonism with equal gravity and support its ongoing broadcast.

My longstanding credo has been that any subject regarded as impossible to laugh at under any circumstance is one that is fundamentally dangerous to not only U.S. democracy but also human free thought in general. However, the unspoken caveat is that the thing laughed about is genuinely funny.

This is perhaps Sykes’s greatest offense. In just a few short remarks, she crossed the line, explicitly or implicitly, to touch on such taboo subjects as September 11, the homeless, soldiers dying on battlefields in Iraq and elsewhere, treason, Osama Bin Laden comparisons, drug abuse, kidney failure/dialysis, and torture. All this and she was not able to pull out a single genuinely humorous observation. We are supposed to laugh simply out of shared outrage. This is both lazy and gratuitous in the routine of any comic.

Therein lays the real problem for Obama and Democrats over Saturday night’s embarrassment. When you pick as your headliner an entertainer who can be as blunt and offensive as Rush Limbaugh and Dick Cheney without being as funny as either of them, it is a red flag.

As Kathleen Parker observes in today’s Washington Post, “I do think we take ourselves far too seriously – and literally . . . Lost in the frenzy is the more important matter of our thin-skinned intolerance and our reflexive lurch to take offense. We might remind ourselves that it's always the fanatics who can't take a joke.”

Conversely, Democrats do not need to find edgier comedians; they just need to find some with better material. You know, much as they did with Presidential candidates last year.

Indirect Satisfaction

Obama May Never Tip the Balance of the Supreme Court But He Can Radically Transform the Federal Judiciary.

Last Wednesday, I posted about Supreme Court Justice David Souter’s decision to retire, thus providing President Obama with his first opportunity to name a replacement to the Court. Most analysts see Souter’s replacement as having little impact on the Court’s ideology, although some conservatives disagree, arguing Obama is sure to replace a left-leaning centrist with a far-left extremist.

I agree that Souter’s quirkiness extends from his personal habits to his jurisprudence sufficiently to make an exact replacement particularly difficult for Obama, even assuming he desires this. Overall, however, I side with those who predict Obama’s impact on the Supreme Court will be minimal for the near future.

While Obama could easily name as many as three to four new Justices over the next four years, the oldest and most infirmed sitting Justices tend to be liberal. Obama will have to win re-election and/or an unexpected death or illness must occur among the Court’s conservative faction or Justice Kennedy, its swing vote, before tipping the balance becomes likely.

Yet for all of its power and influence, the Supreme Court is only one court within the federal judiciary and the vast majority of cases decided each year never reach its hearing. It is among federal appellate and district courts that Obama is actually poised to make his greatest mark.

Given the rampant and none-too-subtle promotion of conservative ideology in federal judicial nominations practiced by the former Bush Administration, a natural initial assumption is that Obama can once again do little more than fight back a right-wing tide. In fact, he stands an excellent chance of moving the federal Judicial Branch solidly to the left.

To see how this is possible, we need only resurrect an October 2008 op/ed piece from the Wall Street Journal by Steven Calabresi, a Professor of Law at Northwestern University and co-founder of the Federalist Society. Calabresi looks at the makeup of the thirteen federal appeals courts and finds Obama in a position to change the majority makeup in most of them.

In the case of the DC Circuit Court of Appeals, two seats are currently vacant. With a friendly Congressional majority, Obama should be able to fill these seats. He is also likely to replace two older Clinton appointees if they retire as well as the seats of four older Reagan and George H.W. Bush appointees who may retire as well.

This is as many seats as former President Reagan was able to appoint to the DC circuit during his two terms, causing this court to go conservative in the 1980s. Obama is poised to create a liberal majority once again on the court most often hearing regulatory cases.

Obama can likely do the same thing for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeal. Given the Ninth Circuit is already solidly left today, Obama could wind up creating liberal majorities in ten of thirteen circuits, including several extremely influential ones in certain areas of law.

Although we may agree or disagree with Calabresi’s subsequent analysis of Obama’s nominating criteria as naïve and dangerous, there is no disputing his math. A 2008 study of future vacancies among lower-level appeals courts by the Brookings Institution also predicts Obama will install a Democratic judicial majority by 2013.

Obama took his first steps in this direction in April, when he nominated Maryland judge Andre Davis for the Fourth Circuit Court of Appeals. Davis’s approval would leave the Fourth Circuit with six Democratic-appointed judges, six Republican-appointed judges, and three vacancies.

