Begging The Question

I was amused to see that the ABA Journal chose L.A. Law as the best legal-themed tv show of all time. It reminded me of one of my favorite legal-themed Saturday Night Live skits: the one where Corbin Bernsen from L.A. Law chooses to represent himself in a trial, based on the legal knowledge he has accumulated playing a lawyer on tv. After flailing quite a bit, he is “rescued” by L.A. Law cohort Susan Dey, Andy Griffith from Matlock, and finally, Raymond Burr from Perry Mason. It’s too bad that one’s not available at Hulu. Until then, we’ll have to make do with the L.A. Law theme song, “Shoulder Pads!” (technically, not the real title, but right in spirit).

National Review’s Jay Nordlinger asks, “Should one party, and only one party, impose a new regime of health care on the country — even if that party has the votes, however narrowly? This would be a tremendously big change. Something like a consensus may be appropriate.” I guess it depends on what he means by “consensus.”

First of all, there are (effectively) sixty Democratic Senators. That’s about what FDR had in his first term, and not a lot less than what LBJ had in his full term, and no one really questions the notion that there was a consensus for the New Deal or the Great Society (or at least Medicare). Some 36 states have at least one Democratic Senator, and they tend to be the more populous states. If folks in California don’t like being represented by a bunch of Democrats, they’re free to vote with their feet and move to Texas, right? Matt Yglesias harps on this kind of thing a lot: given that every state has an equal vote in the Senate, the small states are over-represented. The same is even true in the House, since every state gets at least one vote there, although the disparity isn’t quite as great.

My point here is that there is a 60-40 split in the Senate, and a 257-178 (or about 60-40) split in the House, and even those large majorities are somewhat skewed by the way the state delegations are parceled. If 60-40 isn’t a consensus, where is the threshold?

Four tangents.

First, I realize that the health care reform bills under consideration probably won’t get sixty votes. I’m not saying there is or is not a consensus for a specific proposal; I’m only wondering how one would define it.

Second, I also realize that one party could win a lot of 51-49 elections and wind up with 60% of the seats. I have three responses to this. One, see above regarding the skewed and undemocratic state delegation divisions. Someone like Nate Silver probably has the numbers on this, but I wouldn’t be surprised if the Democrats got close to 60% of the votes in 2008. That would mitigate, to a degree, any unfairness in several 51-49 victories translating to a 60-40 legislative edge. Two, see above regarding voting with one’s feet. If that many elections are that close, a few people moving could swing things back. Three, not all sixty Democrats are identical. The type of candidate who squeaks out a 51-49 win is going to vote against the party leaders some of the time, and will in turn pull the party towards the middle. This is what we’re seeing with the Blue Dogs. So, even in a situation where a bunch of 51-49 wins leads to a 60-40 party division in the legislature, the majority party is going to end up governing much more like a 55-45 or so party. All in all, the concern that an array of close elections flukily turned into a phony supermajority is, I think, overblown.

Third, we need to remember the difference between a consensus and a mandate. Even if having the presidency and 60% of the legislature in one party’s hands doesn’t constitute a consensus, it could very well constitute a mandate if those people ran and were elected on a platform, like a platform to reform health care. And it’s not as if John McCain ran on an “anti-health care” platform, either. Is it safe to say that voters who care strongly about health care reform voted for Democrats by decent majorities? Why isn’t that the consensus that matters?

Fourth, what other “tremendously big change[s]” would require consensus, in Nordlinger’s opinion? Going to war? Legalizing gay marriage? I’m genuinely curious. (Of course, for Nordlinger and the NR crowd, the whole idea is to have the bar set very high — “standing athwart history yelling stop” and all that.) I’m not opposed to the general idea that society and democracy are better served when there is a consensus for major developments, and it saves us the trouble of constant back-and-forths when the political winds blow. But I don’t think it should be a requirement or even a moral imperative. We do, after all, have a system of majority rule. Sometimes you’re in the 51, sometimes you’re in the 49. The good news is that it’s not as hard to flip that quotient; it’s much harder to turn the tide against a full-blown consensus. One who demands consensus votes should be careful what one wishes for — if you demand a consensus and lose, you’ve lost the battle and the war.

Sorry to be silent for a while, gang. I’m catching up on some long-pending questions from my All-Request post from a few weeks ago.

1. PG asks, “What, if any, are good reasons for a government attorney not to include all non-frivolous arguments on his client (the government)’s behalf?” Well, ideally, if justice (or the constitution) is better served by not raising them. I think the opportunities for that are myriad, but too varied to speculate on here. (To give one, the Solicitor General’s position in Dickerson, abandoning the position that section 3501 overruled Miranda. I think reasonable minds could differ on whether that was proper; certainly, the arguments in favor of 3501 weren’t frivolous.) But I also think simple efficiency is a good one, too. For example, you might be able to split hairs on whether precedent covers a given situation, but the easier thing to do is to assume it away or even concede it and argue good faith or harmlessness or some other error-saving doctrine. Plus, usually the government is responding to the defendant’s arguments, so the government’s brief really only needs to answer the arguments the defendant has raised, as opposed to any non-frivolous argument for affirmance.

