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Journal Archive 2004, from Geo's Place (Return to home page.)
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Wednesday, December 29, 2004, 6:15 p.m. I just read another of Bashman's interviews, this one of Circuit Judge Michael Daly Hawkins of the U.S. Court of Appeals for the Ninth Circuit.Judge Hawkins is a home town fellow, having received his undergrad and JD degree at ASU and has his chambers in Phoenix. In 2003, he was honored by the Arizona State Bar as the 2003 recipient of its James A. Walsh Outstanding Jurist Award. While I've learned a lot from all of the Bashman interviews I've read, I was particularly appreciative of Judge Hawkins' responses in this interview. Not only his judicial philosophy but also his general attitude to the job seems more balanced than the others, and it's good to see an example of that. I think that may be why I appreciate reading some of Associate Justice O'Connor's opinions, too. Knowing that she used to be a key participant in the Republican party, she has nevertheless cultivated a moderate judicial philosophy which I think does her and the country credit. I have long been frustrated by the partisanship and tribalism which often prevent a measured, well-reasoned discourse and collaboration on crucial issues. I find the ability to set aside personal preferences in favor of well-reasoned rationality to be fairly rare in society, and value this ability very highly in myself. Researching Judge Hawkins further and reading some of his opinions, he strikes me as a consummate member of the judiciary. His opinions seem to strike that fine harmony of rationality, viewing the law and interpreting it without politics or personal policy featuring highly. I think if I were ever to serve in the judiciary, though I'd be a conservative more in the tradition of Justice O'Connor, Judge Hawkins is certainly a role model for the kind of excellent judge one might well strive to be. My appreciation for Judge Hawkins is also due, in no small part, to the fact that, when asked the kind of judge he strove to emulate, he noted the key desirable qualities of civility, decency and natural grace in his respected mentors. That speaks volumes to me, and resonates deeply in my own striving. Of course, though I may be biased by the fact that he also appreciates good books, good movies and hiking. Considering the task before these justices, the massive workload, the social responsibility, and the high-profile nature of their work, I am thoroughly impressed by their efforts. Asked about his thoughts on the reversal rate of the 9th Circuit court's opinions, Judge Hawkins had this response: I attended a Ninth Circuit Judicial Conference in the mid-1980s as a lawyer delegate. During one of the sessions, then Associate (now Chief) Justice Rehnquist was asked about the Ninth Circuit's reversal rate. Here is the sense of what he said in response: First of all, the Supreme Court does not ordinarily take cases to affirm the result in the appellate court. Second, the appellate court is obligated to apply the extant law -- even if it feels the Supreme Court might rule differently if and when it addresses the issue. Justice Rehnquist then said: "Those two factors would explain a reversal rate of about 75 percent -- anything above that can only be explained by the Ninth Circuit's inability to turn down a hard luck story." While what the Chief Justice described as "hard luck" others might characterize as injustice, certainly his first two observations are correct. Finally, it cannot be ignored that judges are often (but not always) something of a mirror of the President who appointed them. Although this is changing, the Ninth Circuit currently has a majority of judges appointed by Democratic Presidents while the Justices of the Supreme Court have largely been appointed by Republican Presidents. It should not be surprising that we see some things differently, but as members of an institution described in the Constitution as "such inferior courts," we are ever mindful that the Supreme Court has the last word.The more I read of appellate law, the more I appreciate the challenging and vital work our appellate justices carry out.
Wednesday, December 29, 2004, 11:30 a.m. In an interesting moment of synchronicity, a user on MeFi posted a detailed entry on Boethius yesterday. I mentioned The Consolation of Philosophy a few days ago as being particularly influential in my own life, and indeed I still think back to it as helping me construct a functional reconciliation of the concepts of free will and determinism. But I've not discussed Boethius, or how influential his work has been to me, with anyone in the nearly 15 years since I'd first encountered it. To mention it for the first time, outside my private journal, and within 48 hours to have someone post on in the MeFi forum urging folks to take a look at it, is an interesting coincidence. Well. After 15 years, it may be a good time to re-read that work for whatever new insights it might afford.
Wednesday, December 29, 2004, 10:15 a.m. Taking advantage of the holidays to catch up on some reading, this morning, I just read Lee Sandlin's "article" Losing the War. It follows on my comments yesterday quite aptly. Originally published in two parts in the Chicago Reader, March 7 and March 14, 1997, the piece is about 33,500 words long. I only mention that to put it in perspective - it's about 100 pages, and I couldn't leave my computer screen while I read it. Though I've read a fair bit of military history in the past 25 years, I believe this article is one of the most surpassingly excellent treatments of World War II, and the nature of war and concomitant human frailty, that I have ever encountered. Every now and then, you catch yourself reading something that is so hauntingly eloquent that you know you are reading a work of art. Sometimes you find something that is created in your own time that nevertheless stands in contrast to the ephemeral and forgetful nature of modernity. It is as if you've witnessed by prophetic powers the birth of greatness - a Simeonic moment. Setting aside restraint completely, I may confess that this article gives me such a sense. I was especially intrigued by Sandlin's revival of the terms "berserk" and fey" to describe the effects of war on human beings. Aside from this, the treatment strikes so deeply, sounds out so clearly, that it is hard to conscion the prospect of reducing it to an analysis of its parts. And so, against some superficial desire to detail my thoughts on its various elements, impressive as those elements are, I'm going to leave things well enough alone. Instead, I'll simply recommend it as well worth one's time.
Tuesday, December 28, 2004 Just listening to some old political speeches last night and came across Martin Luther King Jr.'s Declaration Against the Viet Nam War. There are some compelling statements in his address, but one particularly resonated with me this holiday season and came back to me this morning: True compassion is more than flinging a coin to a beggar. It comes to see that an edifice which produces beggars needs restructuring. He goes on to note that a government which extols the practice of spending more on military purposes than on social betterment of humanity is "approaching spiritual death". King argues that this is not a liberal agenda, but a Christian one. These thoughts are very similar to those shared by the classically conservative, Republican President Eisenhower in his Farewell Address, when he warned against following the path of continued military buildup, driven by the military-industrial complex. As he said: What can the world, or any nation in it, hope for if no turning is found on this dread road? The worst to be feared and the best to be expected can be simply stated. The worst is atomic war. In the season in which we espouse the best of ideals, these words take on particular poignance.
Sunday, December 26, 2004 For Christmas day, I had a lovely dinner and movie over at our pastor's place, with his family and other friends who joined us. It was a very special time, made all the more since I'm overseas and missing my family. Tonight , we had a very laid-back Sunday service singing carols and sharing what made Christmas special for us. I thought I'd share from Frederick Buechner's "Listening to your Life" (1992, Harper Collins), a series of meditations for each day of the year. Our pastor read this passage tonight in our evening service and it really touched me.
So Hallowed -- December 25 This passage in Buechner's work spoke eloquently to me tonight, on several levels. It reminds me of a minor epiphany I had, now nearly 15 years ago, while reading Boethius' Consolation of Philosophy. The revelation was that eternity, having no beginning or ending as it does, cannot be said to simply be only a progression of seconds or days along a time line. It is something entirely more complex, richer somehow, than such a two-dimensional model. It seemed that this other component of eternity, that richness that makes it more than just an endless progression of moments, might manifest in any given moment in a degree of depth. Eternity, it seems, is not only a matter of time's longevity, but also of its profundity. Buechner reminds me of this, and furthermore calls to mind the nature of belief, and how the desire to have faith in those most worthy of Christmas ideals is, itself, an act of the very same faith to which we aspire. The human soul ever stretches, in heights and depths, toward truth and love. While our reach usually exceeds our grasp, the reaching is all.
