I admit to being confused by the Bushies' latest tactic, which is to justify the invasion of Iraq on the grounds that many "on the other side" believed the same thing. Yeah, I think we already knew that a lot of Democrats were just as cravenly idiotic on the subject as the President, and it helps to remember that in the run-up to all wars, including the aforementioned adventure, hawkishness has historically been a safe fall-back. In the almost 230 years of our national existence, no politician running for high office in America has ever lost his seat because he was too hawkish.

But it ignores the more fundamental problem: Bush is the President of the United States. He can't use, as justification for his policies, the fact that other people were also conned. He's not only supposed to be a leader; he occupies a unique position, a perch from which the nation expects to follow his lead. Americans typically don't like to assume that their President might be telling the truth, depending on his whims. On an issue like whether to send our young off to battle, we need to have that confidence, especially coming from a President who avoided military service in his youth, and who has kept his daughters out of harm's way in theirs'.

Thus, it leaves a rather stale taste in our mouths when the President tries to argue that he didn't really lie in this instance, since the other side believed the same things. He was the one getting intelligence briefings telling him that Saddam's WMD capacity was vastly overstated, that stories of Iraq's role in 9/11 and its efforts to purchase yellowcake from Niger were false, that the cost, in both blood and money, in rebuilding and stabilizing Iraq was going to grow at a geometrical scale. The kindest interpretation of that is to say that Bush ignored the intelligence he didn't want to hear; the less kind interpretation is that he out-and-out lied. In either case, he and his advisors, almost all of whom to a man had avoided serving in Vietnam even though they also supported that adventure, treated the spectre of war too casually, and that shame cannot be palmed off on the Democrats.

This is apropos of nothing, of course, but there has been at least one drop-dead gorgeous debtor at every Chapter 7 meeting of creditors I've attended in the San Fernando Valley division of the bankruptcy court since the beginning of October. Cultural interpretation: as it did with so many others, the spectre of the new law caused many a potential starlet and model to seek a fresh start after their initial attempts to earn a SAG card fell short; the Valley is where many an aspiring movie star lives until they can hit it big, as well as being the Capital of the Adult Film Industry; waitressing and bartending, while nice character-building life experiences until the Big Break happens, don't do much to help pay off student loans and credit card bills in the interim.

I guess the most interesting aspect of this is that so many of these new debtors are quite young. Since they're not from around here, they haven't begun to make serious incomes, they're living in one of the priciest neighborhoods on the planet, and, without the option of living with their parents when times are tough, they are giving up the struggle to pay their debts with less of a fight.

The Two-and-a-Half Percent Solution:

Which is why I suppose Reiner's guy in Iowa --Howard Dean-- fell flat on his face despite the fact that Reiner did the primary eve bus thing with Dean, and why Bush won overwhelmingly in 2004, and why the elections in January and October and those forthcoming in December saw enormous turnout.(emphasis added)

--Hugh Hewitt, GWB's Walter Duranty

Instapundit links approvingly to this Scotty McLellan press release, where the White House flack attacks the only surviving Kennedy brother:

It is regrettable that Senator Kennedy has chosen Veteran's Day to continue leveling baseless and false attacks that send the wrong signal to our troops and our enemy during a time of war. It is also regrettable that Senator Kennedy has found more time to say negative things about President Bush then he ever did about Saddam Hussein. (emphasis mine)

Perhaps it's me, but isn't it the duty of every American statesman, especially the leader of the opposition, to be more critical of our own leader than some random foreign dictator. I bet George Bush has found more time during his political career to say negative things about the opposition in his own country than he has about Saddam Hussein; he certainly has said nastier things about the other side more frequently than he has about the man actually responsible for September 11, Osama bin Laden.

Nor is this some unique aspect of our current partisan age. Clement Atlee probably mentioned Winston Churchill more often (and not always in a nice way) than he did Tojo, Hitler and Mussolini combined after WWII. It is an historical fact that Republicans during WWII spoke more critically of FDR than they did of any Axis leader. Certainly, there was more criticism of Bill Clinton from the likes of Newt Gingrich and Tom Delay than there was of Slobadan Milosevic, or even of Saddam Hussein. And although I may not agree with the factual basis of their criticism, any sincere partisan would have been right to do so; indeed, it was the patriotic obligation of Clement Atlee, Bob Taft, Newt Gingrich and Ted Kennedy to do so, and not to preface their opposition by saying that some deposed ex-dictator was worse.

It seems there is the whiff of the authoritarian underlying the White House's (and Prof. Reynolds') worldview....

The dirty little secret of American liberal politics is that we are much more tolerant of losing elections than conservatives are. Some of the reasons, of course, are obvious; for example, our historic agenda is already in place, so we can afford to spend some years in the wilderness while the GOP chips away at the margin. But it's also been true historically. Liberal epochs in American history are few and far between, confined to the Age of Jackson (1829-37), Lincoln and Reconstruction (1861-76), the Progressive Era (1901-18) and the New Deal/Fair Deal/Great Society period (1931-66). The original Constitution, which was drafted in large measure to protect the power and interests of slaveholders, is a conservative, anti-democratic document, and American politics has pretty much reflected that.

If you're a liberal in the U.S., or for that matter, any western democracy, you therefore accept, and respect, the fact that you are going to play on the losing team in most elections. It is in anticipation of those few occasions when we win nationally that makes progressive politics so much fun, because we realize that when it's our turn, we will change things more dramatically in the short time given us, and in a more permanent manner, than our adversaries could ever dream of doing. When one realizes that the most conservative Presidency since Coolidge must now settle for confirming Supreme Court justices who will not overturn Roe v. Wade, regardless of how they feel about that decision, as its only significant domestic accomplishment, is a testament to the power of an ideology that is usually on the losing end of elections.

Not surprisingly, there are people, including one of my dinner companions last night, who state that they are "tired of playing for the loser." This usually manifests itself in strident attacks on the Democratic Party, how the party is too liberal (or not liberal enough) which I believe misses the point entirely. What we believe in, as liberals, can never be defined by the fortunes of a political party, and should not be altered one iota by its electoral prospects. The Democratic Party is a useful vehicle, indeed, the only real vehicle at the moment, for electing like-minded politicians within our Constitutional system. But its fortunes are not tied to our own, we have no right to expect any ideological conformity from the it, and any problems it has at the moment should not be our paramount concern. If a better vehicle comes along, we should buy it instead.

For it has not always been true that the interest of liberals was served by the Democratic Party; in its first hundred years of existence, the Democrats were the party of slavery and limited, straitjacketed government at the federal level. Ironically, the period of the greatest prolonged dominance in the history of the Democratic Party came between 1800 and 1860, when the party's core tenet was the expansion of slavery. It didn't really become the nations's liberal party until Bryan and the Populists emerged at the end of the Nineteenth Century (or rather, until the party coopted the Populists, who were threatening its political base) , while the Republicans continued their shift to being the party of Main Street and Big Business.

What this means is that we have more important things to worry about than whether the party is winning elections: namely, whether we are winning elections (or, if not winning elections, whether we are having enough influence to make those who are winning elections take notice and respect our numbers). Let's face it, other than a few of the bozos and hacks who pal around with the "Reverend" Al Sharpton, is there any liberal in New York City who is brokenhearted over the landslide win by Mayor Bloomberg, a Republican, over Mr. Ferrer last Tuesday? Probably not. By the same token, when Joementum wins reelection next year, as a Democrat, for his Senate seat, will any liberals rejoice? Only if it gets us to 51.

But whether the party wins or loses in 2006 or 2008 has nothing to do with what I believe, or the values I profess. I'm not going to compromise or trim my sails just to make things easier for a Democratic politico in Oklahoma or South Carolina. They're on their own. Nor do I expect them to become Southern California liberals. American political parties are not designed to impose ideological conformity, and thank god for that. The Democratic Party, like the Republican Party, is what it is, an institutional structure designed to build coalitions and win elections. It has not had a great deal of success at that lately in flyover country, but there you have it. Tomorrow is a new day.

Wonderful evening, to cap off what was otherwise a bleak and depressing day: a salon of bloggery, hosted by Mr. Armed Liberal, at Ocean Seafood in Chinatown. No fisticuffs, a little politics, some gossip, and a lot of dim sum.

I got to Chinatown from Sherman Oaks using "high speed" public transportation, a novelty in the city of Los Angeles, which extended what would normally be a half-hour to forty-five minute drive into an hour-and-ten minute commute. The Valley leg was spent on the brand-spanking-new Orange Line, a dedicated bus line that they're still working out the kinks. Last week a septuagenarian driver, allegedly talking on a cell phone, ran a couple of red lights and collided with an oncoming bus, injuring about a dozen people, and as a result the buses have to travel at ridiculously slow speeds at intersections until the locals can figure out the rudimentary elements of defensive driving.