Obama also nominated New York Judge Gerard Lynch for the Second Circuit Court of Appeals. Lynch’s approval tips the Second Circuit’s balance, giving it seven Democratic-appointed to only six Republican-appointed judges.

Both Davis and Lynch are widely viewed as solid but progressive jurists.

Obama’s remake of the judiciary could have profound effects even if the next game-changing Supreme Court nomination winds up made by a different President than him – even if that President is a Republican. Every current Supreme Court Justice was a former U.S. appellate court judge, as have been the majority of appointments for some years now, giving future conservative Presidents a smaller base of reasonably solid but sympathetic jurists from which to choose.

This would be just fine with liberal Washington Post columnist E.J. Dionne. “To pretend that these judicial fights are about anything other than the court's philosophical direction is a form of willful dishonesty,” he writes. “It is better to be straightforward about the existence of a political struggle over the court than to manufacture phony reasons for opposing a nominee related to ‘character’, ‘qualifications’ or ‘temperament’.”

According to Dionne, Democratic members of Congress who opposed Bush Supreme Court appointees Roberts and Alito should not be “hypocritical themselves and deny the conservatives’ right to challenge a nominee's philosophy. On the contrary, liberals should welcome a real debate – and win it.”

Obama was one such member of Congress. While he may never replace these Justices directly, Obama may gain satisfaction indirectly by limiting his successors’ pool of jurists to men and women of his personal legal philosophy.

A Beautiful Woman

In Memory of My Mother (1/2/1928 – 5/5/2009) on this First Mother’s Day without Her

When we were arranging for my mother’s funeral, one of the decisions we needed to make was whether to have an open or closed casket. There were arguments for both options. We knew people would want to see mother again, especially if they had not seen her recently, and it would help provide closure for them. On the other hand, my mother was always a private person, who could be more than a little self-conscious about her appearance.

However, my father was adamant that it be open and one thing factored above all others into his decision. “I want people to see her,” he told my sister and me, “because your mother was a beautiful woman.”

And, of course, my father was absolutely right.

It caused me to think about exactly what made my mother beautiful. She was obviously physically beautiful. I doubt most people who saw her walking down the street would have guessed her to be in her eighties. The problem with physical beauty alone, however, is that individual tastes vary so greatly.

The old saw runs that a man does not fall in love with a woman because she is beautiful; rather she becomes beautiful because he has fallen in love with her. This sentiment is sweet in its way but also somewhat condescending to both the man and woman involved. My father did not mean that my mother was beautiful to him alone but to the world. He was not expressing a subjective opinion but stating an objective fact.

Psychologists did an interesting study once in which they superimposed the image of one human face on top of another and then another and another. Over time, the features of all the different faces tended to smooth out and create an average, “normal” human face. Surprisingly, the psychologists found that most people viewing the composite face found it more beautiful than most/all of the individual faces making it up. The more faces added to the composite, regardless of their relative attractiveness, the more beautiful the composite became.

From this, I suppose we can deduce everyone has some beauty in them but that also seems trite when compared to what my father was saying. He was not calling my mother a “little beautiful” or “sort of beautiful.” Instead, he was saying she was breathtakingly, souldrenchingly beautiful. So the question remains as to the source of her beauty.

The novelist Thomas Wolfe once remarked, “There is no sight on earth more beautiful than that of a woman cooking dinner for someone she loves.” I think he begins to capture my mother’s unique beauty with this observation. The point here is not some outdated ideal of feminine domesticity but the act of selfless love involved. Some of my earliest memories of my mother are her fixing dinner for our family, so that a meal would be on the table when my father got home from his job.

My mother took enormous pride in her home and her family. In many ways, she defined herself by them. She always worked hard to keep our home clean and attractive, a characteristic she inherited from her own mother. However, she tried to go beyond this and imbue it with her own flair and sense of style, a gift she passed on in great measure to my sister.

My mother took pride in her home as she took pride in her own appearance. But just as she was never vain about the former, so it was always more important that family and guests be comfortable in her home than impressed by it. This is one aspect of a beautiful woman – she can make the barest hovel seem like a palace but also make the most grandiose yet sterile palace seem warm and inviting. My mother could do this because my mother was a beautiful woman.

She was never ostentatious or addicted to the style of the moment. Her tastes were classic and plain. She preferred pewter to silver and beige to gold. However, she always admired and cherished quality, care, and craftsmanship in anything she owned.