Thursday, December 23, 2004 Like many people, I've been following the whole "tort reform" argument wending its way through society over the past several years. Lately, it seems that folks in favor of tort reform have begun to use rising health care costs as a lever to influence the public to support legislation to "reform" the tort process and to cap damages in what they call frivolous lawsuits. Now, it's no question that frivolous lawsuits shouldn't be acceptable to a society which favors personal responsibility over trying to soak someone for a lot of money for an error that could have been prevented with a little common sense on the plaintiff's part. However, activists who have ulterior motives for wanting to restrict tort law and cap damages are using some flawed reasoning and, frankly, misinformation, to convince people that there is a frivolous lawsuit epidemic in the states, and that it is a key reason for rising health care costs. It is perhaps worth noting here that all compensatory and punitive damages paid out in malpractice lawsuits last year amounted to less than 1% of the total cost of health care to US citizens. So, yes, the cost of malpractice insurance may be burdensome on many physicians, but health care costs, overall, experience only a tiny increase in costs due to malpractice damages. This suggests that what is needed is not "tort reform", per se, but reforms by the insurance and medical professions to address the burden of malpractice insurance on physicians. Of course, calling for this kind of reform doesn't allow people the opportunity to imagine that all the real problems in the world are caused by greedy lawyers, and if we could just constrain them, somehow everything else would work out. Indeed, it is pretty clear that a major motivation behind some politicians' and activists' efforts to frame the debate in terms of tort reform is that they are strongly aligned with corporate interests and, as such, find any regulation on corporate sovereignty to be distasteful. As a fiscal conservative, I am strongly in favor of free trade. But free trade is only meaningful if there is a regulatory environment which supports a fair market. A fine line has to be drawn so as not to strangle the market with regulation, but you can't have free trade in the absence of key regulations to the market to set up a level playing field and hold the players accountable. Otherwise, what you get is bullying and thuggery by the strongest players (as evidenced throughout history and even in contemporary accounts of corporate malfeasance and monopolies) to the detriment of others in the market, including the consumer. An unregulated market is certainly "free" for such giants who can use their muscle and willingness to engage in unscrupulous behavior to influence the system to their benefit, but it can hardly be considered "free" in the sense that most consumers and capitalists cherish the term. The pointed question remains: if a corporation is clearly negligent, and its negligence results in someone becoming seriously hurt or killed, what kind of punitive measure is fair? It's understandable that large corporations, and the politicians which are beholden to them, would like to limit punitive damages to a few hundred thousand dollars per case. For Wal-Mart and other such mega-mega-corporations, a settlement like that is a drop in the bucket. Such a corporation could kill a dozen people a day, gladly pay such a trivial sum, and never feel the need to change their business practices to eliminate their negligence. That's the whole reason for punitive damages - to make the settlement hurt, and thereby to induce the entity so stung to amend their behavior. It has been stated before that corporations are institutionally psychotic. They have no innate conscience and are only driven, as an institution, by profitability. Whatever restraint they exercise has to be imposed on them either by the fortune of having ethical directors or by the necessity of legal regulation. Punitive damages cut to the core of the motivation for such an entity, and therefore are one of the most efficacious means to influence its behavior away from socially destructive ends. As for frivolous lawsuits, two things to keep in mind. One, the vast majority of frivolous lawsuits that are filed (and of which the public hears about) are dismissed by the courts. Two, many of the so-called "frivolous" lawsuits which appear to be frivolous from an outsider's view (including some reporters who are unfamiliar with the details of the case or the relevant law) do actually have some merit. All of this comes to mind, today, as I was reading a bit on-line about the (in)famous case of Stella Liebeck and her "frivolous lawsuit" against McDonalds when she was scalded by spilling a cup of hot coffee in 1992. Like many folks, I only heard the barest discussion of this case on the news. Given the way the story was framed (and, frankly, poorly reported), the $3 million dollar punitive damage settlement she was awarded by New Mexico jury, and a lot of media saturation about "frivolous lawsuits" and the need for tort reform by politicians and others, I pretty much accepted the common interpretation: that Stella was an opportunistic "victim" who didn't exercise basic common sense and now was looking for deep pockets to dip into for some cash to line her own. Turns out, I was very, very wrong. After reading the facts of the case, it's clear that Ms. Liebeck was anything BUT an opportunist in this matter, despite the serious wounds she received. And it also turns out that McDonalds had a long history of gross negligence, with many others having similar experiences to that of Ms. Liebeck, which had not induced the corporation to change its practices. The following is an excerpt from a comment by user ShawnStruck on MetaFilter's discussion thread of this case, outlining the essentials. This outline seems to be a fair representation of the very serious, very non-frivolous issues involved: After the car stopped, she tried to hold the cup securely between her knees while removing the lid. However, the cup tipped over, pouring scalding hot coffee onto her. She received third-degree burns over 16 percent of her body, necessitating hospitalization for eight days, whirlpool treatment for debridement of her wounds, skin grafting, scarring, and disability for more than two years. Morgan, The Recorder, September 30, 1994. Despite these extensive injuries, she offered to settle with McDonald¹s for $20,000. However, McDonald¹s refused to settle. The jury awarded Liebeck $200,000 in compensatory damages -- reduced to $160,000 because the jury found her 20 percent at fault -- and $2.7 million in punitive damages for McDonald¹s callous conduct. (To put this in perspective, McDonald's revenue from coffee sales alone is in excess of $1.3 million a day.)
Wednesday, December 22, 2004 Reading Howard Bashman's first interview of an appellate judge, in this case of Circuit Judge Andrew J. Kleinfeld of the U.S. Court of Appeals for the Ninth Circuit, in May 2003. These interviews are incredibly informative and entertaining. In this one, Bashman poses a question about the much debated "judicial activism", with an excellent response from Judge Kleinfeld.
Bashman: How do you define the term "judicial activism," and is it ever proper for a federal appellate judge to consider his or her personal preference as to the outcome of a case (other than the preference to decide the case correctly in accordance with the law) in deciding how to rule?
Tuesday, December 21, 2004 Just reading Howard Bashman's interview of Circuit Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit, taken back in February of 2004. The following comments by Judge Reinhardt struck me as eminently reasonable, given the recent brouhaha over the Republican threat to eliminate the filibuster to prevent blocked judicial appointments.
"So long as the president follows a policy of making his appointments for ideological reasons, and of appointing only judges who share his philosophical point of view, the opposing party has the right, if not the obligation, to block at least some of the most extreme of those nominees in order to attempt to bring some balance to the judiciary. If, on the other hand, a president decides to be a "uniter, not a divider," by appointing some judges with independent or differing judicial philosophies, and to insure some balance in the federal courts, there would be less reason for the type of opposition that we have witnessed in the past two or three years. In short, given the present circumstances, I would be more inclined to urge the president to change his approach to judicial appointments than I would to urge the senators to stop filibustering the most extreme of his nominees. So long as appointments are made on ideological grounds, and there is no room for the appointment of persons with different points of view, opposition based on ideology is perfectly appropriate, as is the use of all proper procedural means to make that opposition effective.