More time gets wasted transfering to the subway (Red Line) and train (Gold Line) legs of the trip. Since the beginning of each line is also the end of the other, it would seem logical that the transit system would have it timed so that you could disembark from one and embark on the other within minutes, but that would require a level of competence heretofore not found in local government. At each stop, I waited a minimum of ten minutes for the next train to leave the station, reducing whatever time-saving benefits that would accrue if I were to use the system during rush hour.

In short, the MetroRail is going to have to elevate its game if it is going to achieve its goal of getting significant numbers of commuters out of their cars and off the freeways. Until then, the people who are going to use this system will be either residents who don't own cars, those who have time on their hands, or those who, like myself, would rather do the sudoku puzzle in the morning than sit in traffic for an hour.

Just as it would be foolish to dismiss the future electoral prospects of Ahnold Ziffel in light of the last Tuesday's electoral debacle, so too would it be a mistake to draw too many comparisons with the comeback made by his ally and advisor, Pete Wilson, a dozen years earlier. In 1993, Wilson was:

1) an even more unpopular Governor; and
2) trailed the likely Democratic nominee, the State Treasurer (Kathleen Brown), by a significant margin.

Wilson, of course, came back the following year and won a landslide over Brown, who, besides being a scion of California's great political dynasty, was also a well-known public figure in her own right.

The big difference, however, is that Wilson had no career outside of politics. As such, he was pretty much defined by whether he could win public office, and once successful at that, whether he could win reelection. Other than his adoption of xenophobia as an electoral ideology, it would be hard to state what he stood for.

Ahnold, of course, has a life that doesn't revolve around winning the next election. He can always go back to Hollywood if things don't work out in Sacramento, or smoke cigars at his restaurant in Venice. He ran as a "reformer", and staked much of his political capital on the recent initiatives that the voters decisively defeated. With the defeat of Proposition 77, which sought to re-reapportion the districts legislators run in, the Democrats will continue to maintain their large majorities in both houses. California will remain a state of the deepest Blue variety until at least 2012.

He must now realize that even if he wins reelection next year, he will be little more than a figurehead, no different than the governor of Texas, with the ability only to veto and to occasionally make speeches. The agenda will be set by the Democrats in the state legislature, no matter how decisively he wins his own election next November. He knows that, and I suspect that's not why he got into politics.

I predict he won't run in 2006.

Thought for the day:

California!
On our rugged eastern foothills
Stands our symbol, clear and bold.
"Big C" means to fight and strive
And win for Blue and Gold.
Golden Bear is ever watching.
Day by day he prowls.
And when he hears the tread of lowly
Stanford Trojan Red
From his lair he fiercely growls!

This evening, the lamentations gloating of BFT and Kevin Drum shall permeate the nightime....

UPDATE: U.S.C. 35, CAL 10: Never talk smack about an opponent when your QB's last name rhymes with "A Boob"....

Post-YBK: Here's one group that is profiting from the changeover to the new law almost as much as bankruptcy lawyers (and more so than even the credit card companies): corporate debt collectors. They buy delinquent accounts from the original lender, combine tough talk with amenable compromise, and make a profit from collecting not the entire amount due, but enough to cover their original investment. The most successful of the corporate "repo-men", Portfolio Recovery Associates, collects more than three dollars for every dollar it spends purchasing bad debt. Sweet gig, is that....

In fifteen words or less, can someone explain why I should care about this? Or rather, can someone do so without using the canard that spending money is somehow tantamount to the expression of "free speech"? Speech is speech, bribes are bribes "campaign contributions" are "campaign contributions", and never the twain shall meet.

Mark Steyn is one of the few writers who can make you sympathetic to the goals and aspirations of Al Qaeda, even after a horrific day like yesterday. You may dislike the fact that Osama sends terrorists into our country, flies planes into the Pentagon and WTC, casually murders innocent bystanders, pursues a radical fundamentalism that would make even some Red Staters cringe, and taunts our hapless government and our ineffectual leaders from his cave, but after Steyn lets loose with one of his bigoted, xenophobic rants against the A-Rabs and the French, you understand that maybe the Wassabists, in their twisted, perverted way, have a point. When the choice is between someone who desires, subconsciously or not, the extermination of all Muslims, and someone who may kill a few thousand every decade in wanton acts of futile terror, I'll go with the latter. They're both awful, but sometimes it just makes more sense to go with Stalin when the alternative is Hitler.

Juan Cole, who actually thinks for a living (Go Blue !!), flushes the Canadian Kleagle back down his hole with this post, about this week's uprising in France.

As of midnight, all eight initiatives are losing in California, although two of the measures are still too close to call. That would be Prop. 73 (mandating parental notification for minors before abortion) and 75 (prohibiting the expenditure of public employee union dues without prior consent of member). I voted against both, as well all of the various Schwarzenegger referenda save the redistricting measure (Prop. 77, which is losing decisively). The most important proposal, Prop. 76, which would impose a spending cap on the budget, is getting whomped, as are the two progressive-backed measures (limiting pharmaceutical costs and re-regulating electricity).

With half the vote counted, but almost all of Los Angeles County still to be heard from, it's going to be a very bad morning for Ahnolt Ziffel. He came into office two years ago as a "reformer" who claimed to stand above politics, but now the people have rejected his proposals, in an off-year special election that he called, and which was timed to reduce the turnout of those most likely to oppose him. Even if he wins reelection, he goes into 2006 knowing that is certain that an overwhelmingly liberal, Democratic legislature will also be elected means he would spend the next four years as a figurehead.

The magic is gone. Don't be surprised if Variety publishes a production listing for the shooting of Terminator 4 in 2007.

UPDATE: As of 1 a.m., Prop. 75 is pretty much done, trailing by 5%, with about half of L.A. County and a quarter of Alameda County (two of the biggest liberal counties in the state) to be counted. Prop. 73 is hanging in there; it is perhaps the only initiative that hasn't lost significant ground since the absentee ballots were counted, but it's still going to lose after all the ballots are counted. Good night.

Doesn't plagiarism usually entail the unauthorized passing off of another's work as one's own for pecuniary or material benefit? In this case, if the blogger in question gives its usage the old retroactive thumbs-up, how is it different than Ronald Reagan or JFK taking credit for the oratorical creations of Peggy Noonan or Ted Sorensen, respectively? Or, more to the point, the retelling of a joke one hears from a third party? Bloggers, like speechwriters, are crafting their work for a larger audience, and not only expect that our ideas are going to get ripped off by others higher up the food chain, we need that to happen to feel like we're making a difference.

The Bill Bidwill of Politics:

Bush isn’t going to make a comeback. He’s fallen and he can’t get up.

A comeback presupposes substance and ability. A worthy character who has suffered some setbacks, bad luck or simple human mistakes can make a comeback because he has it in him. Tom Brady of the New England Patriots, Michael Jordan, the Boston Red Sox can mount comebacks. The Arizona Cardinals are not making a comeback this season. They don’t have the team and the ability to straighten out what has gone wrong. They will continue to lose until the end of the season.

George Bush is the Arizona Cardinals. His team is terrible and he refuses to change any of his players. He doesn’t have the personality suited for making necessary changes. Quickly adjusting to changing circumstances is not his forte, stubbornness is. Even if he had the inclination to make a change, he doesn’t have the ability. He simply doesn’t know what the hell he is doing.

(snip)

He is lazy, uninterested and incompetent. He views the presidency as homework. He seems to enjoy politics (at least while he’s up), but he doesn’t enjoy policy. He is detached from decision making and his decision makers have led him dangerously astray. Finally and most importantly, he doesn’t care to get it right.

George W. Bush will never put in the long hours to make sure we have the right policy in Iraq, in the war on terror, in the budget or anything else that concerns actual governing. He finds these things to be tedious. In reality, they are essential to the job of being President. He is overmatched.

And when you’re overmatched, you don’t put together second half comebacks. You get crushed.