2. PG also asks, “[W]here do you think Sotomayor would have come down in this mess?” The case she links to is Polar Tankers, Inc., v. City of Valdez, Alaska. You’d almost have to pay me to bone up on this one. Basically, the city passed a local tax applying to ships using its harbor. The Supreme Court struck down the tax in a terribly fractured set of opinions. Most of the Justices relied on the little-litigated Tonnage Clause of the Constitution, which restricts local duties on access to harbors. Honestly, without knowing much of anything about this case, I’d have to suspect that a Justice Sotomayor would be a pragmatist and join the Tonnage Clause decision, without going out of her way to reach the Commerce Clause issues. I haven’t seen any real indication that Judge Sotomayor is eager to stake out constitutional positions she hopes the Court will visit in years to come, the way Justice Thomas enjoys.

3. Sebastian asks, “If you started your own brewery/winery, what would you name it? What would be the name of your signature drink?” Hm. I dunno. Something with a legal hook, I guess, like Bar Exam Brewery or Amendment XXI Vineyards. Signature drink? How about a beer called Drunk In Public? And for the lite version, you could plead down to Disorderly Conduct.

4. Sebastian also asks a wonderful question: “Without naming the channel you watch the most, describe who that network thinks you are based solely on the commercials. For instance, are you an energy drinking, mountain hiking, person who is in need of a great many razors? Or perhaps you are an AARP member with a Life-Alert bracelet, poor denture cream and are in desperate need of a Hover-round?” Come to think of it, I do see a lot of razor commercials. I guess they’re recession-proof. But given that it’s the summer and virtually everything is in hiatus, pretty much the only tv I watch these days is “Conan O’Brien” and “Magnum, p.i.” reruns. “Conan” I watch on my dvr, so I end up fast-forwarding through a lot of fast food commercials and ads for whatever movie the guest is promoting. “Magnum” shows on one of those channels where every commercial is for, yes, the Life-Alert and the Hover-round, peppered liberally with those “You can’t be turned down!” insurance spots and lawyer ads for various class action lawsuits. So, apparently, the networks see me as a junk food-eating fatass who needs the wide seat at the movie theater, gets by on my disability check, and will only dance to the Wilford Brimley Diabetes Remix. For the record, only part of that is accurate.

It must have been fun to live in the 1930s, when everyone had a brand-new car, no matter their occupation or social station. At least, that’s what you would be led to believe watching period films, like The Untouchables or, apparently, the new Public Enemies. I realize these old cars are antiques now, but some period movies seem to make a fetish of verisimilitude, yet depict every vehicle as gleaming and in pristine condition. Look, this isn’t like Carl Carlson on that “Simpsons” episode asking, “How come oldies stations are always playing the same song? How bout some NEW oldies, geniuses!” Cars made back then are actually old now. Dig one out of a junkyard and park it somewhere in the movie. Other than “O Brother, Where Art Thou, I’m having a hard time coming up with a movie that had period jalopies. I guess they don’t give out Oscars for finding junkers.

So, I’m back from “hiking the Appalachian Trail,” or wherever I’ve been, and I’m going to start catching up on some questions and suggestions from my recent All-Request post. First, in response to commenter Cheech’s request, the current top 20 songs on my iPod. A few of these surprised me, but the gap between “most listened” and “never listened” is pretty small. But anyway, here they are. UPDATED with links!

1. “Sugar Magnolia,” by Bob Weir
2. “King Dork,” by Frank Portman
3. “Playing in the Band,” by Bob Weir
4. “London Calling,” by The Clash
5. “Paradise,” by John Prine
6. “The Rascal King,” by The Mighty Mighty Bosstones
7. “Dirty Life and Times,” by Warren Zevon
8. “Everybody Dance (Clap Your Hands),” by Chic
9. “Young Americans,” by David Bowie
10. “Romeo & Juliet,” by Dire Straits
11. “Alison,” by Elvis Costello
12. “Promises,” by Eric Clapton
13. “Never Going Back Again,” by Fleetwood Mac
14. “Boulevard,” by Jackson Browne
15. “Lawyers in Love,” by Jackson Browne
16. “Capital Radio One,” by The Clash
17. “Tumbling Dice,” by Linda Ronstadt
18. “I Want To Help You Ann,” by The Lyres
19. “Kissaway,” by Mates of State
20. “King of All the World,” by Old 97s

So the gays (and the gay-friendly) are upset with the Obama administration for failing to deliver on campaign promises to be a “fierce advocate” for gay rights. And, I’d say, with good reason — Obama has not just failed to deliver, but in some cases been outright hostile.