Sunday, December 5, 2004 Well, I just returned from this year's annual Christmas Carol Celebration at the Cathedral. This was the 30th year of having this event, and this year I chaired the team coordinating it. It was a lot of work preparing, arranging logistics, publicity, invitations, program plannning, practicing and all, but our team worked well together and the result was absolutely superb. The Curé of the Cathedral, Père Gontier, and the Sacristain, Patrice, were also very helpful in letting us use the Cathedral and helping us get set up. About a thousand people, from perhaps two dozen countries (with large American and French contingents), were in attendance to sing carols and hear a brief message. A soloist, a choir, an orchestra and the speaker made it a memorable occasion. My role in this event, giving a reading from Luke 2:1-7, lighting the main candle and helping coordinate the overall event behind the scenes, is something I'll treasure for the rest of my life. The highlight of the event, and the most moving part for me, was the candle-lighting at the end. We had invited about 8 clergy from the area, including several protestant pastors, a Dominican friar and Père Gontier, to come and initiate the candle lighting this year. I lit the main candle on the altar at the beginning of the service and then, just before the last carol, the electric lights were extinguished. The clergy came up on the dais, I went to the altar and got the candle and brought it to them, whereupon they lit their candles from it. I'm not sure why my involvement in this - my little gesture in bearing the candle to the clergy - struck me so profoundly when it was over, but it did. From there, they turned to the assembly and the orchestra began "Silent Night". The clergy went out into the people and passed the flame to the candles that everyone else had picked up on their way in. It was beautiful to see the light spread that way in the darkness. When the candles were lit, the clergy came back up to the dais to stand together as the orchestra stopped playing so we could all sing one verse of "Silent Night" a capella. The sound, and image, of that moment - the unity of faiths and peoples from around the world resonating in the imagery and sound in that Cathedral was simply awesome. When it was over, no one wanted to leave! Last Sunday was an interesting event, too, but for a different reason. A couple of our English-speaking church congregation (which shares a church facility with a French church) accidentally broke the church's centuries-old marble communion table. It happened while moving it to make room to practice for tonight's event. Our pastor and I (as the new President of the Church Council) went last Sunday to speak briefly to their congregation and express our apologies, and to assure them we wanted to pay for a replacement. In response, the French congregation was extremely gracious and kind to us, sincerely concerned more for the poor young lady whose big toe had been unfortunately broken when the table fell. A number of them ventured to express, too, that it was good that the marble table was gone, as it was a hazard and they could now get a lighter wooden communion table which they could move easier when they needed. I think I was given the best compliment I've ever received in France by an elderly man who said with a smile "It was not necessary to apologize, but thank you for doing it. You are very correct gentlemen." To be called "correct" (meaning proper) by a venerable Frenchman is high praise, indeed. It's just one more example of how I've been continually impressed with the kindness of the French people - quite at odds with the stereotype one may hear about. I find that if I try to make an effort to be friendly and respectful, they are very warm and accommodating. I guess it could be different in a big city like Paris where perhaps (like any big city in the world) people might be less open to interacting with outsiders. Or if I were abrasive in my own interactions, I might expect a less warm reception (again, something one could expect the world over). But my personal experience among the French has been overwhelmingly positive.
Wednesday, December 1, 2004 Not much going on here for Thanksgiving. Thursday wasn't a holiday, of course, and I had other obligations, so I postponed celebrating until the weekend. Which, it turned out, was very pleasant. I had a turkey dinner with an American family - just the four of us - here in town on Saturday, which was very nice. We played instruments (David is an excellent classical guitarist, and it was great to jam with him on my mandolin). After dinner, we took a walk out by the dam (a beautiful view of the river sunset over the river gorge), then went back to sing, have pie (one slice each of Rachel's excellent pumpkin and apple pies) and play scrabble. The day was low-key, but a lot of fun, and much nicer than getting into the whole start-of-shopping rush with the maddening hordes. Okay, I will admit it. I do enjoy shopping. Not the kind of "running the gauntlet, searching for just that perfect item, waiting in long lines, walking forever laden with stuff" kind of shopping. But I do like to stroll around the stores, look at the different products, imagine using each one, imagine re-engineering and improving them. I read the labels, compare prices, notice the marketing gimmicks, the displays. Even if I never buy anything. I guess it's because being in a store is a little like going on a minor adventure. You have foods and utensils and doo-dads from all over the world that have journeyed they're way though any number of mechanisms and processes, to all end up under one roof. The intricacy and clever innovation of a new invention, the foreign wording on a label from China or Holland or Brazil, the interesting collaboration of a product's ingredients to make the whole product work, the silliness of some new product fad, or the wisdom behind the longevity of some tried-and-true product that's been around for generations. All of these offer opportunities for learning a little something about the world. Stores can be pretty neat, viewed with the right attitude. And then you think that, just for the consideration of exchanging some mutually accepted, official paper - that in itself represents only by general convention the productivity of the work you've done - you can take one or more of those products home. It's quite impressive, that whole system of commerce and trade, when you really think about it. When it comes to it, I must confess, I'm a hopeless ingredient peruser, too. Pharmaceuticals are the worst. As a former chemist, I go down the list and note the new compounds being introduced, the concentrations. For example, most people don't know that the diphenydramine in Benadryl is the same active ingredient as the diphenhydramine in Nytol. The same drug is both an antihistamine and a sleep-inducer and is sold under different labels for different purposes. And when you realize that one label is sold for much more than the other, and then that there's a store-brand of that cheaper one that's the same compound but half the price, there's a little thrill, like you just saw beneath the veil that marketing tries to draw over your eyes. The same for food, toiletries, and so forth. You can tell by looking at the ingredient list that one shampoo is just as good as another, even if they're price is vastly different. Or that the pricey suntan lotion or moisturizer or whatever is just a glitzy label on a basic combination of chemicals that you can buy in a different package for much cheaper. A while ago, I stopped buying after shave and started making my own - which turns out much cheaper and I like it better anyway! What's got me thinking about all of this is that, just tonight, I was buying groceries at the local store. Now, the drop in the dollar - about 40% against the euro in the past three years - has really made the price of my food skyrocket. It's now the most I've ever spent for food, on a monthly basis, by a fair margin. And I don't eat a lot of food! So my natural hobby of consumer shopping really pays off when grocery shopping. So tonight, I ran across this excellent example of what I'm talking about. In the organic and health foods section, the store (called "Casino") has its own brand of health foods, which are cheaper than the other brands by a fair margin. I like to buy those little fruit compote cups, like applesauce and so forth, as snacks, in addition to regular fruit. So I was looking at their offering and noticed the "bio" (all-natural ingredients) compotes, under the Casino label, had 4 x 100g (about 4 oz. each) for 1.82 euros. That's about $2.40 for four little cups, or 60 cents each! However, in the very next aisle, in the regular foods section, the store had its own brand of regular compotes, 4 x 100g cups, for 0.85 euros. That's about $1.08 for four, or 27 cents each. Less than half the price of the "bio" product. Well, okay, it's made by the same company, but maybe it's a different product, I thought. I scoped out the ingredients. Nope - same components, and in the same percentages. Well, I thought, maybe the components themselves have a different nutritional profile. Nope - same nutritional profile. Same calories and percentages from fats, carbs and protein. Same vitamins and minerals. On a hunch, I took back a four-pack to the health food section to compare them. Inside the cardboard label, you could tell that the plastic cups are identical. In fact, the product seemed absolutely identical in every way - both were made by the same company, both were made of all-natural ingredients (a pureed blend of apples and apricots, a little cane sugar and some vitamin C as a preservative). It was just labeled differently and marked up monstrously so that people who wanted to pay more for a product they found in the health food aisle had the chance to do so. I admit, while I'm glad to have noticed all this, there's still something a little irritating about making a discovery like that. It's as if you discovered one more way that the marketers are really just trying to take advantage of you. One is not naive, but it still makes you wonder, again, how many other ways they take advantage of you that you don't manage to catch. Predatory marketing. As for the fruit compotes, 27 cents per 100g isn't bad, but it's not great, either. I may just get a blender and start making my own.
Monday, November 22, 2004 It's my lunch break, and I was just taking the opportunity to watch the C-SPAN video feed of Rep. DeLay's responses to the Ethics Committee Ruling. I may be missing something, but I have to say, I'm disappointed in some of my fellow Republicans that voted to change the party ethics rules. True, DeLay may well be a target of a partisan attack in his home state. But the House Ethics Committee is bipartisan, with both Republicans and Democrats, and has rebuked him FOUR TIMES for his unethical behavior. So the argument that his ethics violations are simply partisan attacks doesn't hold water. And with that in mind, it strikes me as the wrong thing to do for the party to relax its ethical standards in the face of such circumstances. I mean, it is hard to carry the torch for "moral values" in one hand, when you're stripping the party of its ethical accountability with the other. I confess that personal integrity and ethics are matters about which I feel particularly strongly, and holding each other accountable to a high moral standard should be what we're all about. I don't believe that just because someone shares my faith or my political affiliation that they should get a free ride and not be held accountable for ethical behavior. Indeed, they should certainly be held to a higher standard. That's the whole point. I appreciate that DeLay is a very powerful man and has the ability to draw a great deal of funding for the Republicans and they want him to stick around. But I just don't think changing the rules to allow him to remain in his job, in spite of repeated ethics violations and an impending indictment, is the moral, ethical way to represent and lead our country. Our integrity demands better.