--Cenk Uygur, HuffPost

An election-eve poll (from an outfit called "Survey-USA"), shows each of the four Schwarzenegger-backed initiatives going down to defeat, albeit by narrower margins than in other polls. Since earlier versions of the same poll had the measures comfortably ahead, the trend ain't good for the Governor. Proposition 73, which will mandate parental notification before a teen can obtain an abortion, has a slight lead. [link via Daily Kos]

Marc Cooper hits the right notes in urging a Yes vote on one of the Schwarzenegger initiatives: Proposition 77, which will transfer the power to draw legislative and Congressional districts from the State Legislature to a panel of retired judges. It is a flawed plan: retired judges tend to skew conservative in California, which has mainly had Republican governors for the past twenty years; and the suggested guidelines under the proposed law could make it easier to limit the influence of urban residents by squeezing them into "compact" districts.

But it beats the status quo. The current lines were redrawn in 2001 with the intention of protecting incumbents of both parties (the large Democratic majorities in both houses of the State Legislature and in the Congressional delegation were inherited from the previous lines, which were also drawn by a judicial panel), with two underlying goals: defend the seat held by Democrat Gary Condit (remember him?); and save Representative Howard Berman from a primary challenge by a Latino opponent. The net result was a one-seat pick-up for the party in 2002, while the partisan margin in both state houses was essentially unchanged.

Berman has been a terrific Congressman, and I certainly do not wish him any misfortune in his future political career, but the result has been a disaster for the Party. In the 2004 election, Barbara Boxer, arguably the most liberal member of the Senate, won reelection by 20 percentage points, over a moderate-conservative Republican who had won several previous statewide elections. In terms of vote count, it may well have been the largest margin of victory in any contested Federal statewide election in American history. And as I've mentioned before, she lost by very small margins in the districts of two Republican congressmen of note, Duke Cunningham and Christopher Cox. John Kerry, of course, kicked the President's ass here as well, winning by ten points.

Any fairly-drawn set of districts that are designed to produce competitive races should be able to give Democrats at least 3-4 more Representatives. Of course, in a year when the Republican tide is running strong in this state, it will also benefit that party as well. Those should be the breaks in a democracy.

UPDATE [9/7]: Kash (of Angry Bear) and Kos also support 77, while Prof. Kleiman is an emphatic no. Kevin Drum is also opposed, but is not unsympathetic to the reformist argument. Of all the reasons to vote against Prop. 77, the possibility that it will create "compact" districts that will favor Republicans (besides being untrue in California, which has become a decidedly lopsided Blue State in the past fifteen years) is the least persuasive. Partisan gerrymandering should be no more acceptable if it's done to benefit Democrats then when it's done in states like Florida, Ohio, Pennsylvania and Texas to benefit the GOP. And personally, I don't give a flying santorum if California's Democratic incumbents actually have to campaign in competitive districts in 2006, or even have to figure how to appeal to suburban and exurban voters in the O.C. and San Berdoo to win a swing district. This is a democracy, not the freaking Politburo.

Nothing turns me on more than the use of the term "patriarchy" by an older woman...Pandagon gives great ad for Abercrombie & Fitch. FWIW, I like the "Freshman 15" t-shirt !!!

Hasta la vista, maybe? With less than five days to go, Ahnold's "reform package" in the special election the taxpayers are spending millions on is apparently stiffing across the board. The Field Poll, which has had the best local rep in California for accurately predicting election outcomes, has every initiative trailing, including the one's (such as the requirement for parental notification before teenage girls can have abortions, and two different prescription drug measures) that are only piggy-backing on the Governor's slate, while the latest LA Times poll shows only the parental notification initiative passing, albeit by a slight amount. Both Field and the Times show Ahnold Ziffel losing head-to-head match-ups with his likely Democratic opponents in next year's election, an amazing result considering no one has ever heard of the guys.

Moreover, it appears that the biggest difficulty these measures are having is their association with the Governor. Another set of polls conducted last month had the same initiatives passing overwhelmingly, after respondents were read a brief (albeit misleading) summary. As soon as the propositions get tied to their sponsor, though, the voters seem to recoil like children from a bowl of leftover brussel sprouts. In fact, Schwarzenegger has not only been the kiss of death for his own proposals, he's also killing off the initiatives he has nothing to do with, including the two diametrically opposite propositions dealing with prescription drug reforms (one sponsored by Big Pharma, the other by consumer groups), as well as the parental notification initiative.

If things stand, not an auspicious start to his reelection campaign....

A lot of people talk about a constitutional right of privacy, but no one seems to want to do anything about it. Until now. So what would an amendment contain?

This article is rather typical of the "analysis" we're hearing in the debate over Alito's prospects in the Senate, so I think it bears repeating that whether the Democrats can successfully block the nomination has absolutely nothing to do with whether Mike DeWine or Lindsay Graham, or for that matter, any Republican member of the "Gang of 14" decides to support a filibuster. If this proves to be a particularly unpopular nominee (as polls from Gallup and ABC-Washington Post already are beginning to show), there will be plenty of other Republicans in the Senate who will be more than happy, when push comes to shove, to defend the prerogatives of the Senate.

The key is whether Harry Reid can keep 41 members of his caucus on the reservation. Then, if Bill Frist (or whoever the Majority Leader will be next January) wishes to invoke the Nuclear Option, we'll see how much support the President, who's approval rating is now hovering in the area Nixon's was at the time of the Saturday Night Massacre, has within his own caucus. If he has the votes, Alito will be confirmed, but the death of the filibuster will be at hand, and a longstanding progressive goal will be accomplished. If he doesn't have the votes, no one will care which side DeWine or Graham falls on.

UPDATE [9/7]: Rick Hertzberg comes to much the same conclusion about why an attempted filibuster may be worthwhile even if the Nuclear Option is imposed, but with bigger, fancier words, in the New Yorker.

Since I read this post on Saturday, I have been searching for something, anything, to write in response. Words just aren't adequate to describe the debt bloggers in Southern California owe to Cathy Seipp; she has been one of the prime movers (infiltrators?) within traditional media to open that institution up to bloggers, and the frequent seminars/parties/wine swigs that the LA Press Club hosts under her auspices (as well as Amy Alkon and Emmanuelle Richard) have enabled bloggers to network with those who write for a living, and vice versa. Everytime someone like myself, or Brady Westwater, or "Patterico", gets a piece published in the Sunday opinion section of the LA Times, it is the subtle influence of Ms. Seipp at work, playing a role behind the scenes to open up the Fourth Estate to freelancers, bloggers, and other miscreants throughout the Greater Los Angeles-Long Beach-Orange County metropolitan area.

She is loyal to her friends (and, as evidenced by the rollicking comments section to one of her typical blogposts, no collection of friends was ever so wildly divergent on the political spectrum as hers), a devoted mother to "Cecile", who has inherited her mother's literary gene, and is also wicked funny, both in print and in person. There aren't many websites that have this humble endeavor on its blogroll, much less websites whose politics are as politically dissimilar to mine as Cathy's World. But there is no website on which I'm prouder to be linked.

Cat Fight !! James Wolcott, on David Corn deciding to sully his good name by associating with conservatives:

...I don't understand why someone as politically keen as The Nation's David Corn would lend his name to the editorial board of Pajamas Media, the greatest assembly of conservative deadbeats since Jonah Goldberg's last fondue party. What an illustrious roster of ideological utensils make up Pajamas' masthead: Michael Barone...John Podhoretz...Tim Blair...and this inveterate stirpot, whose presence all decent men and women should shun until proper disinfectant can be found. By allowing his name to be slated on the editorial board, Corn is letting himself be used as a figleaf enabling Pajamas to pretend that it's a bipartisan effort instead of what it so flagrantly is, a neocon popstand.

David Corn, in response:

...I look forward to a new Internet enterprise that seeks to promote varying views, even if the idea came from conservatives. And if James Wolcott, whose work I admire and respect, can bring himself to be associated with a magazine (which I admire and respect) that makes mucho bucks by placing Paris Hilton's jugs in front of our mugs, perhaps I can see if being associated with rightwingers will benefit this blog, my work, and my readers. If not, I'll be happy to chuck it all for a column at Vanity Fair. James, thanks for the vote of confidence.

I'm on Corn's side on this issue. The whole notion that one should not associate with, befriend, or do business with people you disagree is offensive to me. Liberals should not fear engaging the enemy with civility.