I think she understood people were like that as well. Ornamentation and frills bought by wealth were mere facades that could rust and tarnish and peel away but real quality in a person or a thing remained and improved with age instead of diminishing from it. She wanted her children and her grandchildren to be people of quality.

There was one big difference in my mother’s approach to her home versus her family. She was never entirely satisfied with her house, constantly changing, rearranging, and improving it. With her children and grandchildren, however, she was always content with them just the way we were.

She was a mother, so she set rules and standards. She could ask us, “You’re not going out dressed like that, are you?” Yet if we were wise enough to go back upstairs and change our outfit to her approval, she would then tell us with absolute sincerity, “You’ll be the best-looking one there” – not because she believed she was perfect and infallible but because she believed we were wonderful.

Perhaps this came from her own experience. My mother was an only child, raised principally by a single parent, her mother, my grandmother. They were not rich and other aspects of her childhood were less than ideal. Yet rather than succumb to these shortcomings, she chose to rise above them because my mother was a beautiful woman.

If she had lacked money, she would make up for it with a strong sense of self-worth and personal style. If she had ever felt afraid or unloved, she would be the strong rock for her family, sheltering them from the world’s woes and evils.

My mother loved Christmas above all other holidays. She did everything to make Christmas as magical as possible, especially for the children in the family. The sociologist Robert Lynd once said, “Were I a philosopher, I should write a treatise arguing that Christmas Day in the company of children is one of the rare occasions during which adults become entirely alive.” My mother was no reader of philosophy but she would understand this premise implicitly because my mother was a beautiful woman.

My mother was one of the best listeners I have ever known. You could tell her about your victories or your defeats, your hopes or your fears. You could speak seriously or excitedly or just plain nonsense to her – she would simply smile and you knew that you were loved but, what was more, you knew that someone believed in you absolutely. She could do that because my mother was a beautiful woman.

Another beautiful woman, named Alice Foote MacDougall, wrote the following words in 1928, the year of my mother’s birth. They might well have served as a creed for her life.

“It is . . . to my children [that] I owe my very being. In attempting to fulfill my duty to them as a mother, I met the challenge of their helplessness, their innocence, their dependence. Despising cowardice in others, I wished to prove myself no coward. Believing in the good, the gentle, the beautiful things of life, I addressed myself to the sweet duty of keeping these attributes for my children’s sake and my own. And in striving to provide a living for them, I found success in creating a life for myself beyond my wildest dreams.”

True beauty, it seems, does not sit in the window of a high tower, admired by adoring crowds below. Like love, it reaches it highest fulfillment when it comes down to Earth and walks among us. It is like that composite photograph, with the beauty of the individual adding to the greater beauty of the whole.

My mother walked among us for eighty-one years. We have said goodbye toher Earthly body but we know she can never be really gone from us. So much of her heart remains behind because she gave it so freely to others; most of all to my father, who loved her and whom she loved for over fifty-three years. But their love did not end with her death nor will it end entirely with his. For true love, like true beauty, transcends the grave and abides by the strength of those inner qualities my mother so admired.

In his Essay on Beauty, Ralph Waldo Emerson declares, “Beauty is the mark God sets upon virtue. Every natural action is beautiful. Every decent act is heroic and causes both the place and the bystanders around its occurrence to shine.” My mother shone for eight decades and she still shines within the hearts to which she gave so abundantly and unreservedly of her own.

My father was absolutely right. My mother was . . . my mother is a beautiful woman. The greatest proof of that is the way I and countless others during her lifetime were ourselves made more beautiful by having known her, and having loved her, and having been loved by her.

Let your beauty sleep now, mother. Let it rest until all the shadows pass away that obscure our vision of it. Let it slumber until each of us are ready, in our own time, to see it fully again. For now we see it as though through a glass darkly or in a mirror dimly . . . but then, once more face to face. Until then, Rest in Peace.

Law Souter

Cut From the Same Cloth As Many Liberals, the New Hampshire Jurist Remained a Custom Fit.

The decision by U.S. Supreme Court Justice David Souter to retire provides President Obama with his first opportunity to name a replacement to the nation’s highest court. Per conventional wisdom, it is a largely inconsequential appointment. Souter usually votes with the Court’s liberal camp and Obama should replace him with a left-leaning jurist, meaning no major changes to the Court’s current balance will result.

Yet if any Justice serves as an admonition to this assumption, it is Souter himself. Appointed by former President George H.W. Bush in 1990, everyone expected him to caucus with the Court’s conservatives. Bush wanted a right-wing ideologue without the prodigious paper trail that had ruined former President Reagan’s nomination of Robert Bork.