Saturday, November 20, 2004 A few weeks ago, I decided, as part of my cultural learning here in France, I wanted to learn how to cook something quintessentially local. Something simple to take to parties and such when everyone is asked to bring something. So on Friday afternoon, I tried to bake madeleines, which are to this country what muffins are to the US and scones are to the UK.
Thanks to the Tefal flexible silicone pans I picked up yesterday, they turned out awesome. That's in spite of a gas oven which doesn't quite get up to the right temperature and fluctuates madly between temperature settings. Anyway, here's the recipe:
Ingredients: Directions:
1. Melt butter in small pan, let cool off a bit before using. It's a really simple recipe and the result tastes like lemon pound cake. They're a very traditional French snack cake. In Proust's Swann's Way, a part of his Remembrance of Things Past, it was the taste of a madeleine that triggered his reverie of childhood and inspired that seminal French work of literature: "And suddenly the memory revealed itself: The taste was that of the little piece of madeleine which on Sunday mornings at Combray (because on those mornings I did not go out before mass), when I went to say good morning to her in her bedroom, my aunt Léonie used to give me, dipping it first in her own cup of tea or tisane." I adapted this recipe from one for about 24 madeleines and added the vanilla flavoring, which makes it better, I think. I'm sure the recipe could be adapted further to make it even better. I was a little frustrated at my oven, though, which only reached the preheat temperature after 45 minutes (!) and as soon as I opened the door to put the trays in, dropped to 400 F (200 C), so my whole 11 minutes was at the lower temperature. I was very impressed with those flexible, silicone trays by Tefal, too. Even baking and no-stick. (p.s. On a completely unrelated topic, I would simply point out that I have yet to receive my absentee ballot from Arizona.)
Wednesday, November 3, 2004 Well, it appears the vote is winding down, and with only the slimmest of chances that provisional or other absentee votes will change the race in Ohio or Florida, it appears that Bush has won. Kerry has already conceded. Frankly, I'm glad it's over, and we can move on. By one estimate, nearly $4 billion was spent on this election cycle. It's now time to turn our attention to solving problems rather than arguing about them.
Sunday, October 31, 2004 Well, I know my ballot arrived in Phoenix on Friday. From the Chronopost tracking: HISTORY:
Fri 10/29/2004 08:04 AM Shipment out for delivery Location of scanning : TEMPE Why it went to Tempe is anybody's guess, since the destination on the letter was on 3rd Street in downtown Phoenix. Perhaps that's the next-to-last stop - the staging warehouse for final delivery. Anyway, hopefully the right office gets it and hopefully they'll actually count the vote. I can't express how sad it is that there would even be a question at this point as to whether they would.
Tuesday, October 26, 2004 My voting fiasco is over. For some, it continues. "Some are frustrated, some are angry, and some break down and cry because they feel so strongly about wanting a chance to vote. I've never seen an election as emotional as this before."
Monday, October 25, 2004 I've told some folks about my voting fiasco, trying to get registered and vote absentee overseas. A number of them have asked if they could link to the story, so I've set up the Permalink on this entry to link to this entry in my archives. I've included the introduction and first part of the chronology from October 20th, and added the events of today to the end of it. I'll also update the story later once I track the express letter and make sure they have received it in Arizona. So this blog entry will have the whole story and people won't have to sift around in separate blog entries for the updates. Thanks to all who have offered encouragement and advice on this issue. And GO VOTE! -Geo *** "The Price of Democracy"
Voting from overseas has been something of an adventure for me this year. First of all, I should say that it's great US citizens can vote in their home country even though they have temporary residence overseas. Germany doesn't allow you to do that at all. And given the Internet, it makes information exchange a lot easier than it used to be. So I really shouldn't complain. Okay, I'll complain a little. Trying to get registered and vote in this election has been a repeated exercise in frustration. Between the bureaucracy and the (perhaps unintentional) misinformation, I've been seriously tempted to think ill of our Secretary of State and County Recorder's office. First of all, I had to register to vote, of course. Arizona has this nifty arrangement whereby you can register to vote on-line, but only if you have a digital copy of your signature on file with the Motor Vehicles Department. They didn't start using these digitized signatures until a few years ago, so if you want to register on-line and you've had your Arizona driver's license for more than a few years, yep, you guessed it: you have to go to the MVD and get a brand new driver's license. Thus, bureaucratic flaming hoop No. 1 was to spend a morning at the MVD. I could have simply used the time to register to vote in person, but if I did, then I'd be going through the same hassle in future election seasons. So I went ahead and invested the time to hop into the 21st Century with my driver's license. New license in hand, and digital signature on file, I go on-line and register (Republican). That was in the Spring. However, as I have temporary residence overseas while I'm doing my community development work, I needed to apply for an early absentee ballot. Here's where it gets a bit interesting. Evidently, there are about 7 million US citizens living and working overseas. About half a million of them are in the military. So far, it's just bureaucracy. Now enters the politics. Evidently, the military has a tradition of being pretty Republican. I believe the estimate is about 2/3 of the enlisted and 5/6 of the officers are Republican, meaning the military overall is about 70-75% Republican. The overseas military are being given every opportunity to vote in this election, with the Pentagon even setting up special voting support for the military on-line. It is interesting to note that the Pentagon closed this to use by non-military folks. Those 400,000 overseas military Republicans will have no problem getting their votes into the count. On the other hand, those 6.5 million or so non-military overseas voters tend to vote Democrat. I've heard different estimates, but some go up to as high as 2-to-1 in favor of Democrats. This means that, among non-military there are perhaps 4 million more Democrats overseas than there are Republicans. And the only way these folks can vote is to personally request an early absentee ballot from their home states, wait for them to be delivered overseas, process and mail them back before election day. Do you see the potential problem? Well, the Republicans seem to be able to see it pretty clearly. Whether by coincidence or intent, Republicans often hold their primaries very late in the election season. And since the ballots can't be certified and printed until the primaries are over and the count is final, it can mean that overseas ballots aren't sent out until only four weeks (or less) before the election. If you're in Europe, where it might take a two-week turnaround, you're pretty close up against the wire for being able to get your ballot and have it back in time to be counted. If you're elsewhere in the world, where mail may take 2-1/2 or 3 weeks, then you're pretty much excluded from the process. Which means that late Republican primaries - or late printing of ballots due to third-party court squabbles - can amount to essentially disenfranchisement of millions of Democrats and Republicans overseas (but millions more of the former than the latter). The result is perhaps up to a 2 million voter advantage given to the Republicans nationwide. The impact of this disproportionate representation on a state like Florida, which has about 5% of the US population, is a Democrat vote disadvantage of roughly 100,000 voters. In my home state of Arizona, Democrats get dinged about 30,000 net voters. But regardless of the inequity, millions of Democrats, Republicans and others are having their vote suppressed. Pretty startling, isn't it? So startling, in fact, that it seems on the order of a serious scandal. Of course, there is no telling how many overseas folks would vote even if they had their ballots on time. But it is a little disconcerting to think that this goes on year after year. And while I'm hoping to give the Arizona Secretary of State (Republican Jan Brewer) the benefit of the doubt about her integrity, I'm dismayed that this whole thing is not handled more competently. But I said I wouldn't complain. (I should note, at this point, that I'm a registered Republican, but I find voter disenfranchisement - regardless of the party affiliation - to be absolutely contemptible. Voting is the "crown jewel" in a democracy and it should be protected with a vengeance. People who, either by incompetence, negligence or intent, prevent others from being able to exercise their right to vote are complicit in a serious injustice. It genuinely aggravates me.) Anyway, as for my own experience trying to vote this year, I'm doing what I can to make sure I get my ballot. But it's definitely not easy, and still fraught with frustration, even as the clock ticks down. I've been documenting the process, which I'll add below in a running chronology of events. The following dates, given in italics, are NOT the dates of my blog entry - those are in bold. They are