You can't win them all? This seems to have pissed off Chris Matthews for its alleged anti-Italian undertones, but reading this, together with Alito's bizarre dissent cited below gives me the feeling that the new nominee may combine the moderation of Antonin Scalia with the cluelessness of Harriet Miers:

Federal law enforcement agencies sustained a major rebuff in their anti-mafia campaign with the August 1988 acquittal of all 20 defendants accused of making up the entire membership of the Lucchese family in the New Jersey suburbs of New York. The verdict ended what was believed to be the nation’s longest federal criminal trial and according to the Chicago Tribune, dealt the government a “stunning defeat.” Samuel Alito, the US Attorney on the case, said, “Obviously we are disappointed but you realize you can’t win them all.” Alito also said he had no regrets about the prosecution but in the future would try to keep cases “as short and simple as possible.” Alito continued, “I certainly don’t feel embarrassed and I don’t think we should feel embarrassed.” (emphasis added)

Jeez, why not nominate Marcia Clark next time? [link via TownHall]

More on Scalito: John Cole threatens to hold his breath if the opposition to the nominee gets too vehement:

If I hear one more person state that Alito is in favor of strip searching 12 year olds, or in favor requiring women to notify their husbands if they intend to have an abortion, or in favor of racial discrimination, or whatever, I am going to blow a gasket.

I don't know of anyone who has stated that Alito favors "strip searching 12 year olds" (actually, the referenced case involved the strip-search of a ten-year old girl), or "requiring women to notify their husbands if they intend to have an abortion", or "racial discrimination, or whatever"*. The problem with Bush's latest sacrifical lamb to the high court is that he supports a legal process that permits the strip-searching of children, that forces women to notify their husband before terminating a pregnancy, and that makes fighting racial discrimination harder for our society. Liberals should have no hesitancy in opposing that sort of judicial activism.

*"whatever", although undefined by Mr. Cole, may well be in reference to his eloquent dissent in Riley v. Taylor (3rd Cir.2001) 277 F.3d 261, in which he drew an analogy between a prosecutor excluding black jurors during voir dire in a death penalty case that involved a black defendant, and the election of left-handed Presidents:

According to the majority, however, the "sophisticated analysis of a statistician" is not
needed to interpret the significance of these statistics. "An amateur with a pocket calculator," the majority writes, can calculate that "there is little chance of randomly selecting four consecutive all white juries."

(snip)

The dangers in the majority's approach can be easily illustrated. Suppose we asked our "amateur with a pocket calculator" whether the American people take right- or left-handedness into account in choosing their Presidents. Although only about 10% of the population is left-handed, left-handers have won five of the last six presidential elections. Our "amateur with a calculator" would conclude that "there is little chance of randomly selecting" left-handers in five out of six presidential elections. But does it follow that the voters cast their ballots based on whether a candidate was right- or left-handed?

Ibid., at 326-7. And thus, we get to the core of the conservative argument against civil rights: preventing blacks from sitting on juries is about as worrisome as electing left-handed Presidents.

Sloppy Seconds: Well, this nomination is going to generate some fun...you can tell what a party of stiff, white men the GOP has become by the fact that they're already trumpeting the fact that Alito is a "son of immigrants" as his principal qualification, rather than defend his odious reactionary views. What should be interesting is not how many Republican Senators vote against the nominee, but how many signal their opposition before the hearings.

Fill in the Blank: The Los Angeles Dodgers will not win another World Series until Bill Plaschke _____________.

It is always a bad idea to allow sportswriters to run your team. There is an inherent conflict of interest: a good GM needs to find the players best suited to win games, while a sportswriter, not bound by the traditional journalistic tenets of strict objectivity, has a vested interest in protecting players who are polite to him in the locker room, and/or give "good copy". Most sportswriters, and particularly baseball writers, are white, so they have a cultural bias in favor of white players over non-whites, who tend to be "moody" and disrupt "team chemistry", especially if they are like (to quote Mr. Plaschke this morning) the "malingering Odalis Perez".

When the scribe is as stupid, as intellectually dishonest, and as bound to the use of hoary cliches and racial code as his guiding philosophy as the aforementioned Mr. Plaschke, who occupies the seat in the LA Times Sports section that Jim Murray used to hold, it can be a nightmare for all concerned. Murray, of course, won bushels of journalistic awards, including the Pulitzer, as a witty vox populi, until old age and illness turned him into a golf writer at the end of his tenure. Plaschke, an all-around know-nothing, has used his pedestal to conduct fatwas against whomever in the Dodger organization expresses a disinterest in kissing the great man's ring, including, it appears, Paul DePodesta.

DePodesta had been the GM for exactly two seasons, one of which they actually managed to win a division title and their first playoff game since 1988. He inherited a team that hadn't seen the playoffs in eight years, with almost no offense (other than the occasional Paul LoDuca single or Shawn Green solo shot), but with a solid rotation and perhaps the most dominant stopper in baseball history. He traded for Milton Bradley, signed Jose Lima, had the good fortune to witness one of the great fluke seasons in baseball history by Adrian Beltre, then acquired Steve Finley with a month to go in the season. And he traded LoDuca, a favorite of the beat writers and fans, and the principal reason Dodger fans eventually got over the Mike Piazza trade,
that same weekend, for Brad Penny and Hee Seop-Choi, neither of whom played much of a role down the stretch in 2004. Finley, of course, did, hitting one of the most dramatic home runs in franchise history to clinch the division.

The 2004 Dodgers were clearly a project assembled for one year, tops; unlike the 1996 Yankees or the 2002 Angels, the players on that team, other than Gagne, Beltre and (maybe) Cesar Izturis, were not going to be a factor on any Dodger team the day they enter the Promised Land of a World Series. LoDuca, while a quality major-league catcher, is not the type of backstop who will turn a loser into a winner; trading him wasn't as stupid, as, say, trading Pedro for Delino DeShields, or Paul Konerko for Jeff Shaw (to name two trades in which Tommy Lasorda, the McCourts' new factotum at the top, played a pivitol role). The McCourts blundered in not resigning Beltre, but the players they did sign in the off-season (Kent and Drew) were more than acceptable substitutes, especially considering the disappointing year Beltre had. Then Gagne pulled up lame in June, followed by Drew and Odalis Perez, and the Dodgers collapsed.

The Dodgers were going to have to start a rebuilding process, pronto, based on the fruits of their minor league system, if they were going to avoid the problems afflicting the team since 1996. But any GM who follows such a philosophy is bound to have problems with the media, since, again, sportswriters have an institutional bias towards players/sources they know, rather than kids playing in some far-off minor league town that they don't. Because free agency is a viable option with large-market teams, that problem will be exacerbated in a town like Los Angeles.

The Dodger farm system has consistently been one of the most productive in all of baseball, as evidenced by the major league-leading total of Rookies of the Year awards its players have won, but if there has been a recurring theme in our local media, it's that our farm system doesn't produce, and our prospects always flop. Ironically, Lasorda, who first drew attention managing one of the all-time great minor league teams, the Albuquerque Dukes, in the early-70's, was a proponent of this view, and he normally wouldn't play a rookie unless management held him at gunpoint. After it took him two years to make Pedro Guerrero a full-time player, the GM at the time, Al Campanis, finally decided that the only way to give a kid a chance was to take the decision out of Lasorda's hands; some of the oddest, most one-sided transactions in team history came when the Dodgers dismantled their great but aging team from the '70's, in order to give time to players like Mike Marshall, Orel Hershiser, and Steve Sax. A similar process happened in the early-90's, when Mike Scioscia, Eddie Murray, Alfredo Griffin and the aforementioned Mr. Hershiser were cast off to give their spots to another generation of players, including Mike Piazza and Hideo Nomo.

And each of those moves was unpopular with the local media. And every time a rookie didn't immediately produce, there were demands from the likes of Mr. Plaschke to trade the loser. The aforementioned trades of Pedro Martinez and Paul Konerko were cheered locally, since it meant the Dodgers were picking up a known quantity, and not risking their future on some unproven kid. For all the goodwill he brought the franchise over the years, Tommy Lasorda's impact on the organization as a whole was akin to a viral pandemic. The talents of a great motivational speaker are not the same as a great baseball mind.

This year, the decision to go with the untried was made easier for the Dodgers. There were so many injuries from Day One that the manager had to use untested players, or else he couldn't field a team. When DePodesta decided not to gut the farm system at the trade deadline in order to give a team that was already ten games below .500 a shot at catching San Diego, he made the right move for the long haul.

The wisdom of playing for the long haul, in order to build something lasting and good, is hard to grasp if you are a sportswriter less interested in the pursuit of the truth than in getting your column into print three times a week. Matt Welch has a good summary of Mr. Plaschke's greatest hits, but I have my own favorite, which of course had to do with a code-filled tirade of his against an African-American player for the Angels, Garret Anderson, during the 2002 World Series. Local fans are inclined to blame the owners, the McCourts, for this incompetent move, and I can't say there isn't some merit to that, but the real blame has to go to the moron, who, from his prominent perch, created the atmosphere that made this firing inevitable.