Souter was a newbie appointee to the First District Court of Appeals. Both New Hampshire Senator Warren Rudman and, particularly, Bush Chief of Staff and confidant John Sununu vouched for Souter as a “reliable conservative.” At first, Souter appeared to be just that. However, within two years he began voting reliably with the liberals on important cases related to abortion, civil rights, religion, the death penalty, and illegal combatant detainees.

In spite of this, Obama’s pick will alter the Supreme Court in ways both obvious and nuanced.
The most likely change is a long-needed adjustment toward gender parity. With others also clamoring for the first Hispanic Justice, Judge Sonia Sotomayor of the Second District Court of Appeals emerges as an obvious frontrunner but other names commonly mentioned include newly-appointed U.S. Solicitor General Elena Kagan and Judge Diane Wood of the Seventh District Court of Appeals. Obama might also consider non-jurist politicians, among whom Michigan Governor Jennifer Granholm garners top attention.

Like most Presidents, Obama has vowed to make legal qualifications his first priority and it is unlikely he will deviate from it with such a rich field of candidates. However, Obama has another criteria he promises to apply – one distinctly his own.

“I will seek somebody with a sharp and independent mind,” Obama told reporters – someone who understands more than just a “footnote in a case book” but also “the realities of how the law affects people's daily lives.”

Obama said that he values the “quality of empathy,” and those of “understanding and identifying with people's hopes and struggles,” calling them “an essential ingredient for arriving at just decisions and outcomes.” For example, on the question of pay disparities for women, he said that would call for “a person who could understand, through empathy, the situation that [women were] dealing with.”

“Those are all code words for an activist judge who is going to . . . be partisan on the bench,” Republican Senator Orrin Hatch of Utah warned on ABC's This Week.

Wendy Long of the conservative Judicial Confirmation Network offers an even more dire prediction. “If Obama holds to his campaign promise to appoint a Justice who rules based on her own ‘deepest values’ and what's in her own ‘heart’ – instead of what is in the Constitution and laws – he will be the first American President who has made lawlessness an explicit standard for Supreme Court Justices.”

Nonsense, sniffs Washington Post columnist Ruth Marcus. She holds that Obama’s view “reflects a more thoughtful, more nuanced understanding of the judicial role” than the impartial umpire many strict constructionists champion. What is more, she points out, empathy from the bench can run toward plaintiffs as easily as toward defendants.

Perhaps the most important factor making it difficult for Obama to pick a non-threatening nominee is the unique character and jurisprudence of the man he must replace. While Souter may be cut from the same broad liberal cloth as Obama on many issues, there is little doubt the enigmatic jurist from New Hampshire has always been a custom fit.

A lifelong bachelor and loner, Souter is said to detest Washington D.C., for both its meteorological and Beltway insider climates. He prefers driving to flying and eschews cell phones, email, and all forms of technology. He even prefers to write his numerous opinions and dissents in longhand, using a fountain pen.

The common wisdom runs that Souter waited until this year because he wanted to be sure that a Democratic President replaced him with a like-minded liberal. However, the Atlantic reports Souter spoke at an Oxford University alumni luncheon the day after his retirement announcement, where he a reporter asked if he would have retired if Republican candidate John McCain had carried the election.

“Probably,” replied Souter, suggesting his hesitation was to avoid leaving in an election year. He was attempting to be as apolitical, rather than as political, as possible. Viewed in this light, Souter’s contrarian yet essentially fair nature explains his unexpected shift left. While watching fellow Republican picks, such as Scalia and Thomas, unabashedly shift the Supreme Court further and further right, he became disgusted that once-celebrated reasonable centrism now earned contempt as left-wing extremism.

While Souter sided with liberals on many important decisions, there were certain other areas of law where he consistently cast his vote with conservatives. Robert Alt, Deputy Director of the Center for Legal and Judicial Studies at the Heritage Foundation, performed an in-depth review of Souter’s long career and found several areas where he consistently broke with liberals to provide a deciding fifth vote.

In the area of lawsuits, Souter upheld limiting excessive punitive damages against Exxon. Last year, he approved stricter standards of proof for plaintiffs initiating lawsuits related to antitrust cases.