instead the dates of when the events occurred in this story, all of which are being presented in the single blog entry. Sorry for the confusion! The chronology: On August 24th, 2004 Filled out a request for an early absentee ballot through the Arizona Secretary of State's website set up for this purpose (http://www.azsos.gov/election/military.htm). I saved the confirmation page. At the end of the questionnaire, it said that someone will be back in touch with me soon. On September 26, 2004 Not having heard any response (email, phone, letter, etc.) from my request for a ballot, and knowing that ballots were due to go out on September 30th, I once more filled out the questionnaire today. Perhaps the August request wasn't processed. I saved the confirmation page again. On September 27, 2004 No response to earlier requests. I filled out the request again - third time, just to be sure. Saved the confirmation page. On October 4, 2004 Wanting to confirm that my absentee ballot request had been received and processed, I called the Elections Department of the Maricopa County Recorder (602-506-1511). I spoke to a lady in the office and asked her if she could confirm to me whether it had. She found my name and said that, yes, it had been processed and the ballots were sent out on September 30th. I asked her to confirm the address for me. She confirmed the address, but it was evidently entered in the computer all on three lines, meaning that part of the street address was placed on the line with my apartment building name and letter, which I thought could possible create confusion. I raised this concern with her and she said "Well, it just displays that way on the computer, but the mailing label will print out correctly." I asked how that happens, since the printer wouldn't know where the line breaks should occur without actually knowing what my address was. She confirmed that this is the way it displays and that it'll turn out right on the ballot. I thanked her for her help and said goodbye. On Monday, October 18, 2004 Investigated online the possibility of applying for an emergency ballot through the Federal Voting Assistance Program (http://www.fvap.gov). Their instructions for doing this and all the flaming hoops make this a daunting task, but I was prepared to do it. Then I noticed that, in order to be able to use the FVAP to get emergency ballots, you need to have submitted a FPCA SF-76, a Federal Post Card Application, in order to request your ballot. Since I didn't do this, having requested a ballot via the AZ Sec. of State overseas voting web site, it doesn't appear that I'm eligible to use this procedure. Good grief. On Tuesday, October 19, 2004 Called the Elections Department of the Maricopa County Recorder (602-506-1511). To ask again about my overseas ballot, which I'd not yet received. Spoke to "Scott". He confirmed that my ballot had been mailed out "at the beginning of last week", that is, sometime on or after October 11th. I asked him why it had gone out so late, and why, when I'd called earlier, I'd been told that it had been mailed on September 30th. "There were some problems getting them all out in time," he said. "Depending on how fast the international mail is, you should probably be getting it later this week." I asked whether that might prevent me from getting the ballot in on time for the election. "As long as it's postmarked by October 29th, that's the Friday before elections, it'll be okay." "Wait, that'll mean that it could get to Arizona a week after the elections. Won't it not be counted, then?" I asked. "As long as it's postmarked by the 29th of October, it'll be okay," he confirmed, authoritatively. I also confirmed my address, since the previous time I'd called, the lady confirmed my address, but said it was aall written on three lines, meaning part of my apartment building line was blended with the street address. Scott confirmed that he was looking at it and it was all displayed correctly, as I recounted it to him. I thanked him and said goodbye. On Thursday, October 20, 2004 Ballot still hasn't arrived. On the website "Project Vote" (http://projectvote.org/index.php?id=126), i read that the deadline for receiving absentee ballots in Arizona is 7:30 p.m. on election day, postmark required. Alarmed that Scott had given me misleading advice on the deadline, I contacted the US Consulate in Marseille and explained the situation. I spoke to Julian, who took my name and address and agreed to send out a Federal ballot, which would at least let me vote for President, Senators and a few others, but he didn't seem sure that I'd be able to vote on the local offices in Arizona. I happily accepted - it was better than nothing. Julian also mentioned that I called on a good day, since the State Department had instructed them NOT to send out the Federal ballots until the 20th of October. "They wanted to make sure the states had enough time to get their ballots out, but now it's obvious that the states are having a tough time keeping up with the new registrations." I confirmed that he had my address correctly, and he said the ballot would reach me in a couple of days (I'm figuring on Saturday or Monday). I'll keep you posted on how it goes. On Monday, October 25, 2004: Following on my continuing saga of trying to cast an absentee ballot from overseas, today I went to the post office and picked up my federal ballot which the consulate sent me. Just in case I was being hoodwinked by the County Elections folks back home, I decided to overnight express the ballot back to Arizona just to make sure the vote is counted. The express post envelop for a 2-3 day delivery to North America cost me 41 euros (about $50). I went on line to the www.fvap.gov site to find out where to send my ballot. Sifting around in Chapter 3 of the Voting assistance Guide, I found the link to the Arizona document (an acrobat file) that described using the Federal Absentee Ballot from overseas. In the acrobat file, they give an address for where to send the REQUEST for an APPLICATION (the Federal Post Card Application, or FPCA) for a Ballot. They have no specific address for sending the ballot itself. The address they list is specifically:
County Recorder Keep this address in mind. It'll come back later. Now, seeing that the document never specifically mentioned the address for sending in the ballot, I COULD have just assumed that it was the same address. However, by this point, I've become, shall we say, a little skeptical at the overall smoothness of the process. I decided I would call the Maricopa County Elections Office again tonight (once they were open in Arizona) and confirm the address. It's a good thing I did, because I turned up a whole series of systemic problems. I waited until about 11 p.m. my time. It would be 2 p.m. in Phoenix, which would let people get back from lunch. I called and waited in the queue for about six or seven minutes and finally got to speak with someone. This fellow identified himself as "Dominic". I asked Dominic if he would please confirm that I am registered to vote and that they have my information accurate. He did so. I then asked him to confirm when my Absentee ballot had been sent out, as I had not yet received it. "It went out on September 30th," he said. "Um...", I paused, "When I called in last week, I spoke to Scott, and he told me that because of the delays, it hadn't gone out on the 30th, but had been delayed until 'the beginning of last week', which would have been Monday (Oct 11) or Tuesday (Oct 12)." "Well, I'm showing it went out on September 30th," he confirmed. I was a little frustrated at this, since if I had relied on Scott's information, I might have thought the ballot was just around the corner and not enacted Plan B to get the ballot from the Consulate or Plan C to download it from the Net. Fortunately, despite Scott's misinformation, I now had the Federal Ballot from both of those sources and didn't need to wait for their ballot to arrive. I was still irritated that I wouldn't be able to vote for any of the local offices, though. The federal ballot wouldn't permit that - only my Arizona ballot would have those on it. I decided to cut my losses and move on to the important questions. "Okay, at this point, I'm going to just go ahead and use the federal ballot that I have in hand," I said. "Could you confirm for me the date that it has to arrive?" I'd read and heard conflicting information and wanted to get this straight. "It has to be postmarked by November 2nd," said Dominic. "But wait," I challenged, "what if my ballot doesn't arrive for two or three weeks after that? Would it still be counted?" "Well, hopefully it won't take that long," he said. "Well, I'm overseas, and mail can sometimes take two or three weeks. If I get my ballot postmarked by November 2nd, and it arrives two or three weeks later, say, on November 20th, will my vote still be counted?" "Yes, you're good to go," he said, "I've got you in here as an early absentee voter, so it's okay." At this point, if you will permit me, my "BS detector" was off the charts. What he was telling me seemed totally outrageous, and I wanted to get it confirmed. I also wanted to get a question answered about where to send my ballot, so I went ahead and asked him. "I'd also like to know where I send my federal ballot." I explained that the FVAP website had given the address for sending in the application postcard, though no address was given for where to send the ballot itself. "I'm not familiar with the FVAP," he said, and I knew I was barking up the wrong tree. "The FVAP - the Federal Voting Assistance Program - it's the federal program devoted to helping people vote?" I prompted incredulously. "It's where you can download a federal ballot in case the state ballot doesn't arrive in time?" "Well," he said again, "I'm not familiar with