Miers Out: Looking back, the thing that sank her nomination was the release of her correspondence with the President, which reinforced the argument that she wasn't simply a crony of the President, but a particulary sycophantic one. Her response to the Senate Judiciary Committee's written questionnaire didn't help either; the net result was that she seemed like the female Abe Fortas, without the brains. And that was a shame; her resume indicated that she was someone who had risen to great heights within her profession in spite of many obstacles, including overcoming an extremely sexist culture, both in her home state and in her profession, to helm a top lawfirm, and later to become White House Counsel. The worst news about the defeat of Harriet Miers is that future Presidents will be reticent about nominating anyone to the high court outside the insular club of Ivy League graduates, law professors, former Supreme Court clerks, and appellate litigators and judges. What we will gain in intellectual quality we will lose in having people on the court with different life experiences and perspectives; no more Lewis Powells or John Marshall Harlans.

But the best news about her defeat is the simple fact that Democrats didn't have to lift a finger on this one. Credit goes entirely to the far right punditocracy on this one. It was they who decided to ditch every argument they ever made in the past to justify the silence of any of their stealth nominees, dating back to Clarence Thomas, who decided that suddenly the public had the right to know about conversations with the President that he deemed privileged, who felt that litmus tests on issues ranging from abortion to gay civil rights to the right of privacy were suddenly appropriate. Everything is now back on the table for Democrats. Assuming that O'Connor doesn't do the wise thing at this point and withdraw her resignation, we should run out the clock until the next election, using the conservatives' own playbook to oppose any inapt pick.

I think we can safely stipulate that Andrew Sullivan, champion of the Bell Curve, is probably the last person who should be denouncing something as "racist", no matter how ugly or detestable the post in question may have been. Even so, Dr. Sullivan got it wrong. An African-American blogger who calls his foes "Toms" and photoshops them to look like minstrels may have all the subtlety of a beerfart in a crowded elevator, but he can be no more called a racist than a Jewish blogger who labels his ideological adversaries as "self-hating Jews" or "objectively pro-terrorist" can be labeled "anti-Semitic". Buffoonish? Yes. Racist? That's a bit of a stretch....

YBK [The Bloody Aftermath]: Good article in this morning's New York Times about the visitation of the Law of Unintended Consequences on the credit industry. Apparently now, they realize they got scammed by their lobbyists:

For more than eight years, big banks lobbied aggressively to make it harder for consumers to file for bankruptcy.

Now that the new bankruptcy law has taken effect, was the investment worth it? The early data suggest that sometimes, you have to be careful what you wish for.

Bankruptcy filings were supposed to snowball in the months before the tough new law went into effect on Oct. 17. But the avalanche of petitions, and the lines of debtors streaming out the courthouse doors caught even the credit card issuers who supported the new law by surprise.

In recent days, the five biggest bank issuers of credit cards have said that the unexpectedly large flood of filings shaved hundreds of million of dollars off their earnings in the third quarter.

But with tens of thousands of petitions still being processed and Hurricane Katrina's impact on cardholders still being sorted out, the bankruptcy rush is likely to result in well over a billion dollars worth of losses by the end of the year.

"We thought it would cause a bubble," James Dimon, the president of J. P. Morgan Chase, said last week. "The bubble is just bigger than we thought."

Sallie L. Krawcheck, the chief financial officer for Citigroup, said, "It's clearly done some short-term earnings damage to the card industry."

Of course, most banks projected a tidal wave of filings in anticipation of the new, more restrictive rules. They weighed the long-term benefits of a bankruptcy overhaul against the short-term costs of the expected surge of bad, uncollectible debts. What they misjudged, however, was the extent.

More than 500,000 Americans filed for bankruptcy protection in the 10 days before the law took effect on Oct. 17, according to estimates by Lundquist Consulting, a research firm in Burlingame, Calif. That is roughly a third of the total number of bankruptcies filed in 2004. And though the number is expected to soon slow to a trickle, some bankruptcy courts were so inundated with filers that thousands more could be counted this week.

As a result, many banks have found themselves warning that the bankruptcy rule changes would have a big impact on fourth-quarter profits. And executives concede the bottom-line benefits of the new law will now take longer to materialize.

Understand, the estimate that it will cost "well over a billion dollar in losses" is definitely on the low side. The overwhelming number of late filings included many debtors who would have otherwise continued making payments on their past-due bills, and would have never contemplated taking the steps necessary to file bankruptcy, were it not for the sense of urgency set by the October 17 deadline. Since the average amount of credit card debt in Chapter 7 cases is approximately $20,000, the flood of last-minute filings (btw, it will be weeks before all the new petitions are counted by the undermanned courts) will probably push the immediate losses over the $10 billion mark. As I noted last week, YBK may have created the greatest transfer of wealth from the haves to the have-nots since the Great Society.

Rosa Parks, R.I.P.:

She was the perfect test-case plaintiff, a fact that activists realized only after she had been arrested. Hardworking, polite and morally upright, Parks had long seethed over the everyday indignities of segregation, from the menial rules of bus seating and store entrances to the mortal societal endorsement of lynching and imprisonment.

(snip)

"I thought back to the time when I used to sit up all night and didn't sleep, and my grandfather would have his gun right by the fireplace, or if he had his one-horse wagon going anywhere, he always had his gun in the back of the wagon," she wrote. "People always say that I didn't give up my seat because I was tired, but that isn't true. I was not tired physically, or no more tired than I usually was at the end of a working day. I was not old, although some people have an image of me as being old then. I was forty-two. No, the only tired I was, was tired of giving in."

I first heard of her protest years later. I couldn't have been more than seven at the time, but it stunned me that in the recent history of my country, another human being, an adult, an American, was legally required to give up her seat on a bus so that someone else could sit there, and that the only way she could protest was break the law. That probably shaped my worldview more than any other single historical event.

Professor Balkin, on the Miers' nomination:

I have left the most important reason for Democrats to oppose the Miers nomination until the last. It has little to do with strategic political considerations. Democrats, like all Americans, should want the Supreme Court to be staffed with the best possible candidates-- candidates who have the legal skills and expertise to handle the issues that come before the nation's highest Court and who have the experience, judgment and gravitas to make good decisions when the law is unclear or unsettled. The Court needs and deserves judges who are both excellent lawyers and judicial statesmen. As of now, Harriet Miers, for all of her admirable qualities, does not seem to be that sort of person. Perhaps she will convince us otherwise in the upcoming hearings, but if she does not, the Democrats should oppose her. It is true that Bush may nominate someone even more conservative if Miers is not confirmed, but in one important sense this is beside the point. Democrats who care about the institution of the Court, and who care about the future of the Constitution, should want good people on the bench even if their views about the Constitution differ in important respects from their own. That is what it means to act in the public interest and for the public good: to safeguard and protect the vitality and the quality of the key institutions of American government-- whether they be the Congress, the President, or the courts.

I'm inclined to agree with the professor. At this point, it's going to take an unexpectedly impressive performance by the nominee before the Senate Judiciary Committee to overcome the presumption that she is not well-qualified for the Supreme Court. I have not been impressed yet by the accusations made most frequently by my ideological cohorts on the left, that she is either unprecedently unqualified or that she is ethically suspect (one blogger even went so far as to make a ludicrous comparison with Kenneth Lay because her law firm represented a client in activities that were "potentially abusive or illegal", a practice that would disqualify every tax attorney in the country from future high court consideration), but I still haven't seen anything that would lead me to believe that she is a good choice for the Court. If she seems to be as out to sea before the Judiciary Committee next week as she has been the last two weeks, the only principled course to follow should be to work to defeat her, and take what follows on its own terms.

The Truth Is Out There: One of the more banal plaints in progressive journalism, usually written in an alt-weekly or "gay" publication, is the piece coyly outing various famous personages. In it, the writer will take to task some closeted celebrity for not being more forthcoming about their sexuality, or nail some Republican politician for hypocrisy over the same issue. Thanks to the internet, allegations about the sexual preference of Jodie Foster, Tom Cruise, David Dreier, Anderson Cooper and half the studio heads in Hollywood are available for public review, as if anyone outside the corner of Castro and Market gives a rat's ass whether Barry Diller or Pete Williams is queer.

There is one group, however, that never gets "outed" in any of those pieces, of course: gay athletes. This may be hard to understand outside the parochial world of independent journalists, but to the overwhelming mass of humanity in the Western World, sports are our single most important cultural pastime, a common language uniting all races, creeds, colors and classes, and play a much greater role in determining male (and, increasingly, female) sexual ideals in our society than movies, television, politics or any other institution.