With exquisite timing, this fuss comes shortly before a DNC fundraiser for the LBGT community. Plenty of gay activists are upset that the administration is giving them the high-hat with one hand and passing the hat with the other. But the best part about all this is that the featured guest at the fundraiser is Vice-President Joe Biden.

That’s right — Joe Biden is going to be speaking to an important, sensitive, upset group paying close attention for more slights. Frankly, I think they have yet to invent the computer capable of calculating the odds that Biden won’t say something stupid. So instead of debating whether Biden will say something that’ll require an apology or “clarification” a day or so later, I think we should discuss what kind of gaffe Biden will make. My suggestions:

– Maybe not the way you want to put it. Praising the distinguished Congressman appearing with him, Biden says the line “I love Barney Frank!” and instantly launches a million YouTube clips.

– The creepy story. Biden tells a rambling story about a gay kid he used to know in Scranton, and kind of intimates he used to beat the kid up.

– The inappropriate revelation of insider info/inappropriate promises. Biden reveals that Pam Karlan was his choice for SCOTUS, but promises that Judge Sotomayor “has your back.”

– The bad joke. “Hey, if all the gays get married, nobody will be left to cater the receptions!”

– The really bad joke. “Hey, when Bristol Palin realized that Levi Johnston was her only option, she said, ‘Tell me more about this gay marriage thing!’”

Anybody else want to venture a guess at what Biden’s gaffe will be?

I’m still around. No, I didn’t quit blogging, I didn’t get outed, and I’m not escorting the Uighers to Palau. I’ve just been too busy to write down a few thoughts that are knockin’ around my noggin. I’ll be back soon, but for now, consider this an open thread/all-request post. What’s on your mind?

For some reason, I’ve always been annoyed by people who say “decimate” when they actually mean something closer to “annihilate.” Sure, I’ve misappropriated words a few times, but this particular bit just annoys me. So it was funny when I saw a cartoon in The New Yorker which featured two viking-looking guys chatting to each other. One said something like, “Did you know that decimate means 1 in 10?”

I guess it’s one thing to not know what “mayhem” means (since it appears no one ever teaches that in law school), but generally, aren’t people saying “mayhem” without actually meaning ripping limbs apart? Sure, “decimate” and “annihilate” both give the impression that something really bad happened, but to me, I’m going to be a lot more impressed with annihilation than mere decimation.

Friend: Still, “decimate” is pretty bad. It’s not like anyone really means “one out of every ten.”

McPan: But people say “decimate” in place of “annihilate!” One is clearly worse than the other!

Friend: It’s not like if someone says “decimate” it lessens how bad something is.

McPan: I guess, but “decimate” should mean something less than 50% for sure. I mean, it should be a lot closer to the original 1/10.

Friend: No, I think people can use “decimate” and mean more than 50%.

McPan: That’s just dumb. I mean, “decimate” is one of those SAT vocabulary words that you’re supposed to figure out by looking at the root, or trying to guess what it means from the words around it. “Nihil” is practically the opposite of “deca.”

Friend: Fair enough, but I think “decimate” is used commonly enough now that the original meaning doesn’t matter as much.

McPan: What?! You can’t say, It’s a decathalon but there’s only eight events.

Friend: Haven’t we had this conversation before?

McPan: I know. We’re such dorks.

Interestingly, whoever this “Usage Panel” is, they agree that the modern usage extends to killing a large proportion of a group but not to “large-scale destruction other than killing.”

———-
Garçon means boy.

I was in an elevator the other day and noticed the instructions for firemen to operate the thing with their special keys. Isn’t that something they tell you when they give you the key? Are all elevators unique? Anyway, it got me thinking about unnecessary instructions.

I’m not talking about dumb instructions, like the line on the car window shade thing that says not to leave it up while you’re driving. I’m talking about actual, intended-to-be-helpful instructions that are totally unnecessary because any semi-sentient being can figure the thing out without reading a manual.

My first thought for the most unhelpful was those restroom automatic hand dryers. “Push button, hold hands under the air to dry” seems pretty useless to me, because the entire mechanism consists of a giant button and an air vent. It should only take you, at most, one failed attempt before you figure out what the button does.

But then I realized that the absolute most unnecessary set of instructions come on envelopes: “Place stamp here.” If you’re mailing an envelope, and haven’t figured out where to put the stamp (or that it needs one at all), no one’s going to be able to read what you wrote anyway.

So that’s my nomination for most useless instructions. Anyone got anything better? Or, rather, worse?

I was catching up on my survivalist calendar, and discovered belatedly that Monday was Victoria Day in Canada. That has no significance to me, but it does give me a chance to post this quirky video of The Fall covering the song “Victoria” by The Kinks.