that." In a very pleasant voice, I said "Could I speak to someone in your office that's familiar with the federal ballots, then, please?" I asked, trying to keep the steel from entering my voice. I was doing a pretty good job. Dominic said yes, and then put me on hold. Ten minutes later, a young latina voice came on the phone, introducing herself as Melissa and asking if she could help me. I introduced myself and my situation politely and asked her if she was familiar with the Federal ballot program. "Let me get your information first," she said, so I told her my name and confirmed my address again. "And you still haven't received your ballot? I could send you another one," she offered. No, I answered, explaining again why I was using the Federal ballot, and was she familiar with that program? "Well, the only thing I can do is to send you another ballot," she said, with some finality. "No, I HAVE the ballot, it's the federal ballot that you download from the federal website and use in case you don't receive your ballot from your state. I have some questions about that ballot. That's what I asked Dominic about and that's why I've been waiting on hold, to talk to someone about the federal ballot." I was still being polite, but my frustration was mounting. "Is there a supervisor there that I can speak to, who might know about the federal ballot?" Sure, she said, and put me on hold. A few minutes later, I was speaking with Margaret. I told Margaret that I'd downloaded a federal ballot from on-line and asked her when the deadline is to send it in. "Friday of last week," she said, flatly. I paused for a moment, trying to process the meaning of what she'd said. "Friday of LAST week," I repeated. She agreed again. I told her that didn't seem right, since it was only the 20th that the ballots were made available on the web site. "You can't download a ballot, sir," she said. "You can only download the request for a ballot. The deadline for those was last week." It was obvious that Margaret knew nothing about the online Federal Ballots. I explained them again, giving here the web site, which she looked up. "The last day to receive ballots is the day of the election - November 2nd. We don't use postmarks, sir." She went on to confirm that she knew nothing about the federal ballots, though. "I'm frankly surprised that an elections supervisor doesn't know about this," I said, "since you folks are almost certain to be dealing with hundreds of these ballots at least, given the delays in sending out the ballots from the county." "Oh, well, I'm not the supervisor," said Margaret. "My title is Lead." I momentarily wondered why ANYONE in the office would be ignorant of this matter, but before I could say so, she asked me if I'd like to speak with her supervisor. I said yes. A moment later, I was speaking with Leta who Margaret introduced as her supervisor. I explained the situation all over again and asked Leta if she was familiar with the federal ballots that could be downloaded from the FVAP website. Yes, she said, she was familiar with them. "Well," I said, "you're the only one in your office that seems to know about them." I went on. "You probably should send out a memo or have a meeting to bring your staff up to speed on this, since I'm almost certain you're going to be dealing with hundreds of these in the upcoming week. I did have some questions about the ballot, if I may." Leta said go ahead. "First, when is the deadline for your receiving my ballot?" Leta confirmed it was the day of the election. Both Scott and Dominic had misrepresented this and had I listened to them, my ballot would have arrived late and the vote would not have been counted. "Second, could I confirm the address to which I'm supposed to send my federal ballot?" She told me:
Maricopa County Elections Note that this address is subtly different than the one given for sending your REQUEST for a ballot, given in the Arizona guidelines for using the federal ballot. "Third, I'm concerned about the kind of envelope I should send it in. If I put my ballot in an express-delivery envelope, like those used by Fed-Ex and DHL, will that be accepted as being adequately postmarked and so forth?" She reiterated that her office does not care about the postmarks, since they are irrelevant, but confirmed that "we accept those kinds of envelopes all the time". "Thank you very much, Leta," I said, and reiterated that she really should consider having a staff meeting to inform everyone about the federal ballots and clear up the misinformation about postmarking, since there were some folks that clearly weren't aware of the procedures and policies. She thanked me and I said goodbye. During the whole call, I had remained pleasant and polite, of which I'm quite proud. Finally, I think I have the forms I need. I'll use the ballot I downloaded from the website, since I can get easier responsiveness from FVAP, I think, than from the US Consulate in Marseille. Furthermore, the FVAP ballot is the same as others will be downloading, and I don't want to introduce any wrinkles into this if I can help it. And I think I have the information I need. I'll fill out my ballot in the morning, Rich will come over and witness it, and then I'll take it to the post office in this express envelope I bought today. If I've done this right - and it's only taken me three forms filled out online to request the ballot, four long distance phone calls during which I had to wend my way through a labyrinth of misinformation and ignorance (sorry, but it's true), a phone call to the US Consulate in Marseille, reading quite a bit of guideline documents online and downloading the federal ballot, filling it out and getting it witnessed, two trips to the post office, and a $50 express delivery - if all that works out, I will get to have my vote counted in the Great State of Arizona. Democracy, as they say, doesn't come cheap. But given the literally hundreds of hours I've invested in researching the issues and the candidates, and the significant impact our President has on our country, I consider it money and time well spent. I'm only concerned that it's going to be this difficult for others out there and that many folks, not willing to wade through this kind of nonsense, will just decide not to vote. And that just seems very sad, to me. [End blog entry.] Thursday, October 21, 2004 This is too funny, in a twisted sort of way. After writing up and posting yesterday a LONG litany of how the overseas vote is being suppressed and how I'd been experiencing serious difficulties getting my absentee ballot, today the following was posted on www.electoral-vote.com: Tuesday I cited Richard L. Hasen on five ways this election could end up in the Supreme Court. Let me now add a sixth way. Today salon.com reported massive snafus with getting absentee ballots to the estimated 4 million American voters overseas. The office in charge of helping overseas Americans to vote is totally ineffective. In 2000 it was excoriated by the GAO for losing thousands of overseas votes. It now appears to be doing its best to make sure the 10% of overseas Americans who are in the military (and largely Republican) can vote while ignoring the 90% who are civilians and who hear about America's loss of respect in the world daily and are much more likely to want to replace George Bush. The office is dawdling about putting the emergency write-in ballot on its website, so Americans overseas who need one should get it from their consulate or embassy. The case which may well hit the Supreme Court will revolve about a simple question: Can a county send a voter his absentee ballot by snail mail to a far-away country a couple of days before the election and then refuse to count it because it came back after the deadline? The Salon article is spot-on right. It's nice to know that SOMEONE is paying attention! Wednesday, October 20, 2004 Update: I've now cut this entry detailing my voting experiences to date, as it has been included in the more detailed blog entry for October 25th. Saturday, October 16, 2004 Today is the beginning of Ramadan, the Muslim holy month of fasting. As I was musing on this, these lyrics came to mind, from a beautiful hymn, "The Love Of God":
Could we with ink the ocean fill
To write the love of God above
O love of God, how rich and pure! Saturday, October 9, 2004 Evidently, having been excluded from the second presidential debates last night in Missouri, Libertarian candidate Michael Badnarik was determined to attempt to enter the debate anyway. Preparing for his gesture of civil disobedience, he said, "I will debate or be arrested." Well, he was right, and once he had pressed his way through the police line, he quietly submitted himself to being handcuffed and taken away. Whatever his policies - some are very reasonable and some lack pragmatism - Badnarik's website does make an eloquent statement on the nature of civil rights in our Constitutional Republic. Quoting: "In crafting the Bill of Rights, the framers were careful to acknowledge implicitly and explicitly two key truths: The first is that government does not grant rights it acknowledges them. They exist independently of government. They're part of who and what we are. And, as Jefferson noted in the Declaration of Independence, the only legitimate function of government is to secure them. The second is that government is a servant to whom we delegate powers, not a master who dispenses privileges. The Constitution carefully enumerates the powers we, the people, delegate to our government and it specifically denies that government any powers not so delegated. Our rights lie beyond the pale of that delegation. They are sacrosanct. Any government which infringes upon them is engaged in an intolerable usurpation. The history of our nation is the story of a government constantly