Mix in the tendency for SportsWorld to support a generally conservative viewpoint, and one would think that public challenges to gay athletes would prove to be too tempting to resist. The battle to insure full civil rights for gays and lesbians is being fought out across the country right now, state by state, and it would be far more cataclysmic in Red States if an athletic hero were to "stop playing games and start answering ‘the question’," than it would for a supporting character on Will & Grace to do the same thing.

And obviously, gay men and women are as present in sports as they are in any other social institution. But if one didn't know any better, one would think that they were limited to individual sports, such as figure skating, or were confined to women's sports, where the stereotype of the tomboy is still present. But even those athletes can pretty much live a secret life in peace; the gay athletes we know about are either those who came out after they retired (Billy Jean King, Greg Luganis, Glenn Burke) or those whose homosexuality was revealed post-mortem (Jerry Smith, Bill Goldsworthy, Tim Richmond). Martina Navritolova is the only major athlete I can think of who was outed in the prime of her career, and that had more to do with a palimony suit against her than the efforts of the gay press. It would seem that the safest place in the world to avoid unwanted publicity about one's sexual preference is to play in the NFL or Major League Baseball.

So why isn't it done (and, mind you, I'm not endorsing the practice of outing celebrities; I'm just baffled as to why this particular social institution has not received the same scrutiny)? Why is a person's privacy respected if he is, lets say, famous for having hit over fifty home runs in a fluke season in the mid-90's, but not if he's a news anchor for Fox or CNN? [link via Wonkette]

YBK [Post-game]: In the final week under the old law, there were at least 205,000 personal bankruptcies filed, and after electronic filings and other yet-to-be-counted measures are considered, the total may surpass 300,000 500,000. The previous record was just over 100,000 filings, set the previous week, and a normal week would have seen about 30,000 filings. Taking into account that the average amount of credit card debt per filing is just under $20,000, almost all of which will now be forgiven by the terms of the old law, in the past fortnight we may have seen one of the greatest transfers in wealth from the rich to the poor in history: $8 billion $12 billion, from the credit card industry to consumers. Suffice it to say, it will take awhile for Biden's Friends to recover, another victim of the Law of Unintended Consequences !!

UPDATE [10/20]: Statistics revised per Washington Post story this morning.

"Bush did not feel misled so much by Karl and others as believing that they handled it in a ham-handed and bush-league way." Interesting, since he supposedly told the Grand Jury that Rove had told him had no role in leading Valerie Plame's name...we are starting to get into the area that got Nixon kicked out of office in 1974, ie., obstruction of justice, failing to carry out his oath to faithfully carry out the laws, etc.

Of all the reasons to go after Noam Chomsky, the notion that he actually decided to make money in his old age has got to be the silliest. Hell, I blasted the new bankruptcy law, but I'll be damned if I'm going to start pretending that my opinions should make me forget that I'm trying to run a business here. As a brother Idiotarian, I sympathize and salute Chomsky's ambition. Until they change the tax laws in this country to make them more equitable, his critics should grow up.

I think I'm going to start to back away from my earlier kind words for Harriet Miers. I can handle her not having sat as a judge, working at a law firm representing white collar crooks and union-busting businesses, having pro-life and/or anti-Roe tendencies, even being a crony of the President. All of those things are pretty much par for the course when you elect a Republican to the White House, and, except for the Roe litmus test, not all that unusual with nominees from progressive Presidents. This sort of thing, though, makes me believe that she has no core convictions, save whatever gets her on the Court. Her confirmation hearings could get very grisly....

A good primer about the significance of Judith Miller in the Plamegate scandal, from Matt Welch. By the way, Welch has had a pretty impressive run as of late; his reporting and commentary on the urban legends arising out of Hurricane Katrina were especially prescient.

FWIW: Among the approximately quarter of a million people who filed bankruptcy last week was former heavyweight champion Riddick Bowe. His three fights with Holyfield were perhaps the best fights in that division since Ali's retirement. Sadly, his life seems to have collapsed in recent years.

YBK [Fin]: As expected, the legacy of the new bankruptcy law will be the manner in which ordinary people across the country reacted in the past few weeks. What had been a slow but significant increase in filings in the immediate aftermath of the new law's passage became a cataclysmic disaster last week. Since many of the filings are done electronically, the long lines outside the courthouses on Friday give no indication of the true sign of the numbers of people who filed, but don't be surprised if the final numbers are close to what typically appear over a span of a couple of months. If the people who called my office are any indication, most of them never would have even considered the possibility of filing bankruptcy, had it not been for the new law.

The conservative business paper Investor's Business Daily reports that credit card companies, the prinicipal backers of the new law, are finally beginning to realize that they may have been screwed by their lobbyists:

Ray Bell, vice president of Creditors Interchange and host of an upcoming industry meeting on bankruptcy, said he fears some credit card firms haven't studied the fine print of the new law, which could be changed via lawsuits in the courts, he said.

"The credit card industry isn't necessarily prepared for what's coming," Bell said. "We're going to have court rulings to the north, south, east and west. Interpretations will vary ... Uncertainty may hit the credit card industry - they have not taken the time they needed to do to manage the process that's coming."

(snip)

While the impact isn't likely to cripple any credit card companies, analysts have been playing a parlor game of sorts to assess the effects.

Wachovia analysts recently changed their rating to market perform from outperform on Capital One, partly on concerns about bankruptcy filings.

"While Capital One's recent credit results indicate relative stability, we are growing increasingly concerned about the outlook for consumer credit," the analysts said in a report.

Wachovia said rising energy prices, increased bankruptcy filings and weakening consumer sentiment in the last few weeks are "a troublesome trifecta."

Similar horror stories are reported in the article, which was clearly written before the last-minute explosion, about AmEx and CitiGroup. Although it couldn't have happened to a nicer bunch of sharks, the impact on the rest of us could be even worse, as we have to put up with higher monthly rates and more aggressive collection activity to make up for the huge loss in revenues from YBK.

Some Perspective on Becoming a Made Man: Since it's not every day that one gets published in the LA Times, I made a special trip this evening to a 7-11 to pick up the early Sunday edition of the paper to read my column. Beaming with pride, I placed the "Current" section in a prominent place at the bar, making sure my fellow patrons had a good look at my handiwork, when one of the other customers saw the paper, quickly perused the column, eloquently stated "whatever", and tossed it aside to see if he could get a good look at whether the sports section had anything on the SC-Notre Dame game.

On this, the last day to file bankruptcy under the old code, we are in the midst of an honest-to-goodness Bank Run. In Los Angeles and in bankruptcy courts across the country, there are lines at the filing window that snake out into the street and beyond. Normally, there might be one or two people in line. The electronic filing system that my office (and most professionals) use is overloaded; just to enter data is a time-consuming process. A bankruptcy trustee informed me yesterday that ten thousand people filed last Friday, just in the Central District of California. Probably half the clients I'm getting are people who would normally have had no intention of filing, and even the thought of so doing wouldn't have crossed their minds.

What this will do to the economy I shudder to think about....

It only took four months, but the New York Times has also come to the conclusion that a robust housing market has an inverse correlation to the rate of bankruptcies in a state. Barry L. Ritholtz also notes the intriguing connection between high bankruptcy rates and Republican voting, something that can be seen when one looks at a county-by-county map of the rate of increase/decrease in bankruptcy filings since 2000, and the county-by-county electoral maps from 2000 and 2004. An apples-and-oranges comparison, of course, since one map reflects a four-year trend, while the others are snapshots that don't quite give a sense of how strong the inclination is in some states to file bankruptcy (Utah, for example, has hardly budged since 2000 in the number of bankruptcy filings, but has consistently been at or near the top in terms of the percentage of filers), but interesting nonetheless.

YBK [Part 25]: Remember back in March, when we set a monthly record for the number of bankruptcies filed. On average, there were just under 7,200 filings per day back then, which was the same month that the Bankruptcy Reform bill passed Congress.

In the week ending October 7, 2005, there were more than 20,000 bankruptcy filings per day in the United States.

Los Angeles [A] 5, New York [A] 3: Not quite the finish I was expecting. Ervin Santana was the hero filling in for the injured Bartolo Colon, but his initial inning was shaky enough: back-to-back-to-back walks, followed by a single by the nine hitter and a sac fly. But the Angels took back control of the game in their half of the second, thanks to GAnderson and Kennedy, and blooped Messina to death in the third. Thereafter, Santana took control of the game, the Angels dominated the tail end of the Yankees' lineup, and A-Rod and Matsui couldn't hit in the clutch to save their grannys' lives. After Jeter's home run in the seventh, I began having flashbacks to 1986, and with the Yankees getting three singles in the Ninth, my queasiness about the stopper abilities of K-Rod seemed justified. But stellar defense got the job done, again, and it's on to the North Side.