In the area of criminal law, Souter upheld the principle of “harmless error,” maintaining courts need not throw out every conviction where an involuntary confession is admitted, when other overwhelming evidence makes such a confession unnecessary. He agreed that a sentence of life without the possibility of parole for possession of a large quantity of cocaine did not violate the Constitutional clause prohibiting Cruel and Unusual Punishment. He also concurred the Fourth Amendment does not restrict a warrantless arrest for minor misdemeanor violations.

Even liberal activists hope for a new Justice to the left of Souter. They maintain the Court’s Clinton appointees, Ginsburg and Breyer, with whom Souter often votes, lack the personality and drive to be a progressive, reforming force within the Court. Some of the broad legislative issues proposed by Obama suggest he might be of like mind.

Whoever winds up as his choice and whatever impact they make on the Court, Obama knows they will not do so exactly according to his plans. Sometimes it seems like Justices shed new skins as while getting measured for their new robes and that chair they may well sit in for the rest of their lives.

This was certainly the case with Souter and, ultimately, all profited from his independence. In the words of his friend and peer, Justice Anthony Kennedy, “In our conferences and deliberations, all of us knew we had the guidance of a powerful intellect and a fine, dedicated jurist. The nation should be grateful always for his integrity and absolute probity and for his lasting contributions to our law and to the dignity of this Court.”

Nightingale of the Senate

Arlen Specter Was Never Singing Out of Tune with Republicans; He Was Just Lonely.

Here, where men sit and hear each other groan;
Where palsy shakes a few, sad, last gray hairs,
Where youth grows pale, and specter-thin, and dies;
Where but to think is to be full of sorrow
And leaden-eyed despairs . . .
~ John Keats, “Ode to a Nightingale,” 1819

The poet Keats never traveled to America in his short life. It is well documented that he wrote the above lines in the garden of the Spaniards Inn at Hampstead, London. Yet with its darkly visceral imagery, one could almost swear he did so while sitting between the distinguished but dusty denizens of the U.S. Senate. If so, then maybe the specter of lost youth and decrepitude he saw haunting the chamber was Arlen Specter, the former senior Republican, now junior Democratic, Senator from Pennsylvania.

Specter insisted he was not leaving the Republican Party but that it had abandoned him.

“This is a painful decision,” said Specter. I know that I'm disappointing a lot of my friends and colleagues – the disappointment runs in both directions . . . I now find my political philosophy more in line with Democrats than Republicans . . . It has become clear to me that the stimulus vote caused a schism which makes our differences irreconcilable . . . I am unwilling to have my twenty-nine year Senate record judged by the Pennsylvania Republican primary electorate.”

For their part, most Congressional Republicans disparaged his move as entirely self-serving.

“Let's be honest,” snarled Republican National Committee Chairman Michael Steele, “Senator Specter didn't leave the GOP based on principles of any kind. He left to further his personal political interests because he knew that he was going to lose a Republican primary due to his left-wing voting record.”

While celebrating in public, Democrats know that Specter is personally no great prize if they are being honest with themselves behind the scenes. This is not so much a conversion, after all, as the return of a prodigal.

Specter was a Democratic Assistant District Attorney in Philadelphia back in 1965 when he decided the quickest way to replace his unpopular but Party-backed boss was to run against him as a Democrat. At the time, he labeled himself “a Kennedy Democrat” running as a Republican to fight corruption. Others at the time labeled him “Specter the Defector,” remembers David Broder of the Washington Post.

While writing a recent profile about him, Newsweek reporters interviewed numerous Capitol Hill staffers who anonymously described Specter as “difficult,” “irascible,” “unreliable,” and “mean.”

Specter has voted with Democrats about forty percent of the time in recent years but everyone knows he is far from a reliable rubber stamp to give Democrats a sixty vote supermajority on every issue. Specter is a true moderate and, even more so, a true independent.

His motivations may seldom be pure but Specter is certainly no ideologue and, in truth, has often helped to pass important, useful legislation. Specter is sort of the nightingale of the Senate. It is not so much that he is singing out of tune – at times his song can be quite robust and beautiful. The problem is that none of his former GOP colleagues are willing to stay up late anymore. Such behavior does not fit Party orthodoxy.

The GOP has “failed to confront and learn from the devaluation of diversity within the Party,” bewails Republican Senator Olympia Snowe of Maine in a New York Times op/ed piece.

Her predecessor, William Cohen, recalls when he and Specter were members of the “Wednesday Group,” a regular meeting of moderate Republicans. “When I first arrived in 1979, there were about twenty to twenty-five Senators at the lunch each week. By the time I left the Senate in 1997, there were about five regular attendees.”