attempting to outgrow the Constitutional box we put it in and of a people struggling to stuff it back into that box. Sadly, government has grown so far beyond its Constitutional bounds that we can barely see the box any more." Saturday, October 2, 2004 I'm often intrigued by facts which seem to defy conventional wisdom. Finding out that widely held assumptions are based on falsehoods is of particular interest as it challenges me to consider things I previously had accepted blindly. As an example, there is a commonly held view that a nice, cold Coke can quench your thirst. Then I learned that the sugar and caffeine in the drink actually have the effect of dehydrating you more than the liquid provided by the drink. The sugar requires a lot more water to process and the caffeine is a diuretic. It was like a minor epiphany, realizing that my culture and very effective marketing have created a false impression which I had simply bought into without thinking. A similar realization occurred one evening this week when I was reviewing some taxation policy papers and came across a compelling report by the Tax Foundation, a nonpartisan foundation dedicated to raising awareness of tax policy. This report, dated September 23, 2004 and titled "Revised Data Show Some Candidates' States Profit from Federal Taxing and Spending, Others Foot Bill" shows some key facts which challenge basic assumptions about tax policy in our country. Indeed, the numbers show that traditionally "red" states (the ones who tend to vote more for Republicans, who tend to argue for less government spending and taxation, and voted for Bush in 2000) tend to benefit MORE from federal tax dollars that do blue states. In fact, 9 of the top 10 states receiving federal dollars, per tax dollar paid, are red states. Of the top 20 "winners" of federal money, 17 of them are red states. A list of the top 10:
1. D.C. ($6.17) *Red states. I'm not counting D.C. in this, as it's the seat of our federal government and one would expect it to receive more federal funding per dollar spent for that reason. Further, it isn't a state and has no representation in congress to lobby for federal appropriations. As for my state, Arizona falls near the middle of the stack, rating 21st in per-dollar returns (receiving $1.20 back in federal funds for every dollar spent). The report lists a number of possible reasons for this. But I thought it was interesting to note where federal tax money actually flows. It seems that states which tend to vote Republican tend to also get the most federal money. Saturday, September 25, 2004 I'm watching closely the passage of H.R. 2028 (The "Pledge Protection Act of 2003") in the US House of Representatives. It is an interesting question how the separation of powers and the Establishment clause of the US Constitution interact with the act being passed. The Establishment clause is seriously debated in its application and reasonable, sincere minds can certainly differ on how it should manifest in a law relating to the Pledge of Allegiance. Now, I personally believe the phrase "under God" should stay in the Pledge. However, for all the importance of the phrase, introduced to the Pledge about 50 years ago, it seems a red herring in this particular situation, since the issue is broader than sanctioning a specific wording of the Pledge. Rather, it touches the very nature of judicial review on civil rights cases in our country, and impacts a variety of Establishment-related issues in our government. It seems fairly clear to me, and I think would be in accord with most approaches to interpreting the US Constitution, that Federal courts and the US Supreme Court should not have their jurisdiction to rule on issues of First Amendment constitutionality stripped from them by a legislature simply because the legislators may disapprove of the courts' decisions. That is, after all, why we have a judiciary - to judge impartially without regard to political pressures. The popularity of their opinions is not supposed to be a factor in their review of the merits of a case (ideally). However, legislators must be ever conscious of the popularity of their positions, as they act as representatives of the popular will and are, in turn, elected by them to the degree that their positions reflect that will. Which leads to the importance of the separate branches and their respective authority. If legislators are concerned with judges "legislating from the bench" then surely they should also be concerned with themselves "judging from the legislature" given, as they are, to the populist urgings of their constituency. That, in itself, might be sufficient a reason to render moot further discussion on the Establishment clause and its relevance in this debate. One might, instead, focus the discourse on whether the act should pass based simply on the rationale for depriving the federal judiciary of the jurisdiction on ruling on the constitutionality of an act which touches on fundamental civil rights. If this is inadvisable in principle, then such an act, even though it may be supporting a popular position with regard to the wording of the Pledge, may still lack merit. From a purely pragmatic view on this specific law, it does seem incongruous that the constitutionality of the wording of a pledge of allegiance to the whole country should be left up to individual states to determine, with the federal judiciary flatly barred from reviewing the matter. That seems a rather tortuous way to achieve a populist intent by forcing the judiciary into a questionable jurisdictional configuration. Reflecting broader, I find it intriguing how some people will support states' rights when they believe that will favor their position, but then support federal authority (sometimes manifesting in a Constitutional amendment) when they feel that states can't be trusted to legislate or rule in such a way that supports their position. This seems to me to be a basic inconsistency in views. Sadly it is found in both major political parties, today. Given my particular interest in appellate law, in the Establishment Clause, and in judicial review, I'll be looking forward to learning more from the Senate's treatment and subsequent debates on this. Saturday, September 18, 2004 I'm just re-watching the oral argument before the Florida Supreme Court on the Nader ballot access. It seems to me that the counsel opposing Nader's certification is not effectively answering the primary material question of whether the Reform Party qualifies as a valid "national party" and therefore whether it has a right to nominate Nader. The purpose of the case law on this issue (both at the State and Federal level) is meant to support a ballot which does not include frivolous or distracting candidates and does not undermine or dilute the citizen's right to vote. While the legislature has allowed two means by which to satisfy this concern (either collecting adequate signatures or being nominated by a "national party" at a "national convention"), the Florida legislature has not prescribed a clear means of defining "national party" and "national convention". Instead, it leaves it up to ministerial rule-making in the agencies with the authority to manage the elections process, hence, it is left to the ministerial discretion of the Florida Secretary of State to consider these criteria during candidate certification. In my opinion, then, it is not within the remit of the Florida Supreme Court to create a definition for "national party". Indeed, other states (e.g., Hawaii and Iowa) have different definitions and the Florida Secretary of State has never subjected parties to certification scrutiny before now, meaning there is no applicable Florida precedent to lean upon here in terms of vetting whether parties are "national" and the FEC also has a very broad definition of the term. Thus there is no clear guiding principle either in case law nor in ministerial rule-making for the Court to use to assume the intentions of the legislature in using the terminology "national party". Thus, given a Constitutional background which favors access and inclusion into electoral participation and little guidance from the legislature, agency rule-making, case law or even common usage, the Court must err on the side of inclusion - allowing the Florida Secretary of State's discretion in recognizing the Reform Party as satisfying the criteria for a "national party" and a "national convention" - and thereby must allow the inclusion of Nader on the ballot. Saturday, September 18, 2004 I've just updated the Library page with my reading list and a picture (see link at top of sidebar). I realized that it's good to have the works I've read listed neatly, the better to examine the trends and themes I've been exploring. I've listed the ones I've read recently with their date of completion. Much of my recent reading has been re-reading works of particular interest. The Iliad, The Constitution, Ken Follett's Pillars of the Earth and Ellis Peters' works are all old friends, as are, of course, portions of the Bible I read on a regular basis. In setting out this list, it's evident how my traveling this past year has curtailed a lot of my reading. Plus, I find myself reading a lot more on-line nowadays, with internet access. However, I don't think my eyes appreciate all the staring at the computer screen - I may finally need reading glasses! Saturday, September 11, 2004 Today is the third anniversary of the attack on the World Trade Center. My heart goes out to the people who lost family and friends in that great and horrible event. A moment of silence to honor the fallen. ... I am watching now the US House of Representatives debating the adoption of a resolution to commemorate the event. I am wholly in support of the resolution's intent and virtually all of the wording. However, I