Now comes the hard part. Who's gonna start after Game 1?

Considering what a Heads fan I used to be, I'm surprised I didn't know he has a blog....

YBK [Part 24]: CNN is reporting that the week ending October 1 saw a record 68,387 filings, up approximately 25% from the old record, which was set the previous week. It also notes what I predicted some time ago, that the new law will generate a billing bonanza for bankruptcy professionals.

Ironically, this last-second panic to file before the new law goes into effect a week from today may not be necessary. The U.S. Trustee, which administers the bankruptcy courts and has the responsibility, along with the court, of enforcing the means test under the new law, drafted a letter last week formally stating that it considers "...income loss, expense increase, and other adverse impacts of a natural disaster to constitute 'special circumstances' in determining whether to file an enforcement motion on grounds of presumed abuse." The Trustee also announced it would waive some of the paperwork and credit counseling requirements from affected debtors, as well as agree not to pursue venue objections against displaced debtors filing in other states.

Of course, this should alleviate some of the potential problems faced by survivors of Hurricane Katrina, who lost critical financial records that could have backed up any "special circumstances" claim before the courts, as well as destroying the legal infrastructure along the Gulf Coast. It may also ease pressure on Congress to revise the new law before it goes into effect October 17. Although creditors can still raise objections under the new law, it would become prohibitively expensive for them to do so; the advantage of the new law for them was supposed to be the fact that they could piggy-back on the Trustee's office's without having to fill out the paperwork in each and every instance. Now, of course, if they file a motion to convert, they will do so before a court that has already been put on notice that the U.S. Trustee is presumptively on the side of the debtor.

More interesting to me, though, is the fact that the Trustee, an instrument of the Department of Justice, is interpreting its discretionary power to act, or not to act, quite broadly. The new law does not make it mandatory for the Trustee to attempt to convert cases where the debtor's income exceeds the medium level for the state; it is a power the Trustee "may" exercise. The only thing the Trustee is obligated to do is notify the court at a certain point that it considers the case to be an abuse, and that it intends to seek the conversion of the case. That the Trustee has already decided to ignore congressional intent to not include financial losses resulting from natural disasters as a "special circumstance" indicates a reticence about bringing motions to convert cases to Chapter 13 in other situations as well. A broad definition of what constitutes "special circumstances" will mean that the new law may only create new paperwork for filers, not a dramatic shift in who will be permitted to receive bankruptcy relief.

Et tu, Ilsa: It's hard to oppose the Miers nomination when she's even getting dissed by the Brownshirts:

Harriet Miers went to Southern Methodist University Law School, which is not ranked at all by the serious law school reports and ranked No. 52 by US News and World Report. Her greatest legal accomplishment is being the first woman commissioner of the Texas Lottery.

I know conservatives have been trained to hate people who went to elite universities, and generally that's a good rule of thumb. But not when it comes to the Supreme Court. First, Bush has no right to say "Trust me." He was elected to represent the American people, not to be dictator for eight years.

Among the coalitions that elected Bush are people who have been laboring in the trenches for a quarter-century to change the legal order in America. While Bush was still boozing it up in the early '80s, Ed Meese, Antonin Scalia, Robert Bork and all
the founders of the Federalist Society began creating a farm team of massive legal talent on the right. To casually spurn the people who have been taking slings and arrows all these years and instead reward the former commissioner of the Texas Lottery with a Supreme Court appointment is like pinning a medal of honor on some flunky paper-pusher with a desk job at the Pentagon — or on John Kerry — while ignoring your infantrymen doing the fighting and dying.

Second, even if you take seriously William F. Buckley's line about preferring to be governed by the first 200 names in the Boston telephone book than by the Harvard faculty, the Supreme Court is not supposed to govern us. Being a Supreme Court justice ought to be a mind-numbingly tedious job suitable only for super-nerds trained in legal reasoning like John Roberts. Being on the Supreme Court isn't like winning a "Best Employee of the Month" award. It's a real job.

Of all the reasons that may exist to oppose Harriet Miers, the fact that she graduated from a non-prestigious law school thirty years ago is perhaps the weakest, and the one least likely to garner sympathy from the public. If anything, lawyers who reach the top of their profession, as Ms. Miers surely has, after attending such a school is all the more reason to judge her credentials positively. The Supreme Court is not a law review, thank god. It should have a diverse representation of members, representing the broad sweep of America, limited only by achievement and knowledge of law.

Notwithstanding her positions on the constitutionality of abortion or of civil rights for homosexuals, she has accomplished a great deal in her legal career, a career not limited to running the Texas State Lottery, as Ann of a Thousand Lays so condescendingly mentions. She broke the barrier against her sex at a major law firm in Texas, ran the Bar Association in Dallas, then later in the whole state of Texas, and served on the Dallas City Council, before becoming White House Counsel. It may not be unfair to label her a "crony" of the President, but Byron White was no less a "crony" of JFK when he got tabbed, and his credentials were every bit as similar as Miers'. If Bush's other crony appointments were akin to Harriet Miers, the issue probably wouldn't come up, just as it didn't with President Kennedy. Even if I choose to oppose her nomination, her accomplishments entitle her to my respect.

UPDATE: Greetings and salutations to the people joining us from Reason. Some interesting critiques in the comments section over there, but one I'd like to address concerns a number of posters who took exception with my comparison of the qualifications of Harriet Miers and Byron White. One person noted, somewhat ironically, that White, unlike Miers, was a Rhodes Scholar, the top graduate in his class at Yale Law School, and clerked for the Supreme Court. That indeed is an impressive track record, and I might also add that he finished second in balloting for the Heisman Trophy and played a bit for the Detroit Lions and Pittsburgh Steelers.

What any of that has to do with his qualifications to sit on the Supreme Court two decades later escapes me, except showing that Whizzer White did very well in school. So did Harriet Miers; although her law school grades haven't been released, as far as I know, we do know that she clerked for a U.S. District Court judge after graduating, and was the first woman to be hired as an associate by one of the more prestigious firms in her state. Remembering that she doesn't come from one of the prominent families in the Lone Star State, those credentials suggest that someone back then thought she exhibited talent. SMU wasn't Yale Law School, obviously, but it should be noted that during the period Byron White matriculated there, and on through to Ms. Miers' final year of law school (1969), Yale was a mens-only college. It took an Act of Parliament in 1977 to open the selection criteria for the Rhodes Scholarship to include women. Being a Rhodes Scholar or finishing first at Yale simply wasn't going to be in the cards for her.

When JFK nominated his WWII buddy (White had been an investigator for the Navy looking into the future President's PT-boat mishap), his legal career was remarkeably similar to Harriet Miers. Both had spent most of their time in private practice in Flyover Country before hooking up with a future President. Both worked in the White House for the new President (White as an Assistant-AG; Miers in a number of positions, including White House counsel) before being nominated to the Supreme Court. Neither had exhibited much professional inclination to constitutional law before being nominated. I stand by my comparison.

Doodoodoodoodoo, today is my birthday.
Doodoodoodoodoo, I'm goin' have a good time...

In the meantime, check out this column from Slate, on "guilty pleasures" at the cinema. He's right about Denise Richards, by the way....

YBK [Part 23]: What was foreseen back on June 1 has come to pass. From today's Washington Post:

Two weeks before a new, more restrictive national bankruptcy law goes into effect, financially strapped Americans are rushing to file for protection from their creditors, with filings climbing to an unprecedented average of 13,000 a day last week.

Week after week records are toppled. Last week's 68,287 filings surpassed the record set the week before by 24 percent, and this week's total is likely to be higher, according to data released yesterday by Lundquist Consulting Inc., a financial research firm. Daily filings averaged 10,367 in September, compared with an average of 6,079 in September 2004.

The surge is in anticipation of the new bankruptcy law, long sought by the financial industry, which takes effect Oct. 17. The law will make it harder and more expensive for people to completely wipe out their debts under Chapter 7 bankruptcy.

"We are seeing a rush, mainly from people we saw a year ago," Northern Virginia bankruptcy lawyer Robert Weed said. A year ago his clients thought they would be able to work their way out of debt without filing for bankruptcy, he said, "but now they're in a panic to get in before the law is changed."