Former Republican Senator Lincoln Chaffee of Rhode Island remembers that when he and other moderate GOP legislators lost re-election bids in 2006, some conservatives celebrated ridding themselves of “wobbly-kneed Republicans.” Now, he concludes grimly, “we are watching the same celebration of ideological purity at the cost of winning elections.”

Conservative columnist William Kristol puts on a brave face and postulates Specter’s leaving is a blessing in disguise for Republicans. With sixty seats in the Senate, Obama will “be responsible for everything. GOP obstructionism will go away as an issue . . . This will make it easier for GOP candidates in 2010 to ask to be elected to help restore some checks and balance in Washington.”

“In reality, until Tuesday, Arlen Specter caucused with the Republicans, and he voted with his party seventy percent of the time in the 110th Congress,” former New Jersey Governor Christine Todd Whitman counters in the New York Times. “It is a sure bet that his voting record will now change. I fail to see the satisfaction in that.”

Ed Rogers, a White House aid to former Presidents Reagan and Bush 41, is even blunter. “Notice to Republicans – Arlen Specter changing parties is good for the Democrats and President Obama and bad for us. If you think otherwise, put down the Ann Coulter book and go get some fresh air . . . Who knows if he will be elected as a Democrat in November 2010. The damage will be done right away, when he votes with the majority.”

In spite of this, many conservatives insist the only way for the GOP to grow and flourish is to become even more ideologically restrictive. Columnist Kimberly Strassel lays out their case in today’s Wall Street Journal.

“There will be a strong Republican temptation to cut deals on health-care or energy, hoping to get credit for bipartisanship or for making policies less bad. But [voting ‘no’ on these issues] is the only way for congressional Republicans to demonstrate a philosophy to voters . . . of the Party of limited government and entrepreneurship. This is different from a message of outreach, which the Party also desperately needs but is accomplished primarily in the field.”

After twenty years trying to convince the middle class and Independent voters, with dwindling success, that tax cuts for the rich trickling down was the best way to help everyone, we can only wish the GOP good luck with its latest paradoxical logic.

Specter was in the same position in 2009 that John McCain found himself in 2006. He was the Republican most likely to win the next general election with an increasingly Democratic electorate but least likely to win the GOP primary because he lacked conservative chops. What is more, the policies and positions necessary make him sufficiently acceptable to the Republican core would poison his attractiveness outside it.

Columnist Gail Collins of the New York Times sums it up nicely. “The real import of this story [is that] Arlen Specter, with his unparalleled instinct for self-preservation, became a Democrat because the people of Pennsylvania like the Democratic agenda better. And the Republicans were too fanatical or deluded to allow him to straddle the line.”

Thomas Davis III is president of the Republican Main Street Partnership. He offers the following ominous analysis. “The GOP has lost the same eighteen states in five straight presidential elections, and John McCain wasn't within ten points in any of them. Those states and the District of Columbia account for 248 electoral votes [of the] 270 needed to win the White House. With the loss of Specter, the Senate delegations from those states are thirty-four Democrats and two Republicans."

Writing in the Wall Street Journal, Fred Barnes splashes further cold water on Republican hopes. “The states with Senate races in 2010 do not favor Republicans. They must defend nineteen seats, six in states won handily by Barack Obama. In three – New Hampshire, Ohio, Pennsylvania – Democrats also have a built-in, blue-state edge . . . In two other states – Florida and North Carolina – Republican chances are no better than fair. Only in Iowa . . . are Republicans assured of holding on.”

Barnes limits Republican takeover opportunities to the three states of Connecticut, Illinois, and Ohio. He concedes North Dakota, Arkansas, Delaware, and Colorado are further possibilities but only if Republicans field stronger candidates than any which have stepped forward to date.

Nightingales singing solely after dark is a common misconception. In fact, ornithologists now believe the only nightingales that sing at night are unattached males seeking a mate. Arlen Specter is no prize as a human being but if he is liberal enough to caucus with Democrats as a U.S. Senator, he is conservative enough to have remained with the GOP. Maybe the reason he was bothering the latter with his singing in the middle of the night is that he was feeling lonely.

Republican spinmeisters have a duty to attempt trivializing Specter’s exit. However, conservatives would do well to be honest with themselves about how this reflects on the larger state of their Party. If not, they will be the ones groaning as their former populist appeal grows pale and thin, they whose thoughts are full of sorrow and despairs. It may well be they, rather than Specter, who can no longer distinguish the difference between night and day.