am saddened by the attempted politicization of the resolution by some politicians who have wangled the addition of a "Whereas" statement which connects the 9/11 attacks with the War in Iraq. Especially when the 9/11 commission, the Senate subcommittee and House subcommittee all found there was no significant, operational connection between Saddam Hussein and al Qaeda. So I think it's a disingenuous and cynical way to try to get a resolution, which is meant to sincerely commemorate our national loss in a great tragedy, to support a political agenda which has been roundly discredited. I'm also disappointed in some of the politicians who, hearing this objection raised by a number of concerned representatives (including by one from New York), suggest that it's being raised by people who don't share a common solidarity with Americans over this tragedy or in the War on Terrorists or who are not supporting the troops. This is an unfortunate example of jingoism triumphing over integrity. The politicians proposing this resolution know clear well that this statement is an attempt to have their political agenda validated by a House vote. They also know it places people who disagree with that political agenda in a difficult spot - forced to choose between voting for a resolution to commemorate 9/11, which they support, but which would require them to vote for a resolution which connects Iraq and 9/11. It just seems to me that the resolution ought to be non-political, and there ought to be greater personal integrity in public officials. But all of this said, I thoroughly agree with the "Resolved" portion of the resolution which extends sincere condolences to those who lost loved ones, and in committing ourselves to this global struggle for freedom from fear. On this day of remembrance, my heart goes out to my countrymen and women in the States and around the world, as well as citizens of other countries who lost loved ones on that terrible day. Tuesday, August 31, 2004 I just viewed a very interesting court case on CSPAN3. The Florida Supreme Court is hearing arguments in Bush vs. Schiavo on the Governor's appeal to overturn the striking down of "Terri's Law". I think if I were on the panel, I'd have to be frustrated that the plaintiff is not using more cogent argument in this case. The Governor's arguments don't seem to be legally sustainable, though they may well be morally driven. It seems clear that the question of separation of powers is a major factor here, and it may be valid reason alone for denying the appeal. The legislature has essentially essayed to strip final judicial decision-making away from the judiciary and give it to the executive branch. This seems unconstitutional. But I find even more compelling the defense's counterargument that the legislation is unconstitutional as it amounts to unacceptable delegation, because, specifically, it provides the Governor specific powers without any standards or procedures or criteria for review of the decision. And, given the facial clarity of the law, as well as the lack of specific language making it an amendment to chapter 765 or 744, it is hard to see how the law relies on 765 or 744 for diligence criteria. Thus, I don't think it could legitimately be considered to be a diligent delegation of legislative custodial power. Finally, it seems patently clear that the two-week sunset of the law made it only valid for one case which fit the specific criteria, and in that sense, it seems a fairly clear attempt by the legislature to overturn a final judicial decision for a specific case. The Governor's arguments asking for the court to accept an interpretation that this is a narrowly drawn law (that it doesn't touch on other final judicial decisions) is at variance with its effort to convince the panel that the nature of the law was meant to be broad in its scope to apply to everyone that fit the criteria, which, on its face, is also at variance with the two week sunset. So I can understand the plaintiff's arguments, and sympathize with their concerns - particularly given their love for Terri and desire to see her continue to live - but I think the panel would have to ignore the practical realities of this law (as argued) to be able to view it as constitutional. It seems like this is a case where the justices would have to legislate from the bench in order to find for the plaintiff. However, one might argue, which I heard only vaguely in the plaintiff's arguments, that the nature of the first adjudication - to allow Terri to be taken off of nutrition and hydration (and, hence, die) - is in such diametric opposition to other examples of other custodial decisions being made by the judiciary that extra judicial leniency should be allowed to uphold a decision for life-support. It is possible that the exceptional nature of what's being debated here would allow for an exceptional appeal leaning heavily on parens patriae interests. I would certainly have considered that approach. However, the plaintiff's legal counsel didn't seem to use that basis very heavily in their arguments before the Florida Supreme Court and it is a little frustrating to see the omission. Sunday, August 29, 2004 Just watching a superb interview on CSPAN2's "Book TV". The interviewee was Harold Holzer, author and historian specializing in Abraham Lincoln. Outstanding. I'm going to have to read more of his work. I'm also excited about a book he's talking about writing next on Lincoln and Jefferson, my two favorite US Presidents. Which brings to mind a few quotations by Lincoln I truly appreciate, thanks to this page: "If I were to try to read, much less answer, all the attacks made on me, this shop might as well be closed for any other business. I do the very best I know how - the very best I can; and I mean to keep doing so until the end. If the end brings me out all right, what's said against me won't amount to anything. If the end brings me out wrong, ten angels swearing I was right would make no difference." From The Inner Life of Abraham Lincoln: Six Months at the White House by Francis B. Carpenter (University of Nebraska Press, Lincoln, Nebraska, 1995), pp. 258-259. "I have been driven many times upon my knees by the overwhelming conviction that I had nowhere else to go. My own wisdom and that of all about me seemed insufficient for that day." From Lincoln Observed: The Civil War Dispatches of Noah Brooks edited by Michael Burlingame (Johns Hopkins University Press, Baltimore, 1998), p. 210. "The probability that we may fall in the struggle ought not to deter us from the support of a cause we believe to be just; it shall not deter me." From The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume I, "Speech on the Sub-Treasury" (in the Illinois House of Representatives, December 26, 1839), p. 178. "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough." From The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume II, "Notes for a Law Lecture" (July 1, 1850?), p. 81. "I have stepped out upon this platform that I may see you and that you may see me, and in the arrangement I have the best of the bargain." From The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume IV, "Remarks at Painesville, Ohio" (February 16, 1861), p. 218. "We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature." From Lincoln's First Inaugural Address, March 4, 1861. "Stand with anybody that stands RIGHT. Stand with him while he is right and PART with him when he goes wrong." From The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume II, "Speech at Peoria, Illinois" (October 16, 1854), p. 273. Saturday, August 28, 2004 I was just flipping through one of my journals from last year to confirm that today is the birthday of one of my friends and colleagues. While looking it up, I stumbled across an entry where he, a respectable, older Korean fellow, gave me a Korean name: mang wol back rin. Literally, it means Moon-gazing White Giraffe! Taken aback a bit, I asked him what that meant. Evidently, these terms have symbolic meanings, which I gather from his description equate roughly to "idealistic, noble leader". Somewhat flattered, I thanked him for the compliment. A little later, still curious, I pressed him on whether "idealistic" was perhaps a double-edged word. (I may be idealistic, but I'm not naïve!) After some discussion, and because we're good friends, he admitted that, yes, there could be an implied potential drawback in that. Still, I was honored. I thought about my hyung nim (elder brother) for a few days and then gave him a name as well - which I will leave to him to divulge to others as he sees fit. Happy birthday, D.! Thursday, August 26, 2004 It is often said that the only poll worth considering in the Presidential elections is the one taken on the first Tuesday in November. Nevertheless, this is probably the best poll site I've run across. It actually tabulates the expected Electoral Votes, based on ALL of the latest polling information pulled from Zogby, Gallup and so forth. A glance shows Kerry currently leading Bush, but so many states are within just a few percent that it's impossible to really tell how many of these states are likely to vote. Wednesday, August 25, 2004 Rest in Peace, Elisabeth Kübler-Ross. A pioneer in understanding the emotions surrounding dying and grieving (denial, anger, bargaining, dpression and acceptance) and hospice care, she passed away on Tuesday in Scottsdale, AZ. "She was 78 and not afraid." Monday, August 23, 2004 I'm just setting up my office in the second room. It needs some work, but it's nice now, before it gets cluttered with all of my books and files and projects in-progress. Monday, August 16, 2004 I was just re-reading the U.S. Constitution again recently. It really is a marvelous work of art. ***
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