That is what prompted Samantha Gordon, 28, of Woodbridge to file. "I was putting it off and putting it off," the single mother of three said. Gordon, a patient-care coordinator, said she kept hoping to pay off her debts, but every time she had thought she was close, "a new bill, mostly medical, came up." She decided to take action after her father alerted her about the new law.

Along with using the "P-word" (as in "panic"), the Post did report some good news today: the office of the U.S. Trustee, the branch of the Justice Department that administers the Bankruptcy Court, agreed to temporarily waive enforcement of the provisions of the new law that mandate credit counseling to residents in Louisiana and the Southern District in Mississippi due to this season's hurricanes. Since none of the approved credit counseling agencies is physically located in the state (in fact, the new law specifically permits "credit counseling" to be done over the internet), this may have been done, as Prof. Robert Lawless suggests, to alleviate some of the pressure now on Congress to suspend the effective date of the bill by tossing a bone to hurricane survivors.

In the meantime, other provisions of the new law are set to further the devastation started by the Furies named Rita and Katrina. With homes and businesses still underwater, the local courts out of operation, trained professionals in the bankruptcy field having to relocate their offices, and the paperwork necessary under the new law now part of the debris rimming the Gulf Coast, victims of the storms are now placed in a predicament. Without any time to prepare for the traumatic experience of filing a bankruptcy petition (most of my clients struggle through their debts for years before finally succumbing to the inevitable), and now without the means of proving hardship that Congress, in its infinite wisdom, demanded when it passed the Bankruptcy Reform Act last spring, residents of the Gulf Coast now have nine days to decide whether to take this step, or risk the onerous provisions when the Bankruptcy Code changes on October 17.

Proponents of the new law point to 11 U.S.C. §707(b)(2)(B), which states that "...the presumption of abuse may only be rebutted by demonstrating special circumstances, such as a serious medical condition or a call or order to active duty in the Armed Forces, to the extent such special circumstances that justify additional expenses or adjustments of current monthly income for which there is no reasonable alternative." Thus, the argument goes, all a filer will have to do is explain to the judge that Hurricane Katrina destroyed his home, removed his livelihood, and all will be hunky-dory in the end. Former Bush Administration appointee Todd Zywicki observes:

The legislation simply requires high-income filers who can repay some or all of their debts to do so as a condition for filing bankruptcy. If a person has lost his job and income because of the hurricane, then the legislation permits that person to file bankruptcy just like under the current rules. The means-testing provisions of the legislation specifically allow for "special circumstances" that mean that those provisions of the legislation should not apply to a given bankruptcy filer--clearly the destruction of a person's house and job easily fit within those provisions of the legislation.

Assuming that a debtor, defined by Prof. Zywicki as being "upper income" because he earns over the median income for his state, which in Louisiana was $35,523 per year last year, will be able to retain a lawyer, dredge up the tax returns and credit card invoices and submit the proper paperwork that will be necessary to prove "special circumstances", there remains one tiny problem: Congress already explicitly rejected an attempt to include natural disasters, such as hurricanes, tornadoes and earthquakes, as "special circumstances". As Professor Elizabeth Warren points out,

Indeed, the "special circumstances" provision doesn't come close to doing the work the Congressman claims. In one of the many ironies that mark the amendments to the bankruptcy bill, any adjustment requires additional documentation, and, for those whose papers are somewhere in the Gulf of Mexico, the plain language of the statute seems to provide no relief. For hundreds of other blows inflicted by the bankruptcy amendments, such as the increased rights of landlords to toss out tenants or the new risks facing someone who has drawn down a cash advance on a credit card, there is no pretense of relief of any kind....

Of course, there are some judges who will gladly rule that Hurricane Katrina is a "special circumstance"; as I pointed out back in March, there will be judges who will pretty much carve out a "special circumstances" exception to any vicissitude of life, while other judges will limit themselves to the examples specifically enumerated in the statute (ie., "a serious medical condition" or "order to active duty"). The fact that Congress voted down an attempt to include natural disasters as an enumerated exception will be a powerful aid to those judges who are willing to follow the more draconian course; it may be years before any of the appellate courts has a chance to spell out what the provision means, and provide some degree of consistency in how it is interpreted. In the meantime, without Congressional intervention at this late stage, we are set to witness pandemonium the likes of which haven't been seen in the federal courts in our nation's history, all of which will create many losers, but only one small class of winners: Lawyers. Special circumstances? Laissez les bons temps rouler !!

The nomination of Harriet Miers has led to some predictable backsniping from lefty bloggers, as well as some unexpected opposition from our cohorts to the right. As the first nominee to the high court since Lewis Powell not to have had previous judicial experience, the "c-word" (as in "crony") has been getting a workout today, as well as some unnuanced criticism that she's a "third-rater", a "D-minus pick". More importantly, though, the endorsement of her nomination by Senators Harry Reid, Charles Schumer, and Patrick Leahy will deflate much of the partisan opposition (and TalkLeft's Jerralyn Merritt has kind words for Ms. Miers as well), and barring anything shocking that may turn up in the next few months, she should win confirmation easily.

In desperation, one avenue a number of bloggers from both sides are pursuing is a claim that she is not only a crony, but a crooked one at that. Conservative UCLA prof Bainbridge notes that Ms. Miers' firm paid a $22 million settlement in 2000 over their representation of a client, former U of T placekicker Russell Erxleben, who ran a ponzi scheme. From the left, Nathan Newman quotes the routine post-settlement denial of liability by Ms. Miers, who was the managing partner of the firm at that time, and compares her with Ken Lay: "Boy, no wonder Bush loves her. She never admits responsibility for actions by her underlings either.
But do we really want someone on the Supreme Court whose law firm is a poster child in Texas for lawyer malfeasance?"

Going even further, David Sirota attacks the nominee for having led a

...firm (that) represented the head of a "foreign currency trading company [that] was allegedly a Ponzi scheme. The lawfirm admitted that it 'knew in March 1998 that $ 8 million in [the company's] losses hadn't been reported to investors" but didn't tell regulators. This wasn't an isolated incident, either. The Austin American-Statesman reported in 2001 that Miers' lawfirm was forced to pay another $8 million for a similar scheme to defraud investors. The suit, which dealt with actions the firm took under Miers in the late 1990s, was again quite troubling. As the 9/20/00 Texas Lawyer reported, Miers' firm helped a now-convicted con man 'defraud investors and allowed the firm's [bank] account to be used as a 'conduit.' The suit said "money from investors that went into the firm's trust account was deposited into [the con man's] bank accounts and was used to pay for his 'expensive toys.'"

If you think Miers wasn't involved in any of this - think again. Miers wasn't just any old lawyer at the firm. She was the Managing Partner - the big cheese. True, she could claim she had no idea this was going on. But that would be as laughable/pathetic/transparent as the Enron executives who made the same ones after they ripped off investors.

Harriett Miers may be as crooked as the day is long, but the examples disingenuously cited above do not show that. She was the President, then Managing Partner, of an office which employed close to 400 attorneys. There was no evidence that she had any direct supervisorial role over the attorneys who were implicated, nor was she named as a defendant in any of the lawsuits. Far from running a crooked shell game, a la Enron, or laundering money, a number of lawyers at her firm were accused of committing legal malpractice, not against their clients, but by way of a novel Texas legal theory, against investors of their clients. The attorneys who were involved may or may not have had guilty knowledge of their clients' misdeeds, but the specific accusation against them dealt with whether they had an obligation to betray their clients' confidence, in potential violation of the attorney-client privilege, by informing investors of their suspicions.

Moreover, the operative term in this situation is that the cases settled. There was no admission of liability, simply an agreement by the parties not to litigate the matter further upon an exchange of money. There are numerous reasons a law firm may wish to settle a malpractice action, including some understandable arm-twisting by its insurers, that have nothing to do with its actual culpability. And any large firm is going to settle a legal malpractice claim at some point, regardless of its innocence.

Ms. Miers should no more be held accountable for the sleaziness of some of her firm's clients than public defenders or ACLU counsel are. Lawyers represent people who need legal counsel, and a lot of those people are, interestingly enough, criminals. Unlike Kenneth Lay, there is no evidence that Harriet Miers broke the law herself, or looked the other way while another lawyer at her office did.

We should remember that any chance of defeating the Roberts nomination died when one of the advocacy groups ran an ad exaggerating a legal argument he made in a case involving an abortion clinic bombing. After the ads aired, it was impossible to make a cogent ideological argument against the nomination without seeming to be hysterical, and Roberts breezed through. There will probably be enough legitimate reasons to question her nomination without making stuff up, or exaggerating alleged malfeasance on her part. Lets try to use an Indoor Voice this time.